*»«»m«* (Jlorttfll Siaai Srljnnl SJthrarg CORNELL UrnMsiTY APR 28 1908 LAW LIBEAEY. KF 154 Ca?"" """""■"•y'-lbrary V.3 \ • Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024610994 CURRENT LAW A COMPLETE ENCYCLOPEDIA OF NEW LAW Volume III. ABATEMENT AND REVIVAL TO INDIANS GEORGE FOSTER LONGSDORF, Editor WALTER A. SHUMAKER, Associate ST. PAUL, MINN. KEEFE-DAVIDSON COMPANY 1905. COPYRIGHT, 1904, 1904, 1904, 1906, 1905, 190S BY Kbepe-Davidson Co. TOPICAL INDEX. Use the index in your latest number. Ignore all previous indexes in volumes and numbers. The latest index cites by volume and page to the latest treatment of any subject. Tou do not have to study classification for this index contains the name of every subject you are familiar with and not merely the titles of our articles. The page citation at the beginning of each article directs to the particular sub- division wanted. There you find its latest treatment and also a volume and page cita- tion to the same points in earlier volumes. Black figures refer to volumes; light figures to pages. This index is revised and reprinted every month. Bemember to start with the latest index and you cannot go astray or miss anything. A. ABANDONMENT, see Basements, 3, 1155; Highways, etc., 3, 1605; Discontinuance, etc., 3, 1097; Property, 2, 1279; Marine Insurance, 8, 792. ABATEMENT AND REVIVAL,, 3, 1. ABBREVIATIONS, see Contracts, 3, 827; Pleadings, S, 1178; Indictments, etc., 3, 307; Names, etc., a, 988, and the like. ABDUCTION, 3, 12. ABETTING CP.IME, see Criminal Law, 3, 982. ABIDE THE EVENT, see Costs, 3, 940; Pay- ment into Court, 2, 1163; Stay of Pro- ceedings, 2, 1736; Stipulations, 2, 1740. ABODE, see Domicile, 3, 1142. ABORTION, 3, 13. ABSCONDING DEBTORS, see Attachment, 3, 355; Civil Arrest, 3, 700; Bankruptcy, 3, 434; Limitation of Actions, 3, 746. ABSENTEES, 3, 13. ABSTRACTS OP TITLE, 3, 14. ABUSE OF PROCESS, see Process, 2, 1259. ABUTTING OWNERS, see Highways and Streets, 8, 1613, 1621; Eminent Domain, 3, 1189; Municipal Corporations 2, 940, ACCEPTANCE. Titles treating of the sub- ject of an acceptance should be consult- ed. See Contracts, S, 806; Deeds, etc., 3, 1060, and the like. ACCESSION AND CONFUSION OF PROP- ERTY, 3, 15. ACCESSORIES, see Criminal Law, 3, 982. ACCIDENT — in equity, see Mistake and Ac- cident, 2, 903 — resulting in legal injury, see Master and Servant, a, 801; Negli- gence,, a, 996; Carriers, 3, 591; Damages, 3, 997; Insurance, a, 479. ACCOMMODATION PAPER, see Negotiable Instruments, 2, 1013. ACCOMPLICES, see Criminal Law, 3, 982; Indictment and Prosecution, 2, 307; Evi- dence, 3, 1334. ACCORD AND SATISFACTION, 3, 17. ACCOUNTING, ACTION FOR, 3, 24. See, also. Estates of Decedents. 3, 1304; Guardianship, 3, 1574; Partnership, 2, 1106; Trusts, 2, 1924. ACCOUNTS STATED AND OPEN ACCOUNTS, 3, 27. ACCRETION, see Riparian Owners, 2, 1522. ACCUMULATIONS, see Trusts, 2, 1924; Per- petuities, 2, 1173. ACKNOWLEDGMENTS, 3, 31. ACTIONS, 3, 35. See, also, "Causes of Action, etc., 3, 663; Forms of Action, 3, 1494; Pleading (joinder of actions), 2, 1193. ACT OF GOD, see Carriers, 3, 591; Contracts, 3, 840; Insurance, a, 479; Negligence, 2, 996. ADDITIONAL ALLOWANCES, see Costs, 3, 940. ADEMPTION OF LEGACIES, see Wills, a, 2076. ADJOINING OWNERS, 3, 36. See, also. Fen- ces, 3, 1422. ADJOURNMENTS, see Courts, 3, 971; Con- tinuance and Postponement, 3, 801. ADMINISTRATION, see Estates of Dece- dents, 3, 1239; Trusts, 8, 1924. ADMIRALTY, 3, 40. ADMISSIONS, see Indictment and Prosecu- tion, a, 307; Evidence, 3, 1359; Pleading, a, 1178; Trial, 2, 1907. ADOPTION OF CHILDREN, 3, 45. ADULTERATION, 3, 47. ADULTERY, 3, 48. ADVANCEMENTS, see Estates of Decedents, 3, 1324; Wills, 2, 2076; Trusts, 2, 1924. ADVERSE POSSESSION, 3, 61. ADVERTISING CONTRACTS, see Contracts, 3, 805. ADVICE OF COUNSEL, see Attorneys, etc., 3, 376; Malicious Prosecution, 2, 767, and other torts involving malice; Witnesses (as to Privileged Nature of Communica- tions), 2, 2176. AFFIDAVITS, 3, 66. [i] 11 TOPICAL INDEX. AFFIDAVITS OF MERITS OP CliAIM OR DEFENSE, 3, 66. AFFIRMATIONS, see Witnesses, 8, 2163; Ju- ry, a, 633. AFFRAY, 3, 68. AGENCY, 3, 68. AGENCY IMPLIED FROM RELATION OF PARTIES [Special Article], 3, 101. AGISTMENT, see Animals, 3, 162; Liens, a, 736. AGREED CASE, see Submission of Contro- versy, a, 1767; Appeal and Review, 3, 167; Stipulations, a, 1740. AGRICULTURE, 3, 137. AIDER BT VERDICT, ETC., see Indictment and Prosecution, a, 307; Pleading, a, 1178. ALIBI, see Criminal Law, 3, 979; Indictment and Prosecution, S, 307. ALIENS, 3, 138. ALIMONY, 3, 146. ALTERATION OF INSTRUMENTS, 3, 154. AMRASSADORS AND CONSULS, 3, 158. AMBIGUITY, see those parts of titles like Contracts, 3,827; Statutes, 3, 1707; Wills, a, 2076, which treat of interpretation. AMENDMENTS, see Indictment and Prosecu- tion, a, 307; Pleading, a, 1178; Equity, 3, 1210, and procedure titles generally. AMICUS CURIAE, 3, 168. AMOTION, see Associations and Societies, 3, 346; Corporations, 3, 899. AMOUNT IN CONTROVERSY, see Appeal and Review, 3, 167; Jurisdiction, a, 604; Costs, 3, 940. ANCIENT DOCUMENTS, see Evidence, 3, 1365. ANIMALS, 3, 159. ANNUITIES, 3, 165. ANOTHER SUIT PENDING, see Abatement and Revival, 3, 1; Stay of Proceedings, a, 1736;. Jurisdiction, a, 604. ANSWERS, see Equity, 3, 1229; Pleading, a, .1178. ANTENUPTIAL CONTRACTS AND SETTLE- MENTS, see Husband and Wife, 3, 1670. ANTI-TRUST LAWS, see Combinations and Monopolies, 3, 706. APPEAL AND REVIEW, 3, 167. APPEARANCE, 3, 300. APPELLATE COURTS AND JURISDICTION, see Appeal and Review, 3, 167; Jurisdic- tion, a, 604. APPLICATION OP PAYMENTS, see Payment and Tender, a, 1158. APPOINTMENT, see Officers and Public Em- ployes, a, 1069; Estates of Decedents, 3, 1245; Trusts, a, 1924, and the like; Pow- ers, a, 1257. APPORTIONMENT LAWS, see Elections, 3, 1165; Officers, etc., 2, 1069; States, a, 1703. APPRENTICES, 3, 303. ARBITRATION AND AWARI»> 3, 303. ARCHITECTS, see Building and Construc- tion Contracts, 3, 656. ARGUMENT OP COUNSEL, 3, 306. ARMY AND NAVY, see Military and Naval Law, 2, 890. ARRAIGNMENT AND PLEAS, see Indict- ment and Prosecution, a, 307. ARREST AND BINDING OVER, 3, 312. ARREST OP JUDGMENT, see New Trial and Arrest of Judgment, a, 1037. ARREST ON CIVIL PROCESS, see Civil Ar- rest, 3, 700. ARSON, 3, 318. See, also. Fires, 3, 1426. ASSAULT AND BATTERY, 3, 319. ASSIGNMENTS, 3, 326. ASSIGNMENTS FOR BENEFIT OF CRED- ITORS, 3, 337. ASSIGNMENT OP ERRORS, see Appeal and Review, 3, 167; Indictment and Prosecu- tion a, 307. ASSISTANCE, WRIT OP, 3, 345. ASSOCIATIONS AND SOCIETIES, 3, 346. ASSUMPSIT, 3, 348. ASSUMPTION OF OBLIGATIONS, see Nova- tion, a, 1061; Guaranty, 3, 1564; Frauds, Statute of, 3, 1527, also Mortgages, a, 905. ASSUMPTION OF RISK, see Master and Servant, 8, 801. ASYLUMS AND HOSPITALS, 3, 352. ATTACHMENT, 3, 353. ATTEMPTS, see Criminal Law, 3, 980, and specific titles like Homicide, 3, 1645; Rape, 8, 1453. ATTORNEYS AND COUNSELORS, 3, 376. ATTORNEYS FOR THE PUBLIC, see Attor- neys and Counselors, 3, 392. AUCTIONS AND AUCTIONEERS, 3, 394. AUDITA QUERELA, see Judgments, a, 581. AUSTRALIAN BALLOTS, see Elections, 3, 1169. AUTREFOIS ACQUIT, see Criminal Law, 3. 983. B. BAGGAGE, see Carriers, 3, 661; Inns, Res- taurants, etc., a, 453. BAIL, CIVIL, 3, 394. BAIL, CRIMINAL, 3, 396. BAILMENT, 3, 400. BANK COLLECTIONS OF FORGED OR AL- TERED PAPER [Special Article], 3, 428. BANKING AND FINANCE, 3, 403; with Special Article, 3, 428. BANKRUPTCY, 3, 434. BASTARDS, 3, 496. BENEFICIARIES, see Insurance, 8, 479; Trusts, a, 1924; Wills, 8, 2076; Fraternal, etc.. Associations, 3, 1513. BENEFICIAL ASSOCIATIONS, see Fraternal Mutual Benefit Associations, 3, 1499, also Associations, 3, 346; Corporations, 3,880. BETTERMENTS, see Ejgctment, etc., 3, 1165. BETTING AND GAMING, 3, 499. BIGAMY, 3» 506. BILL OF DISCOVERY, see Discovery and Inspection, 3, 1106. BILLS AND NOTES, see Negotiable Instru- ments, 8, 1013; Banking and Finance, 3, 403. ■ TOPICAL INDEX. Ill BILLS IN EQUITY, see Equity, 3, 1210; and to the special relief prayed see such ti- tles as Judgments, 8, 581; Quieting Ti- tle, 8, 1366. BIHjS op lading, see Carriers, 3, 595; Sales, a, 1527; Negotiable Instruments, a, 1013. BILLS OP SALE, see Sales, a, 1527; Chattel Mortgages, 3, 682; Fraudulent Convey- ances, 3, 1535. BIRTH REGISTERS, see Census and Statis- tics, 3, 666; Evidence, 3, 1334. BLACKMAIL,, 3, 507. BLENDED PROPERTIES, see Accession and Confusion of Property, 3, 15; Conversion as Tort, 3, 866; Conversion in Equity, 3, 876; Trusts, a, 1924; "Wills, a, 2076. BOARD OP HEALTH, see Health, 3, 1591. BOARDS, see Officers and Public Employes, a, 1069, also see various titles like Coun- ties, 3, 959; Municipal Corporations, 2, 940. BODY EXECUTION, see Civil Arrest, 3, 701. BONA FIDES, see Negotiable Instruments, 2, 1013; Notice and Record of Title, a, 1053. BONDS, 3, 507. See, also. Municipal Bonds, a, 931; Counties, 3, 968; Municipal Cor- porations, a, 940; States, a, 1703. "BOTTLE" AND "CAN" LAWS, see Com- merce, 3, 717. BOTTOMRY AND RESPONDENTIA, see Ship- ping and "Water Traffic, a, 1648. BOUGHT AND SOLD NOTES, see Frauds, Statute of, 3, 1527; Brokers, 3, 535; Fac- tors, 3, 1415. BOUXSARIBS, 3, 518. BOUNTIES, 3, 524. BRANDS, see Animals, 3, 165; Commerce, 3, 717; Forestry and Timber, 3, 1468; Trade Marks 'and Trade Names, a, 1881. BREIACH OF MARRIAGE PROMISE, 3, 525. BREACH OF THE PEACE, see Disorderly Conduct, 3, 1111; Surety of the Peace, a, 1776. BRIBERY, 3, 627. BRIDGES, 3, 529. BROKERS, 3, 535. BUILDIIVG AND CONSTRUCTION CON- TRACTS, 3, 550. BUILDING AND LOAN ASSOCIATIONS, 3, 561. BUILDINGS AND BUILDIN6 RESTRIC- TIONS, 3, 572. BURDEN OF PROOF, see Evidence, 3, 1337. BURGLARY, 3, 578. BURNT RECORDS, see Restoring Instru- ments and Records, 8, 1520. BY-LAWS, see Associations and Societies, 3, 347; Corporations, 3, 912. c. CALENDARS, see Dockets, etc., 3, 1140. CANALS, 3, 583. CANCELLATION OF INSTRUMENTS, 3, 584. CANVASS OF VOTES, see Elections, 3, 1173. CAPITAL, see Corporations, 3, 899; Partner- ship, 3, 1106; Banking and Finance, 3, 403. CARLISLE TABLES, see Damages, 3, 1030; Death by Wrongful Act, 3, 1040; Evi- dence, 3, 1366. CARRIERS, 3, 591. CARRYING WEAPONS, see Constitutional Law, 3, 793; Weapons, 8, 2071. CAR TRUSTS, see Railroads, 8, 1382. CASE, ACTION ON, 3, 663. CASE AGREED, see Appeal and Review, 3, 167; Submission of Controversy, 8, 1767. CASE CERTIFIED, see Appeal and Review, 3, 167, CASE SETTLED, see Appeal and Review, 3, 167. CASH, see Payment and Tender, 8, 1158. CATCHING BARGAIN, see Assignments, 3, 326; Estates of Decedents, 3, 1323; Life Estates, Remainders and Reversions, 8, 741; Fraud and Undue Influence, 3, 1520. CAUSES OF ACTION AND DEFENSES, 3, 663. CEMETERIES, 3, 665. CENSUS AND STATISTICS, 3, 666. CERTIFICATE OF DOUBT, see Appeal and Review, 3, 167; Indictment and Prosecu- tion, a, 378. CERTIFICATES OP DEPOSIT, see Banking and Finance, 3, 417; Negotiable Instru- ments, a, 1013. CERTIORARI, 3, 667. CHALLENGES, see Jury, 8, 633. CHAMBERS AND VACATION, see Courts, 3, 970; Judges, 8, 677. CHAMPERTY AND MAINTENANCE, 3, 677. CHANGE OF VENUE, see Venue, etc., a, 2000. CHARACTER EVIDENCE, see Indictment and Prosecution, 8, 334; Witnesses, 3, 2163. CHARITABLE AND CORRECTIONAL IN- STITUTIONS, see Asylums and Hospi- tals, 3, 353. Compare 1 Curr. L. 507. CHARITABLE GIFTS, 3, 678. CHARTER PARTY, see Shipping and Water Traffic, a, 1648. CHATTEL MORTGAGES, 3, 682. CHATTELS, see titles treating of various rights in personalty other than ohoses in action. Distinction between chattels and realty, see Property, 8, 1279. CHEATS, see False Pretenses, etc., 3, 1420; Deceit, 3, 1045; Fraud, etc., 3, 1620, and the like. CHECKS, see Banking, etc., 3, 417; Negotia- ble Instruments, 3, 1013. CHILDREN, see Parent and Child, 3, 1089; Infants, 8, 392; Descent and Distribution, 3, 1081; Wills, 8, 2076. CHINESE, see Aliens, 3, 138. CITATIONS, see Process, 3, 1259; Estates of Decedents, 3, 1238, 1248; Appeal and Re- view, 3, 167. CITIZENS, 3, 699. CIVIL ARREST, 3, 700. CIVIL DAMAGE ACTS, see Intoxicating Liq- uors, 3, 554. CIVIL DEATH, see Convicts, 3, 878. CIVIL RIGHTS, 3, 702. IV TOPICAL INDEX. CIVIL SERVICE, see Officers and Public Em- ployes, 8, 1069. CLEARING HOUSES, see Banking and Pi- nance, 3, 403. CLERICS OP COURT, 3, 702. ^ CLOUD ON TITLE, see Covenants for Title. 3, 973; Quieting Title, 3, 1366; Vendors and Purchasers, 3, 1976. TLUBS, see Associations and Societies, 3, 346. CODICILS, see Wills, 3, 2077. COGNOVIT, see Confession of Judgment, 3, 719. COIj1.BGBS and academies, 3, 705. COLLISION, see Shipping and "Water Traffic, 3, 1654. COLOR OP TITLE, see Adverse Possession, 3, 51. COMBINATIOBfS AND MONOPOLIES, 3, 706. COMMERCE, 3, 711. COMMITMENTS, see Arrest and Binding Over, 3, 312; Contempt, 3, SOO; Indict- ment and Prosecution, 3, 307; Pines, 3, 1424. COMMON AND PUBLIC SCHOOLS, 1, 544. COMMON LAW, 3, 717. COMMUNITY PROPERTY, see Husband and Wife, 3, 1676. COMPARATIVE NEGLIGENCE, see Negli- gence, 3, 996. COMPLAINT POR ARREST, see Arrest and Binding Over, 3, 312. COMPLAINTS IN PLEADING, see Pleading, 8, 1178. COMPOSITION WITH CREDITORS, 3, 718. COMPOUNDING OFFENSES. No cases have been found during the period covered. CONCEALED WEAPONS, see Weapons, 3, 2071.' CONCEALMENT OF BIRTH OR DEATH. No cases have been found during the period covered. See 1, 658. CONDEMNATION PROCEEDINGS, see Emi- nent Domain, 3, 1200, 1205. CONDITIONAL SALES, see Chattel Mortga- ges, 3, 682; Fraudulent Conveyances, 3, 1535; Sales, 3, 1527. CONPBSSION AND AVOIDANCE, see Plead- ing, 3, 1178. CONFESSION OF JUDGMENT, 3, 719. CONPESSIONS, see Indictment and Prosecu- tion, a, 307. CONFISCATION, see Constitutional Law (Due Process), 3, 772; Pish and Game Laws, 3, 1430. CONFLICT OF LAWS, 3, 720. CONFUSION OP GOODS, see Accession and Confusion of Property, 3, 15. CONNECTING CARRIERS, see Carriers, 3, 591; Railroads, a, 1382. CONSIDERATION, see Contracts, 3, 809. CONSOLIDATION (of actions), see Trial, a, 1907; (of corporations) see Corporations, 3, 880. CONSPIRACY, 3, 726. CONSTABLES, see Sheriffs and Constables, 3, 1640. CONSTITUTIONAL LAW^, 3, 730. CONSULS, see Ambassadors and Consuls, 3, 158. CONTEMPT, 3, 795. CONTINUANCE AND POSTPONEMENT, 3, 801. CONTRACT LABOR LAW, see Aliens, 3, 138. CONTRACTS, 3, 805; with Special Article, 3, 861. CONTRACTS OP AFFREIGHTMENT, see Carriers, 3, 591; Shipping and Water Traffic, a, 1648. CONTRACTS OF HIRE, see Bailment. 3, 400. CONTRACTS VOID BECAUSE INTERFER- ING WITH THE PUBLIC SERVICE [Special Article], 3, 861. CONTRIBUTION, 3, 865. CONTRIBUTORY NEGLIGENCE, see Negli- gence, 3, 996. CONVERSION AS TORT, 3, 866. CONVERSION IN EQUITY, 3, 876. CONVICTS, 3, 878. COPYRIGHTS, 3, 878. CORAM NOBIS AND CORAM VOBIS, see Appeal and Review, 3, 167. The various statutory substitutes for the remedy by writ Coram Nobis are usually considered as part of the law of judgments. See Judgments, 3, 581. CORONERS, 3, 879. CORPORATIONS, 3, 880. CORPSES AND BURIAL, 3, 939. CORPUS DELICTI, see Criminal Law, 3, 979; Indictment and Prosecution, a, 307. CORROBORATIVE EVIDENCE, see Indict- ment and Prosecution, a, 307; Witnesses, 3, 2163; Trial (exclusion of cumulative evidence), a, 1912; Divorce, 3, 1133; Se- duction, a, 1619; Rape, a, 1453. COSTS, 3, 940; with Special Article, 3, 954. COSTS IN THE CIRCUIT COURT OF AP- PEALS [Special Article], 3, 954. COUNTERFEITING, 3, 959. COUNTIES, 3, 959. COUNTS AND PARAGRAPHS, see Pleading, a, 1178. COUNTY COMMISSIONERS OR SUPERVI- SORS, see Counties, 3, 959; Highways and Streets, 3, 1607; Towns; Townships, a, 1877. COUNTY SEAT, see Counties, 3, 959. COUPLING CARS, see Master and Servant (injuries to servants), 3, 1411; Railroads (statutory regulations), 3, 801. COUPONS, see Bonds, 3, 507, and titles re- lating to public or private corporations which customarily issue bonds (interest coupons) ; Negotiable Instruments, 3, 1013; Carriers (coupon tickets), 3, 591. COURT COMMISSIONERS, see Courts, 3, 970; Judges, a, 577. COURTS, 3, 970. COVENANT, ACTION OF. No Cases have come to the notice of the editor during the time covered. COVENANTS, see titles relating to instru- ments, wherein covenants are embodied, e. g. Contracts, 3, 805; Deeds of Convey- ance, 3, 1063; Landlord and Tenant (leas- es), a, 669; Vendors and Purchasers (land contracts), 8, 1976; see Buildings, etc., (covenants restrictive), 3, 674. TOPICAL INDEX. COVENANTS FOR TITLE, 3, 973. COVBETUKB. see Husband and Wife, S, 1669. CRBDIT INSURANCE, see Indemnity, 3, 1698; Insurance, 2, 479. CREDITORS' SUIT, 3, 976. CRIMINAL, CONVERSATION, see Husband and Wife (civil liability), S, 1686; Adul- tery (crime), 3, 48; Divorce (ground), 3, 1128. CRIMINAL LAW, 3, 979. CROPS, see Agriculture, 3, 137; Bmblements and Natural Products, 3, 1187; Landlord and Tenant (renting for crops), 2, 680, 683; Chattel Mortgages (mortgages on crops), 3, 683. CROSS BILLS AND COMPLAINTS, see Equi- ty, 3, 1226; Pleading, a, 1178. CROSSINGS, see Highways and Streets, 3, 1610; Railroads, 3, 1382. CRUBL AND UNUSUAL PUNISHMENTS, see Constitutional Law, 3, 780; Criminal Law, 3, 985. CRUELTY, see Animals, 3, 159; Divorce, 3, 1128; infants, », 392; Parent and Child, 3, 1089. CUMULATIVE EVIDENCE, see Trial (recep- tion and exclusion of evidence), 3, 1912; New Trial, etc. (newly discovered cumu- lative evidence), 3, 1045. CUMULATIVE PUNISHMENTS, see Criminal Law, 3, 985. CUMULATIVE VOTES, see Corporations, 3, 880. CURATIVE ACTS, see Statutes, 3, 1707. CURTESY, 3, 987. CUSTOMS AND USAGES, 3, 988. CUSTOMS LAW^S, 3, 990. D. DAMAGES, 3, 997. DAMNUM ABSQUE INJURIA, see Causes of Action, 3, 663; Torts, 3, 1875; compare Negligence, 3, 996. DAMS, see Navigable Waters, 3, 989; Ripa- rian Owners, S, 1522; Waters and Water Supply, 3, 2034. DATE, see titles treating of the various in- struments as to the necessity and effect of a date; see Time, 3, 1871. as to com- putation. DATS, see Holidays, 3, 1630; Sunday, 3,1772; Time, 3, 1871. DEAD BODIES, see Corpses and Burial, 3, 939. DEAF MUTES. No cases have been found during the period covered. Compare Fraud and Undue Influence, 3, 1524; In- competency, 3, 1696; Negligence, S, 996. DEATH AND SURVIVORSHIP, 3, 1033. DEATH BY WRONGFUL ACT, 3, 1034. DEATH CERTIFICATES, see Census and Statistics, 3, 666; Fraternal, etc., Asso- ciations, 3, 1517; Insurance, 3, 479. DEBENTURES, see Corporations, 3, 880; Railroads, 3, 1382. DEBT, see titles descriptive of the various instruments and agreements predicated on debt or evidencing debt (Accounts Stated, etc., 3, 27; Contracts, 3, 805; Bonds, 3, 507; Negotiable Instruments, 8, 1013; Chattel Mortgages, 3, 682; Mort- gages, 3, 905; Implied Contracts, 3,1690, and the like), also titles relating to pro- ceedings for liquidation of affairs of persons or corporations (Bankruptcy, 3, 434; Assignments for Benefit of Creditors, 3, 343-345; Corporations, 3, 880; Es- tates of Decedents, 3, 1267-1283; Partner- ship, 3, 1106, and the like), titles relating to transfer or discharge of debt (Assign- ments, 3, 326; Accord and Satisfaction, 3, 17; Novation, 3, 1061; Releases, 3, 1498, and titles relating to specific kinds of debt or security), also titles descriptive of remedies for collection of debts (As- sumpsit, 3, 348; Creditors' Suit, 3, 976; Forms of Action, 3, 1494, and code reme- dies as applied in substantive titles al- ready enumerated), also titles relating to corporations or associated persons, or to classes of persons not sui Juris (Asso- ciations, etc., 3, 346; Partnership, 3, 1106; Corporations, 3, 880; Infants, 3, 392; Husband and Wife, 3, 1669; Insane Per- sons, 3, 454; Guardianship, 3, 1573; Trusts, 3, 1924, and the like). DEBT, ACTION OF, 3, 1045. DEBTS OP DECEDENTS, see Estates of De- cedents, 3, 1238. DECEIT, 3, 1045. DECLARATIONS, see Evidence, 3, 1359; Pleadings. 3, 1178. DECOY LETTERS, see Postal Laws, 3„ 1253. DEDICATION, 3, 1050. DEEDS OF CONVEYANCE, 3, 1056. DEFAULTS, 3, 1069. DEFINITE PLEADING, see Pleading, 3, 1178; Equity, 3, 1222. DEL CREDERE AGENCY, see Agency, 3, 68; Factors, 3, 1415. DEMAND, see titles treating of particular rights or remedies of which demand may be an element. Compare Payment and Tender, S, 1158; Payment into Court, 3, 1163. DEMURRAGE, see Carriers, 3, 606; Shipping and Water Traffic, 3, 1648. DEMURRERS, see Pleading, 3, 1178; Equity, 3, 1227. DEMURRER TO EVIDENCE, see Directing Verdict, etc., 3, 1093. DEPARTURE, see Pleading, 3, 1178. DEPOSITIONS, 3, 1074. DEPOSITS, see Warehousing and Deposits, 3, 1163; Banking, etc., 3, 417; Payment into Court, 3, 1163. DEPUTY, see Oflicers and Public Empl05''es, 3, 1069, also titles relating to partiOLilar offices as Sheriffs, etc., 3, 1640, DESCENT AND DISTRIBUTION, 3, 1081. DETECTIVES, see Municipal Corporations (police organizations), 3, 947; Officers and Public Employes, 3, 1069; Licenses (private detectives), 3, 730, and as to their credibility as witnesses, see Wit- nesses, 3, 2163; Indictment and Prosecu- tion, 3, 307; Evidence, 3, 1334; Divorce, 3, 1127. DETERMINATION OP CONFLICTING CLAIMS TO REALTY, see Quieting Ti- tle, 3, 1366. TOPICAL INDEX. DETINUE, 1, 924. No cases have been found during the period covered by volume 3. DEVIATION, see Carriers, 3, 591; Marine In- surance, 3, 792; Shipping and Water Traffic, 2, 1648. DILATORY PLEAS, see Abatement and Re- vival, 3, 167; Pleading, 8, 117S. DIRECTING VERDICT AND DEMURRER TO EVIDENCE, 3, 1093. DISCLAIMERS, see Causes of Action and Defenses; 3, 663; Costs, 3, 940; Pleading, S, 1178. DISCONTINUANCE, DISMISSAIi AND NON- SUIT, 3, 1097. DISCOVERY AND INSPECTION, 3, 1106. DISCRETION, see articles treating of pro- cedure or relief resting in discretion. Review or control of discretion, see Ap- peal and Review, 3, 167; Mandamus, S, 771; Prohibition, Writ of, S, 1278; Cer- tiorari, 3, 667. DISFRANCHISEMENT, see Elections, 3, 1165. DISMISSAL AND NONSUIT, see Discontinu- ance, etc., 3, 1097. DISORDERLY CONDUCT, 3, 1111. DISORDERLY HOUSES, 3, 1111. DISSOLUTION, see Corporations, 3, 893; Partnership, 8, 1106. DISTRESS, see Landlord and Tenant, 8, 668. DISTRICT ATTORNEYS, see Attorneys and Counselors, 3, 393. DISTRICT OP COLUMBIA, see Territories and Federal Possessions, 8, 1868. DISTURBANCE OP PUBLIC ASSEMBLAGES, 3, 1112. DITCH AND CANAL RIGHTS [Special Arti- cle], 3, 1112. DIVIDENDS, see Corporations, 3, 903; Bank- ruptcy, 3, 434; Assignments, etc., 3, 337; Insolvency, 2, 459. DIVISION OP OPINION, see Appeal and Re- view, 3, 167; Judgments, 2, 581; Stare De- cisis, a, 1698. DIVORCE, 3, 1127. DOCKETS, CALENDARS, AND TRIAL LISTS, 3, 1140. DOCUMENTS IN EVIDENCE, see Evidence, 3, 1364; Indictment and Prosecution, 2, 307. DOMICILE, 3, 1142. DO'WER, 3, 1144. DRAINS, see Sewers and Drains, 2, 1628; Waters and Water Supply, 2, 2034; Pub- lic Works, etc., 2, 1328. DRUGS; DRUGGISTS, see Medicine and Sur- gery, 2, 887; Poisons, 2, 1252. DRUNKENNESS, see Intoxicating Liquors, 2, 554; Habitual Drunkards, 2, 159; Incom- petency 3, 1696. DUELING, 3, 1147. DUE PROCESS, see Constitutional Law, 3, 772. DUPLICITY, see Pleading, 2, 1178. DURESS, 3, 1147. DYING DECLARATIONS, see Homicide, 3, 1658. E. EASEMENTS, 3, 1148. ECCLESIASTICAL LAW, see Religious So- cieties, 2, 1502. BIGHT HOUR LAWS, see Master and Serv- ant, 2, 801; Constitutional Law, 3, 758, 764; Public Works, etc., 2, 1328; Officers and Public Employes, 2, 1069. EJECTMENT (and Writ of Entry), 3, 1157. ELECTION AND "WAIVER, 3, 1177. ELECTIONS, 3, 1165. ELECTRICITY, 3, 1181. EMBEZZLEMENT, 3, 1186. EMBLEMENTS AND NATURAL PRODUCTS, 3, 1187. EMBRACERY. No cases have been found during the period covered. EMINENT DOMAIN, 3, 1189; see Special Ar- ticle, 3, 1112. ENTRY, WRIT OF, see Ejectment, etc., 3, 1157. EQUITABLE ASSIGNMENTS, see Assign- ments, 3, 331. EQUITABLE ATTACHMENT, see Attach- ment, 3, 365. EQUITABLE DEFENSES, see Equity, 3, 1210. EQ,UITY, 3, 1210. ERROR CORAM NOBIS, see Judgments, S, 581. ERROR, WRIT OF, see Appeal and Review, 3, 167. ESCAPE AND RESCUE, 3, 1236. ESCHEAT, 3, 1237. ESCROWS, 3, 1238. ESTATES OF DECEDENTS, 3, 1238. ESTATES TAIL, see Real Property, 8, 1462. ESTOPPEL, 3, 1327. EVIDENCE, 3, 1334. EXAMINATION BEFORE TRIAL, see Dis- covery and Inspection, 3, 1108. EXAMINATION OF WITNESSES, 3, 1383. EXCEPTIONS AND OBJECTIONS, see Sav- ing Questions for Revie"5v, 8, 1590; Equi- ty, 3, 1230; Masters in Chancery, 8, 867; Reference, 8, 1484; Trial, 8, 1907. EXCEPTIONS, BILL OP, see Appeal and Re- view, 3, 167. EXCHANGE OP PROPERTY, 3, 1396. EXCHANGES AND BOARDS OP TRADE, 3, 1397. EXECUTIONS, 3, 1397. See, also. Civil Ar- rest, 3, 701. EXECUTORS AND ADMINISTRATORS, see Estates of Decedents, 3, 1238. EXEMPLARY DAMAGES, see Damages, 3, 999. EXEMPTIONS, 3, 1408. See, also. Home- steads, 3, 1630. EXHIBITIONS AND SHOWS, 3, 1412. EXHIBITS, see Pleading, 8, 1178; Equity, 3, 1233; Trial (reception of evidence), 8, 1912; Appeal and Review (inclusion in record), 3, 167. EXPERIMENTS, see Evidence, 3, 1334. EXPERT EVIDENCE, see Evidence, 3, 1370. EXPLOSIVES AND INFLAMMABLES, 3, 1412. EX POST FACTO LAWS, see Constitutional Law, 3, 781; Criminal Law, 3, 979. TOPICAL. INDEX. vn EXPRESS COMPANIES, see Carriers, 3, 591; Railroads, ft, 1382; Corporations, 3, 880. EXTORTION, 3, 1414. See, also. Blackmail, 3, 507; Threats, a, 1871. EXTRADITION,- 3, 1414. F. FACTORS, S, 1415. FACTORS' ACTS, see Factors, 3, 1415; Pledges, a, 1243; Sales, a, 1527. FALSE IMPRISONMENT, 3, 1417. FAIiSE PERSONATION. No oases have been found during the period covered. Com- pare, 3, 1420, note 79. FALSE PRETENSES AND CHEATS, 3, 1419. FALSE REPRESENTATIONS, see Deceit, 3, 1046; Fraud and Undue Influence, 3, 1520; Estoppel, 3, 1327; Sales (warranties), a, 1543; Insurance (warranties), a, 506, and all contract titles. FALSIFYING RECORDS, see Records, a, 1482. FAMILY SETTLEMENTS, see Estates of De- cedents, 3, 1238. FELLOW SERVANTS, see Master and Serv- ant, a, 801. FEDERAL PROCEDURE, see Admiralty, 3, 40; Appeal and Review, 3, 167; Courts, 3, 970; Equity, 3, 1210; Jurisdiction, a, 604; Removal of Causes, 2, 1506. Consult the particular titles treating of that matter of procedure under investigation. FENCES, 3, 1422. See, also. Adjoining Own- ers, 3, 36. FERRIES, 3, 1423. FIDELITY INSURANCE, see Insurance, a, 479. PILINGS, see Pleading. 2, 1178; Notice and Record of Title, 2, 1053. Records, and titles treating of matters In respect of which papers are or may be filed. FINAL JUDGMENTS AND ORDERS, see Ap- peal and Review, 3, 167. FINDING LOST GOODS, see Property, 2, 1279. FINDINGS, see Verdicts and Findings, 2, 2009. FINES, 3, 1424. FIRES, 3, 1425. PISH AND GAME LAIVS, 3, 1428. FIXTURES, 3, 1432. FOLIOING PAPERS, see Motions and Orders, 2, 929; Pleading, 2, 1178. FOOD, 3, 1433. FORCIBLE ENTRY AND UNLAWFUL DE- TAINER, 3, 1435. FORECLOSURE OP MORTGAGES ON LAND, 3, 1438. FOREIGN CORPORATIONS, 3, 1455. FOREIGN CORPORATIONS TO DO BUSI- NESS OUTSIDE OF DOMICILE [Spe- cial Article], 3, 1459.^ FOREIGN JUDGMENTS, 3, 1466. FOREIGN LAWS, see Conflict of Laws, 3, 725; Evidence, 3, 1334. FORESTRY AND TIMBER, 3, 1468. FORFEITURES, see Penalties and Forfeit- ures, 2, 1166. FORGERY, 3, 1472. FORMER ADJUDICATION, 3, 1476. FORMER CONVICTION OR ACQUITTAL, see Criminal Law, 3, 979. FORMER DETERMINATION OP TITLE IN DISTRIBUTION DECREES [Special Article], 3, 1489. FORMS OF ACTION, 3, 1494. FORNICATION, 3, 1495. FORTHCOMING AND DELIVERY BONDS, see Attachment, 3, 367; Executions, 3, 1402; Replevin, 2, 1514. FORWARDERS, see Carriers, S, 596. FRANCHISES, 3, 1495. FRATERNAL MUTUAL BENEFIT ASSOCIA- TIONS, 3, 1499. FRAUD AND UNDUE INFLUENCE, 3, 1620. FRAUDS, STATUTE OP, 3, 1627. FRAUDULENT CONVEYANCES, 3, 1535. FREEMASONS, see Associations and Socie- ties, 3, 346; Fraternal Mutual Benefit Associations, 3, 1499. FRIENDLY SUITS, see Pleading, 2, 1178; Appeal and Review^, 3, 167. FRIEND OP THE COURT, see Amicus Cu- riae, 3, 168. FUNDS AND DEPOSITS IN COURT, see Pay- ment into Court, a, 1163. a GAMBLING CONTRACTS, 3, 1646. GAME AND GAME LAWS, see Fish and Game Laws, 3, 1428. GAMING, see Betting and Gaming, 3, 502; Gambling Contracts, 3, 1646. GAMING HOUSES, see Betting and Gaming, 3, 502; Disorderly Houses, 3, 1111. GARNISHMENT, 3, 1550. GAS, 3, 1556. GENERAL AVERAGE, see Shipping and Wa- ter Traffic, 2, 1648. GENERAL ISSUE, see Pleading, 2, 1178. GIFTS, 3, 1560. GOOD WILL, 3, 1562. GOVERNOR, see States, 2, 1703; Officers and Public Employes, 2, 1069. GRAND JURY, 3, 1562. GROUND RENTS, see Landlord and Tenant, 2, 668. GUARANTY, 3, 1564. GUARDIANS AD LITEM AND NEXT FRIENDS, 3, 1567. GUARDIANSHIP, 3, 1569. H. HABEAS CORPUS (AND REPLEGIANDO), 3, 1576. HABITUAL DRUNKARDS. No cases have been found during the period covered, see 2, 159. HABITUAL OFFENDERS. No cases have been found during the period covered. HANDWRITING, PROOF OF, see Evidence, 3, 1364, 1377. HARBOR MASTERS, see Shipping and Wa- ter Traffic, a, 1648. HARMLESS AND PREJUDICIAL ERROR, 3, 1579. VUl TOPICAL INDEX. HAWKERS AND PEDDLERS, see Peddling, 8, 1165. HEALTH, 3, 1590. HEARING, see Appeal and Review, 3, 167; Equity, 3, 1232; Motions and Orders, a, 929; Trial, a, 1907. HEARSAY, see Evidence, 3, 1356; Indictment and Prosecution, a, 334. HEIRS, DEVISEES, NEXT OF KIN AND LEGATEES, see Descent and Distribu- tion, 3, 1081; Estates of Decedents, 3, 1238; "Wills, a, 2076. HERD LAWS, see Animals, 3, 159. HIGHWAYS AND STREBJTS, 3, 1593. HOLIDAYS, 3, 1630. HOMESTEADS, 3, 1630. HOMICIDE, 3, 1643. HORSE RACING, see Betting and Gaming, 3, 501. HORSES, see Animals, 3, 159; Sales (war- ranty), a, 1543. HOSPITALS, see Asylums and Hospitals, 3, 352. HOUSES OF REFUGE AND REFORMATO- RIES, see Charitable, etc., Institutions, 1, 507. HUSBAND AND W^IPE, 3, 1669. ICE, see Riparian Owners, 3, 1522; Waters and Water Supply, a, 2034. ILLEGAL CONTRACTS, see Implied Con- tracts, 3, 1694; Contracts, 3, 805. IMMIGRATION, see Aliens, 3, 138; Domicile, 3, 1112. IMPAIRING OBLIGATION OF CONTRACT, see Constitutional Law, 3, 765. IMPEACHMENT, see Officers, etc., a, 1069; Witnesses, 8, 2163; Examination of Wit- nesses, 3, 1383. IMPLIED CONTRACTS, 3, 1690. IMPLIED TRUSTS, see Trusts, 8, 1924. IMPLIED WARRANTIES, see Sales, 8, 1527. IMPOUNDING, see Animals, 3, 159. IMPRISONMENT FOR DEBT, see Civil Ar- rest, 3, 700; Constitutional Law, 3, 754. IMPROVEMENTS, see Accession and Confu- sion of Property, 3, 15; Ejectment, etc., 3, 1165; Implied Contracts, 3, 1690; Land- lord and Tenant, 8, 668; Partition, a, 1097; Public Works and Improvements, a, 1328; Trespass (to try title), 8, 1903. INCEST, 3, 1695. INCOMPETENCY, 3, 1696. INDECENCY, LEWDNESS AND OBSCEN- ITY, 3, 1697. INDEMNITY, 3, 1698. INDEPENDENT CONTRACTORS, 3, 1702. INDEPENDENT CONTRACTORS UNDER EMPLOYERS' LIABILITY ACTS [Special Article], 3, 1704. INDIANS, 3, 1706. INDICTMENT AND PROSECUTION, 8, 307. INDORSING PAPERS, see Motions and Or- ders, a, 929; Pleading, a, 1178. INFAMOUS CRIMES, see Indictment and Prosecution, a, 307; Witnesses, a, 2163. INFANTS, 8, 392. INFORMERS, see Penalties and Forfeitures, 8, 1166. INJUNCTION, a, 397. INNS, RESTAURANTS AND LODGING HOUSES, a, 453. INQUEST OF DAMAGES, see Trial, 8, 1907. INQ,UBST OF DEATH, 8, 454. INSANE PERSONS, 8, 454. INSOLVENCY, 8, 459. INSPECTION, see Discovery and Inspection, 3, 1107. INSPECTION LAWS, 8, 460. INSTRUCTIONS, 8, 461. INSURANCE, 8, 479. INTEREST, a, 547. INTERAL REVENUE LA^W, 8, 550. INTERNATIONAL LA'W, 8, 552. INTERPRETATION, see titles treating of the various writings of which an inter- pretation is sought, as Contracts, 3, 827. INTERPRETERS, see Examination of Wit- nesses, 3, 1387. INTERSTATE COMMERCE, see Commerce, 3, 713, 716. INTERVENTION, see Parties, 8, 1092. INTOXICATING LIQ,UORS, 8, 554. INTOXICATION, see Incompetency, 3, 1696; Intoxicating Liquors, 8, 554. INVENTIONS, see Patents, a, 1134. INVESTMENTS, see Estates of Decedents, 3, 1254; Trusts, 8, 1924, also as to invest- ment Institutions, see Banking and Fi- nance, 3, 417, 426. IRRIGATION, see Waters and Water Supply. 8, 2034; Riparian Owners, a, 1522; also see Special Article, 3, 1112. • ISLANDS, see Boundaries, 3, 518; Navigable Waters, 8, 989; Waters and Water Sup- ply, a, 2034; Riparian Owners, 8, 1522. ISSUE, see Wills (interpretation), 8, 2076. ISSUES TO JURY, see Equity, 3, 1231; Jury, 8, 633. JEOFAILS, see Harmless and Prejudicial Er- ror, 3, 1579; Pleading, 8, 1178, and like titles. JEOPARDY, see Criminal Law, 3, 983; In- dictment and Prosecution, 8, 307. JETTISON, see Marine Insurance, S, 792; Shipping, etc., a, 1648. JOINDER OF CAUSES, see Pleading, 8, 1178. JOINT ADVENTURES, 8, 576. JOINT EXECUTORS AND TRUSTEES, see Estates of Decedents, 3, 1238; Trusts, 8, 1924. JOINT LIABILITIES OR AGREEMENTS, see Contracts, 3, 832, and like titles; Torts, a, 1875. JOINT STOCK COMPANIES,^ a, 576. JOINT TENANCY, see Tenants in Common and Joint Tenants, 8, 1862. JUDGES, 8, 577. JUDGMENT NOTES, see Confession of Judg- ment, 3, 719. TOPICAL INDEX. JUDGMENTS, 2, 581. JUDICIAL. NOTICE, see Evidence, 3, 1335; Pleading, 2, 1178. JUDICIAL SA1.E3S, 8, 601. JURISDICTION, 2, 604. JURY, 2, 633. JUSTICES OF THE PEACE, 2, 651. K. KIDNAPPING, 2, 668. L. LABELS, see Commerce (unlabeled goods), 3, 717; Food (unlabeled food products), 3, 1433; Trade Marks and Trade Names, 2, 1881. LABOR UNIONS, see Trade Unions, 2, 1888; Associations and Societies, 3, 346; Con- spiracy (boycotting), 3, 726; Injunctions, 2, 397. LACHES, see Equity, 3, 1218. LAKES AND PONDS, see Navigable Waters, 2, 989; "Waters and Water Supply, 2, 2034. LANDLORD AND TENANT, 2, 668. LAND PATENTS, see Public Lands, 2, 1295. LARCENY, 2, 696. LASCIVIOUSNESS, see Indecency, Lewdness and Obscenity, 3, 1698. LATERAL RAILROADS, see Eminent Do- main, 1, 1002; Railroads, 2, 1382. LATERAL SUPPORT, see Adjoining Owners, 3, 36. LAW OP THE ROAD, see Highways and Streets, 3, 1610. LEASES, see Landlord and Tenant, 2, 668; Bailment (hiring of chattels), 3, 400; Sales (conditional sale and lease), 2, 1584. LEGACIES AND DEVISES, see Estates of Decedents, 3, 1238; Wills, 2, 2076. LEGAL CONCLUSIONS, see Pleading, 2, 1178. LEGATEES, see Estates of Decedents, 3, 1238; Wills, 2, 2076. LETTERS, see Postal Law, 2, 1253; Evidence (letters as evidence), 3, 1364; Contracts (letters as offer and acceptance), 3, 808. LETTERS OF CREDIT, see Banking and Finance, 3, 418; Negotiable Instruments, 2, 1013. LEVEES, see Waters and Water Supply, 2, 2034; Navigable Waters, 2, 989. LEWDNESS, see Indecency, Lewdness and Obscenity, 3, 1697. LIBEL AND SLANDER, 2, 706. LICENSES, 2, 730. LICENSES TO ENTER ON LAND, 2, 734. LIENS, 2, 736. LIFE ESTATES, REVERSIONS AND RE- MAINDERS, 2, 741. LIFE INSURANCE, see Fraternal Mutual Benefit Ass'ns, 3, 1499; Insurance, 2, 479. LIGHT AND AIR, see Adjoining Owners. 3, 36; Basements, 3, 1148; Injunctions, 2, 397; Nuisance, 2, 1062. LIMITATION OP ACTIONS, 2, 746. LIMITED PARTNERSHIP, see Partnership, 2, 1106; Joint Stock Companies, 2, 570. LIQUIDATED DAMAGES, see Damages, 3, 998; Penalties and Forfeitures, 2, 1166. LIS PENDENS, S, 762. LITERARY PROPERTY, see Property, 2, 1279; Copyrights, 3, 878. LIVERY STABLE KEEPERS, see Animals, 3, 159; Bailment, 3, 400; compare Health, 3, 1590; Licenses, 2, 730; Nuisance, 2, 1062. LIVE STOCK INSURANCE, see Insurance, 2, 479. LLOYD'S, see Insurance, 2, 479. LOAN AND TRUST COMPANIES, see Bank- ing and Finance, 3, 417; Corporations, 3, 880. LOANS, see Bailment, 3, 400; Banking and Finance, 3, 426; Implied Contracts, 3, 1694; Mortgages, 2, 905; Usury, 2, 1966. LOCAL IMPROVEMENTS AND ASSESS- MENTS, see Public Works and Improve- ments, 2, 1328. LOCAL OPTION, see Intoxicating Liquors, 8, 554. LOGS AND LOGGING, see Forestry and Tim- ber, 3, 1468. LOST INSTRUMENTS, see Restoring Instru- ments and Records, 2, 1520. LOST PROPERTY, see Property, 2, 1279. LOTTERIES, 2, 764. M. MAIMING; MAYHEM, 8, 765. MALICE, see Criminal Law, 3, 979; Homi- cide, 3, 1643; Torts, 2, 1875. MALICIOUS ABUSE OP PROCESS, see Pro- cess, 2, 1259. MALICIOUS MISCHIEF, 2, 766: MALICIOUS PROSECUTION, 2, 767. MANDAMUS, 8, 771. MANDATE, see Bailment, 3, 400; Appeal and Review, 3, 167. MARINE INSURANCE, 2, 792. MARITIME LIENS, see Shipping and Water Traffic, 2, 1648. MARKETS, see Municipal Corporations, 3, 940. MARKS, see Animals, 3, 165; Commerce, 3, 717; Food, 3, 1433; Forestry and Timber, 3, 1468; Trade Marks and Trade Names, 8, 1881. MARRIAGE, 2, 794. MARRIAGE SETTLEMENTS, see Husband and Wife, 3, 1669. MARSHALING ASSETS AND SECURITIES, 2, 798. MARSHALING ESTATE, see Estates of De- cedents, 3, 1238. MARTIAL LAW [Special Article], 8, 800. MASTER AND SERVANT, 2, 801. MASTERS IN CHANCERY, 3, 867. MASTERS OP VESSELS, see Shipping and Water Traffic, 2, 1648. MECHANICS' LIENS, 2, 869. MEDICINE AND SURGERY, 8, 887. MERCANTILE AGENCIES, 2, 890. MERGER IN JUDGMENT, see Former Adju- dication, 3, 1476. TOPICAL INDEX. MERGER OF CONTRACTS, see Contracts, 3, 835. MERGER OF ESTATES, see Real Property, a, 1462. MILITARY AND NAVAL LA-W, 8, 890. MILITIA, see Military and Naval Law, », 890. MILLS AND DAMS, see Waters and Water Supply, a, 2034. MINES AND MINERALS, 8, 893. MINISTERS OF STATE, see Ambassadors and Consuls, 3, 158. MINUTES, see Judgments, 8, 581. MISJOINDER, see Parties, a, 1092; Pleading, a, 1178; Equity, 3, 1221. MISTAKE AND ACCIDENT, 2, 903. MONET COUNTS, see Assumpsit, 3, 350. MONEY LENT, see Implied Contracts, 3, 1692; Assumpsit, 3, 348. MONEY PAID, see Implied Contracts, 3, 1692; Assumpsit, 3, 350. MONEY RECEIVED, see Implied Contracts, 3, 1692; Assumpsit, 3, 350. MONOPOLIES, see Combinations and Monop- olies, 3, 710. MORTALITY TABLES, see Damages, 3, 1030; Evidence, 3, 1366. MORTGAGES, 8, 905. MOTIONS AND ORDERS, 8, 929. MULTIFARIOUSNESS, see Equity, 3, 1223. MULTIPLICITY, see Equity, 3, 1216. MUNICIPAL AIDS AND RELIEFS, see Mu- nicipal Bonds, a, 931; Municipal Corpora- tions, a, 940; Railroads, 8, 1382. MUNICIPAL BONDS, 8, 931. MUNICIPAL CORPORATIONS, 8, 940. MUNICIPAL -COURTS, see Courts, 3, 970; Judgments, 8, 581; Jurisdiction, 8, 604. MURDER, see Homicide, 3, 1644. MUTUAL ACCOUNTS, see Accounting, Ac- tions for, 3, 24; Accounts Stated, etc., 3, 27. MUTUAL INSURANCE, see Fraternal Mutual Benefit Ass'ns, 3, 1499; Insurance, 8, 479. NAMES, SIGNATURES, AND SEALS, 8, 988. NATIONAL BANKS, see Banking and Fi- nance, 3, 412. NATURAL GAS, see Gas, 3, 1556; Mines and Minerals, 8, 893. NATURALIZATION, see Aliens, 3, 138. NAVIGABLE WATERS, 3, 989. NE EXEAT, 8, 996. NEGLIGENCE, 8, 996. NEGOTIABLE INSTRUMENTS, 8, 1013. NEUTRALITY, see War, 8, 2025. NEW PROMISE, see Limitation of Actions, 8, 746; Bankruptcy, 3, 434. NEWSPAPERS, a, 1037. NEW^ TRIAL AND ARREST OF JUDGMENT, 8, 1037. NEXT FRIENDS, see Guardians ad Litem and Next Friends, 3, 1567. NEXT OF KIN, see Estates of Decedents, 3, 1238; Wills, 8, 2076. NON-NEGOTIABLE PAPER, 8, 1052. NONRESIDENCE, see Absentees, 3, 13; Aliens, 3, 138; Citizens, 3, 699; Domicile, 3, 1142; Attachment, 3, 355; Process, 8, 1263. NOTARIES AND COMMISSIONERS OP DEEDS, a, 1052. NOTES AND ISSUE, see Dockets, Calendars and Trial Lists, 3, 1140. NOTICE, see Notice and Record of Title, 8, 1053, and like titles treating of the sub- ject-matter In respect to which notice is imputed. NOTICE AND RECORD OF TITLE, 8, 1053. NOTICES, see titles treating of the subject- matter whereof notices are required. Compare Process, 8, 1259. NOVATION, a, 1061. NUISANCE, a, 1062. O. OATHS. No cases have been found during the period covered. OBSCENITY, see Indecency, Lewdness and Obscenity, 3, 1697. OBSTRUCTING JUSTICE, 8, 1068. OCCUPATION TAXES, see Licenses, 8, 730; Taxes, 8, 1786. OFFER AND ACCEPTANCE, see Contracts, 3, 806. OFFER OP JUDGMENT, see Confession of Judgment, 3, 719; Judgments, 8, 681. OFFICERS AND PUBLIC EMPLOYES, 8, 1069. OFFICERS OF CORPORATIONS, see Corpo- rations, 3, 880. OFFICIAL BONDS, see Bonds, 3, 512; In- demnity, 3, 1698; Officers, etc., 8, 1069; Suretyship, 8, 1776. OPENING AND CLOSING, see Argument of Counsel, 3, 306. OPENING JUDGMENTS, see Judgments, 8, 581. OPINIONS OF COURT, see Appeal and Re- view, 3, 167; Former Adjudication, 3, 1476; Stare Decisis, 8, 1698. OPTIONS, see Contracts, 3, 805; Gambling Contracts, 3, 1546; Vendors and Purchas- ers, 8, 1976. ORDER OF PROOF, see Trial, 8, 1907. Com- pare Examination of Witnesses, 3, 1383. ORDERS FOR PAYMENT, see Non-Negotia- ble Paper, 8, 1052. ORDERS OF COURT, see Motions and Or- ders, 8, 929; Former Adjudication, 3, 1476. ORDINANCES, see Municipal Corporations, a, 940; Constitutional Law, 3, 730. OYSTERS AND CLAMS, see Pisk and Game Laws, 3, 1428. PARDONS AND PAROLES, 8, 1088. PARENT AND CHILD, 8, 1089. PARKS, see Municipal Corporations, 8, 940; Dedication, 3, 1053. PARLIAMENTARY LAW, 8, 1091. PAROL EVIDENCE, see Evidence, 3, 1348. PARTIES, a, 1092. TOPICAL INDEX. XI PARTITION", 3, 1097. PARTJVBltSHIP, a, 1106. PARTY WALIiS, a, 1134. PASSENGERS, see Carriers, 3, 617. PATENTS, », 1134. PAUPERS, a, 1156. PAtVJVBROKERS, a, 1157. PAYMENT AND TENDER, 3, 1158. PAYMENT INTO COURT, 3, 1163. PEDDLING, 2, 1166. PEDIGREE, see Evidence, 3, 1356. PENALTIES AND FORFEITURES, 3, 1166. PENSIONS, 3, 1170. PERFORMANCE, see Contracts, 3, 805; and other contract titles. PERJURY, 3, 1171. PERPETUATION OF TESTIMONY, see Dep- ositions, 3, 1074. PERPETUITIES, 3, 1173. PERSONAL, INJURIES, see Highways and Streets, 3, 1610, 1615; Master and Serv- ant, 3, 801; Negligence, 3, 996; Municipal Corporations, 3, 940; Damages, 3, 1018; Carriers, 3, 641; Railroads, 3, 1382; Street Railroads, 3, 1742, and other like titles. PERSONAL PROPERTY, see Property, 3, 1279, and, the titles dealing with trans- actions concerning personalty, e. g. Bail- ment, 3, 400; Sales, 3, 1527. PETITIONS, see Equity, 3, 1222; Motions and Orders, 3, 929; Pleading, 3, 1178. PEWS, see Religious Societies, 3, 1502; Real Property, 3, 1462. PHOTOGRAPHS, see Evidence, 3, 1334. PHYSICIANS AND SURGEONS, see Medicine and Surgery, 3, 887. PILOTS, see Shipping and Water Traffic, 3, 1648. PIPE LINES AND SUBWAYS, 3, 1178. PIRACY, see Shipping and Water Traffic, 3, 1648. PLACE OF TRIAL, see Venue and Place of Trial, 8, 2000. PLANK ROADS, see Toll Roads and Bridges, a, 1872. PLEADING, 3, 1178. PLEAS, see Equity, 3, 1222; Pleading, 3, 1178. PLEDGE, 3, 1243. POINTING FIREARMS, see Homicide, 3, 1643; Weapons, 3, 2071. POISONS, 3, 1252. POLICEMEN, see Municipal Corporations, §§ 6, 8, 3, 947, 963; Officers and Public Em- ployes, 3, 1069; Sheriffs and Constables, 3, 1640. Compare Arrest and Binding Over (arrest beyond bailiwick), 3, 316. POLICE POWER, see Constitutional Law, 3, 746; Municipal Corporations, 3, 940. POLLUTION OF WATERS, see Waters and Water Supply, § 3, 3, 2037. POOR LAWS, see Paupers, 3, 1156. POOR LITIGANTS, see Costs (in forma pau- peris), 3, 940. POSSE COMITATUS, see Arrest and Binding Over, 3, 312. POSSESSION, WRIT OF. No cases have been found during the period covered. But see Ejectment, etc., 3, 1163; Foreclosure of Mortgages, etc., 3, 1449; Trespass (to try title), 3, 1903. POSSESSORY WARRANT, 3, 1253. POSTAL LAW^, 3, 1253. POSTPONEMENT, see Continuance and Post- ponement, 3, 801. POWERS, 3, 1257. PRAECIPE, see Process, 3, 1259; Witnesses (subpoena), 3, 2163. PRAYERS, see Equity, 3, 1210; Pleading, 3, 1178. PRECATORY TRUSTS, see Trusts, a, 1924; Wills, a, 2076; Charitable Gifts, 3, 678. PRELIMINARY EXAMINATION, see Arrest and Binding Over, 3, 312. PRELIMINARY SUITS, see Causes of Action and Defenses, 3, 663; Discontinuance, Dismissal and Nonsuit, 3, 1097; Plead- ing, 3, 1178. PRESCRIPTION, see Adverse Possession, 3, 51; Basements, 3, 1150; Limitation of Actions, 3, 746. PRESUMPTIONS, see Evidence (civil), 3, 1337; Indictment and Prosecution (crim- inal), 3, 307. PRINCIPAL AND AGENT, see Agency, 3, 68. PRINCIPAL AND SURETY, see Suretyship, a, 1776. PRIOR APPROPRIATION, see Waters and Water Supply, a, 2046. PRIORITIES BETWEEN CREDITORS, see Liens, 3, 736; and titles there referred to. PRISONS AND JAILS, see Charitable and Correctional Institutions, 1, 507; Sheriffs and Constables, 3, 1640. PRIVATE INTERNATIONAL LAW, see Con- flict of Laws, 3, 720. PRIVATE SCHOOLS, see Colleges and Acad- emies, 3, 705. PRIVATE WAYS, see Basements, 3, 1148. PRIVILEGE, see Libel and Slander, 3, 705; Arrest and Binding Over, 3, 312; Civil Arrest, 3, 700; Witnesses, 3, 2163. PRIVILEGED COMMUNICATIONS, see Libel and Slander, 3, 705; Witnesses, 3, 2163. PRIZE, see War, 3, 2025. PRIZE FIGHTIJ^G, 3, 1258. PROBATE, see Wills, 3, 2076. PROCESS, 3, 1259. PRODUCTION OP DOCUMENTS, see Discov- ery and Inspection, 3, 1107; Evidence, 3, 1368. PROPERT, see Pleading, 3, 1178. PROFANITY AND BLASPHEMY. No cases have been found during the period cov- ered. Compare Indecency, Lewdness and Obscenity, 3, 1697. PROHIBITION, W^BIT OF, 3, 1278. PROPERTY, 3, 1279. PROSECUTING ATTORNEYS, see Attorneys and Counselors, 3, 393. PROSTITUTION, see Disorderly Conduct, 8, 1111; Disorderly Houses, 3, 1111; For- nication, 3, 1495; Indecency, Lewdness and Obscenity, 3, 1697. Xll TOPICAL INDEX. PUBLICATION, see Newspapers, 8, 1037; Process, a, 1259; Libel and Slander, S, 705. PUBLIC CONTRACTS, 8, 1280. PUBLIC LANDS, 8, 1295. PUBLIC WOKKS AND IMPROVEMENTS, 8, 1328. PUIS DARREIN CONTINUANCE, see Plead- ing, 8, 1178. PURCHASE MONET MORTGAGES, see Mort- gages, 8, 905; Vendors and Purchasers, 8, 1976. Q. aUBSTIONS OF LA"W AND FACT, 8, 1361. Q,UIETING TITLE, 8, 1366. QUO WARRANTO, 8, 1377. R RACING. No cases have been found during the period covered. Compare Betting and Gaming, 3, 501. RAILROADS, 8, 1382. RAPE, 8, 1453. RATIFICATION, see Agency, 3, 68. REAL ACTIONS, see Ejectment, etc., 3, 1157; Forcible Entry and Unlawful Detainer, 3, 1435; "Venue and Place of Trial, 8, 2000. REAL COVENANTS, see Covenants for Title, 3, 973; Buildings, 3, 574; Easements, 3, 1148. REAL PROPERTY, 8, 1462. REASONABLE DOUBT, see Indictment and Prosecution, 8, 307. RECEIPTORS, see Attachment, 3, 367; Exe- cutions,, 3, 1402. RECEIVERS, 3, 1465. RECEIVING STOLEN GOODS, 8, 1480. RECITALS, see Estoppel, 3, 1327; Municipal Bonds, 8, 931; Statutes, 3, 1707. RECOGNIZANCES. No cases have been found during the period covered. See Bail, Civil, 3, 394; Bail, Criminal, 3, 396, 398. RECORDARI, see Justices of the Peace, 8, 651. RECORDING DEEDS AND MORTGAGES, see Notice and Record of Title, 8, 1053. RECORDS, 3, 1482. REDEMPTION, see Executions (sales), 3, 1405; Foreclosure of Mortgages on Land, 3, 1452; Judicial Sales, 3, 601; Mortgages, 8, 905. RE-EXCHANGE, see Negotiable Instru- ments, 3, 1013; Banking, etc., 3, 403. REFERENCE, 8, 1484. REFORMATION OF INSTRUMENTS, 3, 1492. REFORMATORIES, see Charitable and Cor- rectional Institutions, 1, 507. REGISTERS OP DEEDS, see Counties, 3, 961; Notice and Record of Title, 3, 1053; OfBcers, etc., 8, 1069. REHEARING, see Appeal and Review, 3, 167; Equity, 3, 1232; New Trial, etc., 3, 1037. REJOINDERS, see Pleading, 3, 1178. RELEASES, 8, 1498. RELIEF FUNDS AND ASSOCIATIONS, see Fraternal, etc.. Associations, 3, 1499; Master and Servant, 8, 801; Railroads, 8, 1382. RELIGIOUS SOCIETIES, 3, 1502. REMAINDERS, see Life Estates, etc., 8, 741; Perpetuities, 8, 1173; Wills, 8, 2076. REMEDY AT LAW, see Equity, 3, 1213. REMITTITUR, see Appeal and Review, 3, 167; Judgments, 8, 581; New Trial, 8, 1037; Verdicts and Findings, 8, 2009. REMOVAL OP CAUSES, 3, 1506. RENDITION OF JUDGMENT, see Judgments, 8, 581; Justices of the Peace, 8, 651. REPLEADER, see Pleading, 3, 1178. REPLEGIANDO, see Habeas Corpus, etc., 3, 1576. REPLEVIN, 8, 1514. REPLICATION, see Pleading, 3, 1178. REPORTED QUESTIONS, see Appeal and Review, 3, 167. REPORTS, see Records, 8, 1482. REPRESENTATIONS, see Deceit, 3, 1046, 1047; Estoppel, 3, 1327; States (warran- ty), 8, 1543. RES ADJUDICATA. see Former Adjudica- tion, 3, 1476. RESCISSION, see Contracts, 3, 844; Sales, 8, 1527; Vendors and Purchasers, 8, 1976; Cancellation of Instruments, 3, 584; Ref- ormation of Instruments, 8, 1492. RESCUE, see Escape and Rescue, 3, 1237. RES GESTAE, see Evidence (civil), 3, 1357; Indictment and Prosecution (criminal), 3, 338. Compare titles relating to that whereof the res gestae is offered. RESIDENCE, see Absentees, 3, 13; Aliens, 3, 138; Citizens, 3, 699; Domicile, 3, 1142; Attachment, 3, 355; Process, 3, 1268. RESPONDENTIA, see Shipping, etc., 8, 1648. RESTITUTION, see Forcible Entry, etc., 3, 1435; Replevin, 8, 1514. RESTORING INSTRUMENTS AND REC- ORDS, 8, 1520. RETRAXIT, see Discontinuance, etc.. 3, 1100; Pleading, 8, 1178. RETURNABLE PACKAGE LAWS, see Com- merce, 3, 711. RETURNS, see Process, 8, 1259, and compare titles treating of mesne and final pro- cess, e. g.. Attachment, 3, 365; Execu- tions, 3, 1404. See, also. Elections (elec- tion, canvass and return), 3, 1174. REVENUE LAWS, see Taxes, 3, 1786; In- ternal Revenue Law, 8, 550; Licenses, 3, 730. REVERSIONS, see Life Estates, etc., 8, 741; Wills, 8, 2076. REVIEW, see Appeal and Review, 3, 167; Certiorari ("writ of review"), 3, 667; Equity (bill of review), 3, 1235; Judg- ments (equitable relief), 8, 586. REVIVAL OF JUDGMENTS, see Judgments, 3, 581. REVIVOR OF SUITS, see Abatement and Re- vival, 3, 1; Equity, 3, 1232. REVOCATION, see Agency, 3, 68; Licenses, 8, 730; Wills, 8, 2076. TOPICAL INDEX. xin REWARDS, a, 1521. RIGHT OP PROPERTY, see Replevin, a, 1514. Compare Attaohment, 3, 353; Exe- cutions, 3, 1403, as to claims by third persons against a levy. RIOT, 2, 1522. RIPARIAN OAVNERS, 3, 1522. ROBBERY, a, 1524. RULES OF COURT, see Courts, 3, 972. Com- pare titles treating of practice to which rules relate b. g., Appeal and Review, 3, 167. S. SAFE DEPOSITS, see "Warehousing and De- posits, 3, 2029; Banking and Finance, 3, 423. SALES, 3, 1527. SALVAGE, see Shipping, etc., 3, 1648. SATISFACTION AND DISCHARGE, see Ac- cord and Satisfaction, 3, 17; Contracts, 3, 836; Judgments, 3, 581; Mortgages, 3, 905; Payment and Tender, 3, 1158; Re- leases, 3, 1498. SAVING QUESTIONS FOR REVIEW, 3, 1590. SAVINGS BANKS, see Banking, etc., 3, 415. SCANDAL AND IMPERTINENCE, see Equi- ty, 3, 1222; Pleading, 3, 1178. SCHOOL LANDS, see Public Lands, 3, 1295. SCHOOLS AND EDUCATION, see Common and Public Schools, 1, 544; Colleges and Academies, 3, 705. SCIRE FACIAS, 3, 1618. SEALS, see Names, Signatures, and Seals, 3, 988. Compare titles relating to instru- ments whereof seal Is required. SEAMEN, see Shipping, etc., 3, 1648. SEARCH AND SEIZURE, 3, 1618. SECRET BALLOT, see Elections, 3. 1172, 1175. SECURITY FOR COSTS, see Costs, 3, 940. SEDUCTION, 3, 1619. SENTENCE, see Indictment and Prosecution, 3, 307. SEPARATE PROPERTY, see Husband and "Wife, 3, 1669. SEPARATE TRIALS, see Trial (civil), 3, 1908; Indictment -and Prosecution (crim- inal), 2, 344. SEPARATION, see Divorce, 3, 1127. SEQUESTRATION, 3, 1622. SERVICE, see Process, 3, 1259. SET-OPF AND COUNTERCI/AIM, 3, 1624. SETTLEMENT OF CASE, see Appeal and Review, 3, 167. SETTLEMENTS, see Accord, etc., 3, 23; Es- tates of Decedents, 3, 1304; Guardian- ship, 3, 1574; Trusts, 3, 1924. SEVERANCE OF ACTIONS, see Pleading, 3, 1178; Trial, 3, 1907. SEWERS AND DRAINS, 3, 1628. SHAM PLEADINGS, see. Pleading, 3, 1178. SHELLEY'S CASE, see Real Property, 3, 1279; Deeds of Conveyance, 3, 1062; Wills, 3, 2076. SHERIFF'S SALES, see Executions, 3, 1404; Judicial Sales, 3, 601. SHERIFFS AND CONSTABLES, 3, 1640. SHIPPING AND WATER TRAFFIC, 3, 1648. SIGNATURES, see Names, etc., 3, 988. SIMILITER, see Pleading, 3, 1178. SIMULTANEOUS ACTIONS, see Election and Waiver, 3, 1177. SLAVES, 3, 1676. SLEEPING CARS, see Carriers, 3, 591; Rail- roads, 3, 1382; Taxes, 3, 1786. SOCIETIES, see Associations and Societies, 3, 346. SODOMY, 3, 1677. SPANISH LAND GRANTS, see Public Lands, 3, 1295. SPECIAL INTERROGATORIES TO JURY, see Verdicts and Findings, 3, 2009. SPECIAL JURY, see Jury, 3, 633. SPECIAL VERDICT, see Verdicts and Find- ings, 3, 2009. SPECIFIC PERFORMANCE, 3, 1678. SPENDTHRIFTS, see Incompetency, 3, 1696; Guardianship, 3, 1569; Trusts (spend- thrift trusts), 3, 1926; Wills (spend- thrift conditions), 3, 2076. STARE DECISIS, 3, 1698. STATE LANDS, see Public Lands, 3, 1295. STATEMENT OF CLAIM, see Pleading, 3, 1178; Estates of Decedents, 3, 1238; Counties, 3, 968; Municipal Corporations, 3, 940. STATEMENT OP PACTS, see Appeal and Re- view, 3, 167. STATES, 3, 1703. STATUTES, 3, 1707. STAY OP PROCEEDINGS, 3, 1736. STEAM, 3, 1738. STENOGRAPHERS, 3, 1739. STIPULATIONS, 8, 1740. "STOCK AND STOCKHOLDERS, see Corpora- tions, 3, 899; Foreign Corporations, 3, 1463, 1466. STOCK EXCHANGES, see Exchanges and Boards of Trade, 3, 1397. STOPPAGE IN TRANSIT, see Sales, 3, 1527; Carriers, 3, 591. STORAGE, see Warehousing and Deposits, 3, 2029. STREET RAIL"WAYS, 3, 1742. STREETS, see Highways and Streets, 3, 1593. STRIKES, see Conspiracy, 3, 726; Constitu- tional Law, 3, 730; Master and Servant, 3, 801; Trade Unions, 3, 1888. Compare Building, etc.. Contracts (impossibility of performance), 3, 550; Injunction, 3, 397. STRIKING OUT, see Pleading, 3, 1178; Trial, 3, 1907. STRUCK JURY, see Jury, 3, 633. SUBMISSION OF CONTROVERSY, 3, 1767. SUBPOENA, see Witnesses, 3, 2163; Equity, 3, 1210; Process, 3, 1259. SUBROGATION, 3, 1768. SUBSCRIBING PLEADINGS, see Pleading, 3, 1178; Equity, 3, 1222. SUBSCRIPTIONS, 3, 1770. SUBSTITUTION OF ATTORNEYS, see Attor- neys and Counselors, 3, 376. SUBSTITUTION OF PARTIES, see Abate- ment and Revival, 3, 1; Parties, 3, 1092. XIV TOPICAL INDEX. SUICIDE, 3, 1772. SUCCESSION, see Descent and Distribution, 3, 1081; Estates of Decedents, 3, 1238; Taxes (succession taxes), a, 1838; Wills, », 2076. SUMMARY PROCEEDINGS, see Landlord and Tenant, 3, 668. SUMMARY PROSECUTIONS, see Indictment and Prosecution, 8, 391. SUMMONS, see Process, 3, 1259. SUNDAY, 2, 1772. SUPERSEDEAS, see Appeal and Review, 3, 167. SUPPLEMENTAL PLEADINGS, see Equity, 3, 1225; Pleading, 3, 1178. SUPPLEMENTARY PROCEEDINGS, 3, 1774. SURCHARGING AND FALSIFYING, see Ac- counting-, Actions for, 3, 24; Estates of Decedents, 3, 1238; Trusts, 3, 1924. SURETY OF THE PEACE, 2, 1776. SURETYSHIP, 2, 1776. SURFACE WATERS, see Waters, etc., .3, 2034; Highways, etc., 3, 1614; Railroads, 3, 1382. SURPLUSAGE, see Equity, 3, 1210; Pleading, 3, 1178. SURROGATES, see Courts, 3, 970; Estates of Decedents, 3, 1238; Wills, 3, 2076. SURVEYORS, see Counties, 3, 959; Bound- aries, 3, 519. SURVIVORSHIP, see Death and Survivor- ship (presumptions), 3, 1033; Deeds, etc., (interpretation), 3, 1062; Wills, 3, 2076. SUSPENSION OF POWER OF ALIENATION, see Perpetuities, 3, 1173. TAKING CASE PROM JURY, see Directing^ Verdict, etc., 3, 1093; Discontinuance, Dismissal and Nonsuit, 3, 1097; Ques- tions of Law and Pact, 3, 1361. TAXES, 2, 1786. TEIiEGRAPHS AND TELEPHONES, 2, 1843. TENANTS IN COMMON AND JOINT TEN- ANTS, 2, 1862. TENDER, see Payment and Tender, 3, 1158. TERMS OP COURT, see Courts, 3, 971; Dock- ets, Calendars and Trial Lists, 3, 1140. TERRITORIES AND FEDERAL POSSES- SION, 2, 1868. TESTAMENTARY CAPACITY, see Wills, 3, 2076. THEATERS, see Building and Construction Contracts, 3, 550; Exhibitions and Shows, 3, 1412. THREATS, 2, 1871. TICKETS, see Carriers, 3, 628. TIME, 2, 1871. TIME TO PLEAD, see Pleading, 3, 1178. TOLL ROADS AND BRIDGES, 2, 1872. TORTS, 2, 1875. TOWAGE, see Shipping, etc., 3, 1648. TOWNS; TOWNSHIPS, 2, 1877. TRADE MARKS AND TRADE NAMES, 2, 1881. TRADE UNIONS, 2, 1888. TRANSFER OF CAUSES, see Dockets, etc., 3, 1142; Removal of Causes, 3, 1506. TRANSITORY ACTIONS, see Venue and Place of Trial, 3, 2000. TREASON. No cases for this topic appeared during period covered. TREATIES, 2, 1889. TRESPASS, 2, 1891. TRESPASS ON THE CASE, see Trespass, 3, 1891. TRESPASS TO- TRY TITLE, see Trespass, 3, 1891. TRIAL, 2, 1907. TROVER, see Conversion as Tort, 3, 866; Assumpsit (waiver of tort), 3, 348; Im- plied Contracts (waiver of tort), 3, 1695. TRUST COMPANIES, see Banking and Pi- nance, 3, 417. TRUST DEEDS, see Mortgages, 3, 905; Trusts, 3, 1924. TRUSTS, 2, 1924. TURNPIKES, see Highways and Streets, 3, 1593; Toll Roads and Bridges, 3, 1872. U. ULTRA VIRES, see Corporations, 3, 889; Municipal Corporations, 3, 940. UNDERTAKINGS. No cases for this topic appeared during period covered. See titles of particular proceedings in which the giving of an undertaking is re- quired. UNDUE INFLUENCE, see Fraud and Undue Influence, 3, 1524; Wills, 3, 2076. UNITED STATES, 2, 1960. UNITED STATES COURTS, see Courts, 3, 970. As to procedure and jurisdiction, consult the appropriate title for the particular procedure under investigation. UNITED STATES MARSHALS AND COM- MISSIONERS, 3, 1963. UNLAWFUL ASSEMBLY. No cases for this topic appeared during the period cov- ered. USAGES, see Customs and Usages, 3, 988. USE AND OCCUPATION, see Landlord and Tenant, 3, 668; Implied Contracts, 3, 1694. USES, S, 1965. USURY, 2, 1966. V. VAGRANTS, 2, 1975. VALUES, see Evidence, 3, 1370, 1376; Dam- ages, 3, 997. VARIANCE, see Pleading, 3, 1178. VENDITIONI EXPONAS, see Attachment, 3, 353; Executions, 3, 1397. VENDORS AND PURCHASERS, 2, 1976. VENUE AND PLACE OP TRIAL, 2, 2000. VERDICTS AND FINDINGS, 2, 2009. VERIFICATION, 2, 2023. VIEW, see Trial, 3, 1907; Mines and Minerals (statutory right of view), 3, 897. TOPICAL INDEX. XV w. WAIVER, see Election and Waiver, 3, 1179. WAR, 2, 2025. WAREHOUSING AND DEPOSITS, 2, 2029. WARRANTS, see Arrest and Binding Over, S, 312; Searcli and Seizure, a, 1618. WARRANTY, see Covenants for Title, 3, 974; Sales, 3, 1627. WASTE, 2, 2034. WATERS AND W^ATER SUPPIiY, 2, 2034; with Special Article, 3, 1112. WATS, see Easements, 3, 1148; Eminent Do- main, 3, 1189. WBIAPONS, 2, 2071. WEIGHTS AND MEASURES, 2, 2073. WHARVES, 2, 2074. VA^LLiS, 2, 2076. WINDING UP PROCEEDINGS, see Corpora- tions, 3, 893; Partnership, a, 1106. WITHDRAWING EVIDENCE, see Trial, 2, 1907; Harmless and Prejudicial Error, 3, 1579. WITHDRAWING PLEADINGS OR PILES, See Pleading, a, 1178; Records, 3, 1482. WITNESSES, 2, 2163. WOODS AND FORESTS, see Forestry and Timber, 3, 1468. WORK AND LABOR, see Assumpsit, 3, 360; Implied Contracts, 3, 1690; Master and Servant, a, 801. WORKING CONTRACTS, see Building and Construction Contracts, 3, 550. CURRENT LAW. (Copyilglited 1904, by Eeete-SavldBan Company.) VOLUMB m. SEPTEMBER, 1904. NUUBBB 1. ABATEMENT AND BEVIVAL. 5 1. § 2. Canses for Abatement (1). Raistngr Objeetlons) 'Wa.tver (8). § 3. SurvlTabUIty of Causes of Action (10). § 4. Revival and Continuation (10). Scope. — It is not attempted here to treat of criminal prosecutions/ nor of billsi of revivor,* or revival of judgments/ or of statute barred causes of action.* Various writs are abatable for defects, whicli matters are not germane to this title." § 1. Causes for abatement.^ — The pendency of another action between the same parties,^ and for tbe same cause,' and prior in time,* is ground for abatement. 1. 307. 2. 3. 4. 6. 6. 7. Indictment and Prosecution, 2 Curr. Zi. Equity, 1 Curr. L. 1066, et seq. Judgments, 2 Curr. L. 598. Limitation of Actions, 2 Curr. I* 757. Attachment and like titles. See 1 Curr. L. 1. Where a party Is plaintiff In one ac- tion and defendant In a subsequent one re- lating to the same subject-matter In which she sets up In defense the same matters she alleged In her complaint, a plea of prior ac- tion pending Is not available as against the defense. Rodney v. Gibbs [Mo.] 82 S. W. 187. The pendency of a prior action between the same parties is ground for abatement. Cahill V. Cahlll [Conn.] 57 A. 284. It Is be- tween the same parties when the defendant is the successor In ibterest of the defendant In the former suit. Wetzstein v. Boston & M. Consol. Copper & Silver Min. Co., 28 Mont. 451, 72 P. 865. The issues In a suit In par- tition were identical and the real parties in interest the same, though In the later case the plaintiff had joined some nominal par- ties. Guinn v. Elliott [Iowa] 98 N. "W. 625. The pendency of an appeal by a creditor from a judgment In favor of a garnishee is not ground for abatement of an action brought In the same court against the gar- nishee by the debtor, but such action should be postponed until the appeal Is decided (RIeden v. Kothman [Tex. Civ. App.] 73 S. W. 425); nor can a suit by an administrator be pleaded In abatement to a suit by the heirs under circumstances of this case (Row V. Johnson, 25 Ky. L. R. 1799, 78 S. W. 906). 8. Where one had filed an Intervening pe- tition asking to have claims allowed out of the assets In the hands of a receiver, and after an order of the court so directing, creditors brought suit in a state court there- for, and then filed a supplemental interven- ing petition asking that their claim be de- clared a preferential one, one suit could not be pleaded In abatement to the other. Trim- ble V. Kansas City P. & G. R. Co. [Mo.] 79 S. W. 67S. Pendency of a suit by an execu- trix on a benefit insurance policy, claiming that children of the Insured were entitled to all the Insurance and making defendants others named as beneficiaries, and claiming part of the Insurance, does not prevent such others from maintaining an original bill, es- pecially where after the death of tbe In- sured they had assigned a part of their claim to a third party not made a party de- fendant by the testatrix. Clement v. Clem- ent [Tenn.] 81 S. W. 1249. The pendency of a suit to enjoin the removal of ore from a mining claim as ancillary to an action of ejectment to recover possession of the part from which the ore was being taken Is not a bar to a suit to quiet title to the entire claim, Including extralateral rights not In controversy In. the prior action. Empire State-Idaho Min. & D. Co. v. Bunker Hill & S. M. & C. Co. [C. C. A.] 121 P. 973. Ad- ministratrix sued for a lien, and the heirs to be adjudged the owners, not the same cause. Row V. Johnson, 25 Ky. L. R. 1799, 78 S. W. 906. An action for libel pending against a party for a publication on a certain day will not abate the entire action against another for the same publication on the same and other days. Holmes v. Cllsby, 118 Ga. 820, 45 S. B. 684. Action to foreclose a mortgage and an action In ejectment. Howard v. Hewitt, 139 Cal. 614. 73 P. 414. Action by an agent for value of services no bar to an action by the principal for an accounting. Jordan v. Underbill, 91 App. DIv. 124, 86 N. T. S. 620. An action for unexcused neglect to present a will to probate no bar to an action for un- excused neglect to accept the trust or give notice of his refusal to accept. Richardson v. Fletcher [Vt.] 56 A. 981. Where miscon- duct Is set up as a counterclaim In an action for services. It cannot be used again as to different Items In a subsequent action on the judgment rendered therein. Newman v. Gates [Ind. App.] 67 N. B. 468. The penden- cy of an action commenced by a testator to enjoin the operation of an elevated railroad in front of his premises is no bar to a suit by a testator's devisee for Injunctive relief and the recovery of damages sustained since he acquired title. Hirsh v. Manhattan R. Co. 84 App. Div. [N. Y.] 374, 13 N. Y. Ann. Cas! 158, 82 N. Y. S. 754'. An action by a minor to 3 Curr. Tj. 896. That a contract by the state with an agent to prosecute claims provided for a contingent fee does not render it against public policy. Opinion of the Justices [N. H.] 54 A. 950. 66. Authority under seal Is necessary to execution of an Instrument under seal In Delaware. Hartnett v. Baker [Del. Super.] 56 A. 672. 67. An agreement for extension of a lease and for conveyance held Invalid because made by one lessor for others, without writ- ten authority as required by Civ. Code, § 2185, subd. 5. Landt v. Schneider [Mont.] 77 P. 307. An agency to sell land must be in writ- ing, signed by the parties, and set forth the compensation [Comp. St. 9 74, o. 73]. Danielson v. Goebel [Neb.] 98 N. W. 819. Written authority to broker to effect an ex- change of lands, within Pen. Code, 9 640d (Laws 1901, p. 312, c. 128). But this stat- ute Is unconstitutional because by making It a misdemeanor to sell lands without writ- ten authority In cities of the first or second class. It abridges the right of contract of a portion of the state. Cody v. Dempsey, 86 App. Dlv. 335, 83 N. T. S. 899. Letters in which an owner states that he has land to sell and Its price, and intimating that he has a friend to whom he will Intrust the sale, do not constitute authority or power of attorney to the addressee to sell, within a statute requiring an instrument In writ- ing [Civ. Code, §§ 1624, 2309]. Lambert v. Gerner, 142 Cal. 399, 76 P. 53. An agent not authorized in writing cannot fill In a gran- tee's name In a deed executed In blank, and thereby pass title to the grantee, he knowing that the deed was executed in blank under statute of frauds. Civ. Code, § 938. Lund v. Thackery [S. D.] 99 N. W. 856. 68. Danielson v. Goebel [Neb.] 98 N. W. 819. Sufficiency of Identity of land and au- thority of agent as shown by power of at- torney, construing act of Congress, May 20, 1862 (Chapter 75, 12 St. 392). Finnegan v. Brown, 90 Minn. 396, 97 N. W. 144. 69. Smith v. Browne, 132 N. C. 366, 43 S. K. 915. 70. Since the statute of frauds requires a writing signed by the party to be charged, the seller In this case. Fowler v. Fowler, 204 111. 82, 68 N. B. 414. 70 AGENCY § IB. 3 Cur. Law. quire a power of attorney respecting realty to be properly acknowledged'* or recorded in the county where the land is situated.'* Agency is a mixed question of law and fact/° to be determined by the jury under proper instructions/* when the agenf s authority is not in writing.'' Where there is no conflict in the evidence, the question of the existence of the relation is for the court.'® Whether the relation created is that of principal and agent," or vendor and purchaser," must be determined from the entire contract and 71. Sufficiency of foreign acknowledgment of power of attorney under Real Prop. Law, § 250, subd. 2 (Laws 1901, p. 1476, 0. 611). Jordan v. Underhill, 91 App. Div. 124, 86 N. T. S. 620. 72. A power of attorney concerning a sale of land cannot be recorded in a county where none of the land is situated; a copy of the record in the land ofBce of such a county is not an archive of the office. Wren v. How- land [Tex. Civ. App.] 75 S. W. 894. In Cal- ifornia, a power of attorney to execute a mortgage must be recorded, but a power of attorney to release a mortgage need not be fCiv. Code, § 2933]. Adams v. Hopkins [Cal.] 77 P. 712. 73. Gough V. Loomis [Iowa] 99 N. W. 295. 74. Palmour v. Roper, 119 Ga. 10, 45 S. E. 790. Wife's agency for her husband. Martin V. Cakes, 42 Misc. 201, 85 N. Y. S. 387. Exist- ence of agency submitted to jury. Cooper Wagon & Buggy Co. v. Barnt [Iowa] 98 N. W. 356. Evidence sufficient to carry to jury the question of agency in collection of a riebt for lumber. Southern Pine Lumber Co. V. Fries [Neb.] 96 N. W. 71. Evidence of subcontractor's agency to purchase on cred- it of the contractor sufficient to carry the question of agency to jury. Jewell v. Posey, 119 Iowa, ■412, 93 N. W. 379. W^here a con- tract was within apparent authority of an agent and the principal received the benefit of it, the question of agency was for the jury. Booth & Co. v. Bethel, 25 K.y. L. R. 1747, 78 S. W. 868. Held, that question wheth- er one was an agent for the letting of prem- ises should have been submitted to the jury. Crossley v. Kenny [N. .1. Law] 58 A. 395. Evidence as to agency held to require the submission of the Issue to the jury. Brlttain V. Westhall [N. C] 47 S. E. 616. Question of agency to purchase on credit of a subcon- tractor submitted to jury. Jewell v. Posey, 119 Iowa, 412, 93 N. W. 379. The clerk of a hotel directed by a guest to forward tele- grams received to him is the agent of the guest to receive messages. Western Union Tel. Co. V. Barefoot [Tex.] 76 S. W. 914. An arrangement by an owner with a land broker that the latter should wire the owner when he procured a buyer did not make the telegraph company the owner's agent and notice of a purchaser procured was not notice to the owner until the telegram was received. Johnson Bros. v. Wright [Iowa] 99 N. W. 103. A trust deed by a liquor deal- er to secure payment of license, under which the dealer continues to manage the business, held not to constitute the dealer the agent of the trustee, so as to make the latter lia- ble for the dealer's debts. Massachusetts Breweries Co. v. Hills [Mass.] 70 N. E. 1013. Held, that a husband who fraudulently in- duced his wife to Join in a trust deed was not the agent of the bank to which it was given so as to charge the bank with the fraud. Hyatt v. Zlon [Va.] 48 S. E. 1. 75. Lough V. John Davis Si Co. [Wash.] 77 P. 732. 76. Whether goods were bought from an- other as principal or agent cannot be submit- ted to the jury where the evidence shows agency only. New Orleans Coffee Co. v. Cady [Neb.] 95 N. W. 1017. Where the evi- dence is conclusive that the principal signed a contract making another his agent, that issue cannot be left to the Jury. Common- wealth Title, Ins. & Trust Co. v. Dakko, 89 Minn. 386, 94 N. W. 1088. Facts set out in complaint held not to show an agency and hence plaintiff could not sue on contract made by alleged agent. Mills v. Abbeville Southern R. Co., 137 Ala. 505, 34 So. 815. 77. Construed as creating relation of prin- cipal and agent for sale of machines In cer- tain territory, and held that a warranty was not a part of such contract. Osborne & Co. V. Josselyn [Minn.] 99 N. W. 890. Contract between wholesalers and retailers of machin- ery, whereby title to goods shipped re- mained in whoIesa.lers, and retailers paid a certain price, retaining as profits what they could get in advance of that price, and re- ceiving Ave per cent, on cash remitted with- in a certain time, was a contract of agency. Com. V. Parlin [Ky.] 80 S. W. 791. A contract whereby the owner delivered certain goods to another, retaining title in himself, the one receiving them agreeing to turn over a cer- tain portion of the price received, is a con- tract of agency, not a conditional sale. Lance v. Butler [N. C] 47 S. B. 488. An agreement whereby one person Is to purchase land for another and pay advances therefor while the other is to pay for such services and repay advances is a contract of agency. Jackson V. Pleasanton, 101 Va. 282, 43 S. B. 573. A contract whereby a locator of mining claims, for a consideration of $1 and money and labor to be expended on said claims, sold them on condition that the plaintiff should pay to the locator $45,000 and one- eighth of any amount in excess of that figure, when he should sell the mines, each party to aid the other in the negotiation and sale of the property, held to be a naked power of attorney to sell, revocable at will. Taylor V. Burns [Ariz.] 76 P. 623. 78. Where buggy dealers gave notes for goods shipped, and agreed to hold goods on hand and proceeds as agents for the seller until all obligations were paid, the contract was construed as a sale and not an agency. In re Carpenter, 125 F. 831. An agreement to fill orders for engines secured by certain persons at certain discounts, and to refer in- quiries for engines from a certain locality to such persons, is not a contract of agency, but merely gives rights of purchase and saie In that locality. Russell & Co. v. McSwegan. 84 N. T. S. 614. 3 Cur. Law. AGENCY § IC. 71 from the surrounding circumstances and situation of the parties.'" The exclu- sive right of sale in certain territorj'*" may properly be considered as a condition subsequent in a contract of sale.'^ Intermediaries.^- — A mere intermediary is not an agent,'* and cannot be held liable as such when the capacity in which he acts is disclosed.'* Dual agen- cies are void only when the fact of representation of both parties is not known to each.'" Where ship materials are left with an agent to be sold and he uses them in building a vessel of which he is also agent, the owner is entitled to a lien on the vessel." (§1) C. Implied agency." — The fact of agency or its extent may be pre- sumed" from the conduct of the parties," or their usual course of business,"' or from lapse of time,*^ so as to protect a third party acting in good faith and with reasonable prudence.'^ The presumption does not arise from conduct of the parties when the interests of the alleged principal and agent are adverse."' 79. Osborne & Co. v. Josselyn [Minn.] 99 N. W. 890. 80. Sutton V. Baker [Minn.] 97 N. W. 420. 81. See Sales, 1 Curr. L. 1527. 82. See 1 Curr. L. 44. 83. A friend of an agent who agreed to send the principal the agent's note after surety was secured and to vouch for its gen- uineness In completion of an agreement of the agent to give the note for money wrong- fully used by him was not the agent of the principal so as to bind the latter with knowl- edge of false representations of the agent in the friend's presence to secure the surety. Hardin V. Chenault, 25 Ky. L. R. 1083, 77 S. "W. 192. An insurance agent receiving an application and taking it to the agent of an- other company, who writes the policy and divides the commissions with him, is not an agent of the insurer so as to bind the latter by knowledge of erroneous recitals in the application. Parrish v. Hosebud Min. & MiU. Co., 140 Cal. 635, 74 P. 312. 84. Klay v. Bank of Dallas Center, 122 Iowa, 506, 98 N. "W. 315. 85. Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674. Where one acts as agent for both parties to a transaction, all circumstances connected with his employ- ment by each must be communicated to the other in order to relieve him from the sus- picion of Inconsistent duties. Jones v. Dra- per, 4 Ohio C. C. (N. S.) 105. A contract for sale of land by an agent for both parties without notice to the seller that he is act- ing for the purchaser is against public policy. McClure v. Ullman, 102 Mo. App. 697, 77 S. W. 325. A contract for exchange of property made by an agent is not enforceable where the agent acted for both parties without knowledge of one. Harper v. Fidler [Mo. App.] 78 S. W. 1034. 8G. Under a maritime lien statute making a builder, contractor or person in charge of construction the agent of the owner, for pur- poses of the lien law [Pierce's Code, § 6077]. Callahan v. Aetna Indemnity Co. [Wash.] 74 P. 693. 87. See 1 Curr, L. 45. 88. See post, p. 72. Evidence of Agen- cy. Booker v. Booker, 208 111. 529, 70 N. E. 709. 89. An administrator who persuaded a sis- ter of the decedent to allow him to represent her interests In the estate was her agent. strictly accountable for her share in the property. Schneider v. Schneider [Iowa] 98 N. W. 159. Workman had express authority to receive one payment; he received and ac- counted for a second without authority. Autliority to accept a third presumed from acts and conduct of the parties. Grant v. Humerick [Iowa] 94 N. W. 510. Acts of one who has been acting as business agent of a corporation with its knowledge and without consideration will bind it; he was a large stockholder, a director, and member of the executive committee, and was recog- nized in contracts made by it as to building operations. Culver v. Pocono Spring Water Ice Co., 206 Pa. 481, 56 A. 29. Where a wife is known to be a principal, and credit is given her for goods bought by her husband, as agent, she may by her conduct render her- self liable for supplies sold him while in charge of her plantation [Code 1892, § 2293]. Johnson v. Jones [Miss.] 34 So. 83. The prin- cipal's assent with knowledge to assign- ment of the agency is an acceptance of the assignee as agent. Albany Land Co. v. Rickel [Ind.] 70 N. B. 158. Where a sur- viving husband takes possession of his wife's estate and conducts a business belonging thereto without authority, and opens a bank account as "agent," he is presumed to act as agent of the owners of the estate. Suc- cession of Labat, 110 La. 986, 35 So. 257. 90. Authority of Insurance agent to re- ceive premiums. Globe & R. Fire Ins. Co. v. Robbins, 86 N. Y. 3. 493. Street commissioner held to have been authorized by city by its course of dealing, to accept assignments of future earnings in his department. La- moreux v. Morin [N. H] 64 A. 1023. 91. A power of attorney to convey land presumed to have existed at the time of the conveyance in 1856, when the former owner, to the time of his death in 1899, never claimed it or paid taxes. Bean v. Bennett [Tex. Civ. App.] 80 S. W. 662. After 60 years, au- thority of an assumed agent in conveying land will be presumed, the principal never having repudiated the act. Tarvln v. Walk- er's Creek & Coal & Coke Co., 25 Ky. L. R. 2246, 80 S. W. 504. 92. Grant v. Humerick [Iowa] 94 N. W. 510. 93. Where the relation of payee and mak- er of promissory note exists between allesred principal and agent, payment to the maker 72 AGENCY § ID. 3 Cur. Law. It will not be presumed from the mere existence of the marital relation,"* though that fact may go to the jury on the issue of agency."'' Once the agency is shown, the relation is presumed to continue."" See also a special article in this number on agency implied from relation of parties.®' (§1) D. Evidence of agency. ^^ — Parol evidence is admissible to prove an agent's authority,"" unless in writing.^ Neither the extent,^ nor the fact of agency, can be shown by declarations or admissions of the alleged agent,^ not brought home to or ratified by the principal.* But it is not error to admit declarations,^ or other testimony by the agent," when the agency has already been shown or is admitted, when such evidence is admitted for purposes of cor- roboration only,'' and testimony by the agent as to previous conduct is competent on the issue of due care by a person dealing with him.' Statements and declara- tions of the alleged principal are evidence of the most satisfactory character.' A witness may testify to his own appointment to an agency or the appointment of the company with which he is connected.'^" Evidence of actual transactions between the parties, '^^ or tending to show a course of dealing,''' or letters between by a surety wIU not be presumed to have been for the payee as principal. Judklns V. Burr, 1 Neb. Unoff. 267, 95 N. W. 475. 94. Agency of the husband In management of the wife's separate property. Wagoner v. SUva, 139 Cal. 559, 73 P. 433. 95. Brown v. Woodward, 76 Conn. 254, 53 A. 112. 96. Where a tenant was not notified to pay rent to any other than the landlord's janltress, who is shown to have had author- ity to talie rent "from some tenants when they first moved In," payment to the Janl- tress will bind the landlord. Gross v. Owen, 86 N. T. S. 26'6. 9T. Post, p. 101. 98. See 1 Curr. L.. 45. 99. Lough V. John Davis & Co. [Wash.] 77 P. 732. 1. A letter of appointment submitted to the agent for alterations and by him re- turned to the principal with desired changes, on being again sent to the agent, is the contract and cannot be changed by parol evidence of prior negotiations. Davis v. Fi- delity Fire Ins. Co., 208 111. 375, 70 N. B. 359. Lack of terms as to duration will not make a written contract of agency so uncer- tain as to admit parol evidence. Id. 2. Grant v. Humerick [Iowa] 94 N. W. 510. Incompetent to show authority or its ex- tent. Walmsley v. Quigley [C. C. A.] 129 F. 583. Error to admit agent's declarations that he was state agent, other evidence tend- ing to show he was a traveling salesman with limited powers. Aultman & Taylor Maeh. Co. v. Cappleman [Tex. Civ. App.] 81 S. W. 1243. 3. Burson v. Bogart [Colo. App.] 72 P. 605; Waters-Pierce Oil Co. v. Jackson Junior Zinc Co., 98 Mo. App. 324, 73 S. W. 272; Dieckman v. Welrlch, 24 Ky. L. R. 2340, 73 S. W. 1119; Tabet v. Powell [Tex. Civ. App.] 78 S. W. 997; Smith v. Browne, 133 N. C. 365, 43 S. E. 915; Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227; Eastland v. Maney [Tex. Civ. App.] 81 S. W. 574. As against tlie principal. Chiles V. Southern R. [S. C] 48 S. E. 252. Conversation had by a third person with an alleged agent is hearsay and inadmissible on the issue of agency. Broadstreet v. Hall [Infl. App.] 69 N. B. 415. Statements of a servant in absence of his master cannot be admitted to show that a tort of the 'servant was committed while in the master's busi- ness. Clark V. Folscroft, 67 Kan. 446, 73 P. 86. The mere statement of a husband that he has authority to pledge his wife's prop- erty for his debt Is insuflJcient to prove such authority. Just v. State Sav. Bank [Mich.] 94 N. W. 200. 4. Orange Belt R. Co. v. Cox [Fla.] 33 So. 403; Blanke Tea & Coffee Co. v. Rees Print- ing Co. [Neb.] 97 N. W. 627; Cooper & Co. V. Sawyer, 31 Tex. Civ. App. 620, 73 S. W. 992. 5. Bay City Irr. Co. v. Sweeney [Tex. Civ. App.] 81 S. W. 546. 6. Union Hosiery Co. v. Hodgson [N. H.1 57 A. 384. 7. On the question whether a note was given in consideration of a promise of plain- tiff's agent to refrain from prosecution of another criminally, the agent could testify that he had no such authority, in corrobora- tion of other testimony. GilUland v. R. G. Dun & Co., 136 Ala. 327, 34 So. 25. Testi- mony of a broker that he acted for a wife In a certain transaction is admissible in an action against her husband on a contract made by her, where considered only on other proof that she was his agent. Brown v. Woodward, 76 Conn. 254, 53 A. 112. 8. Grant v. Humerick [Iowa] 94 N. W. 510. 9. Evidence held sufficient to establish a sales agency. Blanke Tea & Coffee Co. v. Graham [Neb.] 99 N. W. 257. 10. A general passenger agent of one railroad may testify that In .sale of certain tickets his road acted as the agent of an- other. Chiles V. Southern R. [S. C] 48 S. E. 252. 11. Brown v. Cone, 80 App. Dlv. 413, 81 N. T. S. 89. Payment of commissions. Slaugh- ter V. Coke County [Tex. Civ. App.] 79 S. W^. 863. A contract between an alleged prin- cipal and agent was admissible on the is- sue of agency In an action against the al- leged principal to recover for lumber sold the agent. Brlttaln v. Westhall [N. C] 47 S. E. 616. Where a contract of agency for a particular purpose was a continuing one; a limit being applied only to the terms on which the agent might deal with third 3 Cur. Law. AGENCY § ID. 73 the parties,^" tending to show agency, are competent, but proof of general repu- tation is inadmissible.^* Proof of the agency, whether express or implied, must be clear and satisfac- tory in order to bind the principal.^^ Cases dealing with admissibility^^ or suffi- ciency^' of cTidence as to agency in particular instances are grouped in the notes.^'' persons, In an action for fraud against the agent, negotiations between the parties may be proved to show existence of the agency at a later period. Barbar v. Martin [Neb.] 93 N. "W. 722. 12. Smith V. Bank of New England [N. H.] 54 A. 385. Between principal and agent, and between the agent and third persons. Standley v. Clay, Robinson & Co. [Neb.] 94 N. W. 140. That a person had handled plain- tiff's machines, taking notes payable to plain- tiff In settlement. MoCormlck Harvesting Mach. Co. V. Lambert, 120 Iowa, 181, 94 N. W. 497. Evidence held to warrant conclu- sion that defendant bought goods through an agent. Crosno v. Bowser Mill. Co. [Mo. App.] 80 S. "W. 275. 13. To show whether a manager of a cor- poration was the agent of a stockholder to sell stock. Barbar v. Martin [Neb.] 93 N. W. 722. 14. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. 15. Booker v. Booker, 208 111. 529, 70 N. B. 709. ' Agency of a husband for his wife. Brown v. Daugherty, 120 F. 526. An agency alleged in a pleading and not denied under oath will be taken as proven. Watkins Land Mortg. Co. v. Campbell [Tex. Civ. App.] 81 S. "W. 560. 16. Agency of a general manager of a corporation to sell stock for an individual stockholder. Barbar v. Martin [Neb.] 93 N. W. 722. Evidence tending to prove that an attorney was acting for one under bond and that a bondsman had confidence in him is admissible on the question of his agency for his client In receiving back from the bonds- man money deposited as security by the client for the signature on the bond. Spor V. Grau, 89 App. Dlv. 365, 85 N. T. S. 876. Where It appeared In an action by a mort- gagee to recover a balance that Insurance due on the mortgaged property payable to the mortgagee was obtained by one claiming to be his agent and paid by him to the mort- gagee In part without Inquiry from the lat- ter, a receipt for the insurance signed by the agent as the mortgagee's attorney and a check drawn to the latter's order, pur- porting to have been Indorsed by her and the assumed agent are admissible to show the assumed agency In making payment. Ballard v. Nye, 138 Cal. 588, 71 P. 156. A certificate under seal, executed by a corpora- tion, reciting that one who signed It as president was president and that certain persons were thereby appointed corporate agents In another state to receive process, is admissible to show the position of the president as such. Owyhee Land & Irriga- tion Co. V. Tautphas [C. C. A.] 121 P. 343. 17. Evidence held Bufflclent to show agency in suit for commissions. Albin Co. V. Kuttner, 25 Ky. L. R. 1100, 77 S. W. 181. To deliver notes. Barton v. Hughes, 117 Ga. 867 45 S. E. 232. To sell timber. Limestone Min. & Mfg. Co. V. Lehman, 25 Ky. L. R. 703, 76 S. W. 328. Receiving payment on note. Cheshire Provident Inst. v. Vnndersrift. 1 Neb. Unoft. 339, 95 N. W. 615. To show that an agent for sale of realty acted for the pur- chaser and not the owner. Callaway v. Wil- son, 141 Cal. 421, 74 P. 1035. Authority of agent to list land with real estate agent for sale at a certain net price to the principal. Jenkins V.Dewey [Iowa] 98 N. W. 313. Where principal negotiations for a contract regard- ing live stock were conducted by the own- er's son, representing his father, who testi- fied that his son acted for him more than he did himself, a finding of the agency was justined. Durfee v. Scale, 139 Cal. 60S, 73 P. 435. Return of goods, on abandonment of a contract of sale, to a nephew of the seller, who had charge of the latter's busi- ness just before the transfer and from whom the purchaser received the goods shows the nephew's agency for the seller, so that re- delivery to him was delivery to the seller. Seattle Brew. & Malt. Co. v. Donofrio [Wash.] 74 P. 823. Evidence in bankruptcy proceed- ings showed that bankrupt was mere agent of assignors to forward goods not their fac- tor so that the goods were not assets of his estate. Bills v. Sohliep [C. C. A.] 127 F. 103. Evidence showed defendants to be agents for sale of land, not owners. Jackson v. McNatt [Neb.] 93 N. W. 425. Evidence suffi- cient to show son not authorized to sell land for his parents. Sherlock v. Van Asseit [Wash.] 75 P. 639. That "agency" did not extend to certain property, for which defend- ant was accountable. Rose v. Durant, 86 App. Dlv. 623, 83 N. T. S. 503. Held Insufficient: To show agency to sell lands. Darr v. Darrow, 120 Iowa, 29, 94 N. W. 245. No agency to receive and sell goods. Chicago Cottage Organ Co. v. Stone [Ark.] 73 S. W. 392. Agency of husband of one of loint owners of realty, to sell. Warren v. Goodwyn, 110 La. 198, 34 So. 411. To show authority of alleged agent to make a loan for plaintiff to defendant, or his part In an usurious agreement of the plaintiff. Hare V. Winterer, 1 Neb. UnofC. 864, 96 N. W. 179. To show agency to receive money so that It could be recovered from the payee on the money counts as money received to the pay- or's use. Rhode v. Marquis [Mich.] 97 N. W. 53. To show that one who cut trees on plain- tiff's land was defendant's agent under rule that declarations of the agent cannot prove the agency. Therrell v. Ellis [Miss.] 35 So. 826. To show agency to receive payment of mortgage debt. Thompson v. Buehler, 1 Neb. UnofE. 590, 95 N. W. 854. Correspond- ence as giving one addressed authority to sell lands for owner. Riley v. Grant [S. D.] 94 N. W. 427. Letter from husband to wife, giving her agency did not give her authority to agree to pay a penalty for failure to ful- fill a sale of realty. Michael v. Hoffstead [Neb.] 98 N. W. 1078. Evidence to show ten- ant to be agent of landlord or render declara- tions of the tenant admissible In respect to the agency. Burson v. Bogart [Colo. App.] 72 P. 605. 18. Effect of certain evidence In estab- lishing agency. An execution against 74 AGENCY § IE. 3 Cur. Law. (§1) E. Estoppel to assert or deny agency.^^— The principal's admission/" or his acquiescence and acceptance of benefits from the agenf s acts,-^ -will estop him to deny the agency, if the other party has acted in reliance on the acts cre- ating the estoppel.^^ Acceptance by the principal of one contract of an unauthor- ized agent will not estop the principal from denying his authority to make a similar "James B. Leps, agent for A. Co." Is against Leps alone, the -words "agent for" being merely descriptive. Armour Packing Co. v. Lovell, lis Ga. 164, 44 S. E. 990. Assignment of a mortgage by a general corporate officer, "With corporate seal attached, is prima facie evidence of his authority. Wilson v. Neti, 1 Neb. UnofE. 42, 95 N. W. 502. That one ad- dressed an envelope will not show him to be bound by the letter contained giving au- thority to an agent where he denies knoTvl- edge of the contents. Darr v. Darrow, 120 Iowa, 29, 94 N. "W. 245. A power of attorney "to release a mortgage » * » for $40,- 000" does not make the payment of $40,000 a condition, but the mention of that sum sim- ply describes the mortgage. Adams v. Hop- kins [Cal.] 77 P. 712. The acceptance by one road of a ticket sold by another Is some evi- dence that the latter acted as the agent of the former in the sale. Chiles v. Southern R. [S. C] 48 S. E. 252. Where an agent signs a memorandum of payment for realty as agent, describing it as "belonging to" one of his two principals, the words were part of the descrip- tion and did not limit the agency, so that the two owners may be sued as principals of the one mentioned. Tobin v. Larkln, 183 Mass. 389, 67 N. E. 340. Where an offer to sell machinery was made to G. & Co. "(for the N. Umbrella Co.)" and G. & Co. and oth- ers signed the acceptance, such signature bound the signers personally and not as agents of the umbrella company. Gill v. General Elec. Co. [C. C. A.] 129 F. 349. Evi- dence as to existence of undisclosed prin- cipals liable for agent's purchase of railroad propertv at mortgage sale. Ranger v. Thal- mann, 39 Misc. 420, SO N. T. S. 19. That an agent was a del credere factor cannot be in- ferred from the mere fact that the names of customers were not disclosed to the prin- cipal. See Factors, 1 Curr. L. 1200. Cush- man v. Snow [Mass.] 71 N. B. 529. 19. See ■ 1 Curr. L. 47. 20. Where the principal admits that ne- gotiations with a representative were with him, and that a valid bond was delivered, he cannot deny the agency. Stearns v. Shep- ard & M. Lumber Co., 91 App, Olv, 49, 86 N. T. S. 391. Where an exporter made a consular declaration that his consignee was a purchaser and recited the purchase In an invoice accompanying such declaration and the goods were entered in the custom house in the consignee's name, the exporter was estopped to assert, as against a purchaser from the consignee, in reliance on the cus- tom house title and consular declaration, that the latter was only his agent; the estoppel extended to the consignee's agent acting un- der the exporter's orders. Simar v. Shea, 89 App. Div. 84, 85 N. T. S. 457. Jhe brother of the owner of stock pledged it as security for his debt, and when notified by the cor- poration, the owner said It was all right. The stock was sold to a bona fide purchaser to satisfy the debt. Held, the owner was es- topped to deny his brother's agency [Civ. Code (ostensible agency) §§ 2307, 2317, 3515, 3519], Dover v. Pittsburg OH Co.. [Cal.] 77 P. 405. Admission by the legal owner of land that he verbally authorized another tn sell amounts to an estoppel in favor of one claiming under the person given such author- ity. Northington v. Granade, 118 Ga. 584, 45 S. E. 447. 31. Acceptance of benefits. Rosenthal v. Hasberg, 84 N. Y. S. 290. Where a contract of agency held by a Arm was assigned to one member who continued the business, ac- quiescence of the principal in his acts and acceptance of the benefits, ratified the as- signment. Albany Land Co. v. Rickel [Ind.j 70 N. B. 158, Acceptance of payments on drafts and acquiescence for several years will prevent one of two payees from ques- tioning the authority of the other to in- dorse the drafts as against the bank pay- ing them. Allen v. Corn Exch. Bank, 87 App. Div. 335, 84 N. T. S. 1001. Acceptance of benefits under and repeated recognition by a corporation by payment of consideration will estop the corporation to deny authority of Its president to execute the contract after full performance by the other party. Owyhee Land & Irr. Co. v. Tautphas [G. C. A.] 121 F.- 343, Where corporate officers and stbck- holders had knowledge of the terms and con- sideration of a deed executed by officers of the corporation for many years and ac- quiesced In the act, they were estopped to deny the authority of the officers to execute the deed. West Seattle Land & Imp. Co. v. Novelty Mill Co., 31 Wash, 435, 72 P, 69, One suing a carrier in tort for damages to live stock from negligence in shipment may =ihow that delivery to the carrier by him was made through his agent, though the agency was not disclosed when the contract was made; but the predication of his action on the agency will bind him by the terms of carriage made by the agent regardless if the question of authority. Central of Georgia Ry. Co. v. Jamea, 117 Ga. 832, 45 3. E. 223. 22. That a husband has been doing busi- ness In his wife's name and handling her money without her objection will not raise an estoppel against her in favor of one without knowledge of such facts or who did not act on faith of the husband's general agency. Brown v. Daugherty, 120 F. 526. That a city and Federal license as a whole- sale liquor dealer had been issued in name of a principal will not estop him from deny- ing the authority of an agent employed to buy and sell beer, to buy whisky on his credit, where the seller never saw the li- cense and sold part of the goods before the government license was Issued. Action for price. Hackett v. Van Prank [Mo. App.] 79 S. W. 1013. Bvldence of estoppel: SuflJcienoy and ad- missibility of evidence to carry to the jury the question of estoppel of an alleged prin- cipal to deny authority of agent to purchase on his credit. Hackett v. Van Frank [Mo. App.] 79 S. W. 1013. 3 Cur. Law. AGENCY § IF. 75 subsequent contract."' The principal may be estopped to deny a subagency by acts of his general agent"* if such acts are brought home to him."° The agent, in like manner, may be estopped by his own acts from denying his representative capacity."" (§ 1) F. Termination of relation.^'' — An agency for an indefinite time is terminable at will.-' If the contract of agency be for a fixed period,"" or the agency be coupled with an interest,*" it is revocable, but the principal vrill be liable for the damages caused by wrongful revocation.'^ In this sense an agency coupled with an interest given for a valuable consideration or as part of a se- curity is called irrevocable.'" While it is the general rule of law that the death of the principal revokes the agency, when, not coupled with an interest,'' this rule is held not to apply as against those dealing in good faith with the agent, with- out knowledge of such revocation and within the scope of his actual and ostensi- ble authority.'* Commission or reward to be given an agent for his services does not alone make his employment an agency coupled with an interest.'" Violation of his contract," or disregard of instructions" by the agent, is sufficient ground for his discharge by the principal. The withdrawal" or disposal'" of the sub- 23. Purchase of lumber by one falsely pretending to act as agent. Owens v. Hughes [Tex. Civ. App.] 71 S. W. 783. ' 34. Where a general agent accepted a bond by advancements made under it, his principal could not deny the authority of a subordinate agent to execute it. Pacific Nat, Bank v. Aetna Indemnity Co. [Wash.] 74 P. 590. 25. That barrels of whisky In an alleged principal's name were found in his warehouse will not estop him from denying, in an ac- tion for the price of whisky, that the agent had authority to purchase. Hackett v. Van Frank [Mo. App.] 79 S. W. 1013 26. One who has conveyed land as attor- ney in fact of another is estopped from denying the agency. Wnltovs v. Brni' [Tex. Civ. A.ppO 70 S. W. 443. Where an agent has held possession of personalty for three ye.ars In such capacity for his principal to whom it was sold, he cannot claim it as his own on the ground that the sale was in further- ance of restraint of trade pr void as against public policy, he being estopped to deny the title of his principal. Gilbert v. American Surety Co. [C. C. A.] 121 F. 499. The same rule applies to corporate officers wlio have managed property of the corporation as Its agents after their discharge as managers. Star Brewery v. United Breweries Co. [C. C. A.I 121 F. 713. 27. See 1 Curr. L. 47. 2S. New York agent for sale of Texas products on commission. Outerbridge v. Campbell, 87 App. Dlv. 597, 84 N. Y. S. B37. An agency for sale of a ranch. Loving Co. V. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. There was no exclusive agency; plaln- tift or any one else could find purchaser be- fore a certain date; agency revocable. Milli- gan V. Owen [Iowa] 98 N. W. 792. Though a letter appointing an agent for an insur- ance company stated that the object was to make a permanent agency and expressed a hope that relations would be of long dura- tion, the agency might be terminated at will of either party. Davis v. Fidelity Fire Ins. Co., 208 111. 375, 70 N. B. 359. 29. Rowan & Co. v. Hull [tV. Va.] 47 S. E. 92. 30. Milligan v. Owen [Iowa] 98 N. W. 792: Miller v. Home Ins. Co. [N. J. Law] 58 A. 98. 31. Milligan V. Owen [Iowa] 98 N. W. 792; Rowan & Co. v. Hull [W. Va.] 47 S. E. 92. 32. Insurance broker holding a policy as security for premium advanced and given certain powers In reference thereto is an agent witli an interest. Miller v. Hom"? Ins. Co. [N. J. Law] 58 A. 98. A power of attor- ney is revocable at will of the principal when not coupled v/ith an interest, or based on a consideration, or where It Is part of a se- curity, in which cases It cannot be revoked regardless of its terms as to revocation. Buffalo Land & Exploration Co. v. Strong [Minn.] 97 N. W. 575. .'!3. Brown v. Skotland [N. D.] 97 N. W. 543. 34. Conduct of administrator held to have estopped the heirs and representatives of a deceased to set up a revocation of an agency by death. Melnhardt v, Newman [Neb.] 99 N. W. 261. 3.-5. Rowan & Co. v. Hull [W. Va.] 47 S. B. 92. 36. Discharge of sales agent for breach of condition In contract of employment that he would not assr elate with women of bad repute. Gorld v. Magnolia Metal Co., 207 111. 172, 69 N. E. 896. 37. Failure to carry out instructions mere- ly because he thought the acts unnecessarv or of no avail. Shute v, McVitie [Tex. Civ. App.] 72 S. W. 433. 38. Agency to sell ranch revoked by let- ters withdrawing property from market. Loving Co. V. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. Where the principal, who has delivered money to an agent for a cer- tain purpose, demanded Its return before It v/as applied, the demand revoked the agenf'i authority. Flaherty v. O'Connor, 24 R. I. 587. 54 A. 376. 39. Sale of land by the principal, who had reserved that ri?rht, revokes the author- ity of the broker with whom the land was listed. Johnson Bros. v. Wright [lowal 99 N. W. 103; White v. Benton, 121 Iowa, 3S4, 96 N. W. 876. 76 AGENCY § 2A. 3 Cur. Law. ject of the agency by the principal revokes the agency, and the record of a deed given by the principal is notice to an agent and persons dealing with him that the power to sell has been revoked.*" An, agency ceases with the death of the agent.*^ § 3. Rights and liabilities of principal as to third persons.*'^ A. Actual or implied authority to hind principal.*^ — An agent has no implied authority to ap- point sTibagents or delegate his powers** without his principal's consent. A gen- eral agent of a corporation may employ a subagent.*' The principal cannot repudiate acts within the agent's authority,*" even though done without his knowledge.*' The extent of an agent's authority, under power conferred, is a question of law,*' but when the authority is not in writing, its extent may be a question of fact,*" as when the evidence is conflicting.^" When an agent acts under special authority conferred by a formal instrument, his pow- ers must be ascertained from the instrument itself,"^ which will be strictly con- strued,"^ and if capable of two constructions, will be construed most favorably to one dealing with the agent.°° An express limitation of a special power will control over general powers ■ conferred in a power of attorney.^* One of three persons appointed attorneys in fact by a power of attorney may act for the prin- cipal if the power contains no provision requiring joint action.'"' The principal is bound by the apparent and visible interpretation which he has put upon the 40. Donnan v. Adams, 30 Tex. Civ. App. 616, 71 S. W. 580. 41. Bristol Sav. Bank v. Jlolley [Conn.] 58 A. 691. 42. Liability on' agent's bonds, see In- demnity, 2 Curr. L. 298. 43. See 1 Curr. D. 48. 44. People's Bank of Pratt v. Frlck Co. [Okl.] 73 P. 949. And see 1 Curr. L. 47. That the seller of lumber used reasonable care in selecting persons to Inspect the lumber, on disagreement as to reduction for defects discovered on delivery to the purchaser's customers, will not bind the purchaser, though he had appointed the seller his agent to settle. Williamson v. North Pao. Lumber Co., 43 Or. 337, 73 P. 7. A special agent to inspect lumber cannot delegate his authority. Campbellsvllle Lum- ber Co. v.' Spotswood, 24 Ky. L. R. 2430, 74 S. W. 235. An executrix cannot delegate to her agent to buy land, discretion as to the terms of sale or as to the amount of commission to be paid subagents; she may authorize em- ployment of the subagent at a commission ■ fixed by her. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. 45. Where a director of a corporation ■wa.s employed to manage its stores by a vote of directors, who also authorized a sale of realty through him, a vote of directors was not necessary to his employment of brokers to eflEect the sale, the president testifying that no formal .votes were made as to busi- ness done by the managers. Henderson v. Raymond Syndicate, 183 Mass. 443, 67 N. E. 427. 46. A contract made and completely exe- cuted by an agent on Sunday within his authority cannot be repudiated by the prin- cipal as without such authority. Rickards V. Rickards [Md.] 56 A. 397. Waiver of a croT) lien by the landlord's agent with actual authority will bind the principal, though without consideration. Wimp v. Early [Mo. App.] 78 S. W. 343. 47. Authority of Insurance agent to deny liability on policy. Indian River State Bank V. Hartford Fire Ins. Co. [Fla,] 35 So. 228. 48. Anderson v. Adams, 43 Or. 621, 74 P. 215. 40. Evidence sufficient to carry to the jury the question of an agent's authority to rescind a sale. Osborne & Co. v. Rlngland & Co., 122 Iowa, 329, 98 N. W. 116. Whether an agent is authorized by a bank depositor to settle with a correspondent and whether the settlement Included a deposit withdrawn by the latter. Heath v. New Bedford Safe Deposit & Trust Co. [Mass.] 69 N. B. 215. Question of selling agent's authority to ac- cept something besides money properly sub- mitted to jury, there being some evi- dence to support It. New Orleans Coffee Co. V. Cady [Neb.] 95 N. W. 1017. 50. Palmour v. Roper, 119 Ga. 10, 45 S. E. 790. Where evidence as to an agent's au- thority to make a contract did not justify one inference only. Its existence is a ques- tion of fact. Parr v. Northern Electrical Mfg. Co., 117 Wis. 278, 93 N. W. 1099. 51. Power of attorney for sale of land providing for giving of notes payable In one, two and three years, did not author- ize agent to make contract permitting pay- ment of notes at option of purchaser, and such contract did not bind principal. Henry V. Lane [C. C. A.] 128 P. 243. 52. Letter of attorney to execute oil lease will not be extended to include authority to recognize an outstanding title by a third person. MacDonald v. O'Neil, 21 Pa. Super. Ct. 364. 63. Osborne & Co. v. Rlngland & Co. [Iowa] 98 N. W. 116. 54. First Nat. Bank v. Klrkby [Fla.] 32 So. 881. 65. U. S. Fidelity & Guaranty Co. ▼. Bt- tenhelnier [Neb.] 99 N. W. 652. 3 Cur. Law. AGENCY § 2A. 77 written authority."' When the agent's powers are not conferred by a writing, they must be ascertained from the scope and character of the business which he is authorized to transact,"' but cannot include illegal acts."' Implied powers may arise from a course of dealing"' or conduct of the parties,'" who may be es- topped to deny that an act was without the authority of the agent.'^ Implied agency of a wife to purchase necessaries does not extend to articles not necessary to the household.'^ Third persons may rely on the principal's statements as to the agent's authority." Under a statute requiring signature of the writing by the party to be charged, a signature by his agent is insufficient.'* Termination of the agency terminates the authority,'" except as to third persons without no- tice." Declarations or admissions of the agent made without authority," or as to matters outside the scope of his authority," or after termination of the agency,'" Be. Osborne & Co. v. Hlngland & Co., 122 Iowa, 329, 98 N. "W. 116. 57. Whether agents of an Indemnity com- pany ■who took shipbuilding plant to finish a contract on default of the builder had pow- er to borrow money to complete It, held to be for the jury. Ladd v. Aetna Indemnity Co., 128 F. 298. Authority to borrow money must be expressly given or necessarily im- plied from the nature of the agent's duties. Held, that an employe of a state Insurance agent termed a "cashier," had no Implied authority to Indorse and discount drafts for his principal. Exchange Bank v. Thrower, 118 Ga. 433, 45 S. E. 316. Where a clerk had admitted authority to act as agent for his employers in chartering vessels for their trade. If he did not make known to third persons with whom he was dealing that he was not acting for his employers in sign- ing a memorandum of charter at their place of business in his own name, they are bound. Ralney v. Potter IC. C. A.] 120 P. 651. 58. The agent of the owner of premises is not presumed to have authority to lease for an illegal purpose. Stover v. Flower, 120 iowa, 514, 94 N. W. 1100. 69. Authority of corporate agents to con- tract. Smith V. Bank of New England [N. H.] 54 A. 385. The course of dealing between the principal and his agent may be shown on the issue of his general agency to repre- sent the principal as to sales. Continental Tobacco Co. v. Campbell, 25 Ky. L. R. 569, 76 S. W. 125. A corporation cannot be bound by acts of agents or officers without express authority or such a course of dealing ,js.s to clearly Imply authority. The directors only can otherwise bind the corporation. Brad- ford Belting Co. v. Gibson, 68 Ohio St. 442, 6T N. E.'888. 60. A finding that an agent for a nonresi- dent owner of rented property had author- ity to repair held sustained by the evidence. TJough V. John Davis & Co. [Wash.] 77 P. 732 61. A principal who knows the terms of a contract made by his agent, and accepts and performs it. is estopped to object on any grounds that might arise from lack of knowledge. Hale Elevator Co. v. Hale, 201 111. 131, 66 N. E. 249. Where an agent agreed to replace a machine or return notes and cash paid on the price, if It was not as war- ranted, and the principal knew of the agent s agreement, and received and kept a payment on the price, the principal was estopped to deny the agent's authority to make such a contract. Kenney Co. v. Anderson [Ky.] 81 S. W. 663> 62. As jewelry. McBrlde v. Adams, 84 N. T. S. 1060. 63. Restrictions on an agent's authority will not limit the principal's liability for the agent's acts where the principal repre- sented that the agent had greater author- ity. Phipps V. Mallory Commission Co. [Mo. App.] 78 S. W. 1097. 64. Gen. St. p. 1976, § 10. De Raismes v. De Raismes [N. J. Law] 66 A. 170. 65. To render rescission of a sale Con- ducted wholly through an agent effectual, the latter must acquiesce therein while still rep- resenting his principal. Parsons Band Cut- ter & Self Feeder Co. v. Malllnger, 122 Iowa, 703, 98 N. W. 580. 66. One in the habit of dealing with an agent may deal with him after revocation of the agency and bind the principal where he has no knowledge of such revocation. Grasselli Chemical Co. v. Biddle Purchasing Co., 22 Pa. Super. Ct. 426. A principal is liable for goods bought by his agent, after termination of the relation, from one who had been dealing through the agent and had no knowledge of the revocation of the agen- cy. Waters-Pierce Oil Co. v. Jackson Junior Zinc. Co., 98 Mo. App. 324, 73 S. W. 272. 67. Declarations of a husband as to own- ership of cattle claimed by his wife as sepa- rate property are not binding on her in her absence. Word v. Kennon [Tex. Civ. App.] 75 S. W. 365. Evidence of declarations of a husband are inadmissible in an action against his wife to reform a deed given her, where made long after conveyance and his authority to speak for her does not appear. Montgomery v. Mann, 120 Iowa, 609, 94 N. W. 1109. Statements of agent as creating trust in land bought by him for the princi- pal. New York University v. Loomis Labor- atory [N. Y.] 70 N. E. 413. Conversations with ■ an agent cannot be given as aerainsr. the principal in an action by him for breach of contract, where the agent had no author- ity as to the contract and Tva.s not present when It was made. Wallingford v. Aitkins, 24 Ky. L. R. 1995, 72 S. W. 794. An adver- tisement inserted in a newspaper by an agent is inadmissible against the principal when it does not appear that the publication was au- thorized or ratified. National Bldg. Ass'n V. Quin [Ga.] 47 S. E. 962. 68. Wimmer v. Metropolitan St. R. Co.. 86 N. Y. S. 1052. Corporate agent. Harper V. Western Union Tel. Co., 92 Mo. App. 304. 78 AGENCY § 2A. 3 Cur. Law. do not bind the principal, but declarations and admissions witMn the scope, of the agent's authority are binding.'" Evidence and proofs.'''^ — The admissions or declarations of the agent are re- ceived in evidence against the principal, not as admissions or declarations mere- ly, but as parts of the res gestae,'^ and only such as accompany the transaction in vrhich the agent acted can be proved."* Declarations of the alleged agent are inadmissible to show the extent of his authority,'* but a general agent of a The principal Is bound only by acts and declarations of his agrent as to matters with- in the scope of his general employment or' specially Intrusted to him. Huebner v. Erie R. Co., 69 N. J. Law, 327, 55 A. 273. State- ments of corporate officers that the corpora- tion had agreed to pay obligations of an- other corporation whose assets it took over cannot be shown to prove the agreement, there being no evidence, of authority. Cen- tral Blec. Co. V. Sprague Elec. Co. tC. C. A.] 120 F. 925. The superintendent of a prune ranch, whose duties are general management and preparation of the fruit for market, but who cannot sell, cannot bind his em- ployer by admissions as to the condition of fruit sold [Clv. Code, S 2295 and § 1870. subd. 5]. Peterson Bros. v. Mineral King Fruit Co., 140 Cal. 624, 74 P. 162. The hired man- ager of a hotel cannot bind his employer by admissions concerning a trespass by a serv- ant on a guest after its commission. Clancy V, Barket- [Neb.] 98 N. "W. 440. 60. Admissions of an agent, made two or three weeks after termination of. the agency, as to a transaction, are inadmissible to prove it. Small v. McGovern, 117 Wis. 608, 94 N. W. 651. Statements of an agent after termination of the relation will not bind the principal whert che person to whom they were made knew the agency had terminated. Hill Bros. v. Bank of Sene- ca, 100 Mo. App. 230, 73 S. W. 307. 70. Tabet v. Powell [Tex. Clv. App.] 78 S. W. 997. Sufficiency of evidence of authority. Hill Bros. v. Bank of Seneca, 100 Mo. App. 230, 73 S. W. 307. Admissions and represen- tations of a corporate agent, acting within the scope of his authority, as to matters in his care, will bind the corporation. White Hall Co. V. Hall [Va.] 46 S. B. 290. Man- agers and solicitors of packing houses to transact all their business of selling In the state may bind their princpals by state- ments while engaged in making a combi- nation to control prices, so that such state- ments may be shown In quo warranto pro- ceedings for violation of their corporate priv- ileges [Rev. St. 1899, §§ 8965, 8966]. State v. Armour Packing Co., 173 Mo. 356, 73 S. W. 046. Declarations of an attorney's son, em- ployed as a clerk In his office in actual charge of collection of an account, and who drew attachment papers afterward filed with the attorney's approval, are admissible against the client in a suit for wrongful attachment. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. In an action on a contract for bal- ance on right to manufacture machinery, evidence of a statement of an employe of defendant in charge of the machines that they worked nicely and were satisfactory is admissible as made by an agent within the scope of his authority. Stecher Lithographic Co. V. Inman, 175 N. T. 124, 67 N. E. 213. Report by agent on condition of work per- formed by principal under a contr.Tct is ad- missible to show failure of latter to comply with a contract. Lipscomb v. South Bornd R. Co. 65 S. C. 148, 4o S. E. 388. There being evidence tending to show that tlie agent was engaged in execution of his duties as such, his declarations were admitted, though made a week or more after the transaction in suit. Cooper Grocer Co. v. Brltton [Tex. Civ. App.] 74 S. W. 91. 71. See 1 Curr. L. 49. 72. Admissions of borporate director as to matters not part of the res gestae will not bind the principal. AUington &: C. Mfg. Co. V. Detroit Reduction Co. [Mich.] 95 N. W. 562, Admissions of an agent a dav after the event and remotely connected therewith are not admissible as a part of the rea ges- tae. Clancy v. Barker [Neb.] 98 N. W. 440. 73. National Bldg. Ass'n v. Quin [Ga.] 47 S. E. 962. To admit declarations of an agent against hla principal, they must be made during the agency and as a part of a transaction then taking place. King v. Phoe- nix Ins. Co., 101 Mo. App. 163, 76 S. W. 55. Where the defense In an action for the price of goods is rescission of the contract, de- fendant may prove conversations wth plain- tiff's agent at time of the rescission and giving of another order for goods as a con- sideration therefor. Osborne & Co. v. Ring- land ,1 Co., 122 Iowa, 329, 98 N. W. 116. Aft- er answers filed in an action against a cor- poration for services, the officers cannot bind the corporation by admission or declaration as to the cause of action. McEntire v. Levi Cotton Mills Co., 132 N. C. 598, 44 S. E. 109. Declarations of a bank president, made long :'_fter the transaction and without his official duties, are inadmissible against the b^nk. National Bank of Rondout v. Byrnes, 84 App. Div. 100. 82 N. T. S. 497. In an action against a warehouseman for loss of goods by fire, a declaration of his agent made a few days after the fire Is inadmissible. Lvman v. Southern R. Co., 132 N. C. 721, 44 S. B. 550. In an action against a telegraph company f"r failure to deliver a telegram delivered to Its agent, his statement that It had b ployment is notice to the principal."* But knowledge or notice not gained in the ducting a business In his name. Ernst v. Harrison, 86 N. Y. S. 247. That a purchaser of corporate stock from an agent who acted within the scope of his agency did not know of the agency will not affect the sale in the absence of fraud. Jones v. Western Mfg. Co., 32 Wash. 375, 73 P. 359. An undisclosed principal is liable to a surety of his agent for an amount the surety was compelled to pay as penalty for violation of the bond. City Trust, Safe-Deposit & Surety Co. v. American Brewing Co., 174' N. T. 486, 67 N. E. 62. 47. Ranger v. Thalmann, 84 App. Div. 341, 82 N. T. S. 846. The rule applies except as to banks under certain circumstances. Lewis V. First Nat Bank, 1 Neb. XJnofE. 177, 95 N. W. 355. 48. An owner of land is not bound by a contract relating thereto by an agent in- dividually under his own seal. Blanchard V. Archer, 87 N. T. S. 665. Lease under seal executed by agent in individual name and not purporting to be executed for the prin- cipal will not bind him, though the agent is his general agent; use and occupation cannot be maintained against him while he. or his agent for him, is occupying the prem- ises. Lenney v. Flnley, 118 Ga. 718, 46 S. B. 593. 49. Laws 1899, p. 88, o. 86. Streeter, Jr., Co. v. Janu, 90 Minn. 393, 96 N. W. 1128. 50. Implied authority to so apply a de- posit when the depositor has overdrawn his account. Kimmel v. Bean [Kan.] 75 P. 1118. 51. A policy of insurance on goods w^as liable for debts [Rev. Code 1892, § 4234]. Meridian Land & Industrial Co. v. Ormond & Co. [Miss.] 35 So. 179. 5a. Carrier Is liable to employer of com- mercial traveler for destruction of trunks containing samples. Talcott v. Wabash R. Co., 39 Misc. 443, 80 N. T. S. 149. 6S. See 1 Curr. L. 58. 64. Camden Safe Deposit & Trust Co. v. Lord [N. J. Eq.] 58 A. 607, The rule rests upon the conclusive presumption, as to third persons, that the agent has performed his duty of Informing the principal of all facts that have come to his knowledge when in the service of the principal. Modern Wood- men of America v. Colman [Neb.] 94 N. W. 814. Notice to an agent authorized to buy land, of rights of another therein. Is notice to the principal. Schreckhlse v. Wiseman [Va.] 45 S. E. 745; Blair v. Whitaker, 31 Ind. App. 664, 69 N. B. 182. A corporation is bound by knowledge of Its manager where he participated as a director In ratification Of hlB own acts as manager In employing a broker to sell corporate property. Hartford & N. T. Transp. Co. v. Plymer [C. C. A.] 120 F. 624. Where Indorsement of a note by the president of a corporation • was ratified by the directors, that such act was unauthorized under its by-laws, and that the treasurer and secretary, who were directors, failed to inform the other directors, did not prevent constructive notice to them of application of the proceeds of the note to debts of the corporation. Beacon Trust Co. v. Souther, 3 83 Mass. 413, 67 N. B. 345. Where the son of a creditor knew all the circumstances of a loan, was present when the loan was so- licited, and the creditor drew a check pay- able to the son with instructions to exam- ine the papers and deliver the check to the borrower, which the son did and received thie securities, the son was the creditor's agent, so that the latter was chargeable with his knowledge. Bouton v. Cameron, 205 111. 50, 68 N. B. 800. Notice of the source of money from funds in hands of a guardian to an agent authorized to receive payment is notice to his principal. Manson v. Sim- plot, 119 Iowa, 94, 93 N. W. 75. Regarding defects in machinery, under contract of sale. McCormick Harvesting Mach. Co. v. Lam- bert, 120 Iowa, 181, 94 N. W. 497. Actual ob- servation by an agent of failure of a ma- chine to meet requirements of a warranty was notice to the principal. McCormick Harvesting Mach'. Co. v. MachmuUer [Neb.] 95 N. W. 507. The acts and knowledge of an agent of a surety company, authorized to Issue bonds, as to the risk assumed under a bond, are the acts and knowledge of the company. Getchell & M. Lumber & Mfg. Co. V. Peterson [Iowa] 100 N. W. 550. Where the solicitor of a gas company inserted a provision In a contract on a blank form binding the company to furnish gas at a certain price, and gave the contract to the secretary, who filed it without noticing the provision, the company is chargeable with notice of it [Civ. Code, §§ 2330, 2332]. Gal- lagher v. Equitable Gas-Llght Co., 141 Cal. 699, 75 P. 329. Notice to an agent for pur- chase of lumber of liens of third persons thereon. Helfrech Lumber & Mfg. Co. v. Honaker, 25 Ky. L. R. 717, 76 S. W. 342. Where a representative of sureties on a bail bond executes it under a power of at- torney, with knowledge that one surety' had not properly executed the power, the other sureties cannot claim a release because he was not bound. Com. v. Roark, 25 Ky. L. R. 603, 76 S. W. 140. Notice or actual knowl- edge of bankruptcy proceedings. Atkinson V. Elmore [Mo. App.] 77 S. W. 492. Notice of a mechanic's lien to a salesman, promot- 90 AGEA'CY § 2F. 3 Cur. Law. course of his employment," or gained before creation of tlie agency,"" or relating to matters outside the scope of the agency,'^ or to unauthorized acts,^' cannot be imputed to the principal; nor is there a presumption that the agent has com- municated to the principal facts coming to his knowledge as agent, when he has interests in the transaction adverse to those of his principal."' Fraud practiced on the agent may prevent the imputation of knowledge of facts to the princi- pal.'" Notice cannot be imputed to one for whom the agent has no authority to act."^ The rule does not apply to a merely nominal agent, or one acting in a ministerial capacity only.''^ When it is sought to prove notice to a principal by his agent, he need ofEer only the agent who is alleged to have received the notice and need not prove lack of notice to other agents.''^ (§ 3) G. Remedies, pleading, procedure and p-oof.^* Third persons^^ con- tracting with the agent of an undisclosed principal may, on discovery of the real principal, elect to pursue either principal or agent,"" but cannot hold both,*^ and Ing the contract for construction In order to sell machinery, is notice to his principal. June & Co. V. Doke [Tex. Civ. App.] 80 S. W. 402. An attorney applying for a loan ■which -was obtained from a corporation, and executing the papesrs for the borrower, was the agent of both the borrower and the corporation so as to bind the latter by no- tice of facts In an abstract of title prepared under his direction, Blackwell v. British- American Mortgage Co., 65 S. C. 105, 43 S. E. 395. Evidence of notice to an insurance agent that insured had hernia is admissible to meet a plea of fraudulent concealment, though not to show waiver of terms of the policy. Travelers' Ins. Co. v. Thornton, 119 Ga. 455, 46 S. B. 678. 5.1. Merrill v. Southwestern Tel. & T. Co.. 31 Tex. Civ. App. 614, 73 S. W. 422. An agency to sell land is not general, so that only knowledge gained by the agent in the course of his own employment can be imput- ed to the principal. Kyle v. Goff [Mo. App.] 78 S. W. 1047. 56. Kyle v. Gatt [Mo. App.] 78 S. W. 1047. Even though knowledge so gained concerns contracts made by the agent after his em- ployment. Samuelson v. Gale Mfg. Co., 1 Neb. Unoff. 815, 96 N. W. 809. While knowl- edge of a bank's impaired condition obtained by an agent while buying stock will be im- puted to his principal so as to start limita- tions against an action for fraud in the sale, similar knowledge obtained years later, where the agent resold the stock to third persons, will not be imputed, the transac- tions being distinct. Day v. Exchange Bank of Kentucky, 26 Ky. L. R. 1449, 78 S. "W. 132 57. ToplifE v. Shadwell [Kan.] 74 P. 1120. As to personal habits of employe under bond given by principals. Aetna Indemnity Co. V. Schroeder [N. D.] 95 N. "W. 436. It must be the agent's duty to communicate It to his principal or it must directly relate to the matter of his agency. Hargadine- McKittrick Dry Goods Co. v. Krug [Neb.] 96 N. W. 286. 58. Knowledge of a director and manager of a corporation of his own unauthorized act in giving a note in the name of the cor- poration is not notice to the corporation. Sanford Cattle Co. v. Williams [Colo. App.] 71 P 889 59. Central Coal & Coke Co. v. Good & Co. [C. C. A.] 120 F. 793; Aetna Indemnity Co. V. Schroeder [N. D.] 95 N. W. 436. Knowledge of fraudulent transaction by of- ficers of a trust company not imputed to the corporation. Camden Safe JJeposit & Trust Co. V. Lord [N. J. Eq.] 58 A. 607. Agent had adverse interest and motive for con- cealing facts. Booker v. Booker, 208 111. 529, 70 N. E. 709. 60. Fraudulent representations as to prop- erty mortgaged, the agent having knowledge of facts, which if known to the principal would disclose the fraud, but being de- ceived himself. Lee v. TarpUn, 183 Mass. 52, 66 N. E. 431. 61. Notice to loan broker acting for bor- rower, receiving notice of secret equity in land on which the loan was made. Is not no- tice to the lender. Goodwynne v. Bellerby, 116 Ga. 901, 43 S. B. 275. One to whom cer- tificates of deposit were indorsed by a mort- gagee on a building loan, -who had placed money in a bank to pay the mortgagor, to enable him to draw money for the mortgagor, was the agent of the mortgagor after the building was completed and turned over to the mortgagor and the mortgage executed, so as not to charge the mortgagee with such agent's knowledge that the mortgagor had no title to the property. Rodferick v. Mo- Meekin, 204 111. 625, 68 N. E. 473. The hus- band though vested by law with the con- trol of the wife's separate estate, is not. In the absence of special authority, her agent, such that notice to him will bind her. Where husband was not shown to be wife's agent in accepting deed of trust from son, his knowl- edge of fraud as against creditors did not bind her. Cooper & Co. v. Sawyer, 31 Tex. Civ. App. 620, 73 S. W. 992. 62. Aetna Indemnity Co. v. Schroeder [N. D.] 95 N. W. 436. es. Travelers' Ins. Co. v. Thornton, 119 Ga. 455, 46 S. E. 678. 64. See 1 Curr. L. 60. 65. See 1 Curr. L. 60, n. 21-23. 66. Bringing suit against agent Is an election. Barren v. Newby [C. C. A.] 127 F. 656; Greenberg v. Palmieri [N. J. Law] 58 A. 297. 67. 68. Barren v. Newby [C. C. A.] 127 F. 656. If a seller elects to sue the princi- pal for goods after discovering him, judg- ment therein will prevent suit against tha 3 Cur. Law. AGENCY § 3G. 91 an election to pursue one is binding and will bar a subsequent suit against the other.'^ But proceeding against the agent is not binding as an election, when the third person had no knowledge of the agency or the name of the principal."" Fraudulent representations of a purchaser's agent is ground for rescission by the seller of a contract to sell land,'" and the right to rescind is not affected by the fact that the seller paid part of the agent's commission.''^ Where a principal rep- resented an agent as having authority to make a sale, the vendee may recover from the principal a sum fraudulently exacted by the agent in excess of the principal's price.'" Where an agent, authorized to buy for cash only, buys on credit, and the principal receives and appropriates the goods, he is liable for the price, unless he can show that he furnished the cash to his agent, and had no notice of the agent's violation of his authority.'' A third person performing a contract made by an agent was not estopped from holding the principal liable by delay in pre- senting his claim, where the principal received his voucher from the agent and gave the latter credit for the amount, though it was in fact not paid.''* The principaV^ may rescind a contract for fraud of the agent and the other party,'" or sue for negligence" of a third person with whom his agent deals, and may, iti his own name, maintain suit for specific performance of a contract made for him by his agent, whether he was disclosed as principal or not.^' Where a factor receives proceeds of goods sent him to sell, his principal may equitably follow the money into hands of any one receiving it with Icoowledge of its trust character.'"' Wliere a lease of realty for more than a year is executed by the owner's agent without authority in writing, possession by the lessee will render him liable for rent as long as he enjoys the property.^" A principal, though not bound by false statements of an agent, in the course of his emplojrment, will not be permitted to profit by the fraud. *^ Though an agent is liable for the differ- ence between the price he obtained for goods and a larger price he might have ob- tained, the purchaser is not liable therefor where he had no part in securing the appointment of the agent.'" Cases dealing with pleading,'^ procedure,'* evidence'" and proof," are grouped in the notes. agent. Codd Co. v. Parker, 97 Md. 319, 55 A. 623. 69. Where in such case a judgment was recovered against the agent, the agency be- ing unknown, an action will lie against tlie principal unless he discharges the Judg- ment against the agent. Greenberg v. Pal- mlerl [N. J. Law] 58 A. 297. A suit against the agent of an undisclosed principal is not an election to hold the agent liable so that judgment therein will release the principal. Ranger v. Thalmann, 39 Misc. 420, 80 N. Y. S. 19. 70, 71. Representations as to identity of purchaser. Thompson v. Barry, 181 Mass. 429, 68 N. E. 674. 72. That the agent had previously bought the cattle on his own account was no de- fense. Phipps V. Mallory Commission Co. [Mo. App.] 78 S. W. 1097. 73. Brittain v. Westhall [N. C] 47 S. E. 616. 74. McKeen v. Providence County Sav. Bank, 24 R. I. 542, 54 A. 49. 75. See 1 Curr. L. 60, n. 32-34. 76. False representations by an agent for sale of property, as to value of distant prop- erty for which he Induced his principal to exchange, together with a secret agreement between the agent and the owner of the oth- er property whereby the agent was to profit by the trade is ground for rescission of the contract. "White v. Leech [Iowa] 96 N. W. 709. 77. Purchase of goods and their delivery to a warehouse by an agent, receipts being issued to the agent and delivered to the principal without indorsement, passes title to the principal so that he may sue for neg- ligent destruction. Alabama Great South- ern R. Co. V. Clark, 136 Ala. 450, 34 So. 917. 78. In this case, the contract disclosed that it was made by the agent of the owner, ■whose name appeared therein. Randolph V. Wheeler [Mo.] 81 S. W. 419. 79. Bills V. Schliep [C. C. A.] 127 F. 103. SO. Kriz V. Peege, 119 Wis. 105, 95 N. W. 108. 81. Contract limited authority of sales- men, who made false statements as to ex- tent of sales. No recovery on sale Induced by fraud. Wilson, Close & Co. v. Pritchett [Md.] 58 A. 360. sa. Willson v. Imperial Fertilizer Co. [S C] 46 S. E. 279. 83. An answer of estoppel by conduct of plaintiff's agent must show the scope of the agent's authority. Porter Lumber Co. 92 AGENCY § 3. 3 Cut. Law. § 3. Rights and liaMlities of agent as to third persons." — An agent acting within his authority and disclosing his principal is not personally liable.*^ An agent who undertakes to bind his principal but fails to do so ^because of want of V. Hill [Ark.] 77 S. W. 905. A defense that an agent had apparent authority to act for his principal In a sale and that the principal ratified such acts may be made by answer In an action by the principal to collect the proceeds from the buyer who had paid the agent and the latter had failed to account. Continental Tobacco Co. v. Campbell, 25 Ky. L. R. 569, 76 S. W. 125. A bill for spe- cific performance of a contract made by complainant's attorney is not liable to de- murrer for failure to allege that his author- ity was in writing. Fowler v. Fowler, 204 111. 82, 68 N. B. 414. Allegation of an agree- ment as made by a party will admit proof that it was made by his agent in absence of special circumstances. Hare v. Winterer [Neb.] 96 N. W. 179. Plea in suit against principal and agent held to put agency in issue without repli- cation and to require its submission If war- ranted by the evidence. McCabe V. Parrell [Tex. Civ. App.] 77 S. W. 1049. 84. Where both the agency and the mak- ing of a contract by the agent are denied, either allegation may be proved first. Rain- ey v. Potter [C. C. A.] 120 P. 651. In an ac- tion against both principal and agent on a contract made by the agent, the principal is not estopped to deny the agent's authority by failure to object to admission of the con- tract in evidence. It being admissible as against the agent. Tabet v. Powell [Tex. Civ. App.] 78 S. W. 997. Testimony by the principal, sued on a contract made by an agent, as to fraud of the other party, will not prevent him from urging the defense that the agent acted for the other party with- out his knowledge or consent. Harper v. Fidler [Mo. App.] 78 S. W. 1034. Where an answer In an action on contract urged as a defense that plaintiff elected to hold de- fendant's agent who made the contract in his own name, and set out facts relied on as showing election, the court may settle the issue on demurrer to the answer. Barrell V. Newby [C. C. A.] 127 F. 656. 85. Statements of a representative of a principal to one purchasing goods from the agent, while engaged in securing evidence against the agent who had sold the goods and appropriated the proceeds, are admis- sible in replevin against the purchaser by the principal. Baldwin & Co. v. Tucker, 25 Ky. L. R. 222, 75 S. W. 196. Books of agent not kept under direction of the principal are inadmissible against the principal, or against a third person suing the principal on a contract made with him by the agent. MoKeen v. Providence County Sav. Bank, 24 R. I. 542, 54 A. 49. 86. One suing a principal on a contract made by an agent has the burden of prov- ing the agency and the authority to make the particular contract. Parr v. Northern Electrical Mfg. Co., 117 Wis. 278, 93 N. W. 1099. Wife's agency in action against hus- band. Brown v. Woodward, 75 Conn. 254, 53 A. 112; McBrlde v. Adams, 84 N. T. S. 1060. A vendee suing a landowner to recover mon- ey paid on land to an unauthorized agent must prove the owner's ratification. Ed- wards V. Davidson [Tex. Civ. App.] 79 S. W. 48. One setting up a compromise by an attorney must show the attorney's au- thority or ratification by the principal. Dan- ziger V. Pittsfield Shoe Co., 204 111. 145, 68 N. B. 534. One paying money to an alleged agent of the payee of a note assumes the burden of proving his authority to receive payment. Thompson v. Buehler [Neb.] 95 N. W. 854. Where execution of a rote sued on is denied, the burden of proof is upon plaintiff to show agency or ratification by the one sued. Sears v. Daly, 43 Or. 346, 73 P. 5. The burden is on one denying au- thority of a general corporate oflicer to as- sign a mortgage for the corporation where prima facie evidence thereof is shown by the officer's signature and the corporate seal. Wilson v. Neu [Neb.] 95 N. W. 502. 87. See 1 Curr. L. 60. 88. A bank cashier agreeing, on .purchase of property for himself from' a debtor of the bank, that the price shall be applied in a certain way on the debt, acts therein as official agent of the bank and is not in- dividually liable for a breach of the agree- ment. In so far as he volunteers to make the arrangements for the debtor, he is the latter's agent. Pease v. Francis [R. I.] 55 A. 686. An agent Is not properly joined as defendant with his principal In a suit for infringement of a patent for acts done in his capacity as agent. Westinghouse Blec. & Mfg. Co. V. Mutual Life Ins. Co., 129 F 213. Payment of earnest money to attorneys acting as agents of a seller of realty will not make them personally liable on his fail- ure to complete the contract. Mlddleworth V. Blackwell, 85 App. Div. 613, 82 N. T. S. 704. One signing a note as agent, with knowledge of the payee that he was so acting. Crandall v. Rollins, 83 App. Div. 618, 82 N. T. S. 317. An agent is not liable for defaults of his disclosed principal.' Bro- ker could not collect commission for secur- ing tenant from the agent who acted for the owner. Hayman Co. v. Knepper, 88 N. T. S. 930. Evidence given by agent of owner of ship materials as not supporting conten- tion that materials were sold the agent on his Individual credit. Callahan v. Aetna In- demnity Co., 33 Wash. 583, 74 P. 693. One signing a contract as attorney in fact for another. Largey v. Leggat [Mont.] 75 P. 950. An agent not liable for commissions of a broker employed by him to sell the prin- cipal's land. Scottish-American Mortg. Co. V. Davis [Tex. Civ. App.] 72 S. W. 217. The agent of the grantor in a trust deed to col- lect rents on the land conveyed, who contin- ued to collect and pay to the grantor after sale under the deed to a third person until the purchaser was awarded possession, was not liable to the latter for rents paid over after the sale; agents having no notice of the sale. Bmbry v. Galbreath, 116 Tenn. 297, 75 S. W. 1016. Where a summons in account was directed, to defendant and the attached account charged him as agent, a demurrer will lie for defect of parties. Dan- forth V. Timmerman, 65 S. C. 259, 43 8. B. 678. 3 Cur. La-w. AGENCY § 3. 93 authority binds himself/' and is liable to the other party for damage resulting from his misrepresentation of authority,'" not on the contract which he attempts to make, but for breach of implied warranty or in tort.'^ To fix the individval liability of such person, purporting to act as agent, it need not be shown that his express or implied representations were iatentionally false,'^ but it must ap-. pear that the contract would have been enforceable against the principal, if author- ized, and that the other party thereto could perform.*' The agent is personally liable when he purports to act as principal, the other party having no knowledge of the agency,"* or when, purporting to act as agent, he does not disclose the name of his principal,'" or when he makes the contract in his own interest, treat- ing the property, the subject of the contract, as his own." He is personally lia- ble to persons injured by his negligence'^ or misfeasance, but not ordinarily for mere nonfeasance," nor for negligence of his principal." An agent of a grantor in a trust deed to collect rents, who continued to collect rents after sale of the premises under the trust deed to a third person, was not a trespasser as 89. Danforth v. Tlmmerman, 65 S. C. 259, 43 S. B. 678. But does not become liable when he discloses the extent of his author- ity. Klay V. Bank of Dallas Center, 122 Iowa, 506, 98 N. "W. 315. Though he did not misrepresent his authority, since there was an Implied warranty of authority. Ander- son V. Adams, 43 Or. 621, 74 P. 215. An option on land, not binding as to owners wlio are principals of the agent giving the same, is nevertheless binding on the latter as to his own land included therein. Tibbs v. Zirkle [W. Va.] 46 S. E. 701. Defendant fraudulently releasing a mortgage by use of power of attorney from mortgagee, held liable for debt. Persons v. Persons [N. D.] 97 N. W. 561. In North Dakota, an agent executing a contract in the name of a principal without authority and without a bona flde belief that he has authority, is liable on the contract as principal [Rev. Codes 1899, § 4343, subd. 2]. Kennedy v. Stonehouse [N. D.] 100 N. W. 258. 90. The principle is applicable to an offi- cer of a corporation acting In excess of his authority. Groeltz v. Armstrong [Iowa] 99 N. W. 128. The damages recoverable are those which could have been recovered against the principal had the warrant of au- thority been complied with, together with expenses of procjeedings against the prin- cipal [Rev. Codes 1899. § 4005]. Kennedy v, Stonehouse [N. D.] 100 N. "W. 258. 91. Groeltz v. Armstrong [Iowa] 99 N. W. 128. He is liable on a contract signpl for a supposed principal only on the Implied warranty that he had authoritv to make it Kent v. Addioks [C. C. A.] 126 F 112. Where it is not alleged In suing agent on a contrac In excess of his authority that he falsely represented his authority, the action is in contract for breach of Implied warranty of authority and not in tort for deceit. An- derson V. Adams, 43 Or. 621, 74 P. 215. 92. Groeltz v. Armstrong !Iowa] 99 N. W. 128 93. Admissibility of evidence to phow abil- ity to perform. Kent v. Addioks [C. C. A.] 126 F. 112. _ 94. Jackson v. McNatt [Neb.] 93 N. "W. 426: Rathbun v. Allen [Mich.] 98 N. W. 735; Danforth v. Tlmmerman, 65 S. C. 269, 43 3. B. 678. Defendant liable for price of horse, where agency not disclosed and check drawn by third party, real purchaser, was not paid. Fritz V. Kennedy, 119 Iowa, 628, 93 N. W. C03.' A pjrohase of property at .ludicial sale by an undisclosed agent, paying partly in cash and remainder in his Individual notes, is executed by the agent so that his principal Is not bound. Ranger v. Thallman, 84 App, Dlv. 341, 82 N. T. S. 846. An agent signing an acceptance held to Be a party to the con- tract and liable thereon, though his name did not appear In the body of the Instrument. General Elec. Co. v. Gill, 127 F. 241. Con- tract reciting it was between J. "W. D. "of a" certain company and signed by him Individu- ally was his personal contract. Railway Speed Recorder Co. v, Chicago Pneumatic Tool Co., 126 F. 223. An agent who makes an unauthorized contract, usin^- apt words to bind himself, Is liable as principal. Mc- Kown V. Gettys, 25 Ky. L. R. 2070, 80 S. "W. 169. ' 95. Pope V. Harter, 65 S. C. 54, 44 S. B. 407. "When one sued on contract defends on the ground that he was acting as agent, he must prove that he disclosed the name of the principal. "Without such proof, the fact that he was acting as agent and that the other party supposed he was so acting, is ins'ifflcient. Horan v. Hughes, 129 F. 248. To exempt an agent from liability on an In- strument executed by him within the scope of his agency, he must name his principal and show clearly, that the act, though done by the hand of the agent. Is the act of the principal. "Western "Wheeled Scraper Co. v. McMillen [Neb.] 99 N. "W. 512. 96. Held that alleged agent In fact made a contract in regard to redemption and sale of land as principal. Temple v. Pennell [Iowa] 99 N. W. 567. 97. Kimbrough v. Boswell, 119 Ga. 201, 45 S. B. 977. The agent of a nonresident owner of rented property, having authority to make repairs. Is liable for injuries caused by his negligence in making necessary re- nairs. Lough v. John Davis & Co. ["Wash.] 77 P. 732. 98. Kimbrough v. Boswell, 119 Ga. 201, 45 S. E. 977. 99. That an agent took up cattle tres- passing on his principal's property will not make him liable for injury to them while in custody of the principal. Id. 94 AGEATCY 8 3. 3 Cur. Law. against the latter,^ record of the deed not being notice to him.^ An unauthor- ized option given on realty by one of two agents will not bind his co-agent unless ratified by him.' The question of adverse possession cannot arise in favor of one who took possession as agent and never repudiated his agency.* Evidence^ proof and procedure.^ — In an action against the agent, his declara- tions against his own interest are admissible." In an action against an agent personally for goods sold him as agent, the burden is on him to show another exclusively liable.'' Third persons, in an action on a settlement against them by an agent, do not have the burden of showing that the latter exceeded his instruc- tions.* A complaint which, attempting to state a cause of action against an agent who had not disclosed his principal, alleges that the agent acted for a cer- tain named principal, is demurrable.* In an action on a contract made by an agent on behalf of the principal and as his surety, where the principal denied the agenf s authority and it was foimd that the agent signed as surety only, judgment could not be rendered against the agent on reversal of the judgment against the prin- cipal, since before final determination of the issue of his authority his liability could not be fixed." Where an agent made a contract for his principal and as the latter's surety, and it appeared, in an action thereon, that the agent had full control of the subject-matter, that both principal and agent testified that he did not have authority to make the contract was not an abandonment of his plea of suretyship so as to warrant a judgment against him because personally liable in exceeding his authority.^^ § 4. Mutval rights, duties and liabilities. A. In general; contract of agency; diligence and good faith}^ — An agent cannot delegate his duties to a subagent without express or implied authority.^' He may represent both par- ties to a transaction with consent of his principal.^* Where there is an express contract, the rights and liabilities of principaP" and agent^' are controlled by its 1, 2. Embry v. Galbreath, 110 Tenn. 297, 75 S. W. 1016. .3. Tibbs V. Zirkle CW. Va.] 46 S. B. 701. 4. Richardson v. Bruce [Tex. Civ. App.] 75 S. W. 835. 6. See 1 Curr. L. 61, n. 45-48. 6. Former testimony that a contract was unauthorized. Anderson v. Adams. 43 Or. 621, 74 P. 215. 7. Danforth v. Timmerman, 65 S. C. 269, 43 S. B. 678. 8. This on the ground that the agent can- not repudiate the contract because of his unauthorized acts in absence of fraud by the third person. Yetter v. Van Patten, 103 111. App. 59. 9. Pope V. Harter, 66 S. C. 54, 44 S. B. 407. 10. 11. Tabet v. Powell [Tex. Civ. App.l 78 S. "W. 997. 12. See 1 Curr. U. 61. 13. A nonresident agent to sell land ap- pointed by a nonresident owner has implied power to appoint a resident subagent. Bast- land V. Maney [Tex. Civ. App.] 81 S. W. 574. 14. Beed v. Hayward, 82 App. Div. 416, 81 N. T. S. 608. 15. Sales by the principal in the exclusive territory of his agent with the agent's written consent is not a breach of contract by the principal. Taylor Co. v. Bannerman [Wis.] 97 N. W. 918. An agent employed for an indefinite term may be discharged by the principal at any time. Harrington v. Brockman Commission Co. [Mo. App.] 81 S. W. 629. A principal having broken the contract of agency and rendered performance by the agent impossible cannot recover for agent's failure to perform. Arbaugh v. Shockney [Ind. App.] 71 N. E. 232. A sales agency not being exclusive, the principal was not liable for failing to supply the agent, being able to sell all the goods it manufac- tured. Dodge V. Reynolds [Mich.] 98 N. W. 737. Sale of goods by an agent to whom they were provided to sell, at less than the price agreed upon, is a breach of his contract war- ranting rescission by the principal. Id. 18. Contract of employment as making agent liable for one-third of losses on busi- ness done by him for principal. Raynor v. Buttlar, 87 N. T. S. 119. An obligation in power of attorney to recover land and clear title to same did not obligate attorney to pay taxes or other debts which might con- stitute liens on the land. Garner v. Boyle [Tex. Civ. App.] 77 S. W. 987. Where a Arm of two members contracted to manage and sell lots of a corporation at another town than that of their residence, the carrying on of the business there by one partner only was not a breach of the contract. Albany Land Co. v. Rickel [Ind.] 70 N. B. 158. Agency for sale of three kinds of road ma- chines in certain territory as giving exclusive agency for one kind only and to begin on sale of one machine of that kind. Indiana Hoad Mach. Co. v. Lebanon Carriage & Im- plement Co., 25 Ky. L. R. 1763, 78 S. W. 861. Evidence sufficient to show extension oi 3 Cur. Law. AGENCY § 4A. 95 terms and the construction placed thereon. Construction of an unambiguous written contract is for the court. ^' The agent must use reasonable care and dili- gence in the business of his principal/' act in good faith,^° and keep his prin-' cipal informed as to facts regarding the subject of his agency/" and is liable for damages resulting from default in either respect." An agent cannot make a time of agency. Johnson Bros. v. Wright [Iowa] 99 N. W. 103. 17. Russell & Co. v. McSwegan, 84 N. T. S. 614. But failure to instruct as to the written contract is not reversible error when there were full instructions on the issues generally and counsel requested none on the contract. MoCormick Harvesting Maoh. Co. V. Carpenter [Neb.] 95 N. W. 617. 18. Taylor Co. v. Bannerman [Wis.] 97 N. W. 918. An agent under power of at- torney to manage a business of selling? fer- tilizers showed reasonable care and pru- dence in disposing of them in bulk at good profit, where prices had advanced, without waiting for country trade which would have been involved with a certain amount of loss, and in view of the fact that a certain customer had the right to cease using the goods. Willson v. Imperial Fertilizer Co. [S. C] 46 S. E. 279. 10. The California statute imposes upon an agent the same duty of good faith toward his principal as is imposed on a trustee to- ward a beneficiary [Civ. Code, §§ 2322. 222S- 2239]. Calmon v. Sarraille, 142 Cal. 638, 76 P. 486. The trustee of an unincorporated company, authorized to sell its shares on which payments had been defaulted by mem- bers, could properly buy the share of a mem- ber, though requested by the latter to sell as his agent and need not account for a later increase in value. Swan v. Davenport, 119 Iowa, 46, 93 N. W. 65. An agent in charge of land whose principal took its management from his hands and allowed it to be sold under a tax sale of which the agent had given him notice may properly purchase the land under the tax deed after his discharge. Eemis v. Plato, 119 Iowa, 127, 93 N. W. 83. Where authority was given an agent to sell Ice at a certain price and he, after receiving an offer of a larger price, bought it himself at a lower price without informing the principal, the latter was net bound. Rogers v. French [Iowa] 96 N. W. 767. Where. a selling agent sent an offer to his principal purporting to come from third persons, their acceptance did not apply to a purchase by the agent and no contract was effected binding the principal as to his agent. Rogers v. French [Iowa] 96 N. W. 767. One receiving assignment of an outstanding certificate of purchase while acting as agent for the mortgagor under a written agreement with him to buy it can- not set up that the mortgagor's title was destroyed by foreclosure and claim the prop- erty in his own name. Mason v. Hartgrove, 103 111. App. 163. Evidence as to services of an agent in consummating a contract secured by him for his principal is admissible on the question of good faith and diligence. Mis- representation was charged against the agent whereby he secured a larger commis- sion than the principal would have given had he known the facts. Hale Elevator Co. V. Hale, 201 111. 131, 66 N. B. 249. Wheth- er a principal has been deceived by his agent as to a contract to be made by the agent, and has entered into It without fully under- standing all material facts, is a question for the jury. Id. An agent sued by his principal for recovery of land alleged to have been conveyed through fraud of the agent cannot defend on the ground that the prin- cipal neglected to read the deed before signing (Calmon v. Sarraille, 142 Cal. 638, 76 P. 486), or on the ground that the prin- cipal willingly parted with the land, though they supposed it was part consideration for another conveyance to them (Id.). 20. And his failure to do so amounts in law to fraud. Holmes v. Cathcart, 88 Minn. 213, 92 N. W. 956. Where an agent for the sale of property learns that more advantage- ous terms can be obtained, which fact is unknown to the principal, he is legally bound to inform the latter before making the sale. Snell v. Goodlander, 90 Minn. 533, 97 N. W. 421. An agent to sell realty to any purchaser he may secure is not guilty of fraud in failing to disclose the identity of a purchaser where the vendor neither asked nor sought to learn his identity. Rank v. Garvey [Neb.] 92 N. W. 1025. An agent in any capacity cannot withhold knowledge gained in the course of his employment from his principal and use it to obtain in- creased compensation from the latter. Dorr v. Camden [W. Va.] 46 S. E. 1014. ai. An agent of limited authority must make good losses resulting from violation, excess or neglect of instructions. Northern Assur. Co. V. Borgelt [Neb.] 93 N. W. 226. Surrender of goods in transit to the con- signor without authority of his principal renders him liable to his principal for any loss sustained. Williams & Co. v. Dotterer [lia.] 35 So. 921. A collector accepting a draft in payment when he might have had money is liable on dishonor of the draft, his authority extending only to payment in money. Gowling v. American Exp. Co., 102 Mo. App. 366, 76 S, W. 712. An express com- pany collecting moneys cannot limit its liability for failure to take money instead of a draft by stipulations in a receipt given for the draft. Id. An agent directed to loan money on trust deed security is liable to his principal for damages for including in the trust deed a note owed by the bor- rower to himself without knowledge or consent of the principal. Marshall v. Fer- guson, 101 Mo. App. 653, 74 S. W. 393. An agent who induces his principal, by con- cealment, to accept a smaller sum for prop- erty sold by him than he received, is liable for the difference. Instruction. Barbar v. Martin [Neb.] 93 N. W. 722. An agent re- quired by his contract to insure his princi- pal's property In hla possession was liable for its loss from failure to insure while the contract was still in force, though negotia- tions were pending for a new contract. Prlchard v. Deering Harvester Co., 117 Wis. 97, 93 N. W. 827. Where a principal relied on his agent's representations as to the least 96 AGENCY § 4A. 3 Cur. Law. profit for himself in the business of his agency."^ If faulty or ambiguous ia- structions are followed in good faith and diligently, he is not liable for damages from erroneous interpretation.^' If care has been exercised in selection, an agent authorized to employ a subagent is not liable for the latter's negligence.^* A sales agent not prohibited from selling on credit is not liable to arrest and bail for bad sales where they are not affected by his misappropriation or embezzle- ment.'"' A bond given by an insurance agent for faithful performance of duties is a contract of indemnity as to a loss arising from his failure to obey instruc- tions in cancelling a policy.'" An agent owing money to his principal is not a fiduciary debtor within the meaning of the bankruptcy act.'" A principal direct- ing his agent to address messages to him in care of a certain firm may neverthe- less, as against the agent, authorize another to receive and forward messages." (§ 4) B. Accounting^ settlement and reimbursement.^^ — All profits and ben- efits resulting from acts of an agent whether in accordance with, or in violation of, his authority belong to the principal. "^ Eevocation of his authority before the application of funds placed in his hands for a certain purpose, renders him lia- ble to the principal for, such funds.'^ He must be able to account regularly whenever a reasonable request is made,'' and is liable for interest on funds he has mingled with his own and used.'* That contracts of an agent are void will not excuse his liability for misappropriation of funds.'* An agent who induces his principal to believe that funds in his hands are profitably invested, thereby pre- venting their withdrawal, cannot urge on accounting that they were in bank all the time and that he was not required to invest them.'° The proceeds of sales made by an agent are trust funds held for the principal, except as to commis- sions;'* and where the agent mixes his principal's goods with his own, title to the whole vests in the principal until his goods are returned or accounted for."" An agent charged with the purchase price of personal property wrongfully withheld from his principal cannot be charged for the use of the property." If he wrong- sum for which land could be bought and paid him that sum, he could recover the differ- ence between such amount and a less sum which the agent paid for the land. Hlndlo V. Holcomb tWash.] 75 P. 873. 22. Farmers' Warehouse Ass'n v. Mont- gomery [Minn.] 99 N. W. 776. 23. Palksen v. Falls City State Bank [Neb.] 98 N. W. 425. 24. Morris v. Warlick, 118 Ga. 421, 45 S. B. 407. 25. Southern Grocery Co. v. Davis, 132 N. C. 96, 43 S. E. 591. 26. Northern Assur. Co. v. Borgett [Neb.] 93 N. "W. 226. 27. Hence the agent's discharge in bank- ruptcy releases his debt to the principal. Boyd V. Agricultural Ins. Co. [Colo. App.] 76 P. 986. 28. Western Union Tel. Co. v. Barefoot [Tex.] 76 S. W. 914. 20. See 1 Curr. L. 63, with annotation "Accounting In illegal transactions." 30. Snell V. Goodlander, 90 Minn. 533, 97 N. W. 421. Secret cash payment to one act- ing for himself and others In sale of stock could be recovered in separate, but not in joint actions, such stock being owned in severalty. Graham v. Cummings, 208 Pa. 516, 57 A. 943. An agent loaning principal's money collected 2 per cent. Interest for himself and took notes at 8 per cent. Held, agent liable to principal for Interest re- tained. Whitehead v. Lynn [Colo. App.] 76 P. 1119. 31. Flaherty v. O'Connor, 24 H. I. 587, 64 A. 376. 32. Dodge V. Hatchett, 118 Ga. 883, 45 S. E. 667. He must show his disposition of money he admits having received lor his principal. ILaporte v. Laporte, 109 La. 958, 34 So. 38. Evidence sufficient to show^ one under power of attorney to manage an In- terest in an estate to be liable to account for certain property claimed to be part of the estate. Rose v. Durant, 80 App. Div. 623, 83 N. T. S. 603. 33. An agent In full control of funds of his principal, a nonresident, w^ho confuses them with funds of his own In bank anri uses them for his own purposes, is charge- able with interest, though the amount in" bank at all times Is sufHcient to meet an accounting. Beugnot v. Tremoulct, 111 La. 1, 35 So. 362. 34. Invalidity because In regard to a busi- ness conducted in violation of the privilege tax. Decell v. Hazlehurst Oil Mill & F. Co. [Miss.] 35 So. 761. 35. Beugnot v. Tremoulet, 111 La. 1, 35 So. 362. 36. 37. Lance v. Butler [N. C] 47 S. E. 488. 38, 39, 40. Jackson V. Pleasanton, 101 Va. 282, 43 S. E. 573. 3 Cur. Law. AGENCY § 4C. 97 fully retains possession of property purchased with the principal's money, he may be charged with rent less taxes paid, and the principal may be charged with in- terest on the money.'" If he refuses possession to his principal, though the lat- ter offers to reimburse him for advances, and takes title in his own name, he is liable for the fair rental value.*" He cannot be charged for rent during such possession, on delivery to the principal.*^ An indorsement of checks by the prin- cipal to enable his agent to collect them when they were in danger of becoming worthless, though done with knowledge of the agent's claim for excessive com- missions, is not a voluntary payment thereof so that the principal could not recover an excessive amount retained by the agent.** An agent employed to procure title to land for his principal who gets title in himself and takes pos- session is entitled to have his expenditures repaid, and may have a lien on the premises for their amount when judgment for possession is rendered against him.*' (§4) C. Compensation of agent.** — That an agent represented the other par- ty with knowledge of the principal will not prevent his recovery of commissions.*" The right to compensation and the amount thereof is usually determinable from tiie contract between the parties.*' Where the agency is modified by the prin- 41. The amount of the rent was much smaller than the iralue of the growing crops claimed. Jackson v. Pleasanton, 101 Va. 282, 43 S. B. 573. 42. Reed v. Hayward, 82 App. Div. 416, 81 N. T. S. 608. 43. Johnston v. Gerry [Wash.] 76 P. 258. 44. See 1 Curr. L. 64. 45. Reed v. Hayward, 82 App. Dlv. 416, 81 N. T. S. 608. "Where the defense in an action for realty commissions was dual agency, defendant must prove that fact and that it was not known to both parties. Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674. 46. Under a contract for commissions on orders procured by him, an agent cannot recover for services in Installing goods sold by another, but must show a contract for a certain sum or a promise to pay and rea- sonable value of the services. Taylor v. Pullman Automatic Ventilating Co., 87 N. T. S. 404. That the services of an agent have not been profitable to his principal will not affect the amount of his compensa- tion under his contract. Shute v. McVitie [Tex. Civ. App.] 72 S. W. 433. A contract describing a tract of land and stipulating that when It was purchased defendant was to pay plaintiff a certain amount is evi- dence of an agreement to pay commission to plaintiff In that amount. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. Particular cimtracts constmed an to com- pensation: Held, as to contract between in- surance company and its agent, tliat the company could offset against claims for com- missions only debts for advances during the subsistence of the relation of principal and agent. Campbell v. Equitable Life Assur. Soc, 130 F. 786. Held that agent was not entitled to compensation on business done partly by principal's efforts and partly by agent, but not consummated until after ex- piration of time limit. Magdun v. Bruck, 183 Mass. 370, 67 N. B. 319. Contract between Insurance company and agent construed as providing compensation from commissions, and that certain weekly advancements were 3 Curr. Law — 7 to constitute a part of such compensation and not additional pay. Arbaugh v. Shock- ney [Ind. App.] 71 N. B. 232. Agent held not entitled to commissions on sale made at principal office, under the terms of the contract of agency. Gaar, Scott & Co. v. Brundage, 89 Minn, 412, 94 N. W. 1091. An agent's contract for commissions only on orders accepted and shipped by the principal is valid unless fraud or bad faith of the principal is shown. Wolfson v. Allen Bros. Co., 120 Iowa, 455, 34 N. W. 910. Compen- sation being contingent could not be recov- ered, the contingency not having occurred. Smith v. Philip B. Hunt Co., 90 Minn. 255, 95 N. W. 907. An agreement by an owner to pay commission for sale of realty, to be re- tained from the price paid, or if payment was not made dirsctly to the agent, to be received directly from the owner, requires the sale to be complete before the right to commission accrues. Ormsby v. Graham [Iowa] 98 N. W. 724. Contract could not be so construed that nothing should become due until the expiration of a year. Balr v. Hilbert, 84 App. Div. 621, 82 N. T. S. 1010. Where an agent's advances are "to be deducted from commissions" at the end of his em- ployment, there Is no personal liability on his part to repay advances in excess of com- missions earned. Sehlesinger v. Burland, 42 Misc. 206, 85 N. T. S. 350. An agreement to sell consigned goods and account at Invoice prices entitles the agent to the excess over proceeds at invoice prices as commissions. Southern Grocery Co. v. Davis, 132 N. C. 96, 43 S. E. 591. Where notes given an agent for commissions on a sale of machinery were to be paid when the purchase notes of the sale were paid and the latter notes were transferred to another who surrendered them and took back the machinery, the principal was liable to the agent for commissions if he received the full amount on sale of the notes and was no longer liable thereon; otherwise if he still remained liable on such notes. Blassingame v. Keating Implement & Maoh. Co. [Tex. Civ. App.] 74 S. W. 344. The agent could not recover on the notes 98 AGENCY 8 4C. 3 Cut. Law. eipal by another contract directly referring to the first, the agent is entitled to commissions under conditions of the later a^eement.*' Performance by the agent is a condition precedent to the right to compensation,** but modification of a contract, made by the agent,*' or groundless refusal of the principaP" or third party" to carry it out, will not defeat the agent's right to commissions. Viola- tion of law,"" undisclosed personal interest in the transaction,"' and fraud of the agent,"* destroys his right to commissions, and entitles the principal to recover past compensation paid."" But fraud may not prevent recovery on the contract." The receipt of benefits of the agent's services by the principal renders him lia- ble to the agent for compensation,"'' though he himself closed the transaction,"' held by him from the subsequent holder of the purchase money notes, in the absence of fraud or special circumstances. Id. Sales agency, not exclujsiTc: Contract be- tween realty broker and owner construed as not giving exclusive agency for sale of land for a certain period entitling him to commission where the land was sold in the meantime by the owner. White v. Benton, 121 Iowa, 354, 96 N. W. 876. Under an agency to sell machinery for commission of all amounts over the net list price at the factors', an agent Is not entitled to com- mission for a sale at a price Ijeneath the net list price, made by the principal in the territory, the agency not being exclusive. Indiana Road Maoh. Co. v. Lebanon Carriage & Implement Co., 25 Ky. L. R. 1763, 78 S. W. 861. 47. Agency for sale of patent rights. Leo- puld v. Weeks, 96 Md. 280; 63 A. 937. 48. One employed to obtain a loan Is en- titled to compensation only in case he pro- cures the loan. Demarest v. Spiral Riveted Tube Co. [N. J. Law] 58 A. 161. Where a sale of realty by an agent was not com- pleted he could claim no commission unless the failure was the fault of the principal. Owen v. Kuhn, Loab & Co. [Tex. Civ. App.] 72 S. W. 432. Compensation for services in buying land will not be forfeited because the agent falsely represented the price paid and received a note for that amount from his principal where he Immediately gave the latter possession of the land; but if he re- fuses to give possession, though the prin- cipal offered to reimburse him for advances, he Is not entitled to compensation. Jackson V. Pleasanton, 101 Va. 282, 43 S. B. 573. 40. Modification by the principal of a contract made by an agent within his au- thority will not destroy the agent's right to commission. Contract for sale of land by broker. Huntemer v. Arent [S. D.] 93 N. W. 6B3. Where a broker secured contract for exchange of his principal's property, agreeing to waive his commission if the contract was not consummated, on modifi- cation of the original contract by the par- ties and consummation of the modified con- tract, he was entitled to his commissions. Cody V. Dempsey. 86 App. Div. 835, 83 N. T. S. 899. 50. Johnson Bros. v. Wright llowa] 99 N. W. 103. 51. A broker, employed to secure an ex- change of realty, who secured a contract with a third person for exchange is entitled to commissions where his principal accepted, but the third person refused to complete the contract. Charles v. Cook, 88 App. Div. 81, 84 N. T. S. 867. 52. No recovery. Adler v. Sohaumbergor, 84 N. T. S. 235. Contrai A law making it a misdemeanor to offer for sale any realty without written authority will not prevent recovery of com missions for a sale completed without writ- ten authority tPen. Code, § 640d, Laws 1901, p. 312, c. 128]. Cody v. Dempsey, 86 App. Div. 335, 83 N. T. S. 899. 53. A servant cannot recover commis- sions for Inducing his employer to enter a contract with another where the personal interest of the servant in the contract was not disclosed to the employer. Labinsks v. Hoist, 84 N. Y. S. 991. 64. Sufficiency of misrepresentations by real estate broker as to land to deprive the latter of commissions on rejection of the land by the prospective purchaser. Scottish- American Mortgage Co. v. Davis [Tex. Civ. App.] 72 S. W. 217. A claim for a contingent fee by an attorney must be established by a showing of good faith and full information to his client before his consent. Dorr v. Camden [W. Va.] 46 S. E. 1014. 55. Under a contract whereby the com- pensation of an agent for all serrvices past and future was to be half the profits of the business, fraud of the agent in past trans- actions will entitle the principal to recover remuneration paid for such services. Hindle V. Holcomb [Wash.] 75 P. 873. 60. An agent who has secured a larger commission for securing a contract through misrepresentation to tiie principal as to the amount of the contract may nevertheless recover the commission agreed upon under the actual amount of the contract. Hale Elevator Co. v. Hale. 201 111. 131, 66 N. B. 249. 57. Evidence sufficient to carry to jury the question whether a broker was the pro- curing cause of a sale of personalty In an action for commissions. Morton v. Case Threshing Mach. Co., 99 Mo. App. 630, 74 S. W. 434. Rights of a sales agent for a cor- poration under a contract for commissions are not destroyed by appointment of receiv- ers for the corporation where they affirmed the contract and received benefits therefrom though at time of their appointment the contract was executory merely. Leopuld v. Weeks, 98 Md. 280, 53 A. 937. 58. A broker for sale of personalty Is en- titled to commissions where he secured a purchaser though the sale was actually made by the owner. Morton v. Case Threshing Mach. Co., 99 Mo. App. 630, 74 S. W. 434. 3 Cur. Law. AGENCY § 4D. 9S) unless the agency had terminated before iij^e rendition of services.'" Where an agent is discharged for good cause before expiration of his term, he is not en- titled to full commission,"" but may recover remaining compensation less dam- ages from breach of his contract."^ Where the agent's compensation depends on collection of notes by the principal, the latter owes the former the duty of reason- able diligence in making the collection.'^ The principal is liable for the compen- sation of a subagent, when the agent had authority to appoint him,*'- or the prin- cipal accepts the results of work of the subagent employed by his agent with knowl- edge of the commission claimed.** The subagent, claiming compensation, must show the agent's authority to appoint him.'" A credit rating of customers, to bind a principal to accept orders secured by his agent, must have been known to the principal." An instrument executed by a corporation giving its agent a ten per cent, commission on sales and directing payment thereof by a banker was an equitable assignment of so much of the purchase price and gave the agent a lien on funds of the sales, enforceable in equity." (§4) D. RemedieSj pleading, procedure, and proof."* — ^A bill in equity for an accounting will not lie where there is an adequate remedy at law,'° but if the agenf s duties are such, under the contract of agency, that a confidential rela- tion exists between principal and agent, a suit in equity for an accounting is proper." That an agent has rendered an account will not prevent maintenance of a suit for an accounting on the ground that it would be vexatious.'^ Where an agent was paid a certain sum in excess of the real price of land bought for his principal, because of his fraud in stating the price, the principal may recover the 59. Subsequent sale of a ranch to a pur- chaser secured by an agent for the sale after termination of his authority is not a ratification of his acts so as to entitle hira to commissions. George B. Loring Co. v. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. In an action for commissions for a sale of land evidence of a conversation be- tween the agent and the purchaser after ter- mination of the agency is not admissible. Id. 60, 61. Shute V. McVitie [Tex. Civ. App.] 72 S. W. 433. C2. Westlnghouse v. Tllden [Neb.] 96 N. W. li. 63. Eastland v. Maney [Tex. Civ. App.] 81 S. W. 674. A special agent employing an- other to assist in the business of his prin- cipal with the latter's knowledge and ap- proval binds the principal to pay the sub- agent's agreed fee. Hornbeck v. Gilmer, 110 La. 500, 34 So. 651. If the principal knev/ the terms for commission under -which his special agent employed another to aid him, payment to the agent was not payment to the subagent. Id. 64. Hornbeck v. Gilmer, 110 La. 500, 84 So. 651. 65. Instruction in action to recover com- missions for securing a tenant for property under contract with one assuming to act for the owner. Burger v. Allen, 24 Ky. L. R. 1418, 71 S. W. 641. «e. Private Information obtained by the agent as to responsibility of customers and of which the principal had no notice was not evidence of the latter's bad faith in re- jecting orders. Wolfson v. Allen Bros. Co., 120 Iowa. 465. 94 N. W. 910. 67. Leopuld v. Weeks, 96 Md. 280, 53 A. 937. 68. See 1 Curr. L. 65, 66. 69. Bill sought no relief which could not be obtained at law. American Spirits Mfg. Co. V. Easton, 120 P. 440. 70. Agent to invest principal's money In land sold for taxes. Rogers v. Wheeler, 89 App. Div. 435, 85 N. T. S. 981. Relation declared fiduciary on former appeal. Ac- counting proper. Jordan v. Underbill, 91 App. Div. 124, 86 N. Y. S. 620. Pendency of an action by an agent after termination of the agency to determine his compensation and declare a lien therefor on property of the principal in his hands. Is not a bar to a later suit by the principal for an account- ing. Id. Agent had control and manage- ment of realty. Bill In equity proper and stated cause of action. Coffin v. Craig, 89 Minn. 226, 94 N. W. 680. A bill in equity against an agent for misappropriation of funds, for an accounting, is not demurrable on the ground that there is an adequate remedy at law. Decell v. Hazlehurst Oil Mill & Fertilizer Co. [Miss.] 35 So. 761. In an action against an agent for wrongfully taking a conveyance of his principal's lanii in his own name, where the agent by answer conceded the principal's right to the land and asked merely an accounting, judgment for a specific sum claimed against the prin- cipal, and a lien on the land, it was proper to direct a conveyance of the land to the principal and retain the accounting for fu- ture adjudication. Hoskins v. Morton, 25 Ky. L. R. 1089, 77 S. W. 196. 71. The facts in regard to such account may be shown In the action. Jordan T. Un- derhlll, 91 App. Div. 124, 86 N. T. S. 620. 100 AGENCY § 4D. 3 Cur. Law. excess without first securing a rescission of the settlement made with him.^" Default of a general agent is no defense in an action against a subagent to re- cover money embezzled by the latter.'' Where an agent to pnr-chase property sold his own property to the principal for a fair sum, with no other fraud than concealing his ownership, the principal's only remedy is to rescind the contract.''* Among other available remedies, as between principal and agent, illustrated in the notes, is an action on account,"* for money had and received,''' for conver- sion of property of the principal,'' for breach of the contract of agency," or on the agent's bond." Where an agent, acting in good faith, under instructions from his principal, committed a tort, he may recover from the principal the amount of a judgment recovered against him for the tort and his expenses in the suit.'" Pleading}^ — ^Where several persons have succeeded to and performed duties of one originally appointed agent, a suit for an accounting against those finally acting as agents presents a single cause of action;'* the entire course of the agency may be considered a single "transaction" within the meaning of the statute permitting joinder of causes of action.'* Where, in an action to recover from an agent excessive commissions, the declaration and special coimts set out the eon- tracts and their modifications, on which such commissions were obtained, common counts were unnecessary to sustain a verdict for the excess demanded.'* 72. HIndle v. Holcomb [Wash.] 75 P. 873. Where an agent was guilty of fraud In buy- ing land for his principal, having made a contract for its purchase for the purpose of selling It to his principal, it Is immaterial whether such contract was made before or after the principal agreed to purchase, in an action by the latter to recover excess of price paid because of the fraud. Id. 73. Insurance agents. Foster v. Franklin Ins. Co. [Tex. Civ. App.] 72 S. W. 91. 74. Whitehead v. Lynn [Colo. App.] 76 P. 1119. He cannot retain the property and also recover the difference between the price paid by him and that paid by the agent. Id. 75. Evidence insufficient to support two items of agent's counterclaim in action by principal on account. New Orleans Coffee Co. V. Hutchinson [Neb.] 95 N. W. 1017. A sales agent, whose commission Is due when sale notes are paid or at option of the prin- cipal in sale notes, may sue for his com- mission before collection of the notes where the principal has failed to enforce collec- tion for an unreasonable length of time. Westinghouse Co. v. Tilden [Neb.] 96 N. W. 74. Evidence as to the motive in employing a traveling salesman is Inadmissible in his action for commissions. Admissibility of other evidence considered. Pepper v. Pep- per & Co., 24 Ky. L. K. 2403, 74 S. W. 739. 76. Money of a principal misappropriated by an agent may be recovered In an action for money had and received. Limitations will not run against the action until the principal learns of the tort. Guernsey v. Davis, 67 Kan. 378, 73 P. 101. 77. Lahr v. Kraemer [Minn.] 97 N. W. 418. An agent is not liable to the prin- cipal in conversion for the sale of property authorized by the principal. Twogood v. Allee [Iowa] 99 N. W. 288. 78. Taylor Co. v. Bannerman [Wis.] 97 N. W. 918. The measure of damages for breach of a contract of agency giving an agent the exclusive right to sell In a certain territory is the profits the agent would have made by the sale. The agent must show adtual damage. Id. Nominal damages only can be recovered by an agent for revoca- tion of his authority where he does not show ability to perform. Agency for sale of realty. Milllgan v. Owen [Iowa] 98. N. W. 792. Where the agent's authority has been revoked, the question of whether he after- ward performed is immaterial in an action for damages for the revocation, unless on the issue of damages. Id. 79. In an action on an agent's bond^ the fact that he covenanted for good faith only if he acted as agent is immaterial where the business of the agency was actually transacted in his name. Norwich Union Fire Ins. Ass'n v. Budhalter, 102 Mo. App. 332, 76 S. W. 484. An action for breach of an indemnity bond given by an agent to his principal will not bar an action for a subse- quent breach. Northern Assur. Co. v. Bor- gelt [Neb.] 93 N. W. 226. A cause of action by an insurance company for breach of an agent's bond by violation of instructions to cancel a policy is not barred until five years after the loss ensues to the company. Id. 80. The rule that one joint tort feasor cannot have redress against another does not apply in such case. Hoggan v. Cahoon, 26 Utah, 444, 73 P. 512. 81. Complaint sufficient to state a cause of action against agent for money had and received. Reed v. Hayward, 82 App. Dlv. 416, 81 N. T. S. 608. To recover from a salesman an amount alleged to have been advanced in excess of commissions, his contract al- lowing commissions and traveling expenses, the complaint must show the amounts ad- vanced for compensation and for traveling expenses. Tausig v. Drucker, 88 N. T. S. 391. See 1 Curr. L. 65. 83. Even though such successors acted under individual agreements with the prin- cipal. Rogers V. Wheeler, 89 App. Div. 435, 85 N. T. S. 981. 83. Code Civ. Proc. § 484, subd. 9. Rogers 3 Cur. Law. AGENCY IMPLIED FEOM RELATION 101 Evidence}^ — The rule excluding evidence of transactions with a decedent by a party to an action against the estate does not apply to an action by a prin- cipal against the estate of his agent to set aside a deed procured by fraud.'" Evi- dence of usual and customary commissions may be given to prove reasonable value for services of an agent in selling land.*' In an action for an accounting against an agent, the burden is on the agent to show that he has paid to or for his principal all moneys of the principal coming into his hands." In an action by an agent for commissions on sales, the burden is on him to show compliance with his contract and alleged bad faith on the part of the principal.'* To sup- port an allegation of conversion by an agent, the plaintiff must show generally the amount of property received by the agent and failure to return or account for it on demand ;°° such a showing shifts the burden upon the agent to make a specific accounting.'^ V. Wheeler, S9 App. Dlv. 435, 85 N. T. S. 981 84. Hale Elevator Co. v. Hale, 201 111. 131, 66 N. £}. 249. 86. Evidence of the value of land bought by an agent is not admissible In an action by his principal to recover the excess of the price fraudulently represented above that actually paid by the agent. Hlndle v. Holcomb [Wash.] 75 P. 873. Evidence show- ing what a purchaser would have paid for part of stock In hands of an agent for sale cannot be given in an action by the prin- cipal against the agent for misrepresenta- tion as to the amount he received, where it appears that he had authority only to sell all the stock. Barbar v. Martin [Neb.] 93 N. W. 722. In an action by an alleged agent for breach of a contract for sale of the prin- cipal's goods, evidence that the principal knew that plaintiff claimed to be his gener- al agent is admissible to show why the principal published a notice that he had no agents after plaintiff had proved such notice. Dodge v. Reynolds [Mich.] 98 N. W. 737. In an action by a principal against an agent for breach of duty, an allegation of specific direction to an agent is established by showing that the agent's duty in all cases covered the transaction in suit. Instruction based on such showing proper. Guernsey V. Davis, 67 Kan. 378, 73 P. 101. See 1 Curr. L. 66. 86. Calmon v. Sarraille, 142 Cal. 638, 76 P. 486. 87. Hurt V. Jones [Mo. App.] 79 S. W. 486. 88. Farmers' Warehouse Ass'n v. Mont- gomery [Minn.] 99 N. W. 776. 89. Admissibility of certain evidence con- sidered on issue of bad faith. Wolfson v. Allen Bros. Co., 120 Iowa, 455, 94 N. W. 910. 90. 91. Lahr v. Kraemer [Minn.] 97 N. W. 418. Where an agent has sold property de- livered to him, the burden is on him in a suit for accounting to show that he has accounted, or to excuse failure to account. Dodge V. Hatchett, 118 Ga. 883, 45 S. B. 667. AGENCY IN tHB CASE OF PERSONS OCCUPYING PARTICULAR RELATIONS. (Spbciai, Abticlb bt Wm. L. Clakk and Hbnbt H. Skylbs. Copteightbd 1904, BI KEEITil-DAVIDSON CO.) ! 1. In General (102). § 2. Implication and Preaamptlon of Asency From Relatlonslilp of the Partlea (102). § 3. Agency of Parent for Cfclld (102). § 4. Duty to Support Parent — Uablllty (or NecessarleB (103). § 5. Agency of Child for Parent (103). A. In General (103). B. Contracts for Necessaries (104). 5 6. Agency of Servant for Master (106). ! 7. Agency of Husband for "Vflte (107). A. In General (107). B. Implication or Presumption of Hus- band's Agency for Wife (108). C. Estoppel of Wife to Deny Authority of Husband (110). D. Ratification (110). § 8. Agency of Wife for Hnsband— In General (110). § 9. Agency of Wife Ordinarily Require! Appointment by or Assent of Husband (111). ; 10. Express Authority of Wife and Au- thority Implied From Clrcnmstancfes (112). S 11. Harried Woman Doing Business In Her Own Name (113). i 12. Implied Agency of Wife in Hatters Pertaining to the Household (113). S 13. W^ife's Implied Authority to Procure Necessaries on Husband's Failure to Supply Them (115). A. In General. B. Effect of Separation of Husband and Wife, Abandonment, Desertion, etc. (117). 1. Separation by Agreement — Al- lowance (117). 2. Husband's Desertion of Wife (118). 8. Husband's Insanity (118). 4. Wife's Abandonment of Husband (118). 6. Wife's Adultery (120). C. Necessity for a Valid Marriage (120). D. Effect of Annulment of Marriage or Divorce (120). B. Pendency of Proceedings for a. Di- vorce (121). F. What Are "Necessaries" for Which the Husband is Liable (121). Wife's Funeral Expenses (124). 0. Presumption and Burden of Proof as to Necessaries (124). H. Province of Court and Jury (125). 1. Agency to Use or Dispose of Hus- band's Property for Maintenance (125). S 14. Wife's Implied Authority to Procure Necessaries for Children (126). 102 AGENCY IMPLIED FEOM RELATION" § 1. 3 Cur. Law. 5 15. Contracts by 'Wfle on Her Own Credit (1S6). 3 IC. Husband's Ratification of Wite'a Acts (127). § 17. Agency of Woman Held Out or Pass- ing: as Wife (127). § IS. Agency of Partner (128). § 19. UnincoTiiorated Clubs and Socletle« as Principals (129). § 20. Agency ns Betvreen Tenants In Com- mon and Co-Owners (131)« § 21. ABeney Jiietween Joint Obligors — Joint Obligees (131). § 22. Imitlled Agency of Blaster of Ship (134). § 23. § 24. (130). Agency of Vendor for Vendee (136). Agency of Priests, Ministers, Btc. § 1. In general. — Questions as to the existence of the relation of principal and agent frequently arise in the case of persons occupying particular relations, as in the case of husband and wife, parent and child, partners, tenants in common, etc., and the relationship is sometimes, although not neeessarilj', a circumstance which gives rise to special rules. In this article we shall consider the relation of principal and agent in such cases and ascertain when it exists, and more particularly, the circumstances under which it may or will be implied, either as a matter of fact or as a matter of law. § 2. Implication and presumption of agency from relationsJiip of the parties. — As we shall presently see, agency on the part of a wife to bind her husband is under some circumstances, and to a certain extent, implied as a matter of law, and irrespective of the husband's consent; and under some circumstances it is implied or presumed as a matter of fact, in the absence of evidence to the con- trary. An agency is also implied as a matter of law, under certain circumstances, in the case of parent and child. With these exceptions, however, the general rule is that agency will not be implied or presumed, either as a matter of law or fact, from the mere fact that the parties are related, however nearly.*^ The re- lationship of the parties, however, may be shown and considered as a circumstance, in determining whether there was agency in fact in a particular ease, and may be sufficient with other circumstances to establish an agency, where the other circumstances would not be sufficient in the absence of such relationship."' Thus where one insured had been injured and rendered utterly helpless in a distant country, with no friend or relative near him except his brother, and it being im- portant to close up the business relating to the insurance before he was taken home, the agency of the brother to act for him in the matter might be implied from the circumstances."* § 3. Agency of parent for child. — The mere relationship of parent and child does not of itself make the parent the agent of the child to manage or dispose of his property or for any other purpose, whether the child is a minor or of full age.'" But a son or daughter, being sui juris, may expressly appoint his or her father or mother as agent, or such agency may be implied from the conduct of the par- ties."" Or there may be an estoppel by holding out or other conduct, as in the case of other persons.'^ Thus if a son sends one who desires to purchase lands of him to his father to make a bargain, with a statement that whatever bar- gain they should make he would agree to, the person thus sent would be au- thorized to regard the father as the son's agent for the purpose of making a bargain, and the statements of the father while negotiating the sale would bind the son.'* 92. Johnson v. Stone, 40 N. H. 197, 77 Am. Dec. 706; MoNamara v. McNamara, 62 Ga, 200; Walsh v. Curley, 42 N. T. St. Rep. 470; L,e Count v. Greenley, 6 N. T. St. Rep. 91, and other oases more specifloally cited In the notes following. And see Gibson v. Snow Hardware Co., 94 Ala. 346. »3. Sheanoii v. Pacific Mut. Life Ins. Co., 83 Wis. 607; Ford v. Linehan, 146 Mass. 2SS, And see Abeel v. Seymour, 6 Hun tN. T.] 656; Shimmel v. Brie R. Co., 5 Daly [N. T.] 396; Foster v. Flelshans, 69 Mieh. 543. 04. Sheanon v. Paolflc Mut. Life Ins. Co., 83 Wis. 507. 05. Le Count v. Greenley, 6 N. T. St. Rep. 91. The fact that one as father or friend merely gii-es information or advice in refer- ence to a land trade does not make him an asent. McNamara v. McNamara, 62 Ga. 200. 96. Helps V. Clayton, 17 C. B. [N. S.] 553. 3 Cur. Law. AGENCY IMPLIED PEOM RELATION § 5. 103 Of course, where a child is a minor, the general rules as to agency for in- fants apply to an appointment of his parent as his agent. § 4. Duty to support parent. Liability for necessaries. — At common law, a child is under no legal obligation to support his parents, although they may be des- titute and helpless, and in the absence of a statute, therefore, a child cannot be made liable for necessaries furnished his parents without his consent.*' In some juris- dictions, a legal duty to support their helpless and destitute parents is imposed upon children by statute, and if they fail to perform such duty, they can be held liable for necessaries furnished, imless some special mode of enforcing the duty is prescribed by the statute."^ Thus if a statute imposes the duty upon "the children of any poor person, who is unable to maintain himself by work, to main- tain such person to the extent of their ability," a county which has, under the direction of the law, furnished necessaries to an indigent and helpless father, may recover therefor in an action against the children whose duty it was to furnish the same, and whose neglect or refusal so to do made it necessary for the county to furnish such necessaries." But feven under such a statute, a court would have no authority to render a judgment requiring the children to undertake the future support of their parents, where the statute is silent as to the means of enforcing such duty as to future maintenance.' § 5. Agency of child for parent. In general. — Ordinarily a child has no im- plied authority tcf act as agent for his parent, to manage or dispose of the latter's property, make contracts or for any other purpose, and authority will not be presimied from the mere fact of relationship.* "A son has no authority, as such, to lend his father's property, and there is no presumption that such authority has been given to a son. It may be shown that authority to lend tools and the like has been given to a son expressly, or such an authority may be inferred from the conduct of the father, tending to show that he reposed such confidence and intrusted such discretion to the son, as by showing that on other occasions the son had lent the father's property of a sinailar kind, and the father, upon the facts coming to his knowledge, approved what he had done; but without such proof the son stands in the same position as a stranger."' But of course, as stated in the above quotation, a parent may expressly authorize his or her child to act as agent, and such authority may be inferred from circumstances. Or the parent may be estopped, by a holding out or other conduct, from denying such author- ity.' Thus where a son had in several instances used the name of his father by signing it as surety to notes given by the son, and the father, with knowledge of the fact that such use had been made of his name, directed the holder of a m, 98. Reeves v. Kelly, SO Mleh. 1S2. »9. Rex V. Munden, 1 Strange, 190; Ed- wards V. Davis, 16 Johns. [N. Y.] 281; Becker V. Gibson, 70 Ind. 239; Stone V. Stone, 32 Conn. 142; Lebanon v. Griffin, 45 N. H. 558; Gray v. Spalding, 58 N. H. 345. 1. McCook County v. Kammosa, 7 S. D. 658, 58 Am. St. Rep. 854; Howe v. Hyde, 88 Mich. 91. It is otherwise If the statute pre- scribes a particular mode of enforcing the duty which it Imposes. Edwards v. Davis, 16 Johns. [N. T.] 281. 2, 3. McCook County v. Kammoss, 7 S. D. 558, 58 Am. St. Rep, 854. 4. Owen v. White, 5 Port. [Ala.] 435, 30 Am. Dec. 572; Paul v. Hummel, 43 Mo. 122 Holt V. Baldwin, 46 Mo. 265, 2 Am. Rep. 515 Johnson v. Stone, 40 N. H. 197, 77 Am. Dec, 706: Walsh v. Curley, 42 N. T. St. Rep. 470 Rltch V. Smith, 82 N. Y. 627; Schaefer v. Osterbrink. i67 Wis. 495; Kumba v. Gilham, 103 Wis. 312. And see article by Prof. W. R. Vance, in 6 Va. Law Reg. 585. 5. Johnson v. Stone, 40 N. H. 197, 77 Am. Dec. 706. 6. Bryan v. Jackson, 4 Conn. 288; Weaver V. Ogletree, 39 Ga. 586; Harper v. Lemon, 38 Ga. 227; Murphy v. Ottenheimer, 84 III. 39; Thurber v. Anderson, 88 111. 167; Common- wealth V. Holmes, 119 Mass. 195; Thayer v. White, 12 Meto. [Mass.] 343; Bennett v. Gil- lette, 3 Minn. 423, 74 Am. Deo. 774; Holt v. Baldwin, 46 Mo. 265, 2 Am. Rep. 515; Johnson V. Stone, 40 N. H. 197, 77 Am. Dec. 706; Abeel V. Seymour, 6 Hun [N. Y.] 656; Center v. Rush, 35 Misc. [N. Y.] 294; Fowlkes v. Bak- er, 29 Tex. 139; Chase v. Snow, 52 Vt. 525. Compare Greenfield Bank v. Crafts, 2 Allen TMass.] 269. 104 AGENCY IMPLIED FEOM RELATION § 5. 3 Cur. Law note so signed to see the son about it, and the latter agreed to have it arranged as desired, and smaller notes were accepted by the holder, in place of the larger one, in the belief that the new notes had been signed by the father, as he made no objection to the genuineness of the note presented to him, the facts were such as to authorize the jury to presume and find that the son was the agent of the father to sign the note, or that the father ratified the act done by the son.' If a son has been accustomed to sign his father's name as indorser of notes, and the father has recognized the indorsements as binding, authority on the part of the son to bind the father by such indorsements in other instances will be implied.* So if the parent has formerly paid for goods purchased on credit by his child, and does not forbid such sales, it wiU be inferred that the parent authorizes further purchases on credit.' Contracts for necessaries. — A father is not bound by the contract of his son even for articles which are suitable and necessary, in the absence of elements of estoppel, unless an express authority is shown, or the circumstances are such that authority in fact may be inferred. A son has no implied authority to purchase necessaries on his father's credit merely by virtue of the relationship.^" When a child continues under the direction and control of his father, it is left to the father's discretion to determine what is necessary for him, unless it clearly ap- pears that the father has failed to perform his duty to provide for the child's maintenance.^^ But an implied authority on the part of the child may arise if such an omission on the part of the father is shown. By statute in many jurisdictions, and by the weight of authority even at common law, and inde- pendently of any statute, a father is under a legal obligation to support and main- tain his minor children, just as a husband is under a legal obligation to support and maintain his wife, as will be heireafter shown. And it follows that if a father drives his minor child from home, or causes him to leave by personal violence or abuse, or otherwise neglects without cause to perform this parental duty, the law will imply or create an agency on the part of the child, as it does on the part of a wife, to purchase necessaries on the father's credit/^ such as food, clothing, shelter, medical attendance, etc." T. Weaver v. Ogletree, 39 Ga. 586. 8. Abeel v. Seymour, 6 Hun [N. Y.] 666. 0. Plotts V. Rosebury, 28 N. J. Law, 146; Powlkes V. Baker, 29 Tex. 135. 10. Owen V. White, 5 Port. [Ala.] 435, 30 Am. Dec. 572; Van Valkinburgh v. Watson, 13 Johns. [N. T.] 480, 7 Am. Dec. 395; and other cases cited In the notes following. 11. Owen V. White, 5 Port. [Ala.] 435, 30 Am. Deo. 572. 12. 2 Kent, Comm. 190; Reeve, Dom. Rel. 285. E/nelandi Rawlyns V. Vandyke, 3 Esp. 252. But see the English cases to tlie contrary cited below in this note. Alabamai Owen v. White, 6 Port. 435, SO Am. Dec. 572. ATkansast Holt v. Holt, 42 Ark. 495; Jor- dan V. Wright, 45 Ark. 237. Connectlcnti Stanton v. Willson, 3 Day, 37, 3 Am. Deo. 255.- And see Finch v. Finch, 22 Conn. 421. District of Colnmblai Holtzman v. Cas- tleman, 2 MacArthur, 555. Geor$;la: Keaton v. Davis, 18 Ga. 457. lowat Porter v. Powell, 79 Iowa, 151, 18 Am. St. Rep. 353. And see Dawson v. Daw- son 12 Iowa, 613; Johnson v. Barnes, 69 Iowa, 641.' Mainet Weeks v. MerroTV, 40 Me. 151; Gil- ley V. Gllley, 79 Me. 292, 1 Am. St. Rep. 307. Massaclinsetts: Dennis v. Clark, 2 Cush. 347, 352, 48 Am. Deo. 671, 675; Reynolds v. Sweetser, 15 Gray, 78. Michigan: Courtrlght V. Courtright, 40 Mich. 633; Hyde v. Leisenring, 107 Mich. 490; Tyler v. Arnold, 47 Mich. 564. New York: Van Valkinburgh v. Watson, 13 Johns. 480, 7 Am. Dec. 395; Manning v. Wells, 8 Misc. 646, 85 Hun, 27; Edwards v. Davis, 16 Johns. 281, 285; Cromwell v. Ben- jamin, 41 Barb. 568; In re Ryder, 11 Paige, 188. And see Purman v. Van Sise, 66 N. T. 435, 15 Am. Rep. 441. Compare Raymond v. Loyl. 10 Barb. 483; Chilcott v. Trimble, 13 Barb. 502. Ohio: Pretzinger v. Pretzinger, 4B Ohio St. 452, 4 Am. St. Rep. 642. PennsTlvanlai Fitler v. Pltler, 33 Pa. 50. Tennesseei Maguinay v. Saudek, 5 Sneed, 146. Vlrginlat Evans v. Pearce, 16 Grat. B13, 78 Am. Dec. 635. In some decisions, however, it has been held that there is no legal obli- gation on a parent, independent of statute, to maintain his child, and that no action can be maintained against a father for necessaries furnished to his minor child, un- 3 Cur. Law. AGENCY IMPLIED FEOM EELATION § 5. 105 It will be seen from the cases cited in the last preceding note, that, al- though they all agree in holding a parent liable for necessaries furnished to a child, where he has neglected or refused to do so, yet this liability is placed on different grounds. In the cases first cited, it is held that there is a legal ob- ligation on a father to maintain his infant child and that if he fails or refuses to do BO, there is an agency by implication of law on the part of the child tb purchase such necessaries on the credit of the parent. On the other hand, the other cases cited hold that there is no such legal obligation on the parent, in- dependent of statutory enactment, and that there is no agency in the child, in such cases, to procure necessaries on the credit of the parent, unless he is ex- pressly authorized to do so, or unless the circumstances are such as to create an agency by implication of fact. This implied authority on the part of a child to bind his father for necessaries only arises in the case of neglect of duty on the part of the father, which must be affirmatively shown.** If a father abandons his minor child or drives him from home, the child carries with him such an im- plied authority, but it is otherwise where the child, being of the age of discre- tion, voluntarily leaves his father's house.*' Nor is a father liable for necessaries less the father has expressly or Impliedly authorized the purchase on his credit, or has expressly or impliedly promised to pay therefor, but slight evidence is held to be sufficient to show this authority or prom- ise. England: Mortimore v. Wright, 6 Mees. & W. 482; Shelton v. Springett, 11 C. B. 462; Law V. Wilkins, 1 Nev. & P. 697; Baker v. Keen, 2 Starkie, 501. Illinois: In this state it is a yrell estab- lished rule that "an express promise, or cir- cumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child by a third per- son." Hunt V. Thompson, 3 Scam. 179; Miller V. McKlnney, 45 111. App. 447; Allen v. Jacobi, 14 111. App. 277; Schnuckle v. Bierman, 89 111. 454; Gotts v. Clark, 78 111. 229; McMillen V. Lee, 78 111. 443; Johnson v. Smallwood, 88 111. 73; Murphy v. Ottenheimer, 84 111. 39. Under this rule it has been held that, if a father neglects or refuses his natural or moral duty to furnish his child with neces- sary and suitable wearing apparel, any one can supply the child therewith, and the law in such ease w^ill imply a promise on the part of the father to pay for them, and he will not be heard to allege the contrary; but it would be otherwise If he had not been derelict in his duty. Vllen v. Jacobi, 14 111. App. 277; Hunt v. Thompson, 3 Scam. 179; Miller V. McKinney, 45 III. App. 447. Indiana; Holllngsworth v. Swedenborg, 49 Ind. 378, 19 Am. Rep. 687; White v. Mann, 110 Ind. 74; Watkins v. De Armond, 89 Ind. 653. Compare Conn v. Conn, 57 Ind. 323. IVew Hampshirei French v. Benton, 44 N. H. 30; Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499; Town of Farmington v. Jones, 36 SI. H. 271. Compare, however, Hillsborough v. Deering, 4 N. H. 88; Pidgin v. Cram, 8 N. H. 362. NcTT Jersey: Freeman v. Robinson, 38 N. J. Law, 383, 20 Am. Rep. 399. Compare Tom- kins v. Tomkins, 11 N. J. Bq. 512. Ovesent Carney v. Barrett, 4 Or. 171. Vermont: Gordon v. Potter, 17 Vt. S48; Vamey v. Young, 11 Vt. 258. But see Buck- minster V. Buckmlnster, 38 Vt. 248, 88 Am. Dec. 652. 13. What are necessaries must be deter- mined by the condition in life and means of the father as well as the character of the articles. Stanton v. Willson, 3 Day [Conn.] 37, 3 Am. Dec. 255; Freeman v. Robinson, 38 N. J. Law, 383, 20 Am. Rep. 399. Education has been held a necessary. Stanton v. Willson, 3 Day [Conn.] 37, 3 Am. Dec. 255. But com- pare Hodges V. Hodges, Peake Add. Cas. 79; Bailey v. Calcott, 4 Jur. 699. But not tutor- ing in vacation. Peacock v. Linton, 22 R. I. 328. 14. Van Valkinburgh v. Watson, 13 Johns. [N. T.] 480, 7 Am. Dec. 395; Owen v. White, 5 Port. [Ala.] 435, 30 Am. Dec. 572; Hunt V. Thompson, 3 Scam. [111.] 179, 36 Am. Dec. 538; Glynn v. Glynn, 94 Me. 465. A person who furnishes a child with necessaries acts at his peril, and will have the burden of showing that the articles furnished were necessaries, and that the father neglected his duty in the matter (Van Valkinburgh ▼. Watson, 13 Johns. [N. T.] 480, 7 Am. Dec. 395; Hunt V. Thompson, 3 Scam. [111.] 179, 36 Am. Dec. 538; Judge v. Barrows, 59 Wis. 115; Townsend v. Burnham, 33 N. H. 270; Rogers V. Turner, 69 Mo. 116; Chilcott v. Trimble, 13 Barb. [N. T.J 502; Smith v. Church, G Hun [N. Y.] 109; Miller v. Davis, 46 111. App. 447), or of showing authority or assent of the father. Rolfe v. Abbott, 6 Car. & P. 286. 15. Angel v. McLellan, 16 Mass. 28, 8 Am. Dec. 118; Owen v. White, 6 Port. [Ala.] 435, 30 Am. Dec. 572; Hunt v. Thompson, 3 Scam. [111.] 179, 36 Am. Dec. 538; Hyde v. Leisenring, 107 Mich. 490; Raymond v. Loyl, 10 Barb. [N. Y.] 483; Goodman v. Alexander, 28 App. Div. [N. Y.] 227; Weeks v. Merrow, 40 Me. 151; Glynn v. Glynn, 94 Me. 465; Mil- ler V. Davis, 49 111. App. 377. But not where the child is of tender years, as between eight and nine years old. Bradley v. Keen, 101 111. App. 619, As to the effect of a limited emanci- pation, see Porter v. Powell, 79 Iowa, 161, 18 Am. St. Rep. 363. But when a father per- mits his minor son to buy goods on his cred- it, the fact that the son has left the father 106 AGENCY IMPLIED FROM EELATIOJST § 5. 3 Cur. Law. furnished a child while in the custody of the mother, who has left him withouli cause.^* Nor does the above rule apply to adult children; and a father is not liable for necessaries furnished an adult child, in the absence of contract or authority, although the child be at the home of the father when the necessaries are furnished, and although the father fails to supply them himself.*' There is some conflict of authority as to whether a mother who is a widow is under an obligation to support her minor children, where they are not able to support themselves, but the better opinion is that she is under such an obligation, and that she is liable, therefore, for necessaries furnished to them, on her failure to support them.*^ It would be otherwise, however, if the children have sufficient means of their own, or can maintain themselves, or provision has been made for their support.^' If a wife obtains a divorce, and is given the custody of minor children, and alimony for herself, but not specifically for the support of the children also, this does not relieve the husband of his duty to support the chil- dren, and he may nevertheless be liable for necessaries furnished them.^" In some cases, however, the contrary is held.'* The duty of a father to support his children does not extend to the children of a wife by a former marriage, so as to render a step-father liable for necessaries furnished his step-children,^' unless he so receives them and treats them as to raise the presumption that he intends to create the relation of parent and child.'' § 6. Agency of servant for master. — There is nothing in the relation of a mas- ter and his domestic or other servant to give the latter any authority to bind the win not prevent a recovery ag-ainst the lat- ter for goods sold to the son, by a party acting on the faith of the agency of the son, and without notice of the change of relation, or circumstances to put him on in- quiry. Murphy v. Ottenheimer, 84 111. 39. Where a father permits his son to contract for a year's tuition, the father is liable to the instructor for the whole fee In case the son leaves the school of his own motion before the end of the year. Center v. Rush, 35 Misc. [N. T.] 294. 16. Hyde v. Leisenring, 107 Mich. 490; Glynn v. Glynn, 94 Me. 465. 17. Blachley v. Laba, 63 Iowa, 22, 50 Am. Rep. 724; Vorass v. Rosenberry. 85 111. App. 623; Norris V. Dodge's Adm'r, 23 Ind. 190; Kernodle v. Caldwell, 46 Ind. 153; Mills v. Wyman, 3 Pick. [Mass.] 207; Townsend v. Burnham, 33 N. H. 270; Wood v. Gill's Bx'rs, 1 N. J. Law, 449; Crane v. Baudouine, 55 N. Y. 256; Patton'a Bx'r v. Hassinger, 69 Pa. 311; Hawkins v. Hyde, 55 Vt. 55. But a father is liable for necessaries furnished to an invalid daughter, unable to support her- self and dependent on the father, notwith- standing she is over age. Cromwell v. Ben- jamin, 41 Barb. [N. T.] 558. And where a child, living with its parent, has been ac- customed to purchase on the credit of the parent such articles as were for his own personal use, he deals as the known agent of the parent and the child Is not person- ally liable therefor, though the purchase Is made after his majority. Emery-Bird-Thay- er Dry Goods Co. v. Coomer, 87 Mo. App. 404. 18. Furman v. Van Sise, 56 N. T. 435, 15 Am. Rep. 441; Gray v. Durl^nd, 50 Barb. [N. T.] 100, 211; Girls' Industrial Home v. Frltch- ey, 10 Mo. App. 344; Mowbry v. Mowbry, 64 in. 383. But see Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97; Englehardt v. Tung's Heirs, 76 Ala. 634; In re Besondy, 32 Minn. 385, 50 Am. Rep. 579. Compare In- habitants of Dedham v. Inhabitants of Na- tick, 16 Mass. 135. 19. Mowbry v. Mowbry, 64 111. 383; Whip- ple V. Dow, 2 Mass. 415; Dawes v. Howard, 4 Mass. 97; Bngleha,rdt v. Tung's Heirs, 76 Ala. 534. 20. Pretzlnger v. Pretzinger, 45 Ohio St. 452. 4 Am. St. Rep. 642 (allowing the wife to recover from the husband for support fur- nished the child). Holt v. Holt, 42 Ark. 465; Courtright V. Courtright, 40 Mich. 633; Thom- as V. Thomas, 41 Wis. 229; Conn v. Conn, 57 Ind. 323. 81. Burritt v. Burrltt, 29 Barb. [N. T.l 124; Brow v. Brightman, 136 Mass. 187; Finch V. Finch, 22 Conn. 411. In Burrltt v. Burritt, supra, it was held that, where a divorce has been decreed and the care and custody of the child awarded to the mother and ali- mony to the wife, it must be presumed to carry with It the obligation of support. In the absence of evidence to the contrary; or at least, to relieve the father from the obli- gation to furnish such support upon tlie call of the mother; and to make the f.ather liable In such a case, there must be special circumstances averred in the complaint or appearing in the evidence, from which the obligation must arise or may be reasonably inferred. aa. Tubb v. Harrison, 4 Term R. 118; Mowbry v. Mowbry, 64 111. 383; Bond v. Lockwood, 33 111. 212; In re Besondy, 32 Minn. 385, 50 Am. Rep. 679; In re Aokerman, 116 N. T. 654. 23. Mowbry v. Mowbry, 64 111. 383; Bond V. Lockwood, 33 111. 212; Bla v. Brand, 63 N. H. 14. S Cur. Law. AGENCY IMPLIED FROM RELATION § 7. 107 lormer. A servant is the agent of his master for the purpose of managing or disposing of his property, binding him by contracts for the purchase of supplies and otherwise, or for any other purpose, in so far only as authority may have been expressly or impliedly conferred upon him by the master.^'' Of course, as in any other case, agency on the part of a servant to bind his master may be im- plied from circumstances, and the master may be estopped by his conduct cloth- ing the servant with apparent authority. But properly speaking in so far as the servant becomes an agent for his master he loses the character of servant. § 7. Agency of husband for wife. In general. — At common law, a married woman cannot appoint an agent, and therefore she cannot be bound by contracts or acts of her husband as her agent, even though she may have expressly authorized the same. But this doctrine no longer obtains in all its strictness in any jurisdiction. In some states, statutes have been enacted, allowing married women to hold a sepa- rate estate, and to convey or contract with reference to the same ; and in some states the common law disabilities of coverture have been removed altogether, so that she may contract in all respects as a feme sole. And in so far as her disabilities have been thus removed, a married woman may appoint an agent to act for her. And, subject to any special statutory provisions, she may appoint her husband as well as a third person. There is nothing in the marriage relation to prevent a husband from acting as the agent of his wife imder an appointment by her.'" And the same is true of any other contract or act which under the statutes a wife may make or do. The general rule is that she may authorize her husband to do for her wha1> ever she has the capacity to do herself."' A husband may act as agent for his 34. Haluptzok v. Great Northern R. Co., S5 Minn. 446. 25. Alabamo: Jones v. Chenault, 124 Ala. 610, S2 Am. St. Rep. 211; Louisville Coffin Co. V. Stokes, 78 Ala. 372. Ar!i:ans»s: Humphrey v. McCauley, 55 Ark. 143; Hoffman v. MoFadden, 56 Ark. 217, 35 Am. St. Rep. 101. California: Quarg v. Scher, 136 Cal. 405. Florida: Prentiss v. Paisley. 25 Fla. 927. IIUnolBi Haight v. McVeagh, 69 111. 624; Patten v. Patten, 75 111. 446; Walker v. Car- rlng-ton, 74 111. 446; v;''ortman v. Price, 47 111. 22; Nigh v. Dovel, S4 111. App. 228. Indiana; Barnett v. Glutiiig. 3 Ind. App. 415; Rowell v. Klein, 44 Ind. 290; Griffln v. Ransdell, 71 Ind. 440. loTra; Hamilton v. Hooper, 46 Iowa, 515, 26 Am. Rep. 161. See Sawyer v. Biggart, 114 Iowa, 489. Kansas: Wilkinson v. Ellliott, 43 Kan. 590. 19 Am. St. Rep. 158. Ijouislana; Jones v. Read, 1 La, Ann. 200. Maine: Verrill v. Parker, 65 Me. 578; Rob- erts V. Hartford, 86 Me. 460; Ma.Kcy Mfg. Co. V. Burnham, 89 Me. 538, 56 Am. St. Rep. 436. Massacliusetts: Arnold v. Spiirr, ISO Mass. 347; Wheaton v. Trimble, 145 Mass. 345, 1 Am. St Rep. 463; Duggan v. Wright, 157 Mass. 22S. Michisan: Rankin v. West, 25 Mich. 195; Luebe v. Thorpe, 94 Mich. 268; McBain v. Seligman, 58 Mich. 294; First Commercial Bank v. Newton, 117 Mich. 433. Missouri: Rodgers v. Pike County Bank, 69 Mo. 562; iDystra v. Capelle, 61 Mo. 578; Long V. Martin, 152 Mo. 668. Nebraslca: McMurtry V. Brown, 6 Neb. 368. A husband may act as the agent of his wife in the management of her separate business. Harris v. Weir-Shugart Co., 61 Neb. 483. New Jersey; filliott v. Bodine, 59 N. J. Law, 567; Talcott v. Arnold, 64 N. J. Eq. 570; Taylor v. Wands, 55 N. J. Bq. 491. C2 Am. St. Rep. 818; Tresoh v. Wirtz, 34 N. J. Eq. 124, 36 N. J. Eq. 356. Nevr York: Wronkow v. Oakley, 13" N. Y. 505, 28 Am. St. Rep. 661; Third Nat. Bank v. Guenther, 123 N. Y. 568, 20 Am. St. Rep. 780. Nortli Carolina; Bazemore v. Mountain, 121 N. C. 59. Ohio: Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156. Pennsylvania: Bodey v. Thackara, 143 Pa. 171, 24 Am. St. Rep. 525; Baxter v. Maxwell, 115 Pa. 469. South Cnrolfna; Brown v. Thomson, 31 S. C. 435, 17 Am. St. Rep. 40; Scottish Amer- ican Mortg. Co. V. Deas, 35 S. C. 42, 28 Am. St. Rep. 832. ~Wushin!2rtant Richmond V. Voorhees, 10 Wash. 316. West Virginia: Camden v. Hlteshew, 23 W. Va. 236; Trapnell v. Conklyn, 37 W. Va. 242, 38 Am. St. Rep. 30. Wisconsin: Weisbrod v. Chicago & N. W. R. Co., 18 Wis. 40, 86 Am. Deo. 743; Austin v. Austin, 45 Wis. 523; Lavassar v. Washburne, 50 Wis. 200; Wood v. Armour, 88 Wis. 488. 43 Am. St. Rep. 918. 26. Under a statute authorizing the per- sonal property of a wife to be disposed of by the husband and wife by parol, a married woman may by parol authorize her husband to vote corporate stock owned by her at corporate meetings, and to consent for her to a transfer of all the corporate property to another corporation for its capital stoclc to be issued to the stockholders of the for- mer corporation. Hoene v. Pollak, 118 Ala. 617, 72 Am. St. Rep. 189. 108 AGENCY IMPLIED PEOM EELATION § 7. 3 Cur. Law. wife in making a contract for the pnrchase of land, and if he makes snch con- tract in his own name the fact that he acted as agent for his wife may be shown by parol evidence.^^ Where a married woman's disabilities are only partially remoTed, her ca- pacity to authorize her husband to act as her agent is limited. The rule is that she may authorize him to act as her agent in making any contract or doing any other act which she has the capacity to do herself, unless there is some statute requiring her to act personally in the particular matter ; but she cannot authorize him to bind her by any contract or act, by which she cannot bind herself.^' Where a married woman is empowered by statute to contract with reference to her separate property, she may appoint her husband her agent to contract for its improvement or repair, so as to enable him to subject it to a mechanic's lien.=» Implication or presumption of husband's agency for wife. — Although a wife may have the capacity to authorize her husband to act as her agent, as explained above, the husband cannot bind her in the absence of authority in fact from her, or an estoppel by her conduct to deny such authority. A husband has no implied authority, merely by reason of the marriage relation, to act as the agent of his wife in managing or disposing of her separate estate, or binding her by contracts with respect thereto; nor will the appointment of a husband by his wife as her agent be presumed merely from the marriage relation, without other evidence, or from circumstances which ordinarily owe their existence solely to the marriage relation," unless by some express statutory provision.'^ It fol- lows that a husband's knowledge of defects in the title of real estate or illegality 27. Brodhead v. Reinbold, 200 Pa. 618, 86 Am. St. Rep. 735. as. Maofarland v. Heim, 127 Mo. 327, 48 Am. St. Hep. 629; Hall v. Callahan, 66 Mo. 316; Bowles v. Trapp. 139 Ind. 55; Ingram V. Nedd, 44 Vt. 462. Where a statute gives a wife capacity to contract in writing with the written consent of her husband, she has no power to confer authority upon her hus- band by parol to make a contract in her name. First Nat. Bank v. Leland, 122 Ala, 289. 20. Hoffman v. McPadden, 56 Ark. 217, 35 Am. St. Rep. 101; Wheaton v. Trimble, 145 Mass. 345, 1 Am. St. Rep. 463; Bodey V. Thackara, 143 Pa. 171, 24 Am. St. Rep. 526. 30. United States i Dodge V. Knowles 114 U. S. 435. Arlcnnnasi Hoffman T. McFadden, 66 Ark. 217, 35 Am. St. Rep. 101. Coloradot Yescellus v. Martin, 11 Colo. 391. District of Colnmbiat Weightman V. "Washington Critic Co., 4 App. D. C. 136. Georgia: Stllwell v. 'Woodruft, 76 Ga. 347; Byne v. Corker, 100 Ga. 445; Axson v. Belt, 103 Ga, 678; Jones v. Harrell, 110 Ga. 373. Indiana! Runyon v. Snell, 116 Ind. 164, 9 Am. St. Rep. 839; Barnett v. Glutlng, 3 Ind. App. 415; Russell v. Stoner, 18 Ind. App. 543. lowai McLaren v. Hall, 26 Iowa, 297; Mil- ler V. HoUlngsworth, 33 Iowa, 224; Price v. Seydel, 46 Iowa, 696. See Trimble v. Thor- son, 80 Iowa, 246. Blainei Ferguson V. Spear, 66 Me. 277; Verrlll v. Parker, 65 Me. 678. Massactansettsi Merrill v. Parker, 112 Mass. 253; Hunt v. Poole, 139 Mass. 224. Mississippi! Anderson v. Gregg, 44 Miss. 170; Crawford v. Redus, 64 Miss. 700. Missonrl: Mead V. Spalding, 94 Mo. 43; Garnett v. Berry, 3 Mo. App. 197; Henry v. Sneed, 99 Mo. 407, 17 Am. St. Rep. 580. NcbrsisSta; Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. St. Rep. 512. IVevr Hampshire: Cate v. Rollins, 69 N. H. 426. New Jersey: Elliott v. Bodlne, 69 N. J. Law, 567. . New Yorlii Jones V. Walker, 63 N. T. 612; Bates v. First Nat. Bank, 89 N. T. 286; Gilbert v. Deshon, 107 N. T. 324; Gates T. Williams, 3 Misc. (N. T.) 376; Speiss V. Wein- berg, 27 Misc. (N. T.) 774. Pennsylvania! Dearie v. Martin, 78 Pa. 55. Tennessee: Knott v. Carpenter, 3 Head (Tenn.) 542, 75 Am. Dee. 779. Texas: Cushman v. Masterson (Tex. Olv. App.) 64 S. W. 1031. Vermont! Johnson V. Valldo Marble Co., 64 Vt. 348. Wisconsin! Ladd V. Hllderbrant, 27 Wis. 135, 9 Am. Rep. 445. A husband's cultiva- tion of his wife's land does not raise a pre- sumption that he Is her agent, with author- ity to sign notes on her behalf. Jones v. Harrell, 110 Ga. 373. Nor does the fact that she permitted him to manage land conveyed by him to her, dispose of the products there- of, and handle the proceeds as he saw fit, authorize him to sell the land. Saunders v. King, 119 Iowa, 291. 31. In some Jurisdictions, by express stat- utory provision, a husband having the cus- tody and control of his wife's separate prop- erty Is presumed to be her agent. Ameri- can Bxp. Co. V. Lankford, 2 Ired. L. 18; Gross V. Pigg, 73 Miss. 286; Porter v. Staten, 64 Miss. 421. 3 Cur. Law. AGENCY IMPLIED PEOM EELATION § 7. 109 in the consideration of a negotiable instrument purchased by his wife, or other matterSj is no more imputable to her than knowledge of a stranger would be, where it is not shown that he was acting as her agent in the transaction. While authority on the part of a husband to act as agent for his wife will not be implied or presumed from the marriage relation alone, an agency, in fact may, as in the case of other persons, be implied from the conduct of the wife in allowing the husband to act for her or other circumstances tending to show authority in fact, and the relation between them may be taken into consideration, in connection with the other circumstances, in determining whether there was authority in fact.'* A finding that a husband acted as the duly author- ized agent of his wife in employing a person to perform labor upon her house is warranted, in a proceeding to enforce a mechanic's lien therefor, by cTidence that the husband had general management of the property, that he employed such person to perform the labor, that the wife knew the work was being done, and that she personally gave directions as to parts of the work, or otherwise showed her assent thereto." But authority on the part of a husband to make a contract for the improvement of his wife's real property, so as to subject it to a mechanic's lien, is not implied from the marriage relation, nor from the mere fact that the husband occupied, or managed and controlled, the property.'* The mere fact that a wife has knowledge of the construction of a building by her husband on her property does not, of itself, necessarily establish the agency of her husband to charge such property with a lien for material used thereon; and she may contest the validity of such a lien,"* unless there is a statute creat- ing a liability against her under such circumstances." It has been held that if a conveyance of land to a married woman is de- livered to her husband and accepted by him for her, acceptance by her will be presumed on the ground that, since the conveyance is for her benefit, authority on the part of the husband to accept the same for her may be presumed from their relation.'^ It has been said that stronger and more satisfactory evidence is necessary !t2. Wheaton v. Trimble, 145 Mass. 345; 1 Am. St Rep. 463; Carroll v. O'Shea, 19 N. T. Supp. 374; Bodey v. Thaokara, 143 Pa. 171, 24 Am. St. Eep. 526; Minard V. Stillman, 31 Or. 164, 65 Am. St. Rep. 815; Layoook v. Parker, 103 Wis. 161; Barnett v. Gluting, 3 Ind. App. 415; Shafer v. Archbold, 116 Ind. 29; Arnold v. Spurr, 130 Mass. 347; Hunt v. Mercantile Ins. Co., 22 Fed. 503. 33. Richards v. John Spry Lumber Co., 169 111. 238; Bumgartner v. Hall, 163 111. 136; McNichols V. Kettner, 22 111. App. 493; Ander- son V. Armstead, 69 111. 452; Interstate Bldg. & Loan Ass'n v. Ayres, 71 111. App. 530; Thompson v. Shepard, 85 Ind. 352; Burdick v. Moon, 24 Iowa, 418; Kldd v. Wilson, 23 Iowa, 464; Bethell v. Chicago Lumber Co., 39 Kan. 230; Maxcy Mfg. Co. v. Burnham, 89 Me. 538, 56 Am. St. Rep. 436; Wheaton v. Trimble, 145 Mass. 345, 1 Am. St. Rep. 463; Tuttle v. Howe, 14 Minn. 145, 100 Am. Dec. 205; Farley V. Stroeh, 68 Mo. App. 85; Collins v. Me- graw, 47 Mo. 495; Bradford v. Peterson, 30 Neb. 96; McCormick v. Lawton, 3 Neb. 449; Howell V. Hathaway, 28 Neb. 807; Scales v. Paine, 13 Neb. 521; Elliott v. Bodine, 59 N. J. Law, 567; Holden v. Kutscher, 17 Misc. (N. T.) 540; Bodey v. Thackara, 143 Pa. 171, 24 Am. St. Rep. 526; Bevan v. Thackara, 143 Pa. 182 24 Am. St. Rep. 529; Bankard v. Shaw, 199 Pa. 623; Jobe v. Hunter, 165 Pa. 6, 44 Am. St. Rep. 639; Spears v. Lawrence, 10 Wash. 368, 45 Am. St. Rep. 789; Laycock v. Parker, 103 Wis. 161. See also Tarr v. Muir, 21 Ky. L. R. 988, 53 S. W. 653. Compare, however, Cate v. Rollins, 69 N. H. 426; John- son V. Parker, 27 N. J. Law, 239. If the wife has authorized her husband to act as her agent In contracting for the building of a house upon her separate real estate, the law will give a mechanic's lien thereon, although she may not have intend- ed to charge the property therewith. Jones V. Pothast, 72 Ind. 158 (overruling Dame V. CofCman, 68 Ind. 345, on this point). 84. HoflEman v. McFadden, 56 Ark. 217, 35 Am. St. Rep. 101; Duross v. Broderick, 78 Mo. App. 260; Lyon v. Champion, 62 Conn. 76. 35. Rust-Owen Lumber Co. v. Holt, 60 Neb. 80, 83 Am. St. Rep. 512; Alexander v. Perkins, 71 Mo. App. 286. 36. Santa Cruz Rock Pavement Co. v. Lyons, 117 Cal. 212, 59 Am. St. Rep. 174. And see Heath v. Solles, 73 Wis. 217; North v. La Flesh, 73 Wis. 620; Smith v. Gill, 37 Minn. 455. 37. McGehee v. White, 31 Miss. 46; Pool V. Phillips, 167 ni. 432. 110 AGSISrCY IMPLIED FEOM EELATION § 7. 3 Cur. Law. to establish a husband's agency for his wife than would be required as between persons not occupying such a relation."' Estoppel of wife to deny authority of liusband. — ^When a wife has authority to appoint her husband as her agent with respect to a particular matter or business, she is subject, to the same extent as any other person, to the prin- ciples of law in relation to agency by estoppel. If by her conduct she holds him out as her agent or allows him to act as such, she will be bound by his acta within the scope of his apparent authority, whether there was any actual author- ity or not."' Ratification. — A wife, in so far as she has the capacity to authorize her husband to act as her agent, may expressly or impliedly ratif}', and thereby render binding, contracts made or other acts done by her husband on her behalf without authority.*" § 8. Agency of wife for husband. In general. — It is well settled that a mar- ried woman is competent to act as agent for another, even though her common-law disabilities have not been removed, so that she could not contract for herself in the matter, for persons who are not sui juris may act as agents and there is nothing in the marriage relation to prevent a wife from acting as the agent of her husband. The present consideration is appointment of a mfe as the agent of her husband, and the circumstances under which such an agency will be implied. If a husband allows his wife to purchase goods on his credit, or otherwise holds her out as hav- ing authority, and then separates from her and makes her an adequate allowance, and she afterwards continues to purchase on his credit as before, he will be estopped to deny her authority as against tradesmen who supply her in reliance on her ap- parent authority and without notice of the change of circumstances.*^ The fact 38. Rowell V. Klein. 44 Ind. 290; Louis- ville Coffin Co. V. Stokes. 78 Ala. 372; Eystra V. Capelle, 61 Mo. 578; McLaren v. Hall, 26 Iowa, 2&7; Sanford v. Pollock, 105 N. Y. 450; Kansas City Planing Mill Co. v. Brundage, 25 Mo. App. 268; Carthage Marble & W. L. Co. V. Bauinan, 44 Mo. App. 386, 392; Thomp- son V. Kehrmann, 60 Mo. App. 488; Mead V. Spalding, 94 Mo. 43; Farley v. Stroeh, 68 Mo. App. 85; Lane v. Loekridge, 17 Ky. L. R. 1082, 33 S. W. 730. See Long v. Martin, 71 Mo. App. 569, where the authority of the husband to act as the agent of his wife was shown by the weight of the testimony. It was held sufficient to establish such author- ity. Authority on the part of a liusband to declare that his wife is his partner in business cannot be implied from his author- ity to attend to lier business generally. First Nat. Bank of Tuscaloosa v. Leland, 122 Ala. 289. Where the husband has contracted in his own name for Improvements on the wife's land, it has been held that the evidence to establish his agency, in the face of his ex- press contract, must be so clear, cogent, and persuasive as to leave no reasonable doubt of the agency in the mind of the trier of facts. Carthage Marble & W. L. Co. v. Bauman, 44 Mo. App. 386, 392; Thompson v. Kehrmann, 60 Mo. App. 488; Farley v. Stroeh, 68 Mo. App. 85. 39. American Mortg. Co. v. Owens, 64 F. 249; First Nat. Bank of Montgomery v. Nel- son, 106 Ala. 535; Santa Cruz Rock Pave- ment Co. V. Lyons, 133 Cal. 114; Bull v. Coe, 77 Cal. 64, 11 Am. St. Rep. 236; Parker V. Freeman, 11 Colo. 576; Foster v. Jones, 78 Ga. 150; Richards v. John Spry Lumber Co., 169 111. 238; McNichols v. Kettner, 22 111. App. 493; Anderson v. Armstead, 69 111. 452; Maxcy Mfg. Co. v. Burnham, 89 Mo. 638, 56 Am. St. Rep. 436; Arnold v. Spurr, 130 Mass. 347; Bodine v. Killeen. 53 N. T. 93; Bankard v. Shaw, 199 Pa. 623; McManus- V. Laughlin, 186 Pa. 498; Brown v. Thomson, 31 S. C. 436, 17 Am. St. Rep. 40; City Bldg. & Loan Ass'n v. Jones, 32 S. C. 308; Whitaker v. Lee (Tenn.) 57 S. W. 348; Anderson v. Waco State Bank, 92 Tex. 506; Allen v. Gar- rison, 92 Tex. 546; Horr v. Hollls, 20 Wash. 424; Curtis v. Janzen, 7 Wash. 58; Lavassar V. Washburno, 60 Wis. 200. And see Bank of Ravenna v. Dobbins, 96 Mo. App. 693. Where a married woman owning a herd of cattle intrusted her husband with the entire management and control of the same, and allowed him to conduct the business and make sales of cattle, it was held that she was bound by a sale made by a herder under authority from the husband. Parker v. Freeman, 11 Colo. 676. Where a wife Joins with her husband in selling and conveying land, understanding the terms of the con- tract, and then leaves the office, supposing that her husband will receive the considera- tion, and he does receive it, she cannot avoid the agreement on the ground that she did not receive a consideration. Downing v. Lewis, 59 Neb. 38. 40. Hoene v. Pollak, 118 Ala. 617, 72 Am. St. Rep. 189. 41. Wallls v. Biddiok, 22 Wkly. Rep. 76; Cany v. Patton, 2 Ashm. (Pa.) 145; Anthony v. Phillips, 17 R. I. 188; Anon., 21 Misc. (N. T.) 666; Raymond v. Cowdrey, 19 Misc. (N. 3 Cur. Law. AGENCY IMPLIED FEOM RELATION § 9. Ill that a husband is insane and confined in an asylum gives his wife no implied au- thority to bind him by contract, except for necessaries.*'' § 9. Agency of wife ordinarily requires appointment iy or assent of husband. — As shall be hereafter seen, where a husband wrongfully neglects to supply his wife and children with necessaries, the wife has implied authority, even without his assent, to bind him to pay for necessaries, purchased by' her on his credit. And where husband and wife are living together, authority to act as his agent in matters pertaining to the ordinary affairs of the household will be implied or presumed in the absence of proof to the contrary. In other matters, however, the general rule is that a wife has no authority to act as agent for her husband with- out his assent, evidenced either by an express appointment by him or by his conduct. No authority can be implied merely from the fact of their relation as husband and wife.*' Thus a wife has no authority, merely by virtue of the mar- riage relation, to sign contracts generally on behalf of her husband,** or to bind lum by borrowing money, even though it is borrowed to purchase necessaries,*'' accepting a deposit of money,*' to receive payments on debts due to her hus- band,*' to receive a delivery of property from a bailee,*^ to sell, exchange, or otherwise dispose of her husband's property,** pay his debts,"" or grant an ease- ment or license with respect to his property;"^ to rescind, release, or modify con- tracts made by the husband.^* A vrife has no authority to bind the husband by con- tracts, or to dispose of his property, merely because of his absence, even though he may have deserted her,°' or because of his incapacity to attend to business by rea- Y.) 34; Hartjen v. Euebsamen, 19 Misc. (N. T.) 149. 43. Richardson v. Du Bois, L. E. 5 Q. B. 51; ChappeU v. Nunn, 41 Law T. (N. S.) 287. 43. Freestone v. Butcher, 9 Car. & P. 043; Debenbam v. MeHon, 6 App. Cas. 24; Phil- lipson V. Hayter, L. R. 6 C. P. 41; Atkins v. Curwood, 7 Car. & P. 756; Manby v. Scott, 1 Mod. 125; Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312; Colby v. Thompson (Colo. App.) 64 P. 1053; Benjamin v. Benjamin, 16 Conn. 347, 39 Am. Dec. 384; Brown v. Woodward, 75 Conn. 254; Black v. Clem- ents, 2 Pen. (Del.) 499; Phillips v. San- chez, 35 Fla. 187; Compton v. Bates, 10 111. App. 78; Jones v. Wocher, 90 Ky. 230; Jones V. Gutman, 88 Md. 356; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Tuttle V. Hoag, 46 Mo. 38, 2 Am. Rep. 481; Cham- berlain V. Davis, 33 N. H. 121; Beckwith v. Baxter, 3 N. H. 67; Berwick v. Dusenburry. 2 Daly (N. T.) 107; Goodwin v. Kelly, 42 Barb. (N. T.) 194; Mackinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 622; Segel- baum V. Bnsminger, 117 Pa. 248, 2 Am. St. Rep. 662; National Fire Ins. Co. v. Wagley (Tex. Civ. App.) 68 S. W. 819; Western Un- ion Tel. Co. V. Moseley, 28 Tex. Civ. App. 562; Meader v. Page, 39 Vt. 306; Sanborn v. Cole, 63 Vt. 590. 44. Manby v. Scott, 1 Mod. 125; Shaw v. Emery, 38 Me. 484; Bates v. Bnrlght, 42 Me. 118. 45. Knox V. Bushel!, 3 C. B. (N. S.) 334; Brown v. Woodward, 75 Conn. 254; Gilbert's Ex'r V. Plant, 18 Ind. 309; Skinner v. Tirrell, 159 Mass. 474, 38 Am. St. Rep. 447; Schwar- ting V. Bisland, 4 Misc. (N. T.) 534; Ander- son T. CuUen, 16 Daly (N. T.) 15; Walker V. Simpson, 7 Watts & S. (Pa.) 88, 42 Am. Deo. 216; Marshall v. Perkins, 20 R. I. 34. 78 Am. St. Rep. 341; Meader v. Page, 39 Vt. 306. 40. Gilbert's Ex'r v. Plant, 18 Ind. 308. 47. Offley v. Clay, 2 Man. & G. 172; Husche V. Sass, 67 111. App. 245; Thrasher v. Tut- tle, 22 Me. 335; Allen -v. Williamsburgh Sav. Bank, 2 Abb. N. C. (N. T.) 342, 69 N. T. 314; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216. See. also, Cheney v. Pierce, 38 Vt. 515. 48. Kowing v. Manly, 49 N. T. 192. 40. Alexander v. Miller, 16 Pa. 216; Dres- el V. Jordan, 104 Mass. 407; Wheeler & W. Mfg. Co. V. Morgan, 29 Kan. 519; Edwards V. Tyler, 141 111. 454; Brown v. Hannibal & St. J. R. Co., 33 Mo. 309; Ness v. Singer Mfg. Co., 68 Minn. 237; Presnall v. McLeary (Tex. Civ. App.) 60 S. W. 1066; Dunnahoe v. Wil- liams, 24 Ark. 264. It was held, however, in a Vermont case, that the wife has a legal right to make reasonable and moderate gifts of her husband's property and clothing to a relative, by way of charity, and that he cannot annul the gift by compelling its re- turn, or by changing it into a debt against the donee. Spencer v. Storrs, 38 Vt. 156. 50. Butts v. Newton, 29 Wis. 632. The fact that a wife Is authorized to sell her husband's property gives her no authority to transfer the same in payment of his debt. Id. 51. Nelson v. Garey, 114 Mass. 418. 53. Goodrich V. Tracy, 43 Vt. 314, 5 Am. Rep. 281; Vaught v. Wellborn, 16 Ala. 377; Kellogg V. Robinson, 32 Conn. 336. And see Gray v. Otis, 11 Vt. 628. 53. Benjamin v. Benjamin, 15 Conn. 347. 39 Am. Deo. 384; Krebs v. O'Grady, 23 Ala. 726, 68 Am. Dea 312; Savage v. Davis, 18 Wis. 608; Butts v. Newton, 29 Wis. 632; Wheeler & W. Mfg. Co. v. Morgan, 29 Kan. 519; Richelieu Wine Co. v. Ragland, 43 111. App. 257. But the wife of an absent debtor has power as his general agent to bind him by her consent that hay attached on his 112 AGENCY IMPLIED PEOM EELATION § 10. 3 Cur. Law. son of sickness or insanity,"* unless the contracts are for the purchase of necessaries, or the property is disposed of for the purpose of procuring necessaries, as will be hereafter explained. § 10. Express authority of wife and authority implied from circumstances. — Agency on the part of a wife to act for her husband may be created by a formal power of attorney or other express authority, verbal or in writing."*" And there may be cir- cumstances under which authority in fact will be implied. As in the case of agency between other persons, her authority may be implied from circumstances, or he may be estopped to deny her authority by having allowed her to act for him m the particular transaction or in similar previous dealings, or otherwise clothed her with apparent authority."* When the husband is absent from home, and his property is left ia charge of the wife, there is an implied agency on her part to exercise the usual and ordinary control and protection over the property thus left in her possession, unless the presumption of this authority is rebutted by proof that he had constituted another his agent for that purpose."^ If a hus- band authorizes or allows his wife to act as his agent in particular matters, and thus holds her out as having authority, a private agreement or understanding be- tween him and his wife revoking her authority, will have no effect as against third persons afterwards dealing with her iu good faith and without notice of the revocation."* "If a tradesman has had dealings with the wife upon the credit of the husband, and the husband has paid him without demurrer in respect of such dealings, the tradesman has the right to assume, in the absence of notice to the contrary, that the authority of the wife which the husband has recognized continues. The husband's quiescence is in such cases tantamount to acquiescence, and forbids his denying an authority which his own conduct has invited the tradesman to assume.""' The burden of proving the wife's agency for her hus- farm may be fed to his cattle, also attached where he has left her at home on the farm with several minor children, giving no oth- er person charge of his affairs, and has been absent several months before the at- tachment. Felker v. Emerson, 16 Vt. 653, 42 Am. Dec. 532. Temporary absence of a husband gives his wife no Implied author- ity to hire out his horse left In her care. Savage v. Davis, 18 Wis. 608. Compare, however. Church v. Landers, 10 Wend. (N. T.) 79. 54. Alexander v. Miller, 16 Pa. 215; Saw- yer V. Cutting, 23 Vt. 486. 65. Goodrich' V. Tracy, 43 Vt. 314, 5 Am. Rep. 281; Goodwin v. Kelly, 42 Barb. (N. T.) 194. 66. Eneland: PhllUpson v.Hayter, L. R. 6 C. P. 38; Fllmer v. Lynn, 4 Nev. & M. 559; PUmmer v. Sells, 3 Nev. & M. 422; Ryan v. Sams, 12 Q. B. 460 (although they are not married If they live together as man and wife) ; Debenham v. Mellon, 6 App. Cas. 24; Stevenson v. Hardie, 2 W. Bl. 872. California: Heney v. Sargent, 54 Cal. 396. Coimectlcat: Benjamin v. Benjamin, 16 Conn. 347, 39 Am. Dec. 384. Florida: Phillips v. Sanchez, 35 Pla. 187. Illinois: Hudson V. Sholem, 66 111. App. 61; Compton v. Bates, 10 111. App. 78; Stotts V. Bates, 73 111. App. 640. Indiana: Mlckelberry V. Harvey, 58 Ind. 523; Watts v. MofEett, 12 Ind. App. 399. Kentnckri Jones v. Wocher, 90 Ky. 230. L,onlslana: Cousins V. Kelsey, 33 La. Ann. 880. Maryland: Jones V. Gutman, 88 Md. 366. Michigan: Harris v. Smith, 79 Mich. 64. Mlssonrl: Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481; Sauter v. Sorutchfleld, 28 Mo. App. 155. New Jersey: Gullck V. Grover, 33 N. J. Law, 463. New Tork: Howe v. Pinnegan, 61 App. Dlv. 610; Penner v. Lewis, 10 Johns. 38; Gates V. Brower, 9 N. T. 206, 69 Am. Dec. 530. Nortli Carolina: Sibley v. Gilmer, 124 N. C. 631; Cox V. Hoffman, 20 N. C. (3 Dev. & B.) 319. Oregon: Snell v. Stone, 23 Or. 327. Rhode Island: Anthony v. Phillips, 17 R. I. 188. Vermont: Gilman V. Andrus, 2S Vt. 241, 67 Am. Dec. 713. 57. Krebs v. O'Grady, 23 Ala. 726, 68 Am. Dec. 312; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Deo. 384; Rotch v. Miles, 2 Conn. 638; Casteel v. Casteel, 8 Blackf. (Ind.) 240, 44 Am. Dec. 763; Buford v. Speed, 11 Bush (Ky.) 338; Church v. Landers, 19 Wend. (N. T.) 79; Spencer v. Tlsue, Add. (Pa.) 316; Stall v. Meek, 70 Pa. 181; Can- trell V. Colwell, 3 Head (Tenn.) 471; Mc- Afee v. Robertson, 41 Tex. 355; Sawyer v. Cutting, 23 Vt. 486; Chunot v. Larson, 43 Wis. 639. 68. Debenham v. Mellon, 6 Q. B. Dlv. 403, 6 App. Caa. 32; Watts v. Moftett, 12 Ind. App. 399; Anthony v. Phillips, 17 R. I. 188; Snell v. Stone, 23 Or. 327; Sibley T. Gilmer, 124 N. C. 631. 3 Cur.. Law. AGENCY IMPLIED PEOM EELATION § 12. 113 band is on the person relying upon the alleged authority/" and the question whether or not there was such an agency is one of fact for the jury.°^ § 11. Married woman doing business in her own name. — At common law, if a married woman carries on a business in her own name with her husband's consent, it is considered that the business is his and the wife his agent, and he is pre- sumptively bound by her contracts in reference thereto,^^ unless it appears that the credit was given exclusively to her."^ But in most jurisdictions this doctrine has been changed by statute, so that a husband is not liable for debts contracted by his wife in carrying on a business on her own account,"* unless contracted upon his credit, with his knowledge and consent."" In some Jurisdictions in order that the husband may be relieved from liability on contracts in relation to her separate business, it is required that a certificate shall be filed, setting forth the name of her husband, the nature of the business proposed to be done, and the place where it is to be done."" § 12. Implied agency of wife in matters pertaining to the household. — ^In the absence of evidence to the contrary, if husband and wife are living together and maintaining a home, or if they are living under the same roof, although they may be living separate," it is presumed that the management of the ordinary domestic afEairs of the household is intrusted to the wife, and she has implied authority to purchase on his credit, such provisions, clothing, and other articles, as may be necessary or suitable for the family, taking into consideration their style of living sanctioned by him.°^ And in like manner, the husband is bound. 59. Debenhani v. MeUon, 5 Q. B. Dlv. 403, 6 App. Gas. 24. 60. PhiUips V. Sanchez, 35 Fla. 187; Compton V. Bates, 10 111. App. 78. 61. Debenham v. Mellon, 6 App. Gas. 31; Lane v. Ironmonger, 13 Mees. & W. 368; Reld V. Teakle, 13 C. B. 627; Freestone v. Butcher, 9 Gar. & P. 643; Phillips v. San- chez, 35 Pla. 187; Casteel v. Gasteel, 8 Blackf. (Ind.) 240, 44 Am. Dee. 763; Jones v. "Wocher, 90 Ky. 230; Roberts v. Hartford, 86 Me. 460; Jones V. Gutman, 88 Md. 355; Hart v. Young, 1 Lans. (N. T.) 417. 62. Phillipson v. Hayter, L.. R. 6 C. P. 38; Petty V. Anderson, 3 Bing. 170; Godfrey v. Brooks, 5 Har. (Del.) 396; Jenkins v. Flinn, 37 Ind. 352; Jones v. Wocher, 90 Ky. 230; Knowles v. Hull, 99 Mass. 562; Curtis v. Engel, 2 Sandf. Ch. (N. T.) 287; Cropsey V. McKinney, 30 Barb. (N. T.) 47; Boas v. Malone, 140 Pa. 572; Mackinley V. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522; Poulds V. Curtelett, 21 TT. G. C. P. 368; Halpenny V. Pennock, 33 U. C. Q. B. 229. See, also, Palen v. Lent, 5 Bosw. (N. T.) 713; Rotch V. Miles, 2 Conn. 638. 63. Bentley v. Griffin, 6 Taunt, 356; Ex parte Shepherd, 10 Ch. Div. 573; Jenkins V. Flinn, 37 Ind. 352; Weisker v. Lowenthal, 31 Md. 413; Tuttle v. Hoag, 46 Mo. 42, 2 Am. Rep. 481; Swett v. Penrice, 24 Miss. 416; Mackinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522; Noble v. Kreuzkamp, 111 Pa. 68; Thompson v. Hibberd, 14 Phila. (Pa.) 190; Moses v. Pogartie, 2 Hill, Law (S. C.) 335; Hoppek v. Hartby, 7 Baxt. (Tenn.) 411. Compare Krouskop v. Shontz, 51 Wis. 204, 37 Am. Rep. 817; Carreau v. Chapotel 45 La. Ann. 850. 64. See Laws N. T. 1896, o. 272, S 25 (former provision Laws 1860, c. 90, § 8); Gillies V. Lent, 2 Abb. Pr. (N. S.; N. T.) 3 Curr. Law — 8 456; Trieber v. Stover, 30 Ark. 727; Haight V. McVeagh, 69 111. 624; Jaycox v. Wing, 66 111. 182; Colby v. Lamson, 39 Me. 119; Oxnard v. Swanton, 39 Me. 125; Dunbar V. Meyer, 43 Miss. 679. 65. Oxnard v. Swanton, 39 Me. 125. 66. Mass. St. 1862, c. 198. As to the con- struction and effect of this statute, see Knowles v. Hull, 99 Mass. 562; Feran v. Rudolphsen, 106 Mass. 471; Ridley v. Knox, 138 Mass. 83; Browning v. Carson, 163 Mass. 255. Under this statute, it Is held that if neither of them has filed the certificate as provided, the husband will be liable upon a contract made by his wife In the prose- cution of business on her separate account, whether or not the person contracting with the "wife did so upon her sole, and exclusive credit. Feran v. Rudolphsen, supra. But this statute does not apply to a husband domiciled In another state, whose wife does business In Massachusetts. Hill v. Wright, 129 Mass. 296. 67. Harrison v. Grady, 12 Jur. (N. S.) 140. And see Hentze v. MarjenhofC, 42 S. C. 427. 68. Bngland: Debenham v. Mellon, 6 App. Gas. 24; Phillipson v. Hayter, L. R. 6 C. P. 38; Etherington v. Parrot, 1 Salk. 118; Bmmett v. Norton, 8 Car. & P. 506; Clifford V. Laton, 3 Gar. & P. 15; Freestone v. Butcher, 9 Gar. & P. 643; Harrison v. Grady, 12 Jur. (N. S.) 140. Alabama: Hughes v. Chadwlck, 6 Ala. 651. Colorado: Hardenbrook v. Harrison, 11 Colo. 9. Connectlcnt: Benjamin V. Benjamin, 16 Conn. 357, 39 Am. Dec. 384. Illinois: Compton v. Bates, 10 111. App. 78; Gotta v. Clark, 78 111. 229; Warrington 114 AGENCY IMPLIED PEOM EELATION § 12. 3 Cur. Law. on the ground of agency, by the declarations of the wife in relation to the ordi- nary affairs of the household."' It would seem' clear, however, from the reason on which this rule is based, that it does not apply where husband and wife, al- though they may cohabit, do not maintain a house.'"' But the common law, as to the agency of the wife binding the husband in ordinary domestic affairs becomes unimportant when by statute both husband and wife are made responsible for family expenses.''^ The implied authority of the wife under this doctrine extends to the pur- chase of such articles only as are necessary or suitable for herself and the family, taking into consideration their station in life and their style of living. It does not extend to the purchase of articles which have no relation to the household, or are unsuitable to the husband's style of living, or to purchases which are clearly extravagant or excessive.'''' A wife has no implied authority to bind her husband by a purchase of jewelry which is unsuitable to their station in life,'' if, indeed, she has implied authority to purchase jewelry at all on his credit.'* The pre- sumption that a wife has authority to bind her husband by the purchase of arti- cles for domestic use, and in other matters pertaining to the affairs of the house- hold, is a presumption of fact and not a conclusive presumption of law, and may be rebutted by showing that there was no authority in fact," provided, of course, the husband is not estopped by having clothed the wife with apparent authority. The husband is certainly not liable for articles purchased by his wife on hia V. Anable, 84 IH. App. 593; Hibler v. Thom- as, 99 111. App. 355. Indiana: Litson v. Brown, 26 Ind. 489; Watts V. Moffett, 12 Ind. App. 399. Maine: Furlong v. Hysom, 35 Me. 332; Baker v. Carter, 83 Me. 132, 23 Am. St. Rep. 764. Mlnnesotai Flynn v. Messenger, 28 Minn. 208, 41 Am. Rep. 279; Wagner v. Nagel, 33 Minn. 348; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; S. E. Olson Co. v. Toungqulst, 76 Minn. 26. MlBsonrl: Sauter v. Scrutohfleld, 28 Mo. App. 150; Steinhauser v. Spraul, 127 Mo. 541. New Hampshire: Tebbets v. Hapgood, 34 N. H. 420. New Jersey: Vusler v. Cox, 53 N. J. Law, 516. New York: Lindliolm V. Kane, 92 Hun, 369; MoCutchen v. MoGahay, 11 Johns. 281, 6 Am. Dec. 373; Keller v. Phillips, 39 N. T. 351; Cromwell v. Benjamin, 41 Barb. 558. Oblo; McMillan v. Auerback, 7 Ohio N. P. 376. Pennsylvania: Moore V. Copley, 165 Pa. 294, 44 Am. St. Rep. 664. Vermont: Oilman v. An'drus, 28 Vt. 241, 67 Am. Dec. 713. Wisconsin: Haberman v. Gasser, 104 Wis. 98 An order by the wife to a third party, in whose care and custody her husband had left their vacant residence, directing such party to allow an upholsterer to take cur- tains and furniture therefrom and to do work therein as ordered by her, is within her general agency to act for him in all matters connected with the domestic econ- omy of the house and family, and will bind the husband. Tyler v. Mutual District Mes- senger Co., 17 App. D. C. 85. 69. Anon., 1 Strange, 527. See, also, An- derson V. Sanderson. 2 Starkie, 204; Emer- son V. Blonden, 1 Bsp. 142; Casteel v. Cas- teel, 8 Blackf. (Ind.) 240, 44 Am. Deo. 763; Pickering v. Pickering, 6 N. H. 120; Cham- berlain V. Davis, 33 N. H. 122. 70. It was so held in Debenham v. Mel- lon, 6 App. Cas. 32. 71. Gaffleld v. Scott, 40 111. App. 380. The term "expenses of the family," as used in the statute (Rev. St. 111. 1874, c. 68, § 15.) making such expenses chargeable upon the property of both husband and wife, is not synonymous with "necessaries," which may be personal and individual, and does not include an article which in no way con- duces to the welfare of the family gen- erally, although at times it is used or dis- played in the family by the one for whom it was purchased. Hyman v. Harding, 162 111. 357. 72. Debenham v. Mellon, 6 App. Cas. 24;' Montague v. Benedict, 3 Barn. & C. 631; Harrison v. Grady, 13 Law T. (N. S.) 369, 12 Jur. (N. S.) 140; Lane v. Ironmonger, 13 Mees. & W. 368; Philllpson, v. Hayter, L. R. 6 C. P. 38; Freestone v. Butcher, 9 Car. & P. 643; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362: Eaynes v. Bennett, 114 Mass. 424; Cany v. Patton, 2 Ashm. (Pa.) 140. 73. Montague v. Benedict, 3 Barn. & C. 631. Diamond earrings, a watch for the wife's daughter by a former marriage and not a member of the husband's family, and a chain given to the lover of a servant, are not necessaries. Otto v. Matthie, 70 111. App. 54. And see Hyman v. Harding, 162 111. 357. 74. See Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362. 75. Etherington v. Parrot, 1 Salk. 118; Keller v. Phillips. 39 N. Y. 351; Cromwell V. Benjamin, 41 Barb. (N. T.) 560; Sauter V. Scrutchfield, 28 Mo. App. 155. 3 Cur. Law. AGENCY IMPLIED FEOM RELATION § 13. 115 credit contrary to his prohibition^ if the person dealing with her had notice of the prohibition,'"' unless the articles are necessaries and he has neglected his duty to provide them, as will be hereafter explained, the burden of proving which is on the person furnishing the articles. The mere fact that a husband's prohibition to his wife to deal on his account is not communicated to persons with whom she subsequently deals does not render the husband liable to such persons.'^' But it is otherwise if he has previously permitted her to purchase goods on his credit, and tradesmen deal with her without notice that her authority has been revoked." The husband is not liable, in the absence of authority in fact, and in the absence of elements of estoppel, if he has supplied his wife with all necessary and suit- able articles, or with sufficient money to purchase them." Nor can the husband be held personally liable for necessaries which she has expressly bought on her own credit, although they are such as she might have bought on his credit, and charged him with. § 13. Wife's implied authority to procure necessaries on, husband's failure to supply them. In general. — To the rule that a wife is not the agent of her husban^ merely by virtue of the marriage relation, so as to have' implied authority to bind him by contract, there is a well settled exception with respect to the purchase of necessaries in ease of the husband's neglect to support the wife. If a husband deserts his wife or turns her away without cause, or drives her away by his ill- treatment or misconduct, or if, although they may be living separate by mutual consent or may be living together, he fails to provide her with necessaries for herself and her children by him, she has implied authority to procure the same on his credit, and to bind him to pay for them. Her agency in this respect is said to arise from necessity, and is not at all dependent upon the husband's consent. It exists even though he may forbid her to purchase, and though the persons from whom she purchases may know of his waiit of consent, because of the fact that a husband is under a legal duty to support his wife, and the law implies authority on the part of the wife, and imposes liability on the part of the hus- band, by reason of this duty.^" The husband cannot escape liability under such 76. Btherington V. Parrot, 1 Salk. H8; Cromwell v. Benjamin, 41 Barb. (N. T.) 560; Keller v. Phillips, 39 N. Y. 351; Hibler v. Thomas, 99 111. App. 355; Sauter v. Scrutch- fleld, 28 Mo. App. 155. A wife's authority to order goods on her husband's credit Is not affected by a mere complaint on his part as to her extravagance, or by a state- ment that he would not be responsible it It should be continued. There must have been a direct, present, positive, absolute pro- hibition. Morgan v. Chetwynd, 4 Post. & P. 451. 77. Debenham v. Mellon, 6 App. Cas. 31; Jolly V. Rees, 15 C. B. (N. S.) 628; Comp- ton V. Bates, 10 111. App. 78. 78. Debenliam v. Mellon, 6 App. Cas. 36; Jolly v. Rees, 15 C. B. (N. S.) 628; "Watts V. MofCett, 12 Ind. App. 399; Wallis v. Bld- dick, 22 "Wkly. Rep. 76; Cothran v. Lee, 24 Ala. 380. 79. Holt v. Brian, 4 Barn. & Aid. 252; Morgan v. Chetwynd, 4 Post. & P. 451; Montague v. Benedict, 3 Barn. & C. 631; Debenham v. Mellon, 6 App. Cas. 24; Sea- ton V. Benedict, 5 Bing. 28; Reid v. Teakle, 13 C. B. 627; Reneaux v. Teakle, 8 Exch. 680; Cromwell v. Benjamin, 41 Barb. (N. T.> 558; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Clark v. Cox, 84' Mich. 204; Sauter v. Scrutchfield, 28 Mo. ' App. 155. Compare Ruddock v. Marsh, 1 Hurl. & N. 601, where it was held that the husband was liable for the price of provisions or- dered for the house by his wife, though he had supplied his wife witli sufficient money to keep house, wliere the person supplying the goods had no notice of that fact. SO. Englnnd: Eastland v. Burchell, 3 Q. B. Dlv. 436; Montague v. Benedict, 3 Barn. & C. 63,6; Atkins v. Curwood. 7 Car. & P. 756; Seaton v. Benedict, 5 Bing. 28; John- ston V. Sumner, 3 Hurl. & N. 261; Deben- ham v. Mellon, 6 App. Cas. 31; Deare v. Soutten, L. R. 9 Bq. 151; Emraett v. Norton, 8 Car. & P. 506. Alabamat Zeigler v. David, 23 Ala. 127; Pearson v. Darrington, 32 Ala. 228. California: St. Vincent's Inst, for Insane V. Davis, 129 Cal. 20. Connecticut: Pierpont v. Wilson, 49 Conn. 450; Ahern v. Easterby, 42 Conn, 546 (where the husband was In prison). Delaware: Kemp v. Downham, 5 Har. 417; Biddle v. Frazler, 3 Houst. 258. Florida: Phillips v. Sanchez, 35 I<"Ia. 187. Georgia: Mitchell v. Treanor, 11 Ga. 324, 56 Am. Dee'. 421. Illinois: Seybold V. Morgan, 43 111. App. 39; McClary v. Warner, 69 111. App. 223; Ross V. Ross, 69 111. 569; Wilcoxon v. Read, 95 111. App: 33; Brinckerhoff v. Brlggs, 92 :U6 AGENCY IMPLIED FEOM EELATION § 13. 3 Cur. Law. circmnstances by showing that he gave to the person furnishing the necessaries notice that he would not be responsible.'^ And if he refuses to permit his wife to live with him, he cannot relieve himself from liability for her maintenance and support by showing that he procured board and lodging for her with a person with whom she refused to live, as where she is thus turned away she may procure necessaries from whomsoever she pleases, so long as the place selected by her is re- spectable and the expense thereof does not exceed proper limits, considering the husband's financial condition.'^ This implied authority of the wife to bind the husband for necessaries exists notwithstanding the fact that the wife has a separate estate, for this does not make it any the less the duty of the husband to support her.'' In some decisions, how- ever, it is held that if the wife has an adequate means of support, or receives an adequate maintenance from some source, she cannot procure necessaries on the credit of her husband though she is living separate from him for a justifiable cause, and he neglects to support her.'* The husband is liable for necessaries so furnished to a wife, notwithstanding statutes giving a married woman the capacity *o contract generally or in reference to her separate estate,'" unless the wife in fact *.ontracts for herself. And the principle applies although the husband is a minor, Xn. Apt). 537; Hlbler v. Thomas, 99 111. App. 36E. Indiana: Watkins v. De Armond, 89 Ind. 553; Eiler v. CruU, 99 Ind. 375; Arnold v. Brandt, 16 Ind. App. 169. Iowa: Tibbetts v. Wadden, 94 Iowa, 173; Descelles v. Kadmua, 8 Iowa, 51. And see Devendorf v. Emerson, 66 Iowa, 698. Kentucky: Billing v. Pllcher, 7 B. Men. 458, 46 Am. Dec. 523. M assachnsetts : Benjamin v. Dockham, 134 Mass. 418; Eames v. Sweetser, 101 Mass. 78; Presoott v. "Webster, 175 Mass. 316; Raynes v. Bennett, 114 Mass. 428; Cart- wright V. Bate, 1 Allen, 514, 79 Am. Deo. 759; Hall v. Weir, 1 Allen, 261; Mayhew v. Thayer, 8 Gray, 172. Minnesota: Bergh .v. "Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Oltman v. Tost, 62 Minn. 261; Kirk v. Chinstrand, 85 Minn. 108; S. B. Olson Co. v. Toungqulst, 76 Minn. 26. Mississippi: Bast V. King, 77 Miss. 738. Missonrl: Sauter v. Scrutohfleld, 28 Mo. App. 150; MoKinney v. Guhman, 38 Mo. App. 344; Reed v. Crissey, 63 Mo. App. 185. Nebraska: Belknap v. Stewart, 38 Neb. 304, 41 Am. St. Rep. 729. Netr Hampshire: Ferren v. Moore, 59 N. H. 106; Allen v. Aldrich, 29 N. H. 63; Rum- ney v. Keyes, 7 N. H. 571; Morrison v. Holt, 42 N. H. 478, 80 Am. Dec. 120; Ott v. Hentall, 70 N. H. 231. Tievr Jersey: "Vusler v. Cox, 63 N. J. Daw^, 516; Snover v. Blair, 25 N. J. Law, 94. New York: Baker v. Barney, 8 Johns. 72. 5 Am. Dec. 326; Lockwood v. Thomas, 12 Johns. 248; Cromwell v. Benjamin, 41 Barb. 558; Comstook v. Green, 88 Hun, 64; Ray- mond V. Cowdrey, 19 Misc. 34; Hardy v. Eagle, 23 Misc. 441. Pennsylvania: Cany v. Patton, 2 Ashm. 140; Hultz V. Glbbs, 66 Pa. S60; Llewellyn V. Levy, 163 Pa. 647; Moore v. Copley, 165 Pa. 294, 44 Am. St. Rep. 664. Rhode Island: Anthony v. Phillips, 17 R. I. 188. Sonth Carolina: Clement V. Mattison, 3 Rich. Law, 93. Texaat Black v. Bryan, 18 Tex. 453. "Vermont: Roberts v. Kelley, 51 Yt. 97; Frost V. "Willis, 13 "Vt. 202. Canada: Tait v. Lindsay, 12 U. C. C. P. 414; GriiHth v. Paterson, 20 Grant Ch. 615. 81. Harris v. Morris, 4 Esp. 41; Pier- pont V. "Wilson, 49 Conn. 450; Sykes v. Hal- stead, 1 Sandf. (N. T.) 483; "Watkins v. De Armond. 89 Ind. 653; Morrison v. Holt, 42 N. H. 478, 80 Am. Dec. 120, and other cases cited in the note preceding. 82. Kirk v. Chinstrand, 85 Minn. 108; Waxmuth v. McDonald, 96 111. App. 242. 83. Ewers v. Hutton, 3 Esp. 266; Ott v. Hentall, 70 N. H. 231; Callahan v. Patter- son, 4 Tex. 61, 51 Am. Dec. 712; Rushing V. Clancy, 92 Ga. 769; Poole v. People, 24 Colo. 510; Prescott v. "Webster, 175 Mass. 316. 84. Hunt V. Hayes, 64 Vt. 89, S3 Am. St. Rep. 917; Liddlow v. "Wilmot, 2 Stark. 86; "War V. Huntly, 1 Salk. 118; Johnston v. Sumner, 3 Hurl. & N. 261; Clifford v. Laton, 3 -Car. & P. 15; Dixon v. Hurrell, 8 Car. & P. 717; Bazeley v. Forder, 9 Best & S. 599; Litson V. Brown, 26 Ind. 489; Arnold v. Brandt, 16 Ind. App. 171; Archibald v. Flynn, 32 U. C. Q. B. 523; Fredd v. Eves, 4 Har. (Del.) 385. But a precarious income is not sufficient, Thompson v. Hervey, 4 Burrow, 2177. And see Lockwood v. Thomas, 12 Johns. (N. T.) 248; Anderson v. McLeod, 2 P. E. Island Rep. 142. "In this connection it is worthy of remark, if the husband's lia- bility when he turns his wife away is put upon the ground of agency arising from necessity, as many of the cases do put it. it logically follows that when there is no necessity there can be no agency, for ces- sante ratione legis, cessat ipse lex; and there can be no necessity when the wife has means of her own with which she can sup- ply herself." Hunt v. Hayes, supra. 85. Graham v. Schleimer, 28 Misc. (N. T.) 535; "Wilson v. Herbert, 41 N. J. Law, 454, 32 Am. Rep. 243; Dunbar v. Meyer, 43 Miss. 684; Cook v. Ligon, 54 Miss. 368; Ott v. •Hentall, 70 N. H. 231; McMillan v. Auerback, 7 Ohio N. P. 376. 3 Gtir. Law. AGENCY IMPLIED PEOM EELATIOJST § 13. 117 for a minor may bind himself by a contract to pay for necessaries furnished to himself or his wife and children.** The principle applies only when necessaries are in fact furnished the wife. He is not liable, unless agency in fact on the part of the wife is shown, for breach of a, contract to purchase necessaries.'^ In order that a husband may be bound by his wife's purchase of necessaries, she must act for him in making the purchase. He is not boimd if the credit is given to her in- dividually. Where a wife lives with and is supported by her father, the law will not imply a promise on the part of the husband to pay the father for the sup- port, unless there is something to show that pa3rment was expected and intended, for the relationship of parent and child excludes the ordinary implication. *' But a husband has been held liable for necessaries furnished his wife, after her desertion by him, by her son by a former marriage,'® or by her mother."" Effect of separation of husband and wife, abandonment^ desertion, etc. Sep- aration by agreement. Allowance. — The fact that a husband and wife are living separate and apart by mutual consent or agreement does not take away her im- plied authority to bind him for necessaries, if he fails to provide them, and has not made her an adequate allowance for her support.""^ He is not liable, how- ever, if he makes her an adequate allowance, and pays the same, and tradesmen who furnish her with articles after the separation act at their peril."^ Some of the courts, but not aU, have held that the husband is not liable in such a case, even though the person furnishing the necessaries may have had no notice of the separation and allowance.'^ 86. Chappie v. Cooper, 13 Mees. & W. 252; Turner v. Trisby, 1 Strange, 168; Can- tine V. Phillips' Adm'r, 6 Har. (Del.) 428; People V. Moores, 4 Denio (N. T.) 520; Chap- man V. Hughes, 61 Miss. 339; Dunbar v. Meyer, 43 Miss. 684; Price v. Sanders, 60 Ind. 310. 87. Suiter v. Mustin, 50 Ga. 242. 88. Cantine v. Phillips' Adm'r, 5 Har. (Del.) 428. Compare Biddle v. Prazier, 8 Houst. (Del.) 258; Watkins v. De Armond, 89 Ind. 553; Griffith v. Paterson, 20 Grant CTh. 615. Where a husband took his wile to her father's house and left her there till she obtained a divorce, he was held liable to her father for her board while there, without any express contract between them, notwithstanding the fact that the defend- ant paid his wife an agreed sum, in lieu of alimony, upon her proceedings for divorce. Burkett v. Trowbridge, 61 Me. 251. 89. Eiler v. CruU, 99 Ind. 375. 90. East V. King, 77 Miss. 738. 91. Dixon V. Hurrell, 8 Car. & P. 717; Emmett v. Norton, 8 Car. & P. 506; John- ston v. Sumner, 3 Hurl. & N. 261; Pearson v. Darrington, 32 Ala. 243; Seybold v. Mor- gan, 43 111. App. 39; McClary v. Warner, 69 111. App. 223; Schnuekl© v. Bierman, 89 111. 454; Mayhew v. Thayer, 8 Gray (Mass.) 172; Oltman v. Tost, 62 Minn. 261; McKinney v. Guhman, 38 Mo. App. 344; Belknap v. Stew- art, 38 Neb. 304, 41 Am. St. Rep. 729; Town of Rumney v. Keyes, 7 N. H. 571; Vusler v. Cox, 53 N. J. Law, '616; Baker v. Barney, 8 Johns. (N. T.) 72, 5 Am. Deo. 326; Lock- wood v. Thomas, 12 Johns. (N. T.) 248; Raymond v. Cowdrey, 19 Misc. (N. T.) 34; Cany v. Patton, 2 Ashm. (Pa.) 140; Frost v. Willis, 13 Vt. 202; Tait v. Lindsay, 12 U. C. C. P. 414. 92. Rawlyns v. Vandyke, 3 ESp. 250; Hodgkinson v. Fletcher, 4 Camp. 70; Hold- er V. Cope, 2 Car. & K. 437; Emmett v. Nor- ton, 8 Car. & P. 506; Mizen v. Pick, 3 Mees. & W. 481; Negus v. Forster, 46 Law T. (N. S.) 675; Burrett v. Booty, 8 Taunt. 343; Mal- lalieu V. Lyon, 1 Fost. & F. 431; Baker v. Barney, 8 Johns. (N. T.) 73, 5 Am. Dec. 326; Mott V. Comstock, 8 Wend. (N. T.) 544; Kimball v. Keyes, 11 Wend. (N. T.) 34; Le Boutlllier v. Fiske, 47 Hun (N. T.) 324; Raymond v. Cowdrey, 19 Misc. (N. T.) 34; Hatch v. Leonard, 71 App. Div. (N. T.) 32; Fredd v. Eves, 4 Har. (Del.) 385; Reese v. Chilton, 26 Mo. 598; Zealand v. Dewhurst, 23 U. C. C. P. 117. Compare, however, Ren- nick V. Fioklin, 3 B. Mon. (Ky.) 166, where, though husband and wife separate, and pro- vision be made for her maintenance, yet If during the separation the wife buys neces- saries and the parties become reconciled and the necessaries come to the possession of the wife and family, the husband is lia- ble therefor. A contract between the hus- band and a third person to maintain the wife will not relieve him from liability for necessaries furnished her if she is driven away by the 111 usage of such third person, or if he otherwise fails to perform the con- tract; but it is otherwise if the wife leaves- or refuses to accept such maintenance, with - out cause. Pidgin v. Cram, 8 N. H. 360. The fact that the husband had conveyed prop- erty to trustees for the wife does not re- lieve him from liability, unless it is shown that the trustees accepted the trust and took possession of the property. Burrett v. Booty, 8 Taunt. 343, 93. Reeve v. Conyngham, 2 Car. & K. 444; Mizen v. Pick, 3 Mees. & W. 481; Wallis v. Biddiok, 22 Wkly. Rep. 76; Cany v. Patton, 2 Ashm. (Pa.) 144. Contra, Rawlyns v. Van- dyke, 3 Bsp. 250; Lawrence v. Brown, 91 Iowa, 342. The general reputation of the separation has been held to be sufflcient no- 118 AGENCY IMPLIED FEOM EELATION § 13. 3 Cur. Law. In order that a husband may be relieved from liability for necessaries furnish- ed his wife because of having made her an allowance, the allowance must have been paid. A mere unperformed agreement to pay is not enou*h.°* And the al- lowance must have been adequate, taking into consideration the station in life of the parties, and. the means of the husbandj^^ unless the wife has agreed to accept the allowance as suflScient, in which case she must repudiate the agreement, and offer to return to him, before she can bind him by purchase of necessaries.'' Husband's desertion of wife. — If a husband deserts or turns away his wife without STiffieient cause, and without an adequate provision for her support, she clearly has implied authority to purchase necessaries on his credit and bind him to pay for them. But this does not apply where a husband leaves his wife or turns her away for sufficient cause, as because of adultery'' or extreme cruelty."' Nor does the rule apply where the husband, after deserting or driving away the wife without sufficient cause, offers to return or take her back, and she rejects the offer,'" unless it appears that the offer was not made in good faith, or was accompanied by conditions which he had no right to impose, or that the wife had sufficient cause for rejecting it.^ Husband's insanity. — The fact that a husband is insane, and confined in an asylum or elsewhere, does not affect the wife's right to support, and if no pro- vision is made for her support out of his estate, she has the same implied author- ity to bind him for necessaries as if he were sane and failed to furnish her ade- quate support.^ Wife's abandonment of husband. — If a wife leaves her husband without his consent and without sufficient cause, she has no implied authority to bind him even for necessaries, for under such conditions there is no duty on the part of the husband to support her.' By the weight of authority, a tradesman who supplies tice. Tod v. Stokes, 12 Mod. 244; Baker v. Barney, 8 Johns. (N. T.) 73, 5 Am. Dec. 326; Le Boutillier v. Piske, 47 Hun (N. Y.) 324. As we shall see In another section, where a husband allows his wife to purchase goods on his credit, or otherwise holds her out as having authority, and then separates from her and makes her an allowance, he will be estopped to deny the continuance of her authority as against tradesmen who con- tinue to supply her on his credit without notice of the changed conditions. "But if, though a tradesman, he had never been so authorized to give credit to the wife, but merely knew, as any one else knew, that the two were living together as man' and wife, then there is no duty on the husband to give notice to him of the separation." Wallis v. Biddick, 22 "Wkly. Rep. 76. 94. Hodgkinson v. Fletcher, 4 Camp. 70; Nurse v. Craig, 2 Bos. & P. 148; Beale v. Arabin, 36 Law T. (N. S.) 249; Baker v. Barney, 8 Johns. (N. T.) 72, 5 Am. Dec. 326; McKinney v. Guhman, 38 Mo. App. 347, 95. Dixon v. Hurrell, 8 Car. & P. 717; Holder v. Cope, 2 Car. & K. 437; Hodgkin- son V. Fletcher, 4 Camp. 70; Baker v. Samp- son, 14 C. B. (N. S.) 385; Mayhew v. Thayer, 8 Gray (Mass.) 172, and other cases cited in note, supra. 90. Biffln v. Bignell, 7 Hurl. & N. 877; Eastland v. Burchell, 3 Q. B. Div. 432; Al- ley V. Winn, 134 Mass. 77, 45 Am. Rep. 297. 97. Gill V. Read, 5 R. I. 344, 73 Am. Dec. 73. A bigamous marriage by a wife, and her conviction therefor, does not justify her husband in casting her off, or relieve him from liability for necessaries after- wards furnished lier, where she acted in good faith, after having been turned away by him without cause, and in the belief, intentionally induced by him, that he was dead. Gartwright v. Bate, 1 Allen (Mass.) 514, 79 Am. Dec. 759. 98. Sawyer v. Richards, 65 N. H. 186. A husband is none the less liable for neces- saries furnished his wife after a separa- tion through his fault, because she and the person furnishing the same conspired to abduct his minor child with a view to com- pelling him to settle a separate maintenance on her. Burlen v. Shannon, 14 Gray (Mass.) 433. 99. Walker v. Laighton, 31 N. H. 111. 1. Walker v. Laighton, 31 N. H. Ill; Wax- muth V. McDonald, 96 111. App. 242. The fact that the husband requires that the wife shall change her place of residence does not excuse her rejection of his offer to live with her, for he has a right to flx their residence at any suitable place. Walk- er V. Laighton, 31 N. H. 111. a. Read v. Legard, 6 Bxch. 636; Richard- son V. Du Bois, L. R. 6 Q. B. 51; Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Booth v. Cottingham. 126 Ind. 431; Thedford v. Reade, 26 Misc. (N. T.) 490. 3. Mainwaring v. Leslie, 2 Car. & P. 507; Clifford V. Laton, 3 Car. & P. 15; Johnston V. Sumner, 3 Hurl. & N. 261; Collins v, Mitchell, 5 Har. (Del.) 369; Sohnuckle v. Blerman, 89 111. 454; Bevier v. Galloway, 71 111. 517; Rea v. Durkee, 25 111. 503; Oln- son v. Heritage, 45 Ind. 73, 15 Am. Rep. 3 Cur. Law. AGENCY IMPLIED FEOM EELATIOK § 13. 119 the wife with necessaries under such circumstances cannot hold the husband lia- ble, even though he may have had no notice of the separation,* unless he can make out an estoppel against the husband by showing that he had allowed the wife to make such purchases before the separation, and thus clothed her with ap- parent authority to make the purchase in question.' A wife does not abandon her husband, so as to render this rule applicable, where she has sufficient cause for leaving him, as in the case of adultery on his part,* or conduct amounting to what the law regards as cruel treatment.' And in such eases the husband is liable for necessaries furnished her, even though he may have given notice before they were furnished that he would not be respon- sible.' The wife must have left the husband because of his misconduct, and not from some other and insufBcient cause." She is not justified in leaving, so as to carry with her implied authority to bind him for necessaries, merely because of quarrels, disagreements, and difficulties, not amounting to cruel treatmenl^" . 258; Harttmann v. Tegart, 12 Kan. 177; Peaks V. Mayhew, 94 Me. 571; Benjamin v. Dockham, 132 Mass. 181; Inhabitants of Sturbridge v. Franklin, 160 Mass. 149; Reese V. Chilton, 26 Mo. 598; Rutherford v. Coxe, 11 Mo. 349; Belknap v. Stewart, 38 Neb. 304, 41 Am. St. Rep. 729; Allen v. Aldrich, 29 N. H. 63; Blowers v. Sturtevant, 4 Denlo (N. T.) 46; Catlin V. Martin, 69 N. T. 393; Bostwick V. Brower, 22 Misc. (N. T.) 709; Monroe County Sup'rs v. Budlong, 51 Barb. (N. T.) 493; Lippincott's Estate, 12 Phila. (Pa.) 142; Williams v. Prince, 3 Strob. (S. C.) 490; Brown v. Patton, 3 Humph. (Tenn.) 185; Morgan v. Hughes, 20 Tex. 141; Cline V. Hackbarth, 27 Tex. Civ. App. 391; Thorne V. Kathan, 51 Vt. 520; Brown v. Mudgett, 40 Vt. 68; Sturtevant v. Starin, 19 Wis. 269. But the husband may be liable by reason of an express promise, or by reason of a promise implied from acts on his part war- ranting the Inference of agreement in fact. Brown v. Patton, 3 Humph. (Tenn.) 135; Catlin V. Martin, 69 N. Y. 393, and see other cases cited supra this note. Where a per- son furnishes necessaries, during divorce proceedings, to her niece who secured a divorce on the ground of extreme cruelty, and it appeared from letters that the niece left her husband for the purpose of procur- ing a divorce and marrying another man, it was held that the wife left without jus- tiflcatlon and the former husband was not liable for the necessaries so furnished. Cor- ry V. Lackey, 105 Mich. 363. 4. McCutohen v. McGahay, 11 Johns. (N. T.) 281, 6 Am. Dec. 373; Vusler v. Cox, 53 N. J. Law, 518; Reese v. Chilton, 26 Mo. 698; Sturtevant v. Starin, 19 Wis. 269. And see Day v. Wamsley, 33 Ind. 145. 5. Hartjen v. Ruebsamen, 19 Misc. (N. Y.) 149; Anthony v. Phillips, 17 R. I. 188. 6. Sykes v. Halstead, 1 Sandf. (N. Y.) 483. 7. Forristall v. Lawson, 34 Law T. (N. S.) 903; Harrison v. Grady, 13 Law T. 369, 12 Jur. (N. S.) 140; Emmett, v. Norton, 8 Car. & P. 606; Johnston V. Sumner, 3 Hurl. & N. 261; Zeigler v. David, 23 Ala. 127; Kemp V. Downham, 5 Har. (Del.) 417; Bld- dle v. Frazier, 3 Houst. (Del.) 258; lititoheH ▼. Treanor, 11 Ga. 324, 56 Am. Deo. 421; Ross V, Ross, 69 111. 569; Seybold v. Morgan, 43 111. App. 39; Wilson v. Bishop, 10 111. App. 6SS; Desceiles v. Kadmi'.s, S Iowa, 51; Bil- ling V. Pilcher, 7 B. Mon. (Ky.) 458, 46 Am. Dec. 523; Thorpe v. Shapleigh, 67 Me. 235; Hancock v. Merrick, 10 Cush. (Mass.) 41; Reynolds v. Sweetser, 15 Gray (Mass.) 78; Mayhew v. Thayer, 8 Gray (Mass.) 172; Ott v. Hentall, 70 N. H. 231; AUen v. Aid- rich, 29 N. H. 63; Snover v. Blair, 25 N. J. Law, 94; Comstock v. Green, 88 Hun (N. Y.) 64; Pomeroy v. Wells, 8 Paige (N. Y.) 406; Hultz v. Gibbs, 66 Pa. 360; Com. v. Wall, 4 Pa. Dist. R. 326; Clement v. Mat- tison, 3 Rich. Law (S. C.) 93; Griffith v. Patterson, 20 Grant Ch. 615; Hughes v. Rees. 10 Ont. Pr. Rep. 301. Bringing a prostitute into the house, or threatening to confine the wife in a madhouse, Is equivalent to turn- ing her away, and Justifies her In leaving. Houliston V. Smyth, 2 Car. & P. 22, 3 Bing. 127; Tempany v. Hakewill, 1 Fost. & F. 438; Desceiles v. Kadmus, 8 Iowa, 51. She has Implied authority to pledge his credit for necessaries, if he connives at or con- dones his wife's adultery, and then turns her away, although he has expressly for- bidden the person supplying them to trust her, Wilson v. Glossop, 20 Q. B. Dlv. 354, 57 Law J. Q. B. Div. 161; Harris v. Mor- ris, 4 Bsp. 41. 8. Wilson V. Glossop, 20 Q. B. Div. 354, 57 Law J. Q. B. Dlv. 161; Harris v. Morris, 4 Bsp. 41; Sykes v. Halstead, 1 Sandf. (N. Y.) 483; Watkins v. De Armond, 89 Ind. 553. 9. Therefore, where it appeared that the husband had used violence towards the wife on an occasion five months before their sep- aration, and there had been other diflicul- ties and quarrels, but when she left his house it was not from any apprehension of ill-treatment, but in order to make a visit, and she refused to return unless his relatives, who lived with him, would go away, — it was held that he was not liable for board furnished her during such separa- tion. Blowers v. Sturtevant, 4 Denio (N. Y.) 46. 10. Reed v. Moore, 5 Car. & P. 200; Bid- die V. Frazier, 3 Houst. (Del.) 258, 263; Blowers v. Sturtevant, 4 Denio (N. Y.) 46; Breinlg v. Meitzler, 23 Pa. 161. No amount of ill-treatment, short of personal violence, or such as to induce a reasonable fear oJ personal violence, it has been held would entitle a wife to pledge her husband's credit after leaving his house without his consent. 120 AGENCY IMPLIED TEOM KELATION § 13, 3 Cur. Law. The rule that a wife who has left her husband without cause and without his consent cannot bind him for necessaries does not apply where the separation is involuntary on the part of the wife, and without her fault, or even where it is due to her fault, if it is through operation of the law, as in case of her con- viction and imprisonment for a crime.^^ Nor does the rule apply, even where the separation was voluntary on the part of the wife, and without sufScient cause, where she has returned to her husband, or has in good faith offered to return and been refused.^* Wife's adultery. — ^A husband is not liable for necessaries furnished his wife after she has committed adultery and eloped, whether the person supplying her with necessaries knows of the circumstances of the separation or not.^' And the same is true where the wife has been left or turned away by the husband for adultery,^* or where she has committed adultery after having been turned away or deserted by the husband without cause, or after having separated from him with his consent, or for sufficient cause.^' But if the husband condones the adultery and receives the wife back, and afterwards turns her away or leaves her without new cause, he will be liable for necessaries subsequently furnished her.^° Necessity for a valid marriage. — This rule applies, not only where the parties axe legally husband and wife, but also where a man has lived with a woman and held her out as his wife, without beiug legally married to her, or without having gone through any form of marriage at all, provided the person furnishing the necessaries relies on the express or implied representation of the man, and be- lieves that the woman is his wife.^' But the rule does not apply where the per- son furnishing the necessaries knows that there has been no marriage, or where although he may not know this, he has not been misled by any conduct on the part of the man." Of course a man may make such woman his agent for the purpose of purchasing necessaries, by expressly authorizing her to do so or by holding her out as having such authority, even though the tradesman knows that there is no valid marriage. In such case the same rules would apply as in the ap- pointment of any other agent. Effect of annulment of marriage or divorce. — A husband is under no duty to provide for his wife after a valid divorce a vinculo matrimonii, or after an Horwood V. Heffer, 3 Taunt. 421; Emery v. Emery, 1 Tounge & J. 501; Brown v. Ack- royd, 6 El. & Bl. 819; Breinig v. Meltzler, 23 Pa. 156. A Tvife Is not justified In leav- ing because of the husband's refusal to send away relatives who are living with him. Blowers v. Sturtevant, I Denlo (N. Y.) 46. Utter indifference and neglect upon the part of a husband, not accompanied by proof of physical violence, threats or specific mis- conduct of any kind towards his wife, do not Justify her in abandoning him, nor render him liable to third persons who thereafter supply her with necessaries. Bostwick V. Brower, 22 Misc. (N. T.) 709. 11. Bates V. Enrlght, 42 Me. 113. la. Cunningham v. Irwin, 7 Serg. & R. (Pa.) 247, 10 Am. Dec. 458; Henderson v. Stringer, 2 Dana (Ky.) 291; McCutchen v. McGahay, 11 Johns. (N. Y.) 281, 6 Am. Deo. 373; McGahay V. "Williams, 12 Johns. (N. Y.) 293; Blowers v. Sturtevant, 4 Denio (N. Y.) 46. But see Child v. Hardyman, 2 Strange, 875. That the offer to return may be made through a third person, see McGahay v. Wil- liams, 12 Johns. (N. Y.) 293. The return or offer to return Imposes no liability for nec- essaries previously supplied. Oinson v. Her- itage, 4B Ind. 73, IB Am. Rep. 258; Williams V. Prince, 3 Strobh. L,. (S. C.) 490; Reese V. Chilton, 26 Mo. 598. 13. Morris v. Martin, 1 Strange, 647; Go- vier V. Hancock, 6 Term R. 603; Gill v. Read, 5 R. I. 344, 73 Am. Deo. 73. 14. Ham v. Toovey, 1 Selw. N. P. 228; Gill V. Read, 5 R. I. 344, 73 Am. Dec. 73; Peaks V. Mayhew, 94 Me. 571. 15. Govler v. Hancock, 6 Term R. 603; Cooper T. Dloyd, 6 C. B. (N. S.) 519; Gill v. Read, B R. L 343, 73 Am. Dec. 73; Almy V. Wilcox, 110 Mass. 443. This does not ap- ply where the husband consented to the adultery (Wilson v. Glossop, 19 Q. B. Div. 379; Ferren v. Moore, 59 N. H. 106) nor does It apply where the husband turns away the wife without cause, and intentionally leads her into the belief that he Is dead, and she afterwards, in good faith, contracts a bigamous marriage. Cartwright v. Bate. 1 Allen (Mass.) 514, 79 Am. Dec. 759. 16. Harris v. Morris, 4 Esp. 41. 17. Paule V. Goding, 2 Post. & P. 585; Robinson v. Nahon, 1 Camp. 245. 18. Munro v. De Chemant, 4 Camp. 215; Gomme v. Franklin. 1 Fost. & F. 465. 3 Cur. Law. AGENCY IMPLIED EEOM EELATION" § 13. 121 annulment of the mairiage, and cannot be held liable for necessaries furnished to her thereafter.^" But of course, a liability for necessaries furnished cannot be affected by a subsequent diTorce or annulment of the marriage. When a wife is granted a divorce a mensa et thoro, with a "provision for alimony, and the husband fails to pay the alimony, he will be liable for necessaries furnished her during the period of such neglect."" Pendency of proceedings for a divorce. — The mere pendency of proceedings for a divorce, either by the husband or by the wife, does not relieve the husband from his duty to support the wife, and he will be liable, as in other cases, for necessaries furnished her pending such proceedings,"^ unless the court has made an allowance of alimony to the wife for her maintenance pending the suit, and it is paid by the husband."" The allowance of alimony, either temporary or permanent to the wife, does not relieve the husband from liability for necessaries furnished be- fore such allowance, although after commencement of the suit."' What are "necessaries" for which the husband is liable. — The term "neces- saries," within the meaning of the rule imder consideration, includes necessary food, drink, and clothing,"* medicines, and medical attendance or advice, and nursing,"" a suitable lodging or other place of resid'ence,"" services of domestics suit- able to the husband's and wife's condition in life,"' etc. The term is not limited to such things as are absolutely essential to sustain life, but includes such as are necessary and proper to support the wife in accordance with the rank or position in life and the estate of the husband, and the style of living and position in society into which he has introduced her, or which he has allowed. her to as- sume."* It follows that for the purpose of determining whether particular articles 19. Anstey v. Manners, Gow, 10. SO. Hunt V. De Blaqulere, B Bing. 550. 21. Keegan v. Smith, 5 Barn. & C. 375; Houliston V. Smyth, 3 Bing. 127; Johnston V. Allen. 39 How. Pr. (N. T.) 506; Minck V. Martin, 54 N. T. Super. Ct. 136; Sykes V. Halstead, 1 Sandf. (N. T.) 484; Hancock V. Merrick, 10 Cush. (Mass.) 41; Dowe v. Smith, 11 Allen (Mass.) 107; Burkett v. Trowbridge, €1 Me. 251. The wife is not bound to accept board and a separate apart- ment, in the house where her husband re- sides, while prosecuting a suit against him for divorce; and an offer of the same will not exempt him from liability for nec- essaries supplied to her. Sykes v. Halstead, 1 Sandf. (N. T.) 483. 22. Wlllson V. Smyth, 1 Barn. & Ad. 801; Hare v. Gibson, 32 Ohio St. 33, 30 Am. Rep. 568; Crittenden v. Schermerhorn, 39 Mich. 661, 33 Am. Rep. 440; Bennett v. O'Fallon, 2 Mo. 69, 22 Am. Dec. 440; Johnston v. Allen, 39 How. Pr. (N. T.) 506. 23. Keegan v. Smith, E Barn. & C. 375; Dowe V. Smith; 11 Allen (Mass.) 107. And see Burkett v. Trowbridge, 61 Me. 252. 24. Wallls V. Biddick, 22 Wkly. Rep. 76; Reed v. Crissey, 63 Mo. App. 184; Sauter V. Scrutchfleld, 28 Mo. App. 157; Dolan v. Brooks, 168 Mass. 350. As defined in Reed V. Crissey, supra, necessaries for which the husband is liable ■when furnished the wife, consist of food, drink, clothing, washing, physic, medical attendance. Instruction and suitable residence. 25. Beale V. Arabln, 36 Law T. (N. S.) 249; Porristall v. Dawson, 34 Law T. (N. S.) 903; Harrison v. Grady, 12 Jur. (N. S.) 140; Anon., 1 Strange, 527; Cothran v. Lee, 24 Ala. 380; Black v. Clements, 2 Pen. (Del.) 499; Bevier v. Galloway, 71 111. B17; Wil- coxon V. Read, 95 111. App. 33; Seybold v. Morgan, 43 111. App. 39; Towery v. McGaw, 22 Ky. L. R. 165, 56 S. W. 727; Long v. Beard, 20 Ky. L. R. 1036, 48 S. W. 158; Car- penter V. Hazelrigg, 20 Ky. L. R. 231, 45 S. W. 666; State v. Housekeeper, 70 Md. 162, 14 Am. St. Rep. 340; Carstens v. Hanselman, 61 Mich. 426, 1 Am. St. Rep. 606; Reed v. Crissey, 63 Mo. App. 184; Tebbets v. Hap- good, 34 N. H. 420; Ott v. Hentall, 70 N. H. 231; Comstook v. Green, 88 Hun (N. T.) 64; Hardy v. Eagle. 23 Misc. (N. Y.) 441; Dixon V. Chapman, 56 App. Div. (N. T.) 542. See, also. Peaks v. MayheTr, 94 Me. 571. But the husband is not liable for medicines and ad- vice furnished to his wife in his absence, by a party not professing to be a physician, or to have any medical skill or knowledge of diseases or their remedies. Wood v. O'Kel- ley, 8 Cush. .(Mass.) 406. Medical attendance for an ordinary hired servant is not a nec- essary. Baker v. Witten, 1 Okl. 160. 26. Oltman v. Tost, 62 Minn. 261; Kirk V. Chinstrand, 85 Minn. 108; Waxmuth v. McDonald, 96 III. App. 242; Ott v. Hentall, 70 N. H. 231; Reed v. Crissey, 63 Mo. App. 184; Sauter v. Scrutchfleld, 28 Mo. App. 157. 27. Plynn v. Messenger, 28 Minn. 208, 41 Am. Rep. 279; Wagner v. Nagel, 33 Minn. 348; Phillips v. Sanchez, 35 Fla. 187. But the labor and services of slaves applied to the support and maintenance of the wife cannot be regarded as necessaries, though their value was not more than sufficient for her necessary support and maintenance. Zelgler v. David, 23 Ala. 127. 28. Phillipson v. Hayter, L. R. 6 C. P. 42; Morgan v. Chetwynd, 4 Fost. & P. 451; Raynes v Bennett. 114 Mass. 428; Shelton 122 AGENCY IMPLIED FEOM EELATION § 13. 3 Cur. Law. or a particular residence furnished to a wife were necessaries, it is proper to prove and to take into consideration the husband's style of living,^* his wealth and income, or capacity to earn money,'" the character and cost of clothing which he had previously allowed the wife to purchase on his credit,'^ the style of living in the society in which he has introduced her or allowed her to appear,'^ etc. In some of the cases it has been said that the question depends upon the condi- tion in life and position of the wife."' But the better opinion and weight of authority is that it depends upon the condition of the husband, as well as the wife, — upon the condition in life of both.'* The term "necessaries" does not include a pew in a place of worship, and a wife cannot bind her husband to pay rent fbr the same without his consent.'' For does the term include money, as such, loaned to the wife. At common law, the husband cannot be held liable therefor, even though it may be shown that the money was intended and in fact used for the purchase of necessaries." In equity, however, according to the weight of authority, where money is advanced to a wife for the purchase of necessaries, on her husband's credit, and under such conditions that she would be authorized to purchase necessaries on his credit, and is properly applied for such purpose, the lender, by application of the equitable doctrine of subrogation, may recover from the husband to the extent to which the money is so applied." V. Hoadley, 15 Conn. 535; Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Bergh v. 'Warner. 47 Minn. 250, 28 Am. St. Rep. 362; Sauter V. Scrutchfleld, 28 Mo. App. 150; Keller v. Phillips, 39 N. Y. 351; Clark v. Cox, 32 Mich. 204. A horse purchased by a wife to be used by her in a business conducted on her own account is not a "necessary" for which the husband can be held liable. Palmer v. Coghlan (Tex. Civ. App.) 55 S. "W. 1122. 29. As that he wore diamonds and kept fast horses. Raynes v. Bennett, 114 Mass. 428. 30. Clark v. Cox, 32 Mich. 204. The pub- lic records, showing: the amount of prop- erty on which, taxes are assessed against the husband, are not admissible for this pur- pose. Raynes v. Bennett, 114 Mass. 427. 31. Raynes v. Bennett, 114 Mass. 428. SS. Clark v. Cox, 32 Mich. 204. 83. Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Thorpe v. Shapleigh, 67 Me. 238. 34. Compton v. Bates, 10 111, App. 78; Wilcoxon V. Read, 95 111. App. 33; Keller V. Phillips, 89 N. Y. 354; Clark v. Cox, 32 Mioh. 204; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Barr v. Armstrong, 56 Mo. 677; Ott v. Hentall, 70 N. H. 231. In Compton v. Bates, 10 111. App. 85, Pills- bury, J., In deciding upon an instruction given in the lower court says: "This in- struction only requires the goods purchased to be of a character necessary and suitable to the position in life of the wife. If, as it would seem, this Instruction was intend- ed to state the rule of the liability of the husband growing out of the necessities of the wife, then it extends the liability of the husband beyond what we had supposed it to be. If the wife has been provided with necessaries suitable to the condition in life of the parties and the estate of the hus- band, then, as we have seen, the husband Is not liable for other goods that may be purchased by the wife, although of the same character of necessaries. To make him liable upon this ground, the goods actu- ally purchased must be needed by the wife for her present use. Besides, the jury, by this instruction, were to determine whether the goods were necessary and suitable by the standard alone of the wife's position in life. It was held In Manby v. Scott, 1 Sid. 109, that 'the estate and degree of the hus- band' should be considered upon this ques- tion, a rule which has not, so far as we are advised, ever been departed from." 35. St. John's Parish v, Bronson, 40 Conn. 75, 16 Am Rep. 17. 36. Knox V. Bushell, 3 C. B. (N. S.) 334; Paule V. Goding, 2 Fost. & F. 585; Zeigler V. David, 23 Ala. 127; Brown v. Woodard, 75 Conn. 254; Gilbert's Bx'r v. Plant, 18 Ind. 308; Skinner v. Tirrell, 159 Mass. 474, 38 Am. St. Rep. 447; Anderson v. Cullen, 16 Daly (N. Y.) 15; Schwarting v. Bisland, 4 Misc. (N. Y.) 534; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. '216; Gill V. Read, 6 R. I. 347, 73 Am. Deo. 73; Mar- shall V. Perkins, 20 R. I. 34, 78 Am. St. Rep. 841. 37. Harris V. Lee, 1 P. Wms. 482; Mar- low V. Pltfeild, 1 P. Wms. 558; Deare v. Soutten, L. R. 9 Eq. 151; Jenner v. Morris, 3 DeGex, F. & J. 45; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216; Kenyon v. Farris, 47 Conn. 510, 36 Am. Rep. 86; Kenny v. Melslahn, 69 App. Dlv. (N. Y.) 572; Reed v. Crlssey, 63 Mo. App. 184. In a late New Jersey case, however, it was held that there could be no such recovery where the husband was merely 111, and had not deserted the wife. Leupple v. Osborn's Bx'rs, 52 N. J. Eq. 637. And in Massachu- setts the doctrine has been repudiated alto- gether. In that state, a husband is not lia- ble, even in equity, in the absence of con- sent or ratification, for money borrowed by his wife and applied in the purchase of nec- essaries, although she may be living sepa- 3 Cur. Law. AGENCY IMPLIED FEOM EELATION § 13. 123 Under a statute making both husband and wife liable for expenses of the family, the term "expenses of the family" is not synonymous with "necessaries," which may be personal and individual, and does not include an article which in no way conduces to the welfare of the family.'' Whether a husband is liable for legal services rendered for his wife on hif credit, on the ground that they were necessaries, depends upon the circumstances. Legal services rendered at the request of a married woman in relation to her estate are certainly not necessaries, and the husband cannot be made liable therefor with- out his consent. It is otherwise, however, in the case of services of an attorney or counsellor at law which are necessary to procure for a wife such sustenance or protection as the husband is under a legal duty to afford her, or which are neces- sary to protect her against wrongs on the part of the husband. Thus it has been held that a husband is liable for legal services rendered in defending a criminal prosecution against his wife,'" particularly when the services are in defending a groundless charge made against her by the husband,'*" or a charge based upon acts done by her with the concurrence of her husband.*^ It has also been held that a husband is liable for legal services rendered for his wife, in order to protect her against him, by having him bound over to keep the peace, etc.,*" unle.ss there is no ground for the proceedings ;*' for services in prosecuting proceedings by the wife against the husband for restitution of conjugal rights, or to compel him to sup- port her;** or in prosecuting against the husband a suit for a divorce a mensa et thoro, if there were seasonable grounds therefor,*'' but not otherwise.*" It is held in England that a wife may bind her husband to pay the fees and disbursements of her solicitor in a suit for a dissolution of the marriage.*' In this country, however, the decided weight of authority is to the effect that the services of an attorney or solicitor for a vsdfe in a suit for annulment of the marriage or for a divorce a vinculo matrimonii are not necessaries, and that the wife cannot bind the husband to pay therefor, whether the suit is brought by the wife,*® or by the rate from him. Skinner v. TirreU, 159 Mass. 474. 38 Am. St. Rep. 447. 38. Hyman v. Harding, 162 lU. 357. 39. Artz V. Robertson, 50 111. App. 27; and cases in the notes following. 40. Conant v. Burnham, 133 Mass. 503, 43 Am. Rep. 532; Warner v. Heiden, 28 Wis. 517, 9 Am. Rep. 515. 41. See Shepherd V. Mackoul, 3 Camp. 326. 42. Shepherd v. Mackoul, 3 Camp. 326; Turner v. Rookes, 10 Add. & B. 47; Wil- liams V. Monroe, 18 B. Mon. (Ky.) 514; Mor- ris V. Palmer, 39 N. H. 123. But not for services in prosecuting an indictment against the husband to punish him for an assault upon her. Grindell v. Godmond, 5 Adol. & E. 755; Conant v. Burnham, 133 Mass. 503, 43 Am. Rep. 532. 43. Smith V. Davis, 45 N. H. 566. 44. Wilson V. Ford, L. R. 3 Exeh. 63. But not for services of an attorney, ren- dered on behalf of his wife in proceeding.s prosecuted by the people against the hus- band for nonsupport. McQuhae v. Rey, 2 Misc. (N. Y.) 476, 3 Misc. 550. 45. Rice V. Shepherd, 12 C. B. (N. S.) 332; Brown v. Ackroyd, 5 El. & Bl. 819; McCurley v. Stockbridge. 62 Md. 422, 50 Am. Rep. 229; Peck v. Marling's Adm'r, 22 W. Va. 708; Langbein v. Schneider, 27 Abb. N. C. (N. T.) 228; Naumer v. Gray, 28 App. Div. (N. T.) 529, 32 App. Div. 627; Hahn v. Rogers. 34 Misc.- (N. Y.) 549. 40. Brown v. Ackroyd, 5 El. & Bl. 819; Baylis v. Watkins, 33 Law J. Ch. 300. 47. Ottaway v. Hamilton, L. R. 3 C. P. Div. 393; Stooken v. Pattrick, 29 Law T. (N. S.) 507. 48. Pearson v. Darrington, 32 Ala. 227; Shelton v. Pendleton, 18 Conn. 417; Dow v. Eystsr, 79 111. 254; Williams v. Monroe, 18 B. Mon. (Ky.) 518; Isbell v. Weiss, 60 Mo. App. 54; Yeiser v. Lowe, 50 Neb. 310; Mor- rison V. Holt. 42 N. H. 478, 80 Am. Dec. 120; Dorsey v. Goodenow, Wright (Ohio) 120; Wing V. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Peck v. Marlfng's Adm'r, 22 W. Va. 70S. In Iowa, it was held contra in Preston V. Johnson, 65 Iowa, 285, and Clyde v. Peavy, 74 Iowa, 47. But compare Johnson v. Wil- liams, 3 G. Greene (Iowa) 97, 54 Am. Dec. 491, where it was held that the husband was not liable, and Sherwin v. Maben, 78 Iowa, 467, where It was held that the husband was not liable for the reason that it appeared that there was no ground for divorce as alleged in the complaint. And see opinion of the court in this case for re- view of oases In this state on this subject. In Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637, Stephens, J., says: "As to this one matter of a suit for a divorce the wife is sui juris, having a clear right to Insti- tute and conduct that kind of a suit in- dependently of her husband's consent. But this right is praetlcallr denied to her. if 124 AGENCY IMPLIED FROM EELATION § 13. 3 Cur. Law. husband.*' But certainly the husband would not be liable for legal services ren- dered to his wife, where she is living apart from him by reason of her own adul- tery."" Where a wife purchases on her husband's credit some goods which are neces- saries, and others which are not, either by reason of their character or quantity, the husband is liable for the former.^^ But where the articles furnished are not necessaries, the husband cannot be held liable for the whole, or for a fractional part thereof, on the ground that they might have answered the purpose of other articles which would have been necessaries.^^ Wife's funeral expenses. — ^A husband is liable at common law, on implied contract, for his wife's burial expenses,^' but this, of course, is not on the theory of the wife's agency for the husband. Presumption and burden of proof as to necessaries. — When a husband has forbidden tradesmen to supply his wife with articles on his credit, this, as we have seen, does not prevent a tradesman from furnishing her with necessaries, if the husband fails to perform his duty in supplying them. But a tradesman who furnishes her with articles after such prohibition acts at his peril, and in order to hold the husband liable, he has the burden of proving not only that the articles furnished were properly necessaries, but also that the husband had neglected his duty, so as to give the wife the implied authority to purchase on his credit with- out his consent. '* As we have seen, where a husband and wife are living together there is a presumption that she has implied authority, as a matter of fact, to pur- chase on his credit necessaries for the household, unless he has forbidden it, and the prohibition is brought to the notice of tradesmen. But there is no such pre- sumption where the wife is living separate from her husband. In such a ease tradesmen supplying her with necessaries have the burden of proving that the cir- cumstances were such as to authorize her to -bind him.*"* They have the burden she can command no means of paying the agents who are necessary to the conduct of the suit. Therefore, it is that, quoad hoc, she may charge the common funds of her- self and husband In his hands. But as this power on her part is founded on the neces- sity of the case, so its extent does not ex- ceed the demand of the necessity; and there- fore she can charge the common funds (or her husband, which is the same thing In effect) only with the real value of such services as she may procure, and not with the price which she may fix on them by her contract. Upon these views is found- ed the constaiit practice of the court in granting alimony to the wife during the pending of her suit for divorce, and in em- bracing her counsel fees in the allowance. It is worthy of remark that her counsel fees are allowed as a part of her necessary maintenance, arid are allowed before it Is ascertained whether she has a valid ground for a divorce or not." And see Glenn v. Hill, 50 Ga. 94. In Texas, it is held that the husband Is liable for reasonable attor- ney's fees Incurred by his wife in the prose- cution of a suit for divorce, only where it is shown that the suit was instigated by the wife In good faith and upon reasonable grounds. Dodd v. Hein, 26 Tex. Civ. App. 164, 62 S. W. 811; Ceccato v. Deutsohman, 19 Tex. Civ. App. 434. 49. Cooke v. Newell, 40 Conn. 596; Mc- Cullough V. Robinson, 2 Ind. 630; Coffin v. Dunham. 8 Cush. (Mass.) 404, 54 Am. Dec. 769; Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Deo. 695. Contra, Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; Gossett v. Patten, 23 Kan. 340. 50. Peaks v. Mayhew, 94 Me. 571. 51. Bames v. Sweetser, 101 Mass. 78; Rob- erts V. Kelley, 51 Vt. 97. 52. Thorpe v. Shapleigh, 67 Me. 235. 53. See 15 Am. & Eng. Enc. Law, 880; Cunningham v. .'T.eardon, 98 Mass. 538, 96 Am. Dec. 670; Glej,son v. Warner, 78 Minn. 405. 54. Btherlngton V. Parrot, 1 Salk. 118; Hibler v. Thomas, 99 111. App. 355; Bergh V. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Woodward v. Barnes, 43 Vt. 330; Barr v. Armstrong, 56 Mo. 577; Mott v. Comstock, 8 Wend. (N. T.) 544; Keller v. Phillips, 39 N. Y. 351; Theriott v. Bagioll, 9 Bosw. (N. T.) 578. And see McGrath V. Donnelly, 131 Pa. 551. Where a husband notifies a mer- chant not to sell goods on credit to his Tvife and he Is subsequently sued for goods sold to her after such notice, the burden is upon the husband, first, to establish his notice, and having done so, it shifts upon the merchant to show that the husband failed to furnish the necessary and suita- ble support to his wife and family. Hibler v. Thomas, 99 111. App. 355. 55. Johnston v. Sumner, 3 Hurl. & N. 261; Walker v. Simpson, 7 Watts & S. (Pa.) 83, 42 Am. Dec. 216; Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73; Sturbrldge v. Franklin, 160 3 Cur. Law. AGENCY IMPLIED FEOM EELATION § 13. 125 of proving, when the wife has left the husband, that she left him with his consent or for sufficient cause."* Where the husband has made his wife an allowance, one who furnishes her with necessaries has the burden of proving that it was not paid, or was inadequate."' Province of court and jury. — There has been some difficulty in determining when it is for the court, and when for the jury, to say whether particular things furnished to a wife are necessaries, but the following rule may be laid down aa established by the weight of authority, and as in accordance with the general doctrine as to the respective provinces of the court and jury :"' Whether articles of a certain kind, as clothing, food, jewelry, pew-rent, etc., are or are not of such a character that they can be necessaries, is a question of law, which the court must decide, and upon which it must instruct the jury."' But whether any particular thing falls within the classes of articles which may be necessaries, taking into consideration the condition in life of the husband and wife, and whether the quantity or amount furnished were excessive under the circumstances, are questions of fact for the jury.°° If there is no question as to the character of the articles furnished, and they are such as could not under any circumstances, or under the undisputed circumstances of the particular case, fall within any class of necessaries, according to the established law on the subject, the court need not submit the question to the jury."^ Whether an allowance made by a husband to his wife, when living separate, was adequate, is a question for the jury."" Igency to use or dispose of Jiushand's property for maintenance. — ^If a hus- band deserts his wife, or is in prison, leaving her without the means of support, she has implied authority to use his real or personal estate, or to dispose of his money or other personal property, for the purpose of maintaining herself and family, and procuring necessaries."' She may receive and apply the earnings of Mass. 149; S. B. Olson Co. v. Toungqulst, 76 Minn. 26; Peaks v. Mayhew. 94 Me. 571; St. Vincent's Inst, for Insane v. Davis, 129 Cal. 17; Vusler v. Cox, 53 N. J. Daw, 516. 66. Malnwaring v. lieslie, 2 Car. & P. 507; Clifford V. Laton, 3 Car. & P. 16; Blowers V. Sturtevant, 4 Denlo (N. Y.) 46; Stur- bridge v. Franklin, 160 Mass. 149: Hea v. Durkee, 25 111. 503; Billing v. Pilcher, 7 B. Mon. (Ky.) 458, 46 Am. Deo. 523; Hartt- mann v. Tegart, 12 Kan. 177; Peaks v. May- hew, 94 Me. 571; Reese v. Chilton, 26 Mo. 598; Hultz v. Gibbs, 66 Pa. 360. Compare Emmett v. Norton, 8 Car. & P. 506. But it has been held that where the mar- riage has been proven, and It has been shown that the articles turnished were nec- essaries for the wife's support. It is prima facie evidence of the liability of the hus- band, and of his promise to pay, and the burden of proof rests upon the husband to show that her separate residence, and want of means of support, was through no fault of his. Eumney v. Keyes, 7 N. H. 671; Al- len v. Aldrich, 29 N. H. 73. 57. Bloomingdale v. BrlnckerhofC, 2 Misc. (N. T.) 49; McKlnney v. Guhman, 38 Mo. App. 344; Johnston v. Sumner, 3 Hurl. & N. 261. Other cases, however, hold that the bur- den is on the husband to show that he has made her a proper allowance or that she has it from some fund of her bwn. Dixon V. Hurrell, 8 Car. & P. 717; Mayhew v. ,Thay- er, 8 Gray (Mass.) 172; Pidgrln v. Cram, 8 N. H. 352; Baker v. Barney, 8 Johns. (N. T.) 67, 5 Am. Deo. 326. 58. Hammon Cont. § 165. 59. Phillipson v. Hayter, L.. R. 6 C. P. 41; Raynes v. Bennett, 114 Mass. 428; St. John's Parish v. Bronson, 40 Conn. 75, 16 Am. Rep. 17; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Suiter v. Mustin, 50 Ga. 242; Sauter v. Sorutchfleld. 28 Mo. App. 157. 60. Hunt V. De Blaquiere, B Bing. 550; Compton V. Bates, 10 111. App. 84; Rea v. Durkee, 25 111. 503; Vercler v. Jansen, 96 111. App. 328; Tupper v. Cadwell, 12 Mete. (Mass.) 559, 46 Am. Dec. 704; Merriam v. Cunningham, 11 Cush. (Mass.) 40; Raynes V. Bennett, 114 Mass. 424; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Sauter V. Scrutchfleld 28 Mo. App. 157; Graham v. Schlelmer, 28 Misc. (N. T.) 535; McGrath v. Donnelly, 131 Pa. 551. 61. Phillipson V. Hayter, L. R. 6 C. P. 41; Raynes v, Bennett, 114 Mass. 428; Bergh V. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Suiter v. Mustin, 50 Ga. 242. 62. Holder v. Cope. 2 Car. & K. 437; Hodgkinson v. Fletcher, 4 Camp. 70. 63. Aharn v. Easterby, 42 Conn. 546 (where the husband was in prison); Loy V. Loy, 128 Ind. 150; Rawson v. Spangler, 62 Iowa, 59; Camerlln v. Palmer Co., 10 Al- len (Mass.) 539; Preston v. Bancroft, 62 "Vt 86. 126 AGENCY IMPLIED PEOM EELATION § 14. 3 Cut. Law. her minor children for such purpose,** and in Texas it has been held that she may. under such circumstances, manage and dispose of community property for such purpose." § 14. Wife's implied authority to procure necessaries for children. — If a hus- band deserts his wife or turns her away, or if they are Uving separate by mutual con- sent, and he allows his child to remain with her without providing for the child's support, the wife has implied authority to procure necessaries for the child on his credit."' And such authority is not affected by the fact that the wife commits adultery, so that she would have no authority to procure necessaries on his credit for herself." The husband is not liable where he makes and pays the wife an adequate allowance for the support of Ms children, or makes other suitable and adequate provision therefor.°* Nor is a husband liable where his wife leaves him without sufficient cause and takes a child with her, knowing that he is able and willing to support the child," or even where the wife leaves for sufficient cause and takes and keeps the child with her contrary to his expressed wishes.^" A wife has no implied authority to bind her husband for necessaries for her children by a former husband.''^ § 15. Contracts hy wife on her own credit. — Even when a wife has authority, express or implied, to bind her husband by purchase of goods or other contracts, the husband will not be bound unless she assumes or undertakes to bind him. If she acts on her own account, and credit is given to her, and not to her husband, the latter is not liable on the contract. This rule applies to contracts for neces- saries as well as to other contracts, and it can make no difference that the circum- stances were such that the wife could have bound the husband.'* Eut under a •4. Camerlin v. Palmer Co., 10 Allen (Mass.) 639. 85. Wright V. Hays' Adm'r, 10 Tex. 133; Cheek v. Bellows, 17 Tex. 613; Fullerton v. Doyle, 18 Tex. 12; Carothers v. McNese, 43 Tex. 221; Zlmpelraan v. Robb, 53 Tex. 274. 66. Rawlyns v. Vandyke, 3 Esp. 252; Mc- Millen v. Lee, 78 111. 443; Peek v. Glbeson, 83 111. App. 92; Reynolds v. Sweetser, 15 Gray (Mass.) 78; Camerlin v. Palmer Co., 10 Allen (Mass.) 540; Bast v. King, 77 Miss. 738; Rumney v. Keyes, 7 N. H. 571; Walker V. Lalghton, 31 N. H. Ill; Hardy v. Eagle, 23 Misc. (N. T.) 441; Dixon V. Chapman, 56 App. Div. (N. T). 542; Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73. See, also, Bazeley v. Porder, 9 Best & S. 599. It has been held that the education of children is not with- in the rule. Hodges v. Hodges, Peake Add. Cas. 79; Bailey v. Calcott, 4 Jur. 699. Com- pare, however, Stanton v. Willson, 3 Day (Conn.) 37, 3 Am. Dec. 255. Where the cus- tody of a minor child Is given to the mother by a decree of court, under the statute of 1874, c. 205, the father is not liable for the support of such child. Brow v. Brightman, 136 Mass. 187. 6T. Gill v. Read, 5 R. I. 343, 73 Am. Dec. 73. Compare Atkyns v. Pearce, 2 C. B. (N. S.) 763. But a man who has received into his house and supported a woman and chil- dren compelled to leave home by the cru- elty of her husband cannot recover from the husband the expense of supporting the children, if one of his motives for receiv- ing them was that he might maintain an adulterous intercourse vrith the woman. Almy v. Wilcox, 110 Mass. 443. 68. Atkyns v. Pearce, 2 C. B. (N. S.) 763; Kimball v. Keyes, 11 Wend. (N. Y.) 34. 69. Baldwin v. Foster, 138 Mass. 449; Hyde v. Leisenring, 107 Mich. 490. 70. Hancock v. Merrick, 10 Cush. (Mass.) 41. It is otherwise where there Is an or- der or decree of the court giving the wife the custody of the child. Bazeley v. Pord- er, 9 Best & S. 599. 71. Tubb v. Harrison, 4 Term R. 118. And see Com. v. Hamilton, 6 Mass. 273; Bond V. Lockwood, 33 111. 212; McMahill v. Mc- Mahill's Estate, 113 111. 461; In re Besondy, 32 Minn. 385, 50 Am. Rep. 579. The children of a wife by a former husband are not a part of the family of a second husband from whom she has separated, so as to render him liable for their support, under the Iowa Code making the expenses of the family chargeable on the property of either husband or wife. Menefee v. Chesley, 98 Iowa, 55. If, however, a step-father as- sumes the relation of a parent to his in- fant step-son, he accepts the parental ob- ligation of supporting him. Ela v. Brand, 63 N. H. 14. 72. England: Metcalfe V. Shaw. 3 Camp. 22; Bentley v. Griffin, 5 Taunt. 356; Holt v. Brien, 4 Barn. & Aid. 252. Alabama: Pearson v. Darrlngton, 32 Ala. 228; Gayle's Adm'r v. Marshall, 70 Ala. 522; Gafford v. Dunham, 111 Ala. 551. Conneetlcnti Shelton v. Pendleton, IS Conn. 417; Taylor v. Shelton, 30 Conn. 122. Delaware; Black v. Clements, 2 Pen. 499. Florida: Halle V. Einstein, 34 Fla. 589. Georgia: Connerat v. Goldsmith, 6 Ga. 14; Mitchell V. Treanor, 11 Ga. 324, 56 Am. Dea 421; Morris v. Root, 65 Ga. 686. Maryland: Maulsby v. Byers, 67 Md. 440. Michigan: Franklin v. Foster, 20 Mich. 75. MisslHHlppi: Swett v. Penrice. 24 Miss. 416. 3 Cur. Law. AGENCY IMPLIED PEOM EELATIOK § 17. 127 statute making both husband and wife liable for the "family expenses," the husband may be held liable therefor, notwithstanding credit may have been ex- tended to the wife alpne.'^ Purchases of necessaries, while living with the hus- band, are never presumed to have been made on the credit of the wife; such fact must be shovm afBrmatively.^* A husband cannot be held liable for goods sold to his wife on her own credit, or on any other contract made with her on her ovrai credit, because he knew of and assented to the transaction, or acted for her in the matter,''* or because he is personally benefited by the contract,''* or because, by reason of legal disability, the contract is not binding upon the wife.'" Where the credit is given to the wife, the contract, not being made by her as agent of her husband, cannot be ratified by him. A promise by him to pay the debt would be a promise to answer for the debt of another, and subject to all the rules governing such a promise. Whether credit was given to the husband or to the wife must be determined from the evidence, and is a question of fact for the jury.''' If a person lends money or sells goods to a wife with the understanding that the transaction shall be concealed from the husband, it may properly be inferred that the credit was given to the wife.'" If a tradesman, in supplying a wife with such goods as she has implied authority to purchase on her husband's credit, in fact furnishes tliem on the husband's credit, he is not precluded from holding the husband liable by the fact that he charged the goods to the wife on his books,'" § 16. Husband's ratification of wife's acts. — If a wife acts as agent of her hus- band without authority, the husband may ratify her acts and thus render them bind- ing upon him to the same extent as if originally authorized, and a ratification by him may be either express or implied from his conduct. § 17. Agency of woman held out or passing as wife. — Where a man lives with a woman, allowing her to assume his name and pass as his wife, she has implied authority to pledge his credit for necessaries during the continuance of the co- habitation, in like manner and to the same extent as if she were in fact his wife,'* and this is true although the person who furnished the necessaries knew at the time that they were not married.'^ But if there is no cohabitation, the mere fact Missouri I Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481. New Hampshire: Hill v. Goodrich, 46 N. H. 41. New York: Stammers v. Macomb, 2 Wend. 454; Simmons v. MeBlwaln, 26 Barb. 419; Bhrich v. Buckl, 7 Misc. 118; Byrnes v. Eayner, 84 Hun, 199; Dlndholm v. Kane, 92 Hun, 369. Ohio: Dorsey v. Goodenow, Wright, 120; McMillan v. Auerback, 7 Ohio N. P. 376. Oklaboma: Baker v. Wltten, 1 Okl. 160. Pennsylvania: Moore v. Copley, 165 Pa. 294, 44 Am. St. Eep. 664. Soutli Carolina: Moses v. Fogartie, 2 Hill Law, 3 3 si Tennessee: Catron v. Warren, 1 Cold. 358. Vermont: Carter v. Howard, 39 Vt. 106; Bugbee v. Blood, 48 Vt. 497; Roberts v. Kel- ley, 51 Vt. 97. Compare Black v. Bryan, 18 Tex. 453. 73. Warrington v. Anable, 84 111. App. 593. 74. Moore v. Copley, 165 Pa. 294, 44 Am. St. Rep. 654. 75. Taylor v. Shelton, 30 Conn. 122; Swett V. Penrice, 24 Miss. 416; Maulsby v. Byers, 67 Md. 440; Roberts v. Kelley, 51 Vt. 97. 76. Carter v. Howard, 39 Vt. 106. But see Roberts v. Kelley, 51 Vt. 97. 77. Taylor v. Shelton, 30 Conn. 122., 78. Bentley V. Griffin, 5 Taunt. 356; Mitch- ell V. Treanot-, 11 Ga. 324, 66 Am. Deo. 421. 79. Franklin v. Foster, 20 Mich. 75. But the request of a feme covert to a merchant not to call on her husband for pay for nec- essaries that she purchased on her hus- band's credit, as she wished to pay for them herself, will not be presumed to have been made with a fraudulent intent, and the hus- band will be liable for them. Day v. Burn- ham, 36 Vt. 37. 80. Baker v. Carter, 83 Me. 132, 23 Am. St. Rep. 764; Furlong v. Hysom, 35 Me. 332; Jawsbury v. Newbold, 26 Law J. Exch. 247; Sibley v. Gilmer, 124 N. C. 631. See, also, Lauck V. Rohde, 20 Misc. (N. T.) 346. In order that the husband may render a con- tract made by the wife binding upon him by ratification, the credit must have been given to him and not to the wife. 81. Paule V. Goding, 2 Fost. & F. 585. 82. Ryan v. Sams, 12 Q. B. 460; Watson V. Threlkeld, 2 Esp. 637. 128 AGENCY IMPLIED FEOM RELATiOJM § 18. 3 Gur. Law. that a man allows a woman to use Ms name is not snflBcient to raise this pre- sumption of authority to pledge his credit.'' And although they cohabited, if not actually married, a subsequent separation terminates the presumed authority to pledge his credit and he will not be liable for necessaries furnished the woman thereafter,'* unless held so on the ground of estoppel.'" § 18. Agency of partner. — ^In an ordinary partnership, each partner is not only a principal, but he is also an agent in the management of the business of the firm. In the absence of provision or agreement to the contrary, he is the general agent of his co-partners with implied authority to bind them as members of the firm in all matters which are properly within the scope of the pai'tnership business.'* And as agent for his co-partners he has implied authority, unless there is some provision or agreement to the contrary, not only to act himself in the conduct of the partnership business, but also to appoint agents to represent the firm, where such an appointment is within the partnership business." It has been suggested that the power of a partner to bind the firm results directly from the contract of 83. Gomme v. Franklin, 1 Fost. & F. 465. 84. Munro v. De Chemant, 4 Camp. 215. 85. Ryan v. Sams, 12 Q. B. 460. 86. 1 Bates, Partn. § 461. England: Hawken v. Bourne, 8 Mees. & W. 703. TTnlted States: Wheeler v. Sage, 1 Wall. 518; Kimbro v. Bullitt, 22 How. 256. Alabamai Rovelsky v. Brown, 92 Ala. 522, 25 Am. St. Rep. 83. California: Forbes v. Soannell, 13 Cal. 288. Connecticut I Usher v. Waddlngham, 62 Conn. 412. Dakota: Pearson v. Post, 2 Dak. 220. Illinois: Raymond v. Vaughn, 128 111. 256. 15 Am. St. Rep. 112; Edwards v. Dillon, 147 111. 14, 37 Am. St. Rep. 199. Indiana: Hess v.. Lowrey, 122 Ind. 225, 17 Am. St. Rep. 355. Iowa: Western Stage Co. v. Walker, 2 Iowa, 504, 65 Am. Deo. 789. Kentucky: Montjoy v. Holden, Lltt. Sel. Cas. (Ky.) 447, 12 Am. Deo. 331; Warder v. Newdigate, 11 B. Mon. (Ky.) 174, 52 Am. Deo. 567. Massacliusetts: Smith V. Collins, 115 Mass. 388. Minnesota: Flarsheim v. Brestrup, 43 Minn. 298. lUissouri: Bau Clalre-St. Liouis Dumber Co. V. Gray, 81 Mo. App. 337. BTew Hampslilre: National State Capital Bank v. Noyes, 62 N. H. 35. Tfew Jersey: Gerli v. Poidebard Silk Mfg. Co., 57 N. J. Law, 432, 51 Am. St. Rep. 611. New York: Cookingham v. Dasher, 38 Barb. (N. T.) 658; Comstock v. Buchanan, 57 Barb. (N. T.) 127; Johnston v. Trask, 116 N. T. 136, 15 Am. St. Rep. 394. Pennsylvania: Loudon Sav. Fund Soc. V. Hagerstown Sav. Bank, 36 Pa. 498, 78 Am. Deo. 390; Wilkins v. Boyce, 3 Watts, 39; Robertson v. Wood, 10 Kulp, 76. Sontii Carolina: Kinsler v. McCants, 4 Ri'-h. Daw, 46, 53 Am. Dec. 711. Tennessee: Whiteman Bros. v. American Central Ins. Co., 14 Lea, 327; Pooley v. Whit- more, 10 Helsk. 629, 27 Am. Rep. 733. Wisconsin: Tucker v. Cole, 54 Wis. 539; Fletcher v. Ingram, 46 Wis. 191. "When then a partnership is formed for a particu- lar purpose," said Chief Justice Marshall, in Winshlp v. Bank of United States, 5 Pet. 561, "it is understood to be in itself a grant of power to the acting members of the com- pany to transact its business in the usual way. If that business be to buy and sell, then the individual buys and sells for the company, and every person with whom he trades in the way of its business, has a right to consider him as the company, w^hoever may compose it. * * • The articles of copartnership are perhaps never published. They are rarely if ever seen, except by the partners themselves. The stipulations they may contain are to regulate the conduct and rights of the parties, as between them- selves. The trading "world, with whom the company is in perpetual intercourse, can- not individually examine these articles, but must trust to the general powers contained in all partnerships. The acting parties are identified with the company, and have power to conduct Its usual business, in the usual way." 87. Elnslaud: Beckham v. Drake, 9 Mees. & W. 79; Hawken v. Bourne, 8 Mees. & W. 703. Alabama: Lucas v. Bank of Darlen, 2 Stew. 280. Colorado I Charles v. Eshleman, 5 Colo. 107. Illinois: Bartlett v. Powell, 90 111. 331. Indiana: Froun v. Davis, 97 Ind. 401. lo^ra: Paton v. BaJcer, 62 Iowa, 704; Boyd V. Watson, 101 Iowa. 214. Kansas: Frye v. Sanders, 21 Kan. 26, 30 Am. Rep. 421; Wheatley v. Tutt, 4 Kan. 240. liOulslaua: Johnston's Fx'r v. Brown, 18 La. Ann. 330. Maryland: Holloway V. Turner, 61 Md. 217, Massaclinsetts: Durgln V. Somers, 117 Mass. 55. Michigan: Burgan v. Lyell, 2 Mich. 102, 55 Am. Deo. 53; Harvey v. Mc Adams, 32 Mich. 472; Banner Tobacco Co. v. Jenison, 48 Mich. 459. New Hampshire: Wills v. Cutler, 61 N. H. 405. Pennsylvania: Tilller v. Whitehead, 1 Dall. 269. Texas: Coons v. Renlck, 11 Tex. 134, 60 Am. Dec. 230. Vermont: Carley v. Jenkins, 46 Vt. 721. 3 Cur. Law. AGENCY IMPLIED PEOM EELATION § 19.' 129 the parties rather than by operation of law. Whether this be so depends some- what on the question whether a partnership be regarded as a contract or a status established by contract. The implied power of a partner is not without limit. He has no authority, unless express authority or an estoppel is shown, to bind his co-partners in a matter which is beyond the scope of the partnership business.*' And as he can- not appoint an' agent to do for the firm what he cannot do himself, he cannot, without special authority, appoint an agent to bind the other partners by a con- veyance or other transaction which is not within the scope of the partnership business.'' § 19. Unincorporated clubs and societies as principals. — When a number of persons form a club or society for social, political, religious, or charitable purposes, etc., without becoming incorporated, the law does not regard them as a legal entity or artificial person, like a corporation, but merely as a collection of individuals, and it necessarily foUows that the club or association, as such, cannot appoint or have an agent.'" The members may appoint an agent, but in such a case he is the agent of the members as individuals. They are joint principals."^ Such an as- sociation is not a partnership, and to render a member liable as a principal on contracts made by the persons or committees who manage and assume to act fou the association, it must be shown that he expressly or impliedly authorized them to represent and bind him.°^ Members of such bodies are not chargeable with debts on its behalf, unless the relation of principal and agent is established between the representative of the association and person sought to be made lia- ble. It must be shown that the party assuming to act for the association, was the agent of the member upon whom liability is sought to be fastened, and is author- ized by him to enter into the contract as his representative."' But mere membei- 88. TJnlted ..States:. Bowen V. Clark, 1 Blss. 128, Fed. qas. No. 1,721; Winshlp v. Bank of United States, 5 Pet. 561. Alalinma: Lang's Heirs V. "Waring, 17 Ala.. 145. Colorado: Lewln v. Barry, 15 Colo. App. 461. Connecticut: New Tork Firemen Ins. Co. V. Bennett, .5 Conn. 574, 13 Am. Dec. 109. Georgia: Davis v.. Dodson, 95 Ga. 718, 51 Am. St. Rep. 108. « nitnols: Ruffner v. McConnel, 17 111. 212. Iowa: Western Stage Co. v. Walker, 2 Iowa, 504, 66 Am. Dec. 789; Seeberger v. Wyman, 108 Iowa, 627. Kansas: Shattuck v. Chandler, 40 Kan. 516, 10 Am. St. Rep. 227. Kentncb7.: Brooks-Waterfleld Co. v. Jack- son, 21 Ky. L,. R. 854, 53 S. W. 41. Maine: Rollins- v. Stevens, 31 Me. 454. Michigan: Van Kleeok V. McCabe, 87 Mich. 599, 24 Am. St. Rep. 182. Minnesota: Maurin v. liyon, 69 Minn. 257, 6S Am. St. Rep. 568. Jleyr York: Hitchcock v. Peterson, 14 Hun, 390; Laverty v. Burr, 1 Wend. 529; Stall v. Catsklll Bank, 18 Wend. 466; Palliser v. Erhardt, 46 App. Div. 222. Nojrtli Daltota: Clarjie v. Wallace, 1 N. D. 404, 26 Am. St. Rep. 636. fennsylTania: • Sutton T. Irwine, 12 Sergr. & R. 13; Tanner v. Hall, 1 Pa. 417. Tennessee:, Bank of Tennessee V. Saftar- rans, 3 Humph. 597; Crosthwalt v. Ross, 1. Humph. 23, 34 Am. Deo. 613. 3 Curr. Law — 9 Utah: Peterson v. Armstrong, 24 Utah, 96; Gutheil v. Gilmer, 23 Utah, 84; Cav- anaugh V. Salisbury, 22 Utah, 466. 89. Charles v. Bshleman, 5 Colo. 107; Pal- liser V. Erhardt, 46 App. Div. (N. T.) 222. 90. Clark & M. Corp. 48. »1. Ray V. towers, 134 Mass. 22; Will- cox V. Arnold, 162 Mass. 577; Reding v. An- derson, 72 Iowa, 498. 92. Flemyng v. Hector, 2 Mees. & W. 172; Todd v. Bmly, 7 Mees. & W. 427; Hawk* V. Cole, 62 Law T. (N. S.) 658; Wilson, v. Henderson, 123 Cal. 262; Lewis v. Tilton, 64 Iowa, 220, 52 Am. Rep. 436; Burt ,v. Lathrop,. 52 Mich. 106; Newell v. Borden, 128 Mass. 31; Riclimond v. Judy, 6 Mo. App. 465: Lafond v. Deems, 81 N. T. 507; McCabe v., Goodfellow, 133 N. Y. 89; Devoss v. Gray, 22 Ohio St. 159; Ash v. Gule, 97 Pa. 493, 39 Am. Rep. 818. It has been held that where persons Join for social and recreative purposes, and as- sume a name under which they incur lia- bilities, they become jointly liable for the indebtedness incurred, and. each member con- tinues liable so long as he remains a mem- ber, and until he gives notice of his with- drawal to creditors. Park v. Spaulding, 10 Hun (T^. Y.) 128. and see Ebbinghousen v. Worth' Club, 4 Abb. N. C. (N. T.) 300. 93. Flemyng, V. Hector, 2 Mees. & W. 172;, Wood V. Finch, 2 Fost. & F. 447; Delouney V, Strickland, 2 Stark. 416; Luokombe, v. Ashton, 2 Fost. & F. 707; Lewis v. Tilton, 130 AGENCY IMPLIED EKOM EELATION § 19. 3 Cur. Law. ship is not siifficient to fix the liability of a member for indebtedness contracted on behalf of such an association or society."* A member can only be made liable by his personal acts or participation in the transaction in question/^ or where the business is conducted through the medium of officers or agents, by agreeing, at the time of becoming a member, to the exercise of defined powers by the rep- resentatives of the associations, as by expressly or impliedly consenting to abide by the provisions of its constitution, by-laws, or corresponding rules of guidance, respecting their appointments and powers,"' or by sanctioning or acquiescing in an appointment or delegation of authority, either by voting therefor, by assent- ing to the action taken, or by subsequently ratifying it."'' In the absence of an agreement to abide by the action of a majority of the members, or of the action of a committee or officer of the association, the liability is limited to those only who agreed to be bound by such actions."^ The assent need not be express, but may be made out by acts and conduct."" Neither need it be proved by former records; but may be established by parol proof. ^ There may be cases, however, in which the objects for which the association is organized are so clear, and the 64 Iowa, 220, B2 Am. Rep. 4S6; Ray v. Pow- ers, 134 Mass. 22; Newell v. Borden, 128 Mass. 31; Volger v. Ray, 131 Mass. 439; Burt V. Liathrop, 52 Mich. 106; Rice v. Peninsu- lar Clul), 52 Mich. 87; Heath v. GosUn, 80 Mo. 310, 50 Am. Rep. 505; Richmond v. Judy, 6 Mo. App. 465; Slzer v. Daniels, 66 Barb. (N. T.) 426; Devoss v. Gray, 22 Ohio St. 169; Ash v. Gule, 97 Pa. 493, 39 Am. Rep. 818; Rldgely t. Dobson, 3 Watts & B. (Pa.) 118. In Eichbaura v. Irons, 6 Watts & S. (Pa.) 67, 40 Am. Dec. 640, it was held that the liability of the members or committees ap- pointed by a political meeting to provide a free public dinner for the members of a political party was not determinable by the law of principal and agent, nor by the law of partnership, but by the question of concurrence in giving the order — their ac- tion being Joint, and not several. And see Davison v. Holden, 65 Conn. 103, 3 Am. St. Rep. 40, wherein It is said that persons associating for commercial purposes for their pecuniary advantage, and who for convenience transact business and assume associate name, are liable upon the principle of the law of agency. Bennett v. I., 7 La. Ann. 279, 56 Am. Deo. 603; Saltus v. Everett, 20 Wend. [N. Y.] 267, 32 Am. Dec. 541. Master of a vessel may sell damaged car- go, but only in case of extreme necessity, or where it cannot be carried to its port of destination, or would be worthless on Its arrival there. Myers v. Baymore, 10 Pa. 114, 49 Am. Dec. 586. But It has been held that the master of the sliip is not an agent of the consignor, to judge for him when the goods are so damaged as to make a sale necessary before they reach their destination. Halwerson v. Cole, 1 Speera rs. C.^ 321. 40 Am. Dec. 603. 3 Cur. Law. AGENCY IMPLIED PEOM EELATION § 22. 135 acting as an agent of necessity for the owners of the cargo, transship it, or if ex- pedient retain it until his own ship is put in repair, or if necessary may sell part of it or hypothecate tlie whole, or he may abandon the voyage and notify the owners.^' To justify a sale of the cargo in such a ease, however, the necessity must be absolute and unequivocal, and is only permissible after the exhaustion of the ship's credit.'" It is also clearly established that the master, as such, may sell a wrecked vessel, when he proceeds in good faith exercising his best discre- tion for the benefit of all concerned, and in view either of existing peril or of peril likely to ensue, from which, in the opinion of persons competent to judge, she cannot be rescxied;'^ but tlie sale, to be binding on the owners, must be one of necessity.*' If a vessel or its cargo is abandoned to the imderwriters during a voyage for a total loss, the master then becomes, by operation of law, the agent of the imder- S9. CammeU v. Sewell, 5 Hurl, ft N. 728; Naylor v. BaltzeU, Taney, B5, Fed. Cas. No. 10,061; The Bridgewater, 11 Chi. Leg. N. 327; Rugely V. Sun Mut. Ins. Co., 7 La. Ann. 279, 56 Am. Dec. 603; Hassam v. St. Louis Perp. Ins. Co., 7 La. Ann. 11, 56 Am. Deo. 591; Graham v. Underwood, 15 La. Ann. 402; Gaither v. Myrick. 9 Md. 118, 66 Am. Dec. 316; Fontaine v. Columbian Ins. Co., 9 Johns. fN. T.] 30. And see Englehart v. Pedro, Fed. Cas. No. 4,489. 30. Freeman v. East India Co., 5 Barn. & Aid. 617; Cannan v. Meaburn, 1 Bing. 243; Tronson v. Dent, 8 Moore P. C. 419; The Packet, 3 Mason, 255, Fed. Cas. No. 10,654; The Harriet, Fed. Caa. No. 6,094; Gaither V. Myrick, 9 Md. 118, 66 Am. Deo. 316; Bryant V. Commonwealth Ins. Co., 13 Pick. [Mass.] 543; Butlor v. Murray, 30 N. T. 88, 86 Am. Dec. 355; American Ins. Co. v. Center, 4 W^end. [N. Y.] 45; StUlman v. Hurd, 10 Tex. 109. 31. Hunter v. Parker, 7 Mees. & W. 322; Tanner v. Bennett, Byan & M. 182; Idle v. Royal Bxch. Assur. Co., 8 Taunt. 755; The Luclnda Snow, Abb. Adm. 305, Fed. Cas. No. 8.591; FItz v. Amelle, 2 Clitf. 440, Fed. Cas. No. 4,838; Th« Herald, 8 Ben. 409, Fed. Cas. No. 6.393; Scull v. Briddle, 2 Wash. G. C. 150. Fed. Caa. No. 12.569; The William Carey, 3 Ware, 313, Fed. Cas. No. 17.689; The Sa- rah Ann, 13 Pet. [U. S.] 387. 2 Sumn. 206, Fed. Cas. No. 12,342; The Bridgewater, 11 Chi. Leg. News, 327, Fed. Cas. No. 1,864; The Tarkand, 117 F. 336, affirmed in 120 F. 837; Pike v. Balch, 38 Me. 302, 61 Am. Dec. 248; Duncan v. Reed, 39 Me. 416, 63 Am. Dec. 635; Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 55; Prince v. Ocean Ins. Co.. 40 Me. 481; Gates v. Thompson, 57 Me. 442; W^lnn v. Columbian Ins. Co., 12 Pick. [Mass.] 279; Gordon v. Massachusetts F. & M. Ins. Co., 2 Pick. [Mass.] 249. 32. Pike V. Balch, 38 Me. 302, 61 Am. Dec. 248; Gaither v. Myrick, 9 Md. 118, 66 Am. Dee. 316; Butler v. Murray, 30 N. T. 88, 86 Am. Dee. 355; McCall v. Sun Mut. Ins. Co., 66 N. Y. 517; and cases cited In preceding note. In the 'cases deciding that a master of a vessel has power to sell It in cases of necessity, different language is used to ex- press Just what necessity will justify a .sale. For example: In Gaither v. Myrick, 9 Md. lis, 66 Am. Dec. 316, It was said that necessity to justify sale of cargo and ship before arriving at port of destination must be such a necessity as supersedes all human laws. In Hall v. Franklin Ins. Co., 9 Pick. [Mass.] 466, Putnam, J., delivering the opin- ion of the court, said: "The master's au- thority to sell must be confined to a case of extreme necessity, which leaves no al- ternative, which prescribes the law for it- self, and puts the party in a positive state of compulsion to act. The master acts for the owners or insurers, because they can- not have an opportunity to act for them- selves. If the property could be kept safe- ly until they could be consulted, and have opportunity, in a reasonable time, to exer- cise their own judgment in regard to the sale, the necessity to act for them would cease." In Fitz v. Amelie, 2 Cliff. 445, Fed. Cas. No. 4,838, it is said: "When the ship is disabled by perils of the sea, and the master has no means of getting the repairs done in the place where the injury occurred. or, if being in a place where the repairs might be made, he has no funds in his possession and cannot, on account of the distance or other sufHcient cause, com- municate with the owner, and Is not able to raise the necessary means by bottomry or otherwise to execute the repairs, or if the Injuries to the ship are so great that the cost of repairing her would be greater than her value after the repairs were made, or if the ship is disabled so that she cannot proceed, and the cost of repairs will amount to more than half her value, reckoning one third new for old, and the master has no funds, and can neither procure any nor com- municate with the owner, and the whole circumstances are such that a prudent own- er would decide to break up the voyage, then the master Is justified in selling the ship as the best thing that can be done for the interest of all concerned. Such a state of circumstances creates the moral necessity, the urgent necessity, the extreme necessity, the Imperious, uncontrollable ne- cessity, described in the decided cases, and authorizes the master to sell the ship, if in his judgment, honestly exercised, the sale will best promote the interest of all con- cerned." And in The Amelle, 6 Wall. [U. S.] 18, 27. Mr. Justice Davis says: "The sale of a ship becomes a necessity within the meaning of the commercial law when nothing better can be done for the owner or those concerned in the adventure." And see other cases cited In preceding notes. 133 AGENCY IMPLIED EEOM EELATION § 23.. 3 Cur. Law. writers with the same general rights and powers as he would have in regard to the original owners.^' § 33. Agency of vendor for vendee. — When a contract of sale has been entered into between vendor and vendee, and the vendee refuses to take and pay for the goods, the vendor, if he has the control or possession of the goods, ordinarily has the choice of either one of three remedies to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (3) he may keep the property as his ovra, and. recover the difEerence be- tween the market price at the time and place of delivery, and the contract price; or (3) he may sell the property, acting as agent, for this purpose, of the vendee and recover the difference between the contract price and the price obtained on such resale. In such ease, the vendor takes the position of agent for the vendee to make the sale, and all that is required of him is that he should act with reasonable care and diligence and good faith; he should make the sale without unnecessary delay, but he must be the judge as to the time and place of sale provided he act in good faith and with reasonable care and diligence and gives notice of his intention to sell.'* But it is no part of such agency, or the duties involved in it, to notify the vendee of the time and place at which the goods are to be sold or exposed for sale.'" If more is realized on such resale than is due to the vendor, he must account to the vendee for the surplus." The vendor, in such cases, is not strictly an agent of the vendee, but it is rather a general expression used to define the right of the vendor to make a resale and hold the vendee responsible for the loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the pur- pose of ascertaining the actual loss he may sustain. His duties as to the manner of making the sale, as we have seen, in some respects resemble those of an agent, and hence he is said to take the position of an agent, but otherwise he cannot be considered as such.'^ § 34. Agency of priests, ministers, etc. — Priests, ministers, and other ecclesias- tics in charge of a parish or other chujch property have only such authority to man- age and control the property of the church or congregation as is given to them by the canons or laws of the church. Thus, a Catholic priest having charge of a parish has no implied authority to convey real estate, the title of which is in his bishop.'* The mere fact that one is a priest or minister of a church does not authorize him to bind the trustees or members of such church by contracts in reference to the church property or church affairs. 33. General Interest Ins. Co. v. Ruggles, 12 Wheat. [U. S.] 408. See Pike v. Balch, 38 Me. 302, 61 Am. Dec. 248. 34. 2 Sutherland, Dam. (2d Ed.) § 647; "West V. Cunningham, 9 Port. [Ala.] 104, 33 Am. Dec. 300; Magnes v. Sioux City Nursery & Seed Co., 14 Colo. App. 219; Bagley v. Plndlay, 82 111. 524; Roebling's Sons' Co. v. Lock Stitch Fence Co., 130 111. 661; Rice V. Penn Plate Glass Co., 88 111. App. 407; Gilly V. Henry, 8. Mart. [La.] 402, 13 Am. Dec. 291; Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713; Young v. Mertens, 27 Md. 115; Whitney v. Boardman, 118 Mass. 242; Mc- Lean V. Richardson, 127 Mass. 345; Van Horn V. Rucker, 33 Mo. 391, 84 Am. Deo. 62; Baker v. McKlnney, 87 Mo. App. 361; Gordon v. Norrls, 49 N. H. 376; Sands v. Taylor, 5 Johns. [N. T.] 395, 4 Am. Dec. 374; Dustan v. McAndrew, 44 N. T. 72; Westfall V. Peacock, 63 Barb. [N. T.] 209; Pollen V. Le Roy, 30 N. T. 549; Ackerman V. Rubens, 167 N. T. 405, 82 Am. St. Rep. 728; Moore v. Potter, 155 N. T. 481, 63 Am. St. Rep. 692; McCombs v. McKennan, 2 Watts & S. [Pa.] 216, 37 Am. Dec. 605; Coffman v. Hampton, 2 Watts & S. [Pa.] 377, 37 Am. Dec. 511; Waples v. Overaker, 77 Tex. 7, 19 Am. St. Rep. 727; Rosenbaum V. Weeden, 18 Grat. [Va.] 785, 98 Am. Dec. 737. Compare McGuinness v. Whalen, 16 R. 1. 668, 27 Am. St. Rep. 763. 35. Pollen v. Le Roy, 30 N. T. 549; Hagnes V. Sioux City Nursery & Seed Co., 14 Colo. App. 219. 36. Westfall V. Peacock, 63 Barb. [N. Y.] 209; and see cases cited in preceding notes. 37. See Moore v. Potter, 156 N. Y. 481, 63 Am. St. Rep. 692. 38. Leahey v. Williams, 141 Mass. 345; Olcott V. Gabert, 86 Tex. 121. 3 Our. Law. AGRICULTUEE § 1, 137 AGRICULTTTEE.i S 1. Regmlation (137). S 2. Prodncts and Crop Liens (137). § 3. AeTlcnltnral Societies (137). § 1. Regulation.^ — The pursuit of agriculture' and the production and sale of products have been subjects of regulation, as has also the growth of noxious weeds.* § 2. Products and crop.liens.^ — The owner of a farm and a tenant on shares are tenants iq common of the products, in the absence of any special provision modifying their relations," and either may maintaia a bill in equity against his co-tenant for an accounting of the proceeds of the crops.'' An agreement to execute a mortgage on crops may be made before the latter are in being.' Liens on crops are statutory and wiU be created or enforced according to the local statutes, and one to avail himself of such a lien must comply with the re- quirements of the statute creating it.' Statutes generally give the landlord a lien on all agricultural products to secure his rent and supplies for the current year," also to one who furnishes supplies for the making of the crop,^^ and also to laborers.^^ In some states seed-liens must be recorded.^' These liens may be waived.^* § 3. Agricultural societies." — A state may incorporate an agricultural society as a department of the state ;^' such an act does not constitute special or class legislation,^^ nor is the legality of the transfer and acceptance by the state subject 1. See, also, topic Emblements, 1 Curr. L. 1000. 2. 1 Curr. D. 66, 67, n. 41-43. 3. FcrtlUzers: Where a statute requires that bags containing fertilizer shall be la- belled, sending the labels subsequent to the arrival of the bags, and acceptance and use of the fertilizer by the purchaser. Is a sufficient compliance with the statute to en- able plaintiff to recover the purchase price. Beard & Co. v. Goodman, 25 Ky. L. R. 1566, 78 S. W. 191. See 1 Curr. L. 66, n. 41. 4. Statute prohibiting railroads from al- lowing Johnson grass or Russian thistle to gro\r on their right of way and providing a penalty for its violation, held constitu- tional. International, etc., R. Co. v. Shelton [Tex. Civ. App.] 81 S. W. 794. See 1 Curr. L. 66, n. 42. 6. See 1 Curr. L. 67. 6. Sowles V. Martin [Vt.] 66 A. 979. Ten- ant agreed to give two-fifths of crop as rent Black v. Golden [Mo. App.] 78 S. W. 301. 7. Sowles V. Martin [Vt.] 56 A. 979. 8. Sporer v. McDernlott [Neb.] 96 N. W. 232, 659. 9. Thresher's lien, § 4824. Rev. Codes 1899 requires such a lien to state quantity of grain threshed, failure to do so held fatal. Moher v. Rasmusson [N. D.] 95 N. W. 152. See 1 Curr. L.. 67, n. 47. 10. And this lien may l>e asserted against a purchaser Irrespective of whether he had notice of the Hen. Ball, Brown & Co. v. Sledge [Miss.] 35 So. 447. But it does not attach to crops shipped out of the state (Id.), though of course a tenant may give a mort- gage on his crop to secure his landlord for advances in previous years. Walker v. Pat- terson's Estate [Tex. Civ. App.] 77 S. W. 437. In Texas, the lien of a landlord for supplies and advances extends only to the crop raised during the year in which they were furnished, and the lien of landlord for advances and supplies on crop of that year takes precedence over claim of tenant's wife and children for support. Id. 11. Expectation that they will be paid for shortly and in cash does not waive the lien accorded by Civ. Code, art. 3217. South- ern Grocer Co. v. Adams [La.] 36 So. 226. This lien is not superseded by one subse- quently acquired and recorded. Id. 12. Persons having contracts with a sugar refinery to weigh and load cane for ship- ment to the refinery at an agreed price per ton, and who live and pay the laborers to do the work, are Independent contractors, and are not workmen or laborers on a plan- tation whose wages have a special privilege on the crop under the laws of Louisiana, nor clerks, secretaries or agents entitled to a privilege for their salaries against the property of the refining company under such laws. Fortler v. Delgado & Co. [C. G. A.] 122 F. 604. 13. Under Code Civ. Proc. §§ 731, 734, the record need not specify the number of bush- els to be sown on each tract, and the lienor's duty Is performed when he flies the state- ment with the register of deeds. Schou- weller v. McCaull [S. D.] 99 N. W. 95. 14. Southern Grocer Co. v. Adams [La.] 36 So. 226. In Texas, this lien is not waived by permitting a tenant to apply to his own use a part of the crop produced without notice of a third party's claims against the tenant. Johnston v. Kleinsmlth [Tex. Civ. App.] 77 S. W. 36. 15. See 1 Curr. L. 67. 16. Berman v. Minnesota State Agricul- tural Soc. [Minn.] 100 N. W. 732. 17. Laws 1903, p. 170, c. 126. Berman v. Minnesota State Agricultural Soc. [Minn.] 100 N. W. 732. 138 AGEICULTUEE § 3. 3 Cur. Law. to collateral attack,^' and when thus made a department of the state, such so- ciety is immune from suits brought for the wrongful conduct of its servants.^" Some states give aid to agricultural societies,'" but in order to receive such aid they must conform to all the laws relating thereto.^^ An incorporated agricultural society, though it differs from the ordinary business corporations, is nevertheless to be classified as a private corporation.'" They are, however, largely subject to statutory regulations. In Michigan, they may mortgage their property,'^ and are not required to have a seal.'* A state may in the exercise of its police power prohibit the temporary busi- ness of selling articles of provisions within a reasonable distance of a fair with- out the consent of the fair association.'' AI.IEI7S. : 1. Wlio are Allenii (138). S 2. Dlaabilities and FrivUcscs (13S). S 3. Immigration, Exclusion, and EIxpul- slon (140). Exclusion (142). Certificate (143). New Trial and Appeal (144). ; 4. Naturalization (145). § 1. Who are aliens.^^ — The status of the wife follows that of the husband." An alien woman marrying a citizen of the United States at once becomes a citizen of this country," a woman marrying a foreign becomes an alien.'" A child born in the United States of parents who are subjects of a foreign nation but have a permanent residence and domicile in the United States is a citizen of the United States.™ A father being naturalized, the status of a minor child becomes that of the father.'^ A foreign corporation is an alien.^' A native of Porto Eico who was an inhabitant of that island at the time of its cession to the United States by the treaty of April 11, 1899, with Spain,'' is not an alien im- migrant within the meaning of the Act of Congress of March 3, 1891.'* § 2. Disabilities and privileges.^' — At common law an alien can take prop- erty as against all except the state,'" but he could neither take nor transmit IS. Berman v. Minnesota State Agrricul- tural Soc. [Minn.] 100 N. W. 732. 10. Wrongful arrest. Berman v. Minne- sota State Agricultural Soc. [Minn.] 100 N. W. 7S2. 20. In Nebraska, It rests in the discre- tion of the county board as to whether or not the county shall give assistance to an agriculture society. Sheldon v. Gage County Boo. [Neb.] 98 N. "W. 1045. 21. In Nebraska, they must be organ- ized. Sheldon v. Gage County Soc. [Neb.] 98 N. W. 1045. 22. Ismon v. Loder [Mich.] 97 N. W. 769. 25. Comp. Laws 1897, § 5974. Ismon v. liOder [Mich.] 97 N. W. 769. 24. Under Comp. Laws 1897, § 10,417, an unsealed conveyance by an agriculture so- ciety is valid. Ismon v. Loder [Mich.] 97 N. W. 769. SS. Gen. St. 1902, 5 1358, fixing the dis- tance at one mile, held constitutional and construed only to apply while a fair was in progress and only to temporary business on account of the fair. State v. Reynolds [Conn.] 68 A. 756. 26. By an allegation of citizenship one is not estopped to show that he Is an alien. Marthinson v. "Winyah Lumber Co., 125 F. 633. See 1 Curr. L. 67. ai. Hopkins V. Faohant [C. C. A.] 130 F. S39. 28. Married pending deportation proceed- ings, held should be released from custody. Hopkins V. Fachant [C. C. A.] 130 F. 839. 20. Moore v. Ruckgaher [C. C. A.] 114 F. 1020. 30. Child born in the United States of Chinese parents, who at the time of his birth were Chinese subjects, but had a per- manent residence and domicile In the United States, and were not employed in any diplo- matic or official capacity under the Emperor of China, held a citizen of the United States. Sing Tuck V. U. S. [C. C. A.] 128 F. 592. 31. Rexroth v. Schein, 206 111. 80, 69 N. E. 240. 32. Cannot hold land under the Wash- ington state constitution. State v. Superior Court for Stevens County [Wash.] 74 P. 686. 33. 30 Stat, at L. 1754. Gonzales v. Williams, 192 U. S. 1, 24 S. Ct. 177. 34. 26 Stat, at L. 1084. o. 551, U. S. Comp. Stat. 1901, pp. 1294, 1296, providing for the detention and deportation of alien immi- grants likely to become public charges. Gonzales v. Williams, 192 U. S. 1, 24 S. Ct. 177. See 1 Curr. L. 67. 85. See 1 Curr. L. 68. 30. Donaldson v. State [Ind.] 67 N. B. 1029; Pembroke v. Huston [Mo.] 79 S. W. 470. The interest which one obtains by condemnation of right of way is ownership of land. Aliens cannot hold land under the Washington state constitution. State v. 8 Cur. Law. ALIENS § 2. 139 title to real property by descent." By treaty'* and by statute," the disability of aliens to inherit land lias been changed, and their rights depend upon the con- struction of those statutes.*" An alien's right to take real estate by descent ia governed by the statutes of the state in force at the time of the death of the owner thereof through whom such alien claimed title.''^ An alien may talce property devised from native born children."* A widow, a nonresident alien, has a dower interest in land conveyed by her husband, a resident alien, alone.*' Where a statute confers on nonresident aliens the right to inherit property within the state, which property is owned by another alien, this right is not vested, but a mere expectancy during the life of the o^vner, and may be changed by statute without infringing any constitutional rights of such nonresident aliens.** Where a statute which in any way supersedes tiie common-law rule is repealed, the com- mon-law rule is revived.*^ In some states the law of the domicile of a decedent governs the distribu- tion of his personal property.*^ Tlie question of domicile is always one of fact and depends upon the particular circumstances of each ease.*^ Nonresident aliens can generally maintain an action for damages for a wrongful death where such damages are allowed by statute.*' An alien has no right to raise thci question whether a statute is in violation of art. 4, § 2 of the Constitution of the United Superior Court for Stevens County [Wash.] 74 P. G8G. 37. Donaldson v. State find.] 67 N. B. 1029. 3S. Art. 1, treaty of July 28, 1900, with Great Britain (31 Stat. 1939) and holding that said treaty Is superior to the Rev. Code of Del. 1852, amended 1893, c. 81. 5 1. The treaty allowed an alien three years In which to sell property. Doe v. Roe [Del. Super.] 55 A. 341. 30. A state has the power to change these rules by statute. Donaldson v. State [Ind.] 67 N. B. 1029. 40. Laws 1845, p. 95, c. 115, 5 4, as amend- ed by Laws 1875, p. 32, c. 38, providing that upon the death of any citizen who has pur- chased and taken a conveyance of land, his heirs may take and hold the same whether heirs or not. Held, has no application where decedent acquired land by descent. Stew- art V. Russell. 91 App. Div. 310, 86 N. T. S. 625. An alien claiming property as the heir of a deceased resident alien under a statute allowing the same must show that deceased was a resident alien. Richardson v. Amsdon. 85 N. T. S. 342. In New York, real property within the state passes under the will of a nonresident alien and is controlled by the laws of New York. In re Barandon's Estate. 41 Misc. 380, 84 N. Y. S. 937. Under Laws 1874, C. 261, p. 317, and Laws 1875, o. 38, p. 32, nonresident aliens are entitled to inherit In like manner as if they were then citizens of the United States. Nonresident alien sis- ters could Inherit. Kelly v. Pratt. 41 Misc. 31, 83 N. Y. S. 636. In Indiana, an alien who was a resident of the state at the time he acquired real estate, but never declared his Intention of becoming a citizen, and was not a resident of the state at the time of his death, had no power to pass his land In the state by descent. Donaldson v. State [Ind.] 67 N. B. 1029. Under Laws 1891, p. 7, o. S, a nonresident alien could take a title by purchase to land in Kansas, defeasible only at the suit of the state. Madden v. State [Kan.] 75 P. 1023. See 1 Curr. L. 68. 41. Stewart v. Russell, 91 App. Div. 310, 86 N. Y. S. 625. 42. Richardson v. Amsdon, 85 N. Y. S. 342. 43. MoClain's Code 1888, § 3646, as to sale by nonresident aliens, does not change or govern the above. Casley v. Mitchell, 121 Iowa, 96, 96 N. W. 726. 44. Donaldson v. State [Ind.] 67 N. B? 102S. Nonresident alien heirs are not in a position to raise any question in regard to the repeal of Act 1861, (Acts 1861, p. 153, c. 79, § 1). providing that aliens who are bona fide residents of the United States may take and convey real estate. Id. Nonresident alien heirs are not In a position to question the constitutionality of Act Mar. 9, 1885 (Acts 1886, p. 79, c. 51), repealing statutes allowing aliens to hold and convey property. Id. 45. Donaldson v. State [Ind.] 67 N. E. 1029. 40. New York Code Civ. Proc. § 2694. In re Barandon's Estate, 41 Misc. 380, 84 N. Y. S. 937. 47. Held where a resident alien of New York actually resumed the domicile of origin in England, resided there for a long time, and had no intention of returning to New York, though stating in deeds, etc.. that she resided In Now York, being at present in England. Held not a resident alien of Ne%v York. Richardson v. Amsdon. 85 N. Y. S. 342. 48. Code 1887, §§ 2145, 2149, allowing such an action for benefit of surviving spouse or next of kin, enumerating them, nonresident aliens may bring an action for the wrongful death of their son. Bonthron v. Phoenix Light & Fuel Co. [Ariz.] 71 P. 941. Under a statute giving right of action to widow or next of kin for wrongful death of decedent, held an action could be maintained for the wrongful death of a resident alien who left surviving a nonresident alien next of kin. Tanas v. Municipal Gas Co., 88 App. Div, 251, 84 N. Y. S. 1053. 140' ALIENS § 3. 3 Cur. Law. States.*' In some states a resident alien may act as an administrator."" An alien is incompetent to act as a grand juror."^^ An alien may maintain a personal action sounding in tort in ' the courts of another country and against a citizen thereof.'*'' The civil rights act does not apply to a negro born in Africa without proof that he is a citizen, either native or naturalized."' As to the right of a wife of an alien when abandoned by her husband, see note."* § 3. Immigratiorij exclusion and expulsionJ'^ — The right to exclude Or ex- pel aliens of any nationality is the inherent and inalienable right of an inde- pendent and sovereign nation."' The exclusion of alien anarchists"' does not violate article 1 of the amendments to the constitution,"' and congress did not exceed its delegated powers by enacting the provisions of such aet."° The treaty with Japan proclaimed March 21, 1895, does not prevent the United States from prohibiting Japanese paupers to enter.°° An alien legally within a country may forfeit his right to remain there."*^ An advertisement for laborers in a foreign country is a violation of the Contract Labor Law, as amended."^ Bringing a farm laborer into the country under a contract to work for others and advancing him • monej"^ is prohibited."' Expert accountants are not members of a recognized learned profession and as such admissible."* An alien immigrant to the United States is an alien who comes or removes to the United States for the purpose of permanent residence.'" An alien is entitled to be discharged from a hospital 49. Inheritance tax. In re Johnson's Es- tate, 139 Cal. 532, 73 P. 424. 50. Code Civ. Proo. § 2661. Tanas v. Mu- nicipal Gas Co., 88 App. Dlv. 251, 84 N. T. S. 1053. 51. note:. Allen as jnroT; An alien Is incompetent to act as a grand Juror, and in- dictment win be set aside if attacked in a proper manner. State v. Ray, 54 Iowa, 109; Raganthall v. Com., 14 Bush [Ky.] 457; Com. V. Cherry, 2 Va. Cas. 20; State v. Cole, 17 Wis. 674; Reich v. State, 53 Ga. 73, 21 Am. Rep. 265. Incompetent as a petit Juror. Guykowski v. People, 2 111. 476. — From note to State V. Russell [Iowa] 28 L. R. A. 195. 52. Libel. Crashley v. Press Pub. Co. [N. T.] 71 N. B. 258. 58. Laws 1895, o. 1042 (Laws 1895, p. 974). Held could not recover penalty for violation thereof. Fuller v. MoDermott, 87 N. T. S. 636. 54. note:. Rlebts of -mite of alien i A wife, abandoned by her husband or driven from his homo In another state or country, and coming and residing within a state, may contract, sue and be sued, and convey her estate in the same manner as a feme sole in the latter state when her husband has never come into that state. Gregory v. Paul, 15 Mass. 31; Abbott v. Bayley, 6 Pick. [Mass.] 89; Wagg's Bx'r v. Gibbons, 5 Ohio St. 580; Blumenberg v. Adams, 49 Cal. 308; Gallagher v. Delargy, 57 Mo. 29; Cornwall V. Hoyt, 7 Conn. 420. — From note to Buford V. Adair [W. Va.] 64 Am. St. Rep. 864, 869. 56. See 1 Curr. L. 68. 6«. Illegally within United States, de- ported. U. S. V. Tuck Lee, 120 F. 989; In re Sing Tuck, 126 F. 386; Kaoru Tamataya v. Fisher, 189 U. S. 86, 23 S. Ct. 611, 47 Law. Ed. 721. The power of congress to regulate immigration is superior to the treaty mak- ing power. U. S. v. Tuck Lee, 120 F. 989. Aliens may be deported simply because they are aliens (In re Sing Tuck, 126 F. 386), but a citizen of the United States cannot be constitutionally refused admission (In re Sing Tuck, 126 F. 386; In re Moy Quong Shing, 125 F. 641). 57. Act Mar. 3, 1903, c. 1012, § 2, 32 Stat. 1214 (U. S. Comp. St. Supp. 1903, p. 172). U. S. V. Williams, 126 P. 253. The conclusion of the Immigrant inspector approved by the secretary of commerce and labor that an alien is an anarchist is supported by evi- dence that such alien advocated "as an an- archist" a universal strike and proposed to lecture upon "the legal murder of 1887," and to address mass meetings upon this subject in association with a person who had been convicted of advocating revolution and mur- der. U. S. v. Williams, 194 U. S. 279, 24 S. Ct. 719. .58. U. S. V. Williams, 126 F. 263. 59. U. S. V. Williams, 194 U. S. 279, 24 S. Ct. 719. 60. Kaoru Tamataya v. Fisher, 23 S. Ct. 611, 189 U. S. 86, 47 Law. Ed. 721. 61. Chinese laborer legally in United States left and returned without complying with the law. Held, could be deported. U. S. V. Tuck Lee, 120 P. 989. See 1 Curr. L, 69. 62. Act Mar. 3, 1891, c. 561, § 3, 26 Stat. 1084 [U. S. Comp. St. 1901, p. 1296], amend- ing the Allen Contract Labor Law (Act Feb. 26, 1885, c. 164) 5 1, 23 Stat. 332 [U. S. Comp. St. 1901, p. 1290]. U. S. V. Baltic Mills Co. [C. C. A.] 124 P. 38. See 1 Curr. L. 63. 63. U. S. V. Parsons [C. C. A.] 130 P. 681. 64. As the term "recognized learned pro- fession" is used in the contract labor law. Act Cong. Mar. 3, 1903, c. 1012, 32 Stat. 1213, § 4. In re Ellis, 124 F. 637. 65. A Mexican boarded a ship in Mexico to sell goods, was carried off, demanded to be returned, told he would be landed on re- turn voyage, brought to United States and vrhlle here escaped from boat, was work- ing his way and not placed on the crew list, held, owners of boat not liable for bring- 3 Cur. Law, 4-LIENS § 3. 141 under a writ of habeas corpus to which the immigration authorities are not parties, although he has not been admitted into, the country by such authorities."" Under acts of congress, Chinese merchants are admitted into the United States; such merchant must have a certificate and that certificate must strictly comply with the law in order to be of any value in establishing the holder's right to enter or remain there;"' it must describe him as a merchant,"' but it is not necessary that his name should appear in the company name."' A Chinaman lawfully entering this country as a merchant and carrying on a business as such for some time thereafter cannot be deported after changing his occupation.'"' Such a person entering prior to and being a merchant at the time of the passage of the act for the registration of Chinese laborers is not subject to the provisions of said act, though he subsequently becomes a laborer.'^ It is no defense to an action for deportation that the party had formerly entered this country.'''' A Chinaman being permitted to live in this country unmolested for a number of years, there is no presumption that his arrival antedated the date on which the exclusion act took efEect.'" The latest expression of congress, be it a statute or a treaty, gov- erns as to the right of aliens to enter this country. The constructions placed on these acts will be found in the footnotes.''* The immigration laws of the coun- try, in so far as they are penal in nature, are to be strictly construed.'" Under the law aliens should be deported within one year" to the country from which they came.'' And the owners of the vessels bringing them are obliged to take them back.'» ing aliens Into this country. Moffltt v. U. S. [C. C. A.] 128 F. 375. 66. In re Carlson's Petition, 130 F. 379, 67. Merchant's certificate must state the nature, character, and estimated value of the business carried on by him. U. S. v. Gin Hing [Ariz.] 76 P. 689. 68. A Chinaman who in his certificate Is described as a "salesman" is not a merchant who is entitled to remain in the United States. V. S. v. Gin Hing [Ariz.] 76 P. 639. 69. Construing act of May 6, 1892 (27 Stat, at L. 25, c. 60, U. S. Comp. St. 1901, p. 1319) § 2, as amended by act of November 3, 1893 (28 Stat. at. L. 7, o. 14, U. S. Comp. St. 1901, p. 1322). Grocery conducted in firm name held partners were "merchants." Tom Hong V. U. S., 193 U. S. 517, 24 S. Ct. 517. 70. Became a laborer. In re Tew Blng HI, 128 F. 319. 71. Cannot be deported for failure to reg- ister. U. S. V. Louie Juen, 128 F. 522. 72. Where an alien subject to deporta- tion arrives by water in a port of this coun- try. It is no defense to an action for deporta- tion that he had come into the Unites States three years before by water, had remained four months, bought a farm and taken out his first papers, and since his second arrival had married here. In re Klelbs, 128 F. 656. 73. Was in the country 19 years, appellate decision was rendered in 1904, exclusion act took effect In 1882, he never registered as required by law. U. S. v. Ah Chung [C. C. A.] 130 F. 885. 74. The word "knowingly" in the Act July 6, 1884, as to any person knowingly bringing Chinese into this country, refers to knowledge of the fact of landing. Sims v. U. S. [C. C. A.] 121 F. 515. Act May 2, 1902, continued in force without Interruption the act of May 6, 1882, as amended by the act of July 5, 1884, and extended for ten years by the act of May 5, 1892. Id. The omission to provide for the deportation of contract laborers In the Act Cong. Mar. 3, 1903, c. 1012, 32 Stat. 1213, amending and reenact'ing the immigration laws, does not repeal the contract labor laws. In re Ellis, 124 F. 637. The Chinese exclusion treaty of 1894, al- lowing Chinese laborers who have certain relatives or property in the United States to return, has reference to the condition of the laborer at the time of his return. In re Ong Tung, 125 F. 814. Act of Mar. 3, 1903, as to the deportation of aliens found in the United States in violation of said act, does not extend to aliens who entered the country before its passage (32 Stat. 1218, c. 1012 [U. S. Comp. St. Supp. 1903, p. 180]). In re Lea, 126 F. 234. Chinese Exclusion Act (Act Cong. Sept. 13, 1888, § 13, c. 1016, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317]), is unconstitutional. In that it authorizes the ar- rest and trial of persons who may not be Chinese persons, within the United States, without the protection guaranteed by the Federal constitution. U. S. v. Coe, 128 F. 199. See 1 Curr. L. 68. 75. Moffltt v. U. S. [C. C. A.] 128 F. 375. 76. The alien must be seized for deporta- tion within one year of his last entry or the right Is lost (Act March 3, 1891, c. 551, § 11, 26 Stat. 1086 [U. S. Comp. St. 1901, p. 1299]). In re Russomanno, 128 F. 528. 77. Allen emigrants unlawfully coming In- to this country from France who are then temporarily absent in British Columbia, and return within a year from their arrival from France, are properly deported to France. Lavin v. Le Fevre [C. C. A.] 125 P. 693. 78. Act Cong. Mar. 3, 1891, o. 551, 26 Stat. 1086 (U. S. Comp. St. 1901, p. 1299). H. Haok- feld & Co. v. U. S. [C. C. A.] 125 F. 696. Hi ALIENS I 3. 3 Cur. Law. Exclusion.^" — Congress has full authority to confer upon the executive offi- cers of the government plenary power to exclude and deport aliens of any nar tionality.'^ Where a Chinese person is refused admission to the United States, the Federal courts will not interfere by habeas corpus imtil after a final decision on appeal by the secretary of commerce and labor.'* But such persons having entered the United States must be given a hearing and cannot be deported with- out due process of law.*' Federal courts will not intervene by habeas corpus to prevent such deportation where such alien had notice though an informal one/* and was not denied an opportunity to be heard though a want of knowledge of the English language, preventing her from understandiag the questions, is plead- ed.*' Congress cannot commit to the executive department the right to determine finally the question of the citizenship of a person applying for admission into the United States.*' But the supreme court having decided what facts must exist to constitute a person a citizen of the United States, congress may give the offi- cers of the executive department power to determine the existence or nonexistence of those facts.*^ Whether the executive officers of the government in deporting an alien emigrant are proceeding according to law is a judicial question, which may be inquired into on habeas corpus;** but their decision as to facts is generally conclusive.*" ElBcaplnir from ship on return paaaaise. — Two Japanese were locked in a room or. the ship but escaped through a porthole 25 feet above the water. Defendants were held liable. Hackfeld & Co. v. U. S. [C. C. A.] 125 F. 596. After the TJ. S. officials had ' consented to landing passengers on the responsibility of the steamship company and the latter had agreed to assume It, if given security, de- portation without giving a reasonable oppor- tunity to furnish security gives a prima facie cause of action. Kahaner v. Interna- tional Nav. Co., 117 F. 979. 80. See 1 Curr. L. 68. 81. In re Sing Tuck, 126 P. 386; In re Moy Quong Shing, 125 P. 641; U. S. v. Tuck Lee 120 P. 989; Kaoru Tamataya v. Fisher, 189 'u. S. 86, 23 S. Ct. 611, 47 Law. Ed. 721. The return of a writ of habeas corpus by an alleged Chinese alien, showing that defend- ant was an officer of immigration under control of the commissioner general In charge of the port where the alien attempted to enter, by designation of the secretary of commerce and labor, and that he held such Chinese person as such officer, sufficiently showed authority for the detention. In re Moy Quong Shing, 125 P. 641. See 1 Curr. L. ^%2. U. S. V. Sing Tuck, 194 U. S. 161, 24 S. Ct. 621. 83. The executive officers have no power to deport an alien who has entered the coun- try and has become subject in all respects to its jurisdiction and a part of the popu- lation without giving him an opportunity to be heard upon the question involving his He-ht to be and remain in the United States. Sloru Tamataya v. Fisher, 189 U. S. 86, 23 3 Ct. 611, 47 Law. Ed. 721. Due process of law: W^here, under the law such persons have a tribunal in which to be heard, a hearing on notice, with oppor- tunity to present evidence, a judgment and the right of appeal, all according to the law of the land, they are not denied due process of law. In re Sing Tuck, 126 P. 386. The secretary of the treasury cannot arbitrarily order the deportation of an alien w^ho has secured entrance Into the United States in violation cf law. Hopkins v. Pachant [C. C. A.] 130 P. 839. 84. Kaoru Tamataya v. Fisher, 189 U. S. 86, 23 S. Ct. 611, 47 Law. Ed. 721. 83. These facts should have been presented to the officer having charge of the examina- tion or to the secretary of the treasury. Kaoru Tamataya v. Fisher, 189 U. S. 86, 23 S. Ct. 611, 47 Law. Ed. 721. 86. In re Sing Tuck, 126 P. 386. "Where an alleged Chinese citizen establishes a prima facie case of citizenship, he is entitled to have his right to remain Judicially deter- mined on habeas corpus. Sing Tuck v. U. S. [C. C. A.] 128 P. 592. 87. In this case born In the United States of alien parents. In re Sing Tuck, 126 P. 386. The decision of executive officers can also Include the fact of birth. Under Act Cong. Feb. 14, 1903, c. 552, § 7, 32 Stat. 823 (U. S. Comp. St. Supp. 1903, p. 46), the ex- ecutive officers of the department of com- merce and labor have the authority to de- termine the above question, and also such department has authority to prescribe rule.s of evidence relating to presumptions and bur- den of proof in the determination of the alien's right of admission. In re Moy Quons Shing, 125 P. 641. 88. Lavin V. Le Fevre [C. C. A.] 125 F. 693. 89. Under the statutes of the United States rendering the decision of the board of spe- cial inquiry final as to exclusion for disease, the only jurisdictional fact necessary to the conclusiveness of such decision is the alien- age of the Immigrant, and when that Is 3 Cur. Law. ALIENS § 3. 143 Registration?" — The provisions for Chinese registration made by the act of May 5, 1892, § 6," were not repealed by the act of April 29, 1902, § 1,*" nor are they inconsistent with the treaty of December 8, 1894, with China."' Certificate.'* — The certificate mnst strictly comply with the requirements of the laws of this country in order to be of any value in establishing the holder's right to enter or remain here."' In determining the right of a Chinese person to enter, the immigration officers may disregard the collector's certificate.*' Deportation; procedure."'' — A proceeding to expel or exclude aliens under the Federal law is civil, and not criminal in its nature,"' therefore the fact that de- fendants refused to testify may be considered by the commission,"" but is not of itself ground for deportation.^ ' Upon a writ of habeas corpus by an excluded Chinese, no bail is allowed,' nor is such alien entitled to bail, pending appeal from a commissioner's order of deportation,* though it may be granted.* In a pro- ceeding for the exclusion of an alleged Chinese person, the trial of the issue aa to whether or not accused is a Chinese person is to be regarded as criminal in its nature.* No formal complaint or pleadings are required in proceedings for the shown, the decision cannot be reviewed by the courts on the question of the existence or character of the disease [Act of Mar. 3, 1903. 0. 1012, 32 Stat. 1214, 5 10, see also prior act of Aug. 18, 1894, c. 301, 28 Stat. 390 (17. S. Comp. St. 1901. p. 1303)]. In re Neuwlrth, 123 P. 347. The decision of the proper customs or Immigration officer ad- verse to the claim of a person of the Chinese race to nativity in the United States, and denying him entry, is conclusive in subse- quent proceedings for his deportation for be- ing unlawfully in this country. U. S. v. Lue Tee, 124 P. 303. The deportation decree of a United States commissioner defines and establishes tlie status of a Chinese person alleged to be unlawfully in the United States. It is therefore relevant and competent evi- dence of the status of such person and is suiBcient to justify a grand Jury in finding an indictment against defendant for willfully bringing such person into the United States in violation of the Chinese Exclusion Act. U. S. v. Hills, 124 P. 831. A decision of the immigration board of special Inquiry that an Immigrant is an anarchist Is not open to re- view by the United States circuit court In habeas corpus proceedings. U. S. v. Wil- liams, 126 P. 253. Under Act of Mar. 3, 1903 (32 Stat. 1218, c. 1012, U. S. Comp. St. Supp. 1903, p. 180) the time of the entry of an alien arrested and held for deportation there- under Is one Involving the jurisdiction of the officers assuming to exercise such au- thority and may be Inquired into by a court on a writ of habeas corpus. In re Lea, 126 P. 234. 90. See 1 Curr. L,. 68. 91. 27 Stat, at L. 25, c. 60, U. S. Comp. Stat. 1901, p. 1319, 5 6, as amended by the act of November 3, 1893 (28 Stat, at L. 7, o. 14, U. S. Comp. Stat. 1901, p. 1322). Ah How v. U. S., 193 U. S. 65, 24 S. Ct. 357. See 1 Curr. Lk 68. 92. 32 Stat, at t.. 176. o. 641. Ah How ▼. U. S., 193 U. S. 65, 24 S. Ct. 3B7. »3. 28 Stat, at L. 1210. Ah How v. U. S.. 193 U. S. fi5, 24 S. Ct. 357. SM. See 1 Curr. L. 69. f>5. Merchant's certificate must gtate the nature, character, and estimated value of the business carried on by him. U. S. t. Gin King [Ariz.] 76 P. 639. 9ehn [Iowa] 97 N. W. 1094. Correction by coljrt of misdescription of real e?tato in will, also latent ambiguity. In re Pope's Estate [Minn.] 97 N. W. 1046. 7, 8. Kessler v. Best, 121 F. 439. 9. Long v. Powell [Ga.] 48 S. E. 185. A foreign acknowledgment stating the venue as "Confederation of Switzerland, Canton do Vaud, City of Vervey — ss," and reciting thai on the day named, before C, "consular agoi t of the United States in and for the said city of Vervey. at said city of Vervey, person- ally appeared," etc., sufficiently complies with the New York statute (Laws 1901, p. 1476, c. 611) requiring acknowledgments taken in foreign countries to be before the agent of the United States "residing within the country." Jordan v. Underbill, 91 App. Div. 124, 86 N. T. S. 620. 10. Citizens and taxpayers may be heard in deciding whether revenue bond scrip can be used to pay taxes. Robinson v. Lee, 122 F. 1010. "Wliere an answer must be verified by the defendant or some one in his behalf, one of several defendants may verify for all. Deved v. Carrington [Md.] 56 A. 818. 11. 12. Northern Securities Co. v. U. S., 191 U. S. 555, 24 S. Ct. 119. Leave to iile briefs refused where it did not appear that the applicant was interested in any other case to be aftected by the decision, and the parties were represented by competent coun- sel who did not consent to the filing. Id. 3 Cui'. Lavr. ANIMALS § 2. 159 ANIMALS. S 5. Coutra. S 2. Personal Injuries Inflicted br AnI- § 7. Reeulations as to Care, Keeping, and mala (159). Protection and Health (104). Interstate § 8. Injuries to Property by Animals Tres- Transportation; Quarantine; Inspection (165). passing or Running at Large (160). g 8. Marks and Brands (165). § 4. Liability for Killing or Injuring Anl- § 9. Cruelty to Animals (165). nials (161). § 1. Property in animals.^^ — The modern rule is tliat the owner of a 4pg has such a property therein that he may maintain an action for its wrongful de- struction.^* § 3. Personal injuries inflicted by animals}'^ — Under the common-law rule, the owner or keeper of a vicious animal is liable for personal injuries inflicted by it, if its character is known by him.^" Actual notice however is not neces- sary,^' it being presumed from the circumstances,^" and notice to the owner's wife has been held sufficient.^' Under this rule the viciousness of a dog will not be presumed,-" nor is it negligence per se to keep a vicious dog, the negligence IS. See 1 Curr. L. 79. 14. O'Neil V. Newman [Mich.] 93 N. W. 1064. Dictum that dog Is subject of larceny. Florida Cent. & P. R. Co. v. Davis [Fla.] 34 So. 218. An interesting opinion on prop- erty in dogrs. Strong v. Georgia R. & Blec. Co., 118 Ga. 515, 45 S. E. 366. Note: At common law an owner had a property right in his dog. Mullaly v. Peo- ple, 86 N. T. 365; State v. Sumner. 2 Ind. 377; Dodson v. Mock.' 20 N. C. (3 Dev. & B.) 282; Harrington v. Miles, 11 Kan. 481; Bx parte Cooper, 3 Tex. App. 489; White v. Brantley. 37 Ala. 430. Contra, Chunot v. Lar- son, 43 Wis. 536; State v. Harriman, 73 Me. 562. Replevin may be maintained to re- cover him. State v. Lynus, 26 Ohio St. 400; State V. McDuffle, 34 N. H. 523; Cummings v. Perham, 1 Mete. [Mass.] 555. Some cases hold that by virtue of the police power cer- tain classes of dogs may be killed. Haller v. Sheridan, 27 Ind. 494; State v. Topeka, 86 Kan. 76; City of Hagerstown v. Witmer, 86 Md. 293, 37 A. 965; Tower v. Tower, 18 Pick. [Mass.] 262; City of Faribault v. Wil- son. 34 Minn. 254, 25 N. W. 449; Morey v. Brown, 42 N. H. 373; Jenkins v. Ballantyne, 8 Utah, 245, 30 P. 760. Contra, Lowell v. Gathright, 97 Ind. 313: Lynn v. State, 33 Tex. Cr. App. 153. 25 S. W. 779; Heisrodt V. Hackett, 34 Mich. 283; Cozzens v. Coz- zens, 109 Mass. 275. Some cases hold that a howling dog may not be killed. Jacquay V. Hartzell, 1 Ind. App. 500. Others affirm the right. Woolf v. Chalker, 31 Conn. 121; Brill V. Flagler, 23 Wend. [N. Y.] 354, over- ruled Dunlap v. Snyder, 17 Barb. [N. T.] 561. A question for the jury. Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209. Mere trespassing dogs cannot be killed. Brent v. Kimball, 60 111. 211; Marshall v. Black- shire, 44 Iowa, 475; Woolsey v. Haas, 65 Mo. App. 198. Sheep killing dogs may be killed. Thompson v. State, 67 Ala. 106; Dunlap v. Snyder, 17 -Barb. [N. T.] 561. 'Dogs chasing other animals cannot. Spray v. Ammerman, 66 111. 309; Llvermore v. Batchelder, 141 Mass 179, 5 N. E. 275; Hamby v. Samson, 105 Iowa. 112, 74 N. W. 918, 40 L. R. A. 508, and note; Graham v. Smith, 100 Ga. 434, 28 S. B. 225, 40 L. R. A. 503, and note. tS. See 1 Curr. L. 79. 16. Carroll v. Marcoux, 98 Me. 259, 56 A. 848; Perry v. Cobb [Ind. T.] 76 S. W. 289; Peck V. Williams, 24 R. I. 683, 64 A. 381; Fisher v. Welnholzer [Minn.] 97 N. W. 426; Boler v. Sorgenfrei, 86 N. T. S. 180. An agreed state of facts that the plaintiff, a child of seven years, sitting on a fence be- tween his home and the property of defend- ant, was bitten by a dog known to be vi- cious. Gladstone v. Brunkhurst [N. J. Law] 56 A. 142. If the owner has seen or heard enough to convince a man of ordinary pru- dence of the animal's Inclinatio'n to bite people, or if he has knowledge of one at- tempt upon a person it is sufficient. Rowe v. Ehrmantraut [Minn.] 99 N. W. 211. Where a horse is properly In the place where the injury is inflicted, knowledge of its vicious character must be shown. A horse being led along the highway by a man riding another horse is in its proper place and in the ab- sence of knowledge of its character, the owner is not liable for damages resulting from its kicking plaintiff's buggy and in- juring him. Eddy v. Union R. Co. [R. L] 56 A. 677. 17. Held to be a reversible error that the judge refused to charge a jury that the defendant would be liable if the facts were sufficient to put a reasonable man upon inquiry and he failed to heed the warnings. Nelson V. Barrett, 89 App. Div. 466, 85 N. T. S. 817. IS. A witness may testify as to the re- pute of the animal, though his information be derived from one person only who had knowledge of the facts. Fisher v. Weln- holzer [Minn.] 97 N. W. 426. 19. Where the defense In an action for injuries was that the dog's vicious character was not known, and neither the defendant nor his wife testilied, it may be inferred that their testimony would have been un- favorable to the defense. Boler v. Sorgen- frei, 80 N. T. S. 180. 20. In the absence of a statute, the fact that a dog was at large upon the highway does not obviate the necessity of proving the dog's vicious character. Leonard v. Don- oghue, 87 App. Div. 104, 84 N. Y. S. 60. Where a dog had on three other occasions attacked passer.^ by. evidence held to show 160 ANIMALS § 2. 3 Cur. -Law. consisting in keeping after notice of its character." After notice, the owner must exercise care commensurate with the danger.^' One entering on strange premises must exercise due care, and whether he did or not is a question for the jury.^' By statute, in some states, an injury by a dog is actionable,''* though the person injured be a trespasser,^" unless the trespasser provoked the dog to the attack.^' A dog in the owner's cart Upon the highway is not within an "in- closure.'"' The owner of hogs properly in the highway, is not liable for personal injuries proximately caused by them.^' Ownership of a dog by the licensee, is shown by the issuance of such license, only upon proof of knowledge thereof by the licensee.^" It is the duty of a liveryman to furnish a reasonably, safe horse.'* § 3. Injuries to property hy animals trespassing or running at large.'''- — At common law the owner of animals was required to confine them to his own land,'^ but this rule is not in force in a majority of the American states,'' where no actionable trespass is committed where animals wander on and depasture the uninclosed lands of another,'* though even here the owner may not willfully drive his cattle on another's land.'° Liability arises only if such animals break throtgh a fence sufficient to turn ordinary cattle under ordinary circumstances;" in Missouri, however, the common law as to adjoining proprietors without a partition fence applies." The defendant's inolosure must have been suitable, un- a vicious disposition. Rowe v. Bhrmantraut [Minn.] 99 N. W. 211. A dog's propensity to attack other dogs Is admissible to show its disposition. Id. 21. De Gray v. Murray, 69 N. J. Law, 456, 55 A. 237. 22. Where a dog was locked In a shed but so gnawed the wood that the fastening became loose the owner was held to have used the requisite care. T>e Gray v. Mur- ray, 69 N. J. Law, 456, 55 A. 237. 23. Where a junk dealer entered prem- ises where there was a sign on the barn "beware of the dog" and while In the act of picking up a rope was bitten evidence held to show that he was not In the exer- cise of due care. Spellman v. Dyer [Mass.] 71 N. E. 295. An instruction that if he was doing what an ordinary junk dealer would probably do, and did not intend to steal the rope, he was in the exercise of due care, was sufficiently favorable to the junk deal- er. Id. 24. Knowledge of the dog's character and the care exercised by its owner are imma- terial. Peck V. Williams, 24 R. I. 583, 54 A. 381; Carroll v. Marcoux, 98 Me. 259, 56 A. 848; Leonorovitz v. Ott, 40 Misc. 551, 82 N. T. S. 880. 25. Plaintiff, a peddler, knocked at de- fendant's door and entered without further ceremony. Carroll v. Marcoux, 98 Me. 259. 56 A. 848. One who allows a biting dog to go at large knowing it to be such, is liable If it bite a trespasser. Leonorovitz v. Ott, 40 Misc. 551, 82 N. Y. S. 880. 26. Plaintiff climbed upon defendant's cart uninvited and was bitten by a dog therein. There being no sufficient proof of provocation defendant was held liable. Peck V. Williams, 24 R. I. 583, 54 A. 381. 27. "The Inclosure" refers to land. Peck V Williams, 24 R. I. 583, 54 A. 381. 28. Heist V. Jacoby [Neb.] 98 N. W. 1058. 29. Evidence of the Issuing of a license in the name of another than the defendant was rejected, there being no proof as above indicated. Jordan v. Carberry [Mass.] 69 N. E. 1062. 30. In the absence of contributory negli- gence, a liveryman is liable who lets a horse known to be not reasonably safe for a given purpose, or whose faulty character should have been known by ordinary care. Nisbet V. Wells, 25 Ky. L. R. 511, 76 S. W. 120. 31. See 1 Curr. L. 80. 32. Laws 1872, p. 123, providing that dam- ages could not be recovered unless cattle broke through a lawful fence, does not ap- ply to sheep. Pacific Live Stock Co. v. Murray [Or.] 76 P. 1079. 33. Perry v. Cobb [Ind. T.] 76 S. W. 289; Mulr v. Thixton, Millett & Co., 25 Ky. L. R. 1688, 78 S. W. 466; Gillespie V. Hendren, P8 Mo. App. 622, 73 S. W. 361. It is not unlawful at common law for animals to run at large. Kittredge v. Cincinnati, 2 Ohio, N. P. [N. S.] 6. But Laws 1875, p. 190, "An act to restrain sheep and swine from running at large in the state of Ne- braska," does not protect passers along the highway against unconflned hogs. Heist v. Jacoby [Neb.] 98 N. W. 1058. 34. Public Lands, 2 Curr. L. 1295. Mar- tin v. Platte Valley Sheep Co. [Wyo.] 76 P. 571. 35. Sweetman v. Cooper [Colo. App.] 76 P. 926. 36. Spalding v. Nesbit [Mo. App.] 79 S. W. 181. Whether a lawful fence existed is a question for the jury. Crenshaw v. Gard- ner. 25 Ky. L. R. 506, 76 S. W. 26. Where an Injury is committed by reason of the viclousness of an animal, not trespassing, knowledge of such viciousness must be shttwn on the part of the owner. Perry v. Cobb [Ind. T.] 76 S. W. 289. 37. And under it each party must fence his own stock. Gillespie v. Hendren, 98 Mo. App. 622, 73 S. W. 361. 3 Cur. Law. ANIMALS 8 4. 161 der the surrounding circumstances,'* and the owner is liable for damages proxi- mately caused by a negligent escape/" and the fact that the fence broken through was not a lawful one was no defense.*" The person whose property is damaged is not restricted to the remedy specially provided for a breach of a statutory fence.*^ Animals trespassing upon the lands of another are not "going at large contrary to law,"*^ but a horse running unattended through the streets to its livery stable is.*' A statement of a cause of action though informal and stating conclusions is sufficient after judgment." The measure of damage is the value of the pasturage eaten or destroyed, together with the injury to the freehold.*" § 4. Liability for hilling or injuring animals.*" — One is not justified in killing or willfully injuring domestic animals trespassing upon his property,*' unless so provided by statute,*' or if a dog is caught chasing or injuring sheep,** or hunting deer.°° Where so provided the action is local. "^ To entitle one to a recovery from the county for sheep killed by dogs the statutory procedure must 38. Proof of the existence of sufficient fence prescribed will not alone relieve from liability. Plumb v. Maher [Conn.] 56 A. 494. Mere fact of a stallion being out of his pas- ture does not amount \o contributory negli- gence on the part of the owner where the horse falls into a hole in the street and is killed. Kittredge v. Cincinnati, 2 Ohio N. P. (N. S.) 6. 30. Plumb V. Maher [Conn.] 56 A. 494. The owner of an unrestrained bull Is liable for all damages occasioned by his being at large [Code, § 2312]. Burleigh v. Hines [Iowa] 99 N. W. 723. Nineteen thoroughbred heifers gotten with calf by unregistered bull. Id. Evidence held to show owner- ship of a dog which caused a runaway, and liability for damages. Austin v. Bartlett [N. T.] 70 N. B. 855. 40. Burleigh v. Hines [Iowa] 99 N. W. 723. The owner of the heifers was not guilty of contributory negligence In placing them In the field knowing that the fence was Inadequate. Id. To say that one is not negligent in keeping up a fence suffi- cient to restrain a stallion colt of the age of two years, does not apply to the case of a particular colt which has jumped the same fence once before. Kittredge v. Cin- cinnati, 2 Ohio N. P. (N. S.) 6. 41. Burch V. Samples [Tex. Civ. App.J 74 S. W. 81. 43. The owner of animals so trespassing Is liable for damages only and not the penalty of ten cents a head Imposed by statute for animals "going at large contrary to law" [Mich. Comp. Laws 1897, §§ 10688, 10689]. Miller V. Hoffman [Mich.] 97 N. W. 759. 43. And though the horse was well trained to go alone to the stable. Its owner was held liable for injury to a person at- tempting to avoid the horse In the belief that It was vicious and had run away. Allen V. Hazzard [Tex. Civ. App.] 77 S. W. 268. 44. Where defendant's cattle left his prem- ises, destroyed a certain amount of plain- tiff's corn, held that at the time of the entry the stock law was in force. Young v. Pren- tice [Mo. App.1 80 S. W. 10. 45. Damages, 1 Curr. L. 833. Pacific Live, Stock Cq. v. Murray [Or.] 76 P. 1079. The owner was entitled to recover damages to a heifer sold before the action was brought. Burleigh v. Hines [Iowa] 99 N. W. 723. 46. See 1 Curr. L. 81. 3 Curr, Law — ^11 47. Meadows v. State, 136 Ala. 67, 34 So. 183. That plaintiff's servant negligently left a gate open is not such contributory negligence as to bar a recovery. Kemp v. Briard [Neb.] 98 N. W. 1048. In Florida the larceny or malicious killing or Injury of a dog returned by the owner for taxation is made a crime. Florida C. & P. R. Co. v. Davis [Fla.] 34 So. 218. 48. Under Code 1896, § 5092, one Indicted for killing cows may show in justification or mitigation ^at at the ,time they were trespassing on growing crops cultivated without fence, where stock laws prevail. Prince v. State [Ala.] 37 So. 171. This fact is not inconsistent "with acts establishing stock law districts, and providing penalties and remedies which may be enforced against the owner of stock. Id. 49. Whether such killing was Justified Is a question for the jury. O'Neil v. Newman [Mich.] 93 N. W. 1064. 60. Under Act 1898, p. 84, providing that any person may lawfully kill any dog found hunting deer, it may be killed only while so hunting, so a plea alleging merely that "on the day" of the killing, defendant found it hunting deer, is insufficient. Mossman v. Bostridge [Vt.] 57 A. 995. Under Vermont statute any dog, without regard to Its breed or whether It was permitted to run at large, may be killed if caught hunting deer. Act 1898, p. 84, providing that dogs of a certain breed shall not be permitted to run at large, and that any person may lawfully kill any dog found hunting deer. Moss- man V. Bostridge [Vt.] 57 A. 995. A plea in trespass for killing a dog alleging that on the day and date "of said supposed kill- ing," it was found hunting deer, identifies the trespass attempted to be justified with the one declared on. Id. 51. Sand. & H. Dig. § 6252, fixes the local jurisdiction for killing live stock in the county where the killing occurred. An ob- jection that it was not shown that cattle were killed In the county where suit was brought was good, though raised for the first time on appeal. St. Louis, etc., R. Co. v. Gray [Ark.] SO S. W. 748. Where one killed three cows by firing three different shots, the three acts of shooting constituted a single offense. Prince v. State [Ala.] 37 So. 171. 162 ANIMALS § 4. 3 Cur. Law. be strictly complied with.'^ A liability arises if one negligently allows his dis- eased cattle to commingle with those of another/^ or knowingly sells diseased stock,°* or negligently sells feed containing poison/' or carelessly drives a hired team and permanently injures them.'* An exception to the common law rule re- quires the proper fencing or guarding of "attractive nuisances/"*' but natural barriers may serve as the equivalent of a legal fence."* Eailroad companies are liable for injuries to animals resulting from negligent operation or defective con- struction of their road/' as are also municipal corporations for negligent use or defective construction of highways."" § 5. Contracts of agistment.^^ — An agister's lien is a perfect one, directly created by statute and does not depend for its existence upon the institution of judicial or other proceedings/" but he may, with consent of the owner and under circumstances not prejudicial to third persons, adopt other means than that pro- vided by statute to secure a satisfaction of his claim/* the statutory lien will be strictly construed,** and in Missouri, to sustain such a lien upon a vehicle, the latter must have come into the agister's charge at the same time as the animal cared for."" In Iowa an agister's lien does not take priority over other liens of record,"' and the prior mortgagee may maintain replevin without demand."' The degree of care required of an agister is that of ordinary diligence, that which men in general exercise in respect to their own affairs,"* which is a question for the 52. He must allege the dogs to have been harbored by persons living in the county other than himself, and plead all the con- ditions precedent to a recovery. McCul- lough v. Colfax County [Neb.] 95 N. W. 29. 63. Whether the cattle were diseased and whether the defendant knew it are ques- tions for the jury. Truskett v. Bronaugh [Ind. T.] 76 S. W. 294. 54. Intervening transfer by third per- sons does not discharge the liability. Dam- ages recoverable are not only the purchase price but also the loss due to other animals contracting the contagion. Skinn v. Reut- ter [Mich.] 97 N. W. 152. 65. Where oats and parls green had been carelessly kept in the same room and were accidentally commingled during the con- fusion of a Are, the party selling the oats for feeding purposes was held liable, though the buyer knew the oats were damaged by water but did not know of the poison. Pro- vost v. Cook, 184 Mass. 315, 68 N. B. 336. 66. The measure of damages is the dif- ference in the team's value before and after such careless driving and the reasonable expenses incurred to prevent a greater loss. Cunningham v. Dickerson [Mo. App.] 79 S. W. 492. 57. The maintaining of a covered cistern upon the premises of an unfenced distillery does not come within this exception, there being no evidence that malt or oorft was strewn about at the time a horse strayed upon the premises. Muir v. Thixton, Mil- lett & Co., 25 Ky. L. R. 1688, 78 S. W. 466. 68. Taylor v. Spokane Falls & Northern R. Co., 32 Wash. 450, 73 P. 499. 59. See Railroads, 2 Curr. L. 1438, 1440. 60. See Highways and Streets, 2 Curr. L. 177. 61. Notei The lien of a recorded chat- tel mortgage is paramount to that of an agister. Lynde v. Parker, 155 Mass. 481, 34 N B 74; Blssell v. Pearce, 28 N. T. 252; Corning v. Ashley, 5,1 Hun, 483, 4 N. T. S. 255; Wright v. Sherman, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792 and note; Lambert V. Nioklass, 45 W. Va. 527, 31 S. E. 951, 44 Li. R. a. 561 and note. An agister waives his lien by causing the property to be taken in execution for his debt. Fein v. Wyo- ming Loan & Trust Co., 3 Wyo. 331, 22 P. 1150. Contra, Lambert V. Nioklass, 45 W. Va. 527, 31 S. B. 951; Neff v. Rhodes. 20 Mo. App. 347. See 1 Curr. L. 82. 82. Such a lien Is cognizable and enforce- able In bankruptcy [chapter 620, p. 920, 17 Del. Laws]. In re Pratesi, 126 F. 588. 63. Where the superior lien and posses- sion were in the agister he owed no duty to a mortgagor except to care for the ani- mals and refrain from fraud or injury. Dale V. Council Bluffs Sav. Bank [Neb.] 94 N. W. 983. 64. For the reason that it is in deroga- tion of the common law. Zartman-Thalman Carriage Co. v. Reid, 99 Mo. App. 415, 73 S. W. 942. 65. Lien refused where a carriage came into the care of a liveryman several months after the horse, though from thenceforth he had the care of both. Zartman-Thalman Carriage Co. v. Reid, 99 Mo. App. 415, 73 S. W. 942. 66. The mortgagee's knowledge that pas- turage was being furnished would not de- stroy his priority. Beh v. Moore [Iowa] 100 N. W. 502. 67. Beh v. Moore [Iowa] ;100 N. W. 502. 68. In the absence of a special contract an agister is not an insurer but must ex- ercise reasonable care and diligence; that which a man of ordinary prudence would use under the same circumstances toward his own property. Arrington Bros. & Co. V. Fleming, 117 Ga. 449, 43 S. B. 691. A pasture which is not wholly inclosed la not inclosed at all. One who took horses to pasture, and allowed them to escape. Shropshire v. Sidebottom [Mont.] 76 P. 941. 3 Cur. listw. ANIMALS § 6. 163 jury,'" and one who is not bound by a contract of agistment to return all the cattle taken may recover a balance due, though some of the cattle are missing.'" The word "range" has a distinctive meaning,'^ as has also the phrase "to keep the old stock good.'"^ § 6. Esirays and impounding.'^ — One attempting to hold cattle damage feasant must act in substantial compliance with the statute,'* and he must not in- clude an illegal item in the sum demanded as a condition of release.'" The dam- ages, to which one taking up estrays is entitled, are limited to such as were com- mitted at the time of, and immediately preceding the trespass,'" and one may be estopped by his conduct to claim damages for a past trespass," but not by the fact that he allowed the owner to remove them.'' In Michigan the owner of trespassing animals, dissatisfied with the sum demanded as a condition of release, may apply to a justice of the peace for the appointment of appraisers,'" though their award is not binding.'" One who takes up, confines and cares for a stray hog, as a pro- tection to his crops, is not guilty of taking up a stray animal and making use of it.'^ Animals found at large may be impounded and sold for the charges of keeping,*'' 09. Defendant who had undertaken to pasture a mule was held not liable, and in his defense was permitted to show that prudent men also pastured animals in fields having one side unfenced but bounded by a river. Arrington Bros. & Co. v. Fleming, 117 Ga. 449, 43 S. B. 691. 70. Payment of "$1.00 per head for all he turns back." lililler v. Lewis [S. D.] 97 N. W. 364. 71. A sparsely populated and uninclosed prairie over which stock growers have been allowed to let cattle, horses, and other ani- mals, owned by them or in their charge, roam and feed without restraint. Miller v. Lewis [S. D.] 97 N. W. 364. 72. Held, under the circumstances to mean that the older sheep could be dis- posed of and younger ones allowed to take their place, though the entire herd could not be sold. Turnbow v. Beokstead, 25 Utah, 468, 71 P. 1062. 73. Note: In order to distrain animals damage feasant, actual damages must have been suifered. McConnell v. Gate, 70 N. H. 296; Leavitt v. Thompson, 56 Barb. [N. T.] 542; Gilbert v. Stephens, 5 Okla. 673, 55 P. 1070; Holden v. Torrey, 31 Vt. 690. The com- mon law gave no right of sale and a Tex- as statute so providing was held unconsti- tutional.- Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440. See, also, Pettit v. May, 34 Wis. 666; Bullock v. Geomble, 45 III. 218; Rockwell v. Nearing, 35 N. Y. 302; Campbell v. Evans, 45 N. T. 356. Municipal- ities have the power to sell Impounded ani- mals if the proceedings therefor are with due process of law. Folmar v. Curtis, 86 Ala. 354; Amyx v. Taber, 23 Cal. 370; Whlt- lock V. West, 26 Conn. 406; Roberts v. Ogle, 30 111. 459; State v. Tweedy, 115 N. C. 704, 20 N. E. 183. The sale must be preceded by notice. Varden v. Mount, 78 Ky. 86; Donovan v. Vicksburg, 29 Miss. 247; Rose- baugh V. Saffin, 10 Ohio, 31; Armstrong v. Brown, 106 Ky. 81, 50 S. W. 17, 90 Am. St. Rep. 211, and note thereto. See 1 Curr. L. 82. 74. A tender of a sum equivalent to the actual damage justifies an action of re- plevin [Comp. St. 1901, art. 3, c. 2]. Mc- Allister v. Wrede [Neb.] 97 N. W. 318. Act 1895, 0. 137, forbidding the Impounding ol stock of nonresidents if their ownership was known was impliedly repealed by Act 1899, c. 137, and the impounding of hogs of a nonresident was legal. City of Claren- don V. Walker [Ark.] SO S. W. 883. One is entitled to impound an animal which es- capes into his enclosure on account of an adjoining owner's failure to maintain a line fence which he was bound to keep in re- pair. Walker v. Robertson [Mo. App.] 81 S. W. 1183. 75. So held upon a refusal to release the cattle except on payment of a sum in- cluding an officer's fees, the service of a notice by an officer being unnecessary. Mc- Allister V. Wrede [Neb.] 97 N. W. 318. 70. Ch. 19, St. 1804. Where one was ten- dered the amount of damage caused by cat- tle but refused it, he was held liable to ac- count for the milk drawn from the cows. Fleetham v. Therres [Minn.] 100 N. W. 377. Providing the distrainer was wrongful. Id. 77. One had knowledge that cattle v/ent in and out of his meadow at will. Just as the owner was moving away he destrained the cattle and set up a claim for damages for the entire period. Adair v. Curry [Mo. App.] 80 S. W. 967. 78. Where one found a bull on his prem- ises and locked him up, and notified the owner who removed him, he was not pre- cluded from maintaining his action for dam- ages under Code, § 2312. Burleigh v. Hines [Iowa] 99 N. W. 723. 79. But the opposite party has a right to be heard before the appointment [Comp. Laws 1897, % 10698]. Miller v. Hoffman [Mich.] 97 N. W. 759. Under Code, § 2317, providing for assessment of damages by township trustees for distrained trespassing stock, the fact that there are no trustees in the township where the cattle are dis- trained does not affect the right. Robin- son v. Halley [Iowa] 100 N, W. 328. 80. Miller v. Hoffman [Mich.] 97 N. W. 769. 81. Pen. Code 1895, art. 918. Williams V. State [Tex. Cr. App.] 78 S. W. 928. 82. That the animal belongs to a non- resident of the municipality whose ordl- 161 ANIMALS § 7. 3 Cur. Law. but there must be a strict compliance with the statutory procedure of sale,'' to pass a good title;'* that the owner was not negligent is immaterial.'" A statute is un- constitutional which provides for a sale without judicial proceedings to determine the amount of damages and whether the animal was actually at large.'* § 7. Regulations as to care, keeping and protection and health." — In some states, stock law districts, to prevent cattle running at large therein, may be created upon the requisite vote of the people," but upon such an election the statutory pro- cedure must be strictly followed ;'° the courts will take judicial notice of the exist- ence of such districts.'"' In Alabama the districts may not be charged for one year,"^ and in Mississippi the partial stock law does not include cattle.'^ A state may lawfully forbid nonresidents to allow their stock to run at large within its ju- risdiction. °' Driving sheep from one. range to another is not within a statute regu- lating "herding" and "grazing."'* Statutes may authorize the destruction of dogs not properly muzzled,"" and for a failure to so protect the public the owners may be fined and imprisoned."' A municipality may forbid the keeping of hogs within the corporate limits during a certain period of the year,°^ but prosecution under such an ordinance must strictly comply with the statutory procedure."' A town by-law on the keeping of animals within the town limits is void where the regulation of such matters properly belongs to the board of health."" A prohibition of the keeping of a noisy dog or other animal about a stable or other premises does not apply to a horse.^ In Texas one is liable to a criminal action who willfully drives cattle from their accustomed range.'' Statutes prohibiting the docking of horses are constitu- tional' and a valid exercise of the police power.* nance is violated Is immaterial. Jeans v. Morrison, 99 Mo. App. 208, 73 S. W. 235. 83. Especially as to the publication or service of proper notice. Jeans v. Morrison, 99 Mo. App. 208, 73 S. "W. 235. A petition alleging that petitioner had seized cattle which had entered a lot occupied by him as tenant does not authorize the sale of such cattle under Code Civ. Proc. § 3084, which authorizes sale only when cattle were be- ing pastured on a public street or on private property bordering thereon, neither did the petition allege that the cattle were wrong- fully on the lot. Burns v. Morrow, 42 Misc. 657, 87 N. T. S. 719. 84. Defective description of the animal in the posted notice, and a sale one day later than the time set, are fatal irregularities. Ryall V. Smith, 138 Ala. 145, 34 So. 1009. 85. An owner may not be liable for pen- alties prescribed by a cattle ordinance un- less he be guilty of some negligence, but a city of fourth class has charter power to Impound regardless of negligence. Dorton V. Burks, 99 Mo. App. 165, 73 S. W. 239. 86. Laws 1893, p. 32, Act No. 41. Greer V. Downey [Ariz.] 71 P. 900. 87. See 1 Curr. L. 83. 88. Keenan v. Harkins [Miss.] 35 So. 177. Under the Laws of 1900, p. 164, c. 124, such a district may contain a less quantity of land than a township. Shaw v. Woifard [Miss.] 34 So. 329. 89. A failure by the county court to de- clare and publish the result Is fatal. King V. State [Tex. Cr. App.] 74 S. W. 773. 90. Lewis T. Rasp [Okl.] 76 P. 142. 91. Reed v. State. 136 Ala. 91, 34 So. S48. 92. Code 1892, § 2057. Whitfield v. Tatum [Miss.] 35 So. 447. 93. Such a statute Is not unconstitutional, as contravening section 2, article 4, which declares that the citizens of each state shall be entitled to all privileges and Im- munities of citizens in the state. State v. Smith, 71 Ark. 478, 75 S. "W. 1081. 94. Rev. St. 1887, § 1210, forbids the herd- ing of sheep or the permitting of them to graze within two miles of another's dwell- ing; defendant held not liable though the sheep occasionally ate grass and passed with- in two miles of a dwelling. Phlpps v. Grover [Idaho] 75 P. 64. 95. The statute Is not invalid In that It shields the real culprit — the owner. Incor- porated Town of Sibley v. Lastrico [Iowa] 97 N. W. 1074. 96. An ordinance making It a misdemean- or to allow unmuzzled dogs to run at large, is valid. Incorporated Town of Sibley v. Lastrico [Iowa] 97 N. W. 1074. 97. An ordinance declaring that no hogs shall be permitted within the corporate lim- its between the first of April and the first of October is not so unreasonable that the courts will declare It void. Smith v. Col- lier, 118 Ga. 306, 45 S. E. 417. 98. Prosecution on an Indictment was dismissed where the statute provided for the beginning of suit on complaint by the town treasurer. Com. v. Rawson, 183 Mass. 491, 67 N. E. 605. 99. By-law forbidding the keeping of more than five swine, and their offspring of less than four months, within the town limits [Rev. Laws, c. 75, § 91], Com. T. Rawson, 183 Mass. 491, 67 N. B. 605. 1. A conviction for the keeping of horses which stamped throughout the night was set aside on the ground that the expression "other animal" used after "dog" must be 3 Cur. Law. ANNUITIES. 165 Interstate transportation; quarantine; inspection.' — A state may establish gen- eral quarantine lines, or segregate infected animals," and congress, under its power to regulate commerce, may make it a misdemeanor to drive or transport infected animals from one state to another.'' Animals affected with a dangerous and con- tagious disease may be destroyed by the public authorities^ without first granting the owner the privilege of a hearing," but in the absence of actual proof of the infection or an exposure thereto, the officers so acting are liable.^" The selection of a sheep dip by an inspector is a ministerial act and he is liable for damages due to his negli- gence.^^ In regulations as to infected cattle there must be no unjust discrimina- tion.^^ The authorization of stringent regulations in case of an epidemic does not warrant their enforcement because the disease prevails to a greater or less extent in all the states and territories.^* § 8. Maries and brands.^* — A person or company can have but one recorded brand under the statutes of Texas,^" and an unrecorded brand is not proof of own- ership but may be shown, as any other flesh mark, for the purpose of identifica- tion.^" That a lessor consented to the branding of sheep with the lessee's mark is not conclusive as to passing of title.^^ Under some statutes animals may be al- lowed to roam at large if properly marked.^' § 9. Cruelty to animals.^" — In New Jersey a justice has no jurisdiction of a prosecution for cruelty to animals."" ANNtriTIES. As to the form of instrument required, see footnote."^ An annuity is not pay- read as applying to animals of the same kind. People v. Edelstein, 86 N. T. S. 861. 2. Art. 913, Pen. Code, 1895. Newport v. State [Tex. Cr. App.] 77 S. W. 224. 3. Laws 1899, p. 175, prohibiting the use thereof. Bland v. People [Colo.] 76 P. 359. On a prosecution for using an unregistered docked horse in violation of L. 1899, p. 175, it was not necessary to prove that the horse was not registered TThere the docking took place after the passage of the act which forbids docking. Id. 4. Laws 1899, p. 175, prohibiting the use of unregistered docked horses, though It permits the use of registered docked horses. Bland v. People [Colo.] 76 P. 359. The fact that the act does not state that It is con- trary to public morals does not prevent the courts from sustaining It on that ground. Id. 5. See 1 Curr. L. 83. 6. But there can be no conviction for disregarding a quarantine line, established by ultra vires act of the commission. Trent v. State [Tex. Cr. App.] 75 S. "W. 857. 7. Such an act may be a misdemeanor though the animals are not moved from a district against which a quarantine has been declared. U. S. v. Slater, 123 F. 115. 8. Rev. St. 1898, §§ 1411, 1412, 1414. Lowe V. Conroy [Wis.] 97 N. W. 942. 9. The decision of the health authorities as to the existence of the disease Is not ilnal and due process of law grants the owner a right to be heard either before or after the destruction of the property. For Improper destruction the officer and not the munici- pality Is liable. Lowe v. Conroy [Wis.] 97 N. W. 942. 10. The pleadings should aver that the test made was efficacious. Pierce v. Dilling- ham. 203 III. 148, 67 N. B. 846. 11. Defendant Inspector held liable where the dip provided by him caused the death of a portion of plaintiff's sheep and rendered the remainder unfit for breeding purposes. Bair V. Struck [Mont.] 74 P. 69. 12. Restrictions on the importation of "dairy or breeding cattle (cows, bulls and calves)" discriminate In favor of steers and as such are Illegal. Pierce v. Dillingham, 203 111. 148, 67 N. B. 846. 13. Kurd's Rev. St. 1899, p. 155, c. 8. Pierce v. Dillingham, 203 111. 148, 67 N. E. 846. 14. See 1 Curr. L. 84. 15. If there be more than one recorded brand, they will be regarded as no more than flesh marks which may serve for pur- poses of identifloation but not as conclusive proof of ownership. Swan v. State [Tex. Cr. App.] 76 S. W. 464. 16. Sapp V. State [Tex. Cr. App.] 77 S. W. 456. 17. Turnbow V. Beekstead, 25 Utah, 468, 71 P. 1062. 18. The marking by the first letter of one's surname, where the statute requires the use of one's initials is not sufficient. Severance v. Blllott, 75 Vt. 421, 56 A. 85. 19. See 1 Curr. L. 84. 20. Though conferred upon him by Act 1880, P. L. p. 218, it was taken away by Act 1898, P. L. pp. 556, 564. New Jersey Soc. V. Compton [N. J. liaw] 58 A. 110. 21. note:. Form of Instrument required to create an annuity: An annuity for life not Issuing out of nor being a charge upon lands is a mere chose In action for the pay- ment of money and need not be made in the form of a deed nor under seal. Cahill v. Maryland L. Ins. Co., 90 Md. 333, 45 A. 180, 47 L. R. A. 614. 166 ANNUITIES. 3 Cur. Law. able in advance," nor apportionable in respect of time,"' the eases of infants and feme coverts, when necessary for maintenance, form exceptions to this rule."* Where a fixed sum is given "annually," the word "annually" denotes the amount to be paid and the time of payment."' An annuity "issuing and payable out of" certain real estate is a charge upon the land;"" under a power given to enforce such an annuity, the land may be sold to pay arrearages,"^ and it is not allow- able to deduct taxes proportionally from such an annuity."* In construing an annuity, the intention of the parties governs. "° 22. Words of an antenuptial agreement creating- an annuity "the same to take effect from and after tiie deatli of lior liusband" describe tlie time when the annuity begins to run. Mower v. Sanford [Conn.] 57 A. 119. 23. Antenuptial agreement, widow died in middle of year, no apportionment allowed. Mower v. Sanford [Conn.] 57 A. 119. NOTE, AppoTtionment of annuities i At common law, an annuity was not appor- tionable. Bayard's Estate, 7 Pa. Dist. R. 279; Nehls v. Sauer, 119 Iowa, 440, 93 N. W. 346; Clapp v. Astor, 2 Bdw. CK. [N. T.] 379; Nading v. Elliott, 137 Ind. 261. 36 N. E. 695; Wiggin V. Swett, 6 Mete. [Mass.] 194, 39 Am. Dec. 716; Dexter v. Phillips, 121 Mass. 17S, 23 Am. Rep. 261; Manning v. Randolph, 4 N. J. Law, 144; In re Lackawanna Iron & Coal Co., 37 N. J. Bq. 26; Irving v. Ranklne, 13 Hun [N. Y.] 147, affirmed in 79 N. T. 636; Kearney v. Cruikshank. 117 N. T. 95, 22 N. B. 580, reversing 46 Hun [N. T.] 219; Stewart v.. Swaim, 13 Phila. 185; Dubbs v. "Watson, 2 Pa. Dist. R. 115; Moore v. Dunn, 92 N. C. 63; Griswold v. Griswold, 4 Bradf. [N. T.] 216; Chase v. Darby, 110 Mich. 314, 68 N. "W. 159, 64 Am. St. Rep.- 347. Even though a day certain is fixed for payment. Ausman v. Montgomery, 5 U. C. C. P. 364; Pearly v. Smith, 3 Atk. 260; Wilson v. Har- man, 2 Ves. Sr. 672. Though It has been held that where a testator fixes a day for payment, the annuity is apportionable so as to determine the amount to be paid between the data of his death and the date of the first payment. Waring v. Purcell, 1 Hill, Eq. [S. C] 193. There are exceptions to this rule that annuities are not appor- tionable, equity allowing an apportionment where tlie annuity is for the maintenance of minor children or the widow or a divorced wife. Clapp V. Astor, 3 Edw. Ch. [N. T.] 379; Hay v. Palmer, 2 P. Wms. 501; Rey- nlsh V. Martin, 3 Atk. 330; Ex parte Rut- ledge, Harp. Bq. [S. C] 65, 14 Am. Dec. 696; Howell V. Hanforth, 2 W. Bl. 1016; Weigall V. Brome, 6 Sim. 99; Kearney v. Cruikshank, 117 N. T. 95, 22 n1 B. 580, reversing 46 Hun, 219. But an annuity given by a will to a married woman .for her sole and separate use, and not to be subject in any manner to the control of her husband is not appor- tionable. Ander*>n v. Dwyer, 1 Schoales & L. 301. ,The imperfect right which a child has upon a parent for support, especially where this has been recognized by marriage settlement, has induced the courts to trench upon the general rule by what is now an established exception. Fisher v. Fisher, 5 Clark [Pa.] 17S. It has also been held that an annuity to an eleemosynary establish- ment was apportionable. Attorney-General v. Smythies, 16 Beav. 385. There is another exception, viz.: That where an annuity Is created or accepted In lieu or bar of dower, the annuity will be apportioned; the reason being that, as the thing for the surrender of which the annuity is given and received would obtain and remain during the life of the person entitled to it, so should the annuity which takes the place of it. Gheen v. Os- born, 17 Serg. & R. [Pa.] 171; Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 160, 37 A. 701; In re Cushing's Will, 58 Vt. 393, S A. 186; Blight v. Blight, 51 Pa. 420; In re Lackawanna Iron & Coal Co., 37 N. J. Eq. 26 (the last four cases are cited with dis- approval in Mower v. Sanford [Conn.] 57 A. 119. 63 L. R. A. 625); Sweigart v. Frey, 8 Serg. & R. [Pa.] 299. There are some au- thorities seemingly contra to this rule. Tracy v. Strong, 2 Conn. 659; Mower v. San- ford [Conn.] 57 A. 119, 63 L. R. A. 625; Queen v. Lords Com'rs of the Treasury, 16 Q. B. 357. The fact that a valuable consid- eration is paid for the annuity does not alter the rule that it is not apportionable. Heizer v. Heizer, 71 Ind. 526, 36 Am. Rep. 202; Chase V. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Rep. 347. The allowance of interest on the amount due for arrearages of an annuity is discre- tionary, where the annuity if for a widow's maintenance and prompt payment is neces- sary to her comfortable support (Beeson v. Elliot, 1 Del. Ch. 368; Addams v. Heffernan, 9 Watts [Pa.] 529); or in lieu of dower (El- liot V. Beeson, 1 Har. [Del.] 106; Houston V. Jamison's Adm'r, 4 Har. [Del.] 330; Seit- zinger's Estate, 170 Pa. 531, 32 A. 1101). In some cases no interest has been allowed, see Isenliart v. Brown, 2 Bdw. Ch'. [N. Y.] 347; Philips v. Williams, 5 Grat. [Va.] 259.— From note to Henry v. Henderson, 81 Miss. 743, 33 So. 960, 63 L. R. A. 616. 24, 2S. Mower v. Sanford [Conn.] 67 A. 179. 36. Gee v. Gee, 204 111. 688, 68 N. B. 515. See 1 Curr. L. 84, n. 83. 27. Gee v. Gee, 204 111. 588, 68 N. E. 615. 28. Angle v. Angle [N. J. Bq.] 57 A. 425. The annuity being of a fixed sum and not the entire income of the land, the rule that a life tenant must keep down taxes was held not to apply. 2!). Annuity by son to father, and after his death to unmarried sister or sisters. Cohen v. Cohen, 141 Cal. 534, 75 P. 100. Where a testator bequeaths in trust a suffi- cient sum to which at 6 per cent, will pay the annuities given, the suit which at 6 per cent, will produce the amount needed Is the amount to be set aside. In re Sproule's Estate, 42 Misc. 448, 87 N. Y. S. 432; Mutual Life Ins. Co. v. Blair, 130 F. 971. 3 Cur. Law. APPEAL AND EEVIEW. 167 APPEAL AND EEVIEW. I 1. The Right In General (168). A. Constitution and Statutes (168). B. Waiver, Election, Transfer or Extin- guishment (168). C. Pendency of a Former Appeal (169). 5 2. The Remedy for Obtaining Review (170). A. Appeal or Error (170). B. Certificate or Reservation (171). C. Ordinary or Extraordinary and Spe- cial Modes of Review (171). 5 3. The Parties (172). A. Persons Entitled to Take Up the Cause (172). B. Necessary or Proper Parties to be Joined or Brought In (174). 5 4. Adjndlcationa Wlilch May he Re- viewed (177). A. Statutes and Legislation (177). B. Dependent on the General • Form or the Character of the Adjudica- tion (177). 1. Nature of Decision in General (177). "Merits," "Principles of the Cause," "Orders Preventing Judgment," etc. (177). 2. Rulings Relating to Pleadings and Process, and Before Trial (177). 3. Dismissals, Nonsuits, Orders to Strike Cause, etc. (178). 4. Orders Directing or Arresting Judgment, or on Motion for New- Trial, Are Not Reversible at Common Law (178). B. Final Judgment or Decree (178). 6. Orders and Adjudications In In- terlocutory or Provisional, Ex- traordinary, and Special Pro- ceedings, (180). 7. Orders After Judgment (182). 8. Decisions of Intermediate Courts (183). 9. Parts of Judgments (183). C. Dependent on Character or Value of Action, Subject-Matter or Con- troversy (183). 1. Nature of Action (183). 2. Questions of Law (184). 3. The Existence of a Constitutional Question (184). 4. Construction of Statutes and Pub- lic Regulations (185). B. A Jurisdictional Question (185). 6. A Federal Question (185). 7. Conflicting or Overruling Deci- sions (185). 8. Revenue and Tax Cases (185). 9. Cases Involving Freeholds and Titles (186). 10. Validity of a Franchise (187). 11. Probate and Administration (187.). 12. Bankruptcy Matters (187). 13. The Jurisdictional Amount (187). 14. Review of Intermediate Appeals (189). IB; Federal Review of State or Terri- torial Decisions (190). D. Dependent on the Parties (191). B. Questions Certifiable (191). § 5. Conrts of RevleTT and Their Juris- diction (192). 6. Bringing Up the Cause (193). A. General Nature and Mode of Prac- tice (193). B. Time for Instituting and Perfecting (193). "Fast" or Accelerated Pro- cedure (195). C. Aflldavlts and Oaths (196). D. Notice, Citation, Summons (196). E. Application for Leave to Appeal, Pe- tition in Error, Assignments, and Statements of Appeal (197). F. Allocatur, Order for Appeal, Certifi- cate (198). G. Bonds, Security, Payment of Costs; Necessity (198). H. Entry Below (200). § 7. Transfer of Jurisdiction, Saperce- deas, and Stay (200). § 8. Appearance, Bntry, and Docketing Above (204). § 0* Perpetuation of Proceedings and Ev- idence for the Reviewing Court (204), A. The Record Proper and "What It Must Show (204). 2. What Is Part of Record Proper; Ne- cessity of Bill of Exceptions or Its Equivalent (206). C. The Bill of Exceptions (208). 1. Form and Requisites (208). 2. Settlement, Signing, and Filing (210). D. The Settled Case or Statement of Facts (213). E. Abstracts (216). § 10. Transmission of Proceedings and E^vidence to Reviewing Court (217). A. Form and Contents of Transcript or Return (217). B. Certification and Authentication (218). C. Transmission, Filing, and Printing (218). D. Amendment and Corrections. In the Reviewing Court (219). E. Conclusiveness of Record, and Effect of Conflict Therein (219). § 11. Practice and Proceedings in Appel- late Court Before Hearing (220), A. Joint and Several Appeals; Consoli- dation; Severance (220). B. Original and Cross Proceedings (220). C. Amendments of Parties (221). D. Calendars; Trial Dockets; Terms (221). E. Forming Issues; Pleading, Assigning, and Specifying Error (121). 1. In General (221). 2. Proper Parties to Assign Errors (222). 3. Cross Errors (223). 4. Specification and Averments (223). Joining in Assignments (226). Defects or Errors In Pleadings (226). Rulings on Evidence (227). Error in Directing a Verdict (228). Motion for New Trial (228). 5. Demurrers, Pleas, and Replica- tions (229). P. Briefs and Arguments (229). ' G. Grounds for Dismissing, Quashing, or Striking Out Appeal (232). H. Raising and Waiver of Defects in Ap- pellate Procedure; Motions and Pleas (238). § 12. Hearing (240). § 13. Review (240). A. Mode of Review; Review Proper or Trial De Novo (240). B. Scope in General (241). 168 APPEAL AND EEVIEW § lA. 3 Cur. Law. C. Restriction to Rulings Below (244). D. Restriction by Character of Order or Judgment; Matters Brought Up with Final Judgment (247). B. Restriction by Contents of Record (250). Jurisdiction and Venue (254). Process and Pleading (264). Motions and Affidavits (255). Pro- ceedings at Trial In General (256). Admission or Exclusion of Evi- dence (256). Sufficiency of Evi- dence (258). Instructions (260). Verdict or Findings, Judgment and Execution (261). F. Rulings Peculiar to Province of Trial Court (264). 1. Discretionary Rulings in General; Interlocutory and Provisional Orders (264). 2. Questions of Fact (271). G. Rulings and Decisions on Intermedi- ate Appeals (282). H. Effect of Decision on Former Review in Same Court (284). § 14. Provisional, Ancillary, and Interloc- utory Relief (286). § 15. Decisions and Determination (286). A. Affirmance or Reversal (286). B. Transfers and Removals, and Certifi- cations or Reservations (291). C. Remand or Final Determination (291). D. Findings, Conclusions or Opinions on Which Decision Is Predicated (294). B. Modifying or Relieving From Appel- late Decree (295). F. Mandate and Retrial (295). § 16. Rehearing and Relief Thereon (298). § 17. Liability on Bonds and the Like (299). § 1. The right in general. A. Constitution and statutes.^" — ^Appeal is a strict statutory right,'^ which does not exist unless expressly provided for'^ and may, after being given, be withdrawn by the statute, unless in so doing some pro- vision of the organic law of the state is violated."' The method prescribed by the legislature is exclusive and mandatory,"* and neither court nor judge may modify it except as authorized by the statute."" The right to an appeal is not a "vested" right, and therefore a statute cutting off the right will, if not otherwise provided, retroact on pending cases,"' and the legislature has power to give to an appeal by one party the efEect of vacating the judgment as to all parties, and transferring the cause for trial de novo."' The right of appeal is favored by the courts."" (§ 1) B. Waiver, election, transfer or extinguishment.'" — The right may be waived,*" but taking a second appeal in a case does not of itself constitute an aban- donment of the first one." 30. See 1 Curr. L. 86. 31. Coal Belt Blec. R. Co. v. Kays, 207 111. 632, 69 N. E. 920. Appeal from probate to supreme judicial court. Bartlett v. Slater, 183 Mass. 152, 66 N. E. 631; Appeal of Ab- bott, 97 Me. 278, 54 A. 755. Jurisdiction of appellate term over appeals from orders. Cohen v. Ridgewood Shirt Co., 84 N. Y. S. 188; Leavltt v. Katzoff, 86 N. T. S. 495. See 1 Curr. L. 86, n. 6. 32. State V. Bloomfleld State Bank [Neb.] 95 N. W. 790. Order allowing attorney's fees in condemnation proceedings. Detroit & T. Shore Line R. Co. v. Hall [Mich.] 94 N. W. 1066. The court has no power to allow an appeal merely because otherwise the appel- lant Is without remedy. Maxon v. Gates, 118 Wis. 238, 95 N. W. 92; Fleshman v. Mc- Whorter [W. Va.] 46 S. E. 116. A statute providing that the decision of a judge on certain questions shall be "final" merely means that It shall be considered a final order in a special proceeding and does not deprive the defeated party of his right of appeal granted elsewhere in the statutes [Consolidated School Laws; Laws 1894, pp. 1280-1282, c. 556, tit. 15, art. 1, §1 4-7; Code Civ. Proo. § 1357]. Anderson v. School Dlst. No. 16, 89 App. Div. 231, 85 N. T. S. 943. Where an order of a court assuming to act under the special Jurisdiction of a statute goes beyoCTd the scope of the court's limited authority, an appeal lies, so far as the order Is unauthorized, though the statute makes no provision for an appeal. Appropriation of water lots for oyster beds. Travers v. Dean [Md.] 56 A. 388. 33. Evansville & T. H. R. Co. V. Terre Haute, 161 Ind. 26, S7 N. E. 686. See 1 Curr. L. 86, n. 12. 34. Feathermann v. Granite County, 28 Mont. 462, 72 P. 972; Cornell v. Matthews, 28 Mont. 457, 72 P. 975; Bartlett v. Slater, 183 Mass. 152, 66 N. B. 631; Appeal of Abbott, 97 Me. 278, 64 A. 756; Hilts v. Hilts, 43 Or. 162, 72 P. 697. 35. Home Sav. & T. Co. v. District Court of Polk County. 121 Iowa, 1, 95 N. W. 522. See 1 Curr. L. 86, n. 9. 36. Evansville & T. H. R. Co v. Terre Haute, 161 Ind. 26, 67 N. E. 686; Cooley v. Pennsylvania R. Co., 40 Misc. 239, 81 N. T. S. 692. See 1 Curr. L. 86, n. 10. ■37. Matz V. Arick [Conn.] 56 A. 630. 38. Drexel v. Reed [Neb.] 95 N. W. 873. 39. See 1 Curr. L. 86. 40. Stipulation for filing amended com- plaint on payment of costs waives right to appeal from order consolidating actions. Rockefeller v. St. Regis Paper Co., 85 App. Div. 261, 83 N. T. S. 138. Defendant present in court and not objecting to discontinuance without costs. Krakower v. Tauber, 85 N. T. S. 339. The right to have an Intermediate ruling reviewed on appeal from final judgment is 3 Cur. Law. APPEAL AND EEVIEW § IB. 169 Obedience to an order waives the right to a review;*^ but the intention must be clear,*^ as where the judgment is voluntarily paid/* and payment accepted;*" but obedience to a writ of mandamus does not waive the right to appeal/" and payment by a garnishee without protest from the principal defendant will not waive the principal's right to appeal.*' Eecognition of the validity of a judgment estops the party from asserting its invalidity,** and acceptance of benefits thereunder has a like effect ;*° but ac- ceptance of that admitted to be due does not waive an appeal involving only the right to a further recovery."" Enforcement of a judgment affirms it,"^ but a stipulation that the property in controversy shall be sold and the proceeds deposited with the clerk to await determination of the cause is not effectual as a release of errors or waiver of the right of appeal/^ and enforcement of a foreclosure judgment does not waive the right to appeal."' Agreement to the terms of a judgment waives an appeal,"* and a judgment entered on stipulation of the parties is not appealable."" (§1) G. Pendency of a former appeal. ^'^ — An appellant may voluntarily dis- miss and take a second appeal within the time limited,"'' and in "Washington the taking of a second appeal within the time allowed is permissible, though the first is not dismissed, the dismissal following by operation of law."' Where the first appeal taken is allowed to lapse for failure to file bond within the statutory period, a second appeal may be taken within the statutory period and properly perfected."" Where a certificate of dissent is pending in the supreme court of Texas, a not waived by failure to appeal from such ruling, though it was separately appea.lable. Des Moines Sav. Bank v. Morgan Jewelry Co. riowa] 99 N. W. 121; Jones v. Chicago & N. W. E Co., 36 Iowa, 68; Parker v. Des Moines U Ass'n, 108 Iowa, 117, 78 N. W. 826. The filing of a motion, which is overruled, to vacate a decree and dismiss the action in which It is rendered, because of the findings of fact in the same action, does not waive an appeal from the decree. Anderson v. Hendrickson [Neb.] 95 N. W. 844. See 1 Curr. L. 86, n. 14. 41. Drexel v. Reed [Neb.] 95 N. "W. 873. 42. Answering, after overruling of de- murrer and motion to dismiss bill in obedi- ence to decree ordering answer within 20 days, does not waive the right to appeal. Howison V. Balrd, 138 Ala. 129, 35 So. 62. See 1 Curr. L. 86, n. 24. 43. Signor v. Clark [N. D.] 99 N. W. 68. 44. Payment under coercion does not waive. Signor v. Clark [N. D.] 99 N. W. 68. County on paying costs cannot keep case alive by stipulating that If the Judgment should be reversed they would be repaid. Waters v. Garvin, 67 Kan. 855, 73 P. 902. 45. Talbot V. Mason [C. C. A.] 125 P. 101. 46. State V. Young, 66 S. C. 115, 44 S. E. 586. 47. Bastlund V. Amstrong, 117 Wis. 394, 94 N. W. 301. 48. Fidelity & Deposit Co. v. Kepley, 66 Kan. 343, 71 P. 818. 49. Entry by plaintiff in ejectment on that portion of the land awarded him by the judgment. Raborn v. Woods [Ind. App.] 70 N. B. 399. Creditor of an estate receiving his claim In full from proceeds of sale and asking confirmation of It cannot appeal from decree establishing title In decedent and directing sale. Parsons v. Rutherford [Miss.] 36 So. 187. A landowner in condemnation proceedings who has drawn from court, the sum awarded him and deposited there by the condemnor cannot appeal, though the statute provides that an appeal In such case shall not be suspensive. Parks v. Dallas Terminal R. & Union Depot Co. [Tex. Civ. App.] 78 S. W. 533. See 1 Curr. L,. 86, n. 35. 60. Hodges v. Smith [Tex. Civ. App.] 79 S. W. 328. 51. Unless It Is clear that a new trial ought not to result in diminishing the recov- ery. Whetstone v. McQueen, 137 Ala. 301, 34 So. 229. See 1 Curr. L. 87, n. 29. 53. Ryan v. Donley [Neb.] 96 N. W. 49; id., 96 N. W. 234. 53. First Nat. Bank v. Wakefield, 138 Cal. 561, 72 P. 151. 64. Bwlng V. Ewing, 161 Ind. 484, 69 N. B. 156. Where, on direction to the plalntlfl to prepare findings and judgment, defend- ant reserved exceptions to each of such find- ings and judgment his "O. K." on findings ' and judgment subsequently served on him did not show consent thereto. Humphries v. Sorenson, 33 Wash. 563, 74 P. 690. See 1 Curr. L. 87, n. 40. 65. Corby v. Abbott, 28 Mont. 523, 73 P. 120. As where a stipulation waives all ob- jections to the evidence and authorizes the justice to enter any judgment he sees fit. Lipps V. Markowitz, 84 N. T. S. 172. 56. See 1 Curr. L. 88. 57. Groendyke v. Musgrave [Neb.] 99 N. W. 144. 58. King V. Branscheid, 32 Wash. 634, 73 P. 668; Noble v. Whitten [Wash.] 76 P. 96. 59. King V. Branscheid, 32 Wash. 634, 73 P. 668; Succession of Weber, 110 La. 674, 34 So. 731. 170 APPEAL AND EEVIEW § IC. 3 Cur. Law. writ of error will not be allowed, though the party asking it filed the certificate and asks to have it disregarded in case the writ is allowed.'" A pro-forma affirmance on appeal bars a subsequent writ of error,*^ and where a defendant appellee, whose interest was identical with plaintiff's, assigned no cross errors, but fully argued a point not assigned by plaintiff appellant, he could not, on an adverse decision, bring error to review such question.''^ An appeal from the district to the superior court in Connecticut, for trial de novo, vacates the Judgment of the district court, and a concurrent appeal to the court of errors at the suit of the other party will not lie.°' § 2. The remedy for oMaining review. A. Appeal or error.^'^ — The supreme court of the United States has no jurisdiction on error in criminal cases.®' Fed- eral courts review decrees by appeal, judgments by error,"" and this is the general rule;"' but errors of law will be reviewed only on petition in error in Nebraska, whether the cause be legal or equitable, and appeal will not reach such matters."' Error and not appeal is the remedy in Colorado of one who has recovered judg- ment, but is dissatisfied with the relief granted,"' but in Idaho, any party aggrieved may appeal.'" Where error is dismissed for failure to serve certain parties, an application to have the case considered as on appeal may be granted on terms.'^ In Louisiana, where the state for reasons of public policy desires to attack a judgment on a note entered on waiver of citation and confession, its remedy is by action of nullity and injunction and not by suspensive appeal.''' Error will not review a judgment not final." The remedy for reviewing probate decrees is discussed in the note.'* 60. McCord v. Nabours [Tex.] 78 S. W. 223. Gl. Schnabel v. Thomas [Mo. App.] 7.3 S. W. 917. 62. Suburban E. Co. v. Chicago, 204 111. 306, 68 N. B. 422. 63. Gen. St. 1902, §§ 539, 788. Lllley, Swift & Co. V. New York, etc., R. Co. [Conn.] 57 A. 109. 64. See 1 Curr. L. 88. 65. Contempt. O'Neal v. U. S., 190 U. S. 36, 23 S. Ct. 776. 06. Petition to set aside order for sale of property of insolvent bank by receiver under national banking act is equitable. Files v. Brown [C. C. A.] 124 F. 133. Mandamus to compel levy of tax is legal, not equitable, and appeal does not lie. Carter County v. Schmalstig [C. C. A]. 127 F. 126. Proceed- ing to condemn land for public purpose is legal. Village of Mackinaw City v. U. S. [C. C. A.] 120 P. 252. Proceeding against municipal officers for violating an injunction restraining them from taxing assets of a bank is legal. Board of Councllmen of City of Frankfort v. Deposit Bank of Frankfort [C. C. A.] 127 F. 812. See 1 Curr. L,. 88, n. 56. 67. State v. Bloomfield State Bank [Neb.] 95 N. W. 790; Trabue v. Williams [Fla.] 35 So. 872. Appeal will not lie from the de- cision of a single justice in Massachusetts dismissing a petition for certiorari. Inhab- itants of Brockton v. Plymouth County Com'rs, 183 Mass. 42, 66 N. B. 427. Orders and judgments in contempt proceedings are reviewable by error only. Thompson v. Nelson [Neb.] 96 N. W. 194. See 1 Curr. L. 88. n. 57. 68. Danforet v. Fowler [Neb.] 94 N. W. 637; Pettibone v. Yeiser [Neb.] 96 N. W. 193; John Stewart & Co. v. Allen [Neb.] 96 N. W. 528. Rulings of the trial court on the ad- missibility of evidence can only be reviewed in Nebraska, by petition in error, not on appeal. Guthrie v. Guthrie [Neb.] 93 N. W. 1131; Smith v. Oster [Neb.] 95 N. "W. 335. See 1 Curr. L. 88, n. 52. 69. Sess. Laws 1899, p. 172, § 1. Defend- ant claiming lien prior to mortgage fore- clo.'^ed, awarded lien subsequent. Lockhaven Trust & Safe Deposit Co. v. U. S. Mortg. & T. Co. rColo. App.] 73 P. 409. See 1 Curr.' L. 88, n. 63, 64. 70. Rev. St. 1887, § 4802. Phillips v. Sal- mon River Min. & D. Co. [Idaho] 72 P. 886. 71. Jones v. Danforth [Neb.] 98 N. W. 668. 72. Kiernan v. Jackson, 111 La. 645, 35 So. 798. 73. Judgment for costs for defendant after verdict in his favor. Hall v. Patterson [Fla.] 33 So. 982. See 1 Curr. D. 89, n. 72. 74. A probate decree In Massachusetts is reviewable on probate appeal though the pe- tition was equitable for the construction of a will. Bartlett v. Slater, 183 Mass. 152, 66 N. E. 631. Appeal and not error is the rem- edy to review a judgment of the circuit court of Florida on appeal from the county court, in a probate matter, the proceedings being equitable. Finch v. Eonar [Fla.) 35 So. 189. Proceedings of the probate court are reviewable by error as well as by ap- peal. Under guardian act. McCallum v. Chicago Title & T. Co., 203 111. 142, 67 N. E. 823. Allowance of claim against decedent's estate (Herman v. Beck [Neb.] 94 N. W. 512), but judgments of the district court rendered on appeal from the probate court are review- able in Nebraska only by petition in error (Boales v. Ferguson [Neb.] 96 N. W. 337). Appeal will not lie to review the Judgment of the county court on appeal from an in- 3 Cur. Law. APPEAL AND KEVIEW § 2C. 171 In New York, the report of a referee appointed under an order entered on a remittitur from the court of appeals, to assess damages to which that court by its final judgment held the plaintiff was entitled, can be reviewed only in com- pliance with the rule and not on a case and exceptions;" but the report of a ref- eree appointed in proceedings for the dissolution of a corporation, not only to take proof and report with his opinion as to claims for costs, expenses and counsel fees, but to admit and reject creditor's claims, can only be reviewed on excep- tions.'" (§ 2) B. Certificate or reservation.'''' — The statute providing for certifying tax eases to the supreme court for review, in Minnesota, has been repealed, and such eases may now be reviewed by appeal.'' (§ 2) C. Ordinary or extraordinary and special modes of review.''" — Statu- tory remedies, as appeal or error, must, if adequate or applicable, be resorted to, and not writ of review,'" certiorari,'^ prohibition,'^ mandamus,'* injunction" or terlooutory probate order. In re James' Es- tate [Neb.] 97 N. W. 22. 75. Gen. Practice rule 30. Bates v. Hol- brook, 41 Misc. 129, 83 N. Y. S. 929. 76. People V. American L. & T. Co., 87 App. Div. 139, 84 N. T. S. 114. 77. See 1 Curr. L. 89. 78. Gen. St. 1894, § 1598; Laws 1902, p. 1, c. 2. State v. Lookhart, 89 Minn. 121, 94 N. W. 168; State v. Griffith [Minn.] 98 N. W. 1023. 79. See 1 Curr. L.. 89. 80. Petition to re-probate will will not lie; appeal being the remedy. Murray v. Lynch, 64 N. J. Eq. 290, 51 A. 713, 54 A. 1124. Order vacating judgment not so reviewable In ab- sence of special circumstances rendering ap- peal ineffective. State v. Superior Court of King County [Wash.] 75 P. 809. A writ of review will be granted to review an order of the court below fixing the bond on appeal from .an order quashing an execution at a mere fraction of the judgment. State v. Su- perior Court of Pierce County, 32 Wash. 693, 73 P. 779. The court, however, will not con- sider whether the judgment on which the execution Issued was void, as that question Is involved in the appeal from the order quashing the execution. Id. See 1 Curr. L. 89, n. 81. 81. State V. Thompson, 111 La. 315, 35 So. 582. Certiorari will not lie from order dis- missing contest over proved will [Code Civ. Proo. §§ 963, 1068]. Mahoney V. Superior Court, 140 Cal. 513, 74 P. 13. Appeal, not certiorari, is the proper remedy for review of a probate order regarding the sale of land [Gen. St. 1894, § 4665]. In re Wilson's Estate [Minn.] 97 N. W. 647. Certiorari does not bring up a cause for review on its merits and when used to test the validity of a judicial act raises only the question of juris- diction. Longstaft V. State [Wis.] 97 N. W. 900. Certiorari cannot be used where right to appeal has been lost by laches or an ap- peal has been decided adversely to appel- lant. Valentine v. Police Court, 141 Cal. 615, 75 P. 336. Certiorari not proper to review intermediate order reviewable with final judgment; substitution of claimant in claim and delivery. State v. District Court, 28 Mont. 445, 72 P. 867. Code Civ. Proe. § 2214 precludes certiorari in condemnation of right of way for ditch. State v. District Court of ■Pifth ".Judicial District [Mont.] 74 P. 200. An order restraining party from entering or conducting business In a building which the court finds to be In possession of a re- ceiver, such possession being disputed by respondent, is appealable. State v. Superior Court of King County, 30 Wash. 177, 70 P. 256. Certiorari and prohibition are not prop- er to review action of district court in fol- lowing mandate of court of appeals. State V. Poster, 111 La. 241, 35 So. 536. Owners of land on and over which a road Is estab- lished are entitled to appeal from the final order of the commissioners laying out the road, and no reason being shown why ap- peal was not taken and the commissioners having jurisdiction, certiorari will not lie. Hegenbaumer v. Heckenkamp, 202 111. 621, 67 N. E. 389. The appeal provided by the New Jersey act to regulate elections is a substi- tute for the writ of certiorari provided by the same act, and the supreme corut has Juris- diction of such, an appeal though the dis- trict court had not [P. L. 1896, p. 310, et seq. §§ 159, 175]. Darling v. Murphy [N. J. Law] 57 A. 263. 82. In re Gates, 117 Wis. 445, 94 N. W. 292; State v. Foster, 111 La. 241, 35 So. 53i3; Sanford v. District Court of Pima County [Ariz.] 71 P. 906; State v. Thompson, 111 La. 315, 35 So. 582; Knight v. Zahnhiser, 53 W. Va. 370, 44 S. B. 778. Cannot be used as writ of review by restraining Issue of bench war- rant after conviction of crime. Valentine v. Police Court, 141 Cal. 615. 75 P. 336. Prohi- bition will not lie to restrain a court from proceeding with a case after overruling a motion to dismiss for want of jurisdiction. State v. Superior Court of Kitsap County, 31 Wash. 410, 71 P. 1100. Prohibition will lie to prevent punishment for contempt where no remedy by appeal exists. State v. Su- perior Court of Spokane County, 31 Wash. 481, 71 P. 1095. Judgment on findings not restrained for mere error reviewable on ap- peal. State V. Superior Court of King Coun- ty, 32 Wash. 498, 73 P. 479. Prohibition lies to prevent the exercise by an Inferior court of a Jurisdiction with which it has not been vested by law; not to correct errors In prac- tice or proceedings. State v. Ausherman [Wye] 72 P. 200. See 1 Curr. L. 89, n. 83. 83. Steel v. Clinton Circuit Judge [Mich ] 95 N. W. 993. Rev. Pol. Code, § 850, does not provide a remedy by appeal from a refusnl of the county board to consider a petition. 172 APPEAL AND REVIEW § 20. 3 Cur. Law. habeas corpus/' though the latter is proper where the court below totally lacks jurisdiction.'' Certiorari is the proper remedy where the ruling of a justice complained of involves only a question of law/' and lies to review a proceeding adjudging a party guilty of a criminal contempt/" and to review a decree of the circuit court of ap- peals revising proceedings of an inferior court of bankruptcy, ander section 24b of the bankrutcy law/" but since the circuit court of appeals has power to issue the' writ of certiorari only in aid of its appellate jurisdiction, it cannot by that writ review an unappealable order.°^ Mandamus is proper to require the commissioner of patents to compel a primary examiner to forward an appeal from his decision to the board /^ but cannot be used to perform the office of an appeal or writ of error, and does not lie to review a final judgment or decree sustaining a plea to the jurisdiction, even where no appeal or writ of error is given by law."' A motion to stay proceedings will not be granted where its only effect would be to allow a party to again present a claim that has been denied, and he has an adequate remedy for any injustice that has been done him by appeal,®* and execution will not be stayed as to a particular class of property after expiration of the term at which the judgment was rendered, where the limitation of the judg- ment was considered at the trial, and decided adversely to defendant."^ In Wisconsin a motion made in the ordinary way is the proper proceeding to bring up to circuit court for review an order of a court commissioner discharging a prisoner on habeas corpus."' Orders to sell property claimed as exempt,"' and orders distributing the proceeds of sales of real estate by trustees,"' are reviewable only by petition to revise under section 24b of the bankruptcy act; but an order dismissing an application for a discharge is reviewable by appeal under section 25a and-not by petition."" § 3. The parties. A. Persons entitled to take up the cause} — ^IvTo person can obtain a review unless he has a legal interest which is affected,^ and in Vir- State V. Menzie [S. D.] 97 N. W. 745. Fail- ure of trial court to follow mandate of ap- peal court Is to be corrected by appeal or error. People v. District Court of Arapahoe County [Colo.] 75 P. 390. 85. Stone v. Little Yellow Drainage Dlst., 118 Wis. 388, 95 N. W. 405. Judgment against garnishee if erroneous can be corrected on appeal. Bldemlller v. Elder, 32 "Wash. 605, 73 P. 687. 86. In re Reiner, 122 F. 109; Bx parte Haggerty, 124 F. 441; Ex parte O'Neal, 125 F. 967; In re Strauss [G. C. A.] 126 F. 327. Whether Information is sufBcient cannot be reviewed on habeas corpus. Ex parte Staoey [Or.] 75 P. 1060. ST. Ex parte Stone [Tex. Or. App.] 72 S. W 1000. Appeal or error will not lie to review an order imposing punishment for violating an injunction, habeas corpus being the remedy if the court acted without juris- diction. Remedial orders affecting property rights are appealable. Florida Cent. & P. R Co V. Williams [Fla.] 33 So. 991. 88. Caudell v. Southern R. Co., 119 Ga. 21 45 S. E. 712. 89. In re Teitelbaum, 84 App. Dlv. 351, 82 N T. S. 887. 90. Holden v. Stratton, 191 U. S. 115, 24 S Ct 45 91. U. S. V. Circuit Court [C. C. A.] 126 F. 169, 92. U. S. V. Allen, 192 U. S. 543, 24 S. Ct. 416; In re Frasch, 192 TJ. S. 566, 24 S. Ct. 424. No appeal lies to the court of appeals of the District of Columbia from an order of the commissioner of patents denying an appeal from the primary examiner to the board of examiners, mandamus to the com- missioner being tlie proper remedy. Ex parte Frasch, 192 IT. S. 666, 24 S. Ct. 424. 93. Mandamus to court of appeals to re- instate appeal dismissed for want of Juris- diction, denied. In re Key, 189 U. S. 84, 23 > S. Ct. 624, 47 Law. Ed. 720. 94. Farmer's L. & T. Co. v. Hoffman House, 86 App. Div. 617, 83 N. Y. S. 364. 95. Foreign attachment on foreign note, where limitation of liability to a certain class of property only is claimed, but a gen- eral Judgment Is rendered, the only remedy is by appeal. Lewis v. Linton, 204 Pa. 234, 53 A. 999. 96. LongstafC v. State [Wis.] 97 N. W. 900. 97. Ingram v. Wilson [C. C. A.] 125 F. 913. 98. In re Groetzlnger & Sons [C. C. A.] 127 F. 124. 99. In re Kuffler [C. C. A.] 127 F. 125. 1. See 1 Curr. L. 91. 2. Appeal of Abbott, 97 Me. 278, 64 A. 755. Parties and privies only. Large & 3 Cur. Law. APPEAL AND EEVIEW 8 3A. 173 ginia, none but parties can appeal in chancery eases.' The right of one party to appeal does not universally confer it on his adversary/ it being necessary that the appellant have an appealable interest in the subject-matter of the suit," and that that interest be affected adversely by the judgment complained of.° A de- fendant over whom the court acquired no jurisdiction is not aggrieved by an or- der granting an injunction against him/ and a party generally cannot appeal from a judgment or order which affects others only and not himself.* One who has been denied leave to intervene cannot appeal the main ease,' but a party entitled to intervene and appeal need not apply for intervention be- fore appealing/" and an intervener may appeal from a decree awarding certain costs against himself if the decree is otherwise appealable.^^ Parties entitled to an amendment substituting them as plaintiffs in a pending case are entitled to be heard on appeal from the judgment dismissing the complaint therein, after overruling their motion.^^ A motion to intervene cannot be granted after appeal.^' The surety in an execution can appeal from a judgment discharging property levied on from the lien of the execution.^* Any person interested and aggrieved may appeal from a proceeding not inter partes, especially in probate and administration orders,^^ but executors and adminis- trators can appeal from probate decrees only when agrieved.^* Devisees,^^ and ex- Amsden Co. v. Samuel Nott & Son tNeb.] 95 N. W. 484. See 1 Curr. L. 91, n. 8. 3. Code 1887, § 3454. Southern R. Co. V. Glenn's Adm'r [Va.] 46 S. B. 776. 4. State V. Sanders, 111 La. 188, 35 So. 509. 5. Where a litigant has no Interest In the subject-matter of the suit itself, his liability for costs will not give him the right to appeal. State v. Sanders, 111 La. 188, 35 So. 509. Husband having by ante- nuptial agreement no interest in wife's es- tate cannot appeal from allowance of claims against it. 'Williams v. Cleaveland [Conn.] 56 A. 850. Father cannot appeal from order affecting estate to which son Is heir. Id. A mortgagee of the land taken may appeal in condemnation proceedings. Omaha Bridge & Terminal R. Co. v. Reed [Neb.] 96 N. W. 276. The principal defendant may appeal from a judgment against a garnishee. Bast- lund V. Armstrong, 117 Wis. 394, 94 N. W. 301. 6. Defendants as to whom the case was dismissed cannot review Judgment for plain- tiff against other defendants. Cornish & Co. V. West, 89 Minn. 360, 94 N. W. 1082. A party is not "aggrieved" by an order denying him permission to amend an appeal bond not needing amendment. Ellis v. Bar- ron County [Wis.] 98 N. W. 232. A creditor of an insolvent corporation in the hands of a receiver may appeal, without permis- sion, from a decree retaining certain prop- erty within the lien of a mortgage and with- drawing it from the general assets of the company. Cook v. Anderson Food Co. [N. J. Eg.] 55 A. 1042. , 7. MacGinniss v. Boston & M. Consol. Copper. & Silver Min. Co. [Mont.] 75 P. 89. 8. Defendant has no standing to appeal from an order denying the motion of one not a party to the action. Spear v. Murphy, 85 N. Y. S. 813. Plaintiff in an action to fore- close a land contract has no standing to appeal from an order subrogating an execu- tion purchaser to plaintiff's rights on paying the amount of his judgment. Larson v. Olse- fos, 118 Wis. 368, 95 N. W. 399. The prose- cutor of a criminal charge has no standing to appeal from an order remitting the for- feiture of bail entered to secure the appear- ance of the prisoner. Com. v. Real Estate Title Ins. & T. Co., 22 Pa. Super. Ct. 235. An insolvent has no standing to appeal from the discharge of an order to show cause why a receiver for his property should not be appointed. In re Good's Insolvency, 21 Pa. Super. Ct. 625. 9. State V. Bloomfleld State Bank [Neb.] 95 N. W. 791. See 1 Curr. L. 91, n. 9. 10. In re Sullivan, 84 App. Div. 51, 82 N. T. S. 32. 11. In re Michigan Cent. R. Co. [C. C. A.] 124 F. 727. 12. Pugmire v. Diamond Coal & Coke Co., 26 Utah, 115, 72 P. 385. 13. Hight v. Batley, 32 Wash. 165, 72 P. 1034. 14. Hanna v. Charleston Nat. Bank [W. Va.] 46 S. B. 920. 15. Succession of Bothick, 110 La. 109, 34 So. 163. Son and sole heir of deceased person may appeal from order allowing claims against estate. Williams v. Cleaveland [Conn.] 56 A. 850. An executor has such In- terest as to entitle him to appeal as to the probating of the will [Probate Code, § 345, "Any party aggrieved may appeal," etc.]. Halde v. Schultz [S. D.] 97 N. W. 369. An administrator may appeal as to any order In the settlement of the estate [Rev. St. 1898, § 4031]. McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489. City to whom tax is due is interested in an estate. In re Sullivan, 84 App. Div. 51, 82 N. T. S. 32. See 1 Curr. L. 91, n. 13. 16. An executor is not interested in the distribution of the estate, it making no differ- ence in the amount of his commissions. Lamar v. Lamar, 118 Ga. 684, 45 S. B. 498. An executor pending appeal from annul- ment of the will has a substantial right to appeal from an order of distribution. State 174 APPEAL AND EBVIEW § 3A. 3 Cur. Law. eeutors are aggrieved by an order setting aside property as homestead for use of widow pending administration.^* A taxpayer or citizen who shows no special injury cannot appeal in highway proceedings.^' Election officers are concluded by the decision, on mandamus, to compel them to reconvene and count a rejected ballot, and cannot appeal there- from.-" The city is entitled to appeal in Illinois in special assessment cases, though the local improvement act does not so provide." If in default a party cannot ap- . peal,"^ unless expressly authorized by statute,"" though if fundamentally wrong a judgment may be reversed despite defendant's default,"* and in New York pro- vision is expressly made for appeals by defendants on the ground of nonservice of process.-'' Nonresident defendants who appeared solely for the purpose of at- tacking the jurisdiction have no standing to appeal from the judgment,"' and where the defendant filed no pleading below except a motion to strike the petition from the files, and it stated a cause of action, there is no issue for review."' Error will lie from an order allowing a claim against a decedent's estate, though no an- swer or objections were filed against the claim, and the order was made in the absence of the administrator."' One who appears, files an answer and participates in the trial by cross-examining witnesses, may appeal, though he introduced no evidence."' On appeal by plaintiff from a judgment sustaining a demurrer for want of facts filed by one defendant, a co-defendant constructively served, and not previously appearing, can prosecute a cross-appeal from the default judgment against him."° A third person who by reason of laches is not entitled to have a judgment vacated may be admitted to prosecute a pending appeal therefrom.'^ A party in contempt will not be heard.'" A foreign corporation defendant may maintain appeal or error, though it has not complied with the statute necessary to entitle it to maintain suits in the courts of a state."' (§ 3) B. Necessary or proper parties to be joined or brought m."* — All par- V. Superior Court of King County, 28 Wash. 677, 69 P. 375. Where all the benenoiaries under a will and the executors have submit- ted a question in controversy to the appel- late division, the executors alone have no such direct Interest as will entitle them to appeal to the court ot appeals. Isham v. New York Ass'n for Improving Condition of Poor, 177 N. T. 218, 69 N. B. 367. An administrator can appeal from an order of the county court dismissing his petition for license to sell real estate to pay a claim he has allowed. In re Smith's Estate. 43 Or. 595, 75 P. 133. 17. The order has the effect to vest title In heirs subject to the order, thus removing it from the operation of the will. In re Levy's Estate, 141 Cal. 646, 75 P. 301. 18. In re Levy's Estate, 141 Cal. 646, 75 P. 301. 19. Bennett v. Tuftonborough [N. H.] B4 A. 700. 30. People v. Unger, 85 App. Div. 251, 83 N. T. S. 84. 21. Kurd's Rev. St. 1901, p. 399, S§ 95, 96, and p. 527, § 213. City of Chicago v. Hulburt, 205 111. 372, 68 N. B. 786; City of Chicago v. Singer, 202 111. 75, 66 N. E. 874. 22. Forgotson v. Becker, 39 Misc. 813, 81 NTS. 321; McLean v. Territory [Ariz.] 71 P 926. See 1 Curr. L. 92, n. 34. 23. Laws 1902, p. 1486, c. 580. Long Branch Pier Co. v. Crossley, 40 Misc. 249, 81 N. T. S. 905. Code Civ. Proc. § 3064. Fischer v. Brooklyn Heights R. Co., 84 N. T. S. 254. 24. It had been opened and then rein- stated after further default. Wolfe v. Mur- ray, 96 Md. 727, 54 A. 876. See 1 Curr. L. 92, n. 35. 25. Code Civ. Proc. §§ 3046, 3057. The affi- davits for reversal should be served with the notice of argument. Austen v. Colum- bia Lubricants Co., 85 N. Y. S. 362. Munici- pal court act, § 311, Laws 1902, p. 1578, o. 580. Where allegations of affidavits are not disputed they must be taken as true. Lazarus v. Boynton, 86 N. Y. S. 104. Com- pare Brown V. Bouse, 86 N. Y. S. 240. 20. Fowler v. Jenks, 90 Minn. 74, 96 N. W. 914. 27. Leaman v. Atkinson [Neb.] 96 N. W. 149. 28. Herman v. Beck [Neb.] 94 N. W. 512. 29. Creighton v. Chicago, R. I. & P. R. Co. [Neb.] 94 N. W 527. 30. Notwithstanding the remedy by mo- tion for new trial provided for such cases by Sand. & H. Dig. § 5882. Beidler v. Beidler, 71 Ark. 318, 74 S. W. 13. 31. Koehler & Co. v. Brady, 82 App. Div. 279, 81 N. Y. S. 695. 32. Party escaping beyond Jurisdiction in violation of ne exeat and Injunction. Bronk V. Bronk [Fla.] 35 So. 870. 33. Swift & Co. V. Platte [Kan.] 72 P. 271. 34. See 1 Curr. L. 92. 3 Cur. Law. APPEAL AND EBVIEW § 3B. 175 ties who may be affected by a reversal should be brought in in order to give juris- diction."" All joint defendants must be brought in, or else a severance of inter- est in the judgment must appear on the record/" and where the judgment rejects a moneyed demand against several defendants in solido, all defendants are neces- sary parties, and failure to cite one of them is fatal.'^ Appellant, however, is not required to look beyond the record and cite persons not parties to the judgment ap- pealed from*"' nor is it necessary to join parties whose interests will not be affect- ed,"' and a defendant not served and not appearing below need not be made a party.*" Co-parties declining to join may be made defendants in error,*^ and an appeal may be by one of several co-parties in behalf of others; but in such case, rights of co-appellants wholly unconnected from those of appellant will not be re- viewable.*- An appeal by a mortgagee in condemnation proceedings is not effectual as to the owner against whom no summons has been issued; the condemnation plain- tiff may, however, bring him in if necessary to the protection of its rights.*" On appeal in mandamus against a board of county commissioners, the new iucumbents of the office are not necessarily served and made parties.** A sentence for contempt of court will not be reviewed in a proceeding to which the state is not a party.*" An appeal by an infant should be taken by his guardian ad litem.*' The admiaistrator alone may prosecute error from the allowance of a claim against the estate.*' An appeal cannot be taken in the name of a receiver where its effect would be to compel the largest creditor to contribute to litigation against himself.*" 35. Contestant In election proceedings is necessary party on appeal by Intervener. Moore v. Waddington [Neb.] 96 N. W. 279. Co-defendants having Interest adverse to appellants. First Nat. Bank v. Gordon Hard- ware Co., 31 Wash. 682,. 72 P. 464; Wax v. Northern Pac. R. Co., 32 Wash. 210, 73 P. 380. All parties adverse to appellant In the court below must be made appellees. Kuhn V. Am. Mut. L. Ins. Co., 160 Ind. 356, 66 N. B. 890. On appeal by a creditor of a bankrupt from an order approving a composition un- der which a majority of the creditors have received the amounts to which they were entitled, the assenting creditors are neces- sary parties. Marshall Field & Co. v. Wolf & Bro. Dry Goods Co. [C. C. A.] 120 F. 815. See 1 Curr. D. 93, n. 56, 57. 36. Faulkner v. Hutchlns [C. C. A.] 126 F. 362. See 1 Curr. L,. 93, n. 58. 87. Handlin V. Dodt, 110 La. 936, 34 So. 881. 38. Succession of Wegmann, 110 La. 930, 34 So. 878. In perfecting an appeal from a justice's court, it is necessary to bring be- fore the circuit court only those persons who were parties to the judgment appealed from. Gormley v. Hartray, 105 111. App. 625. 30. Parties originally co-defendants pre- sumed to have been dismissed from the case. Halstead v. Olson [Neb.] 97 N. W. 442. A widow's right of dower being unaffected by an order to sell her husband's real estate to pay debts, she is not a necessary party on appeal from such an order. In re Smith's restate, 43 Or. B95, 73 P. 336. A vendor called in warranty in a petitory action, even though he has taken upon himself the defense of the suit in the lower court, may restrict his appeal to the judgment obtained against him by his vendee on the warranty, and in such case need not make the plaintiff In the main case a party to the appeal. Southern Devel- opment Co. v. Dubroca, 109 La. 990, 34 So. 50. Where the trustee in bankruptcy of a contractor to build a county building appeals from an order distributing the fund recov- ered by him from the county, the county is not a necessary party. Reld v. Pauly [C. C. A.] 121 F. 652. 40. Hines v. McLellan, 117 Ga. 845, 45 S. B. 279; Chason v. Anderson, 119 Ga. 495, 46 S. B. 629. Defendants not served with process and as to whom the cause was dismissed at plaintiff's cost should not be joined as plaintiffs In error. Patterson v. Morrell Hardware Co. [Colo. App.] 75 P. 592. See 1 Curr. L. 93, n. 45. 41. One of several complainants whose bill has been dismissed for want of equity may bring error, joining the others as de- fendants, his act in so doing, and theirs in declining to assign cross errors or unite in writ, operating to create a severance. Worm- ley v. Wormley, 207 111. 411, 69 N. B. 865. 42. Southern R. Co. v. Glenn's Adra'r [Va 1 46 S. E. 776. '' 43. Omaha Bridge & Terminal R. Co v Reed [Neb.] 96 N. W. 27«. 44. State V. Board of Com'rs of Clinton County [Ind.] 68 N. E. 29B. 45. Whitaker v. MoBride [Neb.] 98 N W 877. 46. Ramsey v. Keith's Adm'r, 25 Ky L. R. 1302, 77 S. W. 693. 47. Herman v. Beck [Neb.] 94 N. W. 512 48. Cook V. Anderson Food Co fN t Bq.] 55 A. 1042. ^ 176 APPEAL AND EEVIEW § 3B. 3 Cur. Law. An appeal by a partnership must be in the name of the firm in Georgia.*' In Indiana, vacation appeals must bring in all parties,"*" and all defendants against whom judgment has been rendered made co-appellants,"*^ but the statute does not require it, in term time appeals."*^ A joint notice of appeal by plaintiff and defendants, whose interests are identical, is proper in Iowa," and if co-parties refuse to join after notice they cannot afterwards appeal in their own right."** * Where defendant appeals, in Washington, notice must be given to the sureties on the cost bond which plaintiff furnished below,"*" but plaintiff on appeal from a judgment against himself alone need not notify his sureties,"*" though an appeal from a judgment against sureties on a cost bond will be dismissed, where the sureties on the bond have not joined in the appeal, nor been served with notice of appeal,^' notwithstanding the judgment was without jurisdiction and absolutely void."*' Successors in title and interest and substituted parties}^ — On the death of the appellee the personal representative should be substituted, where if appellant succeed, the judgment would be personal against appellee,"" and where a foreclosure defendant has transferred his interest and died pending appeal, his grantee may properly be substituted;"^ but the assignee of a judgment is not entitled to notice of appeal."^ Substitution, however, is permissive and addressed to the discretion of the court,"' and application should be first made to the trial court, but where first made on appeal a like order should be made below."* Where a judgment debtor desires to appeal after the death of the creditor, no revival in the name of the administrator is necessary, but on a showing of the facts in the petition in error, appellate process will issue against the administrator.""* Though defendant may prosecute a writ of error after plaintiff's death it should designate the defend- ante therein by name and not merely zs "the heirs" of plaintiff."" In Massachu- setts, where, pending an appeal from a decree of the probate court granting a separation, the wife dies leaving a will, the appeal should not be dismissed, but the superior court should retain the cause so far as necessary to finally dispose of all the questions involved in the appeal."'' Though the question to be litigated 49. civ. Code, § 4460. Kline v. Swift Spe- cific Co., 118 Ga. 514, 45 S. B. 314. 50. Appeal prayed separately by one of several co-parties and granted In term time but not then perfected [Burns' Rev. St. 1901, § 647]. Burns V. Trustees of Huntertown Cemetery Church, 31 Ind. App. 640, 68 N. E. 915. Cf. Ashley v. Henderson [Ind. App.] 69 N. B. 469. See 1 Curr. L. 93, n. 53. 51. That appellant's rights were asserted by cross complaint is Immaterial. Hay- maker V. Schneok, 160 Ind. 443, 67 N. B. 181. 52. Burns' Rev. St. 1901, § 647a. Burns v. Trustees of Huntertown Cemetery Church, 31 Ind. App. 640, 68 N. E. 915. On appeal by one of several joint plaintiffs against whom a Joint judgment for costs was rendered, the other co-plaintiffs should be named and notifled as appellants, not as appellees. Id. Where all are named as appellants the fil- ing of a refusal of part to join will not cause dismissal. Baltes Land Stone & OH Co. v. Sutton [Ind. App.] 69 N. B. 179. See 1 Curr. L. 93, n. 55. 63. Code, §§ 4111, 4112, providing that co- parties must join or be barred. Thornburg V. Cardell [Iowa] 95 N. "W. 239, B4. Code, |§ 4111, 4112, applies to parties brought In as defendants, their Interests be- ing Identical with plaintiff's. Thornburg v. Cardell [Iowa] 95 N. W. 239. 55. Brookway v. Abbott [Wash.] 74 P. 1069. 56. O'Connor v. Llghthizer [Wash.] 75 P. 643. 57. Pierce v. Commercial Inv. Co., 31 Wash. 655, 72 P. 473. 5S. Aetna Ins. Co. v. Thompson [Wash.] 76 P. ;05. 59. See 1 Curr. I* 93. 60. Utter v. Kersey, 31 Ind. App. 25, 67 N. B. 109. 61. Fay v. Steubenrauch, 138 Cal. 656, 72 P. 156. 62. Currans v. Seattle & S. F. R. & Nav. Co. [Wash.] 76 P. 87. 63. 64. Pay V. Steubenrauch, 138 Cal. 656, 72 P. 156. 65. City of Charlottesville v. Stratton's Adm'r [Va.] 45 S. E. 737. 66. Western Union Tel. Co. v. Wofford [Tex. Civ. App.] 72 S. W. 620. 67. Rev. Laws, c. 153, § 36, c. 162, 5 19 Rice v. Rice, 184 Mass. 488. 69 N. E. 319. 3 Cur. Law. APPEAL AFD EEVIEW § 4B 2. m is one of general interest, a person not a party to the suit cannot be substituted as plaintifE after appeal."* § 4. Adjudications which may be reviewed. A. Statutes and legislation." — Prior to ihe Arizona revision of 1901 no right of appeal from the action of the board of equalization existed.'" (§ 4) B. Dependent on the general form or the character of the adjudication. 1. Nature of decision in general.''^ — An order entered by consent is not appeal- able,'^ and the action of a judge cannot be reviewed under a statute giving an ap- peal from decisions of a court." An order at chambers is not appealable.'* The judgment must have been entered.'' Adjudications founded on the discretion"' or wisdom of the trial court are not reviewable." "Merits" "principles of the cause" "orders preventing judgment" etc." An order denying a motion to dismiss an action for want of Jurisdiction does not afEect a substantial right and prevent judgment," but an order striking the cause on the ground that the case has been settled is'appealable as preventing judgment ;*" and an order compelling plaintifE to separate his causes of action and allege which acts were negligent and which wanton involves the merits.'* An order striking out a stipulation does not involve the merits and affect the judgment where the result would have been the same if the stipulation had been let stand.** An order in- volving the mode of trial for determining the issues raised by the pleadingb is appealable,*^ but a motion mistakenly marked "filed," by the clerk, before leave granted to file it is not filed, and an order striking it merely purges the record of a mistake, and is therefore not appealable.'* An order involving a matter of law which affects a substantial right is appealable.*" In Virginia, any decree requir- ing the possession of property to be changed is appealable.*' (§ 4B) 2. Rulings relating to pleadings and process, and before trial." — Quashal of,** but not the refusal to quash summons, is appealable.*' Neither is 68. t Bal. Code, % 4834, provides that In such matters one or more may sue for all. Hlght V. Batley, 32 Wash. 165, 72 P. 1034. 69. See 1 Curr. L. 94. 70. Cochise County v. Copper Queen Consol. Min. Co. [Ariz.] 71 P. 946. 71. See 1 Curr. L. 94. 72. Order reciting that It was granted on opposing affidavits is not on consent. In re Post's Estate, 85 App. Dlv. 611, 82 N. T. S. 1079. 73. Order taxing costs held an order of the court and not of the judge notwith- standing absence of caption [Code Civ. Proc. § 3265]. Lawson v. Speer, 91 App. Div. 411, 86 N. Y. 3. 915. See 1 Curr. L. 94, n. 83. 74. Comp. Daws, §5 4828, 5236. Order made while judge was holding court else- where, but appearing to be "by the court." Custer County Bank v. W. H. Walling Mer- cantile Co. [S. D.3 94 N. W. 582. 75. Code Civ. Proc. I 668. Entry on min- utes of court. Marks v. Keenan, 140 Cal. 33, 73 P. 761. Minute entry not sufficient [Code Civ. Proc. §§ 1722, 1736]. Lisker v. O'Rourke, 28 Mont. 129, 72 P. 416. See 1 Curr. D. 95, n. 86, et seq. 76. See 1 Curr. D. 95. 77. See post, § 13 F 1. Rulings pecu- liar to province of trial court; Discretion- ary rulings. Meade County Bank v. Decker rS. D.] 98 N. W. 86. Order recommitting equity cause to take and report other testi- mony. Muckenfuss v. Fishburne, 65 S. C. 573, 44 S. B. 77; Id. 46 S. B. 537. Refusal of 3 Curr. Law — ^12 Maxon See 1 There motion for order of reference on the account- ing of an administrator In proceedings to subject land to the payment of debts. Greg- ory V. Perry, 66 S. C. 455, 45 3. E. 4, 78. See 1 Curr. L. 96. 79. Rev. St. 1898, 5 3069, subd. 1. V. Gates, 118 Wis. 238, 95 N. W. 92 Curr. L. 96, n. 5. 80. Rev. St. 1898, S 3069, subd. 1, had been a denial of a motion for findings and judgment on a verdict. Dr. Shoop Fam- ily Medicine Co. v. Schowalter [Wis.] 98 N W. 940. 81. Acts 1898, p. 693, authorizes joinder. Bolin V. Southern E. Co., 65 S. C. 222, 43 S. B. 665; Lynch V. Spartan Mills, 66 S. C. 12, 44 S. B. 93. 82. R. 3. 1898, 5 3070. State v. Board of Trustees of Policemen's Pension Fund [Wis.] 98 N. W. 964. 83. Gregory v. Perry, 66 S. C. 455, 45 3. E. 4. 84. Born V. Schneider, 128 F. 179. 85. An order In a drainage proceeding under Code, § 1297, directing matters prop- erly for the determination of commissioners to be referred to a Jury [Code, 5 548]. Porter V. Armstrong, 134 N. C. 447, 46 S. E. 997. 86. Decree appointing , receiver and re- quiring him to take possession of property [Code 1887, § 3454]. Deckert v. Chesapeake Western Co., 101 Va. 804, 45 S. E. 799. 87. See 1 Curr. L. 96. 88. An order quashing the service of a summons after the time within which service 178 APPEAL AND REVIEW § 4B 3. 3 Cur. Law. an order making a party defendant.'" Enlings on motions to amend pleadings do not ordinarily affect any substantial right, nor have appealable finality."^ (§ 4B) 3. Dismissals, nonsuits, orders to strike cause, etc.'^ — If a dis- missal determines the action it is appealable,'* as is an involuntary nonsuit,** but a voluntary nonsuit," or a dismissal on request or by consent of plaintiff is not appealable,'^ and an entry in the clerk's register noting the filing of an agreement to dismiss is not a dismissal from which an appeal can be taken." (§ 4B) 4. Orders directing or arresting judgment, or on motion for new trial, are not reviewable at common law,"^ or generally," because lying in dis- cretion,* but are by statute in some states." And where a motion for a new trial is based upon alleged errors of law, no discretion is exercised in the decision, and it is reviewable.* Motions for new trial not being authorized in cases tried to the court in North Dakota, an appeal from an order denying such motion will not lie.* No appeal lies from an order denying a motion for a new trial of issues involved in the matter of a claim for compensation and expenses of a receivership, since no such motion lies." (§ 4B) 5, Final judgment or decree.' — ^The adjudication must be finally determinative of the controversy, and must substantially affect the rights of the parties.' It must be so far final that, if affirmed, nothing remains for the trial may be made after flltng complaint has the effect of discontinuing the action and Is ap- pealable. Wagnitz v. Ritter, 31 Wash. S43. 71 P. 1035. 89. An order denying a motion made on special appearance to quash service of sum- mons Is not appealable as an order affect- ing a substantial right, In effect determin- ing the action or proceeding, or preventing final judgment [2 Bal. Code, | 6500]. Powell V. Nolan, 32 Wash. 403, 73 P. 349. 90. White V. Lawyers' Surety Co., 84 N. T. S. 247. 91. Booth V. Callahan, 97 Md. 317, 55 A. 625. See 1 Curr. L. 96, n. 14. OS. See 1 Curr. L. 97. 93. An order dismissing an action for delay in serving the summons Is final and appealable. Marks v. Keenan, 140 Cal. 33. 73 P. 761. Where a Judgment of dismissal is prematurely entered without hearing on issue joined, an appeal lies only from an order on motion to vacate, and not from the judgment. State v. Huston, 32 Wash. 154, 72 P. 1015. No appeal lies from an order dismissing a complaint, as such order can be reviewed only on appeal from the final judgment. Krombaok v. Pennsylvania Steel Co.. 84 N. Y. S. 297. Bee 1 Curr. L. 97, n. 28. 94. Sims V. Southern R. Co., 66 S. C. 520, 45 S. E. 90. See 1 Curr. L. 97, n. 37. ^. Where plaintiff takes a nonsuit on the court's Intimating that he is inclined to sustain a pending demurrer to the evi- dence, he cannot appeal, the nonsuit being voluntary. Carter v. O'Neill, 102 Mo. App. 391, 76 S. W. 717. See 1 Curr. L. 97, n. 34. 96. Bacon v. Abbey Press, 87 N. T. S. 165. 97. Kinman v. Scheuer [Mont.] 75 P. 690. 95. See 1 Curr. L. 98. 99. N. J. Act April 3, 1902, does not give right of appeal from order refusing new trial. Mitchell v. Erie R. Co. [N. J. Law] 66 A. 236. 1. See post, § 13 F. 2. Blended motion for judgment notwith- standing findings or for new trial, is In effect motion for new trial. Noble v. Great North- ern R. Co., 89 Minn. 147, 94 N. W. 434. Or- der directing Judgment notwithstanding ver- dict, based on alternative motion for judg- ment or new trial. Peterson v. Minneapolis St. R. Co., 90 Minn. 52, 95 N. W. 751. 3. Under Gen. Laws, 1901, c. 46, p. 51, or- der is presumed not discretionary unless so stated. Pitger v. Archibald Guthrie & Co., 89 Minn. 330, 94 N. W. 888; Smith v. Minne- apolis St. R. Co. [Minn.] 97 N. W. 881. 4. Revt Code 1899, § 6630. Bank of Park River v. Town of Norton [N. D.] 97 N. W. 860. 5. Forrester v. Boston & M. Consol. Cop- per & Silver Min. Co. [Mont.] 76 P. 2. e. See 1 Curr. L. 98. 7. Morgan v. Thompson [C. C. A.] 124 F. 203; MoLucas v. St. Joseph & G. I. R. Co. [Neb.] 96 N. W. 115; Fugazzi, Lovelace Go. v. Tomllnson, 119 Ga. 622, 46 S. E. 831. Orders held final: The denial of a petition to set aside the appointment of an adminis- trator. In re Tasanen's Estate, 26 Utah, 396, 71 P. 984. Order dismissing bill for want of equity after sustaining demurrer. Wormley v. Wormley, 207 111. 411, 69 N. E. 865. An order of the county court refus- ing an application to file a claim against a decedent's estate. Rlbble v. Furmin [Neb.] 98 N. W. 420. Judgment in a proceeding in error. Code Civ. Proo. § 601, does not render such a judgment interlocutory. Bastlan v. Adams [Neb.] 97 N. W. 231. Dismissal of action for failure to return and file sum- mons. Pacific Pav. Co. v. Vizelich, 141 Cal. 4. 74 P. 352. A decree of the circuit court of appeals dismissing a bill for want of equity without prejudice to an action at law. Beasley v. Texas & P. R. Co., 191 U. 5. 492, 24 S. Ct. 164. Decree ordering fore- closure and subrogation of complainant, and directing reference. Kirkland v. Mills. 138 Ala. 192, 35 So. 40. A decree for costs in favor of the clerk of court, pi-oviding for execution. In re Michigan Cent. R. [C. C. 3 Cur. Law. APPEAL AND REVIEW § 4B 5. 179 court but to execute it.' It is not final if the case be retained,* or where an in- termediate appellate court reverses a judgment of an inferior court and remands the case for a new triaJ,^" or retains it for trial de novo.^^ Eulings on demurrer are not generally final. Until there has been in the trial court a judgment finally , disposing of the case, the appellate court is without jurisdiction to entertain a complaint that error was committed by the trial judge in striking, on demurrer, portions of defendant's answer.^- A judgment sustaining a demurrer to the peti- tion which does not order that the "plaintiff take nothing by his writ" and that the "defendants go thereof without day" is not final.*' A judgment overruling a de- A.] 124 F. 727. Order allowing clerk com- mission on fund in custodia legis. Still- man V. Hart [C. C. A.] 120 F. 359. Order of county court awarding counsel fees in- curred by persons after ceasing to be repre- sentatives of a decedent. In re Currier's Estate [Colo. App.] 74 P. 340. Judgment awarding plaintiff costs up to filing of an- swer and defendant costs after. Strull v. Louisville & N. R. Co:, 25 Ky. L. R. 678, 76 S. W. 181. Orders held not flnal: An order directing preparation of a decree in accordance with findings. Watklns v. Hughes, 206 Pa. 526, 5S A. 22. Order dismissing a motion for Judgment on the pleadings. City of Phila- delphia V. Pemberton, 206 Pa. 73, 65 A. 835. Order amending Judgment. Murphy v. Peo- ple, 207 in. 337, 69 N. B. 782. Order setting aside judgment or decree, fixing time for filing pleadings, and setting cause down for new trial [Code Civ. Proc. § 602]. Rose V. Dempster Mill. Mfg. Co. [Neb.] 94 N. W. 964. Order denying petition to vacate judg- ment allowing claim against decedent's es- tate. In re Emanuel's Estate, 31 Colo. 440, 72 P. 1079. A judgment overruling or sus- taining a demurrer. Rodgers v. Kallmeyer [Mo. App.] 78 S. "W. 334. Judgment dismiss- ing the case as to one defendant. Ropes v. Lansing [Fla.] 35 So. 863. Order dissolv- ing Injunction (Stubbs v. McConnell. 119 Ga. 21, 45 S. E. 710), except where Injunction Is the sole purpose of bill and dissolution is granted for want of equity In bill (Cahill V. Welch, 208 III. 57, 69 N. B. 877). Order of the orphan's court dismissing motion to quash appeal from appraisement for collater- al tax. In re Belcher's Estate, 205 Pa. 153, 54 A. 714. Order of circuit court that spe- cial appeal from justice stand for trial on the merits. Dodge v. Nichols [Mich.] 98 N. W. 737. An order substituting a claimant of property, on application of defendant in a claim and delivery action. State v. Dis- trict Court of First Judicial District, 28 Mont. 445, 72 P. 867. An order directing the sale by an executor of his decedent's real estate. In re Williamson's Estate, 25 Utah, 50, 72 P. 2: citing Steam Laundry v. Dole, 20 Utah, 469, 58 P. 1109; Wilson v. Meyer, 23 Utah, 529, 65 P. 488; Musser v. Edmundi?, 23 Utah, 425, 64 P. 1105; Ogden City v. Bear Lake & R. W. W. & Irr. Co., 16 Utah, 440, 52 P. 697, 41 L. R. A. 305; Popp v. Daisy Gold Min. Co., 22 Utah, 457, 63 P. 185. Order appointing commissioners in a partition pro- oeedinsr. Albemarle Steam Nav. Co. v. Wor- rell, 133 N. C. 93, 45 S. E. 466. Denial of leave to intervene, and order refusing to entertain appeal from decision of receivers with reference to proof of claim before them, both being discretionary. Land Title & Trust I Co. v. Asphalt Co. [C. C. A.] 127 F. 1. Judg- ment for costs only. Welch v. Tlppery [Neb.] 95 N. W: 491; MoLucas v. St. Joseph & G. I. R. Co. [Neb.] 96 N. W. 115; Corley v. Corley, 63 W. Va. 142, 44 S. B. 132; Solack v. Gans [Neb.] 96 N. W. 633; Thompson v. Nelson [Neb.] 96 N. W. 194; Carlson v. Jordan [Neb.] 95 N. W. 671; Jarvls v. Chase County [Neb.] 97 N. W. 831; Hall v. Patterson [Fla.] 3S So. 982;, Haynes v. Bramlett [Fla.] 35 Bo. :J. See 1 Curr. L. 98, n. 47. S. Morgan v. Thompson tC. C. A.] 124 P. 203. See 1 Curr. L. 98, n. 49. 9. Order In partition, providing for fur- ther decision after hearing proofs. Wickes V. Wickes [Md.] 56 A. 1017. Decree on in- tervening petition against receiver, direct- ing accounting and reference to master. Mercantile Trust Co. v. Chicago, P. & St. L. R. Co. [C.Cs A.] 123 F. 389. Order allowing provisionally, counsel fee on behalf of trust estate. Clarke v. O'Brien, 97 Md. 738, 56 A. 788. 10. Morgan v. Thompson tC. C. A.] 124 F. 203. Though in Nebraska, a judgment of the district court on appeal from an inferior tribunal, which is complete so far as the dis- trict court is concerned, and leaves nothing further to be done In that court is final, though the cause is remanded for further proceedings [Code Civ. Proc. § 682] (Ribblo V. Furmin [Neb.] 94 N. W. 967), and in Ohio, on the overruling of a motion for judg- ment on special findings inconsistent with the general verdict, and the affirmance there- of by the circuit court, though the ease is reversed on another point and sent back for a new trial, the defendant may bring error in the supreme court from the afflrmanee, and need not wait until after retrial in the lower court (Davis v. Turner [Ohio] 68 N. E. 819). 11. Judgment of common pleas In Ohio reversing probate decree In appropriation proceedings. State v. Judges of Court of Common Pleas of Hamilton County, 69 Ohio Gt. 372, 69 N. B. 659. The judgment of the district court on error, reversing the judg- ment of a justice and retaining the case for trial, is not flnal until final disposition of the case. McCormick Harvesting Mach. Co. V. Kolb [Okl.] 74 P. 367. 12. Turner v. Camp, 110 Ga. 631, 36 S. E. 76; Harvey v. Bowles. 112 Ga. 421, 37 S. E. 364; Berryman v. Haden, 112 Ga. 752, 38 S. E. 63; Ray V. Anderson, 117 Ga. 136, 43 S. B. 408; Fugazzi, Lovelace Co. v. Tomlinson, 119 6a. 622, 46 S. B. 831. 13. Akins v. Hicks [Mo. App.] 77 S. W. 86; Boren v. Jack [Tex. Civ. App.] 73 S. W. 1061. Cf. Staacke Bros. v. Walker [Tex. Civ. App.] 73 S. W. 408. 180 APPEAL AND REVIEW § 43 5: 3 Cur. Law. miirrer to an application for a writ of quo warranto is not finaV* but a judgment overruling a demurrer to a response to a motion for a rule on a master to compel him to pay over trust fund is." Eefusal of judgment non obstante veredicto- is not final,^' nor is judgment for defendant on demurrer to plaintiffs evidence with- out determination of a cross action,^^ but an appeal lies from the refusal of a judgr ment by default.^' A judgment entered without sufficient service of process may be appealed from without first taking a rule to strike it off.^° An appeal lies at the instance of the parties cast, or either of them, from a judgment not rendered, by consent, decreeing the partition of property of which one of said parties, not a co-owner, is usufructuary.^" Though a motion to correct for judicial error a judgment rendered after overruling of demurrer cannot be entertained, a writ of error may be allowed.^* It must finally dispose of the case as to all parties."' The question of finality as to the federal courts is not determined by the state practice, but is governed by Federal statutes and decisions."' (§ 4B) 6. Orders and adjudications in interlocutory or provisional, ex- traordinary, and special proceedings.'^* — Interlocutory or provisional orders are not separately reviewable in the absence of legislation,"" and no separate appeal will lie from an interlocutory order after final judgment."^ Statutes generally provide what intermediate orders may be reviewed,"' and an enumeration of appealable orders excludes the reviewability of those not enu- merated."* Interlocutory orders to be appealable in Louisiana must work an irrep- arable injury,"" and in Mississippi appeals lie from interlocutory decrees "in order to settle the principles of the cause."'" While in Tennessee, interlocutory orders cannot be reviewed or restrained on application except when they trench upon final relief, and also are of a nature to be actually enforced.'^ Eefusing to vacate an order of arrest,'" and refusing to set aside the service of summons," are not sep- arately reviewable. An order refusing to change the place of trial is not appeal- able.'* Neither is an order denying a motion to resettle a previous order by in- 14. Sayer v. Harding, 118 Ga. 642, 45 S. B. 418. 15. Maxwell's Trustee v. England, 25 Ky. L.^ R. 143, 74 S. W. 1091. 16. Nelson County v. Bardstown & L. Turnpike Co., 25 Ky. L. R. 1777, 78 S. W. 866. 17. Garothers v. Holloman [Tex. Civ. App.] 76 a W. 1084. J8. Tennessee River Land & Timber Co. V. Butler, 134 N. C. 50, 45 S. E. 956. 19. Com. V. Bangs, 22 Pa. Super. Ct. 403. ao. Maguire v. Fluker [La.] 36 So. 231. ai. Second Nat; Bank v. Ralphsnyder [W. Va.] 46 S. B. 206. aa. Dismissal as to one and retention as to other defendants is not. Menge v. "War- riner [C. C. A.] 120 P. 816. Pinal judg- ment as to one defendant and no disposition as to other is not. Stewart v. Lenoir, 31 Tex. Civ. App. 470, 72 S. W. 619; Britt V. Sweeney [Tex. Civ. App.] 75 S. W. 933. Judgment for defendants in an action against a partnership, service being had on one part- ner only, is final. Staaoke Bros. v. Walker [Tex. Civ. App.] 73 S. W. 408. See 1 Curr. L. 99, n. 54. 23. Menge v. Warriner [C. C. A.] 120 F. 816. 24. See 1 Curr. L. 99. 25. See 1 Curr. L. 99, n. 56. 26. Bates v. Holbrook, 89 App. Div. 648, 85 N. T. S. 673. 27. See 1 Curr. L. 99, n. 58. 28. White v. Lawyers' Surety Co., 84 N. T. S. 247; Leavltt v. Katzoff, 86 N. T. S. 495. 29. A Judicial sequestration effecting no change of possession does not. State v. Al- len, 110 La. 853, 34 So. 804. Order dismiss- ing a rule to return into court a deposition is not. Drainage Commission of New Or- leans V. Charles B. Collom & Co., Ill La, 815, 35 So. 918. 30. Order denying motion to dismiss case as to one party, where question involved ia whether liability of such party has been settled by previous appeal [Code 1892, S 34]. State v. Woodruff [Miss.] 35 So. 422. 31. When a court has power to appoint a receiver under facts stated, objections as to matters of form only cannot be received when collaterally presented to the supreme court on an application for a supersedeas. Troughber v. Akin, 109 Tenn. 461, 73 S. W. 118. Orders requiring parties to interplead. Wagstaff V. Wagstaff, 67 Kan. 832, 72 P. 780. 32. Leavltt v. Katzoff, 86 N. T. S. 495. 33. Reynolds v. Packer's Nat. Bank, 66 Kan. 461, 71 P. 847. 34. Waukesha County Agricultural Soo. V. Wisconsin Cent. R. Co., 117 Wis. 589, 94 N. W. 289. 3 Cur. Law. APPEAL AND EEVIEW § 43 6. 181 serting therein that the motion was denied on a particular ground/" nor an in- terlocutory decree entered in the circuit court in execution of the mandate of the circuit court of appeals.^" The reservation to a defeated party of the right to renew a motion which was denied is no ground for appeal by the successful party.*' An appeal lies to the district court from an order of a United States commissioner denying a new trial in a Chinese exclusion case/^ and from an order of the special term of the city court of New York, denying a motion to compel the acceptance of service of a notice of appeal." These orders must be final,*" or affect a substantial right.*^ An ex parte order appointing a receiver is appealable,** and an appeal lies from a judgment allowing his compensation and expenses.*' An order discharging an order to show cause for contempt in disobeying an order of court granted on final decree, is reviewable,** and proceedings to punish a witness for contempt in failing to give testimony for use in an action in another state constitute a special proceeding from which appeal will lie.*' A judgment of the circuit court convicting defendant of contempt in an equity suit, being a judg- ment rendered in a criminal case separate and distinct from the equity suit, is reviewable by the circuit court of appeals on writ of error.*' Error lies in Wisconsin at the suit of either party to the decision of a com- missioner in habeas corpus proceedings,*' but no appeal on behalf of the state lies from an order of the probate judge in Alabama admitting a person charged with homicide to bail on habeas corpus, prior to indictment.*' An appeal lies from an order of reference and from an order denying a mo- tion to vacate the order.*' 3B. Han V. Redlngton, 87 App. Dlv. 248, 84 N. T. S. 279. 3«. Minnesota Mollne Plow Co. v. Dow- agiao Mfg. Co. [C. C. A.] 126 F. 746. 37. Denial of corporation's motion for discharge of receiver, with right to renew; appeal by receiver. Union Surety & Guar- anty Go. V. Greater New York Amusement Co., 87 App. Div. 287, 84 N. Y. S. 286. 38. U. S. V. Ng Young, 126 F. 425. 39. Code Civ. Proo. § 3189. Masor v. Jacobus. 84 N. Y. S. 270. 40. Orders held final: Order quashing attachment. Steuart v. Chappell [Md.l 57 A. 17. Order dismissing petition for habeas corpus. Costello v. Palmer, 20 App. D. C. 210. Orders not final: Order directing witness to answer certain specified questions. Strong v. Randall, 177 N. Y. 400, 69 N. B. 721. Order pending suit restraining threatened trespasses, for inspection and survey. Mon- tana Ore Purchasing Co. v. Butte & B. Consol. Mln. Co. [C. C. A.] 126 F. 168. Or- der of discharge on writ of habeas corpus. Magerstadt v. People, 105 111. App. 316. Or- der overruling plea to require another party to be made defendant In suit to foreclose mortgage. Miller v. Hubbard [Mich.] 98 N. B. 390. Order refusing a motion to strike from flies a claim of exemptions in a gar- nishment proceeding and render Judgment against garnishee. Chamberlain v. Mobile Fish & Oyster Co., 137 Ala. 187, 33 So. 822. See 1 Curr. L. 99, n. 64. 41. A Judgment vacating a town or vil- lage plat Is a final order affecting a sub- stantial right, and appealable. Koochiching Co. v. Franson [Minn:] 98 N. W. 98. After appeal to the superior court from a Judg- ment of an acting Justice of the peace, an order of the superior court vacating the Judgment appealed from on motion is a final order In a special proceeding, and affects a substantial right. Deuster v. Zillmer, 119 Wis. 402, 97 N. W. 31. An order taking minors' funds out of the hands of their tutor Is presumably Injurious to them and appealable. Succession of Wegmann, 110 La. 930, 34 So. 878. See 1 Curr. L. 99, n. 65. 42. Sess. Laws 1899, p. 146 expressly so provide. Humney v. Donovan, 28 Mont. 69, 72 P. 306. Orders appointing receivers be- long to the class of interlocutory orders, and are not In general reviewable upon ap- plication for supersedeas. Troughber v. Akin, 109 Tenn. 451, 73 S. W. 118. 43. Forrester v. Boston & M. Consol. Cop- per & Silver Mln. Co. [Mont.] 7S P. 2. Where an order is made fixing a receiver's com- pensation and expenses and subsequently another is made adjudging that a certain party shall pay such compensation and ex- penses, the latter order Is the final one from which appeal will lie. State v. District Court, 28 Mont. 227, 72 P. 613. 44. Deppe v. Ford, 89 Minn. 253, 94 N. W. 679. Violating an Injunction against In- fringement of a trade-mark. Bnoch Mor- gan's Sons Co. V. Gibson [C. C. A.] 122 P. 420. 45. Strong V. Randall, 177 N. Y. 400, 69 N. B. 721. 46. Act Mch. 3, 1891, o. 517. In re Helnze [C. C. A.] 127 P. 96. ■ 47. State V. Whitcher, 117 Wis. 668, 94 N. W. 787. 48. Cr. Code 1896, § 4314. State v. Berk- stresser, 137 Ala. 109, 34 So. 686. 49. Albany Brass & Iron Co, v. Alton, 84 N. Y. S. 180. 182 APPEAL AND REVIEW 8 4B 6. 3 Cur. Law. Provisional orders for relief.'"' — Error will not lie from an order discharging an attachment when there is nothing in the record to show that any action was ever taken under the writ."^ A rule made by a justice of the supreme court in vacation, discharging, a rule to show cause why a writ of attachment issued out of the supreme court should not be quashed, cannot be reviewed as a motion made before a single justice."'' An order entered in the minutes granting an injunction is appealable,"' but no appeal lies from an order of a judge intended as process to carry into effect an or- der granting an injunction."* Orders on motions to dissolve temporary injunctions are not appealable in Iowa,"° Texas,"" or Nebraska,"^ but in Louisiana, a judgment dissolving an injunction against acts of trespass on real property is appealable, whether interlocutory or not, the injury being irreparable.^' The granting of a temporary restraining order is not reviewable after it has passed into a permanent injunction."' An order granting an injunction pendente lite,"" or continuing a preliminary injunction, is appealable to the circuit court of appeals,'^ except in cases where that court would not have jurisdiction of an appeal from the final decree in the case."^ Eminent domain proceedings^^ are covered by statute, as shown below.'* (§ 4B) 7. Orders after judgment^^ are not separately appealable in Colo- rado."" An order vacating"^ or refusing to vacate a judgment is appealable,"' but an order opening*"" or refusing to open a default is not,'" and defendant cannot 50. See 1 Curr. L. 100. 51. Sand Hills Commercial Co. v. Phil- lips Bros. & Rennau [Neb.] 98 N. W. 71S. 53. Garbett v. Mountford [N. J. Law] 57 A. 257. 53, 54. MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co. [Mont.] 75 P. 89. 55. An order on motion to dissolve a pre- liminary injunction not being a final ad- judication of the merits can only be con- sidered on a proper assignment of errors. Hawkeye Ins. Co. v. Huston, 121 Iowa, 393, 96 N. W. 895. 56. An appeal will not lie from an inter- locutory order modifying and continuing In force a temporary injunction, where the record fails to show that the cause has been Anally tried or disposed of. Medlin v. Seide- mann [Tex. Civ. App.] 79 S. W. 590. 57. An order dissolving or modifying a temporary injunction is not reviewable ex- cept in connection with a final judgment dis- posing of the case. Horst v. Board of Sup'rs of Dodge County [Neb.] 98 N. W. 822. 58. Gotten v. Christen, 110 La. 444, 34 So. 597. 59. Wagstaff v. WagstafE, 67 Kan. 832, 72 P. 780. 60. Act Mch. 3, 1891. Kerr v. City of New Orleans [C. C. A.] 126 F. 920. 61. Act Cong. June 6, 1900. Armat Mov- ing Picture Co. v. Edison Mfg. Co. [C. C. A.] 125 F. 939. 62. Jurisdiction dependent solely on issue Involving constitutionality of statute. "Wright v. MacFarlane & Co. [C. C. A.] 122 F. 770. 63. See 1 Curr. L. 101. 64. N. C. Code, 1883, § 1946, limits appeal to final judgments confirming reports of com- missioners on exceptions. Holly Shelter R. Co. v. Newton, 133 N. C. 132, 136, 45 S. E. 549. Upon the filing of exceptions to the report and the determination of them by the court, either party may appeal to the court at term, and thence, after Judgment, to the supreme court [Code 1883, § 1946]. Cape Fear & N. R. Co. v. Stewart, 132 N. C. 248, 43 S. B. 638. .Judgment for the recov- ery of the land is final, though the question of damages Is still pending, but a mere de- termination that plaintiff has a right to con- demn is not. The original order appointing commissioners Is not appealable In West Virginia. "Wheeling & E. G. R. Co. v. At- kinson. 53 W. Va. 539, 44 S. B. 773; citing Pack V. Chesapeake & O. R. Co., 5 "W. "Va. 118; "Wheeling Bridge & Terminal Co. v. "Wheeling Steel & Iron Co., 41 "W. "Va. 747, 24 S. E. 651; Tennessee Cent. R. Co. v. Campbell, 109 Tenn. 640, 75 S. "W. 1012. N. J. Traction act of 1893 (P. L. 1893, p. 352; Gen. St.. p. 3235) gives no right of appeal to companies organized thereunder, under the condemnation act of 1900, § 9 (P. L. 1900, p. 79). Paterson & St. L. Traction Co. v. De Gray [N. J. Law] 56 A. 250. Direct authority to appeal from "final orders" is not exclusive, and appeal will lie from order setting asido award of commissioners as excessive [Code Civ. Proc. 5 3375]. In re Town of Guilford, 85 App. Div. 207, 83 N. Y. S. 312. 65. See 1 Curr. L. 101. 66. Mills' Ann. Code, § 898, provides for review on appeal from judgment. Van Buskirk v. Balch [Colo. App.] 74 P. 792. No appeal will lie from an order refusing to set aside a final judgment. Green v. Thatcher, 31 Colo. 363, 72 P. 1078; In re Emanuel's Estate, 31 Colo. 440, 72 P. 1079. 67. Department of Health of City of New York V. Babcook, 84 N. Y. S. 604. Not in Maryland if made within 30 days after en- try of the judgment. Laubheimer v. John- son [Md.] 67 A. 539. 68. Meade County Bank v. Decker [S. D.] 98 N. W. 86; Schrenkeisen v. Kroll, 85 N. Y. S. 1072. Contra, Leavitt v. Epstein, 86 N. Y. S. 208. 69. Department of tiealth of City of New York V. Eabeock, 84 N. Y S 604. An order 3 Cut. Law. APPEAL AND EEVIEW § 4C 1. 1S3 appeal from an order opening a default against him on terms.^* The refusal to vacate a judgment of dismissal for want of prosecution is not appealable/'' neither is an order overruling a motion to set aside a pretended judgment of dismissal, which was in fact not a dismissal," and an appeal does not IJe from an order of the district court vacating a judgment which dismisses an appeal from the pro- bate court ;^* but an order denying a motion to vacate the appointment of an ad- ministrator affects a substantial right and is appealable."' An order denying a motion to correct a judgment is not separately appeal- able." An order discharging an order to show cause why defendant should not be punished for contempt in disobeying an order of court is a final one, affecting a substantial right, upon a summary application after judgment, and is appeal- able.'' An interlocutory order designed to carry out a judgment previously ren- dered is ordinarily not appealable,'" but an order overruling a motion to quash an execution is appealable xmder a statute allowing an appeal from a final order af- fecting a stibstantial right,'" and where it is the only question at issue, an order recalling and quashing an execution is final and appealable.*" An order of the appellate term reversing on questions of law an order of the special term denying an application of the purchaser to be relieved from his pur- chase at a judicial sale, made after final judgment confirming the sale, is re- viewable by the court of appeals.*^ Orders relating to costs are reviewable on appeal from final judgment and not independently, costs being part of the judgment.*" An order refusing relief from an order denying settlement of a statement on motion for new trial, on the ground that the party seeking the settlement failed through surprise and excusable neglect, is appealable.*' (§ 4B) 8. Decisions of intermediate courts J"^ — A reversal by the appellate division in New York on questions of law only, the facts being examined and no error found, makes a case for the court of appeals."* § 4B) 9. Parts of judgments.^" — Judgments may be reviewed in part so far as they are severable.*' (§4) C. Dependent on character or value of action, subject-matter^ or con- troversy. 1. Nature of action?^ — ^An action appealable to the circuit court in Betting aside a default and aUowIng defend- ant to answer in foreclosure of a tax lien, the summons by publication being defective, is not appealable as an order granting a new trial, nor as a final order after judg- ment affecting a substantial right. Ball. Code, 5 6500 (Laws 1893, p. 119, I 1. sub. 7)]. Thompson v. Robbins, 32 Wash. 149, 72 P. 1043. 70. No appeal lies from an order of the municipal court in New York denying a motion to set aside a default judgment [Mun. Court Act, §§ 253-257, 311 (Laws 1902, c. 580)]. Leavltt v. Epstein, 86 N. T. S. 208. 71. Long Branch Pier Co. v. Crossley, 40 Misc. 249, 81 N. T. S. 905. 73. Tubman v. Baltimore & O. R. Co., 20 App. D. C. 541. 73. Kinman v. Scheuer [Mont.] 7B P. 690. 74. McMaster v. People's Bank of Sdmond [Old.] 73 P. 946. 75. In re Sutton's Estate, 31 Wash. 340, 71 P. 1012. 76. Cullen v. Harris [Utah] 73 P. 1048. TZ. Deppe v. Ford, 89 Minn. 263, 94 N. W 679. 78. It may be when the question Is raised whether it had not already been carried out. Succession of Wegmann, 110 La. 930 34 So. 878. 79. Ball. Ann. Codes & St. § 6500. Hewitt V. Root, 31 Wash. 312, 71 P. 1021. 80. Little & Smith v. Atchison, T. & S F. R. Co. [Ind. T.] 76 S. W. 283. 81. Parish v. Parish, 175 N. T. 181, 67 N. E. 298. 82. Spencer v. Mungus, 28 Mont. 357, 72 P. 663; King v. Allen [Mont.] 73 P. 1107. 83. Murphy v. Stelling, 138 Cal. 641, 72 P. 176. 84. See 1 Curr. L. 102. 85. Albrlng v. New Tork Cent. & H R R. Co., 174 N. T. 179, 66 N. E. 665. 86. See 1 Curr. L. 103. 87. Defendant in foreclosure proceedings can appeal from the part of the judgment awarding a deficiency of judgment. Perelea V. Leiser, 119 Wis. 347, 96 N. W, 799. SS. See 1 Curr, L. 103. 184 APPEAL AND EEVIEW § 40 2. 3 Cur. Law. Ohio, after final judgment in the court of common pleas, must be a civil action," an action of which the common pleas has original jurisdiction, and one in which the right to demand a jury does not exist."" A judgment of a justice of the peace in forcible entry and detainer is not appealable in Nebraska, not being civil."* (§ 4C) 2. Questions of law.'" — No appeal lies in New Jersey from the dis- trict court upon questions of fact, but only for error in point of law, or upon the admission or rejection of evidence."* (§ 4C) 3. The existence of a constitutional question'*' authorizes an appeal direct to the supreme court, in Missouri,"^ and ultimately to the highest court of probably all the states and to the Federal supreme court."' A previous decision of the same question by the supreme court of Missouri will not deprive it of juris- diction," and the question being open at the time of transfer, the court will re- tain the cause and decide it, though an interim decision settles the' question." The constitutional question must have been raised below,"' and decided against the constitutionality of the statute.* A case properly before the Federal supreme court on a constitutional ground on appeal from a Federal court stands for de- cision on all questions properly in the record, even though the constitutional ques- tion is decided adversely to appellant;" but in such case the court will not be astute to support its jurisdiction upon another ground, which it could not consider apart from the failing foundation, and which has nothing to commend it but the letter of the law.' The construction merely, of a statute* or contract, is not constitutional," and the question whether the bill lodged with the secretary of state is the bill passed by the legislature and the finding of the court thereon raises no constitutional question.* The mere finding of an issue as to which party shall pay the costs can- not raise a constitutional question,' and the decision of a court cannot be "a law 89. Mandamus Is a civil action. State v. Philbrlck, 69 Ohio St. 283, 69 N. B. 439. 90. Rev. St. 1892, § 5226. Action for money not requiring a decree grrantlng some mode of equitable relief Is not appealable. Lange V. Lange, 69 Ohio St. 346, 69 N. B. 611. 01. Changed by statute, 1901, p. 484, c. 86. Sullivan Transfer Co. v. Paska [Neb.] 96 N. W. 163; Adklns v. Andrews [Neb.] 96 N. W. 228; Sullivan v. Haight [Neb.] 96 N. W. 487. Forcible entry and detainer pro- ceedings are not civil. Adkins v. Andrews [Neb.] 96 N. W. 228. 92. See 1 Curr. L. 104. 93. P. L. 1902, p. 565. Phelps v. Seymour [N. J. Law] 57 A. 129. 94. See 1 Curr. L. 104. 95. Hllgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. W. 1070. Criminal case. State V. Kentner [Mo. App.] 74 S. "W. 9. 9«. Rausoh v. Barrere, 109 La. 563, 33 So. 602; Baltimore & O. S. W. R. Co. v. Har- mon, 161 Ind. 358, 68 N. B. 589; Holmberg V. News-Times Pub. Co., 31 Colo. 456, 73 P. 865; People v. West Chicago St. R. Co., 203 in. 551, 68 N. B. 78. »7. Brown v. Missouri, K. & T. R. Co., 175 Mo. 185, 74 S. W. 973; State v. Smith, 177 Mo. 69, 75 S. "W. 625. 98. Lee v. Jones [Mo.] ,79 S. W. 927. 99. Brown V. Missouri, K. & T. R. Co., 175 Mo. 185, 74 S. "W. 973; State v. Smith, 176 Mo. 44, 75 S. W. 468. The supreme court of Louisiana will retain jurisdiction on consti- tutional grounds, though not raised by plead- ings, where appeal is allowed by the trial court on such a ground and the adverse liti- gant has answered complaint of error as to such constitutional question. Rausch v. Barrere, 109 La. 663, 33 So. 602. Objection on ground of taking property without due process of law and denial of equal protection of the law held sufficiently raised. Suess V. Imperial Life Ins. Co. [Mo. App.] 73 S. W. 353. Appeal from justice court; penalty and attorney fee to plaintiff in suit for labor claim. Baltimore & O. S. W. R. Co. v. Har- mon, 161 Ind. 358, 68 N. B. 589. See 1 Curr. L. 105, n. 26. 1. Rausoh V. Barrere, 109 La. 663, 33 So. 602. See 1 Curr. L. 105, n. 25. a. Warner v. Searle & Hereth Co., 191 U. S. 195, 24 S. Ct. 79; Spreekles Sugar Re- fining Co. v. McClaln, 192 U. S. 397, 24 S. Ct. 376. 3. San Diego Land & Town Co. v. Jas- per, 189 U. S. 439, 23 S. Ct. 571, 47 Law. Ed. 892. 4. Arbuckle v. Blackburn, 191 TT. S. 405, 24 S. Ct. 148; Spreekles Sugar Refining Co. v. McClain, 192 U. S. 397, 24 S. Ct. 376. Ques- tion as to when an act takes effect. Hllgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. W. 1070. 5. Question whether paving contractor Is excused from performing contract within time stipulated is not. Hllgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. W. 1070. e. Holmberg v. News-Times Pub. Co., 31 Colo. 456, 73 P. 865. 7. Woody V. St. Louis & S. P. R. Co., 173 Mo. 547, 73 S. W. 475. 3 Our. Law. APPEAL AND REVIEW § 40 8. 185 impairing the obligation of a contract."* Where a street railway company ac- quired its rights and constructed a tunnel under a navigable river on condition that navigation should not be obstructed, mandamus to compel it to lower the tunnel does not involve the determination of the constitutional question as to taking of property without compensation and due process of law.* (§ 40) 4. Construction of statutes and public regulations^" is of itself a ground in some states,^^ though the case be one within the jurisdiction of a jus- tice of the peaee.^'' The question, however, must have been raised below.^' The fact that a national bank is organized under a law of the United States will not confer jurisdiction upon the supreme court of a writ of error to the circuit court of appeals, where no other jurisdictional fact exists, except diversity of citizen- ship." (§ 40) 5. A jurisdictional question^'^ authorizes an appeal direct to the Fed- eral supreme court,^* but it must have been decided adversely to the plaintifE.*' (§ 40) 6. A federal question^^ confers jurisdiction by direct appeal on the supreme court of Missouri.^* (§40) 7. Conflicting or overruling decisions.""' A conflict between the Missouri courts of appeals,"^ or between one of them and the supreme court,^'' makes a case certifiable to the supreme court. Jurisdiction, however, does not depend upon the actual existence of a conflict, but upon the fact that one of the judges deems it to exist.''' Where the court of appeals unanimously deem their decision to be in conflict with that of the supreme court they should not certify the case, but should set aside their ruling, and make one conformable to that of the supreme court."* (§ 40) 8. Revenue and tax cases/^ are appealable directly to the supreme court in Illinois,"® Missouri," and Louisiana,"' but a controversy between two school districts as to which of them is entitled to school tax money,"' or a suit to 8. Hllgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. "W. 1070. 9. People V. West Chicago St. R. Co., 203 111. 551, 68 N. B. 78. 10. See 1 Curr. L. 105. 11. Rocheblave Market Co. v. New Or- leans, 110 La. 529, 34 So. 665. Burns' Rev. St. 1901, §§ 7510, 7612, regarding escape of gas and oil. Given v. State, 160 Ind. 552, 66 N. B. 750. Burns' Rev. St. §§ 7089, 7090, held not involved in suit for failure to furnish natural gas under contract. Mendenhall v. Diamond Plate Glass Co. [Ind.] 68 N. B. 595. 12. 13. Baltimore & O. S. W. R. Co. v. Harmon, 161 Ind. 358, 68 N. B. 689. 14. Continental Nat. Bank v. Buford, 191 U. S. 119, 24 S. Ct. 54. 15. See 1 Curr. L. 105. 16. Anglo-American Provision Co. v. Da- vis J-rovision Co., 191 U. S. 376, 24 S. Ct. 93. Question is raised by a finding as to wheth- er facts exist conferring Jurisdiction on the court. Diversity of citizenship. Sun Print. & Pub. Ass'n V. Bdwards [C. C. A.] 121 P. 826. Where the contention is that on the facts no case of contempt was made out, and that therefore the court below had no jurisdiction to punish, the question is not one of jurisdiction, but goes to the merits. O'Neal V. U. S., 190 U. S. 36, 23 S. Ct. 776, 47 L. Ed. 945. 17. Decision sustaining Jurisdiction but for defendant on the merits does not au- thorize appeal. Anglo-American Provision Co. V. Davis Provision Co., 191 U. S. 376, 24 S. Ct. 93. 18. See 1 Curr. Ij. 104, n. 21. 19. Plea of ultra vires by national bank. First Nat. Bank v. American Nat. Bank, 173 Mo. 153„ 72 S. W. 1059. 20. See 1 Curr. L. 105. 21. A ruling that a sleeping car passen- ger when awake has exclusive custody of his luggage is not in conflict wjth a ruling that when he is asleep the custody Is mixed. Morrow v. Pullman Palace Car Co., 98 Mo. App. 361, 73 S. W. 281. 22. That the Missouri court of appeals decides contrary to the ruling of the supreme court will not entitle the aggrieved party to a review by certiorari, where none of the Judges of the court of appeals deems its opinion contrary to the supreme court's ruling. State v. Smith, 173 Mo. 398, 73 S. W. 211. 23. Clark V. Missouri, K. & T. R. Co. [Mo.] 77 S. W. 882. 24. Wllden v. McAllister [Mo.] 77 S. W. 730. 25. See 1 Curr. L. 105. 26. Practice Act, § 88. 27. Motion to vacate judgment for taxes and quash execution thereon, on the ground that defendant was a minor when the Judg- ment was rendered, does not Involve a con- struction of the revenue laws. State v. Gaw- ronski [Mo.] 78 S. W. 807. 28. Burguieres v. Sanders, 111 La. 109, 35 So. 478. 20. People V. Helt, 203 III. Ill, 67 N. B. 741; Trustees of Schools v. Board of School Inspectors, 208 111. 73, 69 N. B. 781. 186 APPEAL AND EEVIEW § 4C 9. 3 Cur. Law. restrain a county from entering into a contract with a private person to discover property omitted from the tax rolls, do not involve the revenue within the rule,'" and in Louisiana, where the amount only, and not the validity of a tax, is in question, there is no jurisdiction.'^ In Kentucky, an action to recover personal property levied on to satisfy a tax may be appealed, irrespective of the amount in controversy.'^ (§ 4C) 9. Cases involving freeholds and titles/^ in most states, are ap- pealable directly or tdtimately to the highest court. The judgment to be ren- dered in the case must itself affect the title; that the title is the subject of col- lateral inquiry is not enough,'* but when the ultimate object of an action is to unconditionally divest one party of title to realty and vest it in another, a free- hold is involved." Neither forcible entry proceedings,'" suits for trespass, or to fix a boundary,'^ nor an action for damages because of prior conveyances of miner- als from land concealed from plaintiff purchaser, involves title," but a decree con- firming title and charging it with a resulting trust does.'" Actions concerning taxes on real estate,*" and proceedings to foreclose liens on land, do not, as a rule, involve freeholds,*^ but where the defense of homestead is put in, the freehold is in issue ;*^ and in Kentucky, where a lien upon land is asserted, the title is in controversy, and the court of appeals has jurisdiction regardless of the amount of the asserted lien.*' Where the lien asserted is waived, no title is involved.** A suit to set aside a trust deed to land involves title in Missouri,*" unless the ground be that the debt is paid.*' Since surplus money arising on a sale under a trust deed is treated as realty, a contest over the ownership thereof under conflicting liens is within the exclusive jurisdiction of the supreme court in Missouri.*' so. Wilson V. Marion County, 205 111. B80, 68 N. E. 793. 31. Tebault v. New Orleans, 108 La. 686; Rocheblave Market Co. v. City of New Or- leans, 110 La. 529, 34 So. 665. 3S. Willis V. Thornton, 25 Ky. L. R. 1521, 78 S. W. 215. 33. See 1 Curr. L. 106. 34. Porter v. Kansas City & Northern Connecting R. Co., 175 Mo. 96, 74 S. W. 992. See 1 Curr. L. 106, n. 49. 35. Suit to annul conveyances. Venner v. Denver Union Water Co. [Colo.] 75 P. 412. A freehold is Involved only where the re- sult of the litigation must he that one party will gain and another lose a freehold es- tate, or where the title is so put in issue by the pleadings that a decision of the case necessarily involves a decision as to the title. Kellogg Newspaper Co. v. Corn Belt Nat. Bldg. & L. Ass'n, 105 111. App. 62. Mandamus to street railway company to compel lower- ing of tunnel under river does not, either as to freehold of company or easement of public. People v. West Chicago St. R. Co., 203 111. 551, 68 N. E. 78. Suit to set aside contract to convey in consideration of future support. Payne v. White, 207 111. 562, 69 N. E. 856. Petition to sell real estate of decedent to pay debts does not. Frier v. Lowe, 207 111. 410, 69 N. E. 899. The title is Involved by a declaration for trespass quare olausum freglt, plea, llberum tene- mentum, and replication to the country. Illinois Cent. R. Co. v. Hatter, 207 111. 88, 69 N. E. 751. 36. Brennan Mercantile Co. v. Vlckers, 31 Colo. 323, 73 P. 45. 37. Beasley v. Glassell. 110 La. 230, 34 So. 424. 38. Adkins V. Villiams, 25 Ky. L. R. 1768, 78 S. W. S70. 39. Hewitt v. Price [Mo. App.] 74 S. W. 884. 40. An action to collect delinquent real estate taxes does not involve title. State V. Elliott [Mo.] 79 S. W. 696. A motion to vacate a judgment for taxes and quash the execution thereon, because of defendant's minority, does not Involve title. State v. Gawronskl [Mo.] 78 S. W. 807. A proceed- ing to set aside a special tax bill as a cloud on title does not involve title. Smith v. Weatpert, 174 Mo. 394, 74 S. W. 610. 41. Whether certain lots were subject to lien of trust deed. Williams v. Spltzer, 203 111. 505, 68 N. E. 49. Foreclosure of mort- gage. Garber v. Garber, 66 Kan. 791, 72 P. 267. See 1 Curr. L. 107, n. 66. 42. Kellogg Newspaper Co. v. Corn Belt Nat. Bldg. & L. Ass'n, 105 111. App. 62. 43. Bybee's Ex'r v. Poynter, 25 Ky. L. R. 1251, 77 S. W. 698; Bishop v. Matney, 25 Ky. L. R. 1777, 78 S. W. 856. Vendor's lien. Car- ter V. Farthing, 24 Ky. L. R. 1927, 72 S. W. 745. Mechanic's lien. Fowler v. Pempelly, 25 Ky. L. R. 616, 76 S. W. 173. 44. Rhodes v. Frankfort Chair Co., 26 Ky. L. R. 2042, 79 S. W. 768. 45. Reed v. Colp [Mo. App.] 74 S. W. 422. Citing Nearen v. Bakewell, 110 Mo. 645, 19 S. W. 988; Overton v. Overton, 131 Mo. 559, 33 S. W. 1; Scheer v. Scheer, 148 Mo. 448, 50 S. W. Ill; Bouner v. Lisenby, 73 Mo. App. 562. 4«. Christopher v. People's Home & Sav. Ass'n [Mo.] 79 S. W. 899. 47. Eubank v. Finnell [Mo. App.] 73 S. W. 354. 3 Cur. Law. APPEAL AND REVIEW § 4C 13. 187 (§ 4C) 10. Validity of a franchise*^ confers jurisdiction on the highest court of most states regardless of the amount involved.*' Denial of a mandamus on the sole ground that the franchise of the corporation applying for it has ex- pired, involves a question of franchise, and gives the supreme court jurisdiction of an appeal therefrom,"" but no franchise is involved in mandamus to compel a street railway company to lower its tunnel under a river."^ (§ 4C) 11. Prolate and administration^^ orders are usually appealable,"" and where* there is an appeal from the judgment in a contest over the probate of a will, an appeal lies from an order denying the motion for a new trial."* (§ 4C) 13. Banhruptcy matters.^^ — The disposition by the district court of a fund surrendered by a mortgagee to a trustee in bankruptcy, subject to the mort- gagee's lien, is reviewable on matter of law in the circuit court of appeals on petition therefor,"" and an order denying the trustee's motion to expunge a claim allowed, unless further preferences were surrendered, and directing a return of a preference previously surrendered is appealable."^ (§ 4C) 13. The jurisdictional amount, '^^ as prescribed by statute or con- stitution, must be involved,"' excluding costs"" and interest,"^ except where inter- est is recoverable as a part of the damages, in which case it is a part of the "amount in controversy.""^ An appeal, however, will lie from a judgment in effect enforcing the judgment of the supreme court, though the amount in con- troversy is less than the jurisdictional amount, since an appellate court should in- terpret its own "judgmentsj"^ and an appeal lies to the court of appeals, in Colo- rado, from a final judgment of a court of record in a civil case, regardless of the amount of the judgment."* The constitutional provision that the supreme court of appeals, in Virginia, may have jurisdiction in civil cases involving not less than $300 is not self executing."" Eeal, and not fictitious amounts, are the test of jurisdiction,"" the evidence 48. See 1 Curr. L.. 107. 49. Street railway. Indiana R. Co. v. Hoff- man, 161 Ind. 593, 69 N. E. 399. 50. Iron Silver Min. Co. v. Cowie, 31 Colo. 450, 72 P. 1067. 51. Either of the company or the city. People V. "West Chicago St. R. Co., 203 111. 551, 68 N. B. 78. 52. See 1 Curr. L. 107. 53. Decree accepting report of commis- sioners on claims not subject to collateral attack for fraud, being appealable. Judge of Probate v. Lee [N. H.] 56 A. 188. Order dismissing contest over proved will is ap- pealable. Mahoney v. Superior Court of San Francisco, 140 Cal. 613, 74 P. 13. A judgment or order refusing to revoke the probate of a will is appealable [Code Civ. Proc. § 963 as amended 1901]. Hartmann v. Smith, 140 Cal. 461, 74 P. 7. 54. Hartmann v. Smith, ■ 140 Cal. 461, 74 P. 7. 55. Petition In bankruptcy court assert- ing lien on specific property, held a bank- ruptcy proceeding under § 2, o. 7, within meaning of 5 25, regulating appeals in bank- ruptcy proceedings, and not appealable inde- pendently, not being within 5 25a "a judg- ment allowing or rejecting a debt or claim of $500 or over." Hutchinson v. Otis, 190 U. S. 552, 23 S. Ct. 778. Jurisdiction of supreme court of appeals in bankruptcy cases from circuit court of appeals. Hutchinson v. Otis, Wilcox & Co. [C. C. A.] 123 F. 14. See 1 Curr. L. 107, n.- 69. 66. In re Antigo Screen Door Co. [C. C. A.] 123 F. 2^9. 57. Livingstone v. Heineman [C. C. A.] 120 F. 786. 58. See 1 Curr. L. 107, n. 80. 59. $100 in West Virginia. Brightwell v. Bare, 52 W. Va. 375, 44 S. E. 160. $200 ex- clusive of Interest and costs, in Kentucky. Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 79 S. W. 768. Intervener prejudiced only to the extent of $50 cannot appeal. Newton v. Johnson Bros., 25 Ky. L. R. 653, 76 S. W. 161. 60. Costs allowed a commissioner are ex- cluded. Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 79 S. W. 768. See 1 Curr. L. 108, n. 81. 61. Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 79 S. W. 768. The amount due at the time of bringing the suit, unaffected by subsequent accumulations of interest is decisive. Murphy v. Murphy, 207 111. 250, 69 N. E. 966. 62. Western Union Tel. Co. v. Noland [Tex. Civ. App.] 77 S. W. 1031. Interest which would necessarily accrue may be added to make up the jurisdictional amount. Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. B. 322. 68. State v. New Orleans Debenture Re- demption Co. [La.] 36 So. 205. 64. Judgment for costs only is appeal- able. Crebbln v. Shinn [Colo. App.] 74 P. 795. 65. Flanary v. Kane [Va.] 46 S. E. 312. 66. Beasley v. Glassell, 110 La. 230, 34 188 APPEAL AND EEVIEW § 4C 13. 3 Cur. Haw. being looked to to determine the question, irrespective of the allegations of the pleadings,"^ and where the evidence plainly shows the matter involved to be worth more than the Jurisdictional amount, Jurisdiction is sustained, though there is no averment as to the amount involved in the pleadings.^^ The right, however, is ■fixed by the pleadings rather than by the amount of the final Judgment,*' though in Colorado, the amount of the Judgment rather than the amount in controversy controls.'"' The existence, however, of the Jurisdictional amount must in some manner appear,^^ and where sufficient damages are alleged to give thte appellate court Jurisdiction, the court cannot say that a portion of such allegations is merely colorable, and that no recovery thereon could be had.'^ The amount claimed by a dismissed set-off, plus the plaintiff's recovery, de- termines the amount in controversy on defendant's appeal,^' and the amount claimed and recovered, for a wrongful death, and not the statutory amount recoverable controls.'* The Jurisdictional amount is not involved by a dispute as to the right of a party to pay $1 poll tax in a particular manner," and where on motion to correct the Journal entry, provisions for interest and costs are taken from the Judgment, proceedings in error therefrom involve only the amount of such pro- visions." Where the original complaiat is for an amount in excess of the Jurisdictional amount, an amendment, before trial, procured by defendant, withdrawing the ex- cess, will not deprive the defendant of his right of appeal," and failure to request the submission of the issue of defendant's counterclaim will not amount to an abandonment of it, and deprive the court of Jurisdiction, where there is no aver- ment that it was interposed fraudulently to give Jurisdiction." In succession proceedings, in Louisiana, the value of the entire succession deterniines appealability," but elsewhere, claims against an estate are separate, and appealability is determined by the amount of each;*" though a decree against distributees for a debt of their decedent involves the whole amount of the debt, and the distributees may appeal, regardless of the amount decreed against each," So. 424. In determining the jurisdiction of the supreme court on appeal from the appel- late court of Illinois, the amount Involved Is determined by the evidence. Garden City- Sand Co. v. American Ref. Crematory Co., 205 111. 42, 68 N. B. 724. 67. Beasley v. Glassell, 110 Da. 230, S4 So. 424. 68. State V. Board of Pharmacy, 110 La. 99, 34 So. 159. 6S». Attachment for more than $50 levied on property worth less, and Judgment for less In favor of plaintiff Is appealable to superior court. Padgett v. Ford, 117 Ga. 308, 43 S. B. 1002. A demurrer to an an- swer claiming a certain sum admits the sum named to be due and may be regarded as the amount In controversy, though the petition claims, and judgment is rendered for a less sum. Richart v. Goodpaster, 25 Ky. L. R. 889, 76 S. W. 831. 70. Splaln V. Cripple Creek Mine & Sup- ply Co., 31 Colo. 192, 72 P. 1060. 71. Where the form of procedure below does not require that the record or evidence show the amount or value In controversy, and It does not appear therein, affidavits may be filed In the supreme court to show a value giving jurisdiction (Hannah v. Charleston Nat. Bank, 53 W. Va. 82, 44 S. B. 152), but a claim presented against the estate of a decedent U not controlled by the statement in claimant's affidavit for a continuance aa to what an absent witness will testify (Hall V. Hale's Estate, 202 111. 326, 66 N. B. 1060). The fact that defendant in an expropriation suit appealed to the supreme court cannot be accepted as evidence of the value of the matter in dispute, there being no showing of value in the record. City of Ne-w Orleans v. Contonlo, 11 La. 545, 35 So. 740. 72. Sanger v. Chesapeake & O. R. Co. [Va.] 45 S. E. 750. 73. Unless the set-off is not a proper one. Montgomery v. Montgomery, 25 Ky. L. R. 1682, 78 S. "W. 465. 74. Marsh v. Kansas City Southern R. Co. [Mo. App.] 78 S. W. 284. 75. State v. Sanders, 111 La. 188, 3S So. 509. 76. Edinburgh Lombard Inv. Co. v. Cooper [Kan.] 75 P. 488. 77. Taylor v. Spokane Palls & N. R. Co., 32 Wash. 450, 73 P. 499. 78. Western Union Tel. Co. v. Carver [Tex. Civ. App.] 74 S. W. 55. 79. Where the entire succession involves over $2,000 the court has jurisdiction. Suc- cession of Bothick, 110 La. 109, 34 So. 163. 80. Corporation undergoing liquidation. Albany Mill Co. v. Huff Bros., 24 Ky. L. R. 2037, 72 S. W. 820. Decedent's estate. Cox v. Hlgglnbotham's Adm'r, 25 Ky. L. R. 1067, 76 S. W. 1079. 3 Cur. Law, APPEAL AND EEVIEW 8 4C 14. 189' and an appeal by executors from a decree requiring them to pay out legacies in- volves the total amount to be paid out, rather than the amount of each legacy.*" In a bill to enforce the liability of stockholders for corporate debts, the liability of each stockholder, and not the liability of all, determines the amount in con- troversy.*' Where expenses and costs are taxed half to plaintiff and half to de- fendant, the amount in controversy so far as either party is concerned, is half the total amount taxed.** In replevin the amount involved is the value of the property, though defend- ant appellant prayed judgment for costs only,*' but a suit for the possession of personal property by the owner against a lien claimant, in which the owner is successful, involves on appeal only the amount of the lien claimant's claim.** In an action for a breach of warranty of an article, the damages alleged, and not the value of the article alleged, furnish the basis of recovery.*^ More than the $5,000 necessary to give the supreme court jurisdiction of an appeal from the court of ap- peals of the District of Columbia is involved, where the relief demanded is the conveyance of a strip of land of slight value, or in the alternative to have the con- tract rescinded and be repaid the $6,000 paid for the whole. tract.** (§ 4C) 14. Review of intermediate appecds.^' — No appeal lies to the su- preme court from a decision of a circuit court of appeals, rendered on a petition to revise, in matter of law, the proceedings of a district court in bankruptcy,'" and an appeal to the supreme court lies from a decision of the circuit court of appeals allowing or rejecting a claim against a bankrupt estate, only on a certificate of a justice of the supreme court, or where the amount in controversy exceeds $3,000, and the question involved is one which might have been taken on appeal or error from the highest court of a state to the supreme court.'^ No appeal lies to the court of appeals of the District of Columbia in a case tried de novo in the supreme court on appeal from a justice of the peace.®" In Illinois, in actions ex contractu or ex delicto, if the damages sought are speculative in character and not capable of direct proof, and the damages are $1,000 or over, as shown by the judgment, an appeal lies to the supreme court from the appellate court without a certificate of error,®* but where the damages are susceptible of direct proof and the judgment does not exceed $1,000, no appeal lies."* A suit to enjoin the collection of a judgment is not to recover money or chattels, and an appeal lies, though the judgment is less than $1,000, and no certificate of importance has been granted.*" An appeal lies in Indiana, from the appellate to the supreme court, only when the amount in controversy exceeds $6,000,®* and actions within the jurisdiction of a justice of the peace are appealable neither to the supreme nor the appellate court, in the absence of certain questions.*' 81. Smith V. Moore [Va.] 46 S. B. 326. 82. Ginter's Ex'rs v. Shelton CVa.] 46 S. 83. Garden City Sand Co. v. American Refuse Crematory Co., 205 111. 42, 68 N. B. 724. 84. Nevian v. Herr, 25 Ky. I* R. 1476, 78 S. W. 137. 85. Gila Valley, G. & N. R. Co. v. Gila County [Ariz.] 71 P. 913. 86. Blank v. Powell [Kan.] 75 P. 486. 87. Bverette Piano Co. v. Bash, 31 Ind. App. 498, 68 N. B. 329. 88. Shappirio v. Goldberg, 192 U. S. 232, 24 S. Ct. 259. 89. See 1 Curr. L. 110. 90. 91. Hutchinson v. Otis, Wilcox & Co. [C. C. A.1 123 F. 14. 92. D. C. Code, SS 82, 226. Groffl v. Miller, 20 App. D. C. 353; Key v. Roberts, 20 App. D. C. 391. 93. North Chicago St. R. Co. v. Cossar, 203 111. 608, 68 N. E. 88; Garden City Sand Co. V. American Refuse Crematory Co., 205 in. 42, 68 N. B. 724. 94. Bank of Commerce v. Miller, 202 111. 410, 66 N. B. 1039. 95. Torsell V. Blffert, 207 111. 621, 69 N. B. 761. 96. Suit involving partition of real es- tate, in which no money Judgment was ren- dered, not appealable. Burke v. Barrett, 161 Ind. 416, 68 N. B. 896. 97. Bverette Piano Co. v. Bash, 31 Ind. App. 498, 68 N. E. 329; Baltimore & O. S. W. 190 APPEAL AND EEVIEW § 4G 15. 3 Cur. Law. Certiorari will not lie from the supreme court of Colorado to review a deci- sion of the court of appeals, except in cases where the court is without jurisdiction or has ignored decisions of the supreme court.** (§ 4C) 15. Federal review of state or territorial decisions'" will lie if there is a Federal question, but it must be a real and meritorious and not a fictitious one.^ The claim of Federal right must have been specially set up,* and denied in the state court,' or at all events, it must appear from the record, by clear and neces- sary intendment, that the Federal question was directly invoked -so that the state court could not have given judgment without deciding it.* If the decision of the state court rests on an independent ground, one which does not necessarily in- clude a determination of the Federal right claimed, or upon a groimd broad enough to sustain it without deciding the Federal question raised, the supreme court has no jurisdiction to review the judgment of the state court.' But where a Fed- eral question is fairly presented, the jurisdiction attaches, though the state court assumes to base its decision on a stste. question, where the decision as to whether there is a Federal question involves the merits,^ or it is apparent that the state question was injected for the purpose of denying the Federal right.^ A personal as distinguished from an official interest is necessary to enable a party to invoke the jurisdiction of the supreme court to review the judgment of a state court.* Illustrative cases showing Federal questions are collected below." R. Co. V. Harmon, 161 IJid. 358, 68 N. E. S89. 98. People V. Court of Appeals [Colo.] 75 P. 407. 09. See Jurisdiction, 2 Gurr. L. 613. 1, That refusal to allow filing of supple- mentary answer is taking without due pro- cess presents none. Sawyer v. Piper, 189 U. a. 154, 23 S. Ct. 633, 47 Law. Ed. 757. a, Onondaga Nation v. Thacher, 189 U. S. 306, 23 S. Ct. 036, 47 Law. Ed. 826; Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359. As- serted too late on petition for writ of error in Federal court. Wabash Railroad v. Flan- nigan, 192 U. S. 29, 24 S. Ct. 224. Raised in time on motion for rehearing below, the state court entertaining and deciding the motion. Leigh v. Green, 193 V. S. 79, 24 S. Ct. 390; citing Mallett v. State, 181 U. S. 589, 21 S. Ct. 730, 45 Law. Ed. 1015. Failure to specifically claim right below prevents review here, notwithstanding discussion thereof by state court. Howard v. Fleming, 191 U. S. 126, 24 S. Ct. 49. See 1 Curr. L. Ill, n. 46. 3. Giles V. Teasley, 193 U. S. 146, 24 S. Ct 359. Citing Sayward V. Denny, 158 U. S. 180, 15 S. Ct. 777, 39 L. Ed. 941; Hoyt V. Shelden, 1 Black. 518, 17 L. Ed. 65; Max- well V. Newbold, 18 How. 511, 15 L. Ed. 506. 4. Giles V. Teasley, 193 U. S. 146, 24 S. Ct. 359. 5. Giles V. Teasley, 193 U. S. 146, 24 S. Ct 359. Citing New Orleans v. New Orleans Water Works Co., 142 U. S. 79, 12 S. Ct. 142, 35 Law. Ed. 943; Bustls v. Holies, 150 U. S. 361 14 S. Ct. 131, 37 Law. Ed. 1111; Dower v. Richards, 151 U. S. 658-666, 14 S. Ct. 462, 38 Law. Ed. 305-308; Wade v. Lawder, 165 tr. S. 624-628, 17 S. Ct. 425, 41 Law. Ed. 851. Denial to negro of right to register as voter under state constitution. Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359. 6. Citizens' Bank of Louisiana v. Parker, 192 U. S. 73, 24 S. Ct. 181. 7. Striking pleading raising question un- der local practice for prolixity. Rogers v. State of Alabama, 192 IT. S. 226, 24 S. Ct. 257. 8. That costs were rendered against him personally will not confer jurisdiction. Smith V. Indiana, 191 U. S. 133, 24 a Ct. 51. 0. (tuestloss held Federal: Whether a Federal judgment has been given due force and effect in a state court. Deposit Bank V. Frankfort, 191 U. S. 499, 24 S. Ct. 154. The denial of credit to an Indiana judgment in Kentucky because service was had on the Ohio river raises a Federal question on the Virginia compact, defining the jurisdic- tion of the states having the river for a boundary. Wedding v. Meyler, 192 U. S. 573, 24 S. Ct. 322. Whether right of mortgagees of railroad company to reorganize the cor- poration after foreclosure is a contract. Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 24 S. Ct. 310. Q,iiestlons held not Federal i Extent of power of a public officer to question consti- tutionality of state statute as excuse for refusal to enforce it. Smith v. Indiana, 198 U. S. 138, 24 S. Ct. 51. Whether state has exempted persons or corporations from state tax. Missouri v. Dockery, 191 U. S. 165, 24 S. Ct. 53. The right of a carrier to limit its common-law liability is not Federal. A state court may administer the common law as it sees fit, notwithstanding adverse decisions in the Federal courts. Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 24 S. Ct. 132. Decision that conspiracy to defraud is a common-law offense is not, nor can supreme court pass upon sufficiency of indictment. Howard v. Fleming, 191 U. S. 126, 24 S. Ct. 49. Where the levy of a merchant's privilege tax violates no Federal right, the mere determination of who are merchants within the law in- volves no Federal question. American Steel & Wire Co. V. Speed, 192 U. S. 500, 24 S. Ct. 365. Whether certain waters claimed to be private are public. Wlnous Point Shooting Club V. Caspersen, 193 U. S. 189, 24 S. Ct. 3 Cur. Law. APPEAL AND KBVIEW § 4E. 191 The supreme court will review on writ of error a final decision of the supreme court of Porto Rico, where the value or sum in dispute exceeds $5,000 exclusive of costs; the circuit court of appeals act of 1891 not applying to such a case.^* The writ of error from the Federal supreme court properly runs to the court in which the judgment complained of was entered, the record remaining there and the judgment being entered on mandate from the highest court of the state.'^ (§4) D. Dependent on the parties.^' — An appeal lies to the supreme court from the circuit court of appeals where a foreign state is a party.^' No appeal lies in behalf of the state from a judgment in favor of a petitioner for registra- tion." (§ 4) E. Questions certifiable}^ — JurisdietionaP' and certain other ques- tions of law are certifiable to the Federal supreme court by the circuit court of appeals,^' and to the highest court of several of the states by inferior appellate courts. Questions of law only, and not cases, are certifiable,^' and where questions of both form and substance are raised in the lower court, the mere matters of form should be first settled below, leaving to be certified only substantial questions of law." A case docketed in the supreme court of Wyoming before the statute limit- ing the class of questions certifiable took efEect is properly before that court for determination,^" and questions whether the constitutional procedure was followed by the legislature in adopting a law and whether its subject is properly expressed in its title are constitutional questions within that act.'^ Abstract questions will not be answered, ''" i. e., if different questions in the case assume inconsistent facts,-^ nor will questions rendered immaterial by the answers to others be answered.'* 431. See 1 Curr. L. 112, ii. 59; also Jurisdic- tion, 2 Curr. L- 613. 10. B^yal Ips. Co. v. Martin, 192 U. S. 149, 24 S. Ct. 247. 11. Wedding v. Meyler, 192 U. S. 573, 24 S. Ct. 322. 12. See 1 Curr. L. 113. 13. Republic of Colombia v. Cauca Co., 190 U. S. 524, 23 S. Ct. 704, 47 Law. Ed. 1159. 14. State V. Crenshaw, 138 Ala. 50G, 35 So. 456. IB. See 1 Curr. L. 113. 10. The questions of jurisdiction certifia- ble direct to the supreme court of the Unit- ed States from the circuit court include only those involving Its Jurisdiction as a Federal court, and not questions as to the jurisdic- tion generally of courts of equity. Whether principles of comity require relinquishment on showing jurisdiction previously acquired by state court. Louisville Trust Co. v. Knott, 191 U. S. 225, 24 S. Ct. 119. Where a cause is removed from a state court, and the juris- diction is sustained, the circuit court of ap- peals cannot consider the question of juris- diction on writ of error, but will certify it to the supreme court. Pennsylvania Lum- bermen's Mut. Fire Ins. Co. v. Meyer [C. C. A.] 126 P. 352. Where the whole case is appealed to the circuit court of appeals and orrors on the merits and going to the juris- diction of the circuit court are assigned, the circuit court of appeals has jurisdiction, and can decide the jurisdictional question or cer- tify it, though the other errors are aban- doned. Wirgman v. Persons [C. C. A.] 126 F. 449. 17. A question as to the construction of a state constitution, on which there are con- flicting decisions, though none of the state supreme court, and which the circuit court of appeals is unable to determine, will be certified to the supreme court. Constitutional liability of stockholders for corporate debts [Const. Ohio, 1S51, art. 13, § 3]. Middle- town Nat. Bank v. Toledo, A. A. & N. M. E. Co. [C. C. A.] 127 F. 85. 18. A question which does not propound any question of law, but in broad terms calls upon the court to decide the whole case upon the facts stated, is not properly certifiable, and when included with others will not be answered. Whether fjlcts stated constitute a breach of the bond sued on. Poole v. Bur- net County [Tex.] 76 S. W. 425. The dis- trict court of Wyoming cannot certify the question whether a petition to which a gen- eral demurrer has been interposed states a cause of action [Rev. St. 1899, § 4276]. Jenk- ins v. City of Cheyenne [Wyo.] 73 P. 758. An order which merely finds that new and difiicult questions have arisen in the case, but failing to state what such questions are, presents no question for decision. Smith v. Healy [Wyo.] 75 P. 430. 19. Clark v. Maksoodian [R. L] 55 A. 640. 20. Laws 1903, p. 78, c. 72. State V. Ca- hill [Wyo.] 75 P. 433. 21. State V. Cahlll [Wyo.] 75 P. 433. 22. Gulf. C. & S. F. R. Co. V. Johnson [Tex.] 78 S. W. 224. 23. The court below should find which state of facts exists, and certify only the question arising therefrom. McColpin v. McColpln's Estate, 96 Tex. 560, 74 S. W. 756. 193 APPEAL AND EBVIEW § 5. 3 Cur. Law. § 5. Courts of review and their jurisdiction.^^ — Appellate tribunals derive their jurisdiction from the law, and consent of parties will not confer it;'" whence an appeal from a court that was without jurisdiction confers none,*' but where the court of first instance has jurisdiction over the subject-matter, but makes a juris- dictional error in its proceedings, an appeal will confer jurisdiction.*' Jurisdiction generally extends to only so much of the case as involves the ques- tion conferring it;^* but where one of the parties properly appeals to the court having jurisdiction as to his appeal, a cross appeal must also be taken to that court regardless of jurisdiction as to that appeal.'" Various questions respecting the jurisdiction of the courts of several states and territories are discussed in the note.'^ In Federal courts,^" the jurisdiction of the circuit court of appeals is final in all cases where the jurisdiction of the circuit court depends entirely on diversity of citizenship,'' but where the pleadings state a case arising under the eonstitu- 24. House V. Dallas, 96 Tex. 594, 74 S. W. 901. 25. See 1 Curr. L. 113. 26. Boales V. Ferguson [Neb.] 96 N. W. 337; Home Sav. & Trust Co. v. District Court of Polk County, 121 Iowa, 1, 95 N. W. 522; Hayman v. Lambden, 97 Md. 33, 54 A. 962. See Jurisdiction, 2 Curr. D. 627. 27. Bastlan v. Adams [Neb.] 97 N. W. 231. Where a justice of the peace has no Juris- diction, none Is conferred by appeal to the district court. Sims v. Kennedy, 67 Kan. 383, 73 P. 51. Where the justice has no juris- diction because suit was brought In the wrong county, the district court on appeal has none, nor can estoppel or consent con- fer It. Bailey v. Blrkhofer [Iowa] 98 N. W. 594. Failure to raise objection to the jurisdiction in the lower court will not waive it, since consent cannot confer juris- diction. Mansfield v. Mansfield, 203 111. 92, 67 N. B. 497. 28. Inquisition of lunacy before clerk. In re Anderson, 132 N. C. 243, 43 S. E. 649. 29. Validity of statute. Henry v. Thurs- ton County, 31 Wash. 638, 72 P. 488. Valid- ity of tax. Burguieres v. Sanders, 111 La. 109, 85 So. 478. See Jurisdiction, 2 Curr. L. 627, n. 25. 30. Snoqualml Realty Co. v. Moynlhan [Mo.] 78 S. W. 1014. 31. By reason of the saving clause In the act of congress reconstructing tire judi- cial system of Alaska, the right is conserved to prosecute all pending actions to final judgment, either under the old or the new law [31 St. 552, c. 786, § 368]. Shoup v. Marks [C. C. A.] 128 F. 32. The suit had been removed from the district court to the supreme court of the United States on writ of error. Id. In Colorado, the supreme court will have jurisdiction of a cause trans- ferred from the court of appeals only In case It would have had jurisdiction on direct ap- peal to that court. Currier v. Clark, 31 Colo. 126, 72 P. 55. The supreme court of Colo- rado has no jurisdiction of an appeal from the judgment of the county court quashing a certiorari to the judgment of a justice of the peace, there being no constitutional ques- tion, franchise or freehold involved. LolofC V. Heath, 31 Colo. 170, 71 P. 1112. In divorce cases In Colorado, the appeal lies to the su- preme court, but where the suit is for sep- arate maintenance only and the alimony awarded is less than the jurisdictional amount of that court, the appeal lies only to the court of appeals. Mitchell v. Mitchell, 31 Colo. 209, 72 P. 1054; Fahey v. Fahey [Colo.] 74 P. 884. The supreme court of Creorsia has jurisdiction to review the Judg- ments of the city court of Balnbrldge on direct writ of error. Alabama Midland R. Co. V. E. Swindell & Co., 117 Ga. 883, 45 S. B. 264; Fordham v. A. Ehrllch & Bro., 117 Ga. 883, 45 S. E. 264. The appellate court In Illinois has no Jurisdiction of an appeal In a drainage case. In re McCaleb, 105 111. App. 28. In Indiana, cases are transferred from the appellate to the supreme court. Irrespect- ive of the questions Involved, where there Is a disparity in the number of cases pend- ing In the two courts [Burns' Rev. St. 1901. § 1337u]. Emmons v. Harding [Ind.] 70 N. B. 142. The court of appeals of the Indian Territory has no jurisdiction of an appeal from an order of the district court taxing the costs In an Indian citizenship case [Act June 30, 1896, c. 398, 29 St. 339]. Chicka- saw Nation v. Roff [Ind. T.] 76 S. W. 101. On appeal from the clerk In Nortb Carolina, the record Is properly sent to the judge re- siding In the district, though another at that time was holding court there [Code, §S 254, 256]. Huntley v. Hasty, 132 N. C. 279, 43 S. E. 844. All appeals from the probate court In Oklahoma In probate matters must be to the district court, whether presenting questions of law only or questions of both law and fact. Carpenter v. Russell [Okl.] 73 P. 930. The court of Civil appeals of Texas has Jurisdiction of an appeal from the district court In a case originally begun be- fore a justice Involving less than ?100, though when suit was brought the appeal from the justice lay only to the county court. South- ern Kansas R. Co. v. Cooper, 96 Tex. 482, 73 S. W. 947. The Jurisdiction of the supreme court of Washington In disbarment proceed- ings Is appellate only. In re Waugh, 32 Wash. 60, 72 P. 710. The constitution of 1899, art. 5, § 2, of Wyoming, limiting the Jurisdiction of the supreme court to appeals except In specified Instances repealed, the statute authorizing an application to that court or a judge thereof to vacate or modify an injunction [Rev. St. 1899, § 4051]. Smith V. Healy [Wyo.] 75 P. 430. See 1 Curr. L. 114, n. 90. 32. See Jurisdiction, 2 Curr. L. 612, n. 27. 3 Cur. Law. APPEAL AND KEVIEW § 6B. 193 tion or a' law of the tJnited States, error will lie in the supreme court, though the averments are not sustained.'* The constitutional question must be really and substantially involved when tested by the rules of good pleading,"* but where so involved, the plaintiff is of right entitled to the decision of the supreme court, the requisite amount being involved.*' The construction as distinguished from the constitutionality of an act of congress is not a constitutional question,'' but a de- cision involving the validity of a rule of the patent oflSce draws in question "an authority exercised under the TJnited States," giving the supreme court jurisdic- tion.*' Where the jurisdiction of the Federal court depends entirely on the fact that a constitutional question is in issue, the appeal lies not to the circuit court of appeals, but direct to the supreme court,'* and an order relating wholly to the jurisdiction of the circuit court is appealable direct to the supreme court.*" The jurisdictional question need not be one of exclusively Federal nature, but may be one which is common to all courts.*^ The Federal supreme court does not consider itself boimd as to a question of jurisdiction, because it may have exercised juris- diction in a case where the question might have been raised, but passed sub silen- tio.*'' The determination of the question whether a corporation is engaged prin- cipally in mercantile and manufacturing pursuits so as to be within the bankruptcy act is within the jurisdiction of the district court, and an appeal therefrom lies to the circuit cotirt of appeals rather than to the supreme court.*' § 6. Bringing up the cause. A. General nature and mode of practice.** — Unlike error, appeal is a continuation of the suit below, and is governed as to its procedure by the law in force at the time the suit was begun,*" and the right of appeal being statutory, the requirements of the statute governing and regulating it must be strictly complied with.*' (§6) B. Time for instituting and perfecting." — Appeals must be prayed for,*' or taken within the time limited by statute,*' but failure to perfect an appeal 33. "Warner v. Searle & Herett Co., 191 U. S. 195, 24 S. Ct. 79; Arbuckle v. Black- burn, 191 U. S. 406, 24 S. Ct. 148. A case begun in state court by a trustee In bank- ruptcy, and removed to Federal court by defendant on ground of diversity of citizen- ship, is in the Federal court as if it had been originally begun there on that ground, and not as if it had been commenced there by consent of defendant under section 23 of the bankruptcy act. Spencer v. Duplan Silk Co., 191 U. S. 526, 24 S. Ct. 174. 34. Trade-mark case. Warner v. Searle & Hereth Co., 191 U. S. 195, 24 S. Ct. 79. 35. Construction merely as distinguished from the constitutionality of a state law is not Federal. Arbuckle v. Blackburn, 191 U. S. 406, 24 S. Ct. 148. Where plaintiff relies wholly on common-law right, and defendant invokes constitution and laws of U. S. cir- cuit court of appeals, decision is final. Spen- cer V. Duplan Silk Co., 191 U. S. 526, 24 S. Ct. 174. The fact that the suit involves the relation^ of the government with a railroad company is immaterial. Suit to recover for value of registered mall package lost by railroad's negligence. Bankers' Mut. Casu- alty Co. V. Minneapdlis, etc., R. Co., 192 U. S. 371, 24 S. Ct. 325. 36. Revenue law. Spreckles Sugar Refin- ing Co. v. McClaln, 192 U. S. 397, 24 S. Ct. 376. 37. Arbuckle v. Blackburn, 191 U. S. 405, 24 S. Ct. 148. ■ Revenue law. Spreckels Sugar Refining Co. v. McClaln, 192 U. S. S97, 24 S. Ct. 376. 3 Curr. Law — 13 38. U. S. V. Allen, 192 U. S. B43, 24 S. Ct. 416. 39. Appeal from Hawaii court. Wright v. MacFarlane & Co. [C. C. A.] 122 F. 770. 40. Application for leave to file bill of review denied on the merits as well as on jurisdictional grounds is not Jurisdictional, so as to oust jurisdiction of the circuit court of appeals. Board of Councilmen of Frank- fort V. Deposit Bank [C. C. A.] 124 F. 18. The question whether diversity of citizenship exists so as to vest jurisdiction In the cir- cuit court cannot be passed upon by the cir- cuit court of appeals [Act Mch. 3, 1891, § 6]. Sun Print. & Pub. Ass'n v. Edwards [C. C. A.] 121 F. 826. 41. St. Louis Cotton Compress Co. v. American Cotton Co. [C. C. A.] 125 F. 196. 42. Louisville Trust Co. v. Knott, 191 D. S. 225, 24 S. Ct. 119. 43. Columbia Iron Works v. National Lead Co. [C. C. A.] 127 F. 99. 44. See 1 Curr. L. 115, 45. Hays v. Olentangy Park Co., 24 Ohio Circ. R. 354; Cooley v. Pennsylvania R. Co., 40 Misc. 239, 81 N. T. S. 692. 46. Appeal from probate to supreme judi- cial court. Bartlett v. Slater, 183 Mass. 152. 66 N. B. 631; Appeal of Abbott, 97 Me. 278. 54 A. 755; Featherman v. Granite County, 28 Mont. 462. 72 P. 972; Cornell v. Matthews, 28 Mont. 457, 72 P. 975; Hilts v. Hilts, 43 Or. 162, 72 P. 697. 47. See 1 Curr. L. 115. 48. Five days. Mills' Ann. Code, J 388. 194 APPEAL AND EEVIBW §,6B. 3 Cur. Law. during the term specified in the notice is not jurisdictional,'" though failure to perfect within the time limited by statute is.°* The West Virginia statute of 1901 shortening the time to appeal from a de- cree did not retroact on decrees previously rendered/^ and the 30 day period pre- scribed by the act of 1903 in Washington, as applied to judgments previously en- tered, began to run on the day the act took effect, and not on the day the judg- ment was rendered.^' An appeal is "taken" when notice of intention to appeal is served.'* And proceedings in error are deemed commenced at the date of volimtary appearance when no summons in error is issued."^ Under the express provision of the code in California an exception to the de- cision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment."' The date of the decree or judgment, as shown by the record, marks the time when limitations on the right of appeal begin to run,"^ and the recital in the Best V. Rocky Mountain Nat. Bank, 31 Colo. 474, 73 P. 845; Van Buskirk v. Baloh [Colo. App.] 74 P. 792. 49. Sixty days. Code Civ. Proo. , 5 1715. In re Campbell's Estate, 141 Cal. 72, 74 P. 550. Sixty days. Code Civ. Pro. § 1723. Ap- peal from order refusing new trial. Powell V. May [Mont.] 74 P. 80. Six months. In re Pittsburg Wagon Works' Estate, 204 Pa. 435, 54 A. 359; Henderson v. Barnes [Utah] 75 P. 759. Six months In chancery cases [Laws 1893, p. 61, c. 4130]. Hodges v. Moore [Pla.] 35 So. 13. One year. Robson v. Col- son [Idaho] 72 P. 951; McCrea v. McGrew [Idaho] 75 P. 67; Durand v. Hlggins, 67 Kan. 110, 72 P. 567. Bankruptcy. Williams Bros. V. Savage [C. C. A.] 120 P. 497. Trial on Apr. 5, appeal taken Apr. 7, ' is within 3 days. Forsythe v. Huey, 25 Ky. L. R. 147, 74 S. W. 1088. An appeal from an assess- ment of the board of mercantile appraisers in Pennsylvania must be taken within ten days [Act Apr. 11, 1862, Act May 2, 1899]. Com. v. Vetterlein, 21 Pa. Super. Ct. 587. An appeal from an order vacating a town or village plat must be taken within 30 days. Koochiching Co. v, Franson [Minn.] 98 N. W. 98. Apr. 2Sth after March 28th Is not "within 30 days." Lyklns v. Steele, 25 Ky. L.. R. 636, 76 S. W. 39. An appeal from a judgment dismissing a petition for manda- mus must be taken within 30 days, in Ala- bama [Code 1896. § 2827]. Smith v. Gordon, 138 Ala. 181, 35 So. 58. In Wisconsin, the dismissal of an appeal from a decision of a county board disallowing a claim is an order, and not a Judgment, and therefore must be appealed from within 30 days from service of notice of entry thereof [Rev. St. ,1898, §5 2882, 3039, 3042]. Bills V. Barron County [Wis.] 98 N. W. 232. An order ad- judging that plaintiff shall pay the expenses of a receivership Is a "filial order In an ac- tion" and appealable within one year, and not an order "with respect to a receiver- ship" appealable for only 60 days. State v. District Court of Second Judicial Dlst. .[Mont.] 72 P. 613. In Louisiana a nonresl- jdent plaintiff, appearing as such on the rec- i ord. can appeal at any • time within two years from the rendition of the judgment. Code Prac. art. 593. The universal legatee of one of the partners, plaintiffs, though a nonresident, cannot take advantage of this section. Blum & Co. v. Wyly [La.] 36 So. 202. There being no express statutory lim- itation or rule of court fixing the time with- in which a petition for review of an order of bankruptcy may be filed, the fact that it is not filed within six months is not con- clusive ground for dismissal. In re Groetz- inger & Sons [C. C. A.] 127 F. 124. Where the statute allows 15 days In which to ap- peal, appellant has the whole of the fifteenth day. Hewitt v. Root, 31 Wash. 312, 71 P. 1021. Appeal from judgment and an appeal from order refusing a new trial taken at the same time constitute one appeal, and the appeal as to new trial will not be dismissed because not filed within 60 days. MoVay v. Bridgman [S. D.] 97 N. W. 20. 50. Hoff V. Shockley [Iowa] 98 N. W. 573. See 1 Curr. L. 116, n. 23. 51. Mills' Ann. St. § 2432. Irrigation cases. Needle Rock Ditch Co. v. Crawford Clipper Ditch Co. [Colo.] 75 P. 424. See 1 Curr. L. 116, n. 23-25. B2. Acts 1901, p. 164, c. 78. Despard v. Despard, 53 W. Va, 443, 44 S. E. 448. 63. Laws 1903, p. 74, c. 59, § 4. Rogers V. Trumbull, 32 Wash. 211, 73 P. 381. B4. Saverance v. Lockhart, 66 S. C. 639, 45 S. E. 83. C5. In re James' Estate [Neb.] 97 N. W. 22. 50. Code Civ. Proc. 5 939. Gilbert v. Kel- ly, 138 Cal. 689, 72 P. 344; Sather Banking Co. V. Briggs Co., 138 Cal. 724, 72 P. 352; Dodge V. Carter, 140 Cal. 663, 74 P. 292; Thomas v. Northwestern Mut. Life Ins. Co., 142 Cal. 79, 75 P. 665. See 1 Curr. L. 116, n. 18. 57. Cresap v. Cresap [W. Vsi.] 46 S. B. 582. The time dates from the day on which the clerk's journal entry of the order for judgment was made. Groendyke v. Mus- grave [Iowa] 99 N. W. 144. Limitations be- gin to run against the right to appeal from a probate order from the date of Its entry. Death of contestant and lack of some one to represent him are Immaterial. In re Tur- ner's Estate, 139 Cal. 85, 72 P. 718. The running of the time for appeals from inter- locutory orders Is not postponed to the time 3 Cur. Law. APPEAL AND EEVIEW § 6B. 193 record of the date of hearing and rendition of the judgment is conclusive." An amended judgment is appealable within the statutory period after amendment,"* and a motion for new trial/" or other review ordinarily suspends the time pend- ing decision of the motion."^ Under a statute limiting the right of appeal to a certain period after service of notice of the' entry of the order, the time begins to run only on service of the order,®^ and delivery of the original order to defendant's attorney, with the date of its filing marked thereon, is not suflBcient."* An appeal is premature if brought before a final determination is had, or if the judgment be incomplete,'* though the other party has appealed,'" but the judg- ment need not have been filed," and the right of appeal is not held in abeyance by the successful party's having an improper judgment entered and making a motion to correct it." In a creditors' suit to convene the creditors of an insolvent cor- poration, a creditor whose debt, or its lien, is by a decree disallowed, may appeal without awaiting further action of the court as to debts of other creditors." "Fast" or "accelerated procedure."'^ — An order dissolving, vacating, or modi- fying an interlocutory injunction and appointment of receiver is not reviewable by "fast" writ of error.'" Delays and extensions.''^ — The courte ordinarily can allow an appeal after the time limited in a proper case,''' and provisions for extensions of time to appeal are the Judg-inent roll is actually made up. Dore V. Klumpke, 140 Cal. 356, 73 P. 1064. The limitation as to the time for appeal begins to run when the judge gives his decision, and not the time "when the judgment file ia made out and signed. Appeal of Bulkeley [Conn.] 57 A. 112. An appeal taken within the stat- utory period after the iirst appealable judg- ment or order is entered is In time, and will bring up the finding of fact on which it is based. Rush v. Lake [C. C. A.] 122 F. 561. An appeal taken within the statutory period after the judge makes and files his findings is seasonable, though no request for find- ings was made within the statutory period. Appeal of Bulkeley [Conn.] 57 A. 112. Where the defendant dies before decision but after submission of a case, an appeal taken within the statutory period after the filing of the judgment, after his administrator was sub- stituted a party is in time, though the judg- ment contained an order tliat it be filed nunc pro tunc as of the date of submission of the case. De Leonis v. Walsh, 140 Cal. 175, 73 P. 813. 58. Appeal of Bulkeley [Conn.] 57 A. 112. 5». In re Potter's Estate, 141 Cal. 350, 74 P. 986. See 1 Curr. L.. 116, n. 31. 60. Where proceedings subsequent to de- nial of motion for new trial are not pre- served, the time to appeal is calculated from that denial. Bonanza Lead Min. Co. v. Huff, 66 Kan. 786, 71 P. 849. Where it was stipu- lated that a motion for new trial should be considered as if the Judgment had not been rendered, the time to appeal did not be- gin to run until the entry of the order on the motion. Prospectors' Development Co. v. Brook, 32 Wash. 315, 73 P. 376. The mak- ing of an unnecessary motion for new trial will not extend the time within which an appeal may be taken. Appeal from probate court. Stewart v. Kendrick [Okl.] 73 P. 299. See 1 Curr. L. 116, n. 32. 61. Party cannot enlarge statutory period by filing bill of review on objection avail- able at original hearing. In re Sherwood's Estate, 206 Pa, 456, 56 A. 20. Where after expiration of the time limited, exceptions were filed on permission nunc pro tunc, and afterwards dismissed, the time for appeal began to run from the dismissal. Hinner- shitz V. United Traction Co., 206 Pa. 91, 55 A. 841. C2. Rev. St. 1898, S 3042. Thirty days. Ellis V. Barron County [Wis.] 98 N. W. 232. See 1 Curr. L. 117, n. 35. 03. Greenwood L. & Guarantee Ass'n v. Childs [S. C] 45 S. E. 167. 64. Judgment must be actually entered. Stein V. Goodenough, 69 N. J. Law, 635, 56 A. 701. Entry held sufficient. Moore v. Nash- viHe, C. & St. L. R., 137 Ala. 495, 34 So. 617. Trial of right of property terminating in verdict for plaintiff but judgment for costs only entered. Hannah v. Charlestown Nat. Bank, 53 W. Va. 82, 44 S. E. 152. See 1 Curr. L. 116, n. 27. 65. In re Pittsburg Wagon Works' Estate, 204 Pa. 435, 54 A. 359. 66. In Alaska. Mackay v. Fox [C. C. A.] 121 F. 487. 67. Hynes v. Barnes [Mont.] 75 P. 623. 68. Kahle v. Long Reach Oil Co., 61 W. Va. 316, 41 S. E. 233. 69. See 1 Curr. L. 117. 70. Stubbs v. McConnell, 119 6a. 21, 46 S. B. 710. 71. See 1 Curr. L. 117. 72. Mass. Rev. Laws, c. 162, ! 13. Bart- lett V. Slater, 183 Mass. 152, 66 N. B. 631. Where the judgment would bo subject to collateral attack for fraud, an appeal nunc pro tunc will be allowed after expiration of the time limited by statute. Report of county auditor settling account of treasurer. In re Zeigler's. Petition, 207 Pa. 131, 56 A. 419. 196 APPEAL AND EBVIEW S 6C. 3 Cur. Law. common," but an order enlarging the time for perfecting an appeal, made after such time has expired, is ineffectual.''* (§6) G. Affidavits and oaths.'"^ — A clerical error in the date of an afiBdavif may be corrected in the appellate court.'" An affidavit by appellant's attorney stating that the appeal is not taken for delay but in good faith is sufficient.'^ (§6) D. Notice, citation, and summons.''^ — The notice of appeal must de- scribe the judgment,''' and name the parties,'" and be served on all parties respondent whose interests will be affected by a reversal or modification,*^ especially in Indiana in vacation appeals.'^ Service on each of co-parties is not jurisdictional,*' though in such case questions prejudicial to the interests of those not served will not be considered.** Only such parties as have appeared need be served in Oregon.*' In New York, where the appeal is from a final judgment and appellant in- tends to review an interlocutory judgment or intermediate order, he must so specify in his notice of appeal.** A notice of appeal by minors by their guardian ad litem is effective, though signed by him as attorney only.*' Service on the attorney who appeared below is sufficient,** and where a firm appears for appellee above, service on them will not be rejected because only one appears as attorney of record.*" Service on an attorney who represented a deceased party before his death is insufficient,*" and a voluntary appearance and waiver of 73. Extension of time for filing bond does not extend time for filing transcript. Coal Belt Elec. K. Co. v. Kays, 207 111. 632, 69 N. E. 920. A statement by the Judge that a party has a certain length of time In which to appeal will not operate as an extension. Burke v. Wright, 75 Conn. 641, 55 A. 14. An administrator Is such a party as to be entitled, upon proper showing, to an exten- sion of time for appeal [Rev. St. 1898, § 4035]. McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489. 74. Chamberlain Transp. Co. v. South Pier Coal Co. [C. C. A.] 126 F. 165. ' 75. See 1 Curr. L. 117. 76. Viertel v. Vlertel, 99 Mo. App. 710, 76 S. W. 187. 77. Perkins v. Mason [Mo. App.] 79 S. W. 987. 78. See 1 Curr. L. 118. 79. A notice not averring from what the appeal Is taken nor showing by whom 't is signed is insufficient. Merrill v. Tlmorell [Iowa] 95 N. W. 237. A notice in replevin that the "intervenor has appealed the same" is suflSciently specific, though there were in effect two Judgments, his exception being to both so far as they affected his interests. Augustine v. McDowell, 120 Iowa, 401, 94 N. W. 918. A notice from which it may be de- termined that appellant Intends to prose- cute appeals from two orders is sufficient (MacGinniss v. Boston & M. Consol. Copper & Silver Mln. Co. [Mont.] 75 P. 89), though appeal does not lie from one of such orders (Id.). A sufilcient notice of appeal is not vitiated by a statement therein that appel- lant intends also to bring up another order made in the action. Masor v. Jacobus, 84 N. T. S. 270. A notice describing the Judgment as of the day it appears to have been ren- dered, though not filed and entered until the succeeding day, is sufficient. O'Neile v. Ternes. 32 Wash. 528, 73 P. 692. SO. Sheldon Mall v. O'Brien County Dem- ocrat [Iowa] 96 N. W. 773. Notice in case where additional parties were brought in by cross complaint held suificient. Idaho Com- stock Mln. & Mill. Co. v. Lundstrom [Idaho] 74 P. 975. A notice of appeal signed by at- torneys for parties appearing and against whom judgment was rendered is good, though the title of the action as stated therein gives the name of a defendant not served. Garrl- gan V. Kennedy [S. D.] 96 N. W. 89. Notice is not an original process and a designation of all defendants by the name of one fol- lowed by "et al" is sufficient. Philadelphia Mortg. & T. Co. V. Palmer, 32 Wash. 455, 73 P. 501. 81. Rev. St. 1887, § 4808. Tltlman V. Ala- mance Min. Co. [Idaho] 74 P. 529. Rev. St. 1898, § 3305, Amend. Laws 1899, p. 83, o. 62. Stephens v. Stevens [Utah] 75 P. 619; Faulk- ner v. Hutchins [C. C. A.] 126 F. 362. See 1 Curr. L. 118, n. 72. 82. Appeal prayed and allowed In term time, but not perfected until after term. Ashley v. Henderson [Ind. App.] 69 N. E. 469. 83. Bowman v. Besley [Iowa] 97 N. W. 60. Notice need not be served on defendants who join in the appeal. Ramsay v. Tacoma Land Co., 31 Wash. 351, 71 P. 1024. 84. Bowman v. Besley [Iowa] 97 N. W. 60. 85. Sess. Laws 1899, p. 228, 111. 1901, p. 77. In re Mendenhall's Will, 43 Or. 542, 72 P. 318. 86. Code Civ. Proc. § 1301. Koehler & Co. V. Brady, 87 App. Div. 326, 84 N. T. S. 457. 87. Noble V. Whltten [Wash.] 76 P. 95. 88. National Bank of Commerce v. Pick [N. D.] 99 N. W. 63. See 1 Curr. I* 118, n. 74. 89. National Bank of Commerce v. Pick [N. D.] 99 N. W. 63. 00. In re Turner's Estate, 139 CaL 85, 72 P. 718. 3 Cur. Law. APPEAL AND KEVIEW S 6B. 197 the issuance and service of summons in error, by defendant's attorney after defend- ant's death, confers no Jurisdiction."^ A nonresident defaulting defendant may be served by depositing the notice in the post office,'^ and an agreement that two causes pending on appeal from a justice be tried together is an appearance in both and waives notice of appeal. °° Formal service on the clerk of the trial court is not necessary, mere filing in his oflBee being sufficient."* Filing may be at any time after service and within the time limited for taking an appeal,""* and that an interval elapses after service be- fore filing is immaterial."' An appeal from the probate to the superior court in Connecticut is properly made returnable to the next return day or the next but one,"' and an appeal to the supreme court of errors next to be holden at a certain place sufficiently states the time of holding court, terms being regulated by law."* (§6) E. Application for leave to appeal, petition in error, assignments, and statements of appeal.^* — The filing of an assignment of errors before allowance of the appeal is indispensable in the circuit court of appeals. '^ In Nebraska, a peti- tion in error is indispensable to secure a review of a judgment at law,* and judg- ment will not be reversed for errors of law occurring at the trial, unless it is alleged in the petition that the court erred in overruling the motion for a new trial.' Where a statement of objections is not filed on entry of appeal from the pro- bate to the supreme court in Massachusetts, no jurisdiction is acquired and the appeal may be dismissed on motion.* The petition for a writ of error is usually required to state the errors relied on,^ and review confined to the errors assigned;' but a review of the entire case under the statute of North Dakota will not be denied because the demand there- for contains unnecessary language which may be rejected as surplusage.' An interest entitling appellant to appeal must be alleged in his motion, if it do not appear on the record.* Failure of the assignments of error to specify what court the appeal is taken to is not jurisdictional, the appeal in fact being docketed in the only court having original appellate jurisdiction.' 91. Ritchey v. Seeley [Neb.] 94 N. TV. 972 92. Rev. St. 1887, 5 4889, subd. 2. Tltlman V. Alamance Min. Co. [Idaho] 74 P. 529. 93. Morgan v. Garretson-Greason Lumber Co. [Mo. App.] 79 S. W. 997. 94. National Bank of Commerce v. Pick [N. D.] 99 N. W. 63. 95. San Francisco Law & Collection Co. V. State, 141 Cal. 354, 74 P. 1047. 96. National Bank of Commerce v. Pick [N. D.] 99 N. W. 63. 97. Such an appeal is "civil process" with- in the statute. Gen. St. 1902, S 566. Appeal of Campbell [Conn.] 56 A. 554. 98. Hayden v. Fair Haven & W. R. Co. [Conn.] 56 A. 613. 99. See 1 Curr. L. 119. 1. Rule 11 (91 F. vl, 32 C. C. A. Ixxxvlll). Webber v. Mihills [C. C. A.] 124 F. 64. Later file mark is not conclusive. Tyee Consol. Mln. Co. V. Langstedt [C. C. A.] 121 F. 709. Absence of file mark not conclusive. Moore V. Moore [C. C. A.] 121 F. 737. 2. Jarvls V. Chase County [Neb.] 97 N. W. 831. 3. Coxe Bros. & Co. v. Omaha Coal,, Coke & Lime Co. [Neb.] 94 N. W. 519; Danforth v. Fowler [Neb.] 94 N. "W. 637. 4. Bartlett v. Slater, 183 Mass. 152, 66 N. H. 631. 5. Va. Code 1887, 5 3464. Norfolk & W. R. Co. V. Perrow, 101 Va. 345, 43 S. B. 614. An assignment alleging error in the refusal of the court to give instructions is suffi- cient. Norfolk & W. R. Co. v. Perrow, 101 Va. 345, 43 S. E. 614. 6. Woodard v. Cutter [Neb.] 96 N. W. 64; Payne v. Pettibone [Neb.] 96 N. W. 117; Baden v. Bertenshaw [Kan.] 74 P. 639. As to sufHciency of facts to constitute a cause of action. Lincoln Traction Co. v. Moore [Neb.] 97 N. W. 605; Johnson v. Carlson [Neb.] 95 N. W. 788. 7. Code, 9 5630, providing for appeals In cases tried to the court. Prescott v. Brooks [N. D.] 94 N. W. 88. 8. Probate appeal. Appeal of Abbott, 97 Me. 278, 54 A. 756. 9. Emmons v. Harding [Ind.] 70 N. E. 142. 198 APPEAL AND EEVIEW § 6P. 3 Cur. Law. Errors first presented to the supreme court on rehearing of an application for a writ of error will not be considered.^" (§ 6) F. Allocatur, order for appeal, certificate}''- — Application for leave to appeal from an order will be denied whore not timely," and appeal will be disal- lov7ed for unexcused delay in filing transcript.^' Federal practice}*' — A formal order allowing an appeal is not essential, it being sufficient if the record shows that an appeal was prayed and in fact allowed.^" (§ 6) 0. Bonds, security, payment of costs; necessity}'^ — Statutes as to fil- ing of tmdertakings on appeal must be strictly complied with.^^ Administrators^' and public representatives are usually exempted from giving bond,^° but an heir is not.^° On appeal in habeas corpus, the bond required in civil actions must be given,^* but a special proceeding to contest a local option election in Texas may be appealed without bond.^^ Intervening or substituted parties appellant cannot prosecute the appeal un- der the bond given by the. original appellant,"" and where the time for filing bond after notice of appeal, and also the time for giving notice of appeal, have expired, a motion will not be granted to substitute another as plaintiff and appellant and fix a time within which bond may be filed."* The bond should be executed by appellant,"" but he need not sign the bond in an election case in Kentucky."^ An indorsement on the back of the writ of error is a sufficient bond."' The statute of 1903, iu Washington, prescribing that the appeal bond shall be served and filed with the notice of appeal, applies to all appeals taken after the act took effect, though from judgments previously rendered.-* The certificate of the giving of security is not defective because denominating it a "recognizance" instead of a "bond,""' and a certificate omitting to state that the undertaking on appeal was "properly" filed, but containing recitals from which it can be seen that it was so filed, is sufficient."* Affidavit of poverty''^ in lieu of a cost bond may be made by the party's at- torney.'" 10. George Soalfl & Co. v. State [Tex.] 74 S. "W. 754. 11. See 1 Curr. L.. 120. la. More than six months delay. Born v. Schneider, 128 F. 179. 13. Western Union Tel. Co. v. WofCord [Tex. Civ. App.] 72 S. W. 620. 14. See 1 Curr. L. 121. 16. Chamberlain Transp. Co. v. South Pier Coal Co. [C. C. A.] 126 F. 165. 16. See 1 Curr. L. 121. 17. Undertaking filed with appeal subse- quently abandoned cannot stand as under- taking on a subsequent appeal properly pur- sued. Morrison v. O'Brien [S. D.l 97 N. W. 2. 18. Michigan Mut. L Ins. Co. v. Klatt [Neb.] 98 N. W. 436. Where the adminis- trator's interest is purely personal, an ap- peal from an order dismissing void admin- istration proceedings will not be allowed without bond. Holman v. Klatt [Tex. Civ. App.] 78 S. W. 1088. See 1 Curr. L. 121. n. 34. 19. U. S. marshal, on appeal in habeas corpus. Palmer v. Thompson, 20 App. D. C. 278. Action against state for bounty. San Francisco Law & Collection Co. v. State, 141 Cal. S54, 74 P. 1047; City of Jordan v. Seattle, 29 Wash. 581, 70 P. 54. Officers of civil service commission. Corbett v. Civil Service Commission of Seattle, 33 Wash. U«, 73 P. 1116. See 1 Curr. L. 121, n. 35. 20. Such bond to be approved by Judge of probate and filed within time prescribed. Bartlett v. Frazer [Mich.] 95 N. W. 721. ai. State V. Superior Court of King Coun- ty, 32 Wash. 143, 72 P. 1040. 32. Rev. St. 1895, art. 1804u. Martin v. Mitchell [Tex. Civ. App.] 74 S. W. 565. 23, 24. Hlght V. Batley, 32 Wash. 166, 72 P. 1034. 25. The bond may be executed on appel- lant's behalf by attorney. Ramsay v. Ta- ooma Land Co., 31 Wash. 351, 71 P. 1024. An undertaking in the name of the original par- ties is sufficient. Idaho Comstock Mln. & Mill. Co. V. Lundstrum [Idaho] 74 P. 975. 28. Acts Ex. Sess. 1900, p. 40, c. 5, % 12. Keller v. Ferguson, 24 Ky. L. R. 2012, 73 S. W. 785. 27. Vincent v. Mutual Reserve Fund Life Ass'n, 75 Conn. 650, 55 A. 177. 28. Rogers v. Trumbull, 32 Wash. 211, 73 P. 381. 29. Vincent v. Mutual Reserve Fund Life Ass'n, 75 Conn. 650, 55 A. 177. 30. Code Civ. Proo. § 1739. Davidson v. Wampler [Mont.] 74 P. 82. 31. See, also, 1 Curr. L. 809. 3 Cur. Law. APPEAL AND EEVIEW § 6G. 199 Payment of costs.'" — Under the code of New York, the payment of costs im- posed by orders is not a prerequisite to appeal therefrom,"* and a party entitled to a stay of proceedings for the nonpayment of costs waives the stay by receiving and retaining from the opposite party the notices of appeal, printed papers and notice of argument."* An appeal from an order is not stayed by failure of the appellant to pay costs adjudged against him on a previous order.'" The county judge, in Nebraska, has a right to the prepayment of his fees, but he may waive it,*' and in Louisiana, on appeal by a tax collector in an action to collect a license, the clerk cannot refuse a transcript until his fees are paid.'* In Washington, an owner appealing from a judgment for the sale of lands for nonpayment of a tax must deposit the amount of the judgment and costs.'" A deposit in lieu of a bond must be preceded by an order of appeal.*" Diverse parties or orders appealed from.*^ — Where an appeal is from the judg- ment and an order denying a motion for a new trial, a single undertaking refer- ring to both is sufficient.*^ Fixing, taking and approving.*' — After an appeal has been allowed by the circuit, a judge of the court of appeals has no power to fix the amount of the appeal bond and take and approve the same.** In Texas, an appeal bond must be approved by the clerk, not the judge,*"* and a district judge cannot question a bond approved by the clerk, or entertain a motion to expunge the clerk's approval therefrom.** The judge a quo in Louisiana has jurisdiction to inquire into the solvency of sureties on an appeal bond, notwithstanding the appeal has been lodged in the supreme court, and if he finds them insolvent to dismiss the appeal.*' Sureties.*^ — A notary who is principal in an appeal bond can take the affi- davits of the sureties thereon.*" Failure of the sureties to justify within ten days renders the appeal a nullity in South Dakota. "' Exceptions to the sufficiency of the sureties must be made in the lower court in Washington.'^ The amount.^- — The bond on appeal from an order quashing an execution need not be in double the amount of the judgment on which the execution issued."' Terms and conditions.^ — An error in the recital of the date of the judgment in the bond is not fatal if it be otherwise unmistakably identified," and a bond purporting to be both an appeal and stay bond, for the proper simi, is sufficient 32. Harwell v. Southern Furniture Co. [Tex. Civ. App.] 75 S. W. S88. 33. See 1 Curr. I* 122. 34. Code Civ. Proc. J 779. Allen v. Beck- et, 85 N. T. S. 192. 35. Allen v. Becket, 85 N. T. S. 192. 38. Code Civ. Proc. § 779. Allen v. Beck- et. 84 N. T. S. 1011. 37. Drexel v. Reed [Neb.] 95 N. W. 873. 38. State v. Estoree, 110 La. 479, 34 So. 643. 38. Laws 1897, p. 180, c. 71. Schultz V. Harris, 31 V^ash. 302, 71 P. 1009. 40. Walker v. Parish of Tangipahoa, 111 La, 320, 35 So. 585. 41. See 1 Curr. L. 122. 42. Martin v. De Ornelaa, 139 Cal. 41, 72 P. 440; White v. Stevenson, 139 Cal. 531, 73 P. 421. 43. See 1 Curr. L. 122. 44. Kreyling v. O'Reilly, 95 Mo. App. 661, 75 S. W. 694. 45. 46. Hill V. Halliburton [Tex. Civ. App.] 73 S. W. 21. 47. State V. St. Paul, 111 La. 71, 36 So. 389. 48. See 1 Curr. L. 122. 49. McLean v. Roller, 33 Wash. 166, 7S P. 1123. 50. Code Clv. Proc. 1903, §3 445, 458. Don- ovan V. Woodcock [S. D.] 99 N. W. 82. 51. Ball. Ann. Codes & St. 9 6510. Noble V. Whltten [Wash.] 76 P. 95. An objection to the form of the justification of the sureties (Frew V. Clark [Wash.] 76 P. 85), and fail- ure of the sureties to justify as to property within the state must be taken advantage of below, since such objections go to the suffi- ciency of the sureties [Ball. Ann. Codes & St. § 6B091 (Weiser v. Holzman, 33 Wash. 87, 73 P. 797). an. See 1 Curr. L. 123. 53. State v. Superior Court of Pierce County, 32 Wash. 693, 73 P. 779. 54. Bond on appeal from Justice held suf- ficient in form. Condon v. Robertson [Tex. Civ. App.] 76 S. W. 934. Bond held sufficient as to form within 2 Ball. Ann. Codes & St. § 6506. King v. Branscheld, 32 Wash. 634, 73 P. 668. See 1 Curr. L. 123. 55. Goodthye v. Delatour, 111 La. 766, 35 So. 896. 200 APPEAL AND REVIEW § 6H. 3 Cur. Law, as such, though only conditioned as a stay bond.°° An undertaking is not bad for reciting that appellant "is about to appeal," where he in fact had appealed." Irregularities and defects.^^ — Defects in an unnecessary bond are immaterial,"' and an ambiguous bond will be given the construction that will make it valid.'" Clerical errors do not vitiate,'^ and a bond executed by a party binds him and is valid, though executed as joint principal by another not a party.^^ Failure through mistake to give the required undertaking is not fatal in Ore- gon, and on a proper showing appellant will be permitted to file it after time;** but defects cannot be amended by filing a new bond after time.** (§ 6) H. Entry below.^^ — Entry in the probate court of the order granting the appeal therefrom is necessary in Arkansas,** and where entry below is a statu- tory substitute for personal service, such entry is jurisdictional.*' § 7. Transfer of jurisdiction, supersedeas and stay."^ — The appeal must be perfected to transfer jurisdiction and suspend the operation of the judgment,*' and an administrator, though entitled to appeal without filing an appeal bond, is not entitled to a supersedeas on account of a mere intention to appeal, except dur- ing the time necessary to get his appeal filed in the appellate court;'* but upon filing and service of notice of appeal and filing of bond, jurisdiction is transferred to the supreme court, irrespective of whether the subsequent proceedings are such as to empower that court to review the questions raised.'^ Supersedeas by operation of appeal or errorJ" — A mere appeal by a city op- erates as a supersedeas,'* and in Connecticut, an appeal by one of several defend- ants, from the city to the superior court in a mortgage ' foreclosure, transfers the entire case and vacates the judgment.'* A writ of error out of the supreme court of the United States, to review the judgment of the state court, will not so operate, unless served within the statutory time.'" Generally speaking the trial court's power ceases for all purposes on the 56. King V. Branscheld, 32 "Wash. 634, 73 P. 668. 57. Kaltsohmidt v. Weber, 139 Cal. 76, 72 P. 632. 58. See 1 Curr. 1.. 123. 59. Judgment below against appellant for costs only. Voges v. Dittlingler [Tex. Civ. App.] 72 S. W. 875. 60. Whether appellant Is obligated to pay all costs of trial and appellate courts or only appellate court. Glddinga v. Fischer [Tex.] 77 S. W. 209. 61. A statement that the sureties are worth $200 "not subject to execution" will be regarded as a mere clerical error, the evi- dent Intent being to Justify for $200. Jones V. Herrick, 33 Wash. 197, 74 P. 332. A bond on appeal from the county court obligating appellant to comply with the decree or Judg- ment of the "district" Is not bad for omis- sion of the word "court." Bell v. Goss [Tex, Civ. App.] 76 S. W. 315. 62. Parshall v. Clark [Tex. Civ. App.] 77 S. W. 437. 63. DoweH V. Bolt [Or.] 76 P. 714. 64. A new bond cannot confer Jurisdic- tion on the district court, on appeal from a Justice of the peace, where filed after the time to appeal has passed, notwithstanding Code, 5 357. The original bond named a stranger as obligee. Sutton v. Bower [Iowa] 99 N. W. 104. An undertaking filed more than A year after objection to sureties on prior one Is Ineffectual where not accom- panied by a new notice of appeal. Donovan V. Woodcock [S. D.] 99 N. W. 82. See 1 Curr. L. 124, n. 85. 65. See 1 Curr. L. 124. 66. Bonner v. Gorman, 71 Ark. 480, 77 S. W. 602. 67. City of Orlando v. Macy [Fla.] 34 So. 298. 68. See 1 Curr. I* 124. 69. Piling and approval of appeal bond are essential [Kurd's Rev. St. 1899, p. 1293]. Holmes v. Chicago, 205 111. 536, 68 N. E. 1109. Transcript as well as petition in error must be filed. Morton v. Western Seed & Irri- gation Co. [Neb.] 96 N. W. 183. In probate proceedings In Nebraska, the district court acquires Jurisdiction of the appeal upon filing a transcript [Comp. St. 1901, c. 20, §§ 42-48], Rhea v. Brown [Neb.] 94 N. W. 716. An order granting a suspensive ap- peal, without any step towards completing the appeal, will not operate as a suspen- sive appeal. Upton v. Adeline Sugar Fac- tory Co., 109 La. 670, 33 So. 725. See 1 Curr. D. 124, n. 97. 70. Michigan Mut. L. Ins. Co. v. Klatt [Neb.] 98 N. W. 436. 71. Glavln v. Lane [Mont.] 74 P. 406. 72. See 1 Curr. L. 124. 73. Ball. Ann. Codes & St., § 6505. Jor- dan v. Seattle, 29 Wash. 681, 70 P. 54. 74. Matz v. Arlck [Conn.] 66 A. 630. 75. Whitaker v. McBride [Neb.] 98 N. W. 877. 3 Cur. Law. APPEAL AND EEVIEW § 7, 201 transfer of jurisdiction/' hence the trial court cannbt entertain an application for a rehearing/' or to amend the judgment in a material matter thereafter," and pfending appeal from an interlocutory order, the case cannot be heard below on the merits,'^" but if the judgment rendered is void for want of jurisdiction, a motion to set it aside may be entertained, notwithstanding proceedings in ^rror to reverse it are pending in the supreme court.*" After appeal from a decree granting re- demption from a tax deed, the district court may extend or change the time for redemption,*^ and an amended proof of claim against a bankrupt's estate may be filed in the bankruptcy court, after an appeal has been taken by the trustee to the circuit court of appeals, from a decree permitting proof as creditors.*^ In California the cause is removed only for the purpose, and to the extent of giving full and complete jurisdiction of such matters as are properly cognizable upon appeal,*' and the right of the trial court to correct a clerical misprision on its record is not affected, especially where the correction affects no substantial right.** The district courts in Idaho retain jurisdiction in divorce cases to make orders direct- ing payment of costs and necessary expenses, in perfecting and prosecuting the appeal, and the supreme court likewise has similar power.*" In Florida, a statu- tory supersedeas, obtained by taking an appeal within 30 days, cannot be vacated by the supreme court on the ground that the appeal is frivolous.*" Execution on a judgment is stayed,*' notwithstanding the writ of error was sued out improvidently,** but the validity of the judgment remains unchanged.** Hence a decree may be shown as a breach of the conditions of a trust deed, though error has been prosecuted from it and supersedeas granted."" An appeal from a nonappealable order does not stay further proceedings below,'^ and an appeal from that portion of a decree granting relief as prayed by a cross-bill impleading third parties does not affect the decree as to the relief prayed by the original bill."^ An appeal from an order vacating a prior order does not have the effect of reviving the vacated order."' A restraining order of the court of civil appeals of Texas is 76. Record of the entry of Judgment may be amended in formal matters. Channel v. Merrifield, 206 111. 278, 69 N. B. 32. Can- not vacate judgment for want of jurisdic- tion of persons. Aetna Ins. Co. v. Thomp- son [Vyash.] 76 P. 105. After appeal in a win contest the trial court cannot re-docket the cause and entertain a petition for the appointment of a receiver as a further pro- ceeding. Westfall V. Wait, 161 Ind. 449, 68 N. E. 1009. See 1 Curr. L.. 124, n. 2. 77. Appeal from surrogate. In re Mur- phy's Will, 79 App. Dlv. 541, 81 N. T. S. 101. 78. After appeal In claim and delivery In Montana, the trial court has no power to correct the Judgment by entering one in the alternative. Hynes v. Barnes [Mont.] 75 P. 523. A Judgment may be so amended as to conform to the verdict after an appeal has been taken. Denver v. Bradbury [Colo. App.] 76 P. 1077. 79. State v. Barle, 66 S. C. 194, 44 S. E. 781. 80. O'Loughlln V. Overton [Kan.] 74 P. 604. 81. Swan v. Harvey [Iowa] 98 N. W. 641. SS. Hutchinson v. Otis, Wilcox & Co., 190 U. S. 552, 23 S. Ct. 778, 47 Law. Ed. 1179. 83. Fay v. Steubenrauch, 138 Cal. 656, 72 P. 166. An appeal from the grant of gen- eral letters of administration does not de- prive the court of Jurisdiction over a spe- cial administrator of the estate previously granted. In re Heaton's Estate, 142 Cal. 116, 75 P. 662. 84. Fay v. Stubenrauch, 141 Cal. 573, 76 P. 174. 85. Rev. St. 1887, §§ 2472, 4927, Const, art. 5, : 9. Roby v. Roby [Idaho] 74 P. 957. 86. Johnson v. Turner [Fla.] 33 So. 238. 87. Execution may issue If a counter bond is given. Denning v. Tount, 66 Kan. 766, 71 P. 250. See 1 Curr. L,. 125, n. 11. 88. Mlasourlt If a supersedeas bond is In terms of the statute, the question Is not so much a construction of the bond as of the statute. Campbell v. Harrington, 93 Mo. App. 316. 89. Hendryx v. Evans, 120 Iowa, 310, 94 N. W. 863. An appeal and supersedeas by defendant In attachment does not bar an action on the restitution bond. Hoyle v. Stellwagen, 30 Ind. App. 674, 66 N. E. 910. 90. Brown v. Schlntz, 203 111. 136, 67 N. E. 767. 91. Muckenfuss v. Fishburne [S. C] 46 S E 537 92. Smyth V. Stoddard, 203 111. 424, 67 N. E. 980. »S. Bateman v. Superior Court of San Francisco, 139 Cal. 140, 72 P. 922. 203 APPEAL AND EEVIEW § 7. 3 Cur. Law. effective only while the case is before that court, and is not operative pending the decision on a writ of error in the supreme court."* Supersedeas by special order or allowance.^^ — ^A suspensive appeal is properlv denied, where its effect would be to oust the sheriff from his custody of seques- trated property."" An associate justice of the Supreme coui-t has power to suspend the operation of a restraining order pending appeal therefrom, after return has been filed in that court,"^ but in the absence of a direction from the trial judge, the supreme court of California cannot issue a supersedeas staying proceedings on a judgment in unlawful detainer, pending an appeal from an order vacating an order for the satisfaction of the judgment.'* Strangers to a suit are liable for dam- ages caused by illegal writ of supersedeas issued by them."" As to what matters.^ — On giving bond a temporary injunction may be con- tinued in force pending appeal,^ and an order continuing the appointment of a re- ceiver, first appointed ex parte, is in effect an order appointing a receiver, and so appealable and may be superseded.' Where a case involves a constitutional ques- tion,* or where the refusal of a stay will deprive the party appealing of the benefit of his appeal," and he has been reasonably diligent, and no injury will be occa- sioned the appellee, the stay will be granted;' but supersedeas will not be granted to an unappealable order,' nor to a decree that grants to plaintiff in error all the relief justified by his pleadings,' nor where it would be ineffective." The appeal from a judgment dismissing an application for the administration of a succession should be devolutive,^" as should an interlocutory order permitting a judicial sequestration to be set aside on bond, where not working irreparable in- jury.^^ An appeal from a judgment revoking an order appointing a tutor, and appointing a special tutor in his place, will be dismissed as a suspensive, and main- tained as a devolutive appeaV but a judgment removing a definitive syndic is appealable suspensively, and pending appeal the district court is without jurisdic- tion to convoke a meeting of creditors to select his successor.^' Procedure, order or writ, and its effect}* — Where supersedeas is not taken a judgment is a bar, though an appeal therefrom is pending,^" and where a chancery 94. Riggina v. Thompson, 96 Tex. 154, 71 S. W. 14. 95. See 1 Curr. L,. 126. 1)6. State V. King, 110 La. 961. 35 So. 181. 97. State v. Rice [S. C] 45 S. B. 153. 98. Bateman v. Superior Court of San Francisco, 139 Cal. 140, 72 P. 922. 99. Supersedeas bond, by strangers to actioni In a suit to recover possession of real estate, plaintiff obtained a writ of possession. Strangers subsequently filed application for rehearing and filed an illegal supersedeas bond. Damage resulted to plain- tiff Held, that the sureties were liable. Leech v. Karthaus, 135 Ala. 396, 83 So. 342. 1. See 1 Curr. L. 126. a. Ball. Ann. Codes & St., § 6507. State V Superior Court of King County, 30 Wash. 197 70 P. 233. See 1 Curr. L. 126, n. 32. 3 State V. Superior Court of Pierce Coun- ty [Wash.] 74 P. 1070. 4 Tenement House Department of New York V. Moeschen, 41 Misc. 446, 85 N. T. S 19 S. Corporation appealing from an order allowing an examination of Its books and papers. McAlpIn v. Universal Tobacco Co. fN J. Eq.] 65 A. 999. A stay will be grant- ed on appeal from an order of distribution of funds in the hands of a receiver, where the effect of the order is to put the fund be- yond the reach of the court with the re- sult of irreparable injustice if the order is wrong. People v. American L. & T. Co 39 Misc. 647, 80 N. Y. S. 627. 6. Stay of sale of property on execution. Merrltt v. Jordan [N. J. Eq.] 55 A. 1001. 7. Montana Ore Purchasing Co. v. Butte & B. Consol. Mln. Co. [C. C. A.] 126 F. 168. S. Lockhaven Trust & Safe Deposit Co. V. U. S. Mortg. & T. Co. [Colo. App.] 74 P. 793. 9. Supersedeas on application to review the cancellation of a liquor license will not be granted, where it appears that the license will expire before the appeal can be heard. State V. Bremerton, 32 Wash. 508, 73 P. 477. 10. Succession of Wintz, 111 La. 40, 35 So. 377. 11. State V. Allen, 110 La. 853, 34 So. 804. 12. Succession of Watt, 111 La. 937, 36 So. 31. IS. State V. Sommervllle, 110 La. 953, 34 So. 757. 14. See 1 Curr. L. 126. 15. Small V. Reeves, 25 Ky. L. R. 729, It S. W. 395. 3 Cur. Law. APPEAL AND EEVIEW § 7. 303 appeal is taken, in Michigan, without filing a Buporsedeas bond, the appellee is entitled to have the papers returned to the circuit court for enrollment, after tho statutory period has passed after rendition of the decree.^* Where the decree is severable a part may be superseded without the rest.^^ Supersedeas can only be directed to a party to the action.^* A supersedeas does not annul the judgment, but merely stays future proceed- ings;^' neither can it retroact. Its effect is to preserve the status in quo pending the appeal. It cannot undo what has already been done under the judgment,^" and the giving of a supersedeas bond on appeal from an order discharging a re-' ceiver does not reinstate the receiver nor authorize the court to maintain possession of the property,-^ though an order of the supreme court staying proceedings under an order appointing a receiver requires the immediate return of the property to the person from whom it was taken.^^ Where defendant appeals with superse- deas, plaintiffs need not pay the purchase price into court as directed by a decree for specific performance, until after affirmance.'" Where a supersedeas is granted on appeal from an order dissolving a temporary injunction, a violation of the in- junction is a contempt of the appellate court.''* Supersedeas bonds. — No supersedeas will be granted even to prevent waste,"" until a bond in the amount and terms determined by the court has been given,-" and where an executor appealing from a decree directing pajTnent of legacies gives the appeal bond, but not the supersedeas bond provided by statute, the legatees can enforce the decree as though no appeal had been taken.'" 16. Comp. Laws. § 463, and § 550, as amended by Pub. Acts 1899, p. 380, No. 243. Harmon v. Metcalfe [Mich.] 96 N. W. 1060. 17. State V. Baxter [Neb.] 96 N. W. 647. 18. Madera County v. Raymond Granite Co., 138 Cal. 244, 71 P. 112. 19. Whatever is done against the au- thority of the supersedeas should be set aside as improperly done. Hey v. Harding, 25 Ky. L. R. 1454, 78 S. W. 136. 20. Where possession of property is ob- tained by judgment, a subsequent super- sedeas ■will not restore the property. Tliomp- son V. Thompson, 24 Ky. L. R. 645. 69 S. W. 714. A mere restraining order Is not con- tinued in force after dissolution on the hearing by appeal with supersedeas. Rig- gins V. Thompson, 96 Tex. 154. 71 S. W. 14. The supersedeas bond is efCectual to pre- vent further acts on an execution only "when the countermand reaches the sheriff. A sale consummated before is valid. Edwards V. Olln, 121 Iowa, 143, 96 N. W. 742. Where an attachment under which sale had been made was discharged, and defendant entereil an «rder of .satisfaction on the sale bond, before supersedeas issued, the supersedeas did not affect the validity of the payment, and on reversal plaintiff was entitled to a ruling against the obligees on a sale bond. Hey V. Harding, 25 Ky. L. R. 1454, 78 S. W. 136. Appeal from an order quashing an execution and giving of bond does not va- cate the order, and the sheriff cannot pro- ceed to levy and sell. State v. Superior Court of Pierce County, 32 Wash. 693, 73 P. 779. 21. State V. Superior Court of Spokane County, 31 Wash. 481, 71 P. 1095. 22. The question being previously unllt- igated a refusal imder advice of counsel should be punished only by a nominal fine. Rumney v. Donovan, 28 Mont. 69, 72 P. 305. Where, In a suit to dissolve a part- nership, a receiver is appointed and a final decree subsequently rendered dissolving the partnership and fixing the rights of the parties, an appeal and supersedeas from the final decree does not remove the prop- erty into the supreme court nor affect the right of the trial court to make necessary orders for its preservation. Lamb v. Row- an, 81 Miss. 369, 33 So. 4. 23. Southern Oil Co. v. Scales [Tex. Civ. App.] 69 S. W. 1033. 24. Injunction against grant of liquor license. Strickland v. Knight [Fla.] 35 So. 868. 25. Bank of Woodland V. Stephens, 137 Cal. 458, 70 P. 293. 2C. State V. Baxter [Neb.] 96 N. W. 647. An order of sale in foreclosure is not stayed by appeal unless bond is given [Code Civ. Proc. § 352]. Muckenfuss v. Fishburne [S. C] 46 S. E. 537. The losing party must act to prevent the judgment from being car- ried into effect. [Civ. Code, Ga., § 4608]. Gustoso Cigar Mfg. Co. v. Ray, 117 Ga. 565, 4 3 S. B, 984. Where In bail-trover proceed- ings, defendant has been discharged, the order of discharge can only be superseded by the plaintiff giving bond and comply- ing with such other conditions as may be properly imposed. Id. A supersedeas Is either a matter of statutory right, or vested in the discretion of the Judge of the superior court [Civ. Code, Ga., § 4321]. Id. Where defendant has received an absolute order of discharge he Is not required to give a bond in order to take advantage of the judgment in his own favor. Id. A judg- ment directing the sale of perishable prop- erty cannot be stayed on appeal without a stav bond [Code Civ. Proc, §§ 943. 949]. Toele V. Hydenfeldt, 133 Cal. 56, 70 P. 1013. 27. Code Civ. Proc, §5 2577, 2578. In re 204 APPEAL AND EEVIEW § 7. 3 Cur. Law. The filing of a supersedeas bond does not prevent ruling on the motion foi new trial/* nor stay execution unless a petition in error has been filed in the ap- pellate court.^° In Washington^ on entering an appealable order the court, on request of the party obtaining the order, should fix the amount of the supersedeas bond required to stay the execution of it pending appeal,^" and appeal need not be taken before application to fix such amount/^ but where, as in California, the statute provides that a judgment shall be stayed by appeal only when a bond in amount fixed by the judge is filed, a party is not entitled to an order fixing the amount until he has appealed.^" Where a tenant against whom ejectment has been brought is entitled to a suspensive appeal, the trial judge may fix the amount of the bond.^' If the trial court refuse the remedy is by mandamus.^* The conditions of the bond must follow the statute," and a bond not con- ditioned as required is not sufiicient to prevent the enforcement of the judg- ment.'° In Nebraska the amount and conditions of a supersedeas bond, in a case where no money judgment is awarded, are discretionary with the trial court,'' and if he fail to fix the conditions, application should be made for a further or- der.=" In Washington the bond, if intended to operate both as an appeal bond and a supersedeas, must be for twice the amount of the judgment plus $200,^^ and on appeal from an order denying a motion to vacate an order for the payment of money, supersedeas to the order for payment will be granted only on filing bond for double the amount named in the order.*" On appeal from an order appoint- ing a receiver, a bond conditioned to pay only such damages as the court might award on affirmance of the order is not sufficient, either to supersede the receiver or effect a stay." § 8. Appearance, entry and docketing above.*' — In Colorado, where an ap- peal is dismissed for want of jurisdiction, it will be redocketed on error if review- able in that manner.*' § 9. Perpettiation of proceedings and evidence for the reviewing court. A. The record proper and what it must show.** — Where the existence of a certain question is essential to the jurisdiction of the appellate court, the facts giving ju- Holmes' Estate, 79 App. Div. 267, 79 N. T. S. 687. 28. Where a party Is entitled to elect whether to proceed by appeal or by peti- tion In error, the filing of a supersedeas bond for an appeal cannot operate as an election. Armstrong v. Mayer [Neb.] 95 N. W. 51. 29. Where real estate has been sold on execution, the filing of a supersedeas bond does not stay execution or deprive the pur- chaser of his right to a sheriff's deed, un- less a petition in error has been filed in the appellate court. Hendryx v. Evans, 120 Iowa, 310, 94 N. W. 853. 30. State V. Superior Court of King Coun- ty, 30 Wash. 177, 70 P. 256. 31. State V. Superior Court of Pierce County [Wash.] 74 P. 1070. 32. De Leonis v. York, 140 Cal. 333, 73 P. 1058. 83. Rev. St., § 2157. State v. Ellis, 110 La, 1042, 35 So. 282. 34, McBrlde v. Whltaker [Neb.] 98 Mo. 847. 35. Code 1897, 5 4134. Home Sav. & Trust Co. V. District Court of Polk County, 121 Iowa, 1, 95 N. W. 622. 36. Gillespie v. Morsman [Neb.] 95 N. W. 1127. 37, 88. State v. Baxter [Neb.] 96 N. W. 647. 89. Winchester v. Morris, 33 Wash. 706, 74 P. 361; Laoaff v. Dutch Miller Min. & Smelting Co., 31 Wash. 566, 72 P. 112. 40. Credits Commutation Co. v. Superior Court of San Diego County, 140 Cal. 82, 73 P. 1009. 41. State v. Superior Court of King Coun- ty, 30 Wash. 219, 232, 70 P. 484. 42. See 1 Curr. L. 127. 43. Mills' Ann. Code, ; 388a. Doloff v. Heath, 31 Colo. 170, 71 P. 1112; Bailey v. O'Fallon, 30 Colo. 418, 70 P. 755; Stevena v. Stevens, 31 Colo. 188, 72 P, 1060; Brennan Mercantile Co. v. Vickers, 31 Colo. 323, 73 P. 45; McAllister v. Irwin's Estate, 31 Colo. 253, 254, 73 P. 47; Lockhaven Trust & Safe- Deposit Co. V. U. S. Mortg. & T. Co. [Colo. App.] 73 P. 409; Best v. Rocky Mountain Nat. Bank, 31 Colo. 474, 73 P. 845. Statute has no application to Irrigation cases. Needle Rock Ditch Co. v. Crawford-Clipper Ditch Co. [Colo.] 75 P. 424. See 1 Curr. L. 127, n. 53-55. 44. See 1 Curr. L. 127. 3 Our. Law. APPEAL AND EEVIEW § 9A. 205 rifidictioii' m-ast appear by the record."" The appealable interest of appellant, especially of. one not a party to the record/" and prejudice to him, must appear.*' The ruling complained of,*« objections thereto," and the judgment or order of the court below, must appear,""* and a record entry thereof is essential."^ There is no record where merely the original papers in the case, the minute entries and the reporter's transcript of the testimony are brought up.^^ Eecitals in a bill of ex- ceptions cannot supply necessary record entries.'^ Order book entries are an es- sential part of the record in Indiana,^* and by statute, all papers pertaining to the cause and filed therein with certain exceptions are deemed part of the record."" A complete copy of the judgment roll,°° consisting of certified copies of the neces- sary papers, is necessary in Montana, and a record composed of the originals with- drawn from the files of the trial court will not support an appeal."' A certificate of completeness is essential."* In Texas, an agreed statement of facts upon which the case was tried below, the judgment, the findings of fact and conclusions of law, the assignments of error and the appeal bond, by express provision of the statute, constitute a sufficient record to require revision of the judgment without the pleadings or other showing as to what the issues were below."" Proceedings for new trial and to obtain review."" — The record must show the timely filing of a motion for new. trial,"^ the taking of the appeal,"'' the notice of 45. Appeal from board of review on rais- ing assessment of personal property — ex- emption not shown. Appeal of Havemeyer & Co., 202 111. 446, 66 N. B. 1044. A recital of due service in tlie Judgment will pre- vail over a mere absence of process, and proof of service from the record. City of Ballard v. Way [Wash.] 74 P. 1067. See 1 Curr. L. 127, n. 58, et seq. 46. Affidavits showing interest not in- corporated in record. People v. Gay, 141 Cal. 41, 74 P. 443. 47. Brightwell v. Bare, 62 W. Va. 375, 44 a. B. 160. 48. The record must show that the court did rule as complained (disallow credits). Dobbins v. Humphreys, 171 Mo. 198, 70 S. W. 815. Introduction of evidence. Jamison v. Dooley [Tex. Civ. App.] 79 S. W. 91. Where the case settled does not state that the judge charged as redited in the excep- tions, the matter is not before the court, Hart V. Cannon, " 133 N. C. 10, 45 S. E. 351. To review errors required to be set up in a motion for a new trial, the record must show a ruling on such motion. Voor- hels. Miller & Co. v. Leisure [Neb.] 95 N. W. 676. See 1 Curr. L. 128, n. 62. 49. Evidence. In re Van Alstine's Es- tate, 26 Utah, 193, 72 P. 942. In chancery cases, the record must show that specific objection and ruling thereon were made to the introduction of evidence complained of. Skinner v. Ckmpbell [Pla.] 33 So. 526; Stock- ton V. National Bank of Jacksonville [Pla.] 34 So. 897; Pinney v. Pinney [Fla.] 35 So. 95. An error not shO"wn by the bill of ex- ceptions to have been objected to below will not be reviewed. Allowance of amend- ment to complaint. Bessemer Liquor Co. v. Tillman [Ala.] 36 So. 40. Where specific objections to particular questions, and an- swers in a deposition do not appear in the bill of evidence, they will not be consid- ered. Louisville & C. Packet Co. v. Bot- torfC, 25 Ky. L. R. 1324, 77 S. W. 920. See 1 Curr. L. 128, n. 67. 50. Mackay v. Fox [C. C. A.] 121 P. 487; Jones V. Vanatta [Colo. App.] '72 P. 810. To appear nuerely by bill of exceptions is not sufficient; Street v. Prank, 136 Ala. 616, 33 So. 879. See 1 Curr. L. 128, n. 63. 51. Mackay v. Pox [C. C. A.] 121 F. 487; Stein V. Goodenough, 69 N. J. Law, 635, 66 A. 701; Lisker v. O'Eourke, 28 Mont. 129, 72 P. 416, 756. 52. Brady v. Pinal County [Ariz.] 71 P. 910. 53. City of St. Charles v. Deemar, 174 Mo. 122, 73 S. W. 469. 54. 65. Cleveland, etc., R. Co. v. Wasson [Ind. App.] 66 N. B. 1020. 56. Code Civ. Proo. § 1736. Stanton v. Lewis, 28 Mont. 267, 72 P. 658; Peatherman v. Granite County, 28 Mont. 462, 72 P. 972; Beck v. Holland, 28 Mont. 460, 72 P. 972; Bickford v. Kirwin [Mont.] 75 P. 518. 57. Code Civ. Proc. 8 1738. Cornell v. Matthews, 28 Mont. 457, 72 P. 975. State- ment on motion for new trial. Powell v. May [Mont.] 74 P. 80. 58. Code Civ. Proc. i 1739. Featherman V. Granite County, 28 Mont. 462, 72 P. 972. Certificate is sufficient. Porter v. Plymouth Gold Min. Co. [Mont.] 74 P. 938. 59. Rev. St. 1895, art. 1293. Scott v. Slaughter [Tex.] 77 S. W. 949. 60. See 1 Curr. L. 128. 61. Rev. St. 1887, par. 842. Santa Rita Land & Min. Co. v. Mercer [Ariz.] 73 P. 398; Ward V. Lemon [Ariz.] 73 P. 443; Fast v. Gray [Mo. App.] 78 S. W. 1048; State v. Sanford [Mo.] 79 S. W. 898. The notice of intention to move for a new trial is not a necessary part of the record in Montana on appeal from an order denying a new trial, unless some objection is presented to the notice in the trial court. King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309. Citing many cases and disapproving Carr v. Clos- ser, 27 Mont. 94, 69 P. 560. See 1 Curr. L. 128, n. 73. 63. Morehouse v. Doxsee [Iowa] 99 N. W 143. See 1 Curr. L. 128, n. 75. 806 APPEAL AND EEVIBW § 9B. S Cnr. Lav. appeal,"' and service thereof, °* the entry of the appeal in the. order book of the court below,°° the bond on appeal,"" and timely giving, filing and approval thereof." AH orders passed and proceedings had in the court below must, in order to be re- viewed on appeal, form part of the bills of exceptions or the duly certified record. 8uch matters cannot be brought before the appellate court by agreements of coun- sel subsequently made.'* (§9) B. What is part of record proper; necessity of bill of exceptions or its equivalent." — The record proper, which the appellate court can consider without its being authenticated by a bill of exceptions, comprehends pleadings and amend- ments thereto,'" including demurrers,'^ motions in arrest of judgment,'* and the statutory vrrit in mandamus in Indiana." Documents are not part of the record,'* unless shown in the transcript or submitted by order of court in accordance with the rule.'° A recital in a proffered judgment which the judge refused to sign is not a part of the record." A map attached to the record, but not appearing to have been introduced below or identified as having been there used, will not be considered." Findings of fact and conclusions of law not made part of the record by journal entry or otherwise cannot be considered on error." A statement in a journal entry, "no evidence except the files and records in the case being intro- duced," constitutes no part of the journal entry, and must be disregarded on ap- peal.'* Where a cross complaint is introduced as evidence by plaintiff, and it is copied into the record as such, he cannot on appeal complain that it is not in the record.'" The statement on motion for a new trial is no part of the judgment roll in Montana,'^ and on appeal from an order setting aside a default judgment, the judgment roll is no part of the record proper, and can be made of record only by including it in a bill of exceptions.*" Where questions of fact as well as of law are involved, a statement of facts is necessary in Washington.'' Bringing matters into the record.^* — The prevailing party as against an ap- pellant must preserve the evidence,'^ but appellant must furnish copies of all papers used on the hearing," and must produce and include in the bill such of 63. Stevens v. HaU [Idaho] 73 P. 527. See 1 Curr. L. 128, n. 74. 64. Porter v. Plymouth Gold Min. Co. [Mont.] 74 P. 938; Morehouse V. Doxsee [Iowa] 99 N. W. 143. 65. City of Orlando v. Macy [Fla.] 34 So. 29S. 60. A memorandum by the clerk stating that a supersedeas bond was executed is not sufficient. Lykins v. Steele, 25 Ky. L. R. 536, 76 S. "W. 39. 6T. In re Miller [Okl.] 75 P. 1128. 68. Smith v. Hallwood Cash Register Co., 97 Md. 354, 55 A. 626. 69. See 1 Curr. L.. 129. I 70. Amended pleadings only are of rec- ord — originals require order. Chicago, I. & E. R. Co. V. Indiana Natural Gas & Oil Co. [Ind. App.] 70 N. E. 270. Judgment rendered on pleadings reviewable without bill of exceptions. Bennett v. Union Cent. Life Ins. Co., 203 111. 439, 67 N. E. 971. Where not shown by record, proper attempt to show by bill of exceptions is ineffectual. Edmunds Elec. Const. Co. v. Marlotte [Ind.] 69 N. E. 396. See 1 Curr. Ia 129, n. 81. 71. Ruling on demurrer reviewed without exception. Lloyd v. Sandusky, 203 111. 621, 68 N. E. 154. An order sustaining a demur- rer Is reviewable without a bill of excep- tions [Mills' Ann. Code, § 387]. Crebbln v. Shlnn [Colo. App.] 74 P. 795. See 1 Curr. L. 129, n. 82. 7a. Such a motion presented only In a bill of exceptions will not be reviewed. Kimble v. State [Pla.] 34 So. 5. 73. Hart v. State, 161 Ind. 189, 67 N. E. 996. 74. Sayer v. Brown, 119 Ga. 539, 46 S. E. 649. See 1 Curr. L. 129, n. 87. 75. Sup. Ct. Rule 12 (47 N. E. vl.). Soule V. People, 205 111. 618, 69 N. E. 22. 76. Tennessee River Land & Timber Co. V. Butler, 134 N. C. 50, 45 S. E. 956. 77. Hays v. Ison, 24 Ky. L. R. 1947, 72 S. W. 733. 78. Glldehaus v. Fidelity Bldg. & Sav. Co., 24 Ohio Circ. R. 110. 79. Campbell v. Mechanics' Sav. Bank, 66 Kan. 778, 71 P. 829. 80. Roberts v. Koss [Ind. App.] 70 N. E. 185. 81. Powell V. May [Mont.] 74 P. 80. 82. Code Civ. Proc. §§ 1737, 1739. Emer- son V. MoNair, 28 Mont. 578, 73 P. 121. 83. Action on covenant of warranty de- fended on ground of limitations and de- nial of ouster. Pierce v. Pawcett, 31 Wash. 271, 71. P. 1011. 84. See 1 Curr. L. 129. 80. Village of Harlem v. Suburban E. Co., 202 III. 301, 66 N. E. 1050. See 1 Curr. L. 129, n. 89. 86. Code Civ. Proc. § 951. On appeal from an order confirming a sale of real estate by executors, appellant must furnish copy of 3 Cur. Law. APPEAL AND REVIEW § 9B. 207 the evidence as is material to the questions on which review is sought. A mere direction to the clerk to include all the evidence will not suffice.*' A bill of ex- ceptions is the usual procedure for bringing matters into the record. Where the bill of exceptions or statement is stricken from the record or cannot be considered, the case is left on the appeal from the judgment on the judgment roll alone," and a judgment conforming to and supported by the pleadings will be affirmed.** Where the statute allows proceedings to be made of record by order, its provisions must be strictly complied with."" In Montana, errors arising from irregularities in the proceedings of the court, or abuse of discretion, must be preserved by mo- tion for new trial and brought into the record by affidavit.'^ The matters which are not part of the record, but must be brought in by bill of exceptions or its equiv- alent, include errors occurring at the trial generally,"" and exceptions thereto," refusal to "sanction" petition for certiorari,"* dismissal by a state court of a peti- tion for removal to the Federal court."" A special appearance combined with a motion to quash the summons, together with the ruling thereon," amendments to pleadings offered and disallowed,"' an answer rejected on motion to set aside de- fault and permit its filing,"' bills of particulars,"" interrogatories to the adverse party,^ the evidence,* evidence and matters outside the judgment,^ affidavits,* mo- return of sale. In re Robinson's Bstate, 142 Cal. 152, 76 P. 777. 87. State v. Napton, 28 Mont. 333, 72 P. 676. 88. Swartz v. Davis [Idaho] 74 P. 800; Wright -v. Mathews, 28 Mont. 442, 72 P. 820. See 1 Curr. L.. 129, n. 90. 89. Van Auken v. Mizner [Neb.] 93 N. W. 1121. 90. Instructions Included by clerk on his own motion held not in record. Lake Brie & W. R. Co. V. Holland [Ind.] 69 N. E. 138. Instructions not signed by Judge not considered, though exception thereto is signed. Michigan City v. Phillips [Ind. App.] 69 N. E. 700. Original pleadings can be made of record only by order. Chicago, I. & B. R. Co. V. Indiana Natural Gas & Oil Co. [Ind. App.] 70 N. B. 270. A tran- script of stenographer's notes, certified as containing only the oral evidence, and not filed by order of court, cannot be used as a bill of exceptions. Southern R. Co. v. Thurman, 25 Ky. L. R. 804, 76 S. W. 499. Under the Iowa statute providing that in equitable actions the evidence may be brought Into the record by filing within six months, the time begins to run with the entry of the original decree, where the sup- plemental decree did not disturb the con- clusions complained of. [Code, § 3652]. Al- iford V. West Bnd Syndicate [Iowa] 95 N. W. 241. The certificate of the trial Judge and reporter that the shorthand notes were certified on the date of submission of the case cannot be impeached by afiidavits filed in the supreme court on appeal. In re Bru- ning's Estate [Iowa] 96 N. W. 780. Where the notes of evidence bear a certain date as that of filing, it cannot be shown by affidavit on appeal that they were in fact filed on another date. Id. Where the short- hand notes were left for filing on the day the trial closed, the evidence is properly preserved, though they w6re not marked filed until later. Id. After rendition of the decree, oral testimony cannot be made part of the record by nunc pro tunc order. Tucker v. Hawkins [Ark.] 77 S. W. 902. See 1 Curr. L. 129, n. 91. 91. Code Civ. Proc. § 1172. Coleman v. Perry, 28 Mont. 1, 72 P. 42; Tague v. John Caplice Co., 28 Mont. 51, 72 P. 297; King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309. 92. Belcher v. Wasson [Okl.] 75 P. 113]. See 1 Curr. L.. 130, n. 96. 93. Rudolph V. Smith [Colo. App.] 72 P. 817; Brennan Mercantile Co. v. Viokers, 31 Colo. 324, 73 P. 46; Carlin v. Freeman (Colo. App.] 75 P. 26. See 1 Curr. L. 130, n. 5. 94. Where a petition for certiorari to a justice of the peace is not sanctioned by the superior court, it does not become part of the record, and can only be brought be- fore the supreme court by bill of excep- tion. Lenney v. Pinley, 118 Ga. 718, 45 S. B. 693. See 1 Curr. L. 130, n. 98. 95. Louisville & N. R. Co. v. Satterwhlte [Tenn.] 79 S. W. 106. 96. Bngelke & F. Mill. Co. v. Grunthal [Fla.] 35 So. 17. 97. Sayer v. Brown, 119 6a. 539, 46 S. E. 649. 98. Jett v. Farmers' Bank, 25 Ky. L. R. 817, 76 S. W. 385. 99. Saxton V. Musselman [S. D.] 96 N. W. 291; Paul v. Baltimore & O. R. Co. [Ind. App.] 69 N. B. 1024. 1. Though copied into record, they can- not be considered In support of default judg- ment under Code 1896, g 1856. Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903. 2. West v. Richmond R. & B. Co. [Va.] 46 S. E. 330; Denny v. Wright [Okl.] 74 P. 104. Where the paper book discloses a want of any bill of exceptions to bring up the evidence, the appeal will be quashed. In re O'Brien's Estate, 22 Pa. Super. Ct. 475. On appeal from an order on a husband for the support of his wife. Com. v. Dean, 21 Pa. Super. Ct. 641. Attempt under invalid statute Insuflaoient [Burns' R. S. 1901, S 1476]. Crane v. Osborn, SO Ind. App. 640, 66 N. B. 772. A shorthand reporter's notes filed with appellant's closing brief on ap- peal constitutes no part of the record and cannot be considered by the court. Hanna V. De Garmo, 140 Cal. 172, 73 P. 830. See 1 Curr. L. 130, n. 8. 208 APPEAL AND EEVIBW § 9B. 3 Cur. Lawi tions ^nd iiilings thereon," the affidavits® or other evidence in support thereof/ a/T^itient of counsel/ special findings/ the opinion of the trial court/" orders, stipulations and an oath and account of a reeeiver,^^ and rules of the trial court/^ Instructions may be made part of the record in some states by being signed and filed,^° but unless so made of record, they are not reviewable unless presented by bill.^* A skeleton bill in Iowa, properly signed and containing proper directions, will bring the evidence into the record.^" The summons is no part of the record Until made so by oyer,^* and a demurrer merely copied into the record by the clerk, there being no order recognizing it, is no part of the record.^' A biU of exceptions only becomes a part of the record by a jonrnar entry making it so.^' Where the facts recited in a judgment are insufficient to support it, it cannot be said to contain all the evidence so as to dispense with the necessity of a statement of facts to review it.^° (§ 9) G. The nil of exceptions. 1. Form and requisites}" — The function of the bill of exceptions is to bring into the record the facts on which the trial court decided the questions of law presented for review,"^ and it should not in- clude affidavits not presented to or considered by the trial court.^^ The final bill of exceptions must be embraced in one document.^' The rulings 3. Sutton V. Clarke, 42 Or. B25, 71 P. 794. 4. Bruce v. Casey-Swasey Co. [Okl.] 75 P. 280; Newtson v. Walker [Neb.] 95 N. W. 470; Stanbury v. Storer [Neb.] 97 N. W. 805; Sayer v. Brown, 119 Ga. 539, 46 S. E. 649. Affidavits merely copied into tran- script not considered. Griggs v. MacLean, 33 Wash. 244, 74 P. 360; Sellers v. Pacific Wrecking & Salvage Co. [Wash.] 74 P. 1056. See 1 Curr. L. 130, n. 9. B. McCain Bros. v. Street, 136 Ala. 625, 33 So. 872. Motion to quash summons and re- turn. Brennan Mercantile Co. v. Vickers, 31 Colo. 324, 73 P. 46. Motion to dismiss action and subsequent reinstatement. Raw- lings v. Casey [Colo. App.] 73 P. 1090. Overruling of a demurrer to a motion to strike defendant's affidavit for an inter- pleader. Meyer v. Bloch [Ala.] 35 So. 705. Motions to strike pleadings. Southern R. Co. V, Crenshaw, 136 Ala. 573, 34 So. 913; Lorts V. Wash, 175 Mo. 487, 75 S. W. 95; Smith V. Borden, 160 Ind. 223, 66 N. B. 681. Motion for continuance. Carlin v. Freeman [Colo. App.] 75 P. 26; San Antonio & A. P. R. Co. V. Klaus [Tex. Civ. App.] 79 S. W. 58; Scalfl v. Graves, 31 Tex. Civ. App. 667, 74 S. W. 795. Motion for new trial. Free- burgh V. Lamoureux [Wyo.] 73 Pa. 545; Phillips V. Jones, 176 Mo. 328, 75 S. W. 920; State V. Pulliam [Mo. App] 78 S. W. 315. Motion to quash deposition. Rock Island Implement Co. v. Sloan, 98 Mo. App. 489, 72 S. W^. ; 728. Motions to strike interroga- tories. Paul V. Baltimore & O. R. Co. [Ind. App.] 69 N. B. 1024. Motions to require pleadings to be made more definite and cer- tain. Arkansas Cent. R. Co. v. State [Ark.] 79 S. W. 773. Motion to file additional pleas, the pleas, and the ruling thereon. Bngelke V. Feiner Mill. Co. v. Grunthal. [Fla.] 35 So. 17. Motion for judgment. Rock Island Implement Co. v. Sloan, 98 Mo. App. 489, 72 S. W. 728. See 1 Curr. L. 130, n. 3. 6. Gutterson v. Meyer [Neb.] 94 N. W. 969; Johnson v. Carlson [Neb.] 95 N. W. 788. Inclusion In transcript is insufficient. Wayne Nat. Bank v. Kruger [Neb.] 95 N. W. 476. Affidavits used on hearing to open default judgment. Whitney v. Knowlton; 33 Wash. 319, 74 P. 469. 7. Motion to correct journal entry. Mil- ler V. Brown [Neb.] 95 N. W. 797. Motion to dismiss and reinstatement. Rawlings v. Casey [Colo. App.] 73 P. 1090. 8. Cudahy Packing Co. v. Skoumal [C. C. A.] 125 P.. 470. See 1 Curr. L. 130, n. 10 0. McCain Bros. v. Street, 136 Ala. 625, 33 So. 872. 10. Luman v. Golden Ancient Channel Mln. Co., 140 Cal. 700, 74 P. 307; Phillips V. Coburn, 28 Mont. 45, 72 P. 291. Memo- randum, which failed to state ground of award of new trial under Laws 1902, p. 1563, c. 580, held no part of record. New- bound V. Interurban St. R. Co., 86 N. T. S. 68. See 1 Curr. L. 131, n. 13. 11. O'Nell v. McLennan [Cal.] 73 P. 576. 12. Rawlings v. Casey [Colo. App.] 73 P. 1090. See 1 Curr. L. 130, n. 7. 13. Burns' R. S. 1901, §§ 543, 544. Moss Tie Co. V. Huff [Ind. App.] 70 N. E. 86. Rev. St. 1892, §§ 1090, 1091. Baggett v. Sa- vannah, P. & W. R. Co. [Fla.] 34 So. 564. Rev. St. 1899, § 3644, par. 7. Stoner v. Mau [Wyo.] 72 P. 193, 73 P. 548. See 1 Curr. L 131, n. 14. 14. Rev. St. 1892, §§ 1090, 1091. Baggett V. Savannah, P. & W. R. Co. [Fla.] 34 So. 664; Michigan City v. Phillips [Ind. App.] 69 N. B. 700. Applies to instructions re- fused. Alabama Const. Co. v. Wagnon Bros., 137 Ala. 388, 34 So. 362. See 1 Curr. L. 131, n. 14. 15. Code, 5 3752. Holscher's Heirs v. Gehrig [Iowa] 94 N. W. 486. 16. Snyder v. Philadelphia Co. [W. Va.] 46 S. E. 366. 17. Washington Nat. Bldg. & L. Ass'n v. Westfall [W. Va.] 47 S. B. 74. 18. Manley v. Wheeling & L. B. R. Co.. 24 Ohio Circ. R. 70. 19. De Garcia v. San Antonio & A. P. R. Co. [Tex. Civ. App.] 77 S. W. 276. 20. See 1 Curr. L. 131. ai, 22. State v. Fawcet't [Neb.] 96 N. W. 219. 23. It is proper to Incorporate term bills in the final bill [Rev. St. 1899, § 728]. Page 3 Cur. Law. APPEAL AND KBVIEW § 9G 1, 209 on a motion- for a new trial and on motion in arrest of judgment may be brought up by separate bills, though the better practice is to bring all matters up by one bill.^* A single bill of exceptions will not suffice to review different cases, though tried together by stipulation,^^ and a single cross bill will not suffice to bring up errors in favor of plaintiff in error in two cases separately appealed which were tried together below.^° Plaintiff, by cross bill of exceptions, cannot complain of a judgment in favor of a successful defendant, the error proceedings being brought by a defendant who was cast in the court below.^' The general rule is that the bill must state the ground of objection,^' and show that exceptions were taken to the rulings,^" otherwise they will be disre- garded on appeal;'" but on objection that the copy filed did not show that excep- tions were in fact taken, the court sent down to the circuit for the original bill.°* A bill of exceptions to the exclusion of testimony must show the ground of exclu- sion,'^ and other grounds assigned will not be considered.'' Where the statement or bill of exceptions fails to specify any particulars wherein the evidence fails to justify the verdict, the question whether it is excessive'* or is supported by the evi- dence cannot be considered.'" In order that the case may be reviewed on the merits, the bill of exceptions must show the motion for new trial, and the saving of proper exceptions." Bills of exception, in Montana, unlike statements on mo- tion for new trial, need not specify the particular errors of law on which the party relies." A paper referred to ia the bill must be annexed or identified beyond doubt,'* but failure to attach an exhibit referred to is not ground to strike where other questions are properly presented," and wherever, in an election case, it is possible to describe a contested ballot so as to dispense with the necessity of producing, and inspection of the originals, this should be done.*" Where a document has been Cole V. Stanley, 118 Ga. 259, 45 S. E. See 1 Curr. L,. 131, n. 18, 19. Harris v. Gano, 117 Ga. 950, 44 S. V. Roberts J. & R. Shoe Co. [Mo. App.] 78 S. "W. 52. See 1 Curr. L. 131, n. 17; 24. Hay v. Collins, 118 Ga. 243, 44 S. E. 1002. 25. 282. 26. B. 8. 27. MoMuIlen v. Butler & Co., 117 Ga. 845, 45 S. E. 258. 28. Question reserved on admission or ex- clusion of evidence. Fritzinger v. State, 31 Ind. App. 350, 67 N. B. 1006. A bUl of exceptions containing no speclflcations of sufflcienoy of evidence to Justify findings, and no assignments of error, cannot be con- sidered on appeal from an order denying a motion for new trial. Sather Banking Co. V. Briggs Co., 138 Cal. 724, 72 P. 352. The errors relied on for reversal must be specified (Code Civ. Proc. 5 308) either on appeal from order denying motion for new trial or from a Judgment. Schouweiler v. McCauU [S. D.] 99 N. "W. 95. See 1 Curr. L. 131, n. 20. 29. Bank of Liberal v. Anderson, 100 Mo. App. 657, 75 S. W. 189. Exceptions to the ruling of the trial court on a motion for nonsuit must appear in the stating or sub- stantive part of the bill. Hanna v. De Oar- mo, 140 Cal. 172, 73 P. 830. 30. Rev. Code Civ. Proc. § 303. Not cured by assignment of errors on appeal (Clark v. Mitchell [S. D.] 97 N. W. 358), nor by speci- fication of errors on motion for new trial 3 Curr. Law — ^14 (Wenke v. Hall [S. D.] 96 N. W. 103). No specification of particulars wherein evidence is insufficient to Justify decision of case tried to court. Boettcher v. Thompson [S. D.] 95 N. W. 874. 31. Words "duly excepted at the time," though faded, held sufliclently plain in orig- inal bill to show that exception was duly taken. Morris v. Missouri, K. & T. R. Co. [Mo. App.] 73 S. "W. 1004. 32. Southern Kansas R. Co. of Texas v. Crump [Tex. Civ. App.] 74 S. W. 335; Wat- son V. Williamson [Tex. Civ. App.] 76 S. W. 793. 33. Metropolitan L. Ins. Co. v. Gibbs [Tex. Civ. App.] 78 S. W. 398. 34. Graybill v. De Toung, 140 Cal. 323, 73 P. 1067. 35. Robertson v. Longley, 28 Mont. 128. 72 P. 423. 30. Hill V. Taylor, 99 Mo. App. 525, 74 S. W. 9; Smith v. Safety Fund Ins. Soc, 101 Mo. App. 696, 74 S. W. 168. 37. Nord V. Boston & M. Consol. Copper & Silver Min. Co. [Mont.] 75 P. 681. 38. Reference to exhibit "A" will not Include exhibit "B." Hammel v. Insurance Co. of Pa., 24 Ohio Circ. Ct. R. 101. Refer- ence by exhibit number not sufficient in Okla- homa. Bruce v. Casey-Swasey Co. [Okl.] 75 P. 280. See 1 Curr. L. 131, n. 30. 39. Hammel v. Insurance Co. of Pa., 24 Ohio Circ. Ct. R. 101. 40. S. Ct. Rule 25, (64 P. xl.). Langley V. Head, 142 Cal. 368, 76 P. 1088. 210 APPEAL AND EEVIEW § 90 1. 3 Our. Law. once included it may be referred to otherwise in the bill by apt words, if again read in evidence.*^ A statement in the bill that the accompanying transcript of evidence is full and correct, except as to certain omitted testimony, reciting it, adopts the recital as a part of the testimony.*'' On appeal, iu a writ of review, the return before the lower court and the evi- dence taken on the original hearing, certified as all the proceedings, wiU be re- garded as a sufficient bill of exceptions or statement of facts.*' A bill of exceptions cannot bring up the instructions, in Indiana.** Motion to strike out a bUl must be timely.*' (§ 90) 2. Settlement, signing, and filing.*^ — The bill must ordinarily be signed by the judge who heard the case,*^ and a bill signed by one of appellants' attorneys, after succeeding to the oflfice, without appellees' knowledge or consent, will not be considered.** The statute of Oalifornia providiug that a judge may settle a bill after expiration of his term of office, having been regarded as valid and acted upon for an extended period, will be sustained, though its constitu- tionality has never been expressly raised and decided.*' A bill will not be considered if not presented within the time limited by statute, or the course of practice of the court,'" notwithstanding the death of the trial judge,°^ or his absence from the state,'^ or a practice in the court below of entering an order reciting their filing, when they are in fact not filed,"' but there may be a nunc pro tunc order authorizing the filing of a bill,"* if the appellant was diligent in the preparation of it,"' and a Federal judge may, under extraordi- nary circumstances, allow a bill after the term, though there has been no exten- sion ;°'' likewise a judge sitting as a chancellor has discretion to allow exceptions to be filed nunc pro tunc, after expiration of the time limited."' The statute in 41. Scott V. La Porte [Ind.] 68 N. B. 278. 42. Shanks v. Citizens' General Elec. Co., 26 Ky. L. R. 811, 76 S. W. 379. 43. Corbett v. Civil Service Commission of Seattle, 33 Wash. 190, 73 P. IIIC. 44. Michigan City v. Phillips [Ind. App.] 69 N. E. 700. Original bill containing long- hand manuscript of the evidence. Bant v. Donly, 160 Ind. 670, 67 N. E. 503. 45. Too late after transcript, abstract, and brief are filed. Merriner v. Jeppson [Colo. App.] 74 P. 341. See 1 Curr. L. 134, n. 81. 46. See 1 Curr. 1,. 132. 47. A mere certificate by the court ste- nographer is not sufficient. In re O'Brien's Estate, 22 Pa. Super. Ct. 475. In Florida, matters set up in an evidentiary bill not authenticated by the trial judge will not be considered. Denson v. V^Timberly [Fla.] 36 So. 169. See 1 Curr. L. 132, n. 38. 48. Winters v. Coons [Ind.] 69 N. B. 458. 49. Code Civ. Proc. § 653. Miller v. En- terprise Canal & Land Co., 142 Cal. 208, 76 P. 770. 50. Emmett v. Farrow, 136 Ala. 512, 84 So. 932; Morris v. Thomasson [Ark,] 79 S. W. 790. Must be presented at same term unless extension granted. Koewlng v. Wil- der [C. C, A.] 126 F. 472; Barley v, Sutton, 24 Ky. L. R. 2381, 74 S. W. 238. Not signed within 30 days from rendition of verdict. Codd Co. V. Parker, 97 Md. 319, 55 A. 623. Service on opposite party is not enough [Gen. St. 1901, 5 4753]. State v. De Bouge, 67 Kan. 554, 73 P. 78. A bill tendered on July 80, after Judgment rendered June 30, is not "within 30 days." Mott v. Bruns- wick Pub. Co., 117 Ga. 149, 43 S. E, 716. Service on the 20th after certification on the 10th of the month is within the ten days allowed by the statute [Pol. Code, § 4, par. 8]. Rusk V. Hill, 117 6a. 722, 45 S. E. 42. A brief of evidence filed on the 11th, after motion overruled on the 1st of the month, is within 10 days. Walker v. Neil, 117 Ga. 733, 45 S. E. 387. In Virginia, bills of ex- ception may be signed within 30 days from the adjournment of the term at which the final judgment Is rendered [Acts 1901, p. 186, c. 172]. Lynchburg Cotton Mills v. Stanley [Va.] 46 S. E. 908. In Georgia, where the bill of exceptions is not sued out within the statutory period after the ruling complained of, it cannot be reviewed. Or- der allowing amendment to petition. Low- ery v. Xdelson, 117 Ga. 778, 45 S. B. 51. See 1 Curr. L. 132, n. 43. 51. Berea College v. Powell, 25 Ky. L. R. 1235, 77 S. W. 381. 63. Lengelsen v. McGregor [Ind.] 67 N. E. 524, 70 N. E. 248, 53. Illinois Cent. R. Co. v. Glasscock, 24 Ky. L. R. 1936. 72 S. W. 769, !54. Koewlng v. Wilder [C, C. A,] 126 P. 472. See 1 Curr. L. 132, n. 44. 55. Lengelson v. McGregor [Ind,] 70 N. E. 248. 50. Koewlng v. Wilder [C. C. A.] 126 F. 472. See 1 Curr. L. 132, n, 46. 57. Hinnershitz v. United Traction Co., 206 Pa. 91, 55 A. 841, 3 Cur. Law. APPEAL AND EBVIEW S 9C 2. 211 Utah authorizes relief against failure through excusable neglect, mistake, inad- vertence, or surprise, to serve tn time and settle a bill.^' Appellee by stipulation may waive his right to object that the bill was not filed in time,'* and objections to the filing of a biU and to the extension of time therefor are waived by exam- ination of the bill when tendered without objection.'" A bill of exceptions signed at a term subsequent to that at which the trial was had, and during that at which a motion for new trial was heard and decided, is available only to bring up errors on the motion for new trial."^ Where after reconvening pursuant to mandamus to settle and sign a bill of exceptions, the court, on refusal of plaintiff in error to amend his bill to show the truth, adjourns without day, it is without further power to allow and sign a bill."" Filing in the clerk's ofBce is not a presentation to the judge."* The bill must be signed by plaintiff in error or his counsel as well as presented within the statutory period.'* It is presumed that the trial court acted regularly in settling the bill of ex- ceptions,"" and the affidavit of one attorney that the proposed bill of exceptions was not served on himself, his associate, or the party they represent, is insuffi- cient to overcome the presumption of regularity of the trial court."" On being returned by the judge for correction a bill should be amended and retendered within a reasonable time, or it will be dismissed."' Where the defendant in error on being served with plaintiff's proposed bill retains it beyond the time allowed to prosecute error, proceedings may be begun on the return of the bill."' A bill allowed by the judge is not invalidated nor rendered incompetent, or incomplete, or defective, by failure on his parb to pass upon proposed amendments; if the party proposing them desires to rely on them he should take proper steps to require a ruling thereon." In Montana, where the appellant does not adopt the amend- ments proposed by the respondent, he must deliver the proposed statement and amendments to the judge for settlement within ten days,'" and failing, tlie court on appeal will not consider. the matters presented thereby.'^ In California, where the bill of exceptions is presented when the decision is made, the appellant can use it though the court does not actually settle it till a later date.'- The Ohio act of Oct. 22, 1903, regulating the preparation and allowance of bills of exception applies only to judgments rendered after January 1, 1903." A bill filed within an extension allowed by the court is valid,'* but the ex- tension must be made before the time allowed has expired," though in South Dakota, on good cause shown, the time may be extended after expiration of the 58. R. S. 1898, §§ 3286, 3005. Morgan v. Oregon Short Line R. Co. [Utah] 74 P. 523. 50. In re Dougherty's Estate, 139 Cal. 14, 72 P. 357. See 1 Curr. L. 133, n. 52. GO. Waning v. Eggers, 25 Ky. L. R. 1663. 78 S. W. 428. 61. People's Sav. Bank & Trust Co. v. Keith, 136 Ala. 469, 34 So. 925. 02. Frazier v. Weaver, 67 Kan. 829, 72 P. 792. 63. Porsythe v. Huey, 25 Ky. L. R. 147, 74 S. W. 1088. 64. O'ConneU Bros. v. Friedman, Keller & Co., 117 Ga. 948, 43 S. B. 1001. 65. 68. Jones V. St. John Irr. Co. [Idaho] 74 P. 129. 67. Retention 55 days after preparation in 3 days. Walker v. Wood, 119 Ga. 624, 46 S. E. 869. 68. Saxton v. Harrington [Nelj.] 94 N. W. 605. 69. Warren v. Wales [Neb.] 95 N. W. 010. 70. Code Civ. Proc. § 1173. Wright v. Mathews, 28 Mont. 442, 72 P. 820. 71. Wright V. Mathews, 28 Mont. 442, 72 P. 820. 72. Code Civ. Proc. § 649. In re Gordoa 142 Cal. 125, 75 P. 672. 73. Pittsburgh Coal Co. v. Toughiogheny & O. Coal Co., 68 Ohio St. 278, 67 N. B. 485. 74. Indefinite extension held to amount to an extension for the period within which a writ of error might be sued out. Koewliig V. Wilder [C. C. A.] 126 F. 472. See 1 Curr. L. 132, n, 47. 75. Swartz v. Davis [Idaho] 74 P. 800; City of Florence v. Irvine, 137 Ala. 277, 33 So. 888. Where time expire.^ on Sunday, order must be made on Saturday. Anniston Electric & Gas Co. v. Cooper, 136 Ala. 418, 34 So. 931. Leave to file not given until several days after motion for new trial overruled. Citizens' St. R. Co. v. Marvil, 161 Ind. 506, 67 N. E. 921. See 1 Curr. L. 133, n. 51. 212 APPEAL AND EEVIEW § 90 2. 3 Cur. Law. original period/' Unauthorized extensions of time will not invalidate a subsequent extension regularly procured, unless prejudice to opposing party be shown/^ and an extension of the time to the next term is not affected by an intervening special term.''* A stipulation extending the time is valid, though filed in another divi- sion of the court than that before which the case was tried.'" The rule author- izing the supreme court of the District of Columbia to prolong its term for the settlement of a bill is to be exercised only when invoked,*" and cannot be exercised after the end of the term at which the judgment was entered.*^ Time allowed to make and serve a case, or settle a bill of exceptions, until a certain day, excludes that day.*'' The bill must show that it was examined and approved by the judge as such,*' within the time allowed by law,** and that the judge who signed it caused it to be filed in the cause.*" The bill must be filed, in the court below,** after signa- ture, and a filing before signature is insufficient,*^ and proper filing must appear on the record.** Duty and enforcement.^^ — The court cannot refuse to settle a bill presented in proper time."" Where the trial justice, in Maine, disallows, or fails to sign and return the exceptions, the supreme judicial court, in a proper case, may allow them and grant a hearing.*^ Where it is the duty of the court to settle' the bill, mandamus is the exclusive remedy for its enforcement,"" but will not issue to compel the signing of a bill where the judge states that the bill proposed is not true, and that he has already signed a true one,'* or where he refuses it as in- complete,'* and the certification of a bill of exceptions to a judgment appearing 76. Comp. Laws, 1887, § 5093. McPher- son V. Julius [S. D.] 95 N. W. 428. 77. Tweto V. Horton, 90 Minn. 461, 97 N. W. 128. 78. Mayes v. Lane, 25 Ky. L. R. 824, 76 S. "W. 399. 79. Zumault v. Kansas City Suburban Belt R. Co., 175 Mo. 288, 74 S. W. 1015. See 1 Curr. L. 133, n. 52. 80. 81. Rule 2. Gordon v. Randle, 189 U. S. 417, 23 S. Ct. 635, 47 Law. Ed. 875. 82. Croco V. Hille, 66 Kan. 612, 72 P. 208; State V. Dyck [Kan.] 76 P. 488. 83. Lane v. Bowes [Ind. App.] 67 N. E. 1002; Howe v. White [Ind.] 69 N. E. 684; Brlneger v. Louisville & N. R. Co., 24 Ky. L. R. 1973, 72 S. W. 783; "Ward v. Ward [Tex. Civ. App.] 77 S. W. 829. A bill merely showing the judge's signature without any statement that he has examined or allowed it is not properly authenticated. Lane v. Bowes [Ind. App.] 67 N. E. 1002. See 1 Curr. L. 133, n. 65. 84. Bmmett v. Farrow, 136 Ala. 512, 34 So. 932. 83. Burns' Rev. St. 1901, 9 641. Howe v. White [Ind.] 69 N. E. 684. 86. Howe V. White [Ind.] 69 N. E. 684; Jay County Com'rs v. Bliss [Ind.] 69 N. E. 1003; Brennan Mercantile Co. v. Vickers, 31 Colo. 324, 73 P. 46; BrUce v. Casey-Swasey Co. [Okl.] 75 P. 280. A bill of exceptions signed but not filed In the court below is not in the record. Baut v. Donly, 160 Ind. (170, 67 N. B. 503. See 1 Curr. L. 133, n. 66. 87. A bill not showing that It was filed after signing Is no part of the record. Venezianl v. Morrissey, 161 Ind. 391, 68 N. E 682. Showing held sufficient. Howe v. White [Ind.] 69 N. E. 684. See 1 Curr. L. 133, n. 67, 68. 88. Either by record entry or certificate of the clerk. Howe v. White [Ind.] 69 N. E. 684; Jay County Com'rs v. Bliss [Ind.] 69 N. B. 1003. Pile marks and date of signature held to show proper filing. Baltimore & O. S. W. R. Co. V. Henderson, 31 Ind. App. 441, 68 N. E. 308. Where the bUl, other- wise regular, does not appear to have been filed below, only the record proper is be- fore the court. City of St. Charles v. Dee- mar, 174 Mo. 122, 73 S. W. 469; Smith v. Ramey [Mo. App.] 74 S. W. 436; Past V. Gray [Mo. App.] 78 S. W. 1048. See 1 Curr. L. 129, n. 77. 89. See 1 Curr. L. 134. 00. For, though an appeal will lie wheth- er the bill is made part of the record or not, the papers and other evidence used on the hearing, and the rulings on objections, can- not be of avail unless incorporated In a bill. State v. District Court, 28 Mont. 227, 72 P. 613. 91. Petition must be verified. Grattam V. Cobb, 98 Me. 200, 56 A. 645. 02. Hartmann v. Smith, 140 Cal. 461, 74 P. 7. Where after application to compel settlement the judge signs the bill, the application will be dismissed without costs. In re Donnelly, 140 Cal. xvii, 74 P. 139. The supreme and superior courts In Geor- gia, have concurrent jurisdiction to compel by mandamus the performance by officers of the latter court of any duty connected with the perfection of a bill of exceptions. If the blU cannot be perfected in the su- preme court it will be remitted to the su- perior court that application may be there made.' Cooper v. Nisbet, 118 Ga. 872, 45 S. E. 692. See 1 Curr. L. 134, n. 76. 93. State v. Maiden, 110 Tenn 487 76 S. W. 710. See 1 Curr. L. 134, n. 73. 3 Cur. Law. APPEAL AND EEVIEW § 9D. 213 to have been entered in exact 'compliance with the judgment of the supreme court will not be compelled."^ The allowance of a bill after expiration of the statutory period, no extension having been obtained,"' and no reasonable excuse for failure to procure an extension being shown, is discretionary,"' and mandamus will not issue to compel a settlement, though refusal was on another ground."* A statute authorizing bystanders to testify to the facts occurring at the trial, where the judge refuses to sign a proper bill, is not invalid as conferring judicial powers on them, since they do not by that act allow a bill of exceptions, but merely state the facts."" It must appear that the bill was presented to the judge and re- jected by him,^ and the affidavits must be filed within ten days from the filing of the bill.^ The attorney of a party is not a bystander competent to make affidavit further than to show appellants' dissatisfaction with the statement made by the judge.' Where the judge amends a bill by interlineations and erasures, the affi- davits of bystanders may show what the amendments are and what the truth is.* Amendment and vacation. — ^A bill may be amended, but only from a matter of record.' It must appear on review that "good cause" was shown for an amend- ment to a bill of exceptions, made after the statutory period for amendment, or it will be stricken out on motion." The supreme court cannot allow amendments to a bill of exceptions after it has been allowed, signed, and certified by the trial judge.'' Grounds for striking out a bill are shown helow Where the striking of the bill of exceptions from the transcript would be practically a decision of the case against the appellant, he must have due notice of the motion and proofs in sup- port thereof.* (§9) D. The settled case or statement of facts}" — The case must be settled by the judge who heard it,^^ notwithstanding his absence, holding court in another circuit,^" or an agreement of counsel.^' Where the statement is not filed during the time limited and no order appears extending the time, it will be stricken out, or not considered," notwithstanding an agreement of parties that it might be filed later,^" unless due diligence and a good excuse is shown.*' The time, how- 94. Lockhaven Trust & Safe Deposit Co. V. U. S. Mortg. & T. Co. [Colo. App.] 72 P. 602 95. Willis V. Felton, 119 Ga. 634, 46 S. E. 857 98. Hayes v. Clifford, 42 Or. 568, 72 P. 1. 97. Hayes v. Clifford, 42 Or. 568, 72 P. 1. 98. State v. District Court of Second Ju- dicial Dist. [Mont.] 74 P. 414. 99. Sand. & H. Dig. § 5849. Boone v. Goodlett & Co., 71 Ark. 677, 76 S. W. 1059. 1. Morris v. Thomasson [Ark.] 79 S. W. 790. 2. Sand. & H. Dig. § 6849. Boone v. Goodlett & Co., 71 Ark. 577, 76 S. W. 1059. 3. 4. Boone v. GoodljBtt & Co., 71 Ark. 577, 76 S. W. 1059. 5. Not by attaching unidentified exhibits after time for signing has passed. Huron Dock Co. V. Swart, 24 Ohio Clrc. R. 504. See 1 Curr. L. 134, n. 78. 6. Blackman v. City of Hot Springs [S. D.] 97 N. "W. 7. 7. Boyle v. Union Pac. R. Co., 25 Utah, 420, 71 P. 988. 8. A long statement by the person who "took down the evidence. Interposed between the conclusion of the bill and certificate of the judge, while unnecessary and Improper, does not vitiate the bill. Howe v. White [Ind ] 69 N. B. 684. A bill will not be strick- en from the transcript on the ground that It w^as not served on the adverse party prior to the settlement. Jones v. St. John Irr. Co. [Idaho] 74 P. 129. 9. Jones V. St. John Irr. Co. [Idaho] 74 P. 129. 10. See 1 Curr. L. 134. 11. Anker v. Smith, 86 N. T. S. 1062; Kennedy v. Birch [Tex. Civ. App.] 74 S. W. 593. 12. Equitable Ins. Co. v. Flshburne [S. C] 45 S. B. 204. la. Galveston, H. & S. A. R. Co. v. Per- kins [Tex. Civ. App.] 73 S. W. 1067; Gal- veston, H. & S. A. R. Co. V. Keen [Tex. Civ. App.] 73 S. W. 1074. 14. Lemon v. Ward, 3 Ariz. 219, 73 P. 443; Conner v. Downs [Tex. Civ. App.] 75 S. W. 335; Jones v. Herriok, 33 Wash. 197. 74 P. 332. Appeal from order and from denial of motion to set aside order. So much of statement as relates to the order set aside. Lamono v. Cowley, 31 Wash. 297, 71 P. 1040. The period for filing a state- ment of facts begins to run only after de- cision of a motion to vacate, where the judgment, being one of dismissal, was irreg- ularly entered. State v. Huston, 32 Wash. 154, 72 P. 1016. See 1 Curr. L. 134, n. 88. 15. Pearson v. West [Tex. Civ. App.] 75 S. W. 336. 214 APPEAL AND EEVIEW § 9D. 3 Cur. Law. ever, may be extended/' and the court is not limited to one extension,*' but a statement filed in pursuance of an extension granted for more than the statutory period will not be considered.*" That appellant was uncertain whether he could prosecute his appeal owing to lack of funds, will not excuse failure to move for an extension.^" In California, the evidence as preserved in a statement made to be used on a motion for a new trial will be examined on appeal from the judgment, though the motion was never heard and the appeal was taken after the statutory period limited for bringing up the evidence.''* The case made need not be served on parties who did not appear at the trial.-- Where appellee is not served with the case within the time limited by the rules, he is authorized to apply for an order declaring that appellant has waived his right to review other than presented by the judgment roll."' Where, on appeal by one defendant, the proposed case or statement is not served on another in whose favor a judgment was rendered, the appeal as to him only brings up the judgment roll."* Where defendants have filed exceptions to a referee's report, they are only entitled to serve a case where such exceptions are overruled, the report is con- firmed, and the defendants appeal from the order of confirmation."^ In Michigan, where the testimony in a chancery case is taken before a commissioner, appellant may have the ease settled by the court, or the testimony transmitted by the register, but having elected, he must stand by his election."" Though a party moving for a new trial on the minutes has lost by lapse of time his right of appeal from the order denying the motion, he nevertheless has a right to have settled a statement of the case for use on appeal from the judgment, and is not limited to the use of such statements only as have been settled in the proceedings on motion for new trial."' A judge cannot fix, in an adjournment order, a place outside the county, for settlement of a statement of facts except on consent of parties,^' and where an order of adjournment is erroneous in that respect and the judge was without the county on the day named, a new notice fixing a proper place on a subsequent day is proper."* Where a statement of facts has not been legally certified or approved as re- quired by statute, it cannot be considered on appeal.'" A statement bearing merely the approval and signature of the trial judge will be presumed to have been made up by him in consequence of a disagreement of parties as authorized by statute.'* Matters relative to the contents of statements are discussed below.'" The evi- le. Teelcer v. San Antonio Trao. Co. [Tex. Civ. App.] 76 S. W. 780. 17, Nunc pro tunc entry not sufficient. Ft. Worth & D. C. R. Co. v. Roberts [Tex. Civ. App.] 78 S. W. 1000. 18. Van Auken v. Garfield Tp., 66 Kan. 594, 72 P. 211. 10. In re Richards' Estate, 139 Cal. 72, 72 P. 633. The time cannot be extended in Washington beyond 90 days, even by stipulation, and a statement filed after that period will be stricken. Thomas v. Lin- coln County, 32 Wash. 317, 73 P. 367. ao. Harpel v. Harpel, SI Wash. 296, 71 P. 1010. 21. Kelly V. Ning Tung Ben. Ass'n, 138 Cal. 602, 72 P. 148. 22. Johnson v. Ware, 67 Kan. 840, 73 P. 99. 23. Mollvaine v. Stein son, 85 App. Dlv. 562, 13 Ann. Gas. 281, 83 N. Y. S. 285. 24. Mcllvaine v. Steinson, 90 App. Div. 77, 85 N. T. S. 889. 25. Bates v. Holbrook, 41 Mlso. 129, 83 N. T. S. 929. 26. Comp. Laws 1897, §§ 552, 10188. Hughes V. Love [Mich.] 98 W. W. 977. 27. Code Civ. Proc. § 950. Vinson v. Los Angeles P. R. Co., 141 Cal. 151, 74 P. 767. 28. 29. Prospector's Development Co. v. Brook, 31 Wash. 187, 71 P. 774. SO. Prospector's Development Co. v. Brook, 31 Wash. 187, 71 P. 774; Galveston, H. & S. A. R. Co. v. Perkins [Tex. Civ. App.] 73 S. W. 1067; Same v. Keen [Tex. Civ. App.] 73 S. W. 1074; Kennedy v. Birch [Tex. Civ. App.] 74 S. W. 593. Judge's certificate held sufiicient, though not dated, not referring to any pages or exhibits, nor containing any order referring to exhibits or copies. O'Nelle V. Ternes, 32 Wash. 528, 73 P. 692. 81. Rev. St. 1896, art. 1379. Bath v. Hous- 3 Cur. Law. APPEAL AND EBVIEW 8 9B. 215 dence and instmctions need not be included when there is no exception involving them," and no statement of the case on appeal is necessary, where the pleadings, verdict and judgment show the grounds of error.'* The court properly declines to report evidence that presents no question of law.'" When the term of ofiBce of the trial judge expires before the time set for serv- ing a case and suggesting amendments, no time being otherwise fixed within which it is to be settled, jurisdiction to settle the case is preserved, but only until the expiration of the time for suggesting amendments.'" Consent to the settlement of a statement before the statutory period for offer- ing amendments has passed is bindtug and precludes subsequent motion for cor- rection in the absence of fraud or misrepresentation.'^ Certiorari will not lie to have a statement approved nunc pro tunc, where no effort was made to procure approval," and "certiorari will be denied where appel- lant has retained a counter case seasonably served until too late to have it settled.'" Where no proceedings to settle a statement appear to have been taken, a paper purporting to be such statement will not be returned to the trial judge for the purpose of certification, but will be stricken.*" Motions to strike out a statement because not filed in time are addressed to the trial court.** A statement of facts procured by misrepresentation of appel- lant's counsel is properly stricken out on motion,*^ but a statement filed after time will not be stricken where it came into the judge's hands in time and ha delayed action thereon because of disagreement of parties.*' Defendant may withdraw his petition for a new trial, but his action will not withdraw the transcript of evidence and rulings he has prepared, and plaintiff who has also petitioned without preparing a transcript will be permitted to use de- fendant's on paying its cost.** (§9) E. Abstracts. Necessary contents.*^ — All matters relied on for re- versal,*' or which counsel wish to urge, must be abstracted.*' The abstract of the record proper must show that a motion for new trial was filed,*' that an appeal was taken,*' and proper proceedings to preserve the evidence."*" The notice of appeal ton & T. C. R. -Co. [Tex. Civ. App.] 78 S. W. 99S. SSa. Concise statements as to conveyances are favored by appellate court, In a settled case. Abbreviated statements of contents and legal effect of deeds are commendable and will be assumed to be true unless shown to be unwarranted. Finnegan v. Brown, 90 Minn. 396, 97 N. W. 144. A report calling for interpretation of a clause of a will sliould contain the whole will Woodbrldge V. Jones, 183 Mass. 549, 67 N. B. 878. Ap- pellant cannot have incorporated into the case on appeal the exceptions of the pre- vailing party to the exclusion of evidence, where the decision shows that it was found' ed on facts other than those to which the excluded evidence related. In re Levy's Wni, 91 App! Dlv. 483, 86 N. T. S. 862. Depositions and exhibits held properly part of statement, though not literally attached or referred to by name or number In Judge's certificate. O'Neile v. Ternes, 32 Wash. B28, 73 P. 692. A recital in a case made, that It contains all the "proceedings," sufficiently shows that It contains all the evidence. John Deere Plow Co. v. Jones [Kan.] 75 P. 1039. 33. Parker v. Southern Exp. Co., 132 N. C 12S, 43 S. B. 603. 34. Cape Pear & N. R. Co. v. Stewart, 132 N. C. 248, 43 S. B. 638. 35. Home v. Hutchins [N. H.] 54 A. 1024. 36. Butler v. Scott [Kan.] 75 P. 496. 3T. State v. Griffin, 32 Wash. 67, 72 P. 1030. 38. Galveston, H. & S. A. R. Co. v. Per- kins [Tex. Civ. App.] 73 S. W. 1067. 39. Stroud V. Western Union Tel. Co., 133 N. C. 253, 45 S. B. 692. 40. City of Sprague v. Meagher, 32 Wash. 62, 72 P. 708. 41. Wilson v. Tyler Coffin Co. [Tex. Civ. App.] 79 S. W. 327. 42. Corralltos Co. v. Mackay, 31 Tex. Civ. App. 310, 72 S. W. 624. 48. Bull v. San Antonio & A. P. R. Co. [Tex. Civ. App.] 78 S. W. 525. 44. Gladding v. Union R. Co. [R. I.] 54 A. 1060. 45. See 1 Curr. I* 135. 40. Brennan Mercantile Co. v. Vickers, 3t Colo. 324, 73 P. 46; Carlin V. Freeman [Colo. App.] 75 P. 26. 47. Instructions complained of. Grand Lodge Locomotive Firemen v. Orrell, 206 in. 208, 69 N. B. 68. See 1 Curr. L. 135, n. 96. 48. Bdwards v. Kelso [Mo. App.] 72 S. W. 726. See 1 Curr. L. 135, n. 99. 49i Morehouse v. Doxsee [Iowa] 99 N. W. 143. See 1 Curr. L. 135, n. 2. 216 APPEAL AND EEVIBW §" 9E. 3 Cur. Law. need not be set out in full," but the fact that it was served must be shown." Ex- ceptions must be shown,'' and an abstract must comply with the rules of court.'* Instructions must be numbered.'" Eeview will not be made of matters insuffi- ciently abstracted.'" The report of a referee, containing his findings of fact, may be included, though the case is ia equity and triable de novo." A statement in the abstract that the title of the case as stated in the transcript and certificate is a clerical error will not entitle the transcript to consideration.'* A printed abstract is necessary in Missouri, notwithstanding the appeal is taken in the long form and a full transcript is filed in the appellate court,'" and the refiling of an abstract used in another ease in which the pleadings were dissimilar and a differ- ent judgment rendered is not sufficient, notwithstanding a stipulation of counsel."" Proceedings not to ie stated in extenso.^^ — The substance only of the evidence should be set out,"^ and where the appeal is on a full record, the abstract need only contain a recital of the necessary facts."' Supplemental or counter abstracts.^* — Where appellees are not satisfied with appellant's abstract, they are entitled to file one supplying the omission," and ap- pellant's abstract if undenied by the appellee will be taken as a true statement of the contents of the record,"® unless the record itself sets out a notice referred to in the abstract, in which case the appellee may challenge its sufficiency without an amended abstract."' An amended abstract by appellee must point out specific- ally the defect in appellant's abstract, or it will be taken as a fair statement of the record,"' and a mere denial that translations of letters in a foreign language set out in appellant's abstract are correct will not put their correctness in issue."" Auckland v. Lawrence [Colo. App.] 794; Carlin v. Freeman [Colo. App.] 26; Jewell v. Shaw [Colo. App.] 75 BO. That the time for filing the bill of exceptions wag properly extended where it was filed in vacation. That it appears In bill is not sufficient. Edwards v. Kelso [Mo. App.] 72 S. W. 726. Failure of the abstract to show the proceedings to pre- serve the evidence Is not fatal where there is a transcript showing that the proceed- ings were regular. Burget v. Incorporated Town of Greenfield, 120 Iowa, 432, 94 N. W. 933. 51. Merrill v. Tlmbrell [Iowa] 95 N. W. 237; Stearns Paint Mfg. Co. v. Comstock, 121 Iowa, 430,- 96 N. W. 869. 52. Morehouse v. Doxsee [Iowa] 99 N. W. 143. 53. 74 P. 75 P. P. 23. 54. On appeal from appellate court. In Illinois, must be indexed and contain opin- ion. Chadwick v. People, 206 111. 122, 68 N. E. 1108. Must be Indexed. Ernst v. Sohmitz, 207 111. 604, 69 N. E. 923. Must show all exceptions relied on. Carlin v. Freeman [Colo. App.] 75 P. 26. See 1 Curr. Li. 136, n. 3. R5. Assignment of error In refusing cer- tain numbered instruction presents no ques- tion where no such' number is in the ab- stract. Pittsburg, etc., R. Co. v. Hewitt, 202 111. 28, 66 N. B. 829. See 1 Curr. L. 135, n. 6. 56. Evidence and Instructions. Silver Springs, O. & G. R. Co. v. Van Ness [Fla.] 34 So. 884. Where the entire charge as given is not set out, the refusal of request- ed instructions cannot be reviewed. City of Pueblo V. Froney [Colo. App.] 71 P. 893. Where the evidence is not briefed, assign- ments of error depending thereon will not be considered. Lane v. Williams, 118 Qa. 167, 44 S. B. 993; Wall v. Mercer, 119 Ga. 346, 46 S. E. 420. Where the printed ab- stract is only of the record proper, which shows no error, the Judgment will be af- firmed. McQueen v. Groff [Mo. App.] 79 S. W. 734. See 1 Curr. L. 135, n. 97. 57. McCormick Harvesting Maoh. Co. v. Pouder [Iowa] 98 N. W. 303. 58. Smith v. Brown [Iowa] 98 N. W. 567. 59. McQueen v. Groff [Mo. App.] 79 S. W. 734. 60. Laclede County Bank v. Jones, 175 Mo. 631, 74 S. W. 998. 61. See 1 Curr. L. 135. 62. Omission of cross-examination imma- terial. Wolf V. Des Moines Elevator Co. [Iowa] 98 N. W. 301. 63. Reagan v. St. Louis Transit Co. [Mo.] 79 S. W. 435. 64. See 1 Curr. L. 136. 65. Venner v. Denver Union Water Co. [Colo.] 75 P. 927; Backhaus v. Buells, 43 Or. 558, 72 P. 976. 66. Merrill v. Timbrell [Iowa] 95 N. W. 237; Stearns Paint Mfg. Co. v. Comstock & McQuiston, 121 Iowa, 430, 96 N. W. 869. 67. Merrill v. Tlmbrell [Iowa] 95 N. W. 237. 68. Shebek v. National Cracker Co., 120 Iowa, 414, 94 N. W. 930. An additional ab- stract denying the correctness of appel- lant's In a general way and printing evidence without reference to the original will be stricken. See v. Wabash R. Co. [Iowa] 99 N. W. 106. 69. Schneider v. Schneider [Iowa] 98 N. W. 159. 3 Cur. Law. APPEAL AND EBVIEW § lOA. 317 A denial and additional abstract may be stricken for delay in filing/" it presenting no jurisdictional fact.'^ Where an amended abstract filed by appellee supplies omissions in tbe original and affords assistance to the court, its cost will not be taxed to appellee on affirmance of the decree/^ but the cost of printing an unneces- sarily prolix amendment will be taxed to the party filing it/° and where in divorce appellant's abstract is imperfect, appellee should be allowed to file an additional one at appellant's expense, or if she be financially unable, appellant should be ruled to furnish a complete abstract or furnish her money with which to do soJ* Where no motion to dismiss is made, appellant will be allowed to amend his ab- stract without terms by stating from what order the appeal is taken.'" An ap- pellee whose demurrer to appellant's pleading has been sustained cannot contradict statements of fact in the pleading demurred to, and an amended abstract attempt- ing it will be stricken.'^' An insuflBcient abstract is cured by filing a sufficient supplementary one,''' and appellant's failure to furnish an abstract may be healed by respondent's print- ing one.'* Failure to copy into the record an agreement to extend time for filing a bill of exceptions is cured by a statement in the abstract of both parties that it was filed.'" § 10. Transmission of proceedings and evidence to reviewing court. A. Form and contents of transcript or return."' — The transcript should contain only such papers as are necessary to an understanding of the questions raised,'^ exclud- ing their formal parts,*^ but an incomplete transcript made under direction of ap- pellant's counsel wiU in the fourth circuit necessitate dismissal of the appeal.*' Fot, however, in the seventh circuit, nor in Nebraska, where the remedy is by suggesting diminution of the record.'* It is not necessary that the praecipe for a transcript be included, but where less than the entire record is ordered, the writ- ing specifying what is desired must be included." The transcript must show the pleadings,'* and in chancery appeals must include the testimony and an abstract thereof in narrative form will not be considered." The original files will not take the place of a transcript." The transcript should be paged and indexed.'* TO. And the cost thereof taxed to the party filing. Ridgeway v. Jewell [Iowa] 96 N. "W. 410. 71. Reed v. Cunningham, 121 Iowa, 655, 96 N. W. 1119. 72. Wllkle V. Sassen Ilowa] 99 N. W. 124. 73. Wlssler V. City of Atlantic [Iowa] 9S N. W. 131. 74. Benham v. Benham, 208 111. 98, 70 N. B. 30. 75. Neeley v. Roberts [S. D.] 75 N. W. 921. 76. "Whited v. Iowa Cent. R. Co. [Iowa] 9* N. W. 131. 77. White V. Missouri Pac. R. Co., 98 Mo. App. 542, 72 S. W. 716. And failure of ap- pellant's abstract to show a necessary fact may be cured by appellees. Lapsley v. Mer- chants' Bank of Jefferson City [Mo. App.] 78 S. W. 1095. 78. Rev. St. 1899, 9 863, Rule 15. W. W. Kimball Co. v. Deaton, 102 Mo. App. 45, 74 B. "W. 427. 79. Zumault V. Kansas City Suburban B. R. Co., 176 Mo. 288, 74 S. W. 1015. 80. See 1 Curr. L. 136. 81. Wolcott's Estate v. McCormlck Har- vesting Maoh. Co. [Neb.] 96 N. W. 216. See 1 Curr. L. 136, n. 12. 82. Rule 7. Greene v. Montana Brew. Co., 28 Mont. 380, 72 P. 751. 83. Williams Bros. v. Savage [C. C. A.] 120 P. 497. See 1 Curr. L. 136, n. 13. 84. Wolcott's Estate v. McCormlck Har- vesting Mach. Co. [Neb.] 96 N. w: 216. An appeal will not be dismissed on motion on the ground that the record is insufficient, that being a matter to be determined at the hearing on the merits or to be corrected by certiorari for a diminution of the record. Merrlman v. Chicago, D. & V. R. Co. [C. C. A.] 120 P. 240. See 1 Curr. L. 136, n. 13. 85. Burns' R. S. 1901, § 661; Acts 1903, p. 340, c. 193, § 7. Rutherford v. Pruden- tlon Ins. Co. [Ind. App.] 70 N. B. 177. 86. Complaint Improperly omitted from transcript on change of venue held prop- erly certified on appeal. Southern Ind. R. Co. v. Martin, 160 Ind. 280, 66 N. B. 886. See 1 Curr. L. 136, n. 14. 87. Wertz v. Wertz, 20 App. D. C. 98. 88. A praecipe for a transcript is not sat- isfied by an original bill of exceptions. Da- vis V. Kendall, 161 Ind. 412, 68 N. E. 894. See 1 Curr. L. 136, n. 16. 8». Rule 3. Smith v. Sutton [Ind. App.] 69 N. B. 688. See 1 Curr. L. 136, n. 17. 213 APPEAL AND EBVIEW § lOB. 3 Cur. Law. (§10) B. Certification and authentication.'"' — The transcript must be duly certified by the clerk/^ under seal."^ The bill of exceptions must appear in the transcript immediately following the recital of its filing."^ In Indiana and Ne- braska, it may appear in the original or by copy/* but unless embraced or copied as required by the statute, it will not be considered."^ If not properly authenti- cated by the clerk of the district court, the bill is not properly in the record, and will not be examined."" Wliere the case is triable de novo on appeal, a transcript of evidence not properly entitled in the case cannot be considered."' The circuit court of appeals can act only upon a record that comes fjora the court below prop- erly certified; it cannot make its own record by permitting the withdrawal and refiling of a record of a prior appeal."^ (§10) C Transmission, filing, and printing. ^^ — The appeal will be dis- missed if the transcript is not filed within the time prescribed by law or rule of court,^ though jurisdiction is not lost by failure to file in time,'' especially where the duty lies upon the judge of the trial court;" but the circuit cpurt of appeals can only acquire jurisdiction of a cause on error when the writ and record are returned to the next ensuing term of the court to which it is made returnable, unless suflicient cause is then sho^vn why it is not so returned.* Before an appeal founded upon a case prepared and settled can be heard in the appellate division, the judge trying the ease should order the printed papers to be filed with the clerk of the appellate division." The clerk may properly refuse to print that portion of the record which em- bodies the evidence before the cost thereof is paid, it not being of service in de- ciding any question of law." The number printed will be limited in a proper case.'' As many copies of a necessary plat must be filed as there are copies of the printed record and briefs.' BO. Sea 1 Curr. L. 136. 91. OUgsohlager v. Grell [Okl.] 75 P. 1131. On an appeal other than from an order on motion for new trial, the papers contained in the transcript must be identi- fied by a proper certificate. Village of Sand Point V. Doyle [Idaho] 74 P. 861. Where a case is presented to the supreme court on appeal on a transcript of the record, the oertlfloate must specifically show that the record is a full, true and complete tran- script. Bruce v. Casey-Swasey Co. [Okl.] 75 P. 280. See 1 Curr. L. 136, n. 23. 82. Where the record is properly authen- ticated, the fact that the special bill of exceptions containing the exceptions has no seal will not preclude their review. Nich- ols V. Baltimore & O. S. W. R. Co. [Ind. App.] 70 N. B. 183. A case made, not attested by the clerk or having the seal of the court attached, is not sufficiently authenticated, notwithstanding signature by the judge. Oligschlager v. Grell [Okl.] 75 P. 1131. See 1 Curr. L. 136, n. 24. 93. Knickerbocker Ice Co. v. Lewis [Ind.] 67 N. B. 188. 04. Burns' Rev. St. 1901, §§ 638a, 061. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229; Schllchter v. Taylor, 31 Ind. App. 164, 67 N. E. 556; Jay County Com'rs v. Bliss [Ind.] 69 N. E. 1003. Misnomer of party in praecipe Is immaterial. Chicago, I. & L. R. Co. V. Cunningham [Ind. App.] 09 N. B. 304. Laws 1881, p. 204, o. 28. Van Auken V. Mlzner [Neb.] 97 N. W. 334. 9S. Burns' Rev. St. 1901, §§ 638a, 661, 662. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. B. 229. Bill held sufficiently Identi- fied. Broadstreet v. Hall [Ind. App;] 69 N. E. 415. 98. Van Auken v. Mizner [Neb.] 93 N. W. 1121; Porter v. Detrick [Neb.] 96 N. W. 271: U. S. Nat. Bank v. Hanson [Neb.] 95 N. W. 364; Hammer v. Coglizer [Neb.] 95 N. W. 681; Van Auken v. Mizner [Neb.] 97 N. W. 334. 97. Smith v. Brown [Iowa] 98 N. W. 567. 98. Merrlman v. Chicago, D. & V. R. Co. [C. C. A.] 120 F. 240. 99. See 1 Curr. L. 137. 1. Fonda v. Jackson, 203 111. 113, 67 N. B. 741. Bankruptcy case. Williams Bros, v. Savage [C. C. A.] 120 P. 497. Code Civ. Pro. S 592, as amended in 1901. Snell v. State [Neb.] 97 N. W. 329. Transcript not accompanied by filing fee cannot be filed. Hilts V. Hilts, 43 Or. 162, 72 P. 697. See 1 Cur. L. 137, n. 30. 2. Drexel v. Reed [Neb.] 95 N. W. 873; Hagadorn v. Wagoner [Neb.] 96 N. W. 184. Appeal fro,m board of review. City Council of Marlon v. Cedar Rapids & M. C. R. Co., 120 Iowa, 259, 94 N. W. 601. See 1 Curr. L. 137, n. 31. 3. Drexel v. Reed [Neb.] 95 N. W. 873. 4. Pender v. Brown [C. C. A.] 120 F. 496. 6. Odendall v. Haebler, 91 App. Dlv. 372, 86 N. T. S. 599. C. Allis v. Hall [Conn.] 66 A. 637. 7. Testimony was taken in camera and copies of the "record" printed were only as many as would supply the court where a trade secret was to be protected. Stone v. Goss [N. J. Err. & App.] 65 A. 736. 3 Cur. Law. APPEAL AND EEVIEW S lOE. 219 Appellants in Louisiana have three judicial days after return day within which to file the transcript." The time limited for filing a transcript in California is suspended by a motion for new trial.^" (§ 10) D. Amendment and coirections. In the reviewing court}'^ — A prob- able clerical error in the transcript cannot be corrected by the appellate court. Eesort must be had to certiorari;^- and in Nebraska, where the transcript is in- complete or incoriect in some particular, the appropriate remedy is to procure an additional or corrected transcript duly certified, not to move to strike it from the files.'^ Where the record on appeal in a bankruptcy case does not clearly set forth facts necessary to a determination of the questions involved, it will be remanded to the district court with directions to have the facts fully reported to it and to pass on the same.^* Affidavits will not be received to supply omissions from the transcript of the record,^" nor will the court try the correctness or completeness of the transcript on affidavits, nor require the clerk of the loM'er court to produce the original record.^* The appellate court cannot try on affidavits the question whether the bill of exceptions was not in fact signed and filed out of time, the record showing differently.^'' The Texas court of civil appeals has power on affida- vit to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction,** but it cannot consider affidavits showing that a proposed state- ment of facts was submitted to respondent's counsel, who declined to agree thereto, and that the judge thereupon adopted the statement found in the record. *° The record cannot be corrected upon oral representations of counsel,'"' nor will the case on appeal be amended to show an assertion of counsel of his view of the law applicable to the facts of the case.-* Where the averments in an application t. 17. See 1 Curr. L. 155. 18. Construction of contract. Raymond v. Tarrington, 96 Tex. 443, 72 S. W. 580. 19. Art. 6, I 88. Funkhouser v. Spahr [Va.] 46 S. B. 378. SO. See 1 Curr. D. 155. 21. Suit to set aside trust deed for duress. Turner v. Overall, 172 Mo. 271, 72 S. W. 644. See 1 Curr. L. 155, n. 90. 22. American Zinc, Lead & Smelting Co. V. Markle Lead Works, 102 Mo. App. .158, 76 S. W. 668. 23. Guthrie v. Guthrie [Neb.] 93 N. W. 1131. Where the appellate division has the same power over the facts that the trial court had, it will consider evidence stricken out below, but included In the record. Ap- peal from surrogate [Code Civ. Proc. § 2586]. In re Rice's Will, 81 App. Div. 223, 81 N. T. S. 68. 24. Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129. 25. Turner v. Overall, 172 Mo. 271, 72 S. W. 644; Bowdle v. Jencks [S. D.] 99 N. W. 98; Arabian Horse Co. v. Bivens [Neb.] 96 N. W. 621; Finlen v. Heinze, 28 Mont. 548, 73 P. 123; Searerns v. Costello [Ariz.] 71 P. 730; Hunter v. Guth [Colo. App.] 73 P. 1089; Brown v. Fitcher [Minn.] 97 N. W. 416; Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 559; International & G. N. K. Co. v. Startz [Tex.] 77 S. W. 1. Will contest. Hunt V. Phillips [Wash.] 75 P. 970. Suit to quiet title. City of Port Townsend v. Lewis [Wash.] 75 P. 982. Suit to declare trust. Funk v. Hensler, 31 Wash. 528, 72 P. 102. 26. Rulofson v. Billings, 140 Cal. 452, 74 P. 35; Abernathy v. Reynolds [Ariz.] 71 P. 914. To be cause for reversal, the bill of exceptions must show that evidence im- properly admitted was a basis for the Judg- ment, where the trial was without a Jury. Byrnes v. Bley [Neb.] 97 N. W. 298. 27. American Zinc, Lead & Smelting Co. V. Markle Lead Works, 102 Mo. App. 158, 76 S. W. 668. 28. Danforth v. Fowler [Neb.] 94 N. W. 637. 29. Action by receiver in supplementary proceedings to avoid chattel mortgage. Brunnemer v. Cook & Bernheimer Co., 89 App. Div. 406, 85 N. T. S. 954. 30. U. S. V. Hung Chang, 126 P. 400. 31. Shoup V. Shoup, 205 Pa. 22, 54 A. 476. 32. In re Huntley's Will [S. C] 45 S. E. .132; Klicka v. Klicka, 105 111. App. 369; In re James' Estate [Neb.] 97 N. W. 22; Ribble v. Furmin [Neb.] 98 N. W. 420. See 1 Curr. L. 155, n. 95. 33. Ky. St. 1899, § 4211. Hensley v. Met- calfe County Court, 25 Ky. U R. 204, 74 S. W. 1054; Meredith v. Com., 25 Ky. L. R. 455, 76 S. W. 8; Hodges v. Metcalfe County Court, 25 Ky. L. R. 772, 76 S. W. 381. 34. State V. Smith, 176 Mo. 90, 75 S. W. 586. 3 Cur. Law. APPEAL AND EEVIBW § 13B. 241 whole case, and not merely the assessment of damages and benefits, is appealable to the supreme court, through the circuit where the case is tried de novo.'" In North Carolina, the court hears the case on the facts alleged in the pleadings, and plain- tiffs are not restricted to the relief demanded in their prayer for judgment, but may ha-ve any additional or different relief not inconsistent with the facts alleged in their complaint.'" On appeal from a justice's judgment refusing to open a default, the' superior court may disregard the justice's findings of fact and hear the matter anew.'' (§ 13) B. Scope in general.^^ — In hard eases the court will be diligent to as- sure itself that nothing occurred at the trial to appellant's prejudice.'" Where jurisdiction attaches only by reason of the validity of a tax being questioned, review will extend only so far as to decide that question.*" Where after an application to file a bill of review was denied, the court considered and denied on the merits a second application to file an amended bill, an appeal from the latter order brought up the entire question of the right to file the bill on the merits.*^ The ruling on a motion for judgment on the pleadings cannot be reviewed if it appears that the judgment conforms to and is sustained by the pleadings.*" An appeal from a final order in mandamus proceedings presents both the facts and the law for review.*' The question of the measure of damages does not arise on appeal from sustaining de- murrer to the evidence for failure to show a cause of action.** The grounds on which a divorce was granted may be considered in determining the propriety of the award of alimony, though the judgment granting the divorce cannot be reviewed, for lack of authority in the court.** Moot questions*' will not be decided.*' Unnecessary points will not be consid- ered.** Error in refusing to discharge a receiver or increase his bond may be waived by allowing his appointment to become conclusive through failure to appeal.** Error reaches only matter of law.^" — The function of the supreme court of Kan- sas is to review alleged errors, and it will not make findings of fact nor canvass the record for that purpose."* On appeals in cases tried to the court, errors of law 35. Rev. St.: 1899, § 8331. King's Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 557, 75 S. "W. 679. 36. "Voorhees, Miller & Co. v. Porter [N. C] 47 S. B. 31. 37. Turner & Son v. Case Threshing Mach. Co., 133 N. C. 381, 45 N. E. 781. 38. See 1 Curr. L. 156. 39. Schultze v. Goodsteln, 82 App. Dlv. 316, 81 N. T. S. 946. 40. Burguieres v. Sanders, 111 La. 109, 35 So. 478; of. Henry v. Thurston County, 31 Wash. 638, 72 P. 488. See Jurisdiction, 2 Curr. L. 627, n. 25. 41. Board of Councllmen of City of Frank- fort V. Deposit Bank [C. C. A.] 124 F. 18. 4a. Danforth v. Fowler [Neb.) 94 N. W. 637. 43. People V. "Wells, 85 App. Dlv. 378, 83 N. T. S. 376. 44. Blalook & Co. V. Clark & Bro. [N. C] (5 S. B. 642. 45. Greer v. Greer, 25 Ky. L. R. 655, 76 9. W. 166; Donnelly v. Donnelly, 25 Ky. L. R. 1543, 78 S. W. 182. 46. See 1 Curr. L. 156, n. 14. 47. American Book Co. v. Kansas, 193 XJ. S. 49, 24 S. Ct. 394; Davis v. Jasper, 119 Ga. 57, 45 S. B. 724. Such as the con- struction of statutes not material to ap- pellant. Green v. Doerwald [Neb.] 96 N. 3 Curr. Law — 16 "W. 634. Propriety of decree limiting the use of a building to purposes other than the sale of intoxicating liquors not reviewed after expiration of the time limited. Pel- lett V. Fisher [Iowa] 94 N. W. 469. Term of office In regard to which mandamus was asked, expired two years previous to hear- ing. Lindsey v. Kerr [Iowa] 97 N. W. lOOO. On settlement of decree enjoining one secret society from using substantially same ritual as another, the court will not examine rituals offered to determine whether they differ. Great Hive of Ladies of Maccabees v. Su- preme Hive of Ladies of Maccabees [Mich.] 99 N. W. 26. Action for usurpation of public office; error dismissed where terms of office have expired. State v. Condon, 189 U. S. 64, 23 S. Ct. 579, 47 Law. Ed. 709. Where an act restrained by Injunction has been per- formed with consent of all parties, the ap- peal from the injunction order will be disJ missed. Snell v. Welch, 28 Mont. 482, 72 P. 988. 48. Which party had burden of proof is immaterial where evidence supports verdict. Elliott V. Martin, 27 Mont. 519, 71 P. 756. 49. Hereford v. Hereford, 134 Ala. 321, 32 So, 661. 50. See 1 Curr. L. 156. 51. Shuler v. Lashhorn, 67 Kan. 694, 74 P. 264. 243 APPEAL AND EEVIEW § 13B. 3 Cur. Law. occurring at the trial will not be reviewed for the correction thereof, but only in connection with a review of the facts on the merits.^^ Particular courts of appeai.^^ — Where a constitutional question is involved, an appeal from the circuit to the supreme court of the United States opens up the whole case and the circuit judge cannot narrow the authority of the supreme court by a certificate relating only to the jurisdiction.^* The appellate division of the supreme court of New York will pass upon the sufficiency of the evidence to sustain the verdict, the same as any other question.^' In Missouri, in actions at law, the supreme court will not weigh the evidence, but merely determine whether any sub- stantial evidence supports the verdict and judgment."" The court of appeals will not consider questions in the case beyond its jurisdiction."' The circuit court con- siders only questions of law on appeal in proceedings to assess damages for taking land for a highway."* In New Hampshire, in a ease transferred in equity from the superior to the supreme court, the supreme court will not determine the facts, however strong the case may be, though the evidence is all reported."" The circuit court in Kentucky, on appeal in a will case, cannot determine whether certain de- vices are void for uncertainty."" Review as dependent on parties appealing.^^ — A party not appealing from an order denying him relief will be presumed satisfied with it,"^ and he can obtain no relief on the appeal of other parties, except so far as the relief granted appel- lants may incidentally affect his rights."' Where both parties demand affirma- tive relief and the court dismisses the action, defendant cannot complain of the failure to grant him his relief unless he appeals.'* Where a decree grants relief as to one matter and denies it as to the other, and plaintiff appeals only as to the denial, defendant cannot have the remainder of the decree reviewed without ap- pealing."" Waiver of errors in appellate court."" — Errors,"' exceptions,"' grounds in sup- S2. Bank of Park River v. Norton [N. D.] 97 N. "W. 860. SS. See 1 Curr. D. 157. 54. Act 1891, c. 517, i 5, 26 St. 827. Giles V. Harris, 189 U. S. 475, 23 S. Ct. 639, 47 L. Ed. 909. 55. MoGrath v. Home Ins. Co., 88 App. Dlv. 153, 48 N. T. S. 374. The appellate division has the same authority to review the facts in a case appealed from the municipal court of New York City that it has to review judg- ments rendered by the supreme court [Code Civ. Proc. § 3063, as amended by Laws 1900, 0. 553]. Blumenthal v. Lewy, 82 App. Dlv. 535, 81 N. Y. S. 528. See 1 Curr. L. 157, n. 27. 56. Sanders v. North End Bldg. & Loan Ass'n [Mo.] 77 S. W. 833. 57. Constitutionality of statute author- izing deed of swamp lands by county [Laws 1857, p. 268]. Houck V. Patty, 100 Mo. App. 302, 73 S. W. 389. 58. Shively v. Lankford, 174 Mo. 535, 74 S. W. 835. 59. Suit to establish resulting trust. In- sufficient facts found below. Crowley v. Crowley [N. H.] 56 A. 190. 60. Leak's Heirs v. Leak's Bx'r, 24 Ky. L. R. 2217. 73 S. W. 789. 61. See 1 Curr. L. 157. 62. Powell V. Harrison, 88 App. Div. 228, 85 N. Y. S. 452. 63. MaeGinniss v. Boston & M. Consol. Copper & Silver Min. Co. [Mont.] 75 P. 89. 04. Whiting v. Doughton, 31 Wash, 327, 71 P. 1026. 66. State Sav. Bank v. Hunter [Iowa] 96 N. W. 1123. 68. See 1 Curr. L. 168. 67. Pearce v. Miller, 201 111. 188, 66 N. E. 221; Clear Creek Stone Co. v. Dearnin, 160 Ind. 162, 66 N. E. 609; Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822; Nich- ols v. Baltimore, etc., R. Co. [Ind. App.] 70 N. B. 183; Jones v. New York, N. H. & H. R. Co., 184 Mass. 89, 68 N. B. 14; McComb v. C. R. Brewer Lumber Co., 184 Mass. 276, 08 N. E. 222; Bourbonnais v. West BoylstonMfg. Co., 184 Mass. 250, 68 N. B. 232; Stoy v. Bled- soe. 31 Ind. App. 643, 68 N. E. 907; Smith v. Borden, 160 Ind. 223, 66 N. E. 681; Brown v. Collins [Neb.] 96 N. W. 173; Bemis v. Mo- Cloud [Neb.] 96 N. W. 214;Halley v. Tichenor, 120 Iowa, 164, 94 N. W. 472; Harnett v. Hold- redge [Neb.] 97 N. W. 443; Comer v. Morgan County Com'rs [Ind. App.] 70 N. E. 179; Nel- son v. Brlsbln [Neb.] 98 N. W. 1057; Gilbert V. Kelley, 138 Cal. 689, 72 P. 344; Zimmer- man V. Denver Consol. Tramway Co. [Colo. App.] 72 P. 607; King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309; Oklahoma City v. McMaster, 12 Okl. 570, 73 P. 1012; Western R. of Alabama v. Arnett, 137 Ala. 414, 34 So. 997; Lawrence v. Westlake, 28 Mont. 503, 73 P. 119; Holvie v. McKain [Ind. App.] 70 N. B. 178; Gllllland v. R. G. Dun & Co., 136 Ala. 327, 34 So. 25; Thornton v. Dwight Mfg. Co., 137 Ala. 211, 34 So. 187; McKInnon v. Hope, 118 Ga. 462, 45 S. E. 413. Unconstitution- ality of law. Harding v. People, 202 111. 122, 3 Cur. Law. APPEAL AND EEVIEW 8 13B. 243 port of a demurrer," and grounds for new trial, will be deemed abandoned where not argued or discussed in briefs.'" Where several grounds relied on in support of a motion for a new trial sustained generally are not argued, affirmance must follow.'* An instruction favorable to appellant, on which no cross error is as- signed by appellee, will be considered the law of the case.'" Procedure de novoJ^ — On appeal from final orders, judgments, and decrees of the probate courts, the trial is generally de novo,^* but the parties are not en- titled to a jury ti-ial.'" On appeal from the county to the district court, in Tex- as, the cause stands on the docket for trial as any other," but jurisdiction in pro- bate cases extends only to such questions as are within the jurisdiction of the court below." On appeal from the county court, the superior court, in Georgia, may hear and sustain a demurrer previously overruled below.'* On appeal from a judgment of the municipal court, in New York its validity will be determined according to the facts, though there was no motion to dismiss the complaint." Where the superior court on appeal from an order of a justice refusing to open a default hears the motion de novo and makes findings of fact, the findings of tlie justice cannot be considered on further appeal.^" The reversal of a justice's judg- ment on questions of law only reopens the case for trial in the district court, though the justice's judgment was a dismissal of the case,'^ but a reversal on error for lack of jurisdiction below is final.*" In several states on appeal to the circuit or district court from the county or other inferior court, the parties on trial de novo, must confine themselves to substantially the same issues as those upon which the case was submitted to the court below,*' but the rule applies to the sub- stance only, and not the form of the pleadings by which such issues are raised.** Hence an amendment may be allowed.*' 66 N. E. 962; White v. CoUins, 90 Minn. 165, 95 N. W. 765. See 1 Curr. L. 168, n. 43. 08. Brazil Block Coal Co. v. Gibson, IGO Ind. 319, 66 N. E. 882; Bartlett v. Slater, 183 Mass. 162, 66 N. E. 631; Revell v. Thrash, 132 N. C. 803, 44 S. E. 596; Fuller v. New York Fire Ins. Co., 184 Mass. 12, 67 N. E. 879; Prazer v. Puller, 184 Mass. 499, 89 N. E. 217; Hopwood V. Benjamin Atha & Illingsworth Co. [N. J. Err. & App.] 54 A. 435; Henderson V. Raymond Syndicate, 183 Mass. 443, 67 N. E. 427. Where a successful plaintiff ex- pressly abandons exceptions reserved by him if defendant should be held liable, they will not be considered if the exceptions by de- fendant are overruled. Roth v. Adams [Mass.] 70 N. E. 446. See 1 Curr. L. 158, n. 45. 00. Neiden-Judson Drug Co. v. Commer- cial Nat. Bank [Utah] 74 P. 195. See 1 Curr. L. 158, n. 47. 70. Bass V. Citizens' Trust Co. [Ind.] 70 N. E. 400; Southern R. Co. v. Morris, 119 Ga. 234, 46 S. B. 85; Pussell v. Heard, 119 Ga. 527, 46 S. E. 621. See 1 Curr. L. 158, n. 46. 71. State Security Bank v. Burns [Iowa] 90 N. W. 909. " 72. Chicago & E. I. R. Co. v. Heerey, 203 111. 492. 68 N. E. 74. See 1 Curr. L. 158, n. 53. 73. See 1 Curr. L. 159. 74. In re Huntley's Will [S. C] 45 S. E. 132; Klicka V. Klicka, 105 111. App. 369; In re James' Estate [Neb.] 97 N. W. 22. On appeal from an order refusing permission to file a claim against a decedent's estate, the judgment should not be of reversal and remand, but the court should proceed to hearing on the issues as though the appeal had been from a disallowance of the claln. Rlbble V. Purmin [Neb.] 98 N. W. 420. 75. Ribble v. Furmin [Neb.] 98 N. W. 420. See 1 Curr. L,. 159, n. 54. 70. Stone V. Byars [Tex. Civ. App.] 73 S. W. 1086. 77. McColpin v. MoColpln's Estate [Tex. Civ. App.] 76 S. W. 824. 78. Paxton v. Berrien County, 117 Ga. 891, 45 S. B. 266. 79. Riehl v. Levy, 86 N. T. S. 464. SO. Turner & Son v. Case Threshing Mach. Co. [N. C] 45 S. B. 781. 81. Olson V. Shirley [N. D.] 96 N. W. 297. 82. County court reversed by district. Bastian v. Adams [Neb.] 97 N. W. 231. 83. Mallory v. Fitzgerald's Estate [Neb.] 95 N. W. 601. Defense of rescission cannot be first raised In district court. Sloan Com- mission Co. V. Henry A. Pry & Co. [Neb.] 95 N. W. 862. Rev. St. 1898, § 4034. Amend- ment introducing entirely new item held not allowable. In re Ryan's Estate [Wis.] 94 N. W. 342. Only such issues as are pre- sented by the petition to the county court, in the absence of amendment, are triable in the circuit. In re Olson's Estate [S. D.] 94 N. W. 421. 84. Appeal from county to district court. First Nat. Bank v. Wilbern [Neb.] 95 N. W. 12; Bennett's Estate v. Taylor [Neb.] 96 N. W. 669. Departure held not to prejudice ap- pellant. Eppley V. Lovell [Neb.] 97 N. W. 1027. See 1 Curr. L. 159, n. 55, et seq. 85. Amendments not clianging substance of action held allowable. In re Ryan's Es-. tate [Wis.] 94 N. W. 342. On appeal from a justice's judgment, plaintiff may amend his 2M APPEAL AND EEVIEW § 13C. 3. Cur. Law. (§ 13) C. Restriction to rulings helow}" — Questions presented may be re- viewed, though not ruled upon formally, if the effect of other rulings was such as to decide the questions,'^ but the appellate court will not discuss and determine questions not considered or ruled upon by the trial court, where other prejudicial error is shown.^^ In the absence of exceptions properly saved only such errors as appear of record can be reviewed.*' Assignments of error involving radical assumptions of fact not embraced in the special findings of fact made by the trial court will not be considered.'" Eeview will not be inade on issues differing from those raised at the trial,*^ pleadings so as to specify more particularly the items of damage and enlarge the amount thereof. City of Van Alstyne v. Morrison [Tex. Civ. App.] 77 S. W. 655. A statute providing- that amendments of pleadings may be made after appeals from justices win not permit an amendment reducing the damages claimed so as to confer jurisdic- tion on the justice [Rev. St. 1899, § 4079]. U. S. Fidelity & Guaranty Co. v. Foskett- Kessner Feed Co., 100 Mo. App. 724, 73 S. W. 364. On appeal to the county court plaintiff may amend his claim of damages by the In- troduction of another Item, though the ef- fect Is to give the appellate court jurisdic- tion. Von Boeokman v. Loepp [Tex. Civ. App.] 73 S. W. 849. 86. See 1 Curr. L. 159. 87. Not, however, if not assigned as er- ror. Reed v. Cunningham, 121 Iowa, 555, 96 N. W. 1119; Williston v. Haight [Conn.] 67 A. 170. See 1 Curr. L,. 159, n. 60. 88. Dysart v. Missouri, etc., R. Co. [C. C. A.] 122 P. 228. 89. Hartman v. Brunswick, 98 Mo. App. 674, 73 S. "W. 726. The sufficiency of evi- dence to sustain a directed verdict is re- viewable though no exception was taken to the direction. Dahl v. Stakke [N. D.] 96 N. W. 353. 90. Shuler v. Lashorn, 61 Kan. 694, 74 P. 264. 91. Banking House of A. Castetter v. Stewart [Neb.] 98 N. W. 34. Defense not pleaded below. McDavid v. Sutton, 206 111. 544, 68 N. E. 1064; Lauer Brewing Co. v. Chmielewskl, 206 Pa. 90, 65 A. 841; Carna- han v. Brewster [Neb.] 96 N. W. 590; Mc- Kean v. Scott, 84 N. T. S. 456; Chamberlain V. Monkhouse, 67 Kan. 836, 72 P. 860; Fi- delity & Deposit Co. V. Nisbet, 119 Ga. 316, 46 S. E. 444; Chicago Mill & Lumber Co. v. Sims, 101 Mo. App. 569, 74 S. W. 128; City of St. Louis V. Annex Realty Co., 176 Mo. 63, 74 S. W. 961; Meyer Bros. Drug Co. v. Bybee [Mo.] 78 S. W. 679. Questions not raised below. Philadelphia & T. R. Co. v. Neshaminy El. R. Co., 206 Pa. 343, 55 A: 1034; McArthur Bros. v. Whitney, 202 111. 527, 66 N. B. 163; Battles v. Roberts, 120 Iowa, 747, 95 N. W. 247; Stephens v. Duckett, 111 La. 979, 36 So. 89; Daily v. Saginaw Bldg. & L. Ass'n [Mich.] 95 N. "W. 326; Carter & Co. V. Kaufman [S. C] 45 S. B. 1017; Hettlch V. Hillje [Tex. Civ. App.] 77 S. W. 641. New claim as basis for recoupment. Truax v. Heartt [Mich.] 97 N. "W. 394; Cincinnati, 1. & W. R. Co. V. People, 206 111. 638, 69 N. E. 40. Waiver of tort by pleading contract not called to attention of trial court. Chicago & N. W. R. Co. V. De Clow [C. C. A.] 124 F. 142. Action on note tried on theory that limitations were barred by new promise. question whether, the note bearing Interest, it was not due until demand not considered. De Raismes v. De Raismes [N. J.] 56 A. 170. The appeal court will look to the whole rec- ord to determine the theory on which the case was tried. Blanchard-Hamilton Fur- niture Co. V. Colvln [Ind. App.] 69 N. E. 1032. Amendment of bill of particulars to present different theory not allowed on ap- peal. Kent V. Phenix Art Metal Co., 69 N. J. Law, 632, 55 A. 256. Shifting grounds for attacking constitutionality of statute. Cook V. Marshall County [Iowa] 95 N. W, 409. The appellate division cannot affirm an un- warranted judgment dismissing the action below on the ground of a supposed collusion not pleaded or presented to the trial court. Svenson v. Svenson [N. T.] 70 N. B. 120. Plaintiff claiming under chattel mortgage cannot, on appeal, allege equities growing out of circumstances. Sweet v. Seltz, 83 App. Div. 631, 82 N. Y. S. 184. Whether statement of defendant to bank for purpose of procuring credit, was continuing or was renewed. Twelfth Ward Bank v. Cohen, 87 App. Div. 625, 84 N. T. S. 310. A case treated as equitable below must be so treated on appeal. Talbott v. Butte City Water Co. [Mont.] 73 P. 1111; Hendrickson v. Wallaco [Mont.] 75 P. 365; Mares v. Dillon [Mont.] 75 P. 963. Where an estoppel was relied on below, arising from defendant's admissions In an answer In another case, it cannot be claimed on appeal that the prior case con- cluded defendants as to facts therein In- volved. Flannery v. Campbell [Mont.] 75 P. 1109. Invalidity of contract as within statute of frauds cannot be first urged on appeal. Graham v. Heinrlch, 13 Okl. 107, 74 P. 328. A jurisdictional fact admitted by the pleadings cannot be disputed on appeal. In re Smith's Estate, 43 Or. 596, 75 P. 133. Motion for a nonsuit must state the grounds relied on and none other can be urged on appeal. Boyle v. Union Pac. R. Co., 25 Utah, 420, 71 P. 988. Surprise cannot be urged above to an issue raised below. Meals V. De Soto Placer Mln. Co., 33 Wash. 302, 74 P. 470. Suit to set aside sheriff's deed. Complainant cannot base recovery on error on grounds not alleged in bill. Butler V. Miller, 208 111. 231, 70 N. E. 309. Defend- ant relying on contributory negligence can- not attack declaration on appeal. Tazoo & M. V. R. Co. V. Schraag [Miss.] 36 So. 193. Objection that ordinances Introduced below were not shown to be effective at date in question not raised below. Missouri, K. & T. R. Co. of Texas v. Owens [Tex. Civ. App.] 76 S. W. 579. Defenses not Interposed be- low and not complained of In the petition In error will not be reviewed on error pro- ceedings unless they go to the jurisdiction 3 Cur. Law. APPEAL AND EEVIEW § 130. 345 thougli there is evidence in the record to support them/* and the general rule is that a theory of a case, or an assumption of fact adopted by a trial court with the acquiescence of the parties, will be followed by an appellate court to which the cause is taken.®' The rule is particularly applicable where a party who has procured a decree on one theory seeks a modification of it on appeal on another theory."* On appeal from the municipal court in a case where the pleadings were oral, the issues will be determined from the evidence rather than the complaint.®' Where a complaint is tested by demurrer it cannot be aided by other parts of the record on appeal."" Where the contract sued upon is void upon its face, if plaintiff relies upon any ulterior facts relieving it of its apparent invalidity he must plead them in traversable form, otherwise no presumption will be indulged in favor of its validity."^ of the subject-matter. Houser v. McCrystal [Neb.] 97 N. "W. 828. See 1 Curr. L. 159, n. 63. 92. That appellant wag permitted to tes- tify without objection to matters foreign to the issues made by the pleadings does not constrain the appellate court to review the question raised by such testimony. Thomas V. Winne [C. C. A.] 122 F. 395. Where an Issue Is not raised by the pleadings and no amendment Tvas offered below, the existence of evidence to support it will not Justify the appeal court In going beyond the issues raised to modify the judgment. Abbott v. Reedy tidaho] 75 P. 764. An amendment of the complaint to conform to the proofs which might have been made at the trial may be made in the appellate division, where necessary to sustain a judgment sup- ported by the evidence. Johnson v. Albany, 86 App. Div. 567, 83 N. T. S. 1002. But where the variance Is substantial and was called to the attention of the trial court un- successfully, amendment will not be per- mitted. Smith v. Auburn, 88 App. Div. 396, 84 N. T. S. 725. 93. Baker v. Kaiser [C. C. A.] 126 F. 317; Cincinnati, I. & W. R. Co. v. People, 205 III. 538, 69 N. E. 40; Klabunde v. Byron-Reed Co. [Neb.] 98 N. W. 182; Moynahan v. In- terstate Min., Milling & Development Co., 31 Wash. 417, 72 P. 81; Parker v. Knights Templars' & Masons' Life Indemnity Co. [Neb.] 97 N. W. 281; Campion v. Lattimer [Neb.] 97 N. W. 290. As where the facts pleaded will admit of different theories. Blanchard-Hamllton Furniture Co. v. Colvin [Ind. App.] 69 N. B. 1032; Bull v. New Am- sterdam Casualty Co., 85 N. T. S. 329; San- ders V. Stimson Mill Co. [Wash.] 75 P. 974; Manker v. Western Union Tel. Co., 137 Ala. 292, 34 So. 839. Whether freight rate was posted not raised below. Myar v. St. Louis S. W. R. Co., 71 Ark. 552, 76 S. W. 557. Mo- tion to stay Issuance of order of restitution in ejectment treated below as a bill In equity. U. S. v. Marshall [C. C. A.] 122 F. 428. Suit tried on theory of negligence can- not be reviewed on theory of trespass (Di^err v. Consolidated Gas Co. of New York, 86 App. Div. 14, 83 N. T. S. 714), or gross neg- ligence (Turtenwald v. Wisconsin Lakes Ice & Cartage Co. [Wis.] 98 N. W. 948). Theory acted upon below followed on appeal though not- responsive to pleadings. Sbhleck v. Donohue, 92 App. Div. 330, 87 N. T. S. 208. Petition entitled in the matter of the es- tate and guardianship of a minor, treated as a suit in equity to set aside order settling guardian's account. In re Wells' Estate, 140 Cal. 349, 73 P. 1065. Party cannot on oral argument change position assumed at trial and in original brief in appellate court. Rucker v. Omaha & G. Smelting & Refining Co. [Colo. App.] 72 P. 682. Action in lower court tried on Issue whether remedy barred by limitations or taken therefrom by new promise. Held, claim that note bore inter- est and hence did not become due until aft- er demand could not be raised for first time on appeal. De Raismes v. De Raismes [N. J. Law] 56 A. 170. Matter asserted In peti- tion and not denied in answer cannot be denied on appeal. Louisville & N. R. Co. v. Brooks, 25 Ky. L. R. 1307, 77 S. W. 693. Case tried below as on contract not review- able, as tort. Herf & F. Chemical Co. v. Lackawanna Line, 100 Mo. App. 164, 73 S. W. 346. A party is confined on appeal to the position he took during the trial. Cady V. Coates, 101 Mo. App. 147, 74 S. W. 424. Defendant held bound by admission that certain statute applied. King v. Phoenix Ins. Co., 101 Mo. App. 163, 76 S, W. 55. Pleading treated below as sufficient, so treated above unless falling to state cause of action or stating one without the Juris- diction of the court. Turner v. Turner, 33 Wash. 118, 74 P. 56. The appeal court will not review the conclusions of the trial court as to facts essential to Its jurisdic- tion, concerning which It was vested with power to hear and determine, at the instance of a party who appeared below and pro- ceeded upon the theory that the court had jurisdiction. In re Latour's Estate, 140 Cal. 414, 73 P. 1070. Writings present at the trial, and made the basis for the examina- tion of witnesses without objection, and treated by the court and both parties as in evidence, will be so treated on appeal, though there was no formal offer of them in evidence. Peterson v. Wolf [Neb.] 95 N. W. 332; Reed v. Morgan, 100 Mo. App. 713, 73 S. W. 381. 94. Commercial State Bank v. Ketchum [Neb.] 96 N. W. 614. 95. Greenberg v. Angerman, 84 N. T. S. 244. • 96. Fidelity & Casualty Co. v. Bandera [Ind. App.] 70 N. B. 167. »7. Marriage brokerage contract. Jan- graw V. Perkins [Vt.] 56 A. 632. 246 APPEAL AND REVIEW § 13C, 3 Cur. Law. Other grounds for sustainiiig a judgment than those presented below will not be considered/* but additional objections and arguments against the validity of a statute may be urged,"' and a decree sustaining a demurrer to bill, without stating on what ground, is supported if any ground is well taken.* A defaulting defendant, who appears and applies for a rehearing, cannot on appeal from an order denying his rehearing attack the decree on any technical ground.^ On ap- peal from a judgment for plaintiff on a directed verdict, where there was no de- murrer to the answer, the answer will be regarded as stating a defense and the inquiry limited to whether there was evidence in its support that should have been submitted to the jury.' Error in sustaining a demurrer to portions of an answer will not be reviewed, where on the trial defendant was unrestricted in his proof of the facts set up therein, and all questions of law involved were then passed upon and made grounds of appeal.* There having been no motion for a new trial the court will consider only the sufficiency of the evidence to support the verdict, though a motion for judgment notwithstanding verdict was made and denied." Where, in an action tried to the court, the only iastruction asked is in tlie nature of a demurrer to the evidence, the appellate court will review the weight of the evidence only so far as to determine the correctness of that ruling.® On ap- peal in condemnation proceedings, the question whether certain persons, not par- ties, were entitled to damages will not be considered.' Matters proved by incom- petent evidence unobjected to cannot be denied on appeal.' Reasons not reviewed? — If a correct result is reached in the trial court, the reasons therefor will not be reviewed,*" and a just judgment warranted by the record and the facts will not be overthrown because based on the wrong reason.** Eefusal of an application on the gi-ound of want of power will not be reversed where it should have been refused in the exercise of sound discretion.*' A judg- 98. Other grounds for sustaining an or- fler for change of venue (Qulnn v. Brooklyn Heights R. Co., SS App. Div. 57, 84 N. T. S. 738), or demurrer than those specifled be- low will not be considered (Johnson v. Saum [Iowa] 98 N. W. 599). A nonsuit will not be sustained on grounds not alleged be- low. Austin V. Piedmont Mfg. Co. [S. C] 45 S. E. 135. Where a verdict is directed on an erroneous ground, reasons for sus- taining it not passed upon by the trial court will not be considered. Verdict directed on ground that defendant's injuries were not caused by the accident, as claimed. Con- tributory negligence and defendant's free- dom from fault not considered. Wolfarth v. L. Sternberg & Co. [N. J. Law] 56 A. 173. Other grounds than those presented to the jury cannot be considered to sustain their verdict. Coleman v. Botsford, 89 App. Div. 104, 85 N. T. S. 1. A judgment of dismissal on the merits cannot be sustained on the theory that the complaint was bad for want of parties. Ullman v. Cameron, 87 N. T. S. 148. A judgment erroneously entered against a plaintiff should not be affirmed on the ground that the court erred in over- ruling a demurrer to his declaration. An- derson V. Broward [Fla.] S4 So. 897. Judg- ment notwithstanding verdict will not be sustained on other grounds than those set up In motion. Johns v. Ruff [N. D.] 95 N. W. 440. 99. Fitch V. Board of Auditors of Claims [Mich.] 94 N. W. 952. 1. Adams v. Wi'son, 137 Ala. 632, 34 So. 831. 2. Clark v. Brotherhood of Locomotive Firemen, 99 Mo. App. 687, 74 S. W. 412. 3. Vapereau v. Holcombe [Iowa] 98 N. W. 279. 4. Town of Old Saybrook v. Milford [Conn.] 56 A. 496. 5. Borgerson v. Cook Stone Co. [Minn.] 97 N. W. 734. 6. People's Nat. Bank v. Central Trust Co. [Mo.] 78 S. "W. 618. 7. Marquette & S. E. R. Co. v. Longyear [Mich.] 94 N. W. 670. 8. Riverside County Sup'rs v. Thompson [C. C. A.] 122 F. 860. ». See 1 Curr. L. 159. 10. Decree as favorable to appellant as he has right to ask. Woloott v. Tweddle [Mich.] 95 N. W. 419. See 1 Curr. L. 159, n. 68. 11. Baker v. Kaiser [C. C. A.] 126 F. 317; Von Platen v. Winterbotham, 203 111. 198. 67 N. E. 843. A ruling may be affirmed though for different reasons than those as- signed by the trial judge. Kelly v. Palmer [Minn.] 97 N. W. 578. A correct conclusion baSfed on an erroneous reason will be af- firmed. Brown v. Carolina Midland R. Co. [3. C] 46 S. B. 283. A right judgment in an equity case will be affirmed notwith- standing the reasoning on which it Is based. Johnson v. Franklin Bank, 173 Mo. 171, 73 S. W. 191. See 1 Curr. L. 159, n. 69. 13, Admission to ball pending extradi- tion. "Wright V. Henkel, 190 TJ. S. 40, 23 S. Ct. 781, 47 L. Ed. 948. 3 Cur. Law. APPEAL AND REVIEW § 13D. 247 mcnt entered on a demurrer to the complaint sustained on the ground that no cause of action was stated therein will be affirmed if the demurrer should have been sustained on any other ground/* but a judgment erroneously sustaining a demurrer and dismissing the bill will not be affirmed on the ground that a correct decision was made on wrong grounds, since there was no testimony taken and no inquiry into the merits." A ruling rejecting evidence that is incompetent will be affirmed though the objection was made on the wrong groimd.^' Where the record shows that competent evidence was rejected because the court regarded it incompetent, the judgment will not be sustained on the ground that he also had power to reject it on discretionary grounds.^* The giving of a peremptory in- struction will be sustained, if proper for any reason apparent from the record,^^ and on appeal from a dismissal of the complaint at the close of plaintiff's evidence, the court is not limited to the ground assigned by the court for its ruling, but must examine the entire record.^' On appeal in equity the declarations of law given or refused will not be reviewed, since the decree may be right regardless of error in them.^' Mere remarks of the court expressing views apparently not carried into the judgment will not warrant a review.*" A declaration that plaintiff was not entitled to recover under the pleadings and proofs sufficiently indicates the theory under which the case was decided to warrant a review of the question whether under the pleadings and proofs, plaintiff could recover.*^ An order grant- ing a new trial will be affirmed if any ground be well taken.''' An appellate court may consider and apply to a pending case a curing statute passed to heal defects in titles similar to the one in question.*' (§ 13) D. Restriction by character of order or judgment; matters brought up with final judgment.^* — Where a case is properly in the appellate court, all de- crees and proceedings therein are reviewable.*' Eulings on practice*" and inter- mediate orders*^ go up with the judgment. Orders made after judgment do not.*' IS. Porter v. Plymouth Gold Min. Co. [Mont.] 74 P. 938. 14. Thompson v. First Nat. Bank [Miss.] 36 So. 65. 15. Toder v. Reynolds, 28 Mont. 183, 72 P. 417. 16. Pattee v. Whitcomb [N. H.] 56 A. 459. 17. Warren Deposit Bank v. Fidelity & Deposit Co., 25 Ky. L. R. 289, 74 S. W. 1111. 18. Baker v. Interurban St. R. Co., 86 N. Y. a. 9. 19. HefEernan v. Weir, 99 Mo. App. 301, 72 S. W. 1085. 20. Crawford v. Burke, 201 111. 581, 66 N. E. 833. 21. Kansas City v. Ferd Helm Brewing Co., 98 Mo. App. 590, 73 S. W. 302. S2. On appeal by defendant from an or- der granting plaintiff a new trial on a sin- gle ground plaintiff may insist that other grounds set up in his motion justify the order and should have been allowed. Em- mons v.- Quade, 176 Mo. 22, 75 S. W. 103. An order granting a new trial on a certain ground may be sustained on other grounds alleged if appellant does not show that they were not well taken. Morrison Mfg. Co. v. Roach [Mo. App.] 78 S. W. 644. Where an order is In general terms It will be sus- tained if justified on any of the grounds presented therefor, regardless of the opin- ion of the trial court in support of it. Schntttger v. Rose, 139 Cal. 656, 73 P. 449. Such opinion, however, may be examined for the purpose of determining any question of merit which will arise on new trial. Schnlttger v. Rose, 139 Cal. 565, 73 P. 449. The opinion of the trial court cannot affect the question of the sufficiency of the evidence to sustain the findings (Luman v. Golden. Ancient Channel Min. Co., 140 Cal. 700, 74 P. 307), nor be considered to deter- mine the scope of the order (Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 75 P. 332). The opinion of the trial court setting forth the grounds on which a new trial was granted does not prevent review of the case and sustaining the order on other grounds. Simon Newman Co. v. Lasslng, 141 Cal. 174, 74 P. 761. 23. State swamp lands. Simpson v. Stod- dard County, 173 Mo. 421, 73 S. W. 700. 24. See 1 Curr. L. 160. 25. Deckert v. Chesapeake Western Co., 101 Va. 804, 45 3. E. 799. 26. Quaslial of a count In a declaration after trial of an issue raised by plea in abatement may be reviewed. Upton v. Ger- ber [Mich.] 98 N. W. 854. Order as to new trial. McVay v. Bridgman [S. D.] 97 N. W. 20. An appeal from a final decree brings up a ruling striking out an amended cross bill, duly excepted to. Jackson v. Lemler [Hiss.] 35 So. 306. 27. Under the statute in Wisconsin, the court may review any intermediate order involving the merits and necessarily affect- ing the judgment [Rev. St. 1898, %% 3069. 3070]. Hart v. Jos. Sehlitz Brewing Co. [Wis.] 98 N. W. 526. An order refusing to 248 APPEAL AND EEVlBW § 13D, 3 Cur. Law. 'Costs being part of the judgment, orders relating thereto go up,'" and an order denying a motion to correct a judgment may be reviewed if properly preserved in the record.'" An appeal from a final judgment rendered on report of a master stating the amount due a widow from the estate of her husband and his devisees will not bring up a judgment setting aside a receipt given by the widow renouncing her rights under the law and agreeing to take under the will.'^ On appeal from an order sustaining objections to a referee's report, a question as to whether there was a clerical error in the report cannot be considered, since any such mistake should be corrected beloW.^' A judgment of foreclosure cannot be reviewed on appeal from the order confirming the sale." A decree ordering foreclosure and subrogation, and directing a reference, being final and appealable, will not go up on appeal from the decree confirming the final report.'* A decree directing parti- tion cannot be reviewed on appeal from the order confirming the report of com- missioners.'" The discharge of a rule for judgment for want of a sufficient affi- davit of defense cannot be reviewed on appeal from a jury trial." A party who fails to appeal from an order granting him a new trial on terms has no groimd of complaint oh an appeal from the judgment.'^ In New York, only such interlocu- tory and intermediate judgments and orders are reviewable on appeal from final judgment as are specified in the notice of appeal.'^ Where the order appealed from is not a "final order" in a special proceeding, a specification in the notice of appeal of an intention to bring up the intermediate orders for review is not ef- fective for that. purpose.'' Matters reviewable on appeal from interlocutory orders.*" — Proceedings sub- sequent to an interlocutory order are not considered,*^ the appeal standing on the record as it stood at the time the order was made.** On appeal from an order granting a preliminary injunction, the only inquiry is whether the discretion of the trial court was improvidently exercised,*' the merits not being in issue.** set aside and vacate a judgment Is not [Rev. St. 1898, §§ 3069, 3070]. In re McMa- hon's Estate, 117 Wis. 463, 94 N. W. 351. Order setting aside a referee's report is re- viewable, notwithstanding it has been ap- pealed from independently, such appeal hav^ ing been dismissed witliout consideration. Neeley v. Roberts [S. D.] 95 N. W. 921. An intermediate order substituting a claimant of property for defendant in claim and de- livery goes up. State v. District Court of First Judicial Dist, 28 Mont. 445,' 72 P. 867. 28. Order refusing to sign bill of excep- tions. MoGlauflin V. Wormser, 28 Mont. 177, 72 P. 428. 29. Spencer v. Mungus, 28 Mont. 367, 72 P. 663. Order retaxing costs in Colorado [Mill's Ann. Code, § 398]. Van Buskirk v. Balch [Colo. App.] 74 P. 792. Where, on ap- peal from a Judgment of foreclosure, that portion awarding decree for deficiency can- not be reviewed because of prematurity of the appeal, the order apportioning the costs Is also now reviewable. Thomson v. Black [III.] 70 N. E. 318. 30. Cullen v. Harris [Utah] 73 P. 1048. 31. Frazer v. Frazer, 25 Ky. L. R. 473, 76 S. W. 13. 32. New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 87 N. T. S. 200. S3. Logan County v. McKinley-Laijning L. & T. Co. [Neb.] 97 N. W. 642. .34. Klrkland v. Mills, 138 Ala, 192, 35 So. 40. SB. Austin V. Austin [Mich.] 93 N. W. 1045. 36. Act Apr. IS, 1874, P. L. 64. Kessler V. Perrong, 22 Pa. Super. Ct. 678. 37. Carter v. Interurban St, R. Co., 86 N. T. S. 206. 38. Code Civ. Proc. § 1301. H. Koehler & Co. V. Brady, 87 App. Div. 326, 84 N. T. S. 467; Bates v. Holbrook, 89 App. Div. 548, 85 N. T. S. 673. Order denying appellant's motion for Jury trial [Code Civ. Proo. § 1316]. Mcllvaine v. Steinson, 90 App. Div. 77, 85 N. T. S. 889; Stearns v. Shepard & M. Lumber Co.. 91 App. Div. 56, 86 N. T. S. 396. 39. Code Civ. Proc. §§ 1301, 1358. Rail- road crossing proceedings. Oneonta, etc., R. Co. v. Cooperstown & C. V. R. Co., 85 App. Div. 284, 83 N. Y. S. 307. 40. See 1 Curr. L. 160. 41. Additional evidence not introduoible by stipulation. Austin Mfg. Co. v. Ameri- can Wellworks [C. C. A.] 121 F. 76. . Matters not presented to the- court not considered. New Albany Waterworks v. Louisville Banking Co. [C. C. A.] 122 F. 776. On error to the denial of a motion to set aside an award of arbitrators, error cannot be as- signed on the issuance of execution on the award. Muth v. Booye, 69 N. J. Law, 266, 65 A. 287. See 1 Curr. L. 160, n. 82. 42. Austin Mfg. Co. v. American Well- works [C. C. A.] 121 F. 76. 43. Austin Mfg. Co. V. American Well- works [C. C. A.] 121 F. 76; New Albany Wa- terworks V. Louisville Banking Co. [C. C. 3 Cur. Law. APPEAL AND EEVIEW § 13D. 249 On appeal from an order granting a motion to serve an amended answer, neither the sufficiency of a counterclaim contained therein nor the merits of the contro- versy will be considered.*" Appeal from a decree overruling a demurrer to the bill will not bring up an order refusing to set aside an order restoring the cause to the docket after dismissal for want of prosecution/" nor rulings on objections to the allowance of amendments, nor on motion to strike amendments f but where the question whether an amendment constituted a departure was presented by the demurrer, it may be reviewed.** On appeal from grant or refusal of a new trial.*^ — Generally speaking, ap- peals from the grant or refusal of a new trial are confined to the motion,°° and whether a jury was demandable as of right,"^ whether the verdict is sufficient,"^ whether the action or the pleadings are in proper form,"' or support the findings,"^ or judgment,"" whether a conclusion of law is correct,"' whether the findings sus- tain the judgment"' or conclusions of law,"^ or the evidence, the findings,"" the form of the decree or judgment," whether interest is allowable on the judgment,"^ the court's refusal to settle the statement on motion for a new trial,"^ can be considered only on appeal from the judgment."' The responsiveness of the verdict to the issues may be determined,'* and on appeal from an order refusing a new trial, the court may scrutinize all the evidence and determine whether the verdict is not contrary thereto, though no motion was made at the close of plain- tifE's case, or after the evidence was all in."" Eeversal of the judgment cannot be made on appeal from an order granting a new trial."" Equitable, provisional and special decrees and orders.^'' — It must be presumed that a court sitting without a jury,"' or in equity, considered only competent evi- A.] 122 F. 776. An appeal from an order granting a temporary injunction will raise only the question of whether the affidavits fairly tend to support the allegations of the complaint. Gray v. Bldg. Trades & Council [Minn.] 97 N. W. 663. 44. On appeal from an order granting a preliminary injunction against the infringe- ment of a patent, the question of the valid- ity of the patent will not be considered. Austin Mfg. Co. v. American Wellworks [G. C. A.] 121 F. 76. Where an injunction pen- dente lite was Issued before Issue joined, the <:ourt on appeal from that order will not examine the merits to determine whether the injunction was Improvidently granted. Kerr v. City of New Orleans [C. C. A.] 126 F. 920. 45. Westlnghouse, Church, Kerr & Co. v. Remington Salt Co., 89 App. Div. 126, 86 N. T. S. 432. 46. Northwestern Land Ass'n v. Grady, 137 Ala. 219, 33 So. 874. 47. 48. Montgomery Iron Works v. Cap- ital City Ins. Co., 137 Ala. 134, 34 So. 210. 49. See 1 Curr. L. 160. 50. Morse v. Wilson, 138 Cal. 558, 71 P. 801; Swift v. Occidental Min. & Petroleum Co.. 141 Cal. 161, 74 P. 700. Questions not raised and determined below will not be considered. De Haven v. MoAuley, 138 Cal. 573, 72 P. 152. See 1 Curr. L. 160, n. 87. 51. 52. Morse v. Wilson, 138 Cal. 558, 71 P. 801. 53. Morse v. Wilson, 138 Cal. 558, 71 P. 801; White v. Costigan, 138 Cal. 564, 72 P. 178; Cummings v. Kearney, 141 Cal. 156, 74 P. 759; Simon Newman Co. v. Lassing, 141 Cal. 174, 74 P. 761. Sufficiency of complaint not reviewable, there being no appeal from judgment. Swett v. Gray, 141 Cal. 63, 74 P. 439; Swift V. Occidental Mining & Petroleum Co., 141 Cal. 161, 74 P. 700. 64. Simon Newman Co. v. Lassing, 141 Cal. 174. 74 P. 761. 65. Sharp v. Bowie, 142 Cal. 462, 76 P. 62. 56. Rose v. Mesmer, 142 Cal. 322, 75 P. 905. 67. White v. Costigan, 138 Cal. 564, 72 P. 178; Swift V. Occidental Min. & Petroleum Co., 141 Cal. 161, 74 P. 700; Cummings v. Kearney, 141 Cal. 156, 74 P. 759; Kaiser v. Dalto, 140 Cal. 167, 73 P. 828. 58. Sharp v. Bowie, 142 Cal. 462, 76 P. 62. 59. Simon Newman Co. v. Lassing, 141 Cal. 174, 74 P. 761. 60. Rose V. Mesmer, 142 Cal. 322, 76 P. Durfee v. Seale, 139 Cal. 603, 73 P. 905. 61. 435. 62. Hartmann v. Smith, 140 Cal. 461, 74 P. 7. 63. Morse v. Wilson, 138 Cal. 558, 71 P. 801. 64. Hamilton v. Murray [Mont.j 74 P. 75. 65. Glaser v. Michelson, 86 N. T. S. 286. 66. In re Bills' Estate [Cal.] 74 P. 704. 67. See 1 Curr. L. 161. 68. Hunter v. Guth [Colo. App.] 73 P. 1089; Byrnes v. Ely [Neb.] 97 N. W. 298; Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 559; International & G. N. R. Co. v. Startz [Tex.] 77 S. W. 1; Abernathy v. Reynolds [Ariz.] 71 P. 914; Arabian Horse Co. V. Bivens [Neb.] 96 N. W. 621; Finlen v. Heinze, 28 Mont. 548, 73 P. 123; Seaverns v. Costello [Ariz.] 71 P. 930. 250 APPEAL AND REVIEW § 13E. 3 Cur. Law, flence.** An appeal in an equity ease will not present for review the rulings made during the progress of the trialJ" (§13) E. Restriction by contents of recordJ^ — Cases appealed must be heard and decided upon the record made in the court from which the appeal is taken/^ and questions not made in the record cannot be considered, though ar- gued and insisted on." The errors alleged must clearly appear/* the burden of showing error being always on the party alleging it/° and in the absence of an affirmative showing of error, it is assumed that the rulings below are correct.'''' Presumption not changed by direction of verdict, though in such case the existence of every material fact which the evidence tends to prove is assumed.''^ All rea- sonable presiTmptions are indulged to uphold the regularity of the proceedings of the trial court," and objections not supported by the record will not be reviewed.'" C!». Turner v. OveraU, 172 Mo. 271, 72 S. W. 644; Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129; Brown v. Fitclier [Minn.] 97 N. W. 416; Rulofson v. BilUngs, 140 Cal. 452, 74 P. 35; Hunt v. PhUllps [Wash.] 75 P. 970; City of Pt. Townsend v. Lewis [Wash.] 75 P. 982; Funk v. Hensler, 31 Wash. 628, 72 P. 102; Bowdle v. Jencks [S. D.] 99 N. W. 98. See 1 Curr. L. 161, n. 98. 70. Danforth v. Fowler [Neb.] 94 N. W. C37; Smith v. Oster [Neb.] 95 N. W. 335; Pettibone v. Yeiser [Neb.] 96 N. W. 193; John Stewart & Co. v. Allen [Neb.] 96 N. W. 528; Flanagan v. Mathieson [Neb.] 97 N. W. 287. Errors at trial not considered when review is de novo. Security Sav. Soc. v. Cohalan, 31 Wash. 266, 71 P. 1020. See 1 Curr. L. 161, n. 99. 71. See 1 Curr. L. 162. 72. Boyle V. Union Pac. R. Co., 25 Utah, 420, 71 P. 988. Citing 3 Enc. PI. & Prac. p. 502; Hayne, New Trials & App. § 271; El- liott, App. Proc. § 206. 73. Denny v. Broadway Nat. Bank, 118 Ga. 221, 44 S. E. 982. See 1 Curr. L,. 162, n. 20. 74. Alaska Commercial Co. v. Dinkelspiel [C. C. A.] 126 F. 164; Shuler v. Lashorn, 67 Kan. 694, 74 P. 264; Hoodless v. Jernigau [Fla.] 35 So. 656. The fact that an amend- ment, claimed to be prejudicial, was in fact made during- the trial, must appear. Pratt v. Smith [Neb.] 94 N. W. 104. An order re- fusing to set aside a Judgment must be af- firmed where the Judgment is not in the record and no Impropriety In It is shown by the transcript. Green v. Thatcher, 31 Colo. 363, 72 P. 1078. Rulings with refer- ence to continuance not reviewed in ab- sence of showing In record. Miller v. Math- eson, 28 Mont. 132, 72 P. 414. If the state- ments of the court In his instructions, as to what the facts are, are erroneous the bill of exceptions should show it; otherwise the instructions will be presumed to be supported by evidence not brought up. Sharp V. U. S., 191 U. S. 341, 24 S. Ct. 114. See 1 Curr. D. 162, n. 17. 75. Shelby v. Creighton [Neb.] 96 N. W. 382; Gulf, C. & S. F. R. Co. v. Blanchard [Tex. Civ. App.) 73 S. W. 88. Where the brief of evidence is so confused as to be unintelligible, the verdict will be pT'esumed supported by the evidence and a new trial properly denied. Grier v. Bowen, 118 Ga. 670, 45 S. B. 456. See 1 Curr. L. 162, n. 18. 70. Clark v. Wolf [Neb.] 96 N. W. 495; Sellers v. Pacific Wrecking & Salvage Co. [Wash.] 74 P. 1056; Alaska Com.- Co. v. Dinkelspiel [C. C. A.] 126 F. 164; De Wolf V. People, 202 111. 73, 06 N. E. S6S; Stedi-y v. Beck [Neb.] 94 N. W. 613; Post v. Smith [Neb.] 95 N. W. 500; Kingsley v. Swoboda [Neb.] 96 N. W. 518. Two conflicting peti- tions for vacation of decree. Presumed that ruling was made on one conforming to facts as stated in remainder of record. Roulet v. Hogan, 203 111. 525, 68 N. E. 97. Record sho-wing redemption from Judicial sale, pre- sumption that recording fee was also paid to master. Morava v. Bonner, 205 111. 321, 68 N. E. 707. Where the proceeds of a life Insurance policy were taxed as an Inherit- ance and the record does not show the terms of the policy. It will be presumed on appeal that It was payable to decedent's executors and administrators and therefore taxable. In re Murphy's Estate, 21 Pa. Super. Ct. 384. Presumed that execution was restrained on sufficient facts to warrant It. Fairfield v. Day [N. H.] 55 A. 219. In the absence of any showing to the con- trary, it will be presumed that the trial court complied with Its rules. Union Book Co. v. Robinson, 105 111. App. 23a See 1 Curr. L,. 162, n. 19. 77. Northdruft v. City of Lincoln [Neb.] 96 N. W. 163; Stanbury v. Storer [Neb.] 97 N. W. 805. In the absence of specific ob- jections to evidence in the record, the court will not presume the objections raised on appeal were raised below. Kroenert v. Falk, 32 Wash. 180, 72 P. 1010. Judgment affirmed on imperfect record. Perkins v. Mahan, 26 Ky. L. R. 716, 76 S. W. 339. 78. Citizens' Bank v. Stockslager [Neb.] 96 N. W. 591; Jones v. Peterson [Or.] 74 P. 661 ; Lynch v. Plttman, 31 Tex. Civ. App. 563, 73 S. W. 862. Nonsuit will be presumed to have been properly granted. Hanna v. De Garrao, 140 Cal. 172, 73 P. 830. Judgment for costs in favor of plaintiff presumed not to have been against defendant not served In state, there being another defendant properly served. Maxcy v. McCord [Wis.] 98 N. W. 529. An order on the court's own motion, set-ting aside a license to practice law at the same term at which it was grant- ed, will be presumed to have been on good grounds. Killian v. State [Ark.] 78 S. W. 766. Certiorari to" a Justice in a forciblo entry and detainer case will be presumed not to have issued until after service of the summons, where such presumption Is pos- sible on the record and necessary to sus- tain the Jurisdiction [Rev. St. 1899, § 3358]. 3 Cur. Law. APPEAL AND KEVIEW § 13E. 281 Where it appears by the bill that evidence of an instruction by a wife to her husband as to the application of a certain payment given in plaintiff's absence, was rejected, it will not be assumed in support of the ruling that it was rejected because oc- curring in a private conversation between husband and wife.'" The reviewing court is confined to the record and will consider only such er- ror as is there presented,^^ whether the suit be at law or in equity,^^ and affidavits or other evidence to affect the disposition of the case on appeal cannot be received.*' Matters not in the record cannot be considered in support of the judgment,'* and reversal will not be made upon evidence of matters occurring since the trial.*^ AVliere the bill of exceptions is deficient in showing facts required to be shown by it, it cannot be aided by reference to the evidentiary bill,*" and statements in the abstract cannot supply, omissions of documentary evidence from the bill of excep- tions or record.'^ An omission in proof of a matter of record may be supplied, to sustain the judgment.*' The record in a companion case between the same par- ties, and tried with the case appealed, cannot be considered though sent up," but the record in a former suit, re-filed in the pending suit, may be considered to sup- ply omissions from the record, no motion having been made to strike it out."" Omission of any portion of the record will preclude review of questions arising on the omitted portion."^ A statement in the record indicating that matters other than the evidence were perhaps considered by the court in arriving at its conclu- sion, is not gi-ound for reversal in the absence of any showing of prejudice."' On Gossett V. Devorsa, 98 Mo. App. 641, 73 S. W. 731. Where the record does not shovy whether an amendment to a pleading was inserted at a proper or improper place, it \vill be presumed to have been inserted at the proper place. Vinson v. Palmer [Fla.] 34 So. 276. 79. Exclusion of taxpayers from jury. Board of Counoilmen of Harrodsburg v. Mitchell, 25 Ky. L. R. 1518, 78 S. W. 210. Error assigned on allowing plaintiff to dis- miss as to one defendant before proof, rec- ord not showing that it was before. Scalfl V. Graves, 31 Tex. Civ. App. 007, 74 S. W^. 795. A complaint that the trial judge by his manner prejudiced appellant before the jury cannot be considered in the absence of anything in the record to establish it. Klipstein v. Rasohein, 117 Wis. 248, 94 N. W. 63. See 1 Curr. L. 182, n. 20. 80. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140, 06 N. B. 646. 81. Modern Brotherhood of America v. Cummings [Neb.] 94 N. W. 144; Springer v. Chicago Real Estate, L. & T. Co., 202 111. 17. 66 N. B. 850; Boyle v. Union Pac. R. Co., 25 Utah, 420, 71 P. 988; Allen v. Becket, 84 N. Y. S. 1012; Ohio Colo. Mln. & Mill. Co. v. Wiley [Colo. App.] 71 P. 1001; Archison V. Arnold [Wyo.] 72 P. 190. Though ad- mitting the reading to tbe jury of the orig- inal but abandoned complaint to have been improper. Inasmuch as the court is not in- formed by the record of its contents, such reading does not appear to be prejudicial to plaintiff. Loftus-Hubbard El. Co. v. Smith- Alvord Co., 90 Minn. 418, 97 N. W. 125. Record failing to show that Issue of limita- tions was presented below, reversal will not be made because court's decision of that question prevented introduction of proof of other Issues. Trega v. Mills [Wyo.] 73 P. 209. See 1 Curr. L. 162, n. 20. 82. Joyce v. Harding, 208 111. 77, 69 N. B. 747. 83. Nichols V. Roberts [N, D.] 96 N. W. 298; Whisler v. Whisler [Ind.] 70 N. B. 152; Gubner v. Parrell, 84 N. T. S. 157; Daly v. Mlnke, 86 N. T. S. 92. Settled case. Fisher V. Betts [N. D.] 96 N. W. 132. That party died before entry of decree. Joyce v. Har- ding, 208 111. 77, 69 N. E. 747. Whether de- mand for change of venue was made. Fischer v. Brooklyn Heights R. Co., 84 N. Y. S. 254. Misconduct of Jury. Cahill v. Baird, 138 Cal. 691, 72 P. 342. See 1 Curr. L,. 163, n. 26. 84. ,An order of reference by consent. Murray v. Barden, 132 N. C. 136, 43 S. E. 600. 85. Nor will such matters be considered for the purpose of directing the proceed- ings below. Marietta Chair Co. v. Hender- son, 119 Ga. 65, 45 S. B. 725. 80. Silver Springs, O. & G. R. Co. v. Van Ness [Fla.] 34 So. 884; Hoodless v. Jernigan [Fla.] 35 So. 656. 87. Edwards v. Slmms [Ariz.] 71 P. 902. 88. Cullingworth V. Wilson, 84 N. Y. S. D68. 80. Armstrong v. Ballew, 118 Ga. 168, 44 S. B. 996. 90. Gardner v. Continental Ins. Co., 25 Ky. L. R. 426, 75 S. W. 283. 91. Where no part of the record prior to an alias order of sale on which property is sold is brought up on appeal from an or- der of confirmation, no irregularity or lack of authority to Issue such alias order can be presumed. National Life Ins. Co. v. Crandall [Neb.] 96 N. W. 624. On appeal from a judgment of the municipal court of New York, where the return contains nei- ther the complaint nor the testimony, the correctness of the judgment on the merits cannot be reviewed. O'Brien v. Kuntz, 84 N. Y. S. 635. 82. Miller v. Miller [Iowa] 98 N. W. 631. See 1 Curr. L. 164, n. 35. 252 APPEAL AND EEVIEW § 13E. 3 Cur. Law. appeal from a judgment construing a will the court can consider a deposition on which the trial court based its finding of the facts necessary to an understandiag of the will.'' The opinion of the trial court has no place in the record and it cannot be referred to to rebut the presumption that the court considered all evi- dence properly before it.°* When a ruling depends on the evidence, it cannot be reviewed unless all the evidence relating thereto is in the record/^ and so shown by the bill/" and a bill of exceptions not properly authenticated by the clerk be- low will not be considered."' Where a written contract is not set out in the record, its construction, and the admissibility of evidence, and propriety of instructions concerning it will not be considered."' A ruling based on the evidence will be pre- sumed correct in the absence of the evidence by stipulation."" A certificate that the evidence tended to show certain facts will raise the legal questions growing out of such facts.^ Where there is no bill of exceptions, or substitute therefor, in the record, or because of defects it is stricken out or refused con- sideration, questions depending thereon will not be considered,* the only errors reviewable in such case being those appearing upon the journal properly entered thereon;' but errors appearing on the face of the record Lee V. Baird, 134 N. C. 410, 46 S. B. Phillips V. Coburn, 28 Mont. 45, 72 P. 93. 955. 94. 291. 95. Allowance of attorney fees not re- viewed in absence of evidence. Deane v. Ind. Macadam & Construction Co., 161 Ind. 371, 68 N. E. 686. Refusal of court below to dismiss appeal from inferior court. Haga- dorn V. "Wagoner [Neb.] 96 N. W. 184. Whether damages are excessive. City of Pueblo V. Timbers, 31 Colo. 215, 72 P. 1059. Error In sustaining plea in abatement. Grlffls y. Baxter & Co., 119 Ga. 612, 46 S. B. 840. Neither an order disposing of the fund in controversy, nor one enjoining interplead- ing defendants from prosecuting an Inde- pendent suit to recover it can be reviewed in the absence of a showing that the entire record Is before the court. WagsfafE v. WagstafE, 67 Kan. 832, 72 P. 780. See 1 Curr. L. 163, n. 31. 96. Frazier v. Weaver, 67 Kan. 829, 72 P. 792. Where on error it appears from the papers before the court that there are other files not part of the transcript, and the cer- tificate of the clerk does not show that the papers attached are a true and correct transcript, the court has no jurisdiction to examine the alleged errors. Kincaid v. Friedman, 67 Kan. 838, 73 P. 52. Where there Is no certificate that the proceedings included constitute a complete transcript of the entire record the case cannot be re- viewed as on a transcript of the record. Bonanza Lead Min. Co. v. Huff, 66 Kan. 786, 71 P. 849. Where the case on appeal con- tains no certificate that It contains all the evidence, the facts cannot be examined, but where the case was tried to a jury, the ex- ceptions to rulings of the trial justice will be reviewed. Baker v. Griffin, 86 N. T. S. 579. 97. Van Auken v. Mizner [Neb.] 93 N. W. 1121; Id., 97 N. W. 334; United States Nat. Bank v. Hanson [Neb.] 95 N. W. 364; Ham- mer v. Coglizer [Neb.] 95 N. W. 681. 98. Merriner v. Jeppson [Colo. App.] 74 P. 341. 99. Griffin v. GIngell, 25 Ky. L. R. 2031, 79 S. W. 284. 1. Brown v. Schlntz, 202 111. 609, 67 N. E. 172. 2. Award of jury In condemnation pro- ceedings not reviewed In absence of bill of exceptions. Clapp v. Macfarland, 20 App. D. C. 224. Where no evidence is preserved in the bill of exceptions, no question predi- cated thereon can be considered. Cerussite Min. Co. V. Anderson [Colo. App.] 75 P. 158; Sayer v. Brown, 119 Ga. 539, 46 S. B. 649; Douglas County v. Sayer, 119 Ga. 551, 46 S. B. 654. Judgment on an agreed statement of facts cannot be reviewed in the absence of a bill of exceptions. Stempel Fire Extin- guisher Mfg. Co. V. National Fire Ins. Co. [Mo. App.] 77 S. W. 334. In the absence of a statement of facts, assignments Involving issues of fact or depending on the status of the facts cannot be reviewed. Beaumont Imp. Co. V. Carr [Tex. Civ. App.] 75 S. W. 327. Except in case of an instruction ob- viously erroneous when considered In the light of the pleadings and verdict. Luna v. Missouri, K. c& T. R. Co., 31 Tex. Civ. App. 604, 73 S. W. 1061; Galveston, H. & S. A. R. Co. v. Perkins [Tex. Civ. App.] 73 S. W. 1067. The pleading being sufficient to support It and thero being no bill of excep- tions, a decree in equity will be affirmed on appeal. Stanbury v. Storer [Neb.] 97 N. W. 805. Where the record on appeal contains neither findings of fact nor bills of excep- tions, the only question presented Is whether there is sufficient evidence to sup- port the judgment. Holler v. Scott [Tex. Civ. App.] 75 S. W. 839. Where an action was dismissed after hearing the evidence, It will not be reviewed without a bill of exceptions, though the record recites that in the opinion of the trial judge the com- plaint does not state a cause of action. Mc- Cowan v. Votaw [Neb.] 93 N. W. 1129. 3. Manley v. Wheeling & L. E. R. Co., 24 Ohio Circ. R. 70. Where the record proper alone Is brought, the appellate court Is con- fined to a consideration of that only. State v. Carroll, 101 Mo. App. 110, 74 S. W. 468; Strauss v. St. Louis Transit Co., 102 Mo. App. 644, 77 S. W. 156. Assignments of er- ror not based upon exceptions duly taken 3 Ciir. Law. APPEAL AND EEVIEW § 13B. 253 proper will be reviewed whether the facts, or evidence are before the court or not.* Where the only contention is whether the findings of fact justify the conclusions of law a statement of facts is unnecessary." The judgment may be limited but not enlarged by a record that shows only the judgment and findings, since the complaint may have been insufficient to support a larger judgment.* In the Fed- eral courts, where a jury is waived by written stipulation, and the finding of the court is general, and no bills of exceptions are taken to the rulings during the progress of the trial, the record presents no question for review by the appellate court,' and in the absence of a written stipulation waiving a jury, the only ques- tion reviewable is whether the judgment rendered is sustained by the pleadings.* Where the facts or evidence are absent from the record, all presumptions of fact necessary to sustain a judgment conformable to the pleadings will be indulged,* and no fact, the existence of which is necessary to overturn the judgment below, will be regarded as established without an affirmative showing thereof.^' When and preserved by bill of exceptions will not be considered unless such error is apparent from the record proper and not necessary to be preserved by bill. Rudolph v. Smith rColo. App.] 72 P. 817; Carlin v. Freeman [Colo. App.] 75 P. 26. Where there is no statement properly authenticated, only er- rors appearing on the face of the Judgment roll can be considered. Appeal from order of probate court setting aside homestead. In re Quinn's Estate [Nev.] 74 P. 6. Where there is no bill of evidence in the record (U. S. Cast Iron Pipe & Foundry Co. v. Gable, 2S Ky. L. R. 1692, 78 S. W. 485), or where the bill of exceptions has been strick- en from the record, the only question re- viewable Is the sufficiency of the pleadings to support the Judgment (Kice v. Louisville & N. E. Co., 25 Ky. D. R. 312, 75 S. W. 218). Record limited by stipulation held to pre- sent only question whether pleadings sup- port judgment. Curtis v. Boquillas Land & Cattle Co. [Ariz.] 71 P. 924. On error, where no niotion for new trial was filed below and no exceptions taken to rulings of the trial court, and there is no bill of excep- tions, the only question open to the error court Is whether the pleadings are' sufficient to sustain the judgment. Gillespie v. Mors- man [Neb.] 95 N. W. 774; Bemis v. McCloud [Neb.] 96 N. W. 214; Grove v. Dineen [Neb.] 96 N. W. 253; Porter v. Detrlck [Neb.] 96 N. W. 271. 4. Error affirmatively appearing on the face of the record proper will be reviewed without a bill. Herman v. Beck [Neb.] 94 N. W. 512. See 1 Curr. L. 164, n. 34. 5. Fitz Henry v. Munter, 33 Wash. 629, 74 P. 1003. e. Shelby v. Creighton [Neb.] 96 N. W. 382 7. Rev. St. §§ 649, 700. National R. Co. v. O'Leary [C. C. A.] 126 F. 363. 8. City of Defiance v. Schmidt [C. C. A.] 123 F. 1. 9. Where the trial court found that a county was "organized" It will be presumed, in aid of the judgment, in the absence of a statement of facts, that every act necessary to constitute the county an organized coun- ty was done. McCaleb v. Rector [Tex. Civ. App.] 78 S. W. 956. In the absence of the evidence It will be presumed that the attor- ney fee allowed by the court In a foreclosure case was reasonable. Johnson v. Hibbard [Utah] 75 P. 737. A verdict will be pre- sumed to have been properly directed where the facts are not before the court. Young V. Surget [Miss.] 34 So. 322. In the absence of a bill of exceptions it will be presumed that facts alleged in a motion to dismiss as to one defendant, which was granted, were proven. Scalfi v. Graves, 31 Tex. Civ. App. 667, 74 S. W. 795. Where the appoint- ment of a receiver Is collaterally attacked on appeal and the grounds of opposition urged below against his appointment are not shown, it will be presumed that evi- dence necessary to authorize the court's ac- tion was presented. Mesnager v. De Leonid, 140 Cal. 402, 73 P. 1052. In the absence of a bill of exceptions and statement In the rec- ord, the contentions that the appointment of a receiver was irregular, and that no Jurisdiction to order a sale was acquired, cannot be considered. O'Neil v. McLennan [Cal.] 73 P. 576. In the absence of a bill of exceptions or any finding of the facts on which the court acted in making an order, it will be assumed that the court acted wholly within the law. Discharge and trial without Jury in condemnation proceedings. Manley v. Wheeling & L. E. R. Co., 24 Ohio CIrc. R. 70. On a general finding for de- fendant in a trial by the court, where the evidence Is not preserved, and there is no special finding Inconsistent with the gen- eral finding, if the answer sets forth a de- fense, the judgment of the trial court must, in the absence of error in making up the pleadings, be upheld. Snyder v. Johnson [Neb.] 95 N. W. 692. Where no instructions were asked or refused, and no exceptions to the rulings on evidence preserved, the Judg- ment, If correct under any theory applicable to the facts, will be affirmed. Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281. 10. Where the petition Is met by a gen- eral denial, matters of fact alleged in the petition cannot be regarded as proven with- out facts or findings in the record. Certifi- cate of acknowledgment of deed. Beau- mont Imp. Co. V. Carr [Tex. Civ. App.] .75 S. W. 327. An order denying a motion to va- cate a Judgment for taxes and quash the execution cannot be reviewed in the ab- sence of the Judgment and petition on which it was founded. State v. GawronskI [Mo.] 78 S. W. 807. Where It appears that the 254 APPEAL AND REVIEW § 13E. 3 Cur. Law. the appeal is oh the judgment roll alone, and no error appears on the face there- of, the judgment must be affirmed.^^ Though the bill does not contain all the evidence, if enough is preserved to raise a certain inference and defendant in error proposes to deny that inference, he must see that enough is stated to at least show that there was other evidence which might affect the conclusion.^^ Where, after demurrer to the evidence is overruled, defendant ofEers proof,^' and his motion for directed verdict is then overruled, he is entitled on appeal to a review of the evi- dence as a whole.^* It cannot be assumed in favor of an exceptant that a view by the jui-y added anything to the evidence stated in the bill.^° JurisdicUon and venue}^ — Where the record shows that a certain person appeared at trial for one of the parties, it will be presumed that he was autliorized so to do.^' The overruling of a motion by the removing defendant to remand a cause to the state court will not be reviewed on. the ground that an indispensablo party defendant was shown by the evidence to be a citizen of the same state with complainant, where the evidence is not in the record and the bill and. petition for removal show a removable case.^* Process and pleading^ — An exception to jurisdiction of the person cannot lie sustained where the return of service is not in the record.^" Where process is a part of the record proper, and the transcript shows none, the record will not be helped out by the presumption that proper process was serA'ed.^^ Eulings on demurrers, exceptions, and motions to strike pleadings cannot be reviewed in the absence of the pleadings in question,^'' and where there is no showing that a demurrer was ever presented to the court, no complaint can be made that no disposition was ever made thereof.^' Exception to the refusal of an amendment not in the record will not be considered.''* Wliere the complaint is dismissed at the trial before a referee, and the answers filed are not contained sheriff's deed, under which plaintiff claims, mlsdesoribed the land and has been altered since delivery, he will not be granted relief as equitable owner in the absence of the execution from the record, since that may have been wrong too. Kalbach v. Mathis [Mo. App.] 78 S. W. 684. Where on appeal from the decision of the board of general appraisers affirming the collector's classifi- cation of Imported merchandise, there Is no evidence to overthrow tlie classification, the decision of the board must stand. Bailey & Go. V. II. S., 122 P. 751. The dismissal of a petition to set aside a Judgment cannot be reviewed where no part of the record of the original suit Is brought up. Jones v. Con- way, 25 Ky. L. R. 2017, 79 S. W. 239. Where a plea of former judgment is traversed and the judgment pleaded Is not In the bill of exceptions the defense will not be consid- ered on appeal. Brinkraan v. Sunken, 174 Mo. 709, 74 S. W. 963. An estoppel founded on an agreement and judgment in another case, neither of whlcli is In the record, cannot be considered. Watkins v. Hopkins County [Tex. Civ. App.] 72 S. W. 872. Whether the appellee Is barred by an es- toppel cannot be considered in the absence of the documentary evidence on which his contention is based. Kraft v. Holzman, 206 111. 548, 69 N. B. 574. 11. Swartz V. Davis [Idaho] 74 P. SCO. 12. City of Detroit v. Grummond [C. C. A.] 121 F. 963. 13. Oglesby v. Missouri Pac. R. Co., 177 Mo. 272, 76 S. W. 623. 14. McLaln v. St. Louis & S. R. Co., 100 Mo. App. 374, 73 S. W. 909. 15. Williams v. Citizens' Elec. St. R. Co., 184 Mass. 437, 68 N. E. 840. 16. Jurisdiction of the court below to en- ter personal judgment against the defend- ant will be presumed unless the lack of it appear in the record. Culver v. Lieberraan, G9 N. J. Law, 341, 55 A. 812. See 1 Curr. L. 164. 17. Department of Health v. Babcock, 84 N. Y. S. 604. 18. Wirgman v. Persons [C. C. A.] 126 F. 449. 19. See 1 Curr. L. 165. 20. Stoddard v. Cambridge Mut. Fire Ins. Co., 76 Vt. 253, 54 A. 284. 21. Mandamus. Hart v. State, 161 Ind. 189, 67 N. B. 996. 22. All the paragraphs of an answer must be included when there is a separate de- murrer to each paragraph and some are overruled and some sustained. Cliicago, etc., R. Co. v. Indiana Natural Gas & Oil Co. [Ind. App.] 70 N. E. 270. Where the an- swer is not In the record, an assignment complaining of the sustaining of special ex- ceptions thereto cannot be considered. Crawford v. Abbey [Tex. Civ. App.] 79 S. W. 346. Error In striking out paragraphs of a pleading cannot be reviewed where the amended pleading subsequently filed is not In the record. Rawlings v. Casey [Colo. App.] 73 P. 1090. 23. O'Neil v. McLennan [Cal.] 73 P. 576. 24. Castellow v. Brown, 119 Ga. 461, 46 S. B. G32. 3 Cur. Law. APPEAL AND REVIEW § 13E. in the record, they cannot be reviewed.^" Nothing appearhig to the contrary, it will be presumed that leave was given to file an amended complaint,'" that an amended pleading was a mere restatement of the matter of the original,^' and that plaintifE stood upon his complaint on the sustaining of a demurrer to it.'' Where there is nothing in the record to show the form of an application to amend a declaration, except the statement in the amended declaration that it was filed with leave of court, it will not be presumed that it was filed as a substitute to the original, but as an addition to it and that exhibits filed with the original are still before the court.-" All reasonable presumptions not contrary to the record will be indulged with reference to the sufiiciency of the pleadings below to sup- port the judgment: i. e. that oral pleadings were amended to conform to the proof,'" that a paper attached to the transcript purporting to amend the petition was not allowed as an amendment,'^ that a petition included in the transcript was a part of the complaint, though not referred to therein as an exhibit,'^ and variances between pleadings and proof unexcepted to below will not be considered unless material and substantial and affecting the right of the matter. ''^ A judg- ment on the pleadings and amendments will not be reversed where they are con- fusing and involved, and there is nothing to show that they are all included in the record.'* An order overruling a motion to dismiss for want of a written complaint will not be reviewed where the record does not show that a written complaint was not filed.'^ Where the sufficiency of a complaint is first raised on appeal,'* or where the appeal is from the overruling of a general demurrer, the allegations of the petition must be accorded every reasonable intendment in favor of the right to be enforced," the rule that it should be construed most strongly against the pleader having no application. Motions and affidavits?^ — To review the ruling on a motion the record must show the motion itself,'* the grounds thereof,*" the affidavits*^ or other evidence SS5. TerwiUig-er v. Wheeler, 81 App. Div. •160, 81 N. T. S. 173. 36. Pitzele v. Reuping [Ind. App.] 68 N. K. 003. 27. Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. B. 475. 28. Noerdllnger v. Huff, 31 Wash. 360, 72 P. 73. 29. Abbott V. Bowers [Md.] 57 A. 538. 30. On appeal from the municipal court in a case in which the pleadings were oral and defendant consented that plaintifC might plead anything he wished, it will be pre- .sumed that the complaint was amended to conform to the proof, though a different cause of action than that first pleaded was proved. Poess v. Twelfth Ward Bank, 86 N. Y. S. 857. 31. The justice had dismissed the case as beyond his jurisdiction, and paper purported to amend by withdrawing part of demand. Fidelity & Guaranty Co. v. Feed Co., 100 Mo. App. 725. 32. Petition In highway proceedings. Wagner v. Mahrt, 32 Wash. 542, 73 P. 675. 33. v. S. 1630. Brown's Bx'r v. Dunn's Estate, 75 Vt. 264, 55 A. 364. 34. Ott V. Elmore, 67 Kan. 853, 73 P. 898. 35. Action to recover penalty for ob- structing public road. Seldschlag v. Town of Antioch, 207 III. 280, 69 N. B. 949. 3«. Vivion Mfg. Co. v. Robertson [Mo.] 75 S. W, 644. 37. St. Louis S. W. R. Co. v. Splvey [Tex.] 76 S. W. 748. 38. See 1 Curr. L. 166. 39. Motion to strike part of complaint. Crystal Ice Co. v. Morris, 160 Ind. 651, 67 N. B. 502. Motion for directed verdict. In re Harvey's Will [Iowa] 94 N. W. 559. Where a bill of exceptions taken to the overruling of a motion for continuance docs not contain the motion or otherwise iden- tify It as required by rule, it cannot be re- viewed. Rules 55 and 86. Chicago, R. I. & T. R. Co. V. Long [Tex. Civ. App.] 74 S. W. 59; Ft. Worth & D. C. R. Co. v. Partin [Tex. Civ. App.] 76 S. W. 236. The motion for a new trial not being of itself a part of the record, where it Is not Included in the bill of exceptions, the grounds of it cannot be reviewed, though the journal entries show that it was made and denied and the de- nial excepted to. Freeburgh v. Lamoureux [Wye] 73 P. 546. See 1 Curr. D. 106, n. 66. 40. Motion to direct verdict. In re Har- vey's Will [Iowa] 94 N. W. 559; Hopwood v. Benjamin Atha & Illingsworth Co., 63 N. J. Law, 707, 54 A. 435. See 1 Curr. L. 166, n. 67. 41. Affidavit for continuance hold not properly brought into record. Du Quoin Waterworks Co. v. Parks, 207 111. 46, 69 N. E. 587. Affidavit on motion for new trial. Rudolph v. Smith [Colo. App.] 72 P. 817. Motion to retax costs. Van Busklrk v. Balcii [Colo. App.] 74 P. 792. See 1 Curr. L. 160, n. 68. 356 APPEAL AND EEVIEW § 13E. 3 Cur. Law. on which the motion is based,*" that it was ruled on,*' and what the ruling was,** since error must affirmatively appear to secure reversal, all reasonable presump- tions being indulged to support the ruling below.*" On appeal from the grant or refusal of a new trial, the record should show the newly discovered evidence on which it is based,*" and also the evidence in the case, since otherwise it can- not be seen that the new evidence was competent or material,*' or was not merely cumulative.*' Where the notice of a motion for a new trial specifies insuffi- ciency of the evidence as a ground, but the statement contains no specifications, it cannot be presumed on appeal in support of the order granting the new trial that the evidence was insufficient to support the findings.*" An appeal from an order denying a motion to vacate an order adjudging a party guilty of a crim- inal contempt presents no question for review, where the motion was based merely on the affidavit of the party and there is no certification that it contains all the proceedings."" Proceedings at trial in general.^^ — Improper remarks of counsel must appear in the record to review alleged error therein."" Where the record does not show the arguments of coxmsel, it will be presumed the Jury took the law from the court, as is their duty, and disregarded counsel's statements in so far as in con- flict with the instructions."' An assignment of error based on the alleged mis- conduct of the jury will not be considered where it is ascertainable only from affidavits not included in the bill of exceptions."* Where there is no showing as to why the regular panel was hot summoned to appear before the case was set for trial, it will be presumed there was justifiable cause for ordering a special jury."" It will be presumed the statute was read to the officer sent out in charge of the jury as provided therein, in the absence of any showing to the contrary, or that it was waived by the appellant."' Admission or exclusion of evidence." — ^Rulings on the admissibility of evi- 42. Verified motion to strike out report of highway viewers. Merom Gravel Co. v. Pearson [Ind. App.] 69 N. B. 694. Motion to dismiss appeal from justice. Cox v. Crow [Neb.] 94 N. W. 524. The ruling on a mo- tion for new trial will not be reviewed in the absence of the newly discovered evi- dence from the record. Board of Council- men v. MitcheU, 25 Ky. L. R. 1518, 78 S. W. 210. 43. No showing that motion was ever presented or ruled upon. Lake Brie & W. R. Co. v. Shelley [Ind. App.] 67 N. B. 564. Affidavits in support of a motion below not ruled upon will not be considered. Motion to amend reporter's notes of evidence. Mod- ern Brotherhood of America v. Cummings [Neb.] 94 N. W. 144. 44. Ledwith v. Campbell [Neb.] 95 N. W. 838. See 1 Curr. L.. 166, n. 69. A ruling that the motion "heretofore filed" is overruled, the motion for new trial being the only one before the court, sufficiently identifies it. Cummins v. Cummins, 30 Ind. App. 671, 66 N. E. 915. 45. Where the order denying a motion for a new trial states no reasons and ap- pears to have been entered after the time allowed for making such motion, and there is no showing as to when the motion was made, it will be presumed in support of the judgment below that the motion was denied because not filed in time. City of Perry V. National Sewing Mach. Co., 13 Okl. 211, 74 P. 189. The propriety of an order refusing to continue in force a temporary injunction cannot be determined in the absence of the facts from the record, and it will be affirmed. Weeks v. New York & N. J. Tel. Co., 86 App. Div. 257, 83 N. T. S. 678. 46. Board of Councilmen v. Mitchell, 25 Ky. L. R. 1518, 78 S. W. 210. Where the rec- ord on appeal does not contain the evidence on which a new trial was granted, but there was other evidence sufficient to sustain it, it will be affirmed. Tenoza v. GoUlck, 80 App. Div. 638. 81 N. T. S. 353. 47. Where evidence was not brought up, order was reversed. Rice's Ex'rs v. Wyatt, 25 Ky. L. R. 1060, 76 S. W. 1087. 48. Beokner v. Henquenet [Okl.] 76 P. 1131. 49. Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 75 P. 332. 50. In re Tietelbaum, 84 App. Div. 351,' 82 N. T. S. 887. 51. See 1 Curr. L. 166. 52. Notwithstanding attorney's promise to stenographer not to go outside the rec- ord. Kinney v. McFaul, 122 Iowa, 462, 98 N. W. 276. See 1 Curr. L. 166, n. 71. 53. Vocke v. Chicago, 208 111. 192, 70 N. B. 325. 54. Pledger v. Chicago, B. & Q. R. Co. [Neb.] 95 N. W. 1057. 55. Albany Land Co. v. Rickel [Ind.] 70 N. B. 158. 50. Walton v. Wild Goose Mln. & Trad- ing Co. [C. C. A.] 123 F. 209. 57. See 1 Curr. L. 166. 3 Cur. Law. APPEAL AND. EEVIBW § 13E. 257 dence cannot be reviewed unless the record shows the evidence admitted"* or ex- cluded,''" and sets it forth in such manner that the question can be decided vnth- out reference to other paxts of the record,"" and in the case of excluded evidence, such other evidence as is necessary to show its relevance or pertinence."^ Specific errors in excluding evidence will be reviewed, although the bill of exceptions does not contain all the evidence."^ Error of an auditor in overruling objections to evidence will not be considered unless the evidence is set forth in exceptions filed to his report."' The overruling of a motion to strike out all the evidence of a witness will not be reviewed where the bill sets out only a part of it."* The pur- pose for which the excluded evidence was ofEered,"^ and the ground of the objec- tion thereto, must appear,"" and an objection to admitted evidence will not be considered unless the ground thereof is stated in the case." Where the question is not shown, error in refusing it"' or in striking out the answer will not be re- viewed."* Kefusal to allow a certain question will not be reviewed where it does not appear what answer was expected,^" especially where the witness was called by the party questioning him.'^ And the sustaining of an objection to the testi- mony of a witness on being asked a preliminary question will not be reviewed in the absence of a showing as to what was expected to be proved by him.^^ The rule does not apply to a hostile witness, nor to questions proper on cross-examina- 58. Blaokwell v. Hatch, 13 Okl. 169, 73 P. 933; Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 559. Written notice. McAdams v. Felkner, 140 Cal. 354, 73 P. 1064. Facts set up in bin held to show that paper referred to, though produced and identified, was not offered In evidence. Alaska Commercial Co. V. Dlnkelspiel [C. C. A.] 126 F. 164. Error assigned because of admission of certain notes as evidence; the question refused con- sideration because notes not set out in the record. Harnett v. Holdrege [Neb.] 97 N. W. 443. See 1 Curr. L. 166, n. 80. 69. Cahill V. Baird, 138 Cal. 691, 72 P. 342; Nunn v. Jordan, 31 "Wash. 506, 72 P. 124. Expected answer of witness must be shown. Briggs v. Chicago & N. W. R. Co. [C. C. A.] 125 F. 745; Tague v. John Caplioe Co., 28 Mont. 51, 72 P. 297; Callaway v. Wil- son, 141 Cal. 421, 74 P. 1035. Written In- strument. United Railways & Elec. Co. v. Hertel, 97 Md. 382, 55 A. 428; Nolt v. Crow, 22 Pa. Super. Ct. 113. Where the testimony of a witness does not appear, it will be pre- sumed that refusal to allow him to repeat it at the instance of another party was proper. Gage V. City of Chicago, 203 111. 26, 67 N. E. 477. Report of commissioner showing that declarations of party were excluded. Car- michael v. Henry Wood's Sons Co., 184 Mass. 73, 67 N. B. 961. Warrant or return of sur- vey of land. Wilcox v. Snyder, 22 Pa. Super. Ct. 451. Papers not printed in paper book. McKnight v. Newell [Pa.] 67 A. 39. Ex- cluded deed must be shown. Edwards v. Slmms [Ariz.] 71 P. 902. Pleadings In prior case must be shown if rejection as evidence is to be reviewed. Pinlen v. Heinze, 28 Mont. 648, 73 P. 123. Testimony of absent witnesses on former trial. Caskey v. La Belle, 101 Mo. App. 590, 74 S. W. 113. Ex- clusion of answers to questions cannot be held error unless the answers are set out in the bill of exceptions and error affirma- tively appears. Fredrick Mfg. Co. v. Dev- lin [C. C. A.] 127 F. 71. See 1 Curr. L. 166, n. 81. 3 Curr. Law — 17 60. Georgia Northern R. Co. v. HutchiHS, 119 Ga. 504, 46 S. E. 659. 61. Hoodless v. Jernigan [Fla.] 35 So. 656; Snooks v. Wingfleld, 52 W. Va. 441, 44 S. E. 277; Wilson v. Brinker [Tex. Civ. App.] 76 S. W. 213. See 1 Curr. L. 167, n. 82. 62. It Is sufficient that the record dis- closes distinct error In the exclusion of tes- timony prejudicial to appellant. Lathrop v. Humble [Wis.] 97 N. W. 905. 63. Rusk V. Hill, 117 Ga. 722, 45 S. E. 42; Trentham v. Blumenthal, 118 Ga. 530, 45 S. E. 421. 64. Frltzlhger v. State, 31 Ind. App. 350, 67 N. E. 1006. 65. 66. Kendall v. Flanders [N. H.] 54 A. 286. 67. Colvln V. McCormick Cotton Oil Co., 66 S. C. 61, 44 S. E. 380. 68. Shugart v. Shugart [Tenn.] 76 S.W. 821. 69. Weller v. Wagner [Mo.] 79 S. W. 941. Objection that answer was unresponsive. Dangenbeck v. Louis, 140 Cal. 406, 73 P. 1086. 70. Chiralne v. Baker [Tex. Civ. App.] 76 S. W. 330; Grant v. Noel, 118 Ga. 258, 46 S. E. 279; Hendrlck v. Daniel, 119 Ga. 358, 46 S. E. 438; Thomas v. Wheeling Electrical Co. [W. Va.] 46 S. E. 217; Williams v. Bel- mont Coal & Coke Co. [W. Va.] 46 S. B. 802; Moser v. South Covington & C. St. R. Co., 25 Ky. L. R. 164, 74 S. W. 1090; Texas & P. R. Co. V. Meeks [Tex. Civ. App.] 74 S. W. 329. Expert witness. Moyer v. Ram- say-Brisbane Stone Co., 119 Ga. 734, 46 S. E. 844; Stroh v. South Covington & C. St. R. Co., 25 Ky. L. R. 1868, 78 S. W. 1120; Shugart V. Shugart [Tenn.] 76 S. W. 821. See 1 Curr. L. 167, n. 87. 71. A ruling sustaining objections to a question to one's own witness will not be reviewed in the absence of an offer of proof. Boughn v. Security State Bank, 1 Neb. UnofC. 490, 95 N. W. 680; King v. Pony Gold MIn. Co., 28 Mont. 74, 72 P. 309. 72. Harrison v. Incorporated Town of Ayrshire [Iowa] 99 N. W. 132. 358 APPEAL AND PtEVIEW' § 13E. 3 Cur. Law. tion/' and the rejection of the testimony of a witness offered as an expert on the ground that he is not qualified may be reviewed without a showing as to what hia testimony would have been.'* Error in excluding or admitting depositions must affirmatively appear.'" The action of the trial court in admitting secondary evidence wiU be presumed based on sufficient evidence, the contrary not appear- ing,'" and an objection to parol evidence wiU not be considered where the city ordinance, claimed to show the fact, is not in the record." The record must show interrogatories and offers which presented to the trial court the question relied upon in the reviewing court as the ground of reversal." A will, to construe which the action is brought, wiU be considered as properly in evidence, though by over- sight it was not formally offered in evidence below." Sufficiency of evidenced" — If the sufficiency of the evidence is questioned, all the evidence must be presented." The chancery rule is otherwise, appellee being required to show in the record evidence sustaining the decree.'* In Missouri, where aU the evidence is not in the record, on appeal in an equity case, the evi- dence cannot be considered,*' and in Arkansas, where the record in a chancery cause fails to show that it contains all the evidence, the decree will be presumed correct.** Where the petition states a cause of action and the findings support 78. Bell V. Pelt, 119 Ga. 498, 46 S. B. 642. 74. Muskeget Island Club v. Nantucket [Mass.] 70 N. E. 61. 75. An objection to a deposition for de- fect in authentication can be considered only when the authentication Is in the rec- ord. Cheuvront v. Cheuvront [W. Va.] 46 S. E. 233. A ruling excluding a deposition will be presumed correct In the absence of the notice and formal parts thereof. Coe v. Coe, 98 Mo. App. 472, 72 S. W. 707. That an objection to a deposition that appellant was not notified of the taking thereof may be available, the bill of exceptions must nega- tive waiver of notice. Texas & P. E. Co. v. Murtishaw [Tex. Civ. App.] 78 S. "W. 953. 76. Avery v. Stewart, 134 N. C. 287, 46 S. B. 519. 77. O'Brien v. Woburn, 184 Mass. 898, 69 N. B. 350. 78. Gardiner Campbell Co. v. Iroquois Iron Co. [C. C. A.] 127 P. 648. 70. Reed v. Morgan, 100 Mo. App. 713, 73 3. W. 381. Compare Peterson v. Wolf [Neb.] 95 N. W. 332. 80. See 1 Curr. I* 167. 81. Pittsburgh, C, C. & St. L. R. Co. v. Wilson, 161 Ind. 701, 66 N. E. 899; Emery v. Hanna [Neb.] 94 N. W. 973; United States Nat. Bank v. Hanson [Neb.] 95 N. W. 364; Curtis V. Boquillas Land & Cattle Co. [Ariz.] 71 P. 924; Lusch v. Pool [Ind. App.] 69 N. B. 687; Sayer v. Brown, 119 Ga. 639, 46 S. B. 649; Bggleston v. Royal Trust Co., 205 111. 170, 68 N. E. 709; Hutchinson v. Nay, 183 Mass. 355, 67 N. B. 601; King v. Grain [Mass.] 69 N. B. 1049; Tomllnson v. Bainaka [Ind.] 70 N. B. 155; Kringle v. Krlngle [Iowa] 98 N. W. 883. Finding of facts by auditor assumed correct in absence of tes- timony in record. Stookdale v. Maginn, 207 Pa. 226, 227, 56 A. 439. Motion to set aside verdict not reviewable, no evidence in rec- ord except as set forth in findings in con- nection with court's rulings. Devine v. Warner [Conn.] 56 A. 562. Waiver of arbi- tration clause of Are insurance policy pre- sumed in favor of judgment for plaintiff. Stoddard v. Cambridge Mut. Plre Ins. Co., 75 Vt. 253, 64 A. 284. Assignment that find- ing is not sustained, and recovery too large. Hatfield v. Chenoweth [Ind. App.] 70 N. E. 166. Where a ballot was not produced and the court had no copy, the decision as to its validity could not be reviewed. People v. Unger, 86 App. Dlv. 249, 83 N. Y. S. 83. Ex- hibits not in record. Zieph v. Rosenstein, 86 N. Y. S. 871. A finding conformable to the issues raised by the pleadings cannot be said to be erroneous in the absence of the evidence and instructions. Sherman v. Ran- dolph. 13 Okl. 224, 74 P. 102. Order of ap- proval of boundary commissioner's report heard on oral evidence not reviewed In ab- sence of evidence. Corbin v. McDermott, 33 Wash. 212, 74 P. 361. A judgment reciting that after commencement of suit plaintiff used money claimed to have been paid by defendant in settlement, thereby ratifying the settlement, and that for that reason judgment was directed for defendant, will not be reviewed in the absence of a state- ment of facts. Dibble v. Seattle Elec. Co., 33 Wash. 696, 74 P. 807. See 1 Curr. L. 167, n. 90. 82. Failure to preserve evidence will work reversal. Village of Harlem v. Sub- urban R. Co., 202 111. 301, 66 N. E. 1050. But see Marchal v. Davis, 206 111. 231, 69 N. B. 43, where it is said that appellant failing to include all the evidence cannot complain of Its omission. Where in a chancery case the party obtaining the decree fails to pre- serve the evidence by a certificate or other- wise, and the decree does not find the spe- cific facts proven. It will be reversed on appeal. Torsell v. Biffert, 207 111. 621, 69 N. E. 761. See 1 Curr. L,. 168, n. 91. 83. Nelson V. Hall [Mo. App.] 79 S. W. 600. Unless it affirmatively appears of rec- ord in an equity appeal that all the evi- dence is preserved, the cause will not bo reviewed. Heffernan v. Weir, 99 Mo. App. 301, 72 S. W. 1085. 84. Simpson v. John H. Talbot & Co. [Ark.] 79 S. W. 761. 3 Cur. Law. APPEAL AND KEVIEW § 13E. 259 the decree, and the evidence is not preserved, it will be presumed that it sup- ported the findings.'" Insufficiency of the evidence to warrant a peremptory charge cannot be considered in the absence of a statement of facts, though the court sums up the evidence in the charge.*" The record must aiSrmatively show thai it contains all the evidence,*' and where it does not, its sufficiency to sup- port the verdict or findings will not be reviewed,'' it being presumed in such case that the verdict has evidence to support it not set out in the record,'* not- withstanding a stipulation that it contains all the evidence necessary to a deter- mination of the questions raised.'" Where the bill of exceptions shows that with- out doubt important evidence has been omitted therefrom, the findings and judg- ment will not be disturbed as contrary to the evidence;"^ and where the record on appeal in an equity case shows that not all the evidence is included, it will be presumed that there was sufficient to warrant findings of fact justifying the decree.*" Where the evidence in respect to the finding complained of is com- plete, it will be reviewed, notwithstanding the absence of evidence on other issues, since it will be assumed that the evidence omitted was immaterial." A verdict for defendant in ejectment cannot be disturbed where title papers are not in the record and nothing in the transcript shows title in plaintiff.** Where it appears from the pleadings and the evidence brought up that plaintiff could not recover in any event, judgment in his favor will be reversed, though all the evidence is not in the record.*" Where evidence is omitted, the appellant must rebut the presumption that the order complained of was justified by the omitted evidence." AVhere the record shows by inspection that all the evidence is not included, a recital or certificate that it is, is immaterial.*' Where the appeal is from the judgment 85. Lexington Bank v. Marsh [Neb.] 95 N. W. 341; Jewell v. Shaw [Colo. App.] 75 P. 28. SG. Colley V. "Wood [Tex. Civ. App.] 74 S. W. 602. 87. Kennedy v. Plank [Wis.] 97 N. W. 895; King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309; Robertson v. Longley, 28 Mont. 128, 72 P. 423; Saling v. Bolander [C. C. A.] 125 F. 701. Error in directing verdict not considered otherwise. Marvin v. Bowlby [Mich.] 98 N. W. 399. A judgment depend- ing on the evidence will not be reviewed unless the clerk's certificate shows that the bill of exceptions contains all the evidence. Spenoe v. Lane [Neb.] 97 N. W. 478. Affi- davits not properly certified, order based thereon not reviewable. Ellis v. City of Ashland, 117 Wis. 575, 94 N. W. 292; Mil- waukee Trust Co. V. Sherwin [Wis.] 98 N. W. 223. No certificate. Means v. Gotthelf, 31 Colo. 168, 71 P. 1117; Means v. Stow, 31 Colo. 282, 73 P. 48. Showing held sufficient. Truskett v. Bronaugh [Ind. T.] 76 S. W. 294. See 1 Curr. L. 168, n. 92. 88. In re Miner, 13 Okl. 557, 76 P. 1128; Demaris v. Parker, 33 Wash. 200, 74 P. 362; Stewart v. Guy, 138 Ala. 176, 34 So. 1007; Shafer & Co. v. Hausman [Ala.] 35 So. 691. Case tried to referee must show that all evidence heard by him was returned to dis- trict court. In re French & Holmes, 13 Okl. 549, 75 P. 278. Where the record does not purport to contain all the evidence the de- cision will not be reversed on the facts. Bradford v. Cline, 12 Okl. 339, 72 P. 369. The appellate court, however, did hold that from an Inspection of the evidence before them the findings of the Jury were proper. Kennedy v. Plank [Wis.] 97 N. W. 895. Where the certificate of evidence In the rec- ord on appeal In an equity suit does not state that the evidence certified to was all the evidence, a specific finding of fact must prevail. Champion v. Myers, 207 111. 308, 69 N. E. SIE. 89. Truskett ▼. Bronaugh [Ind. T.] 76 S. W. 294. 00. Miller v. Farmers' & Merchants' State Bank, 85 App. Div. 175, 83 N. T. S. 74. 91. Chicago, B. & Q. R. Co. v. Bigley [Neb.] 95 N. W. 344. Depositions omitted. Louisville & N. R. Co. v. Whitehead's Adm'r, 24 Ky. L. R. 2315, 73 3. W. 1128. 92. Ernst V. Schmitz, 207 111. 604, 69 N. E. 923. 93. Sullivan v. Washburn & Moen Mfg. Co., 139 Cal. 257, 72 P. 992. 94. Bowman v. Mosa, 26 Ky. L. R. 1133, 77 S. W. 184. 95. Herring-Marvin Co. v. Smith, 43 Or. 315, 73 P. 340. 00. Tenoza v. Gollick, 80 App. Dlv. 638, 81 N. Y. S. 353. Exhibits omitted from place In bill and not properly authenticated else- where. Dendy v. First Nat. Bank, 67 Kan. 856, 71 P. 830. Presumption that documen- tary evidence not brought in supported de- cree. Marchal v. Davis, 206 111. 231, 69 N. E. 43. It will be presumed on appeal that affi- davits not In the record supported the al- lowance of a claim against an estate. Cox V. Hlgglnbotham's Adm'r, 25 Ky. L. R. 1057, 76 S. W. 1079. 07. Beckner v. Henquenet [Okl.] 75 P. 1131; Hatfield v. Chenoweth [Ind.] 70 N. B. 166. Map referred to by evidence not in- cluded. Diamond Block Coal Co. v. Cuth- bertson [Ind. App.] 67 N. E. 658. The cer- tificate that the bill of exceptions oofttaina 360 APPEAL AND EEVIEW § 13B. 3 Cur. Law. on the judgment roll alone, the sufficiency of the evidence to support the findings cannot be considered."* Wliere the case on appeal does not show what part of an adversary's pleading plaintifE offered in evidence, it cannot be considered a part of his testimony to support a verdict in his favor.°* Instructions.^ — The instructions given or refused must appear properly in the record." The giving or refusal of instructions cannot be reviewed, unless the record contains the entire charge,' and the evidence to which they relate,* especially where certain issues are withdrawn from the ease," and the record must show that they were passed upon by the trial court, and an exception taken to the ruling,' since the presumption is that the court gave in substance, all proper instructions, and that the refusal of instructions asked was without prejudice.'' The record must show that it contains the entire charge.' In the absence of a statement of facts instructions not clearly erroneous in view of the pleadings and verdict will not be reviewed," and an objection to an instruction as unsupported by the evi- all the evidence win be regarded as untrue, where the facts appearing on the face of the bill are in conflict with such recital. Gall V. Gall [Wis.] 97 N. W. 938. Recital in Judg-ment that witnesses testified; documen- tary evidence only shown. Curtis v. Bo- quillas T^nd & Cattle Co. [Ariz.] 71 P. 924. Certificate not impeached by facts in rec- ord raising mere Inference of omission. PInney v. First Nat. Bank [Kan.] 76 P. 119. See 1 Curr. L. 168, n. 97. 98. Alexander V. Welcker. 141 Cal. 302, 74 P. 845; Erreca v. Meyer, 142 Cal. 308, 75 P. 826. 99. Clegg V. Southern R. Co., 133 N. C. 303, 45 S. B. 657. 1. See 1 Curr. L,. 168. a. Grand Lodge of Locomotive Firemen V. Orrell, 206 111. 208, 69 N. B. 68; Michigan City V. Phillips [Ind. App.] 69 N. E. 700; Wren v. Rowland [Tex. Civ. App.] 75 S. W. 894; Brown v. Gillett, 33 Wash. 264, 74 P. 386; Davis V. Seaboard Air Line R. Co., 132 N. C. 291, 43 S. E. 840; Hughes v. School Dist. No. 37, 66 S. C. 259, 44 S. B. 784. In- structions held properly in, though not cer- tified. Broadstreet v. Hall [Ind. App.] 69 N. B. 415. Refusal to further instruct after retirement presumed proper in absence of instructions given and request for further instructions from record. Buzanes v. Frost [Colo. App.] 75 P. 594. A recital in the transcript that the court instructed the jury to find for the plaintifE is a mere conclusion and in the absence of the instruction itself the error alleged will not be reviewed. Startzer v. Clarke [Neb.] 95 N. W. 509. See 1 Curr. L. 168, n. 3. 3. Lake Erie & W. R. Co. v. Holland [Ind.] 69 N. E. 138; Chicago, I. & E. R. Co. v. Wysor Land Co. [Ind.] 69 N. E. 546; Buelna V Ryan, 139 Cal. 630, 73 P. 466; Dornbrook V. Rumely Co. [Wis.] 97 N. W. 493; City of Pueblo V. Froney [Colo. App.] 71 P. 893. Especially where the instruction refused was of a nature that an imperfection there- in might be cured by others. Pittsburg, etc., R. Co. V. Smith, 207 111. 486, 69 N. B. 873.' An objection to an instruction which "among others" was given cannot be re- viewed in the absence of the others, since it will be presumed that the ones omitted quail- fled the one objected to. Hanson v. Stinehoff, 139 Cal. 169, 72 P. 913. See 1 Curr. L. 168, n. 4. 4. Chase y. Watson, 75 Vt. S85, 66 A. 10; Hoodless V. Jernigan [Fla.] 36 So. 668; Southern Pac. Co. v. Arnett [C. C. A.] 126 F. 75; Ft. Worth & D. C. R. Co. v. Kelley [Tex. Civ. App.] 76 S. W. 942; Fletcher v. Wakefield, 76 Vt. 257, 54 A. 1012; Mercer v. Southern R., 66 S. C. 246, 44 S. E. 750. In the absence of the evidence, the Instructions will be approved if correct under any evi- dence admissible under the pleadings. Man- kin V. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496. And instructions stating correct propositions of law will be presumed to have been refused because not applicable to the evidence. Diamond Block Coal Co. v. Cuthbertson [Ind. App.] 67 N. E. 558. Error in instructions to which the omitted evi- dence does not apply will be considered, notwithstanding Its omission. Exhibits. In- diana Clay Co. V. Baltimore & O. S. W. R. Co., 31 Ind. App. 258, 67 N. E. 704. Where there Is no bill of exceptions, instructions given that might have been proper under any pos- sible condition of the evidence under the pleadings, will be approved. Connor v. Schreiner-Flack Grain Go. [Neb.] 96 N. W. 221. See 1 Curr. L. 168, n. 5. 5. A refusal to instruct that there Is no evidence on a certain issue will not be re- viewed where the evidence Is not In the case and there Is no statement that there was no evidence. Hart v. Cannon, 133 N. C. 10, 46 S. B. 351. See 1 Curr. L. 168, n. 7. 6. German Ins. Co. v. Stiner [Neb.] 96 N. W. 122; Texas Cotton Products Co. v. Den- ny Bros. [Tex. Civ. App.] 78 S. W. 557. 7. Columbia Mfg. Co. v. Hastings [C. C. A.] 121 F. 328. In the absence of the charge It will be presumed that the facts were properly submitted. Reynolds v. Fitzpat- riok, 28 Mont. 170, 72 P. 510; SchuU v. New BIrdsall Co. [S. D.] 95 N. W. 276. 8. A statement in the bill that It contains all the Instructions given Is not falsified by a showing that a requested instruction of a particular number, which the court modi- fled, was not in the record, since it may have been given under another number. Nichols v. Baltimore, etc., R. Co. [Ind. App.] 70 N. E. 183. See 1 Curr. L. 168, n. 8. 9. Luna v. Missouri, K. & T. R. Co. [Tex. Civ. App.] 73 S. W. 1061; Galveston, etc., R. Co. V. Perkins [Tex. Civ. App.] 73 S. W. 1067; 3 Cur. Law. APPEAL AND KEVIEW § 13E, 261 dence cannot be considered if all the evidence is not in the record.^" Where objec- tion is made only to the instructions given, the bill need not give the instructions reqnested.^^ The ruling on a motion for a new trial will not be reviewed where the instructions on which it was based/^ or the evidence on which the instruc- tions were based, are not in the record.^' Alleged error in instructions in an equity case will not be considered, the verdict being merely advisory.^* Error in giving or refusing an instruction with reference to the argument of counsel will not be considered in the absence of a showing that counsel made any argu- ment.*" The correctness of prayers will be determined by the evidence unless special reference to the pleadings is made in the prayer.*" Eefused requests will not be considered on appeal as abandoned below, though appellant refused to allow appellee to read them, claiming they were not of record, where they were subse- quently filed in the cause and appellee made no further request to read them.*^ In the absence of a showing to the contrary in the record, charges given will be presumed to have been requested in vpriting, and those refused will be presumed to have been unwritten and therefore unreviewable.** Instructions not excepted to will be presumed to have been full and accurate,*' and satisfactory to appel- lant,'"' and regarded as the law of the case.** Verdict or findings^ judgment and execution.^'' — Necessary findings must be made and must appear.*' A bill of exceptions complaining of the absence of find- ings must show that they were not waived, as waiver will be presumed in sup- port of the judgment.** No findings of fact are required to review a judgment for plaintiff after sustaining demurrer to answer.*" In Missouri, where the court Avocato V. Dell 'Ara [Tex. Civ. App.] 77 S. W. 47. 10. Atwell V. Shook, 133 N. C. 387, 45 S. E. 777. 11. Nichols V. Baltimore, etc., R. Co. [Ind. App.] 70 N. E. 183. la. Baggett V. Savannah, F. & W. R. Co. [Fla.] 34 So. 564. 13. Citizens' Bank & T. Co. v. Spencer [Fla.] 35 So. 73. 14. King V. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309. 15. North Chicago St. R. Co. v. Wellner, 206 111. 272, 69 N. E. 6. Where there Is no bill of exceptions to the argument of coun- sel, a request purporting to counteract prej- udicial argument will be presumed refused because there was no such argument. In- ternational, etc., R. Co. V. Mills [Tex. Civ. App.] 78 S. W. 11. 16. Whitby V. Baltimore, C. & A. R. Co., 96 Md. 700, 54 A. 674. 17. Houston, etc., Co. v. Turner [Tex. Clv. App.] 78 S. W. 712. 18. Henderson v. State, 137 Ala. 83, 34 So. 828. 19. Griffin v. Cunningham, 183 Mass. 605, 67 N. B. 660; White v. McPherson, 183 Mass. 533, 67 N. B. 643. ao. Queck-Berner v. Atlantic Trust Co., 80 App. DIv. 460, 81 N. T. S. 146. 21. Cameron v. Mutual Life & T. Co., 121 Iowa, 477, 96 N. W. 961; Osborne & Co. v. RIngland & Co., 122 Iowa, 329, 98 N. W. 116. 82. See 1 Curr. Li. 169. 23. Mere opinion of court not sufficient. Tn re Boston Dry Goods Co. [C. C. A.] 125 F. 226; In re Noyes Bros. [C. C. A.] 125 F. 226. The appellate division cannot take cognizance of the decision of the trial court which Is not contained In the' record. Sommer v. Som- mer, 87 App. DIv. 434, 84 N. T. S. 444. Where the district court Is requested to make find- ings of fact, it is Its duty so to do that exceptions may be taken to Its views of the law Involved In the trIaL Shuler v. Lashorn, 67 Kan. 694, 74 P. 264. Where the court rules that the facts are insufficient to authorize the Introduction of secondary evidence, he should make a finding of such facts on request. Avery v. Stewart, 134 N. C. 287, 46 S. B. 519. Where in an equitable case the court calls and swears a Jury, but after hearing plain- tiff's evidence dismisses the complaint with- out making a written decision, and it ap- pears that a question of fact within the Is- sues was not passed upon, the Judgment will be reversed. Flanigan v. Skelly, 89 App. DIv. 108, 85 N. T. S. 4. The entry of a Judgment without a decision to support It will be cor- rected by remitting the case to the trial court for decision, and entry of Judgment in con- formity therewith. Sommer v. Sommer, 87 App. Dlv. 434, 84 N. T. S. 444; Kent v. Com- mon Council of City of Binghamton, 90 App. DIv. 553, 86 N. T. S. 411. Failure to find on facts in Issue constituting a defense to an action will not Justify a reversal, unless It la shown that there was evidence from which such facts could be found. Callahan v. James, 141 Cal. 291, 74 P. 853. Where the court makes merely a general finding, not- withstanding a request for special findings, the facts are not reviewable on appeal. Ber- wlnd-Whlte Coal Mln. Co. v. Martin tC. C. A.] 124 F. 313. On appeal an order granting a temporary Injunction will be deemed a find- ing of the facts. Gray v. Building Trades Council [Minn.] 97 N. W. 663. See 1 Curr. t. 169, n. 21. 24. Baker v. Baker, 139 Cal. 626, 73 P. 469. 25. Burke v. Wright, 76 Conn. 641, 56 A. 14. 263 APPEAL AND EEVIBW § 13E. 3 Cur. Law. in trjdng issues of facts sits as a jury and gives a general verdict, the judgment will not be reviewed on appeal or by writ of error, unless declarations of law are asked and refused, in order that the appellate court may see upon what theory t'.ie case was tried. Unless this is done the finding of the court is incontrovertible on appeal.^^ Findings of fact filed after the expiration of the term at which the case was tried cannot be considered.^^ Findings of the jury set aside as un- supported by evidence and not assigned as error will not be reviewed as entitling a party to judgment.^' The silence of the special finding is taken as equivalent to an express finding against the appellant on all material facts which he was obliged to prove.'" Where no decision appears in the judgment roll it will be presumed that none was made.'" Where in a ease tried to the court the trial judge's conclusions are not brought up, the judgment will be referred to any warrantable theory of the case made by the testimony which will legally support it.'^ The memorandum of the reasons of the trial judge for his decision cannot be allowed to qualify, characterize, or limit his determination,'^ and alleged errors in the trial court's opinion will not be reviewed,'^ but the appellate division may examine the opinion of the trial court to ascertain the basis of its disposition of the case.'* Whether certain items should have been allowed will not be reviewed where it does not affirmatively appear that the verdict included them,'^ but where recovery may have been based on either of two issues, only one of which was estab- lished, it will not be presumed to have been based on the one established.'" Where the record does not show on which paragraph of the complaint the verdict was rendered, the appellee cannot urge that an instruction, not specifically referring to a defective paragraph, withdrew it from the jury." A judgment for defendant on a verdict directed generally on a complaint in two paragraphs can be sustained only where neither cause of action is supported by evidence." Where, in Ala- bama, in a case tried to the court, there are special findings, the supreme court on appeal is limited in its review to a determination of whether the findings sup- port the judgment.'" Where the evidence is not preserved and the transcript does not contain the pleadings, the findings of fact will be conclusively presumed cor- rect.*" Where the trial court refuses to set aside a default, on the ground of inex- cusable neglect, his findings of fact are conclusive on appeal, and affidavits will not be considered.*^ In the absence of the evidence it will be assumed that it sustained the findings,*" or judgment,*' and where only a partial transcript is 26. Jordan v. Davis, 172 Mo. 699, 72 S. W. ese. 27. Beaumont Imp. Co. v. Carr [Tex. Civ. App.] 75 S. W. 327. 28. Casey-Swasey Co. v. Manchester Fire Assur. Co. [Tex. Civ. App.] 73 S. W. 864. 29. State Bank v. Backus, 160 Ind. 682, 67 N. E. 512. Facts as to wliicli the findings are silent are presumed found against the party holding the affirmative of that Issue. Stotts City Bank v. Miller Lumber Co., 102 Mo. App. 75, 74 S. W. 472. , . SO. Kent V. Common Council, 90 App. Div. 663, 86 N. T. S. 411. 31. Ward V. Cameron [Tex. Civ. App.] 76 S. W. 240. 32. Pearson v. Great Northern R. Co., 90 Minn. 227, 95 N. W. 1113. 33. Upton V. Welsllng [Ariz.] 71 P. 917. 34. Tenoza v. Golllek, 80 App. Dlv. 638, 81 N. T. S. 353. 35. Page v. Brummer, 84 N. Y. S. 268. 36. Huey Co. v. Kothfeld, 84 N. T. S. 883. 37. Cleveland, etc., R. Co. v. Lindsay [Ind. App.] 70 N. E. 2R3. 38. Gartner v. Chicago, etc., R. Co. [Neb.] 98 N. "W. 1052. 3». The court will not review special find- ings of fact on evidence extrinsic of the find- ings. Kitchen & Bro. v. Robinson Bros., 138 Ala. 419, 35 So. 461. 40. Shelby v. Creighton [Neb.] 96 N. VT. 382. 41. Osborn v. Leach, 133 N. C. 427, 46 S. B. 783. 42. Knickerbocker v. Robinson, 83 App. Div. 614, 82 N. Y. S. 314; King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309. In the ab- sence of a statement of facts the findings below will be regarded as conclusive. Con- ner V. Downis [Tex. Civ. App.] 75 S. W. <35; East v. Houston & T. Cent. R. Co. [Tex. Civ. App.] 77 S. W. 646; Altgelt v. CampbeU [Tex. Civ. App.] 78 S. W. 967; Hennlng v. Wren [Tex. Civ. App.] 76 S. W. 905. Failure to find with reference to a particular cause of action will not be considered. John A. Roeb- ling's Sons Co. v. Gray, 139 Cal. 607, 73 P. 422. 43. Cravens v. Despaln, ?5 Ky. L. R. 2018, 79 S. W. 276. Description of boundary in 3 Cur. Law. APPEAL AND REVIEW § 13E. 263 brought up it will be presumed that the omitted parts sustain the judgment.** An issue neither requested nor submitted will be presumed found so as to support the judgment.*" Where a decree disposing of the main issue of the cause makes no mention of the demurrer, it will be regarded as overruled.*' A finding that an order vacating a highway was regularly made presumes that all necessary steps were taken to give it validity.*'' Where the superior court finds that in justice court judgment after service was "duly rendered," it will be presumed in support of the finding that due proof of a default or judgment after trial was made.*' It will be presumed that a judgment dismissing the action at the cost of defendant was by his consent, the record not showing otherwise.*" Wliere it is the duty of the court to enter judgment, and it can be fairly inferred that the order was made, but through mistake of the clerk, not spread of record, it will be so presumed.'" Where the record shows no request for special findings of fact and conclusions of law, as required by statute," or where the special findings are not filed or brought into the record by bill of exceptions or order of court, they will be treated on appeal as a general finding in favor of the successful party.'" It will be presumed that no exception to a conclusion of law was taken where none appears in the record proper,"'' and where no findings of fact appear, an exception to the conclusions of law can- not be considered."* On appeal from the decision of a referee, the court of appeals of New York is confined to the findings of fact and cannot look into the record for additional facts,"" and where a referee finds the facts and states his conclusions, on which the judgment is founded, the question presented on appeal, in the ab- sence of a case, is whether the facts found support the conclusions and judgment."* Exhibits may be incorporated in the findings by reference."' Inclusion of a writ- ten instrument in the findings brings up its sufficiency to support them."' A judg- ment inconsistent with and contrary to the findings will be reversed,"" but a decree will not be set aside on error, in the absence of a motion for a new trial, unless the findings show the decree clearly wrong." The action of the court in taxing Judgment in trespass to try title. Rountree V. Haynes [Tex. Civ. App.] 73 S. W. 435. Where tlie evidence is not in the record, a decree supported by one phase of the bill will be presumed correct and affirmed. Picker- ing- V. Yates [Miss.] 36 So. 10. In the ab- sence of a bill of exceptions, or argument, or an assignment of error raising the point. It will be presumed that the facts found fully justified the conclusions of law and the Judg- ment. Clark V. Mitchell [S. D.] 97 N. W. 358. A Judgment of dismissal will be presumed to have been for good cause, there being sev- eral statutory grounds and the exact ground not shown, the appeal being on the Judg- ment roll [Code Civ. Proo. § 581]. Woods v. Dlepenbrock, 141 Cal. 55, 74 P. 546. Where it does not appear on what ground Judgment for defendants was rendered, it will be pre- sumed to be because plaintiff failed to make out a prima facie case, and there being no evidence In the record, affirmance follows. Boe V. Hawes, 28 Mont. 201, 72 P. 509. 44. Cravens v. Despaln, 25 Ky. L. R. 2018, 79 S. W. 276. Where the record contains only a partial statement of facts all reason- able presumptions will be Indulged to sup- port the Judgment. Voges v. Dittllnger [Tex. Civ. App.] 72 S. W. 875. 45. Seaton v. McReynolds [Tex. Civ. App.] 72 S. W. 874. Where appellant failed to re- quest the submission of an issue to the Jury, and the Judgment rests upon a special ver- dict, it will be presumed from the evidence that the court found against him on that issue. Walker v. Marchbanks [Tex. Civ. App.] 74 S, W. 929. 46. Craig v. Craig [W. Va.] 46 S. B. 371. 47. Wagner v. Mahrt, 32 Wash. 542, 73 P. 675. 48. Brann v. Blum, 138 Cal. 644, 72 P. 168. 49. Robinson v. Starnes, 137 Ala. 438, 34 So. 686. 50. Fitzgerald v. Gore, 105 111. App. 242. 51. Burns' Rev. St. 1901, § 560. Bass v. Citizens' Trust Co. [Ind. App.] 70 N. E. 400. 52. Chapln v. Du Shane [Ind. App.] 69 N. E. 174. 63. Burns' Rev. St. 1901, §§ 560, 640, 641. Cooney v. American Mut. L. Ins. Co., 161 Ind. 193, 67 N. E. 989. 64. Chapln v. Du Shane [Ind. App.] 69 N. B. 174. 55. ■ Sweetv. Henry, 175 N. T. 268, 67 N. E. 574. 56. Tompkins v. Morton Trust Co., 91 App. Div. 274, 86 N. T. S. 520. 67. Woodruff V. Butler, 75 Conn. 679, 55 A. 167. 58. Cornelius v. Ferguson [S. D.] 97 N. W. 388. ."59. Gaffey v. Northwestern Mut. L. Ins. Co. [Neb.] 98 N. W. 826. 60. BemlB v. McCloud [Neb.] 97 N. W. 828. 264 APPEAL AND PtEVIEW § 13F 1. 3 Cur. Law. costs is presumed to have been correct,'^ aad in the absence of a statement of facts an order allowing costs against an estate in a probate proceeding will not be re- viewed.'" On appeal from an order denying a motion for retaxation of costs, the record must show what items were objected to, and the grounds of objection."' Failure to grant a close jail execution will not be reviewed in the absence of facts in the record showing that it ought to have been granted.** (§13) F. Rulings peculiar to ■province of trial court. 1. Discretionary rul- ings in general; interlocutory and provisional orders.'"' — The discretion of the lower court is not an unlimited power, and its rulings and judgments during the progress of the trial are open to review,"* but discretionary acts and rulings will not be disturbed, unless an abuse of discretion is shown.*^ The rule applies to grant or refusal of a change of venue,*' or a continuance," the allowance of an amendment of a motion for continuance,^* the allowance of postponement on amendment of pleading,'^ the aUowanee of an amendment of a voucher in attachment,'^ the refusal of a motion to dissolve an attachment, the affidavit showing facts authoriz- ing the writ,'' the grant or refusal of leave to renew a motion previously denied,'* the remission of the forfeiture of a bail bond," and the supplying of missing rec- ords." The construction or application of the court's own rules is discretionary." The exercise of the jurisdiction of a trial judge sitting in equity in ordering dam- ages to be assessed by a master instead of a jury,'* the determination that a proposed railroad is a public necessity,'* the selection of an administrator pendente lite, and the amount of security to be given by him,** the appointment of a receiver,*^ the allowance of compensation to an auditor,*" the setting aside of a judicial sale in an equitable proceeding,** grant or refusal of an injunction, temporary** or per- 61. McCoy V. Board of Trustees of Town of Cloverdale, SI Ind. App. 331, 67 N. B. 1007. 62. Pierson V. Blanton [Tex. Civ. App.] 77 S. W. 433. 63. Thomas v. International Silver Co., 84 N. T. S. 612. 64. Chase v. Watson, 76 Vt. 385, 56 A. 10. 65. See 1 Curr. I* 170. 66. Stutsman v. Stutsman, 30 Ind. App. 645, 66 N. B. 908. Refusal to set off judg- ments. Leitz V. Hohman, 207 Pa. 289, 56 A. 868. Grant of motion to stay trial held im- proper. Hallenborg v. Greene, 87 App. Dlv. 622, 84 N. T. S. 321. See 1 Curr. L. 170, n. 32. 6T. Austin Mfg. Co. v. American "Well- works [C. C. A.] 121 F. 76. See 1 Curr. L. 170, n. 33. 68. Bartlett v. Smith [Neb.] 95 N. W. 661; Schining V. Buhne, 139 Cal. 611, 73 P. 431. See 1 Curr. L. 170, n. 35. 69. Goldstein v. Morgan [Iowa] 96 N. W. 897; Chase v. Watson, 75 Vt. 385, 66 A. 10; GrafEan v. Cobb, 98 Me. 200, 56 A. 645; Pacey V McKlnney [C. C. A.] 125 F. 675; Richards V. Bnlow Cattle Co. [Neb.] 98 N. W. 659; Murphy v. Hood, 12 Okl. 593, 73 P. 261; In re Kasson's Bstate, 141 Cal. 33, 74 P. 436; Benson V. Hamilton [Wash.] 75 P. 805; Fidelity & Deposit Co. V. Buckl & Son Lumber Co., 189 U S. 135, 23 S. Ct. 582, 47 Law. Ed. 744; Nor- folk & "W. R. Co. V. Wade [Va.] 45 S. B. 915. Where continuance is claimed as a matter of right on appeal from justice, dispute of fact as to whether appellant was in court. Insell V Kennedy, 120 Iowa, 234, 94 N. W. 456. Grant of stay of trial held improper under circumstances. Hallenborg v. Greene, 87 App. Dlv. 622, 84 N. T. S. 321. Postponement be- cause of absence of witness. Central Texas & N W. R. Co. V. Smith [Tex. Civ. App.] 73 S. W. 537; Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 569. See 1 Curr. L. 170, n. 40. 70. Goldstein v. Morgan [Iowa] 96 N. W. 897. 71. TS. 625. 73. 74. Crandall v. Lynch, 20 App. D. C. 73. Booth V. Callahan, 97 Md. 317, 65 A. Landis v. Newton [Neb.] 95 N. W. 791. Meade County Bank v. Decker [S. D.] 98 N. W. 86. 75. In re Sayles, S4 App. Dlv. 210, 82 N. T. S. 671. 76. Sheldon v. Gage County Soo. of Agri- culture [Neb.] 98 N. W. 1045. 77. Shannon v. Castner, 21 Pa. Super. Ct. 294; Roberts v. Kuhrt, 119 Ga. 704, 46 S. E. 856. 78. State V. Sunapee Dam Co. [N. H.] 66 A. 899. 79. Detroit & T. Shore Line R. Co. v. Hall [Mich.] 94 N. W. 1066. 80. In re Davenport [N. J. Prerog.] 66 A. 296. 81. U. S. Shipbuilding Co. v. Conklin [C. C. A.] 126 F. 132; Briggs v. Neal [C. C. A.] 120 F. 224; McKenzle v. Beaumont [Neb.] 97 N. W. 226. But the court will not hesitate to order a reversal where no action was pend- ing that would Justify or support the ap- pointment of a receiver. Mann v. German- American Inv. Co. [Neb.] 97 N. W. 600, 82. Stockdale v. Maglnn, 207 Pa, 226, 227, 56 A. 439. 83. In re Shea [C. C. A.] 126 F. 163. 84. Kerr v. City of New Orleans [C. C. A.] 126 F. 920; Austin Mfg. Co. v. American Well- works [C. C. A.] 121 F. 76; New Albany Waterworks v. Louisville Banking Co. [C. C. A.] 122 F. 776; Empire State-Idaho Mln. & Developing Co. v. Bunker Hill & S. Mining & 3 Cur. Law. APPEAL AND EEVIBW § 13F 1. 265 manent,'" and the requirement of a bond before granting,'" the refusal of a per- emptory writ of mandamus, where not refused on the ground of lack of power, or any question of law,'^ the refusal of prohibition when applied for by a stranger to the proceedings sought to be enjoined,*' an objection to a bankrupt's discharge,'' will not be reviewed except where a clear abuse of discretion is shown. The award of custody of a child in habeas corpus proceedings,'" and the amount of alimony and solicitor's fees in divorce,'^ are matters committed to the discretion of the trial court and unreviewable in the absence of improper exercise. In Wisconsin, the circuit court's discretion extends to the denial of a motion to dismiss an appeal from probate court,'^ and allowing an extension of time for appeal"' and the dis- missal of an appeal because of failure to require a return."* The rule that the discretion of the trial court as to the grant or refusal of an injunction will not be controlled does not apply where the right to the relief is based on a question of law," and an order setting aside a referee's report will not be affirmed as dis- cretionary where it appears on its face to be based on legal grounds."' Refusal to exercise discretion on the ground of lack of authority, where authority exists, is reviewable." The discretion of the judge at special term, in New York, in refusing to open a judgment for mistake is reviewable by the appellate division, though no abuse is shown." Where the trial court refuses an application to re- settle an order so as to show that it was based on the minutes as well as on its own motion, it will be presumed on appeal that the order was not based on the minutes."' Dismissal and nonsuit.'^ — On appeal from a judgment dismissing the action at the close of plaintiff's case, plaintiff is entitled to the most favorable inference that can be drawn from the evidence,^ and he is entitled to the presumption that he could have proved material facts contained in his offer of proof." On appeal from a judgment for plaintiff, the question whether a compulsory nonsuit should have Concentrating Co. [C. C. A.] 121 F. 973. In- junction against sheriff's sale in state court not an abuse of discretion wliere bond was sufficient to protect against loss. Massle v. Buclc [C. C. A.] 128 F. 27. A temporary In- junction will not be interfered with on appeal from the order granting it, where the evi- dence at the preliminary hearing tends to support the allegations of the complaint. MacDonald v. Gerrick [Mont.) 74 P. 1083. See 1 Curr. L. 170, n. 42. 86. City of Kewanee v. Otley, 204 111. 402, 68 N. E. 388; O'Neill Mfg. Co. v. Woodley, 118 Ga. 854 45 S. B. 684; Steadman & Co. v. Southern Pine Co., 119 Ga. 616, 46 S. B. 838. The evidence conflicting, the defendant sol- vent, and no irreparable damage to complain- ant appearing. Everett v. Tabor, 119 Ga. 128, 46 S. B. 72. 86. Briggs v. Neal [C. C. A.] 120 F. 224. 87. People v. Interurban St. R. Co., 177 N. T. 296, 69 N. B. 596. 88. Certificate of compliance by street railway. Kilty v. Railroad Com'rs, 184 Mass. 310, 68 N. E. 236. 89. Barred by laches. Adams v. Shirk tC. C. A.] 121 F. 823. 90. Chunn v. Graham, 117 Ga. 661, 43 8. E. 987. 91. Benham v. Benham [111.] 70 N. E. 30. An award of alimony is largely within the discretion of the trial court, but the abuse of such discretion will be corrected on appeal. Stutsman v. Stutsman, SO Ind. App. 645, 66 N. B. 908. 92. Hanley v. Kraftczyk, 119 Wis. 352, 96 N. W. 820. 93. McKenney v. Mlnahan, 119 Wis. 651, 97 N. W. 489. 94. Allard v. Smith [Wis.] 97 N. W. 510. 95. Chestatee Pyrites Co. v. Cavenders Creek Gold Min. Co., 118 Ga. 255, 45 S. B. 267. 98. Neeley v. Roberts [S. D.] 95 N. W. 921. 97. Bills V. Barron County [Wis.] 98 N. W. 232. 98. Code Civ. Proo. § 724. Lawson v. Adams, 89 App. DIv. 303, 85 N. Y. S. 863. 99. McCormIck v. Shea, 86 N. T. S. 1029. 1. See 1 Curr. L. 171. 2. Benjamin v. Metropolitan St. R. Co., 84 N. T. S. 458; Pritohard v. Brooklyn Heights R. Co., 89 App. DIv. 269, 85 N. T. S. 898; Mengle v. McClintlo-Marshall Const. Co., 89 App. DIv. 334, 86 N. T. S. 1012; Kennedy v. White, 91 App. DIv. 475, 86 N. Y. S. 852. On appeal from a nonsuit, plaintiff Is entitled to the most favorable Inferences to be drawn from his testimony. Bessent v. Southern R. Co., 132 N. C. 934, 44 S. B. 648; Lewis v. Clyde S. S. Co., 132 N. C. 904, 44 S. E. 666. Every fact in his favor which the evidence tends In the slightest degree to prove is taken as admitted. Moore v. St. Louis Transit Co.. 96 Mo. App. 728, 76 S. W. 699. See 1 Curr. L. 171, n. 58. 3. O'Connor T. Moody, 90 App. Div. 440 86 N. T. S. 214. 266 APPEAL AND KEVIEW § 13F 1. 3 Cur. Law. been granted must be considered by giving the plaintiff every reasonable inference warranted by his testimony,^ and defendant's evidence subsequently introduced may be considered.^ Appellee cannot support a judgment of dismissal on the absence of testimony which he excluded by objection to the employment of an interpreter." A refusal to grant a nonsuit furnishes no ground of appeal.' An or- der on motion to dismiss for lack of prosecution unless plaintiff placed the cause on the calendar within a time fixed will not be disturbed, no abuse of the court's discretion appearing.' Orders relating to pleadings.^ — Unless a gross abuse of discretion is shown, the granting or refusal of leave to amend a declaration,^" complaint,^^ petition,^^ bill,^* answer,^* notice of special matter in defense^^ or reply,^° will not be reviewed. The allowance of permission to file a plea^' or answer after expiration of the time allowed by law,^* or to file an additional plea, setting up the statute of limitations,^" will not be reviewed, in the absence of a showing of abuse of judicial discretion.-" For like reasons, the ruling on a motion to make pleadings more definite and certain," and on motion to strike out parts of a pleading, are not available error on appeal.^^ Denial of a motion to strike a plea on the ground that it was filed without leave,"' or the refusal of a motion to reinstate a petition after amendment to cure a defect for which a demurrer was sustained, will not be controlled unless an abuse of discretion is shown.^* Rulings relating to trial or evidence." — The orderly and proper conduct of a trial is in the discretion of the trial judge, and will not be reviewed in the absence of a showing of abuse.-" Eulings relating to the order and sequence of proofs offered,"' the decision as to the qualifications of a witness offered as an expert,"^ 4. Baxter v. St. Louis Transit Co. [Mo. App.] 78 S. W. 70. 5. Fales & Jenks Mach. Co. v. Browning [S. C] 46 S. E. 545. 6. Mennella v. Metropolitan St. R. Co., 86 N. T. S. 930. 7. Devine v. "Warner [Conn.] 56 A. 562; Plumb V. Malier [Conn.] 56 A. 494. _ 8. Wuppermann v. Valentine, 84 N. T. S. 150. 9. See 1 Curr. TJ. 171. 10. Lord V. National Protective Soc. [Mich.] 96 N. W. 443. 11. Barnes v. Berendes, 139 Cal. 32, 72 P. 406; Tanner v. Harper [Colo.] 75 P. 404; Buelna v. Ryan, 139 Cal. 630, 73 P. 466. 12. Ledwith V. Campbell [Neb.] 95 N. W. 838; Wlllett v. Johnson, 13 Okl. 563, 76 P. 174. Whether petition for abatement of liquor nuisance should be amended on ap- plication of relator to withdraw, by substi- tuting county solicitor and treating it as a prosecution for violation of the liquor law. Is a question of fact not reviewable. State v. Lynch [N. H.] 55 A. 553. 13. Suit to set aside tax sale. Walker v. City of Detroit [Mich.] 98 N. W. 744. 14. Sawyer v. Piper, 189 U. S. 156, 23 S. Ct. 633, 47 Law. Ed. 759; Lange v. Union Pac R Co [C. C. A.] 126 F. 338; Dickenson v Columbus State Bank [Neb.] 98 N. W. 813; Brady v. Pinal County [Ariz.] 71 P. 910; Westlnghouse, Church, Kerr & Co. v. Rem- ington Salt Co., 89 App. Div. 126, 85 N. T. S 432; McClurg v. Brenton [Iowa] 98 N. ■W. 881; Barnes v. Berendes, 139 Cal. 32, 72 P. 406. IB. Chase v. Watson, 75 Vt. 385, B6 A. 10. 16 City of MadlsonvlUe v. Pemberton's Adm'r, 25 Ky. L. R. 347, 76 S. W. 229. 17. Baltlmsre City Charter, 5 312, Acts 1898, p. 392, 0. 123. Horner v. Plumley, 97 Md. 271, 54 A. 971. 18. City of Wilmington v. McDonald, 133 N. C. 548, 45 S. E. 864. 19. Cause at issue over three years. City of Chicago v. Cook, 204 111. 373, 68 N. E. 538. 20. Graham v. Heinrlch, 13 Okl. 107, 74 P. 328. 21. Combs V. Thompson [Kan.] 74 P. 1127. 22. Conner v. Andrews Land, Home & Improvement Co. [Ind.] 70 N. B. 376. Balti- more City Charter, § 312 (Acts 1898, p. 392, c. 123). Horner v. Plumley, 97 Md. 271, S4 A. 971. 23. Lester v. Johnston, 137 Ala. 194, 33 So. 880. 24. Bowen v. Wyeth, 119 Ga. 687, 46 S. E. 823. 25. See 1 Curr. L. 172. 20. Wissler v. City of Atlantic [Iowa] »8 N. W. 131. 27. Order of proof. Foley v. Brunswick Traction Co., 69 N. J. Law, 481, 55 A. 803; Norfolk & A. Terminal R. Co. v. Morris' Adm'x, 101 Va. 422, 44 S. E. 719; Wilmoth v. Hamilton [C. C. A.] 127 F. 48. Whether court rule relating to order of proof should be relaxed in certain case is not a question of law. Gerrlsh v. Whitfield [N. H.] 55 A. 551. Permitting testimony on condition that materiality be subsequently shown. Ellis V. Thayer, 183 Mass. 309, 67 N. B. 826. Re- opening case for further evidence. Percival v. Tousling, 120 Iowa, 451, 94 N. W. 913; JopUn Waterworks Co. v. Joplin, 177 Mo. 496, 76 S. W. 960. Bringing out evidence on redirect examination. Byrnes v. Eley [Neb.] 97 N. W. 298. Refusal to allow certain tes- 3 Cur. Law. APPEAL AND EBVIEW § 13P 1. 267 the latitude allowed on cross-examination of witnesses/-'" the allowance of leading questions,'" the admission of declarations as res gestae,"^ the granting of a view of the premises,'- the suhstitution of lost depositions on a resubmission of the case,'' permitting a deposition, retaken without order of court first obtained, to be read,"* allowing deposition to be read after witness making it has testified," requiring that all attesting witnesses tq a will be called in support of it,'* and the ruling on a motion to strike incompetent evidence received without objection,'^ are all discretionary matters, which will not be reviewed unless abuse is shown. The finding of the trial court on preliminary questions of fact necessary to be decided before admitting or rejecting evidence, will not be disturbed unless clearly wrong," and the conclusion of fact reasonably inferable from the evidence involved in the exclusion of testimony is not open to exception.'* In North Carolina, the decision of the trial court as to whether the facts authorize the admission of sec- ondary evidence of the contents of a written instrument is a question of law, review- able on appeal.*" Eefusal of a severance,*^ the submission of interrogatories for ■ special find- ings,** limitation of argument to the jury,*' permitting counsel to real legal author- ities to jury in argument,** are all matters of discretion for the lower court. Ee- fusal to direct a verdict will not be disturbed.*" On review of a judgment on a directed verdict, incompetent evidence not objected to wiU be deemed evidence in the ease,*" and every fact favorable to the unsuccessful party which the evidence tends to prove will be regarded as conclusively established;*' but where both par- timony In sur-rebuttai. Beyer v. Hermann, 173 Mo. 295, 73 S. W. 164. See 1 Curr. L. 172, n. 71. 28. Bnnis v. R. B. Little & Co. [R. I.] 55 A. S84; White v. McPherson, 1S3 Mass. 533, 67 N. E. 643; Waterhouse v. Jos. Schlitz Brewing Co. [S. D.] 94 N. W. 587. See 1 Curr. L. 172, n. 76. 2». Glenn v. Philadelphia & W. C. Trac- tion Co., 206 Pa. 135, 55 A. 860; Shannon v. Castner, 21 Pa. Super. Ct. 294; Stroh v. South Covington & C. St. R. Co., 25 Ky. L.. R. 186S, 78 S. W. 1120; Jennings v. Rooney, 183 Mass. 577, 67 N. E. 665; Forrester v. Boston & M. Consol. Copper &: Silver Min. Co. [Kan.] 74 P. 1088. Party's own witness. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. Extension beyond limits of direct ex- amination. Fourth Nat. Bank v. Albaugh. 188 U. S. 734, 23 S. Ct. 450, 47 Law. Ed. 673. See 1 Curr. L. 172, n. 78. SO. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822; Pittsburgh, C. C. & St. L. R. Co. v. Klnnare, 203 111. 388, 67 N. E. 826; Colvin v. M'Cormiok Cotton Oil Co., 66 S. C. 61, 44 S. E. 380; Hiersche v. Scott [Neb.] 95 N. W. 494; Campion v. Lattlmer [Neb.] 97 N. W. 290; Von Tobel v. Stetson & Post Mill Co., 32 Wash. 683, 73 P. 788. 31. Pledger v. Chicago, E. & Q. R. Co. [Neb.] 95 N. W. 1057. 33. Maloney v.. King [Mont.] 76 P. 4; Davis v. American Telephone & Tel. Co., 53 W. Va. 616, 45 B. E. 926. 33. First Nat. Bank v. Reid [Iowa] 98 N. W. 107. 34. Code 1887, § 3364. Leonard v. St. John, 101 Va. 752, 45 S. B. 474. 35. Wilson v. Wilson [Tex. Civ. App.] 79 S. W. 839. Se. O'Connell v. Dow, 182 Mass. 641, 66 N. E. 788. 37. McCormlok Harvesting Mach. Co. v. Carpenter [Neb.l 95 N. W. 617. 38. Secondary evidence on proof of loss of writing. Koehler v. Schilling [N. J. Law] 57 A. 154. The Identification preliminary to the admission of photographs. Hupfer v. National Distilling Co., 119 Wis. 417, 96 N. W. 809. The trial court's decision as to the competency of evidence offered Is con- clusive unless manifestly erroneous. Kava- naugh V. Wausau [Wis.] 88 N. W. 550. Ex- clusion of evidence that may have become too remote presents no question of law. Union Hosiery Co. v. Hodgson [N. H.] 57 A. 384. 39. Tha^ witness offered was party In interest, the opposite party being an executor and not offering himself as witness. Wright v. Davis [N. H.] 57 A. 335. 40. Avery v. Stewart, 134 N. C. 287, 46 S. E. 519. 41. Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 559. 42. Huber Mfg. Co. v. Gotohall [Neb.] 9C N. W. 611; Taggart Mercantile Co. v. Clack [Ariz.] 71 P. 925; Johnson v. Health [Neb.] 98 N. W. .832; Buckers Irr., Mill. & Imp. Co. V. Farmers' Independent Ditch Co., 31 Colo. App. 62. 72 P. 49. 43. Reagan v. St. Louis Transit Co. [Mo.] 79 3. W. 435. 44. Missouri, K. & T. R. Co. v. Moody [Tex. Civ. App.] 79 S. W. 856. 45. Moore v. Carey, 119 Ga. 91, 45 S. E. 976. See 1 Curr. L. 172, n. 86. 40. Healy v. Patterson [Iowa] 98 N. W. 576; Compare Horwltz v. Reinert, 84 N. T. S. 254. 47. Preston v. Stover [Neb.] 97 N. W. 812; New York Hydraulic Press Brick Co. v. Cunn, 87 N. T. S. 168. S68 APPEAL AND EEVIBW § 13F 1. 3 Cur. Law. ties move for direction, tlie presumption on appeal is the other way, and all facts and inferences which may be derived from the proofs will be deemed to have been found in favor of the party for whom the verdict was directed.*' Incompetent evi- dence properly objected to will be disregarded on review, though the court did not before sustaining the demurrer to the evidence formally strike it out or notify plaintiff that it would be disregarded.*" The appellate division has jurisdiction not only to review the discretion exercised by the special term in staying proceed- ings in an action pending appeal in another suit, but also has power to exercise an independent discretion on such appeal."" The ruling as to the admission of the remainder of a pleading, a part of which has been offered by one's adversary as an admission, is discretionary."^ Grant of new trial or rehearing or settlement of exceptions.'^' — ^An order grant-' ing or refusing a new trial on discretionary grounds will not be reviewed unless the discretion of the trial court has been abused,"' but unless the grounds are dis- cretionary, the order may be reviewed as any other."* The power to set aside ver- 48. Davis V. True, 89 App. Dlv. 319, 85 N. T. S. 843; Cullinan v. Burkhard, 86 N. T. S. 1003. 49. Lee v. Missouri Pao. R. Co., 67 Kan. 402. 73 P. 110. 50. Jenkins v. Baker, 91 App. Dlv. 400, 86 N. T. S. 958. 51. Farmers' Mfg. Co. v. Steinmetz, 133 N. C. 192, 45 S. E. 552. 52. See 1 Curr. L. 173. 63. Plumb V. Maher [Conn.] 56 A. 494; Com. V. Houghton, 22 Pa. Super. Ct. 52; Smith V.Hopkins [C. C. A.] 120 P. 921; Matou- shek V. Butcher & Sons [Neb.] 93 N. W. 1049; Coxe Bros. & Co. v. Omaha Coal, Coke & Lime Co. [Neb.] 94 N. W. 519; Pitger v. Archibald Guthrie Co., 89 Minn. 330, 94 N. W. 888; Monmouth Pottery Co. v. White [Utah] 75 P. 622; Grlggrs v. MacLean, 33 Wash. 244, 74 P. 360; Graves v. Ctinders [C. C. A.] 125 P. 690; Louisville & N. R. Co. v. Summers [C. C. A.] 125 P. 719; Luyties v. Hardy, 101 Mo. App. 693, 74 S. W. 167; Stuart V. Press Pub. Co., 83 App. Dlv. 467, 82 N. T. S. 401; Krelelshelmer v. Nelson, 31 Wash. 406 72 P. 72; Prltchett v. Samuel Welchsel- baiim Co., 119 Ga. 293, 46 S. B. 99; Hurt v. Louisville & N. R. Co., 25 Ky. L. R. 755, 76 S. W. 502. The case was withdrawn from the jury and a new trial subsequently grant- ed. Brown v. Illinois Cent. R. Co. [Iowa] 98 N. W. 625. Question whether new trial should be granted held a question of fact. Ela V. Bla [N. H.] 65 A. 358. Statutory power of supreme court of Pennsylvania, of reversal for refusal of new trial, Is exer- cised only In extreme cases [Laws 1891, p. 101]. Marcy v. Brock, 207 Pa. 95, 56 A. 335. Finding that Jury would have failed in their duty If they had not held defendant liable precludes appellate court from reversing award of new trial on theory that defend- ant was not so liable. Barrette v. Carr, 75 Vt. 425 66 A. 93. Where the grounds as- signed relate to the facts, the decision is not reviewable. Carroll v. Charleston & S. R. Co., 65 S. C. 378, 43 S. B. 870. Grant of new trial not Interfered with where there is sub- stantial evidence against verdict. Seorlsl V. Eubank [Mo; App.] 78 S. W. 315. Sur- prise and mistake. Connally v. Pehle [Mo. Add 1 79 S W. 1006. Accident and surprise. State V. Bongard, 89 Minn. 426, 94 N. W. lots. Inadequacy of damages. Starr v. Ritchie, 84 N. T. S. 917. Excesslveness of verdict showing passion and prejudice. Fried- man V. Pulitzer Pub. Co., 102 Mo. App. 683, 77 S. W. 340. Misconduct of jury. Gulf, O. & S. P. R. Co. V. Blanchard [Tex. Civ. App.] 73 S. W. 88; Reed v. Mexico, 101 Mo. App. 155, 76 S. W. 63. Disqualification of juror, failure to pay poll tax. Alexander & Knee- land V. Von Koehring [Tex. Civ. App.] 77 3. W. 629. Competent evidence on which verdict may rest is sufficient. Cleveland, etc., R. Co. V. Stewart, 161 Ind. 242, 68 N. B. 170; City of South Omaha v. Conroad [Neb.] 97 N. W. 796. Misconduct of counsel In argu- ment. James McNeil & Bro. Co. v. Crucible Steel Co., 207 Pa. 493, 56 A. 1067; Hamilton V. City of Davenport [Iowa] 98 N. W. 135. Newly-discovered evidence. Hausmann v. Sutter St. R. Co., 139 Cal. 174, 72 P. 905; Louisville & C. Packet Co. v. Mulligan, 25 Ky. L. R. 1287, 77 S. W. 704; Pitman v. Holmes [Tex. Civ. App.] 78 S. W. 961. In- sufflclenoy of evidence. Ross v. Robertson [N. D.] 94 N. W. 765; Rochford v. Albaugh [S. D.] 94 N. W. 701; Schnittger v. Rose, 139 Cal. 656, 73 P. 449; De Haven v. McAuley, 138 Gal. 573, 72 P. 152; Hausman v. Sutter St. R. Co., 139 Cal. 174, 72 P. 905; Bohn v. City of Racine, 119 Wis. 341, 96 N. W. 813; Sohmitt V. Northern Pac. R. Co. [Wis.] 98 N. W. 202; Lynch v. Metropolitan St. R. Co., 84 N. T. S. 496; Mock v. Los Angeles Traction Co., 139 Cal. 616, 73 P. 455; Welever v. Advance Shin- gle Co. [Wash.] 75 P. 863. Where there Is a substantial conflict In the evidence. Hen- drlckson v. Wallace [Mont.] 75 P. 855. See 1 Curr. L. 173, n. 91. Golden v. Murphy [Nev.] 76 P. 625; Grantham v. Grantham, 118 Ga. 292, 45 S. B. 270; Moore v. Lunceford, 118 Ga. 263, 45 S. E. 279; Templeton v. Hannah, 118 Ga. 552, 45 S. E. 433; Buroh v. Swift, 118 Ga. 931, 45 S. B. 698; Smith v. Rusk, 119 Ga. 47, 45 S. E. 716; Darlington Oil Co. V. Pee Dee Oil & Ice Co. [S. C] 46 S. B. 720: Dleckman v. Weirich, 24 Ky. L. R. 2340, 73 S. W. 1119; Stephens v. Deatherage Lum- ber Co., 98 Mo. App. 365, 73 S. W. 291; Hern- don V. Lewis, 175 Mo. 116, 74 S. W. 976; Spalding V. Edina [Mo. App.] 78 S. W. 302; Hunt V. Ancient Order of Pyramids [Mo. App.] 78 S. W. 649. See 1 Curr. L. 173, n. 90. 64. Motion on errors of law occurring at trial presents no discretionary ground. Flt- ger V. Archibald Guthrie & Co., 89 Minn. 3 Cur. Law. APPEAL AND EEVIEW § 13F 1. 269 diets because excessive or because of insufficiency of evidence contemplates a judicial discretion, however, which may be corrected on appeal where justice demands it,°^ and where it appears that the judge has refused to exercise the discretion vested in him by law, review will be made.°° Where the order granting"' or denying a new trial does not state the particular ground on which it is made, every legitimate intendment wiU be indulged to support it,°' and the order sustained, if any, even a discretionary, ground assigned will justify it. Where a new trial has been granted, a stronger case is required to secure a reversal than where it has been denied,"" and the presumption in favor of the correctness of a grant is greatly strengthened when the action of the court is prompt and taken originally of its own motion,*" but where there is no scintilla of evidence to support a verdict other than that rendered, a grant of a new trial will be overruled."^ On review of the grant of a new trial because the evidence was "insufficient to support the verdict," the court considers all the evidence and not merely that of plaintiff, and will not reverse, though the plaintiff's evidence standing alone might support a verdict.'* The rule that the uncorroborated testimony of a party is not conclusive on the jury does not divest the trial court of its discretion to grant a new trial.'^ Where a new trial is granted after directed verdict moved for by both parties,** and when error is predicated on the grant of a new trial for newly discovered evi- dence,'" or after verdict as against evidence, every reasonable presumption will be indulged in favor of the correctness of the ruling." An order granting a new trial for an erroneous instruction will be affirmed, the instruction being in fact bad, unless under the facts no other verdict could be sustained.'^ Errors at law committed at the trial and excepted to by defendant do not constitute ground for reversal of an order granting plaintiff a new trial." Eefusal of new trial will not be reversed because of insufficiency of evidence, unless it clearly appears that there is no credible evidence supporting the verdict,** or that serious error occurred in the admission or rejection of evidence or in the instructions," and where the evidence is conflicting, it will be presumed that facts were found to warrant the 330, 94 N. W. 888. Presumption as to ground In absence of statement thereof In order [Laws 1901, c. 46]. Id.; Smith v. Minneapo- lis St. R. Co. [Minn.] 97 N. W. 881; Berg V. Olson, 88 Minn. 392, 93 N. W. 309; Fitger v. Archibald Guthrie & Co., 89 Minn. 330, 94 N. W. 888. Presumption does not apply In case of directed verdict. Second Nat. Bank V. Smith, 118 Wis. 18, 94 N. W. 664. Where the order specifies the exact ground Tvhlch was a question of law, review will be made. Lawrence v. Pederson [Wash.] 74 P. 1011. 55. Code Civ. Proc. § 999. Lawrence v. Wilson, 88 App. Div. 472, 83 N. Y. S. 821. 56. Thompson v. Warren, 118 Ga. 644, 45 S. E. 912. The judge stated that the verdict was not satisfactory. Cumberland Telephone & T. Co. v. Sralthwick [Tenn.] 79 S. W. 803. 57. Secrlst v. Eubank [Mo. App.] 78 S. W. 315; Citizens' Rapid Transit Co. v. Dozier, 110 Tenn. 98, 72 S. W. 963. It will be pre- sumed that the verdict was not justified by the evidence, pr If special, that It was Incon- sistent, especially where costs imposed on moving party. Giese v. Milwaukee Elec. R. & Lighting Co., 116 Wis. 66, 92 N. W. 356. 58. Wright V. Mathews, 28 Mont. 442, 72 P. 820. 59. Roohford v. Albaugh [S. D.] 94 N. W. 701; Floyd v. Paducah R. & Light Co., 24 Ky. L. R. 2364, 73 S. W. 1122. 60. Uncas Paper Co. v. Corbin, 75 Conn. 676, 55 A. 165. 61. Ottomeyer v. Pritchett [Mo.] 77 S. W. 62. 62. SomerviUe v. Stockton [Mo.] 77 S. W. 298. 63. Rochford v. Albaugh [S. D.] 94 N. W. 701. 64. Appel V. Aetna Life Ins. Co., 86 App. Dlv. 83, 83 N. T. S. 238. 65. Farmers' Trust Co. v. Treeman, 12 Okl. 612, 73 P. 300. 66. Fell V. John Hancock Mut. Life Ins. Co. [Conn.] 57 A. 176; Golden v. Murphy [Nov.] 75 P. 625. 07. Udden v. O'Reilly [Mo.] 79 S. W. 691. OR. DeHaven v. McAuley, 138 Cal. 573, 72 P. 162. 09. Kennedy v. Plank [Wis.] 97 N. W. 895. Refusal to grant a new trial cannot be reversed If the verdict can be sustained on any possible view of the evidence. Virginia- Carolina Chemical Co. v. Kirven, 65 S. C. 197, 43 S. E. 658. Refusal to set aside a ver- dict supported by evidence will not be dis- turbed. Bodie V. Charleston & W. C. R. Co., 66 S. C. 302, 44 S. E. 943; Glover v. Gasque [S. C] 45 S. E. 113. 70. Zimmerman v. Denver Consol. Tram- way Co. [Colo. App.] 72 P. 607. 270 APPEAL AND EEVIEW § ISE 1. 3 Cur. Law. refusal to set aside the verdict.''^ Refusal to set aside a verdict as excessive can- not be overruled unless it is apparent the jury were actuated by passion and preju- dice.'* On review of an exception, under the statute in Virginia, to refusal to set aside the verdict as contrary to the evidence, evidence contrary to the verdict cannot be considered.'* Where the trial court has relieved a party of the effect of his failure to serve a statement on motion for new trial in time, it will not be presumed that denial of his motion for new trial was on the ground of delay in serving the statement.'* Error prejudicial to respondent is no ground for sus- taining the refusal of a nev/ trial.'" In Georgia, where the law and the evidence do riot demand the verdict, and no abuse of discretion on the part of the trial court is shown, the first grant of a new trial will not be interfered with," though it was put upon a single ground," and where the evidence is conflicting and an abuse of discretion does not appear, a second grant will not be interfered with." The statute in Virginia provides that where, on new trial granted on the ground that the verdict is unsupported by the evidence, the parties refuse to introduce testimony and the court enters judgment, the reviewing court shall examine the testimony introduced on the original trial, and if the court erred, enter judgment on the verdict.'" Though a motion might have been overruled because of a defect iQ form, the granting thereof will not be reversed on appeal, the merits not being attacked.*" It will be presumed that any departure from the strict rules of evi- dence on the hearing of the motion was permitted in the exercise of a sound dis- cretion.*^ Whether to reopen a case and hear further evidence after the decree haa been signed and entered is discretionary with the trial court, and his refusal will not be disturbed unless an abuse of discretion is shown.** An order dismissing a peti- tion for rehearing of an order overruling objections to the confirmation of a judi- cial sale is discretionary and hence not appealable." The settlement of a case on appeal by the trial judge cannot be disturbed where no abuse of power is manifest,"* except where it appears to have been based solely on the papers in the case, when it may be reviewed as any other question." In the absence of any showing to the contrary it will be presumed that the exten- sion of time to settle the statement of facts was authorized.*® The action of the court in granting an extension of time for settling a bill of exceptions under a statute authorizing it on "good cause shown" is reviewable,*' but where the statute 71. Pharr v. Atlanta & C. Air Line R. Co., 132 N. C. 418, 44 S. B. S7. 72. Mitchell v. Wabash R. Co., 97 Mo. App. 411, 76 S. W. 647. See 1 Curr. L. 173, n. 3. 73. Acts 1S91-2, p. 962, c. 609, amending Code 1887 § 3484. Riverside Cotton Mills v. Lanier [V'a.] 45 S. E. 875. 74. Baily v. Kreutzmann, 141 Cal. 519, 75 P. 104. 76. Virginia-Carolina Chemical Co. v. Klr- ven. 65 S. C. 197, 43 S. B. 658. 76. Civ. Code, § 5585. Peed v. Hamilton, 117 Ga. 449, 43 S. B. 702; Fugazzi, Lovelace & Co V. Tomlinson, 119 Ga. 622, 46 S. B. 831; Johnson v. Winkles, 119 Ga. 262, 46 S. B 99. Certiorari to justice. Shirley v. Swafford, 119 Ga. 43, 46 S. B. 722; Walker V Hillyer, 119 Ga. 225, 46 S. B. 92; Lov- vorn V. Jones, 119 Ga. 229, 46 S. E. 92. See 1 Curr. L. 173, n. 95. 77. Cordray v. Savannah, T. & I. of H. R., 117 Ga. 464, 43 S. E. 755. 78. Kimbrough v. Boswell, 119 Ga. 201, 45 S. B. 977; Johnson v. McKay, 119 Qa. 196, 45 S. B. 992. 79. Acts 1891-2, p. 962. Wood v. Ameri- can Nat. Bank, 100 Va. 306, 40 S. E. 931; Northington v. Norfolk R. & Light Co. [Va.] 46 S. B. 475. 80. Balph V. Magaw [Ind. App,] 70 N. B. 18S. 81. Bla V. Bla [N. H.] 65 A. 358. 82. In re Cummlngs' Estate, 120 Iowa, 421, 94 N. W. 1117. 83. Aukam v. Zantzinger [Md.] 66 A. 820. 84. Dispute as to what occurred at trial. Ditmaa v. MoKane, 87 App. Div. 54, 83 N. T. S. 1077; Wallace v. Metropolitan St. R. Co., 84 N. T. S. 253. 85. Marjulies v. Goldstein, 84 N. T. S. 475. 86. O'Neile V. Ternes, 32 Wash. 528, 73 P. 692. 87. Comp. Laws 1887, § 5093. MoPherson V. .Tulius [3. D.] 95 N. W. 428. Contrai Rev. St. 1899, § 728. Smith V. Wil- 3 Cur. Law. APPEAL AND KEVIEW § 13F 2. 271 confers power in discretion, the court's discretion will be presumed to have been properly exercised.'' A petition for leave to enter an appeal from a decree of the judge of probate is addressed to the discretion of the presiding justice, and his decision is final and not subject to exception.'* Matters relating to judgments or costs.^" — A motion to strike off an entry of satisfaction of a judgment is addressed to the discretion of the court, and the exer- cise of that discretion is not the subject of review."^ So also rulings on an applica- tion to set aside or open a default,"^ vacate a decree,*' or a judgment on the ground of mistake, surprise, or excusable neglect.'* The supreme court will not review an order refusing to open a judgment except where the judgment below is a deduc- tion from facts, and the result of reasoning on the same."' The refusal of the trial court to make the decision of the supreme court, reversing a judgment overruling a demurrer, the judgment of the trial court before a certain day, will not be con- trolled, no prejudice being shown."® The allowance of costs imposed as a con- dition of allowing an amendment of pleadings,*^ or granting a new trial," or in other actions than those in which costs follow as of course,** such as equitable,' and probate proceedings,^ will not be reviewed if no abuse of discretion is shown,* but' an allowance to a clerk for Special services whether based on a statute and allowed as a matter of law, or on a quantum meruit as a matter of discretion, is review- able.* Allowing plaintiffs to prosecute as poor persons is discretionary." (§ 13P) 2. Questions of fad." — Generally speaking questions of fact will not be reviewed on appeal,' the verdict or findings below being sustained unless mani- liams Cooperage Co., 100 Mo. App. 153, 73 S. W. 315. 88. Dodd V. Gulseffl. 100 Mo. 311. 73 S. W. 304; Waldopfel v. St. Louis Transit Co., 102 Mo. App. 524, 77 S. W. 128. 89. Graffam v. Cobb, 98 Me. 200, 56 A. 645. 90. See 1 Curr. Z,. 175. 91. Shoup V. Shoup, 205 Pa. 22, 54 A. 476. 92. Casto V. Shew [Ind. App.] 68 N. B. 1041; Peru Plow & Implement Co. v. King [Minn.] 97 N. W. 373; Kapner v. Samuels, 84 N. Y. S. 195; O'Brien v. Leach, 139 Cal. 220. 72 P. 1004; Hegaas v. Hegaas, 28 Mont. 266, 72 P. 656; Greene v. Rowan [Mont.] 74 P. 466. Judgment taken on note on powei- of attorney, stay of execution pending hear- ing of motion to quash. Pearce v. Miller, 201 111. 188, 66 N. E. 221. See 1 Curr. L. 175, n. 33. 93. Fisher v. Puget Sound Brick, T. & T. C. Co. [Wash.] 76 P. 107. See 1 Curr. L. 175. n. 38. 94. Swanson v. Hoyle, 32 Wash. 169, 72 P. 1011. See 1 Curr. L. 175, n. 38. 95. Woodward v. Carson [Pa.] 57 A. 342. 90. Equity Life Ass'n v. Gammon, 119 Ga, 271, 46 S. B. 100. 97. Scheuer v. Monash, 40 Misc. 668, 83 N. T. S. 253. 98. R. Connor Co. v. Goodwillle [Wis.] 98 N. W. 528. See 1 Curr. L. 174, n. 4. 99. Certiorari to justice. Louisville & N. R. Co. V. Solomon, 138 Ala. 151, 34 So. 1025. 1. Porter v. Trompen [Neb.] 96 N. W. 226; Jennings v. Parr, 66 S. C. 385, 44 S. B. 962. Dissolution of partnership and accounting. Hart- V. Hart, 117 Wis. 639, 94 N. W. 890. 2. Eaton v. Brown, 20 App. D. C. 453; In re MoMahon's Estate, 117 Wis. 463, 94 N. W. 351. 3. Rutherford v. Lucerne Canal & Power Co. [Wyo.] 75 P. 445. 4. In re Michigan Cent. R. [C. C. A.] 124 P. 727. 5. Mlsaonrl St. 1899, § 1542. In civil cases commenced by a nonresident, the plaintiff shall file a cost bond before the institution of the suit, and if the bond is not filed the court may dismiss the action, or the court may, at Its discretion permit a plain- tiff who is unable to pay costs to prosecute as a poor person, after giving security for costs. Carrier v. Missouri Pac. R. Co., 175 Mo. 470, 74 S. W. 1002. 6. See 1 Curr. L. 176. 7. Findings of fact of two lower courts will be accepted as correct by the Federal supreme court, in the absence of a clear showing of error. Shappiro v. Goldberg, 192 U. S. 232, 24 S. Ct. 259, 48 Law. Ed. 419. On error to a state court, the Federal court cannot re-examine the evidence, but Is con- cluded by the finding of facts, and the fact that the findings of the inferior court are affirmed by divided court is immaterial. Min- neapolis & St. L. R. Co. V. State, 193 U. S. 53, 24 S. Ct. 396, 48 Law. Ed. 614. Citing Bgan V. Hart, 165 U. S. 188, 17 S. Ct. 300, 41 Law. Ed. 680; Dower v. Richards, 151 U. S. 658, 14 S. Ct. 452, 38 Law. Ed. 305. Tho finding of a circuit Judge on a disputed question of fact on the hearing of a motion to dismiss an appeal from justice court will not be disturbed. Winner v. Williams [Miss.] 35 So. 308. A finding that a street was never "legally" dedicated is a conclusion of law and so reviewable. Sweatman v. Bath- rick [S. D.] 95 N. W. 422. See 1 Curr. L. 176, n. 60. 272 APPEAL AND EEVIEW 8 ISF 2. 3 Cur. Law. festly wrong,* but on appeal from an order refusing to open accounts of executors, in New Jersey, questions of fact as well as of law will be reviewed," and the Texas court of appeals has power to disregard a verdict and enter such judgment as the evidence demands, though the trial court could not do so.^" The supreme court of Utah is not authorized to review the facts in a case at law except so far as may be necessary to determine questions of law.^^ On appeal from an order of the license board granting or refusing a license to sell liquors, the court should exercise his independent judgment on the evidence, without influence by the find- ing made by the board.*" The circuit court of appeals cannot, upon petition for review in a bankruptcy case, challenge the facts, or an inference of fact, found by the court below,*' and an adjudication of bankruptcy foimded on an act of bank- ruptcy sufficiently pleaded and proved wiU not be set aside, though other alleged acts were neither properly pleaded nor sufficiently proved.** Whether the verdict is unsupported by any substantial evidence is a question of law, and may be reviewed on appeal from the judgment,*" but whether conflicting evidence is sufficient to support the verdict is a question of fact, and cannot be so reviewed.*' Where the evidence is undisputed or the facts not controverted, rulings of the court based thereon may be reviewed,*' but a finding on agreed facts vnll not be disturbed unless the facts affirmatively establish the contrary conclusion as a matter of law.*' Controverted questions of fact wiU not be reviewed where both parties moved for directed verdict below.*' After a general verdict for plaintiff it will be as- sumed on appeal that a material allegation of the complaint was proven,*" and a general finding for the defendant is conclusive upon all issues of fact raised by the pleadings, and the evidence is not reviewable to ascertain whether it supports the finding." Exceptions based on questions of fact,*" such as whether the find- 8. The Judgment of a Justice of the peace on conflicting evidence, alHrmed on error In the district court, will not be reversed In the supreme court. It not appearing clearly wrong. Bullard v. Laughlln [Neh.] 96 N. W. 159. If a Judgment entered on a general ver- dict, finds support In the evidence on any theory of the law embraced within the Is- sues made by the pleadings. It will not be reversed because entirely unsupported by the testimony. Metropolitan St. R. Co. v. Arnold, 67 Kan. 260, 72 P. 857. The opinion of the court of private land claims as to the settlement and occupation of a claimed grant will be adopted by the supreme court in the absence of clear evidence to the con- trary. Sena v. U. S., 189 U. S. 233, 23 S. Ct. 596, 47 Law. Ed. 787. The opinion of the trial Judge on questions of fact Is entitled to great weight, and unless clearly wrong will be affirmed. Brady v. Jay, 111 La. 1071, 36 So. 132. 9. In re Morris' Estate [N. J. Prerog.] 56 A. 161. 10. Rev. St. 1895, arts. 1027, 1335. Henne & Meyer v. Moultrie [Tex.] 77 S. W. 607. 11. Const, art. 8, § 9. Burt v. Utah Light & Power Co., 26 Utah, 157, 72 P. 497. Citing Anderson v. MIn. Co., 15 Utah, 22, 49 P. 126; Nelson v. Southern P. Co., 15 Utah, 325, 49 P 644; Mangum v. Bullion, Beck & Champion Mln Co., 15 Utah, 534, 50 P. 834; Whlttaker V. Ferguson, 16 Utah, 240, 51 P. 980; Murray V. Salt Lake- City R. Co., 16 Utah, 356, 52 P. 596; Wild v. Union Pao. R. Co., 23 Utah, 266, 63 P. 886; Kennedy v. Oregon, etc., R. Co 18 Utah, 376, 54 P. 988; Croco v. Railroad Co., 18 Utah, 311, 54 P. 985, 44 L. R. A. 285; Braegger v. Oregon Short Line R. Co., 24 Utah, 391, 68 P. 140; Monmouth Pottery Co. V. White [Utah] 75 P. 622; Pence v. Califor- nia Mln. Co. [Utah] 75 P. 934. 13. Bennett v. Otto [Neb.] 94 N. W. 807. 13. In re Antlgo Screen Door Co. [C. C. A.] 123 F. 249. 14. In re Lynan [C. C. A.] 127 F. 123. 15. Ball V. Gussenhoven [Mont.] 74 P. 871. The question as to the sufficiency of evidence to support a verdict cannot become one of law unless there Is an entire absence of evidence on some material point. Mc-' Carty v. State [Ind.] 70 N. E. 131. 16. Ball v. Gussenhoven [Mont.] 74 P. 871. 17. The action of the trial court In sub- mitting or refusing to submit the issue of contributory negligence on the undisputed facts cannot conclude the appellate court Swift & Co. V. Langbeln [C. C. A.] 127 F. 111. The conclusion of the trial court as to the effect of a deed Is not binding on the court on appeal, where the facts surround- ing Its execution are not controverted. Mon- tana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Mln. Co., 27 Mont 536, 71 P. 1006. 18. Sessa v. Arthur, 183 Mass. 230, 66 N. E. 804. 19. Dearman v. Marshall, 88 App. Dlv. 41, 84 N. T. S. 705. 20. Albany Land Co. v. Rickel [Ind.] 70 N. E. 158. It will be assumed In support of a verdict In a negligence case, that the facts necessary for Its support were found by the Jury. Negligence by a physician. Baxter v. Campbell [S. D.] 97 N. W. 386. 3 Cur. Law. APPEAL AND REVIEW § 13F 3. 273 ings*' or verdict are justified by the evidence cannot be considered in law cases in South Carolina.** Findings of fact in general.^" — ^A verdict or finding of facts will only be set aside when not supported by evidence,^' or against the clear preponderance there- of,^' if properly submitted,"* there being sufficient to carry the issues to the jury," since the appellate court cannot pass upon the credibility of witnesses or the peculiar weight to be given to their testimony.*" If there is substantial evidence in the record to sustain the verdict,'^ judgment,'" or finding of facts, it will not be dis- turbed,"' there being nothing intrinsically improbable in it,'^ though a strong doubt as to the fact arises,'" or the plaintiff's accounts of the cause of his injury conflict," SI. McDowen T. McCormlok [C. C. A.] 121 F. 61. 32. Jones V. Charlestown & W. C. R. Co., 65 S. C. 410, 43 S. B. 884. 23. Cowart v. City Council of Greenville [S. C] 45 S. B. 122. Suit by trustee in bank- ruptcy to recover goods of bankrupt alleged to have been transferred with intent to give a preference is at law. Hodges v. Kohn [S. e.] 45 S. B. 102. 24. Butler v. Western Union Tel. Co., 65 S. C. 610, 44 S. B. 91. 25. See 1 Curr. L,. 177. 26. Johnson v. Heath [Neb.] 98 N. W. 832; Texas & N. O. R. Co. v. Lee [Tex. Civ. App.] 74 S. W. 345. Slander case. Covington v. Roberson, 111 La. 326, 35 So. 586. A mere opinion expressed by a circuit judge on a question of fact in an equity case is not a finding of facts. Hendryx v. Perkins [C. C. A.] 123 P. 268. Application for Judgment against estate of decedent after limitations under Rev. St. 1901, c. 191, 5 27. Decision held finding of fact not reviewable. Libby V. Htitchinson [N. H.] 56 A. 547. A conclusion on the facts as to which Decision and determination. A. Affirmance or reversal.^" — Errors which do not prejudice appellant,'^ or are not substantial, do not warrant a re- in. Severing v. Smith, 121 Iowa, 607, 96 N. W. 1110. 16. Montg-omery County ▼. Cochran [C. C. A.] 126 F. 456. 17. Fitzgerald v. City of Benton Harbor [Mich.] 94 N. W. 186; Johnson v. Chicago, etc., R. Co. [Iowa] 93 N. W. 642; Lewis v. Upton, 90 App. Div. 453, 86 N. T. S. 397. Notwithstanding the former Judgment of af- firmance of the appellate terra was reversed on another question by the court of appeals. Kellegher v. Forty-Second St. M. & St. N. Ave. Ri Co., 87 App. Div. 630, 84 N. T. S. 784. 18. Cunningham v. Nilson, 84 N. T. a 669. 10. Board of Com'rs of Rio Grande County V. Phye, 31 Colo. 176, 71 P. 1108. 20. Badische Anilin & Soda Fabrik v. A. Klipsteln & Co.. 125 P. 543. 21. Connor v. General Fire Extinguisher Co., 174 N. T. 515, 66 N. B. 1106. 23. TJ. S. V. Denver & R. G. R. Co., 191 U. S. 84. 24 S. Ct. 33. 23. Motion to dispense with printing rec- ord. Mclntlre v. Mclntlre, 20 App. D. C. 134. 24. Great Plains Water Co. v. Lamar Canal Co., 31 Colo. 96, 71 P. 1119. 23. Lorlmer v. Fairchild [Kan.] 75 P. 124. 2«. Carter v. White, 134 N. C. 466, 46 S. E. 983. 27. Muckenfuss v. Plshburne [S. C] 46 S. B. 537. 28. See 1 Curr. L. 190. 29. Chicago & S.. B. R. Co. v. Kenney, 29 Ind. App. 506, 68 N. E. 20. SO. See 1 Curr. L. 191. 31. Benson v. Bunting, 141 Cal. 462, 75 P. 59; Denver v. Teeter. 31 Colo. 4SC, 74 P. 3 Cur. Law. APPEAL AND EEVIEW § ISA. 287 versal," and statutes in some states require the court to disregard immaterial er- rors;'" but if error of law be prejudicial, reversal will follow, though the result of 4b3; Troy v. Brown [S. D.] 99 N. W. 76; Gamewell FIre-Alarm Telegraph Co. v. Fire & PoUce Telegraph Co., 25 Ky. D. R. 1010, 76 S. W. 862; Koelling v. August Gast Bank Note & Lithographing Co. [Mo. App.] 77 S. W. 474; Allen v. Hazzard [Tex. Civ. App.] 77 S. W. 26S. Error favorable to appellant. Thurston's Adm'r v. Prather, 25 Ky. L. R. 1137, 77 S. W. 354. Variance between plead- ing and proof . prejudicial only to appellee. Bast Jellico Coal Co. v. Golden, 25 Ky. 1,. R. 2056, 79 S. W. 291. Joint tort feasor has no interest in direction of verdict for his co- defendant. Robinson v. Chicago & A. R. Co. [Mich.] 97 N. W. 689. Appellant cannot com- plain of findings against another. Ambrose v. Drew, 139 Cal. 665, 73 P. 643. Failure to make finding in respect to a counterclaim partially allowed does not prejudice defend- ant. Cutting Fruit Packing Co. v. Canty, 141 Cal. 692. 75 P. 564. Where the only is- sue is whether the note sued on -was deliv- ered, a verdict generally tor plaintift, not finding the amount of recovery, is no error available to defendant. Buzanes v. Frost [Colo. App.] 75 P. 594. Objections to the allowance of an amendment to defendant's pleas will not be considered where one of plaintiffs has been rightly nonsuited and the other has obtained a verdict of which no complaint Is made. Carey v. Moore, 119 Oa. 92, 45 S. E. 998. Plaintiff Is not con- cerned In the regularity of the steps taken by the court to make the officer whose re- turn of service is traversed a party to the proceeding. Branan v. Nashville, C. & St. L. R. Co., 119 Ga. 738, 46 S. E. 882. Defendants cannot complain because the party entitled to judgment waived it and allowed It to go in favor of others. Page v. Southern Const. Co.. 25 Ky. L. R. 1634, 78 S. W. 879. A de- fendant who was served cannot object that others were not, the judgments being sepa- rate as to each defendant. In re McGee St. [Mo.] 74 S. W. 993. Appellant Is not preju- diced by a conflict between an incorrect in- struction given In his behalf and a correct one given for his adversary. Weston v. Lackawanna Min. Co. [Mo. App.] 78 S. W. 1044; Fehlhaue- v. City of St. Louis [Mo.] 77 S. W. 843. Instruction on exemplary dam- ages not considered "when none are awarded. Sonnen v. St. Louis Transit Co.. 102 Mo. App. 271, 76 S. W. 691. Error In instructing as to quotient verdicts not reviewable In ab- .= ence of showing that one was rendered. Kolb V. St. Louis Transit Co., 102 Mo. App. 143, 75 S. W. 1050. An instruction imposing an illegal burden on plaintiff does not preju- dice defendant. York v. Farmers' Bank [Mo. App.] 79 S. W. 968. That judgment was ren- dered in favor of plaintiff's attorney for half the recovery, that amount having been as- signed him as a contingent fee, did not prejudice defendant. Gulf, C. & S. P. R. Co. V. Cooper [Tex. Civ. App.] 77 S. W. 263. See 1 Curr. L. 191, n. 22. 32. Parmly v. Farrar, 204 III. 38, 68 N. B. 438; Baldwin v. Burt [Neb.] 96 N. W. 401; McCrea v. McGrew [Idaho] 75 P. 67; Pacey V. McKinney [C. C. A.] 126 P. 675; Cook V. Llttlefleld, 98 Me. 299, 66 A. 899; Adams V. Elwood, 176 N. Y. 106, 68 N. E. 126; Jones V. City of Chicago, 206 111. 374, 69 N. E. 64; Brown V. Waterbury, 75 Conn. 727, 64 A. lOOB; Tunnicliffe v. Fox [Neb.] 94 N. W. 1032; Clark v. Wolf [Neb.] 96 N. W. 495; Ramlose V. Dollman, 100 Mo. App. 347, 73 S. W. 917; Hannon v. St. Louis Transit Co., 102 Mo. App. 216, 77 S. W. 158. Objectionable con- clusion of fact .and law stricken out, re- mainder necessitating same judgment as that rendered. Kratz v. Cook [Ind. App.] 68 N. E. 689. Inaccurate language of com- plaint in speaking of transaction fully de- scribed therein treated on appeal as having been amended to conform to proof. W^hit- tern v. Krick, 31 Ind. App. 677, 68 N. B. 094. Insufficiency of paragraph of complaint not relied on at trial. Insurance Co. of North America v. Hegewald, 161 Ind. 031, 66 N. E. 902. Subsequent admittance ciires error in rejecting evidence. Pittsburgh, etc.. R. Co. v. McNeil [Ind. App.] 69 N. E. 471. Amend- ment to judgment so as to provide for issue of execution. Knotts v. Crossly [Neb.] 95 N. W. 848. Action against makers of note and executor claiming that te.stator was surety merely, judgment determin- ing rights not set aside for want of cross petition [Code § 3601]. Pratt v. Fishwild. 121 Iowa, 642, 96 N. W. 1089. Error in awarding right to open and close. Shaffer V. Des Moines Coal & Hay Co. [Iowa] 98 N. W. 111. Rejection of evidence that could not have changed result of trial in court. In re Rice's Will, 81 App. Dlv. 223, 81 N. Y. S. 68. Joint judgment against parties severally liable is harmless as to them. Johnson v. Bott [Colo. App.] 72 p. 612. Fail- ure to enter findings of fact and conclu- sions of law in record affects no substantial right and is not ground for reversal. Kerns V. Lee [Or.]. 75 P. 140. Instructions refused, substantially embodied in others. D'Arcy v. Mooshkin, 183 Mass. 382, 67 N. B. 339. "Error in failing to require security for costs will not cause reversal of a judgment for plaintiff afSrmable on the merits. Good Eye Min. Co. V. Robinson, .67 Kan. 510, 73 P. 102. Without regard to the theory upon which It is based, a judgment of the trial court will be afHrmed unless there be material error. Woodmen Ace. Ass'n v. Hamilton [Neb.] 97 N. W. 1017. Where the court has jurisdic- tion of a vacation appeal, the denial of n term time appeal which would have resulted in no benefit to appellant is no ground of reversal. E.altlmore & O. R. Co. v. Ryan, 31 Ind. App. 597, 68 N. E. 923. See 1 Curr. L. 191, n. 22. 33. Okl. St. 1893, 5 4018. Blackwell v. Hatch, IS Okl. 169, 73 P. 933. Wils. Rev. & Ann. St. 1903, § 4344. Graham v. Helnrloh. 13 Okl. 107, 74 P. 328. Shannon's Code, § C351. Pennsylvania R. Co. v. Naive [Tenn.] 79 S. W. 124; Sewell v. Tuthill [Tenn.] 79 S. W. 376. Where the entire record discloses that the judgment is clearly right, unsub- stantial errors which do not go to the merits will be disregarded. People's Bank of Pratt v. Friok Co., 13 Okl. 179, 73 P. 949. Amendable defects are considered amended or disregarded In Washington [Ball. Code, 5 6535]. Smith v. Newell, 32 Wash. 369, 73 P. 369; Selby v. Vancouver Waterworks Co., 32 Wash. 522, 73 P. 504. Where a judgment of the municipal court is supported by the evi- 388 APPEAL AND EEVIBW § 15A. 3 Cvir. Law. the trial might have been the same without the error.'* A general verdict for defendant where an invalid defense was submitted cannot be STistained.'" A final decree rendered ia the absence of necessary parties must be reversed and remanded in order that proper parties may be made regardless of how notice of the defect is brought to the attention of the court." "Where plaintiff fails to make out a case, a Judgment rendered on verdict for defendant will be affirmed, notwith- standing errors in defendant's behalf.'^ A ruling correct on the merits or sus- tainable on a correct theory wiU not require reversal, though based on a wrong reason/' and a verdict supported by sufficient evidence will not be set aside be- cause in conflict with an erroneous instruction.'^ A profitless reversal,*' or one to permit the recovery of nominal damages,*^ will not be made, nor can plaintiff who is entitled to no verdict object that one in his favor is inadequate;*'' but a verdict for an amount unsupported by the evidence may be set aside, on defend- ant's appeal, though one for a larger amount would have been sustained.*" A nominal judgment for a plaintiff entitled to none will be affirmed where he alone appeals, though it would have been reversed had defendant appealed.** A judg- ment that has been satisfied will be affirmed.*" An affirmance on one part/s bill in such terms as to deprive his adversary of any benefit from reversal on his independent bill will preclude consideration of the question presented thereby.*" denoe, technical errors and defects not af- I feotlng the merits will be disregarded [Daws 1902, p. 1583, u. 580, § 326]. Green- berg V. Ang-erman. 84 N. T. S. 244. 34. Dysart v. Missouri, K. & T. R. Co. [C. C. A.] 122 F. 223. See 1 Curr. L. 191, ii. 23. 35. Heman v. Franklin, 99 Mo. App. 348, 73 S. W. 314. 36. Reger v. Gall [W. Va.] 46 S. B. 147. 37. Instructions. Hesselbach v. St. Louis [Mo.] 78 S, W. 1009; Fehlhauer v. City of St. Louis [Mo.] 77 S. W. 843. Claim against es- tate not sho"wn, errors in evidence and In- structions not considered. itunlcke v. Thomas' Estate, 102 Mo. App. 129, 76 S. W. 659. See 1 Curr. L. 191, a. 23. 38. Where it appears that a motion for new trial dismissed for delay In filing the engrossed bill of exceptions should have been denied on the merits, the dismissal will be affirmed. Galbrith v. Lowe, 142 Cal. 295, 75 P. 831. Error In falling to compel a wit- ness to answer a question objected to on the ground of privilege is not reversible where the answer is inadmissible as evi- dence. Bullard v. Smith, 28 Mont. 387, 72 P. 761. 39. Collins V. George [Va.] 46 S. B. 684. Disregard by jury of erroneous Instruction is harmless. Stoner v. Mau [Wyo.] 72 P. 193. That the verdict Is contrary to an er- roneous instruction does not require reversal. Johnston v. Kleinsmlth [Tex. Civ. App.] 77 S. W. 36. The court will not inquire as to whether instructions to jury were erro- neous, where the verdict Is the only one jus- tifiable by the evidence. Klelbeck v. Chi- cago, B. & Q. R. Co. [Neb.] 97 N. W. 760; American Order of Protection v. Stanley [Neb.] 97 N. W. 467. 40. Where same judgment would again be entered because of change of circumstan- ces. Richards v. Enlow Cattle Co. [Neb.] 98 N. W. 659. Dismissal of injunction bill, the subject of which has expired. Jones v. Smith [Neb.] 97 N. W. 304. Where defend- ant was entitled to affirmative relief by rea- son of a tender filed below, a Judgment re- fusing It will not be reversed where he has since withdrawn the tender. Whitingf v. Doughton, 31 Wash 327, 71 P. 1026. Re- versal will not be granted where the evi- dence upon which it is claimed a different result might be reached has been destroyed. In re Campbell, 124 F. 417. Time for whlohl liquor license Is sought having expired. State V. Harrison, 173 Mo. 19, 72 S. W. 1072. Decree for defendant in Injunction affirmed where property has been finally adjudged to him In another suit., Phllippi v. American Brass & Mfg. Co. [Mo. App.] 78 S. W. 77. See 1 Curr. L. 192, n. 88. 41. Judgment for defendant will not be reversed where plaintiff Is entitled only to nominal damages. Ladd v. Redle [Wyo.] 75 P. 691; Gllbertson v. Incorporated Town of Lake Mills [Iowa] 94 N. W. 481; Cook v. Smith, 67 Kan. 63, 72 P. 524. See 1 Curr. L. 191, n. 28. 42. Masor v. Jacobus, 84 N. T. S. 689. Plaintiff cannot complain of amount of judg- ment for all he would have been entitled to in a proper action, where technically he is entitled to none at all. Talcott v. Janasson, 85 N. T. S. 833. 43. Myers v. Myers, 86 App. Dlv. 73, 83 N. Y. S. 236. Compare Galef v. Pinkelstein, 84 N. T. S. 856. Where a jury Is Instructed to return a verdict for the amount of a license tax sued for, if they find It to be reasonable and for such a sum as they deem just, If they find it to be unreasonable, and return a verdict for less; the rule that a defendant cannot object to too small a verdict does not apply, since if the tax is unreasonable, It Is wholly void and neither court nor Jury could assess a less sum. Postal Telegraph-Cable Co. V. New Hope, 192 U. S. 65, 24 S. Ct. 204. 44. Adler v. Schaumberger, 84 N. T. S. 236. 45. Horwltz V. Reinert, 84 N. T. S. 124; Jouda V. Kaplan, 84 N. T. S. 863. 46. Bdwards v. Central of Georgia R. Co., 118 Ga. 678, 45 S. B. 462. 3 Cut. Law. APPEAL AND EEVIEW § 15A. 289 Counsel \dll not be encouraged in stubborn efforts to demonstrate that rulings upon unimportant and trifling matters of practice are erroneous.*' Manifest er- ror in submitting an issue of law to the jury will necessitate a reversal where the verdict is not responsive to the issues and it does not appear what else was sub- mitted,*' and where the damages were assessed under an invalid count, the judg- ment will be reversed, though the declaration contains a good count and the dam- ages are for a sum that would be sustained under the valid count.*" An incor- rect assessment for street improvement will not be disturbed where appellant fails to show that his assessment would be materially less under a correct appor- tionment.'"' Where both parties bring error and establish it by the record, re- versal must follow."^ Decision may be had by agreement."^ A void judgment cannot be reversed in Kentucky before a motion to set it aside has been made and overruled below."' Where a party has committed a defect or default in proceedings, a pro forma affirmance may be made without consideration of the merits,''* as where pleadings necessary to a determination of the issues are not in the record and are beyond the reach of the court ;" and ■ affirmance follows where the alleged statement of facts is stricken from the files and no issue is presented on the record proper ;''° so where there is no real dispute."' An application for affirmance on the ground of failure to perfect the appeal will be denied where not preceded by the proper statutory steps,"' and where the appellant on being granted an appeal on terms makes no move to comply, a presentation of the record for affirmance is unneces- sary, as the judgment below stands."* In Texas, failure of appellant to file briefs below is not ground for affirmance on certificate." Appellee may not have an 47. Cordill v. Minnesota Elevator Co., 89 Minn. 442, 95 N. W. 306. 48. Marguilies v. Goldstein, 86 N. T. S. 1024. 4». Illinois Cent. R. Co. v. Harper [Miss.] 86 So. 764. - BO. Barrett v. Palls City Artificial Stone Co., 21 Ky. K R. 669. 52 S. W. 947; Levi v. Coyne, 22 Ky. L. R. 493, 57 S. W. 790; Barber Asphalt Pav. Co. v. Gaar. 24 Ky. L. R. 2227, 73 S. "W. 1106; Zender v. Barber Asphalt Pav. Co., 24 Ky. D. B. 2279, 74 S. W. 201; Schuster v. Barber Asphalt Pav. Co., 24 Ky. L. R. 2346, 74 S. W. 226; Chawk v. Seville, 21 Ky. L. R. 1769, 56 S. W. 414; McHenry v. Selvage, 99 Ky. 235, 35 S. W. 645; Snyder V. Barber As- phalt Pav. Co., 24 Ky. L,. R. 2348, 73 S. "W. 1118. 51. Kuhlman v. Cole [Neb.] 98 N. W. 419. 52. In re Bill's Estate, 141 Cal. xviii., 74 P. 704. Reversal In accordance with stipu- lation will be granted, though afiirmance would have resulted otherwise. Mantle v. Largey, 28 Mont. 38, 72 P. 303. See 1 Curr. L. 192, n. 36. 63. Appeal after motion and before deci- sion is premature [Civ. Code Prao. § 763]. Lyon's Ex'x v. Logan County Bank's As- signee, 25 Ky. L. R. 1668, 78 S. W. 454. 54. Failure to furnish briefs. Turpin v. Gale [Md.] 67 A. 208; Davison v. Keeton [Tex. Civ. App.] 73 S. W. 1083. Brief failing to comply with Rule 10, subd. 3. Larkln v. Butte & B. Consol. Min. Co., 28 Mont. 41, 72 P. 304; Knobb V. Reed, 28 Mont. 42, 72 P. 304; Allen v. Reely, 28 Mont. 625, 73 P. 118; Frederick v. McMahon, 28 Mont. 263, 72 P. 620. No bill of exceptions. West v. Rich- mond R. & B. Co. [Va.] 46 S. B. 330. No ab- stract or briefs. Harburger v. Smith, 177 Mo. S69, 76 S. W. 623. No abstract of record or evidence. Hlckox v. Springfield, 208 111. 28, 69 N. B. 846. Failure to perfect appeal in time [Rev. St. 1899, § 812]. Long v. Hawkins [Mo.] 77 S. W. 77. Election case, failure to file transcript, on appeal from county to circuit court [Shannon's Code. §§ 4882. 4883]. Hayes v. Kelley [Tenn.] 76 S. W. 891. Failure of record to show that as- signments of error were filed below. Gid- cumb v. Gldcumb [Tex. Civ. App.] 73 S. W. 827. No question presented by record. Mc- Cormick v. Carey [Neb.] 95 N. W. 364. Only proposition urged being one that cannot be reviewed without statement of facts, and statement not approved or ordered filed by trial Judge. Kennedy v. Birch [Tex. Civ. App.] 74 S. "W. 593. Failure for 1% months after receipt of transcript to file It, suffi- cient excuse for filing promptly on receipt, though late, being shown. Faux v. Lamaire [Tex. Civ. App.] 77 S. W. 439. Insufficient number of plats filed necessary to under- standing of case. Stephens v. McDonald, 132 N. C. 135, 43 S. B. 692. See 1 Curr. L. 192, n. 37. 55. Error to judgment In certiorari to re- view judgment of justice, original declaration not brought up to superior court. Ross v. Mercer, 118 Ga. 905, 45 S. E. 787. 50. Sprague v. Meagher, 32 Wash. 62, 72 P. 708. 67. Judgment for sum admitted to be due and no provision for body execution as de- manded. Kush V. Howes, 85 N. Y. S. 1124. See 1 Curr. L. 192, n. 38. 58. Rev. St. 1899, § 812. Kronck v. Reid [Mo. App.] 79 S. W. 1001. 69. State V. Thomas [Tenn.] 77 S. W. 667. 60. Rev. St. 1895, arts. 1016, 1017, llmlt- S Curr. Law — 19 390 APPEAL AND KEVIEW § 15A. 3 Chir. Law. affirmance for want of prosecution on a certificate filed after the term at which the transcript should have been presented, a writ of error having been sued out in the interim."^ Failure to file briefs is tantamount to a confession of error, but reversal wiU not follow failure to argue a point unless necessary for the protection of the court." An equal division of sitting and qualified judges makes an afBrmance." Eeversal or afiBrmance must be entire, unless parts of the judgment are sover- able,'* but where a judgment consists of severable parts, there may be affirmance as to the part not affected by the error, and reversal as to the rest.*' A judg- ment bad as to one is bad as to all, and must be reversed as to aU defendants, though it would have been proper against certain of them." Where in trespass to try title the judgment is in favor of intervenors, and defendants alone ap- peal, it will be affirmed as to plaintiffs, though reversed as to defendants and interveners."^ As between appellees no change can be made in tlie judgment ap- pealed from.'* Affirmance of an interlocutory judgment will lead to affirmance of the final decree, where no otlier questions are presented.'" On reversal, ap- pellee will be adjudged to repay money he has received on the judgment, with legal interest.'"* Where a judgment in a creditor's action to compel an executor to sell real estate to pay debts is reversed, the defendant is entitled to a restitu- tion of the property and an accounting for mesne profits, notwithstanding a new trial was ordered.''^ Reversal on terms." — The court cannot, on reversing a judgment for plain- tiff in slander, put defendant on terms by which the judgment will stand as security for any judgment rendered on retrial, though the original defendant has deceased pending appeal, and reversal will abate the suiL^* tng STTOunds to failure to file record on ap- peal. Gulf, C. & S. F. R. Co. V. Hall [Tex. Civ. App.] 76 S. W. 590. 61. Western Union Tel. Co. v. Woftord [Tex. Civ. App.] 72 S. W. 620. 63. Irvln v. Rushville Co-operative Tel. Co.. 161 Ind. 624, 69 N. E. 258. 63. State v. Sunapee Dam Co. [N. H.] 55 A. 899; Com. Title, Ins. & Trust Co. V. Cole- man, 206 Pa, 635, 66 A. 320; Gibba v. Selbt, 118 Wis. 146, 93 N. W. 1097; Central of Geor- gia R. Co. V. Wallace, 119 Ga, 238, 46 S. E. 87. See 1 Curr. L. 192, n. 39. 64. Seymour v. Richardson Fueling Co., 206 111. 77, 68 N. B. 716. Failure of one of joint defendants to perfect appeal, and fail- ure of defendant, as to whom judgment is totally void, to object on that ground Imma- tarlal. Sohoenberger v. White, 76 Conn. 605, 54 A. 882. Where the question submitted to the jury Is whether plaintiffs own certain tracts of land or any part thereof, and they answer "no," any error as to one of the tracts will result on appeal In reversing the judgment and granting a new trial as to all. Rowe v. Cape Fear Lumber Co., 133 N. C. 433, 4S S. H. 880. See 1 Curr. L. 192, n. 42. 69. City of Buffalo v. Delaware, L. & W. R. Co., 176 N. T. 308, 68 N. B. 587. Decree granted on condition unfavorable to appel- lant affirmed without condition, other party not appealing. O'Connor v. Hendriok, 90 App. Dlv. 432, 86 N. Y. S. 1. An action of assumpsit is severable from the attachment issued In aid thereof. Mullen v. Camp [Pla.] 36 So. 402. Where the action is for the re- covery of distinct parcels of land, and suc- cessful as to a part only, though all should have been recovered, the judgment may be affirmed in eo far as It is correct, and re- versed and remanded as to the other matters. Village of Lee v. Harris, 206 111. 428, 69 N. B. 230. 66. One defendant having valid personal defense Included In general judgment against several. Seymour v. O. S. Richardson Fuel- ing Co., 205 111. 77, 68 N. E. 716. Where a party not served and not appearing was erroneously Included in the Judgment, a re- versal was necessary as to all parties. Hutchinson v. Sine, 105 111. App. 638. Judg- ment for costs to two defendants, one only entitled. Kriz v. Peege, 119 Wis. 105, 95 N. W. 108. Contra: Where there is no evidence war- ranting a judgment as to one of defendants it may be modified by reversal as to him and affirmance as to his eodefendant. Crow v. Williams [Mo. App.] 79 S. W. 183. 67. Eddy v. Bosley [Tex. Civ. App.] 78 S. W. 565. 68. Schwarta v. Hosetta Gravel Pav. & Improvement Co., 110 La. 619, 34 So. 709. 69. Order denying injunction, and judg- ment sustaining demurrer and dismissing bill. Atlanta Trust & Banking Co. v. Nelms, 119 Ga. 630, 46 S. E. 851. 70. Fox V. Willis, 24 Ky. L. R. 2173, 78 S. W. 743. 71. Holly V. Gibbons, 177 N. Y. 401, 69 N. B. 731. 72. See 1 Curr. L. 196. 7S. Irvine v. Gibson, 26 Ky. L. R. 1418, 77 S. W. 1106. 3 Cur. Law. APPEAL AND REVIEW § 15B. 291 (§ 15) B. Transfers and removals, and certifications or reservations.''* — The circuit court of appeals will certify a question as to the jurisdiction of the circuit court to the supreme court, and meanwhile reserve the other questions in the case." An appeal to the wrong court, in Missouri, will be transferred by that court suo motu to the court having jurisdiction." And in case of an erro- neous transfer by the court of appeals the supreme court will return the cause to that court.''^ Where a case is appealed, in Indiana, to the supreme court on a constitutional question, the action of that court in transferring the case to the nppellate court, which is without jurisdiction of such questions, in effect decides such question adversely to the appellant.'" (§15) C Remand or final determination.'"' — Final determination may be given*? if the pleadings show conclusively that plaintiff in error is entitled to judgment,*^ or if no different or more favorable result can be reached on new trial f^ but if any material fact or right is in doubt,*' or the interests of justice require it,** or if there be evidence tending to make a case or defense, though 74. See 1 Curr. L. 193. 75. Sun Printing & Pub. Aas'n V. Edwards [C. C. A.] 121 P. 826. 70. Reed v. Gulp [Mo. App.] 74 S. W. 422; Dennison v. Keasbey [Mo. App.] 78 S. W. 1041; Jackson v. Binnicker [Mo.] 77 S. W. 740. 77. Porter v. Kansas City & Northern Connecting R. Co., 175 Mo. 96, 74 S. W. 992; Wilden v. McAllister [Mo.] 77 S. W. 730. 7S. Jurisdiction concluded by transfer. Frank Bird Transfer Co. v. Krug, 30 Ind. App. 602, 65 N. E. 309. 79. See 1 Curr. L. 193. 80. "Where the trial court committed no error in the rejection of evidence, and the record Is sufficient for the court on appeal to determine the case on Its merits, the court will do BO and direct a proper judg- ment "Without remanding the case to the lower court. Security Sav. Soc. v. Cohalan, 31 Wash. 266, 71 P. 1020. Where judgment on the pleadings Is entered for plaintiff on the overruling of a demurrer to the com- plaint and refusal to plead further, it is dis- cretionary with the supreme court on affirm- ance to enter final judgment or remand for further proceedings. MoLeod v. Lloyd, 43 Or. 260, 74 P. 491. Prior to the amendment of 1903 In New York, where the trial court entered Its decision in the short form, the .Tppellate division was required to review all questions of fact and'la^v and grant such Judgment to either party as the facts war- ranted, without ordering a new trial [Code Civ. Proc. 1022 as amended by Laws 1903, c. 86, p. 237]. Multz v. Price, 91 App. Dlv. 480, 88 N. Y. S. 480. 81. Story v. Robertson [Neb.] 98 N. W. S25. If defendants' pleas show no defense, the court on reversal will render judgment for plaintiff. Hurlburt & Sons v. Straub [W. Va.] 46 S. E. 163. 82. Cohen v. Boccuzzl, 86 N. Y. S. 187. Evidence was all received and afterwards re- jected and Included in bill of exceptions, and no rulings made that indicated that appellee had any evidence excluded, or failed to of- fer any he could produce. Lippincott v. Lawrle, 119 Wis. 573, 97 N. W. 179. See 1 Curr. L. 193, n. 56. 83. Flschbeok v. Mlelenz, 119 Wis. 27, 96 N. W. 426; Western Union Tel. Co^ v. Carver [Tex. Civ. App.] 74 S. W. 55. Verdict for full amount of counterclaim Ignoring direc- tion to find for plaintiff on his claim, new trial necessary. Smith v. Morrison [Colo. App.] 74 P. 535. Judgment against prin- cipal and agent who was also surety. Re- versal as to principal, final judgment against surety cannot be rendered. Tabet v. Powell [Tex. Civ. App.] 78 S. W. 997. Where the trial court changes a special finding of the jury from an affirmative to a negative an- swer, because contrary to the undisputed evidence, the supreme court on reversal may grant a new trial [Rev. St. 1898, § 3071]. Blohowak v. Grochoski, 119 Wis. 189, 96 N. W. 651. Where the court below decides a case as upon bill and ansTirer, overlooking the fact that a general replication has been filed the decree will be reversed and the case remanded for decision as though no decree had been entered. Echols v. Tracewell, 52 W. Va. 614, 44 S. E. 164. Final judgment cannot be awarded In an election contest where the trial court has found that election officers were guilty of wilful malconduct. and it Is not shoivn, and cannot bo deter- mined, how much or In what way the vote was affected thereby. Kenworthy v. Mast, 141 Cal. 268, 74 P. 841. Where a complaint con- tains two distinct causes of action, and a counterclaim is pleaded to both of them growing out of the contract on which the second cause of action Is founded, and on the trial orders are entered setting aside the verdict on the first cause of action as In- adequate, denying defendant's motion to set aside the verdict on the second cause, and dismissing the counterclaim, which orders on appeal are all affirmed, the defendant is en- titled to a retrial of the whole case without express provision therefor, and without mo- tion therefor In the appellate court. Vernon V. O'Bannon Co., 86 App. Div. 374, 83 N. Y. S. 878. See 1 Curr. L.. 193, n. 65. 84. Laporte v. Laporte, 109 La. 958, 34 So. 38; Smith's Heirs v. Johnston, 110 La. B67, 34 So. 677. On reversal of a judgment as unsupported by the evidence. It is within the discretion of the court to remand for a new trial, but such course will be followed only when It appears that the ends of justice will be best served thereby. Maupln v. Scottish Union & Nat. Ins. Co., .53 W. Va. 657, 4,5 S. B. 1003. In furtherance of justice, where a finding Is set aside, and the former trial 292 APPEAL AND EEVIEW § 15C. 3 Cur. Law. the weight be against it," or where the reversal is not based upon findings or a verdict,'* or where the verdict or findings on which the judgment is based are not supported by the evidence,*'' a remand for a new trial is necessary.*' Where the appellate court of Illinois reverses a case tried to a jury, for an error of law, it should remand it for a new trial.*' Where an equitable proceeding is erroneously brought before the clerk and appealed to the superior court, that court will be permitted to retain jurisdiction and make all necessary orders, and to that end the case will be redocketed in that court.*" Eemand wiU not be made on reversal of judgment for plaintifE on the ground that defendant owed him no legal duty,'^ or where plaintiff could not recover in any event.*'' Eemand will not be made in a chancery case on account of newly discovered evidence which is merely cumu- lative." Where the issues are numerous, and the trial involved much time and expense, a retrial as to all will not be granted, on the ground that the finding on an unimportant issue is not sustained by the evidence.'* On appeal from a de- cree of specific performance for complainant after the improper sustaining of a demurrer to the cross bill, final decree for specific performance cannot be en- tered, but the case must be remanded for, issue on the cross bill." The appellate court of Illinois may reverse without remandiag, on the ground that the weight of evidence did not authorize the verdict, and in such ease the facts found will conclude the supreme court, but it may inquire into the law arising out of such facts.'» Judgment may he modified,^'' if everything necessary to advise the court in 90 doing is before it," or the facts admitted and the judgment as modified, af- was unsatisfactory. Instead of entering or directing a new decree, the appellate court will remand the cause for further proceed- ings. Faulkner v. Sims [Neb.] 94 N. W. 113. 85. Williams v. Delaware, L., & W. R. Co., 81 App. Div. 444, 80 N. T. S. 945. 86. Schmid V. Frankfort [Mich.] 96 N. W. 1066. 87. Where the judgment appealed from correctly followed the findings, which were erroneous and not supported by the evi- dence, the supreme court on reversal, can- not enter judgment for the opposite party, but can only remand for retrial. Gwin v. Calegaris, 139 Cal. 384, 73 P. 851. Where the report of a referee Is discredited by find- ings receiving no support from the evidence a new trial must be had. Fountain v. Kin- ney, 66 Kan. 797, 72 P. 392. In Michigan, the court will not enter Judgment for ap- pellant, where there is a reversal because of lack' of evidence to sustain the verdict, for the reason that the evidence on a new trial may not be the same as In the record. Mont- morency County V. Putnam [Mich.] 97 N. W. 399. Where plaintiff merely moved for judg- ment notwithstanding verdict, which was de- nied and judgment entered for defendant, final determination cannot be given on re- versal on appeal, a new trial being neces- sary. Standard Mfg. Co. v. Slot [Wis.] 98 N. W. 923. On a general reversal on appeal on the evidence, the appellee is entitled to a retrial as a matter of right. Talcott v. Delta County Land & Cattle Co. [Colo. App.] 73 P. 256. 88. Bray v. O'Rourke, 89 App. Div. 400, 85 N. T. S. 907. Judgment for defendant re- versed but not clear that plaintiff could not recover. Id. 89. Seymour v. Richardson Fueling Co., 206 111. 77, 68 N. B. 716. 90. Smith V. Gudger, 133 N. C. 627, 45 S. B. 965. 91. Sykes v. St. Louis & S. B. R. Co. [Mo.] 77 S. W. 723. 92. Contributory negligence. Gulf, etc., R. Co. V. Matthews [Tex. Civ. App.] 74 S. W. 803. Where plaintiff's testimony would not justify a verdict in any event and It does not appear that any testimony offered by him has been excluded, a reversal of a judg- ment in his favor will not be accompanied by a remand for a new trial. Waters v. An- thony, 20 App. D. C. 124. Where a bill and the evidence show an unenforceable claim, a decree for complainant will be reversed and the bill dismissed though no demurrer was Interposed below. Poling v. Williams [W. Va.] 46 S. B. 704. 93. Partnership accounting. Rowan v. Lamb [Miss.] 36 So. 427. 94. Rose V. Mesmer, 142 Cal. 322, 75 P. 906. 95. Katzenberger v. Weaver, 110 Tenn. 620, 75 S. W. 937. 96. Supple V. Agnew, 202 111. S51, 66 N. B. 1069. 97. See 1 Curr. L. 194. 98. Mechanics' lien on too much land may be limited to the proper area. Dusick v. Green, 118 Wis. 240, 95 N. W. >144. Striking out provision for arrest of defendant. Au- erbach v. Rogln, 40 Misc. 695, 83 N. T. S. 154. Failure to adjudge costs in favor of defendant in ejectment disclaiming posses- sion will be corrected. Webb v. Reynolds [Ala.] 36 So. 15. Replevin by chattel nort- gagee, judgment for defendant modified by canceling the mortgage. Kimball & Co. v. Deaton, 102 Mo. App. 46, 74 ,S. W. 427. A judgment for defendant in ejectment grant- ing aflirnfatlve relief and giving him cer- tain lands not sued for by plaintiff, and nol 3 Cur. Law. APPEAL AND EEVIEW § 15C. 293 firmed;** but remittitur cannot be ordered where the facts necessary to a decision are not before the court,^ and the evidence may be different on a new trial,^ nor where the court is not authorized to find the facts.' Clerical errors,* and errori in computation may be corrected." It cannot be modified in favor of a party not appealing,* and judgment for an amount greater than that recovered below can- not be awarded on appellee's cross assignment, though the proof is clear.' Where in conversion, possession and damages are both awarded, and there is no basis for the former, the judgment cannot be modified by eliminating the provision for possession, since the damages are presumptively for detention and not value.* On appeal from a circuit court to a circuit court of appeals by one of several attorneys from an order allowing them compensation out of a trust fund, the court is not limited to a redivision of the total amount awarded them, but may increase or decrease the allowance of the appellant without disturbing the others, or may increase or decrease the total allowance and redivide it as seems equi- table.* Where a case has been tried to the court and conclusions of fact filed, the judgment can be refortned on appeal, and such judgment rendered as the record shows should have been rendered.** Where the supreme court of Missouri de- clines jurisdiction on the ground that the constitutional question was ngt prop- erly raised below, the court of appeals will, notwithstanding that decision, re- lieve appellant from that portion of the judgment founded on the unconstitu- tionaP* statute, the case being clear. Remand with directions}^ — Judgment may be ordered for appellee on re- versal, if all facts necessary to a determination of the party's rights are before the court.*' On an appeal from a jud.gment on the judgment roll alone, a finding that nothing was due defendant on his cross complaint will prevent the direction claimed by defendant, may be corrected on appeal without remanding. Johnson v. Fluetsch, 176 Mo. 452, 75 S. W. 1005. A de- cree erroneously divesting defendant's wife of all title to certain land fraudulently con- veyed may be corrected by modification In respect to her dower. Bradshaw v. Halpln [Mo.] 79 S. "W. 685. See 1 Curr. L. 194, n. 71. 99. Personal Judgment for deficiency against defendant not personally liable. Levy V. La Fountain, 81 App. Div. 636, 81 N. T. S. 468. A modification of the judgment to conform to an admission of error by ap- pellee may be made. Blackwell v. Hatch, 13 Okl. 169, 73 P. 933. See 1 Curr. L. 194, n. 71. 1. Johnson v. City of Albany, 86 App. Div. 567, 83 N. T. S. 1002. Age of parent necessary to determine amount of award for death of son. Robbins v. North Jersey St. R. Co. [N. J. Law] 57 A. 262. See 1 Curr. L. 194, n. 72. a. Hall V. State, 92 App. Div. 96, 87 N. T. S. 338. 3, Appellate division. Small v. Burke, 86 N. T. S. 1066. 4, Clerical error in amount of Judgment. Poerschke v. Horowitz, 84 App. Div. 443, 82 N. T. S. 742. A clerical error In the Judg- ment which may be corrected by the plead- ings and evidence will not necessitate a re- versal. Erroneous numbering of survey In question. Adkinson v. Porter [Tex. Civ. App.] 73 S. W. 43. 5, - Error in calculating interest. Dlls v. Hatcher, 25 Ky. L. R. 891, 76 S. W. 514. e. Where one only of the bondholders ob- jects to the amount allowed a trustee and receiver, the' decree will be modified only to the extent that will give the complaining party his proper dividend. Girard Life Ins. Annuity & Trust Co. v. Bedford Coal & Iron Co., 20 Pa. Super. Ct. 304. See 1 Curr. L. 194, n. 78. 7. Groos & Co. V. Brewster [Tex. Civ. App.] 78 S. W. 359. 8. McCarthy v. James Rowland & Co., 85 N. T. S. 327. 9. Glldden v. Cowen [C. C. A.] 123 F. 48. 10. Jackson v. Jernigan [Tex. Civ. App.] 77 S. W. 271. 11. Attorney's fee in action against rail- road for killing stock [Rev. St. 1889, g 2613]. Brown v. Missouri, etc., R. Co. [Mo. App.] 78 S. W. 273. 12. See 1 Curr. L. 194. IS. Texas Fruit Co. v. Lane, 101 Mo. App. 712, 74 S. W. 400. Where the court set aside special findings in plaintiff's favor by reason of a misapplication of legal principles to the evidence, the court on plaintiff's appeal will order Judgment on the verdict without di- recting a new trial. Ellis v. Chicago, etc., R. Co. [Wis.] 98 N. W. 942. Where the facts are sufficiently found below and the Judg- ment reached is the result of an erroneous application of the law thereto. Judgment will be directed without a retrial. Rew v. Inde- pendent School Dist. [Iowa] 98 N. W. 802. Where a special verdict has been rendered, and a motion for Judgment non obstante denied, the supreme court on reversal may order Judgment for defendant. Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800. See 1 Curr. L. 195, n. 82. 294 APPEAL AND EEVIEW § 150. 3 Cur. Law. of judgment in his favor.^* Eemand with leave to amend may be made in a proper case,^° and where a judgment sustaining a demurrer to the declaration on general and special grounds was general, but on appeal is sustained only on a special ground which is amendable, plaintiff will be allowed to amend before llie judgment of the supreme court is made the judgment of the court below." in case issues of fact necessary to the determination of the cause are not passed upon at the trial, but the testimony is full and convincing, the appellate court will find the facts and direct such decree as its determination may require." On re- view of a decree denying an injunction and adjudging title and possession in defendant, where the evidence shows title in neither party, the decree will be modified so as to dismiss the bill." On appeal from an interlocutory decree for iin injunction and an accounting, the cause will not be remanded with leave to" I'eopen without first reversing, nor will reversal be granted for that purpose, but on proper application the appeal will be dismissed without prejudice, it appearing that the appellee will not be prejudiced thereby.^* Upon reversal, the question of restitution rests in the sound discretion of the court."" An affirmance may be conditioned,"'^ on a remittitur of excessive"' or illegal sums awarded,''* or on consent that the judgment be modified by striking out the objectionable relief."* A general verdict on several items, one of which is invalid, will be aflOrmed on remittitur of the amount of the invalid one, it being of tri- fling importance."" Where it is impossible to segregate the damages allowed for various injuries, the admission of incompetent evidence of one of them will not be cured by a remittitur."" Judgment in slander cannot be modified by remit- titur where fo\mded on error, though defendant has died pending appeal and re- versal will have the effect to abate the suit."' Where a defendant in ejectment is awarded damages to which he is not entitled, a voluntary remittitur will not cure the error, but the ease will be remanded with directions to dismiss the claim for damages."' Where plaintiff within the time limited appeals from an order granting a new trial unless he will within a certain time remit part of his re- covery, he cannot on appeal have a further opportunity to remit."' (§ 15) D. Findings, conclusions, or opinions on which decision is predi- cated.^" — The filing of a written opinion is discretionary,'^ and is not necessary 14. Cohen v. Cohen, 141 Cal. 634, 75 P. 100. 15. Where a general demurrer to a de- fective bill was sustained on the merits, though stating- a case for equitable relief, the decree was reversed at the costs of the appellant and remanded with leave to amend or dismiss without prejudice. Fletcher v, Parker, 53 W. Va. 442, 44 S. B. 422. In fur- therance of justice, where a decree Is re- versed, the court will remand the cause with leave to amend the petition and bring In new parties, instead of requiring the ex- pense of a new suit. McCook Irrigation & Water Power Co. v. Crews [Neb.] 96 N. W. 996. Where an erroneous ruling compels plaintiff In his effort to extricate himself to so amend his complaint as to deprive himself of his cause of action, he is entitled to a reversal with permission to restore his original complaint. Bennett v. Mahler, 90 App. Div. 22, 85 N. T. S, 669. 16. Brown V. Bowman, 119 Ga. 153, 46 S. B. 410. IT. Sanely v. Crapenhoft [Neb.] 95 N. W. 882. 1& Juneau Ferry & Navigation Co. v. Alaska S. S. Co. [C. C. A.] 121 F. 350. 19. Greene v. United Shoe Machinery Co. [C. C. A.] 124 F. 961; Mossberg ▼. Nutter [C C. A.] 124 F. 956. 20. Though the general rule requiring restitution upon reversal is frankly recog- nized. State V. Horton [Neb.] 97 N. W. 434. 21. See 1 Curr. L. 195, n. 87. aa. Parmly v. Farrar, 204 111. 38, «8 N. B. 438; Davis v. Hall [Neb.] 97 N. W. 1023; Ca- hlll V. Hagerty. 85 N. Y. S. 1115; Graham v. Merchant, 43 Or. 294, 72 P. 1088; Gallamore V. City of Olympia [Wash.] 75 P. 978. 23. Mesne profits before defendant haa possession. Fitzpatrick v. Graham [C. C. A.] 122 F. 401. See 1 Curr. L. 197, n. 88. 24. Craig V. Grafton Water Co., 141 Cal. 178, 74 P. 762. 25. Shuck V. ■pfennlnghauaen, 101 Mo. App. 697, 74 S. W. 381. 26. Chicago & E. I. R. Co. v. Donworth, 203 111. 192, 67 N. B. 797. See 1 Curr. L. 196, n. 80. 27. Irvine v. Gibson, 25 Ky. !•. R. 1418, 77 S. W. 1106. 28. Benton v. Hopkins, 81 Colo. 618, 74 P. 891. 29. Bwett V. Gray, 141 Cal. 63, 74 P. 489. 30. See 1 Curr. L. 195. 3 Cur. Law. APPEAL AND KEVIEW § 15F. 295 where only a question of fact is presented.^^ When a lower court of appeal re- verses, it should make findings or conclusions to support and explain its deci- sion/^ and where it fails to do so, a motion to return the record to the court of appeals and not mandamus is the proper remedy."* The ultimate facts which the evidence establishes are what is required, and not the evidence itself," or a finding upon every issue presented.'" (§15) E. Modifying or relieving from appellate decree.''' — A formal judg- ment on appeal, based on voluntary appearance by the attorney of defendant in error after his death, is void and will be set aside on the facts being brought to the court's knowledge during the term.'' Where plaintiff, on the sustaining of a demurrer, elects not to amend his declaration and appeals from a judgment for defendant, the appellate court after affirmance will not modify its judgment so as to allow amendment.'® A remittitur cannot be ordered returned for the cor^. rection of an error therein after being once sent down.** Leave given to apply for a bill of review in the court below merely lifts the bar of the appellate de- cree, and leaves the application to be determined below on its merits, subject to review on appeal as in other cases.*^ In South Dakota, there must be an order to show cause before modification will be considered on motion.*" (§15) F. Mandate and retrial.*^ — Where the court of appeals reverses a decree for the probate of a wUl, the remittitur is properly filed in the surrogate's court, and the order making the judgment of the court of appeals the judgment of the surrogate's court is properly entered in that court.** Decisions construing mandates are noted below.*' The entire record may be considered.*" A misnomer in an unnecessary recital of a party's name in the mandate will not vitiate it.*' The statute of Texas providing that no mandate shall issue after more than a year after decision applies to pending cases, and a case is properly dismissed below where the mandate was not taken out for more than a year after the enact- ment of the statute.*' Upon remand with directions, the trial court has no juris- diction but to follow the mandate,*' which it must do, or a second reversal will 31. Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. B. 668. 32. Rev. St. 1898, § 2410. Kranlger v. Schmidt [Wis.] 98 N. "W. 929. 33. 111. Prac. Act, § 88. Martin v. Martin, 202 111. 382, 67 N. B. 1; Trakal v. Heusner Baking Co., 204 111. 179, 68 N. B. 399; Hogan v. Chicago & A. R. Co., 202 111. 206, 66 N. B. 1070; Irwin v. North Western Nat. L. Ins. Co., 200 111. 577, 66 N. E. 386; Id., 207 111. 631, 69 N. B. 824. See 1 Curr. L.. 189, n. 88; also, 1 Curr. L. 195, n. 93. 34. Nowlln V. HaU [Tex.] 79 S. W. 806. 35. Maney v. Eyres [Tex. Civ. App.] 77 S. W. 969; Galveston, etc., R. Co. v. Cloyd [Tex. Civ. App.] 78 S. W. 43; Martin v. Martin, 202 111. 382, 67 N. B. 1; Trakal v. Heusner Bak- ing Co., 204 111. 179, 68 N. B. 399. 36. NowUn V. Hall [Tax.] 79 S. W. 806. ST. See 1 Curr. L. 196. 38. Ritohey v. Seeley [Neb.] 94 N. W. 972. 39. Jackson & Sharp Co. v. Fay, 20 App. D. C. 105. 40. Carpenter v. Lewis, 65 S. C. 400, 43 S. B. 881. 41. Board of Counollmen of City of Frank- fort V. Deposit Bank [C. C. A.] 124 P. 18. 42. Kelly v. Oksall [S. D.] 97 N. W. 11. 48. See 1 Curr. L. 196. 44. In re Hopkins' Will, 41 Misc. 83, 83 N. T. S. 890. 45. Construction of mandate on appeal from order as to priority of liens on rail- road personalty and earnings under mort- gage and claims for labor and materials.- Bell v. St. Johnsbury & D. C. R. Co. [Vt.} 56 A. 105. Where the mandate directing cer- tain payments to be applied as of a certain date makes no reference to Interest, none should be allowed. Jennings v. Parr, 66 S. C. 385, 44 S. B. 962. A mandate directing a conveyance of the "land" in dispute author- izes a decree for a conveyance of the land and all the minerals thereon. Bogart v. Amanda Consol. Gold MIn. Co. [Colo.] 74 P. 882. 4«. Wilson's Assignees v. Louisville Nat. Banking Co., 25 Ky. L. R. 1066, 76 S. W. 1095. 47. Southern R. Co. v. Glenn's Adm'r [Va.] 46 S. E. 776. 48. Gen. Laws 1901, p. 122, c. 64. Watson V. Boswell [Tex. Civ. App.] 73 S. W. 986. Case may be dismissed on certificate that no mandate has Issued. Watson v. Mirike [Tex. Civ. App.] 73 S. W. 986. 49. Story v. Robertson [Neb.] 98 N. W. 825; McBride v. Whitaker [Neb.] 9S N. W. 847. See 1 Curr. L 197, n. 20. 39g ^ APPEAL AND REVIEW § 15F. 3 Cur. Law. follo-w." The successful party is entitled to a judgment ia accordance with the mandate, notwithstanding the intervention of new parties." The trial court will follow the plan determined by the appellate court for the distribution of a fund." When an order of the district court sustaining a claim of privilege by a witness in a bankruptcy ease is reversed on appeal, the district court on remand properly vacates an order of the referee discharging the trustee, and requires the witness to attend for further examination." Failure of the clerk below to make the proper entries does not deprive the court of jurisdiction to carry out the provi- sions of the mandate,"* and the pendency in the appellate court of a second motion for rehearing is no ground for the disregard of the regular mandate to enforce the decree. °° The reversal of a foreclosure judgment avoids a sale thereon." Where, on reversal, vacation of a judicial sale is ordered on conditions, it is error for the trial court to refuse to comply with the mandate for noncompliance with the conditions without first setting a time within which compliance must be made."' Error cannot be assigned on the entry of a judgment in exact com- pliance with the judgment of the appellate court."' Mandamus lies to enforce obedience to the mandate." It is not competent for the circuit court to amend or correct the mandate.*" Where a case is remanded with directions, the correctness of the decision is not open to question in the trial court," and any error in the remittitur must be corrected by the appellate court. °^ The action of the lower court in making the judgment operative against the proper person as shown by the opinion, regard- less of a misnomer in the mandate, is a construction, not an amendment thereof." The reversal of a foreclosure and deficiency judgment as excessive entirely va- cates it, and the trial court cannot modify it by deducting the amount adjudged excessive.'* Retrial.'^ — No notice of retrial after remand is necessary where a cause once on the docket stays until disposed of," but appellee is entitled to notice of rein- statement of the ease below on return of the mandate, after a delay of four years after reversal." Failure for more than a year to prosecute an. action after re- versal and remand will necessitate its dismissal.'" A general reversal of the findings and judgment of the trial court leaves the cause, except as to matters adjudicated on the appeal, in all respects as though no trial had ever been had," and except that a new trial is necessary,'" reinvests the trial court with discretion to proceed as justice may require.''^ On reversal so. Direction as to placing on calendar below after amendment. Dlebold v. "Walter, 89 App. Dlv. 80, 85 N. T. S. 437. 51. State V. Thompson [Neb.] 95 N. W. 47. 52. People V. American Ii. & T. Co., 39 Misc. 647, 80 N. T. S. 627. 53. Brown V. Persons tC. C. A.] 122 F. 212 54. Granger v. Sheriff, 140 Cal. 190, 73 P. 816. 55. Michigan Mut. I* Ins. Co. v. Klatt [Neb.] 98 N. W. 436. 56. Cowdrey v. London & San Francisco Bank, 139 Cal. 298, 73 P. 196. 57. Bloor V. Smith, 119 Wis. 163, 96 N. W. 544. 58. Wnils V. Felton, 119 Ga. 634, 46 S. B. 857. Objection that sale should not have been made before ascertaining value of prop- erty under Implied trust. McClellan v. Ker- by [Ind. T.] 76 S. "W. 295. 59. Sohnepper v. "Whiting [S. D.] 99 N. W. 84. 60. Southern R. Co. t. Glenn's Adm'r [Va.] 46 S. B. 776. 61. McBrlde ▼. "Whltaker [Neb.] 98 N. "W. 847. 62. Zapf V. Carter, 90 App. Dlv. 407, 86 N. Y. S. 175. 63. Southern R. Co. v. Glenn's Adm'r ["Va.] 46 S. E. 776. 64. Cowdrey v. London & San Francisco Bank, 139 Cal. 298, 73 P. 196. 65. See 1 Ourr. L. 196. 66. Comp. Laws 1887, S 6034. In re Ol- son's Estate IS. D.] 94 N. W. 421. See 1 Curr. L. 196, n. 11. 67. Pennlman v. Tlnsley [Tex. Civ. App.1 75 S. W. 367. 68. Excuses held Insufficient [Comp. Laws i 5239]. Root V. Sweeney [S. D.] 95 N. w! 916. 69. State V. StuU [Neb.] 96 N. W. 121. 70. Schnepper v. Whiting [S. D.] 99 N. W. 84. 71. Hoagland v. Stewart [Neb.] 98 N. W. 3 Cur. Law. APPEAL AND EBVIEW § 15F. 397 of a judgment rendered on the third successive verdict for plaintiff, the retrial was limited to the amount of recovery/^ The decision of the appellate court stands as the law of the case on retrial in so far as the facts are the same as on the appeal." A reversal on the ground that the evidence is not sufficient is control- ling on retrial, the evidence being the same,^* as is a holding that the evidence is sufficient, where the same and additional evidence is produced,'"' and where a judgment on directed verdict is reversed on the ground that the issues should have been submitted to the jury, the trial court cannot set aside the verdict ren- dered on the second trial on substantially the same evidence."' A reversal for insufficiency of evidence to support the judgment and remand generally does not preclude the introduction of further evidence on the new trial," and where a defect of proof on the only issue in the case is supplied by uncontradicted evi- dence on retrial, a verdict may be directed.^' Where the appellate court holds that defendant only owed plaintiff the duty of abstention from willful or wanton in- jury, the question of negligence on retrial is immaterial.'" After the appellate court has decided that plaintiff's complaint states a cause of action, it is only necessary to determine whether his evidence tends to support it.'" Where an equity decree for plaintiff is reversed with leaTe to amend, nothing is binding on the trial court except that the pleadings and evidence on the first trial did not authorize the decree.'^ On retrial, after reversal, it must be assumed that a ques- tion presented but not discussed by the appellate court was decided adversely to appellee.'^ Upon new trial after the reversal of a decree for the probate of a wiU the proponent must prove anew the making of the will." A pro forma affirm- ance for defects in the record concludes the trial court on aU questions that might have been reviewed by a proper biU of exceptions.'* Unless restricted by mandate, amendments may be allowed in the court be- low,*' but a motion to amend by introducing a defense and counterclaim pre- viously denied because of laches will not be granted,** and defendant cannot plead 428. Upon remand without direction, the trial court may act In any way consistent with the opinion of the appellate tribunal, may grant a motion for new trial on an amendment of the pleadings or a supple- mental pleading on good cause shown. State V. District Court of Ramsey County [Minn.] 97 N. W. 581. 72. Southern R. Co. v. O'Bryan, 119 Ga. 147, 4B S E. 1000. 73. GrifEen v. Manice, 174 N. T. 505, 66 N. B. 1109; Hall v. State, 92 App. Div. 96, 87 N. T. S. 338; Pennsylvania Co. v. Scofleld [C. C. A.] 121 F. 814; Bggett V. Allen, 119 "Wis. 625, 96 N. "W. 803; Euting V. Chicago & N. W. R. Co. [Wis.] 98 N. W. 944; Seaboard Nat. Bank v. "Woesten, 176 Mo. 49, 75 S. W. 464. Determination that certain evidence is ad- missible. Richardson v. Dybedahl [S. D.] 98 N. W. 184. Whether hiring was indefinite or a yearly lease. Anhalt v. Llghtstone, 39 Misc. 822, 81 N. T. S. 288. Amendment of answer and new evidence not affecting re- sult. Snyder v. Jack, 140 Cal. 584, 74 P. 139. Determination that under the pleadings the court had authority to establish priorities to water and enjoin interference. Miller v. Lake Irr. Co., 33 Wash. 132, 74 P. 61. Con- struction of deed. Ashcraft v. Cox, 25 Ky. I* R. 1303, 77 S. W. 718. No amendment of pleadings to show that common law does not obtain in sister st9,te as presumed on appeal. Bank of Commerce's Receivers v. Wlndmuller„25,Ky. X. R. 1334, 77 S. W. 1103. 74. Tyson V. Joseph H. Bauland Co., 85 App. Div. 612, 82 N. T. S. 955. 75. Tyson v. Joseph H. Bauland Co., 85 App. Div. 612, 82 N. T. S. 955; Southern R. |Co. V. Phillips, 119 Ga. 146, 45 S. B. 967; Winter v. Supreme Lodge, K. P., 101 Mo. App. 550, 73 S. W. 877. 76. City of Philadelphia v. Atlantic & P. Telegraph Co., 127 P. 370. 77. In re Maher's Estate, 204 111. 25, 68 N. B. 159. 78. McGowan v. Brooks, 119 Ga, 494, 48 S. B. 626. 79. Downes v. Blmlra Bridge Co., 82 App. Div. 639, 81 N. T. S. 834. 80. Kellogg V. Sowerby, 93 App. Div. 124, 87 N. T. S. 412. 81. Johnson v. Sherman County Irriga- tion Water Power & Imp. Co. [Neb.] 98 N. W;. 1096. 82. Curtis V. Albee, 86 App. Div. 145, 83 N. Y. S. 430. 88. In re Hopkins* Will, 41 Misc. 83, 83 N. T. S. 890. 84. Sumner v. Sumner, 118 Ga. 408, 46 S. B. 316. 85. People v. District Court [Colo.] 75 P. 390; Lang v. Metzger, 206 111. 476, 69 N. B. 493; Parke v. Boulware [Idaho] 73 P. 19; Jones V. Western Mfg. Co., 32 Wash. S76, 78 P. 369. See 1 Curr. L. 197, n. 23. 86. Henry & Co. v. Talcott, 89 App. Div. 76, 85 N. T. S. 98. 298 APPEAL AND KBVIEW § 16. 3 Cur. Law. on the trial after reversal of an order opening default wliieh called forth an amendment of the petition which was not material.*' The action is properly dis- missed below where the judgment of the court of appeals leayes no ground of re- covery and plaintiff does not amend.*' Wliere, on affirmance of a judgment for plaintiff on the overruling of a demurrer to the complaint and refusal to plead further, the court remands the case for further proceedings, it is discretionary with the trial court to allow defendant to plead further.*" § 16. Rehearing and relief thereon."" — A petition to rehear will not be en- tertained unless it appears that some material point was overlooked, or some con- trolling authority escaped the attention of the court, or some other weighty con- sideration requires it.°^ A time is usually provided within which xehearings must be taken or petitions filed,"* but the Federal court rule to that effect is for the protection of the court and may be waived by it in a proper case."' An order staying the mandate after judgment indefinitely has the effect to retain the juris- diction and incidentally the power to grant a rehearing, even after the term so long as the mandate has not issued."* Where the supreme court has summarily denied a certiorari to the circuit court of appeals on a petition setting up the identical issues decided in that court, the circuit court of appeals will assume that the supreme court impliedly passed on such issues and will decline to reopen the case by rehearing." Appellee who filed no brief before the decision will not be given a rehearing to discuss the questions presented by appellant."" Eehearing will not be granted for immaterial or trivial errors,"' and will be refused if the proper judgment has been rendered, even though reached by faulty reasoning."* Matters not certified by counsel as grounds will not be considered."* An alias motion to recall a mandate is not the proper remedy to take advantage of new matters affecting the merits of the controversy coming to the party's attent^ion, since the judgment was entered.^ Points not made on the original hearing will not as a rule be considered on application for rehearing,^ and an omission from the statement of facts cannot be supplied by extrinsic evidence,' but a question of jurisdiction is available, though not previously raised.* Payment of a judg- 87. O'Connor v. Brucker, 117 Ga. 461, 4S S. B. 731. 88. Hawkins v. Nicholas County, 26 Ky. L. R, 704, 76 S. W. 329. Where In reversing a judgment for defendant, the court decides that the refusal of a proffered amendment of the complaint was not error because Im- material, but on rehearing directs that tlie amendment be permitted, it is in effect de- cided that the amendment Is necessary to plaintiff's cause of aotioH and dismissal be- low is proper if he refuse to amend. Norrls Safe & Ix)ck Co. v. Clark [Wash.] 74 P. 1019. 89. Mcleod V. Lloyd, 43 Or. 260, 74 P. 491. . 90. See 1 Curr. L,. 198. 91. Elmore v. Seaboard Air Line K. Co., 132 N. C. 865, 44 S. E. 620. 92. A motion to recall a remittitur not made within the time limited will be denied where no sufficient excuse is shown. In re Sanford'a Estate, 139 Cal. xix, 73 P. 466. 93. Burget v. Robinson [C. C. A.] 123 F. 262. 94. Burg-et V. Robinson [C. G A.] 123 P. 262. 95. Burget V. Robinson tC. C. A.] 123 P. 262. 96. Town of Crown Point v. Thompson, 31 Ind. App. 201, 67 N. E. 55.5. 97. Though an appeal should have been dismissed instead of affirmed, the Judgment will not be reopened to correct such error. Llsker v. O'Rourke. 28 Mont. 129, 72 P. 416, 755. 98. School Dist. of Omaha T. McDonald [Neb.] 97 N. W. 584. 99. Rule 53 (39 S. E. x). Kerr v. Hicks, 133 N. C. 175, 4»S, E. 529. 1. McLeod V. Lloyd [Dr.] 75 P. 702. a. Stephens v. Duokett, 111 La. 979, 36 So. 89; Altgeld v. Alamo Nat. Bank [Tex. Civ. App.] 79 S. W. 582. Parties will not be allowed to shift their grounds of action or defense. Cook v. Marshall Co. [Iowa] 95 N. W. 409. Where the Issue as to a nonsuit was argued on the merits, an objection that It should not have been granted because not stating the specific ground on which It was based cannot be raised on rehearing. Her- ring-Marvin Co. V. Smith, 43 Or. 316, 73 P. 340. The appeal must be disposed of on the record presented on the first submission. An amended abstract filed after motion for rehearing granted will be stricken. Coe Col- lege V. Cedar Rapids, 120 Iowa, 541, 95 N. W. 267. 3. Deed proved below omitted from state- ment. Williamson V. Work [Tex. Civ. App.] 77 B. W. 266. 4. Objection that question could be con- 3 Cur. Law. APPEAL AND EEVIEW § 17. 299 ment on affirmance thereof does not prevent rehearing and final reversaL' A rehearing after affirmance will not be awarded on appellee's affidavit that he should not have recovered below.' Eehearing on appeal in a habeas corpus case will be dismissed where, since affirmance, the prisoner has been released on bail.' On rehearing, the cause will be considered as though no former decision had been made,* and inconsistency with arguments advanced on the hearing will not pre- vent appellant advancing a sound argument.' A judgment establishing the exist- ence of a right in one of the parties is admissible as evidence of that right, though a rehearing is pending on appeal theiefrom.^" § 17. Liability on bonds and the lihe.^^ — Principal and sureties are liable, thougli appeal was taken under a void statute, where the court assumed jurisdic- tion without objection and affirmed the judgment.^" One who gives a supersedeas bond to hold in force pending proceedings in error an attachment or garnish- ment discharged by order of court, cannot be heard in defense of a suit on such bond to say that defendant to whom ib was given had no interest in the property, or that the proceedings were irregular." A supersedeas bond may be reformed in equity.^* Extent of liability .'^^ — A. bond superseding execution directed against specific property will not cover rents, damages, profits and taxes allowed by the appellant to accumulate on the property pending the appeal.'^' Where a land contract is foreclosed and a time for performance set, a bond on appeal from that decree con- ditioned to pay for use and occupation pf the premises, in case of affirmance, cre- ates a liability for use and occupation only for the time subsequent to the date set for performance.^' On appeal by creditors of an estate from an order settling the account of trustee, a claimant filing a cross appeal cannot on affirmance re- cover interest on the amount allowed him, as against the obligees on the appeal bond." Satisfaction and discharge of sureties.^" — As between principal and surety, the approval of the bond by the proper officer is immaterial.^" Satisfaction of a judgment in an unlawful detainer suit for restitution of premises and rent does not release liability on the appeal bond, conditioned for payment of rents pending the appeal.'^ Forfeiture and enforcement.^^ — ^A bond conditioned to "abide the judgment if the same shall be affirmed and pay the costs" is broken if the judgment be af- firmed and not paid.^* One who successfully attacks an appeal undertaking is estopped from subsequently contending for its validity.^* That defendant in sidered only on appeal from Judgment, not on appeal from order denying new trial. Sharp V. Bowie [Cal.] 76 P. 62. 5. Pike, Morgan & Co. v. Wathen, 25 Ky. L,. R. 1264. 78 S. W. 137. 0. Should be presented to lower court as ground for motion for new trial. Grubbs V. Pence, 25 Ky. L. R. 170. 74 S. W. 709. 7. Ex parte Walton [Tex. Cr. App.] 74 S. W. 314. 8. Van Auken v. Mizner [Neb.] 97 N. W. 334. 0. City of Louisville v. Wehmoffi. 25 Ky. L. R. 1924, 79 S. W. 201. 10. Salt Lake City v. Salt Lake City "Wa- ter & Electrical Power Co., 26 Utah, 456, 71 P. 1069. 11. See 1 Curr. L. 199. 12. MoVey v. Peddle [Neb.] 96 N. W. 166. IS. Metcalf v. Bockoven, 1 Neb. UnofT. 822, 96 N. W. 406. 14. But reformation should extend no fur- ther than to make a complete statutory bond in the absence of express agreement for ."!ome other form. Nourse v. Weltz, 120 Iowa, 708. 95 N. W. 251. 15. See 1 Curr. L. 199. 10. Nourse v. Weitz, 120 Iowa, 708, 95 N. W. 251. IT. Buckley v. Crane [C. C. A.] 123 F. 29. 18. Marshall v. Dobler, 97 Md. 555, 66 A. 704. 19. See 1 Curr. L. 200. 20. Nourse v. Weitz, 120 Iowa, 708, 95 N. W. 251. 21. Carmack v. Drum [Wash.] 73 P. 377. 22. See 1 Curr. L. 200. 23. Harris V. Kansas BU Co., 66 Kan. 372, 71 P. 804. 24. U. S. Fidelity & Guaranty Co. v. Et- tenheimer [Neb.] 97 N. W. 227. 300 APPEAL AND EEVIBW § 17. 3 Ctir. Law. error procured an order that additional sureties be furnished -within ten days or the bond be stricken from the files, which were never furnished, is no defense to an action on the bond after afBrmance.^' The petition must allege that a super- sedeas was issued by the clerk following the execution of the bond.^' A petition alleging that the judgment was affirmed and is unpaid fails to allege a breach of a bond conditioned to pay "whatever judgment may be rendered on dismissal or trial" of the appeal."^ Judgment."^ — Where the suit is on a special tax bill, which is no personal debt against the owner, a personal judgment against him or the surety on his appeal bond cannot be rendered."" APPEARANCE. § 1. General) Special; What Constltntes I Bach (300). Appeal (301). Special Appear- ance (301). I § 2, ^Vho may Make or EInter (30Z). § 3. Effect (302). § 1. General; special; what constitutes each.'" General appearance.''^ — Comiag into court for any other purpose than to contest jurisdiction of the per- son is a general appearance,'" even though understood and intended by the person so appearing as a special appearance.^' There need be no formal filing of papers.'* One contesting the question of jurisdiction of the person must confine himself strictly to that issue,'" as any invocation of the powers of the court over the sub- ject-matter waives the special appearance,'? and results in submission to the juris- 25. English V. Smith [Neb.] 96 N. W. 60. 26. Hoskins v. Southern Nat. Bank, 24 Ky. L. R. 2250, 73 S. W. 786. 27. German Nat. Bank v. Beatrice Rapid Transit & Power Co. [Neb.] 96 N. "W. 49. 28. See 1 Curr. L. 201. 29. Heman Const. Co. v. Loevy [Mo.] 78 S. W. 613. 30. See 1 Curr. L. 201, { 1. 31. See 1 Curr. L. 201. 32. Perrlne v. Knights Templars' & Ma- sons' Life Indemnity Co. [Neb.] 98 N. W. 841. Held to constitute greneral appearance: Plea to the Jurisdiction of the court over the subject-matter. Perrine v. Knights Tem- plars' & Masons' Life Indemnity Co. [Neb.] 98 N. W. 841. Request for a continuance. Costello v. Palmer, 20 App. D. C. 210. As- sent to a continuance. Honeycutt v. Ny- qulst, Peterson & Co. [Wyo.] 74 P. 90. Mo- tion to paragraph plaintiff's declaration. Royer Wheel Co. v. Dunbar, 25 Ky. L. R. 746, 76 S. W. 366. Filing a motion to quash a citation, under Texas practice. Western Cot- tage Piano & Organ Co. v. Anderson [Tex.] 79 S. W. 516. Motion to set aside a sheriff's sale in a foreclosure suit. Jones v. Standl- ferd [Kan.] 77 P. 271. An agreement to change of venue includes an appearance. Jones V. Robb [Tex. Civ. App.] 80 S. W. 395. An appearance "specially" to object to a misnomer. Honeycutt v. Nyquist, Peterson & Co. [Wyo.] 74 P. 90. An agreement In open court to a continuance of a hearing on a motion to sell attached goods (Honeycutt V. Nyquist, Peterson & Co. [Wyo.] 74 P. 90), but not acceptance of service of a motion to sell property on attachment (Id.). Sub- sequent plea to the merits after a motion to quash for insufficient service has been overruled. Morris v. Healy Lumber Co., 33 Wash. 451, 74 P. 662. A motion to dismiss on grounds that action was in personam and not in rem, and that Judgment on which action was based was dormant. Thompson V. Pfeiffer, 66 Kan. 368, 71 P. 828. A motion to quash a summons and writ of restitution, though in the form of a special appearance; and though the summons be quashed, it is proper to refuse to quash the writ or dis- miss the action. Teator v. King [Wash.] 76 P. 688. Appearance personally and by coun- sel on a motion to dissolve an attachment, where defendant had been served with a rule to plead and had filed an answer and demurrer, before Judgment was entered for failure to appear. Such formal appearance would Justify the setting aside of the Judg- ment. Mayler v. Wittlsh, 204 Pa. 180, 53 A. 758. 33. Thompson v. Pfeiffer, 66 Kan. 368, 71 P. 828. Called a "special appearance." IJich- ols & Shepard Co. v. Baker, 13 Okl. 1, 73 P. 302. 34. Defendant's attorney handed a copy of an answer to the merits to plaintiff's coun- sel In the presence of the Judge, saying that the original would be filed, availing himself of this to press a motion to discharge a receiver. Powell v. National Bank of Com- merce [Colo. App.] 74 P. 536. 35. Byers v. Byers [Pa.] 57 A. 62; Nichols & Shepard Co. v. Baker, 13 Okl. 1, 73 P. 302. 36. Teater v. King [Wash.] 76 P. 688. One who, after appearing specially, moves the court for afllrmatlve relief in his own behalf, thereby makes a general appearance, and subjects himgelf to the Jurisdiction of the court. Montague v. Marunda [Neb.] 99 N. W. 653. Where a defendant appears to object to the court's Jurisdiction of his person, and failing to obtain a ruling thereon, answers and goes to trial, he thereby waives the ob- 3 Cur. Law. APPEARANCE § 1. 301 diction of the court for all purposes.'^ However, when the lack of personal jurisdiction is not apparent on the face of the record, the defendant may unite with his plea to the jurisdiction a defense going only to the plaintiff's right of recovery without waiving his right to insist on his plea to the jurisdiction; but the exception does not extend to affirmative relief, as a counterclaim or cross action waives the former plea.'* A subsequent general appearance does not waive the right to question in the higher court the action of the court on the question of jurisdiction.*" Appeal.*" — As to the effect of an appeal from a judgment void for want of personal jurisdiction, the decisions are in conflict, some holding that such an ap- peal constitutes an appearance so that both the appellate court** and the trial court, when the case is remanded,** acquire jurisdiction of the person of the party appealing; others that prosecution of error from such a judgment does not con- stitute a {;^eneral appearance in the action in which the judgment was rendered.*' The date of a voluntary appearance is to be taken as the date of the commence- ment of the proceedings in error, where no summons is issued.** Special appearance.*^ — The object and only office of a special appearance is the presentation of a purely jurisdictional question.*' There may be a special appearance to move for dismissal for insufficient service of a writ,*^ to have an attachment vacated,*' to file a petition for removal from a state to a Federal court,*' to have a cause remanded to a state from a Federal court,"' to plead privi- lege," or to move to quash service or to strike suggestions of damages."* A de- fendant sued in a state court where, by statute, special appearances are forbidden, may appear specially in a Federal court to which the action has been transferred."' Jectlon. Conflict In authorities pointed out. Garrett v. Herring: Furniture Co. [S. C] 48 S. B. 254. 37. Byers v. Byers [Pa.] 57 A. 62. 38. Linton v. Helje [Neb.] 95 N. W. 1040. 39. American Wire & Steel Bed Co. v. Goldman, 85 N. T. S. 330. 40. See 1 Curr. L. 202. 41. Taylor v. Sledge, 110 Tenn. 263, 76 S. W. 1074. 42. Special appearance below to object to invalid service. Drew Lumber Co. v. Walter [Fla.] 34 So. 244. Appeal by a purchaser at a Judicial sale from an order denying a mo- tion to set aside a resale. Wigginton v. Ne- han, 25 Ky. L. R. 617, 76 S. W. 196. Appeal by plaintiff from judgment on counterclaim, plaintiff having had petition dismissed for want of Jurisdiction. Louisville Tobacco Warehouse Co. v. Gist, 26 Ky. L. R. 387, 76 S. W. 243. 43. Bastian v. Adams [Neb.] 97 N. W. 231. Contra, doctrine formerly adhered to In Ne- braska, said to have been overruled in Hurl- burt v. Palmer, 39 Neb. 158, 57 N. W. 1019. Appellant claimed there had been no service of summons, and the question had never been passed upon. Long Branch Pier Co. v. Cross- ley. 84 N. T. S. 227. 44. In re James' Estate [Neb.] 97 N. W. 22. 45. See 1 Curr. L. 201. 46. Nichols & Shepard Co. v. Baker, 13 Okl. 1, 73 P. 302; Westinghouse Air Brake Co. V. Chrlstenson Engineering Co., 126 F. 764. 47. Thomas v. Thomas, 98 Me. 184, 66 A. 651. 48. No service on defendant who appeared only on a motion to vacate the attachment. This motion being denied, the case was sev- eral times adjourned and then dismissed, neither party appearing. Subsequently the case was restored by consent of defendant's attorneys. This consent did not constitute an appearance nor waive the question of Jurisdiction. Delaney v. Bouse, 91 App. Dlv. 437, 86 N. T. S. 880. But see Myler v. Wlt- tlsh, 204 Pa. 180, 63 A. 758. 49. Defendant sued in state court where special appearances were prohibited by stat- ute filed plea to jurisdiction simultaneously with Its bond and petition to remove cause. Louden Machinery Co. v. American Malleable Iron Co., 127 F. 1008. 60. Motion to quash for lack of state court's Jurisdiction denied by Federal court on ground of wrongful removal to latter court. May be reheard in state court. Paul V. Baltimore & O. R. Co. [Ind. App.] 69 N. E. 1024. A motion to strike an amended com- plaint accompanied by a plea in abatement on a special appearance, does not confer Jurisdiction. Id. A motion to strike inter- rogatories filed by plaintiff to a plea in abatement under special appearance will not change defendant's special to a genel-al ap- pearance. Id. 61. A plea of privilege, as to the proper venue of an action did not invoke the juris- diction of the court. St. Louis, etc., R. Co. v. White & Co. [Tex. Civ. App.] 76 S. W. 947. 52. Thomson v. MoMorran Mill. Co. [Mich.] S4 N. W. 188. 63. Louden Machinery Co. v. American Malleable Iron Co., 127 F. 1008. 802 APPEAEANCE § 3. 3 Cur. Law. A defendant appearing specially is a "pai'ty" to the action, entitled to costs if his motion be sustained."* Appearance as a witness is not an appearance as a party." § 2. Who may make or enter." — Jurisdiction may be acquired by voluntary appearance in person or by attorney,"" and where an aijtorney, authorized to enter a special appearance only, honestly pleads matters amounting to a general ap- pearance, the client is bound by such general appearance."' A wholly unauthor- ized appearance by one assuming to act as attorney is of no effect, and a judg- ment entered thereon will be set aside upon a satisfactory showing that the ap- pearance was unauthorized."" Authority to appear for a party will be presumed from such appearance noted on the record on appeal."' The rule permitting ap- pearance and answer by a person wrongly served, and yet sought to be held, is to enable him to plead that he is not liable because he is not the person against whom the plaintiff's alleged claim exists."^ Hence it has no application where such per- son is notified that no claim is made against him individually, and the plaintiff will not be compelled to accept service of notice of appearance and answer."' § 3. Effect."^ — Voluntary general appearance makes unnecessary the service of summons,'* or citation,"" or notice,"" and hence results in a waiver of all de- fects in original process,"'' and of the question of jurisdiction of the person,"" or C4. Motion to dismiss for Insufficient serv- ice. Thomas v. Thomas, 98 Me. 184, 56 A. 651. G5. Suit against a corporation and Indi- viduals. One of the latter -who was not served with process made an affidavit which was used as evidence for the corporation and plaintiff sought to construe this as a volun- tary appearance giving the court jurisdiction over the individual. Talbot. Taylor & Co. v. Southern Pao. Co., 122 F. 147. 58. NOTE. Appearance of Infants I An at- torney cannot waive service of summons on an infant. Evans v. Davies, 89 Ark. 235. Nor enter an appearance for minor heirs not brought into court by proper summons of notice. Bonnell v. Holt, 89 111. 71; De La Hunt V. Holderbaugh, 58 Ind. 285. So a gen- eral appearance by counsel will not bind in- fant defendants not served with process. Valentine v. Cooley, Meigs [Tenn.] 613, 33 Am. Dec. 166. See, also. Priest v. Hamilton, 2 Tyler [Vt.] 50; Russell v. Texas & P. R. Co., 68 Tex. 646; Mercer v. "Watson, 1 Watts [Pa.] 330; Cruikshank v. Gardner, 2 Hill [N. T.] 333; Bloom v. Burdick, 1 Hill [N. Y.] 131, 37 Am. Dec. 299. Nor can a guardian ad litem enter an ap- pearance for a minor defend.int. Chambers V. Jones, 72 111. 75; Pugh v. Pugh, 9 Ind. 132; IngersoU v. Mangam, 84 N. T. 622; Hicken- botham v. Blackledge, 54 111. 316. Some courts hold an appearance by a guardian binding on the infant not served. Wrisley v. Kenyon, 28 Vt. 6; Smith v. Mc- Donald, 42 Cal. 484; Ankeny v. Blackiston, 7 Or. 407; contra: Greenman v. Harney, 53 111. 386; Haley v. Taylor, 39 Ark. 104. —From note to Kromer v. Friday [Wash.] 32 L. R. A. 671. See 1 Gurr. L. 203. 67. Gorman v. Stillman, 25 R. I. 55, 64 A. 934 58. McNeal v. Gossard [Kan.l 74 P. 628. 59. Turner v. Turner, 33 Wash. 118, 74 P. 56. «0. Department of Health of City of New Tork ▼. Babcock, 84 N. T. S. 604. 61, 62. Steinhaus v. Enterprise Vending Mach. Co.. 81 N. T. S. 282. 6S. See 1 Curr. L. 203. 64. Rarasdell v. Duxberry [S. D.] 96 N. W. 132. Joining In a petition for removal. Union Iron & Foundry Co. v. Sonnefleld [La.] 37 So. 20. Appearance of mortgagor in foreclosure action [Code Civ. Proc. |§ 416, 581]. Hibernia Sav. & L. Soc. v. Cochran, 141 Cal. 663, 75 P. 315. Filing answer to complaint in justice court. B. & C. Comp. § 63; McAnish v. Grant [Dr.] 74 P. 396. A general appearance by any of nonresident defendants renders an order of publication unnecessary as to those that appear. Mc- Clung V. Sieg [W. Va.] 46 S. E. 210. 65. Jones v. Robb [Tex. Civ. App.] 80 S. W. 395. Where defendant sought affirmative relief and the Judgment recited that plain- tiff appeared by counsel, such recital suffi- ciently showed an appearance by plaintiff and that a citation to him was unnecessary. Smlthers v. Smith [Tex. Civ. App.] 80 8. W. 646. 66. To an executor of a claim against his testator. Woltemahr v. Doye [Mo. App.] 76 S. W. 1053. 67. Gorman v. Stillman, 25 R. 1. 55, 54 A. 934; Forsythe v. Huey, 25 Ky. L. R. 147, 74 S. W. 1088; Stryker v. Pendergast, 105 111. App. 413; Department of Health of New York V. Babcock, 84 N. Y. S. 604; Lewis Lumber Co. y. Camody, 137 Ala. 578, 35 So. 126; Per- rine v. Knights Templars' & Masons' Life Indemnity Co. [Neb.], 98 N. W. 841; Mulhol- land V. Washington Match Co. [Wash.] 77 P. 497. General appearance on a motion for a new trial. Clark v. Brotherhood of Locomo- tive Firemen, 90 Mo. App. 687, 74 S. W. 412. A motion to quash summons and service is of no effect after a full appearance. Mulhol- land V. Washington Match Co. [Wash.] 77 P. 497. Voluntary demurrer or answer waives defects in service or return of summons. Adams v. Hopkins [Cal.] 77 P. 712. Succes- sive general appearances to file demurrer to answer, and to take depositions, waive ob- 3 Ciir. Law. AEBITKATION AND AWARD § 2. 303 of an objection to the venue,"" or an erroneous change of venue/' and gives the court complete jurisdiction for all the purposes of the action.'* An objection going to the court's jurisdiction of the subject-matter is not waived by a general appearance/^ nor is a prior void judgment validated therebyj* A general ap- pearance waives a statute requiring, as a condition precedent to jurisdiction, that a nonresident plaintiff give security for costs.'* Where defendant appears per- sonally and pleads to the jxirisdietion, the entry of a general appearance by his at^ tomey, who urges only the jurisdictional issue, will not waive the special ap- pearance." Withdrawal.'" — Appearance being equivalent to personal service it is error to permit a withdrawal to the prejudice of plaintiff." APPBENTICES. Parties seeking to cancel an apprenticeship will be remitted to the place of contract or the domicile where the laws thereof are doubtful and disputed, and the rights involved.'* AB.BITBATIO]!]' AND AW ABB. S 1. The Remedy In General (303). § 2. The Submission and AErreement to Submit (303). § 3. The Arbitrators and Umpire (304). § 4. Hearlns and Frocedure Before Arbi- trators (304). § 5. The Award; Reqnlsites, Validity and Effect (305). § 6. International Disputes (306). § 7. Statutory Arbitration BetweeB E^n- ployers and Elmployes (30G). Eeference,'* submission to court on agreed facts,** and arbitration under the terms of building contracts,'* and insurance policies,** are elsewhere treated. § 1. The remedy in general." — Statutory arbitrations are cumulative only.** § 2. The submission and agreements to svimit.'^ — A bona fide contention is jeotlons to service of process. Haseltlne v. Messmore [Mo.] 82 S. W. 115. 68. Gorman v. StiUman, 25 R. I. 55, 54 A. 934; Westlnghouse Air Brake Co. v. Chrlsten- son Engineering Co., 126 F. 764; Royer Wheel Co. V. Dunbar. 25 Ky. L. K. 746, 76 S. W. 366; Brand v. Brand, 25 Ky. L. R. 987, 76 3. W. 868. Unconditional appearance and ob- taining leave to answer. Harrison v. Mur- phy [Mo. App.] 80 S. W. 724. Appearance in court to whicji the cause was sent after a change of venue. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. B. 229. Mechanic' lien action — nonresident builder appeared and answered, thereby submitting to jurlsdlctim of court. Smith v. Colloty, 69 N. J. Law, 365. B5 A. 805. Nonresidence waived by pleading It in answer to the merits. Guenther v. American Steel Hoop Co., 25 Ky. L. R, 795, 76 S. W. 419. A nonresident who appears and answers to the merits subjects himself to the jurisdiction of the court. Cassldy v. Willis [Tex. Civ. App.] 78 S. W. 40. One who has appeared, without objection to the court's jurisdiction, filed an amended complaint and reply, and proceeded to trial, cannot object to the jurisdiction of the court after judg- ment. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. B. 229. 09. Venue in divorce. Glbba ▼. Glbbs, 26 Utah, 382, 73 P. 641. 70. And the decree rendered is not subject to collateral attack on that ground. Rodney V. Glbbs [Mo.] 82 S. W. 187. Tl. Perrlne v. Knights Templars' & Ma- sons' Life Indemnity Co. [Neb.] 98 N. W. 841. 72. Chicago Union Traction Co. v. City of Chicago [111.] 70 N. B. 659; Nevll v. Heinke, 22 Pa. Super. Ct. 614. 73. Void because summons Insufficient. Woodham v. Anderson, 32 Wash. 500, 73 P. 536. 74. Costello V. Palmer, 20 App. D. C. 310. 75. State v. Shipley [Md.] 67 A. 12. 76. See 1 Curr. L. 205, J 4. 77. Insurance Trust & Agency v. FalUns. 66 Kan. 336, 71 P. 826. 78. Relsa v. Pllcque, 42 Misc. 350, 86 N. Y. S. 704. 79. See Reference, 2 Curr. L. 1484. 80. See Submission of Controversy, 2 Curr. li. 1767. 81. See Building and Construction Con- tracts, 1 Curr. L. 374. 82. See Insurance, 2 Curr. Li. 479. 83. See 1 Curr. L. 206. 84. See 1 Curr. L. 206, n. 4. 85. See 1 Curr. L. 205. Note; The agreement to submit must name each arbitrator. Holdrldge v. Stowell, 39 Minn. 360. The power of setting aside an award Is analogous to the power of granting a new trial (Buckwater v. Russell, 119 Pa. 495) but as a general rule. In the absence of fraud (Masury v. Whiton, 111 N. T. 679, 18 N. B. 638; Goddard v. King, 40 Minn. 164, 41 N. W. 659), or misconduct (Shlpman v. Fletch- er, 82 Va. 601; Robinson v. Shanks, 118 Ind. 304 AEBITEATION AND AWAED § 2. 3 Cur. Law. a sufficient basis for submission, though it is not well founded." Technical words are not required to make a binding submission,"'' but it is not to be extended by implication beyond its plain words,*' or so as to include subsequent differences.*® Who may make. — The United States by its attorney may be bound by an agreement to submit to arbitration.'" An infant cannot submit a controversy to arbitration,'^ and an attempted submission is absolutely void.°^ One of two joint plaintiffs may agree with defendant to arbitrate," and the award is binding on the parties so agreeing.'* Effect. — The submission of subject-matter of a pending suit to arbitration dis- places such pending suit.'" A pariy cannot withdraw from an agreement for arbi- tration after an award made." § 3. The arbitrators and umpire.^'' — Arbitrators must be impartial and dis- interested,'* but prior service of an arbitrator in a similar capacity does not render him incompetent, nor invalidate an award in which he joined in the absence of a showing that he was prejudiced." Designation of all the arbitrators by one party is waived by proceeding before them without objection.^ § 4. Hearing and procedure before arbitrators.'^ — The arbitrators must act without unreasonable delay.^ They must give notice to the parties of the time and place of hearing,* but a party attending,' or refusing to attend,* waives notice. Where an umpire is to act only in ease of difference, which does not arise, his non- participation will not invalidate the award,' and on the other hand unauthorized 125, 20 N. B. 713), the award Is conclusive (Thornton v. MoCormick, 75 Iowa, 285, 39 N. W. 502), and It la presumed that all matters submitted were considered. Schmidt v. Glade, 126 111. 485, 18 N. E. 762; Brush v. Fisher, 70 Mich. 469, 38 N. W. 446, and note 14 Am. St. Rep. 510. An award upon a claim arising out of an Illegal transaction Is unen- forceable. Hall V. Kimmer, 61 Mich. 269; Davis V. Wentworth, 17 N. H. 567; Maybln v. Coulon, 4 Dall. [U. S.] 298; Harrington v. Brown, 9 Allen [Mass.] 679; Singleton v. Benton, 114 Ga. B48 and note 58 L. R. A. 181. Otherwise under certain statutes. Noble v. Peebles, 13 Serg. & R. [Pa.] 319; Goodwin v. Tarborough, 1 Stew. [Ala.] 152. 86. Downing v. Lee, 98 Mo. App. 604, 73 S. W. 721. 87, 88. Somerset Borough v. Ott, 207 Pa. 539, 56 A. 1079. Where a contract provides that any question as to the Intent or mean- ing of the contract shall be submitted to arbitration, a controversy arising out of the provisions of the contract and also out of acts of one of the parties Is not such a con- troversy as la contemplated by this provi- sion of the contract. Hudson River "Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Dlv. 513, 85 N. T. S. 577,. 89. Cutting V. Whlttemore [N. H.] 54 A. 1098. 90. Judson V. United States [C. C. A.] 120 P. 637. 91. Neither In person nor by next friend. Millsaps V. Bstes, 134 N. C. 486, 46 S. B. 988. 92. Millsaps V. Bstes, 134 N. C. 486, 46 S. E 988 93. 94. Runyon V. Rutherford [W. Va.] 47 S. B. 150. 95. Jones V. Thomas [Wis.] 97 N. W. 950. 96. Vincent V. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. 9T. See 1 Curr. L. 206. 98. Produce Refrigerator Co. v. Norwich anion Fire Ins. Soc. [Minn.] 97 N. W. 875. 99. Experienced appraiser for Are insur- ance companies. Van Winkle v. Continental Fire Ins. Co. [W. Va.] 47 S. B. 82. 1. Judson v. United States [C. C. A.] 120 F. 637. a. See 1 Curr. L. 206. 3. An arbitration agreement was signed March 2d and selection of arbitrators com- pleted March 3d. They met July 28 and com- pleted an award next day. Held no unrea- sonable delay. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. 4. Slater v. La Grande Light & Power Co.. 43 Or. 131, 72 P. 738. Where appraisers took no oath of office, gave no notice of meetings, and took no sworn testimony, they were held not arbitrators under the provisions of the Code but appraisers under the provisions of the contract. Agreement to renew lease, rent to be fixed by appraiaera. W^urster v. Arm- field, 175 N. T. 256, 67 N. B. 584. 5. Shutt v. Hebebrand [Neb.] 95 N. W. 785. Where parties were present by their coun- sel at the hearing it Is Immaterial that they had no notice of the meeting. Mississippi Cotton Oil Co. V. Buster [Miss.] 36 So. 146. Counsel appearing for a party has power to consent that the award as drawn up be put in proper form and afterward signed, and the fact that this was done does not show that the party whom he represented had no op- portunity to be present. Id. e. Plaintiff told arbitrator that he would not attend and did not want anything to do with it. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. 7. The umpire never attended. Vincent V. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. But under an agreement for appraisal of property by two referees w^ho upon dis- agreement were to choose a third and the finding of two of them to be final. It la auf- flcient If a third referee who is choaen to appraise certain articles only, and accepts the agreed appraisal of the original referees 3 Cur. Law. AEBITEATION AND AWAED § 5. 305 participation by the umpire must be objected to at the hearing.' The arbitrators are bound to hear all material testimony offered by the parties,' unless it appears to have been the intention that they act on their own knowledge.^" Equity will appraise property if arbitrators named in a contract fail to agree.^^ § 5. The award; requisites, validity and effect}^ — The award must conform to the submission and cover all matters submitted.** An award need not be signed by the arbitrators at the same time and place as found,** and is not void because an umpire signs as "arbitrator."*' The authority of arbitrators terminates with the time limit specified in the agreement.*' Enforcement of award}'' — An award which has been made a rule of court may be enforced by contempt proceedings, but a writ of fi. fa. sued out for that pur- pose, will upon motion be quashed.*' An agreement for arbitration will not be enforced at the instance of a party who willfully violates the contract.** A mutual submission is a sufficient consideration to support a note given in pursuance of the award.^' Review of award?''- — In the absence of statute there is no appeal."" Every reasonable presumption is in favor of an award.^' To justify setting it aside there must be misconduct or error prejudicial to the rights of the complaining party"* clearly proved,"' errors of judgment only not being sufficient."' After having accepted an award one cannot deny its effect as such,"^ nor can he after allowing entry of judgment assert that it should not have been made a rule of court."* as to the others, makes a finding with one of the others as to the value of the property, Ralston v. Ihmsen, 204 Pa. 588, 54 A. 365. 8. Mississippi Cotton Oil Co. v. Buster [Miss.] 36 So. 146. 9. Refusal to hear material evidence will be fatal to the award, but such evidence must be offered. Van Winkle v. Continental Fire Ins. Co. [W. Va.] 47 S. E. 82. A denial by arbitrators of the right of a party to appear before them and offer evidence makes their award voidable. Redner v. New York Plre Ins. Co. [Minn.] 99 N. W. 886. 10. Experienced builders and contractors selected as arbitrators to appraise the sound value and loss upon insured property need not take evidence. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. 11. Buildings left on land by tenant. Cooke V. Miller. 25 R. I. 92, 54 A. 927. 12. See I'Curr. I* 206. 13. Jensen v. Deep Creek Farm & Live Stock Co. [Utah] 74 P. 427. Appraisal of only part of property destroyed. Rutter & Hendrix v. Hanover Fire Ins. Co., 138 Ala. 202, 35 So. 33. Award of damages for erec- tion of dam held to cover future damages. King V. Fountain Water Co., 75 Conn. 621, 55 A. 10. 14. Mississippi Cotton Oil Co. v. Buster [Miss.] 36 So. 146. 15. It appeared from the award that he was umpire. Runyon v. Rutherford [W. Va.] 47 S. E. 150. 16. Jordan v. Lobe [Wash.] 74 P. 817. But the fact that an award Is made at a later date than that required In the agreement for arbitration does not Invalidate It If the agreement further provides for meetings to be held after the date set for making the award. Booye v. Muth, 69 N. J. Law, 266, 66 A. 287. 17. See 1 Curr. L. 207. 18. Booye v. Muth, 69 N. J. Law, 266, 66 A. 287. 10. WInsor v. German Sav. & L. Soc, 31 Wash'. 365, 72 P. 66. Before a party can claim any benefit under an award he must show compliance on his part. Royals v. Lacey [Tex. Civ. App.] 73 S. W. 1062. 20. Downing v. I^ee, 98 Mo. App. 604, 78 S. W. 721. 21. See 1 Curr. L. 207. 22. Wilbourn v. Hurt [Ala.] 36 So. 768. 23. Jensen v. Deep Creek Farm & Live Stock Co. [Utah] 74 P. 427. Where It was asserted that one arbitrator exerted influ- ence over the others evidence held Insuffi- cient. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 468. 24. Manson V. Wilcox, 140 Cal. 206, 73 P. 1004. Award of arbitrators obtained by fraud In the agreement to submit to arbi- trators. McCurdy v. Danlell [Mich.] 97 N. W. 52. An award Is final as to facts, except for corruption or partiality on the part of arbitrators, or fraud by a party. Booye v. Muth, 69 N. J. Law, 266, 66 A. 287. A stat- ute providing that an award shall be final when accepted by the court, by Implication gives court right to reject the same, but only when improper conduct of arbitrators Is shown. Judson v. United States [C. C. A.] 120 F. 637. By statute an award may be made a rule of court and can be attacked only on the ground of error, fraud, or col- lusion. Mock V. Bowman, 24 Ohio Ciro. R. 27. It has been Intimated that if an award Is sufficiently inadequate It may be set aside by the court. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 458. 25. 26. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 468; Van Winkle v. Con- tinental Fire Ins. Co. [W. Va.] 47 S. B. 82. ^. A person who gave his note for the amount awarded against him, cannot set up that the submission was to appraisement.. Downing v. Lee, 98 Mo. App. 604, 73 S. W. 721. Where an award has been agreed to and ac- cepted by the parties, judgment thereon is by 3 Curr. Law — 20 306 AEBITEATION AND AWAED § 6. 3 Cur. Law. Equity will not set aside an award where there is an adequate defense at law to an action on the award.^" An arbitrator cannot contradict an award he has signed." § 6. International disputes.^^ — In a controTcrsy between a foreign govern- ment and citizens of the United States an award signed by two of three members of a commission to arbitrate cannot be defeated because its commissioner resigned after the hearings were closed, where it was agreed that a majority vote should govern.' 7. Statutory ariitration letween employers and employes.* AKGXIMENT OF COUNSEL. { 1. lUelit of ATKameiit (306). § 2. Openine Statements (307). § 3. Kind, Extent, and Mode of Arsninent or Comment Daring Trial (307). 5 4. Bxcnses for Impropriety (311). § G. Objections and RnUngs (311). § 6. Action of Court or Counsel Curing Objection (312). § 1. Bight of argument.'* — The party having the burden of proof is entitled to open and close the argument,'' unless he waives his right by allowing the other party to put in evidence,'" or loses his right to close by the other party's making no reply.'' Where both are claimants, the matter rests in the sound discretion of the court,'* which will seldom be disturbed." The court, by rule, may limit the length of argument,*" or forbid an attorney who has been a witness from making the consent. McLeod v. '^•raham, 132 N. C. 473, 43 S. E. 935. 28. MoLeod V. Graham, 132 N. C. 473, 43 a R 935. 29. North Braddock Borough v. Corey, 205 Pa. 35, 54 A. 486. SO. Van Winkle v. Continental Fire Ins. Co. [W. Va.] 47 3. E. 82. It was proper to refuse a question to an arbitrator in im- peachment of his award. Mississippi Cotton on Co. V. Buster [Miss.] 36 So. 146. Admis- sions of an arbitrator which are made after an award filed are not competent to Impeach it. Manson v. Wilcox. 140 Cal. 206, 73 P. 1004. 31. See 1 Curr. L. 208. 82. Republic of Colombia v. Cauca Co., 190 U. S. 524, 23 S. Ct. 704, 47 Law. Bd. 1159. 33. See 1 Curr. L. 208. 34. See 1 Curr. L. 209. 35. In action on note where answer ad- mitted complaint but set up affirmative de- tenses, the defendant was entitled to open and close. Long & Allstatter Co. v. Barnes [Ind.] 69 N. E. 454. Under Iowa Code, § 3701, w^here the party having the burden of the issue has the right to the opening and closing argument, issues entirely un- supported by evidence, or established by evidence with no conflict, are not for jury, or to be considered in determining which party Is entitled to closing argument, but It would require a clear case of prejudice to warrant a reversal of error in awarding the right to open or close. Shaffer v. Des Moines Coal & Hay Co. [Iowa] 98 N. W. 111. Where defendant assumed affirmative and plaintiff put In no evidence, plaintiff cannot complain of refusal of right to open and close. Cable Co. v. Parantha, 118 Ga. 913, 45 S. B. 787 Where the answer admits the claim of the plaintiff, but sets up In one defense that nothing Is due, and In another, a novation, defendant Is entitled to the open- ing and closing of the argument, there being but the one issue. Gerlaugh v. Riley, 2 Ohio N. P. (N. S.) 107. Under Civ. Code Prac. § 526, the plaintiff has closing argument where the answer sets up affirmative de- fense on which Issue is joined. Muldoon v. Meriwether, 25 Ky. L. R. 2085, 79 S. W. 1183. Where plaintiff adduces testimony and rests and defendant calls no witnesses under rule 47, it is the right of plaintiff's counsel to sum up. De Maria v. Cramer [N. J. Err. & App.] 58 A. 341. 36. Though defendant's plea admitted plaintiff's prima facie case on a note, yet If he allows him to introduce evidence In support, without objection, defendant waives his right to open and close the argument. Northington v. Granade. 118 Ga. 584. 45 S. E. 447. 37. Where there were two counsel for plaintiff and one, after evidence is In. has begun the argument, and defendant states that he has no desire to reply, the othei has no right to close over objection of de- fendant. Hackney v. Delaware & A. Tele- graph & Telephone Co., 69 N. J. Law, 336, 55 A. 252. 38. In a contest between parties, each claiming as next of kin and heir of de- ceased, the position of the parties being analogous to that on a bill of interpleader, neither is entitled of right to open and close, but the matter rests in the sound discre- tion »f the court. Sorensen v. Sorensen [Neb.j 98 N. W. 837. 39. Not error to refuse to defendant the right to open and close, though he had filed the statutory admission. Guerguin v. Boone [Tex. Civ. App.] 77 S. W. 630. 40. Court rule providing that plaintiff, or defendant where he has the affirmative, may open and close and that the court may announce how much time will be allowed each side, the plaintiff having the right to apportion between opening and closing, pro- vided not more than one-half was used in 3 Cur. Law. AEGUMENT OF COUNSEL § 3. 307 argument,** or where it has come to a decision, it may forbid argument altogether,*^ and whether after argument by one party the other can cut off further argument by waiving his right is within the discretion of the court.*' § 2. Opening statements.** — In opening, counsel may state what he expects to prove,*' and the nature of the defense as it appears from the record,*' and though the testimony is subsequently rejected, there will be no error if he acted in good faith,*' or if the court cautions the jury that his statement is not evidence.** But the making of prejudicial statements as to matters which could not legally affect the liabilitj' of the parties,*" especially after an adverse ruling of the court, is liighly improper,"^" and may necessitate a new trial.'* The opening statement of counsel is not such an admission as will take the place of proof, and authorize a nonsuit."* § 3. Kind, extent, and mode of argument or comment during trial." — The object of the argument is to induce proper conclusions based upon the evidence, closing, was reasonable. Reagan v. St. Louis Transit Co. [Mo.] 79 S. "W. 435. 41. Court rule providing that attorney, who had been a witness, should not argue a case without permission, is not In conflict with 2 Ball. Ann. Codes & St. § 4993, subd. 5, which authorizes plaintiff or party hav- ing burden of proof to open and close the argument by himself, or counsel, as that right may be waived, and the rule was salutary to prevent confusion between an attorney's testimony and his argument. Voss v. Bender, 32 Wash. 566, 73 P. 697. . 42. Where a case is tried by the court and after the evidence is all in the court Is fully satisfied as to the weight of the evi- dence and the law applicable to it. It may decline to listen to argument of counsel, and on appeal, the question will not be on the right to argue, but whether the judg- ment was correct. Barnes v. Benham, 13 Okl. 582, 75 P. 1130. 43. Parties had agreed that defendant should have opening and closing after de- fendant opened; plaintiff waived his right, and further argument was not permitted. Henry v. Dussell [Neb.] 99 N. W. 484. 44. Bee 1 Curr. L. 209. 4B. Counsel stated that he ^ould prove a conspiracy between petitioner and a Cath- olic priest to get a will favorable to a Cath- olic Institution. O'Connell v. Dow, 182 Mass. 541, 66 N. B. 788. 46. Mulligan v. Smith [Colo.] 76 P. 1063. 47. Statement in opening, that defendant had cheated In another land deal, which was objected to and court warned jury that the case was to be tried on the evi- dence, was not improper, It being impossible to know In advance what testimony would be competent, and the court of necessity relying largely or. fairness of attorney. Miller v. .Tohn, 208 111. 173, 70 N. B. 27. Where coun- sel In opening stated his Intention to prove that defendant knew that other accidents had occurred at the same place, but the evi- dence was subsequently excluded by the court, it was not prejudicial error, especial- ly where made in good faith. Potter v. Cave [Iowa] 98 N. W. 569. Where plaintiff's counsel In an action for assault stated that he would prove that plaintiff was acquit- ted of the offense of provoking an as- .sault. but during trial was not allowed to show how the prosecution terminated, there was no error, as the opening statement was not evidence. Schmitz v. Kirchan, 32 Wash. 546. 73 P. 678. 48. Where, in opening, counsel stated that he would show that "attempts had been made, and witnesses spirited away," and on objection, court stated that unless he proved it he would instruct the Jury to disregard it, there was no error. Mulligan v. Metro- politan St. R. Co., 89 App. Dlv. 207, 85 N. Y. S. 791. 49. Where counsel in opening spoke of other accidents In defendant's quarry and in neighboring quarries, and stated that public policy demanded that juries assess full dam- nges, the court should have withdrawn the same from jury when objection was made. Perry. Matthews-Buskirk Stone Co. v. Wil- son, 160 Ind. 435, 67 N. B. 183. It was objec- tionable for plaintiff In opening to say that defendant had not only pursued plaintiff, but had "attempted to cast their mud and slime over the citizenship of Frio county." Inter- national, etc., R. Co. V. Mercer [Tex. Civ. App.] 78 S. W. 562. Where, in opening, counsel said "that defendant was a vulture preying upon people, and that he would not allow defendant to insure a dog for him." and objection was overruled, as there was only the single ques- tion of whether a notice was mailed, before the jury, the argument should have been suppressed, but judgment would not be re- versed therefor. Metropolitan Life Ins. Co. V. Bradley [Tex. Civ. App.] 79 S. W. 367. 50. Where counsel In opening stated that petitioner had been found guilty of various offenses and had been disbarred for them, after the court had ruled that the record of disbarment was Incompetent, it was highly improper, but did not as a matter of law en- title petitioner to a new trial. O'Connel) v. Dow, 182 Mass. 541, 66 N. B. 788. 51. Where plaintiff was injured by being pushed by a crowd under a street car, and her counsel In opening said he desired to show the conduct of similar crowds, and an objection thereto was sustained, a new trial was grant- ed where he persisted In the same line of argument, as the ruling, whether right or wrong, was the law of the trial. Batche- der V. Manchester St. Ry. [N. H.] 56 A. 752. 52. Fllllngham v. St. Louis Transit Co., 102 Mo. App. 573, 77 S. W. 314. 53. See 1 Curr. L. 209. 308 AEGUMENT OP COUNSEL § 3. 3 Cur. Law. and counsel may use his own system of reasoning,"* and must be allowed reason- able comment on the evidence and conduct of witnesses/" and indulge in oratorical flights in his endeavor to impress his views upon the jury, if he adhere to the evidence/" or he may prepare his argument beforehand, and read it."^ Use of pleading and other writings lelonging to case.^^ — Counsel may read to the jury special interrogatories"' or depositions,®" or pleadiags of the adverse party,"' or his own pleading, when there is a question as to his claim,"^ though the pleadings have not been put in evidence. But to misread purposely constitutes reversible error."' Statements of law and reading from decisions. "* — The reading of legal author- ities in the presence of the jury rests to a large extent in the discretion of the court." Even the erroneous statement of the law by counsel, if properly corrected,' may be harmless,"' but his reading and discussing the decision of the case on a former appeal,"' or the decision ia a similar case,"* unless it is read as an illus- tration, is reversible error."' 54. Counsel may advise jury as to find- ings as to special questions submitted to them. Chicago & A. R. Co. v. Gore, 105 111. App. 16. In bastardy proceedings, defend- ant Introduced photograph of the child; it was not error to allow opposing counsel to call attention to child itself, which was present in the court room. State v. Pat- terson [S. D.] 100 N. W. 162. In an action for false Imprisonment for detaining two days without a hearing for a crime which he confessed to having committed, severe criticism on part of defendant's counsel was justified. Friesenhan v. Maines [Mich.] 100 N. W. 172 65. Chicago City R. Co. v. Creech, 207 111. 400, 69 N. • B. 919. The reasonableness of which Is a matter for the discretion of the court. Id. 56. It is within the province of counsel to take a sympathetic view of his client's in- juries. St. Louis, etc., H. Co. v. Boback, 71 Ark. 427, 75 S. W. 473. 5T. Counsel may read as part of his ad- dress to the jury a version of the evidence prepared by himself, if it does not mis- represent the evidence. StuU v. Stull [Neb.] 96 N. W. 196. 68. See 1 Curr. L. 209. 59. Counsel may discuss the evidence In relation to them in his closing argument. Chicago & A. R. Co. v. Gore, 202 111. 188, 66 N. E. 1063. 60. Lake St. El. R. Co. v. Shaw, 203 111. 39, 67 N. B. 374. 61. Error to refuse to allow counsel In closing to refer to or read pleading of ad- versary, though not put in evidence, as such allegations were admissions of record and were binding. Field v. Surpless, 83 App. Dlv. 268, 82 N. T. S. 127. "Where defendant read plaintiff's petition to show a variance, and plaintiff rea,d a part of it to show that there w^as not, and then said that defendant had proved plaintiff's case by introducing the pe- tition, held no error to allow such argument. Louisville & N. R. Co. v. Mulflnger's Adm'x [Ky.) 80 S. W. 499. 62. In reply to argument of defendant as to plaintiff's claim, plaintiff's counsel read declaration on the point, and where jury were told the purpose w^as merely to show the extent of plaintiff's claim, there was no error. Metropolitan R. Co. v. Loud, 20 App. D. C. 330. Where defendant in closing re- marked that a certain claim made by plain- tiff was an afterthought and a great sur- prise to him, it was error to refuse to allow plaintiff's counsel to read a paragraph in the complaint making such a claim. Bee- croft V. New York Athletic Club, 89 App. Div. 524, 81 N. T. S. 1069. 63. Where attorney In closing argument purposely misread a deposition on a con- troverted point, his conduct was most repre- hensible and judgment would be reversed. Lake St. Elevated R. Co. v. Shaw, 203 111. 39, 67 N. E. 374. 64. See 1 Curr. L. 209. 65. Plaintiff's counsel in personal injury case was allowed to read in his argument in the presence of the Jury an extract from Wood on Railroads. Missouri, K. & T. R Co. v. Moody [Tex. Civ. App.] 79 S. W. 856; Post v. Leland, 184 Mass. 601, 69 N. E. 361. 66. In an action for injuries resulting from the defective filling of an excavation, where defendant's counsel In closing said that the concreting vras done by the city, so that its liability ceased. It was not er- roneous, as the statement of fact was sup- ported by the evidence, and the statement of law, if erroneous, must be deemed cor- rected by the Instructions. Leavitt v. New England Telephone & Telegraph Co. [N. H.] 56 A. 462. 67. Judgment was reversed where counsel was permitted to discuss before the jury the opinion on case in a former appeal, and to misconstrue It. Somes v. Ainsworth [Tex. Civ. App.] 75 S. W. 839. 68. It was error to permit counsel In ar- gument to quote the facts, and comment and quote the opinion of the supreme court In a similar case. Matthews v. Thatcher [Tex. Civ. App.] 76 S. W. 61. 69. In an action for libel against a com- mercial agency where plaintiff's counsel read in closing argument an article from a maga- zine (opinion of supreme court of Michigan) on the abuses of commercial agencies, but without stating that it was a judicial opin- ion. It was not prejudicial, being used solely for argument and Illustration. Minter v. Bradstreet Co.. 174 Mo. 444, 73 S. W. 668 3 Cur. Law. AEGUMENT OP COUNSEL § 3. 309 Comments on witnesses.'"' — Counsel in argument may make reasonable com- ments upon the evidence and the conduct/^ and upon the absence of," or objec- tion to,^» witnesses, unless privileged," and the court will not scrutinize with great nicety the logical force of the argument,'"' but it will not allow opprobrious epi- thets,^' or facts which are not in evidence, to be used." Inferences.''^ — Counsel are allowed a wide latitude in making inferences, as that their client is being persecuted in a second proceeding,^' or that there was bad faith in purchasing without inquiry,'" but no inferences are allowed to be made on the exclusion of evidence.*^ Appeals to passion, prejudice, and sympathy.^^ — Explanatory remarks, though containing an appeal to one's sympathy, are proper;*' but irrelevant remarks, de- signed to prejudice jury,'* or an attack on defendant's method of trying the case," or an unfair challenge to produce evidence,'" or the decl5,ration that interrogatories were entangling,'' or that defendant was a large corporation" and would not be 70. See 1 Curr. L.. 210. 71. Chicago City Ry. Co. v. Creech, 207 111. 400, 69 N. B. 919. 72. Attorneys may comment on the non- production of witnesses where they are shown to be cognizant of the facts in issue, it being a mere matter of argument. Chi- cago, B. & Q. R. Co. V. Krayenbuhl [Neb.] 98 N. "W. 44. 73. "Where plaintiff In testimony had stated what his wife had said on various occasions. It was not error for defendant to offer her as witness, as plaintiff might have waived the privilege, and it was competent •for Jury to know of plaintiff's refusal. Zim- merman V. "Whiteley [Mich.] 95 N. W. 989. 74. It was error for defendant's counsel to comment on absence of plaintiff and his failure to testify In his suit against an executrix, where N. H. Pub. St. 1901, c. 224, 5 16, provides that in such eases neither party shall testify unless the executor elects so to testify. "Wright V. Davis [N. H.] 57 A. 335. 75. Comments on the readiness of wit- nesses to testify without being summoned was allowable. Sylvester v. State, 111 Fla. 416, 35 So. 142. 76. "Where counsel called witnesses of the adverse party "cattle," it was highly Im- proper, but not pre.iudicial error when re- tracted. Leslie V. Jaclsson & S. Traction Co. [Mich.] 96 N. "W. 580. 77. In an action against a railroad where plaintiff's counsel In argument stated that defendant's employes would have lost their Job if they had not testified as they did, it was error to refuse to sustain an objection, as there was no evidence of the fact, but on all of the evidence the Judgment was affirmed. St. Louis, etc., R. Co. v. Eobaclc. 71 Ark. 427, 76 S. "W. 473. "Where counsel indulged in improper criticisms of witness, and de- tailed an event connected with witness not in record, it was held not to have Influenced verdict. ' City of Owensboro v. Knox's Adm'r, 25 Ky. L. R. 680, 76 S. "W. 191. 78. See 1 Curr. L. 210. 79. "Where a plaintiff, who had been prosecuted for murder on account of the death of a guest in a flre in his hotel, sued an insurance company for the loss on ac- count of the flre, the statement of counseT that he believed that the company had some- tliinsr to do with hounding him to the bar of Justice, while perhaps the evidence did not Justify the inference, was not prejudicial. Hartley v. Pennsylvania Fire Ins. Co. [Minn.] 98 N. "W. 198. 80. In replevin, where claimants asserted that they purchased in good faith the prop- erty from one holding a railroad shipping receipt, it was not objectionable for oppos- ing counsel to argue that they acted in bad faith because they made no effort to com- municate with the person to whom the re- ceipt was issued. Hart v. Boston & M. R. R. [N. H.] 56 A. 920. 81. Arguing to Jury that objections made to the admission of evidence were a prac- tical admission that the facts to which it referred were true was most reprehensible and can only be cured by a reversal. Pot- ter v. Cave [Iowa] 98 N. "W. 569. 82. See 1 Curr. L. 212. 83. "Where attorney in argument said "It was necessary to introduce this cap, not for the purpose of wringing a heart-rending cry from the mother, as stated by you, but for the purpose of showing the blood on the inside of it," there was nothing improper, as the cap was in evidence. Board of In- ternal Imp. for Lincoln County v. Moore's Adm'r, 25 Ky. L. R. 15, 74 S. W. 683. "Where a married woman was run down in the street by a bicycle, it was not error for counsel to ask the Jury how much they would take to have their wives run down and made a spectacle of. Adams Exp. Co. v. Aldridge [Colo. App.] 77 P. 6. 84. "Ward V. Reed [Mich.] 96 N. "W. 438. Reaffirming objectionable language after be- ing told by the court to desist, and referring to matters not connected with the trial. Belcher v. Ballou [Iowa] 100 N. "W. 474. 85. "Where counsel in closing devoted his remarks largely to an attack on defendant and its manner of conducting its defense and objecting to testimony, it wa,s improper, but did not warrant a reversal where court sustained an objection to the remarks. Pitts- burgh, C, C. & St. L. R. Co. v. Klnnare, 203 111. 388, 67 N. E. 826. 86. It was prejudicial error for plaintiff in closing argument in personal injury case to challenge defendant to make experiments in stopping oars, when defendant had no right to offer further evidence. Little v. Boston & M. R. R. [N. H.] 56 A. 190. 87. "Where attorney in closing said "These 310 ARGUMENT OF COUNSEL § 3. 3 Cur. Law. hurt," as it had made provision for accidents,"" and should be compelled to be- have." Matters outside of issues."^ — Attempts to influence jury by stating the source of the court's instructions,"* or the effect of a verdict on the parties in another action,'* or an admission of the ■ other party,"* or that- the defendant had done some other vrrong,"" are prejudicial, and the statement that an insurance company was the real defendant will entitle the defendant to a new trial."' Matters not in evidence."^ — To refer to a compromise, or former verdict,"" or the value of plaintiff's services, or the facts of another case,^ or to the prejudice existing in a community," or to charge a party with cheating the public,* or a wit- ness with a crime,* or to state the contents of a letter which the counsel is attempt- interrogatories have been pflt to you by the defendant for the purpose of entangling you," but the court on objection warned the Jury to disregard, there was a fair trial. South- ern Indiana R. Co. v. Davis [Ind. App.] 69 N. B. 550. 88. Repeated appeals to jury to consider that defendant was a large corporation, and that the money "would come from them and not out of anybody else's pocket were Im- proper. Johnson v. Detroit & M. R. ' Go. [Mich.] 97 N. W. 760. Where counsel re- ferred to a request of the opposing counsel to take the case from the jury, and stated that the opposing party was a great cor- poration who v/ouia resort to perjury to maintain its cause. Hillman v. Detroit Unit- ed R. [Midi.] 100 N. TV. 399. 89. In closing, plaintlfC'a counsel said "I Just want to say to you, you don't have to worry much about the verdict against [de- fendant]" which was not prejudicial, though the court had excluded a question as to whether defendant was protected by em- ployeis' liability Insurance. Burgess v. Stowe [Mich.] 96 N. V7. 29. 90. Where, in closing, plaintiff's counsel in a personal injury case stated the value of plaintiff's services, and the facts as to an- other case, of both of which there was no evidence, and after being corrected by the court, stated that defendant expected these accidents and made provisions for them, the judgment was affirmed with reluctance, as the statements were designedly made to in- fluence the jury, but the court instructed the jury to disregard them. Sweeney v. New York Cent, etc., R. Co., 83 App. Div. 565, 81 N. T. S. 1112. 91. Counsel's advising jury that they should by their verdict compel corporations to exercise care towards their employes was Improper, but in view of the verdict had had no influence. Houston Blec. Co. v. Robinson [Tex. Civ. App.] 76 S. W. 209. 92. See 1 Curr. L,. 211. 93. Where counsel in closing stated that he would submit no Instructions, but that the instructions which would be read would be those of the other side, it was unneces- sary, though true, and where court directed him to oonflne his argument to the facts in the record, there was no injury suffered. Illinois Cent. R. Co. v. Leiner, 202 111. 624. 67 N. E. 398. 94. Where jury asked if plaintiff would be barred In equity, if they found for defend- ant, the request of plaintiff's counsel in jury's presence, for a charge that it would be a bar. though most extraordinary, was not ground for new trial. Benton v. Hunter, 119 Ga. 381, 46 S. B. 414. 03. Remark of plaintiff's counsel that de- fendant's counsel had said plaintitt had a good case was improper. Witzel v. Zuel, 90 Minn. 340, 96 N. W. 1124: 96. In an action by a physician to recover from a railroad for services rendered at a wreck. It was prejudicial for plaintiff's coun- sel in his argument to say that defendant had blundered. McKnight v. Detroit & M. R. Co. [Mich.] 97 N. W. 772. 97. Where plaintiff's counsel In examining jurors asked if they were interested In a certain insurance company, and then stated that he believed that that company was de- fending the case, and an objection was over- ruled, as court stated plaintiff had a right to And this out, a new trial was ordered, as it was prejudicial, as such fact was entire- ly immaterial to any issue. Llpschutz v. Ross, 84 N. T. S. 632. But compare Burgess V. Stowe [Mich.] 96 N. W. 29. 98. See 1 Curr. L. 211. 99. Where plaintiff's evidence of a com- promise was refused. It was reversible er- ror for his counsel to refer to such com- promise in his argument, and to the fact that the two former verdicts were in plain- tiff's favor. Chownlng v. Parker [Mo. App.] 78 S. W. 677. A remark, in closing, that an- other court had passed on the facts and rendered judgment for plaintiff, was re- versible error. Underwriters' Fire Ass'n v. Henry [Tex. Civ. App.] 79 S. W. 1072. 1. Sweeney v. New York Cent., etc., R. Co., 83 App. Div. 565, 81 N. Y. S. 1112. 2. In an action against a town, it was improper for plaintiff's counsel to say in argument "Doubtless, gentlemen, you know that you cannot get in trouble any quicker than to go to a little town and say some- thing against the condition of the town to some of the clfy offlclals." Davis v. Alex- ander City, 137 Ala. 206, 33 So. 863. 3. Where the indorsee of a note, given in a horse trade, sued the makers, and the defense was that the Indorser had cheated the makers, and that plaintiff was not a bona fide purchaser. It was permissible for counsel to refer to the parties as "horse jockeys," but not to say that they were the men "who had foisted upon the innocent public the notorious horse, Magnet," where there was no evidence as to this. Hallock V. Young [N. H.] 57 A. 236. 4. Where counsel animadverted upon ve- racity of defendant as a witness and insinu- ated that he kept an unlawful resort of which there was no evidence, it was error 3 Cur. Law. AEGTJMENT OF COUNSEL § 5. 311 ing to introduce," or comment on the retention in their employ of a servant whose negligence had caused the injury,' in the presence of the jury, is not allowable where there is no evidence as to such matters, or to pass remarks tending to con- vey an erroneous impression,' is improper. Remarks during the trial.' — Exclamations over a witness' reply,* or preju- dicial remarks^" made during trial, may be error ; but offers to show that a witness had wrecked the companies he was connected with,*^ or to allow jury to take out certain papers,^* were allowable. An admission made during trial may not be binding where the other party is not prejudiced.^' § 4. Exciises for impropriety.'^* — The plea of inadvertence ought not to be received either as excuse or palliation.^" A party whose counsel provoked the improper remarks cannot complain.^® § 5. Objections and rulings.'^'' — Improper argument must be objected to,^' and the rulings of the court, excepted to, at the time,^' in order to be reviewed. The decision of the trial cour*- on motion for new trial wiU be final,^" unless preju- dice clearly appeals.'* for the court on objection not to caution counsel and warn jury. Fisher v. Wein- holzer tMinn.] 97 N. "W. 426. 5. Though counsel in arguing' the ad- missibility of a certain letter, which was actually incompetent, stated Its contents before the Jury, there was no reversal, as the court properly warned the jury, and the verdict was Justified by the evidence. Con- nolly V. Brooklyn Heights R. Co., 86 App. Div. 245, 83 N. Y. S. 833. e. Hinchman v. Pere Marquette R. Co. [Mich.] 99 N. W. 277. 7. That an inspection would show that a horse was not vicious, the jury not having inspected the horse. Hinchman v. Pere Mar- quette R. Co. [Mich.] 99 N. W. 277. 8. See 1 Curr, L. 212. 9. Any prejudice from counsel's saying "The idea that a man has owned a farm thirty years, and he does not know how many acres there is," was removed by de- fendant explaining that It bordered on a lake and was fractional. Gould v. Gregory [Mich.] 95 N. W. 414. 10. Where defendant asked plaintiff's at- torney to admit that the conductor was killed In the same accident and plaintiff's attorney replied "There is no question about that, and it Is a fact the railroad settled with the widow afterward," it was prejudi- cial. Greenfield v. Detroit & M. R. Co. [Mich.] 95 N. W. 546. 11. Where, on cross-examination of an expert after objection to his being asked what had become of an institution where he got his experience, counsel offered to show that the company was wrecked by his man- agement, and so of every one with which he had been connected, It was not cause for reversal. Allington & Curtis Mfg. Co. V. Detroit Reduction Co. [Mich.] 95 N. W. 552. IS. An offer to court to allow jury to take certain papers In evidence out with them not cause for reversal, when court below did not regard it as prejudicial, and it vraa apparently made in good faith. Raw- lings V. Anheuser-Busch Brewing Aas'n [Neb.] 95 N. W. 792. 13. Where plaintiff's counsel In reply to question admitted complaint contained no allegation of actual damage, though such question was raised by pleading and the evidence, he was not estopped where de- fendant had not been misled. Steedman v. South Carolina & G. E. R. Co., 66 S. C. 542, 45 S. B. 84. 14. See 1 Curr. L. 213. 15. "After instilling the poison, the wrong is not undone by an empty apology." Chew- ing V. Parker [Mo. App.] 78 S. W. 677. But compare Sweeney v. New York Cent., etc., R. Co., 83 App. Div. 665, 81 N. Y. S. 1112. where a new trial was refused. 16. Where plaintiff's counsel had re- marked that plaintiff, who conducted a pri- vate lying-in hospital, was engaged In the same business churches were, plaintiff can- not complain because defendant's counsel characterized this as vile and saereligious and intimated that such places were respon- sible for abortions and murders. Sterling V. Detroit [Mich.] 95 N. W. 986. 17. See 1 Curr. L. 213, and see Saving Questions for Review, 2 Curr. L. 1590. 18. Jenkins v. Chism, 25 Ky. I* R. 736, 76 S. W. 405. Where language of counsel was first called to attention of court by affidavits on motion for ne-ir trial, and no objection taken, or ruling obtained at the time, there is nothing to review. Chicago, etc., R. Co. V. Krayenbuhl [Neb.] 98 N. W. 44. Where plaintiff's counsel in closing In- dulges in false argument, it is the duty of the court at request of defendant to instruct the Jury In reference thereto. Drumm-Flato Commission Co. v. Gerlach Bank [Mo. App.] 81 S. W. 503. 19. Where, on appellant's objection, the court ruled certain remarks Improper and instructed jury to disregard them, and ap- pellant did not except to ruling, lie cannot complain because of remarks. Internation- al & G. N. R. Co. V. Mercer [Tex. Civ. App.] 78 S. W. 562. It is sufllolent diligence that objection is made and exception taken with- out interrupting the argument. Texas Cent. R. Co. V. Pledger [Tex. Civ. App.] 81 S. W. 756. ao. Objectionable remarks by counsel are for the consideration of the trial court on motion for new trial, and could not be so prejudicial as to constitute reversible error. 313 AEGUMEFT OF COUNSEL § 6. 3 Cur. Law. § 6. Action of court or counsel curing ohjection}^ — The error in the use of objectionable language by counsel may be cured by his withdrawal of it/' and by the action of the court,"* where the rebuke and warning to disregard is prompt,"" and the verdict not unjust,"" as the jury will not be presumed to have disregarded the warning,"' unless it was not sufficiently pointed;"' but improper argument is not cured by an instruction to disregard it,"' nor by the action of the court in admonishing counsel.'" ABKEST ANB BINDING OVER. § 1. Occasion or Necessity for Warrant (312). § 2. Privilege from Arrest (314), § 3. Complaint, Afltdavit, or Information to Procure Warrant (314). S 4. The "Warrant and Its Issuance (315). § 5. Making Arrest and Keeping and Dis- position of Prisoner (310). § 6. PrellmlnarT' Hearing, Binding OTer, or Discharge (317). % 7. Custody Awaiting Indictment or Trial (318). § 1. Occasion or necessity for warrant.^''- — In the absence of an empowering statute peace officers have no authority to arrest for a misdemeanor without process, James McNeil & Bro. Co. v. Crucible Steel Co., 207 Pa. 493, 56 A. 1067. 21. Streeter v. City of Marshalltown [Iowa] 99 N. W. 114. 22. See 1 Curr. L. 213. 23. Leslie v. Jackson & S. Traction Co. [Mich.] 96 N. W. 580. Where counsel with- drew prejudicial remark and the court in- structed the jury that it was improper, there was no prejudicial error. McKnight V. Detroit & M. B. Co. [Mich.] 97 N. W. 772. A remark that "The railroads had well nigh corrupted the virtue of the country" was not reversible error, where the court told counsel that the remark was improper and counsel withdrew it. International & G. N. R. Co. V. Reeves [Tex. Civ. App.] 79 S. W. 1099. 24. Sweeney v. New York Cent., etc., R. Co., 83 App. Div. 565, 81 N. T. S. 1112; In- ternational, etc., B, Co. V. Mercer [Tex. Civ. App.] 78 S. W. 562. Though a new trial was demanded. Southern Indiana B. Co. v. Davis [Ind. App.] 69 N. B. 550. Where attention of the court was called, argument not supr ported by the evidence, and the jury was told to disregard such improper statement. Weeks v. Scharer [C. C. A.] 129 F. 333. Im- mediate objection, and jury promptly told to disregard, nothing prejudicial said. Nc error. Chicago, etc., R. Co. v. Zapp, 209 III. 339, 70 N. B. 623. Exception to objectionable remarks made during examination of wit- nesses was promptly sustained and the jury directed to disregard them. Thompson v. Purdy [Or.] 77 P. 113. 25. Where, after an improper remark, judge Immediately censured attorney and instructed jury to disregard, the judgment will not be reversed therefor. Greenfield v. Detroit & M. R. Co. [Mich.] 95 N. W. 546. When counsel In their zeal depart from the record, a sharp and prompt rebuke from the judge will ordinarily cure the error. Brown v. Sliver [Neb.] 96 N. W. 281. Where counsel asked improper question to show why a witness was not present, the error was cor- rected where court instructed jury not to consider anything as to witness' presence or absence. International & G. N. R. Co. v. Anchonda [Tex. Civ. App.] 75 S. W. 557. 26. Connolly v. Brooklyn Heights R. Co., 86 App. Div, 245, 83 N. T. S. 833. 27. Where plaintiffs counsel remarked that defendant's counsel had said plaintiff had a good case, but the court immediately rebuked the counsel and instructed the jury to disregard them, the court will not pre- sume that the Jury disregarded the instruc- tions. Witzel V. Zuel, 90 Minn. 340, 96 N. W. 1124. 28. Where counsel in an action against a railroad stated that "there never was a railroad company sued, but what it made out a perfect defense," though he withdrew it on court's stating it improper, there was prejudicial error, as the rebuke was not sufficiently pointed. Chicago, R. I. & T. R. Co. V. Musick [Tex. Civ. App.] 76 S. W. 219. The court must use sufficiently emphatic language to destroy any impressions result- ing. Leu V. St. Louis Transit Co. [Mo. App.] 80 S. W. 273. 29. Inflammatory and damaging state- ments not found In the evidence. Benolt v. New York & H. R. R. Co., 87 N. Y. S. 951. 30. Hillman V. Detroit United R. [Mich.] 100 N. W. 399. 31. Note. An officer acting in good faith and In obedience to a warrant apparently regular Is not liable for false imprisonment (Pepper v. Mayes, 81 Ky. 674; Henke v. Mc- Cord, 55 Iowa, 378, 7 N. W. 623; Manlgold V. Thorpe, 33 N. J. Law, 138; Leib v. Shelby Iron Co., 97 Ala. 626, 12 So. 67; Atwater v. Atwater, 43 Neb. 147, 61 N. W. 677; Brooks V. Mangen, 86 Mich. 576, 49 N. W. 633; Clarke v. May, 2 Gray [Mass.] 413; Whitten V. Bennett, 86 F. 405; Henry v. Lowell, 16 Barb. [N. Y.] 268), or if it is irregular onlv and not void (Welch v. Scott, 27 N. C. [5 Ired.]'72; Ressler v. Peits, 86 111. 275; Cow- dery v. Johnson, 60 Vt. 595, 15 A. 188; other- wise where the warrant is void (Prayer v. Turner, 76 Wis. 562, 45 N. W^. 411; Forbes V. Hicks, 27 Neb. Ill, 42 N. W. 898; Batchel- der V. Currier, 45 N. H. 460; Poulk v. Sel- varne, 3 Blackf. [U. S.] 421; Savacool v. Boughton, 5 Wend. [N. Y.] 170) ; also where the court had no jurisdiction to issue the warrant (Moore v. Watts, 1 111. 18; Pearce V. Atwood, 13 Mass. 324), but in Stewart v. Hawley, 21 Wend. [N. Y.] 552, it was held that this fact must appear from the face of the warrant. The officer is also liable where he arrests one exempt from arrest. Hough- 3 Cur. Law. AEEEST AND BINDING OVBE § 1. 313 except on view, and where the offense amounts to a breach of the peace,'* in which case it is his duty to arrest without a warrant.*" In Kentucky, a peace officer's jurisdiction is not confined to the district which elected him,'* but Texas statute giving peace officers authority to arrest without a warrant does not apply to magis- trates,'" who should, however, institute proceedings for the arrest." He may arrest without a warrant for a felony." New process is not necessary to retake a prisoner illegally discharged," nor where one in the custody of an officer pleads to the infor- mation.'" A Georgia statute permits an arrest without process if there is liable to be a failure of justice for want of an officer to issue a warrant.*" The question of arrest without a warrant must be properly raised,** in which case the burden is upon "-be officer to show reasonable and probable srrounds for so acting.*" ton V. Wilson, 10 Gray [Mass.] 365; Davis V. Rowe, 118 N. T. 55, 23 N. E. 166. In Cabell V. Arnold, 86 Tex. 102, 23 S. W. 645, It was held that an ofBcer was not liable who arrested one without having the war- rant in his hands. Taylor v. Strong, 3 Wend. [N. T.] 384. Contra, Smith v. Clark, 53 N. J. Law, 197, 21 A. 491. He may arrest for a felony without a warrant. Samuel v. Payne, 1 Doug. tMlch.] 359; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Kirk V. Garrett, 84 Md. 388, 35 A. 1089; Wade v. Chaffee, 8 R. I. 224. Or for a breach of peace "on view." Vandeveer v. Matlocks, 3 Ind. 479; Montgomery v. Sutten, 67 Iowa, 497, 25 N. W. 748. Otherwise for a breach of peace not "on view." . Stlttgen v. Rundel, 99 Wis. 78, 74 N. W. B36; Hall v. O'Malley, 49 Tex. 70; Qulnn v. Helsel, 40 Mich. 576. Unless authorized by statute. Ford v. Breen, 173 Mass. 52, 53 N. B. 136; Sheets v. Ather- ton, 67 Vt. 229, 19 A. 926. An ofHoer failing to take the prisoner before a magistrate within a reasonable time is liable. Harris V. Atlanta, 62 Ga. 291; Cochran v. Toher, 14 Minn. 293; Pratt v. Hill, 16 -Barb. [N. T.] 303; Hynes v. Jungren, 8 Kan. 391; Newby V. Gunn, 74 Tex. 455, 12 S. W. 67; Tubbs v. Tukey, 3 Cush. [Mass.] 438; Burke v. Bell, 36 Me. 317. A warrant describing one by a fictitious name will not enable the officer executing the same to Justify the arrest. Harwood v. Siphers, 70 Me. 464; Mead v. Hows, 7 Cow. [N. T.] 332; Williams v. Tld- ball [Ariz.] 8 P. 351. And If an ofllcer ar- rests the wrong person he will be liable. Filer V. Smith, 96 Mich. 347, 55 N. W. 999; Formwalt v. Hylton, 6« Tex. 288, 1 S. W. 376; Holmes v. Blyler, 80 Iowa, 365, 45 N. W. 756. Or If he arrest the right person under a wrong name. Gurnsey v. Lovell, 9 Wend. [N. T.] 319; West v. Cabel, 153 U. S. 78, 14 S. Ct. 752. An arrest cannot be made for one purpose and justified for an- other. Malcolmson v. Gibbons, 56 Mich. 459, 23 N. W. 166; Boaz V. Tate, 43 Ind. 60; Snead v. Bonnoil, 49 App. DIv. 330, 63 N. T. S. 553; El well v. Reynolds, 6 Kan. App. 545, 51 P. 578; Leger v. W^arren, 62 Ohio, 500, 57 N. E. 506, and note 51 U R. A. 193. See 1 Curr. L. 214. 32. State V. Dierker, 101 Mo. App. 636, 74 S. W. 153; Ex parte Richards [Tex. Cr. App.] 72 S. W. 838; Kossouf V. Knarr, 206 Pa. 14G, 55 A. 854. Defendant arrested without war- rant, for carrying concealed weapons. Jones V. Annlston, 188 Ala. 199, 35 So. 112. A city charter may authorize arrest without a. warrant for a violation of Its ordinances in the presence of an officer. Vann v. State [Tex. Cr. App.] 77 S. W. 813. A warrant is not necessary if an offense Is committed in the officer's presence, for which ha might arrest with a warrant If committed Tirlthout his view. McCaffrey v. Thomas [Del. Super.] 56 A. 382; Marshall v. Cleaver [Del. Super.] 56 A. 380. 83. Ky. St. 1903, § 1347. Making it an offense to discharge firearms In a town. Hendrlckson v. Com. [Ky.] 81 S. W. 266. 84. In Kentucky a city marshal may ar- rest at any place within the county in which his city is located. Cr. Code, § 26, names city marshals as peace officers, and, § 36, au- thorizes them to arrest without a warrant for offenses comriiitted in their presence. Helm V. Com. [Ky.] 81 S. W. 270. 35. Pen. Code, 1895, art. 324, authorizing arrest where officer knows one is carrying a pistol. Morawletz v. State [Tex. Cr. App.] 80 S. W. 997. •36. Code Cr. Proo. 1895, art. 941, provid- ing that if a Justice knows a person is carry- ing a pistol he shall summon witness, and if It appears that the offense Is being com- mitted, shall Issue a warrant. Morawietz V. State [Tex. Cr. App.] 80 S. W. 997. 37. Gen. St. 1894, § 1252 and § 7120. State V. Leindecker [Minn.] 97 N. W. 972. A peace officer may arrest without a warrant when- ever he has reasonable grounds to suspect that a felony has been committed and It is wholly immaterial whether the suspicion arises out of information Imparted to the officer by some one else, or whether It Is founded on his own knowledge. Brish v. Carter [Md.] 57 A. 210. 88. Upon an Informal order of the county commissioners the sheriff released a prisoner who was retaken by the sheriff succeeding to office. In re Troy, 67 Kan. 1S6, 72 P. 531. SO. Even thoiigh such custody be improp- er. State V. Melvern, 32 Wash. 7, 72 P. 489. 40. Pen. Code 1895, § 896. Franklin v. Amerson, 118 Ga. 860, 45 S. B. 698. 41. One convicted of drunkenness sought a reversal because of insufficiency of the evidence to sustain the verdict, and on such proceeding raised objection that the arrest was made without a warrant. Held, that inasmuch as the defendant was regularly before the court to answer a complaint duly made and received, It was Immaterial on the question of guilt whether the arrest was legal or illegal, or whether defendant was arrested at all, before complaint made. Com. V. Conlln, 184 Mass. 195, 68 N. B. 207. 42. McCaffrey v. Thomas [DeL Super.] 314 AEEEST AND BINDING OVEE § 3. 3 GwT. Law. Under certain conditions a person may be arrested for trial in another dis- trict." A private person** has no authority to arrest for a misdemeanor unless the offense is committed in his presence or within his immediate knowledge,^' but if the offense is a felony and the offender is attempting to escape, a private person may arrest upon reasonable and probable grounds of suspicion.*" § 2. Privilege from arrest." — One is not subject to a second arrest while in the custody of the court,*' whether the custody be actual or the accused be out on bail."" § 3. Complaintj affidavit, or information, to procure warrant.^" — In Idaho the inquisition of a coroner is not sufficient basis for an information,"^ though it was at common law."^ There must be strict compliance with a statute requiring the affidavit for a criminal complaint to state a probable cause for the belief of the affiant,"' and it must sufficiently acquaint the accused with the offense charged;"* but the same strictness requiro'I of indictments is not necessary.^" In Alabama the affidavit may be amended."" The information must show that a crime has been committed and the probable guilt of the accused,"' but if based upon the same transaction it need not charge the same precise offense named in the original warrant of arrest."^ Where an accxTsed is committed for a certain offense, an information cannot be filed against 56 A. 382; Marshall v. Cleaver [Del. Super.] 56 A. 3S0. 43. (1) Where an indictment has been found against him in such other district. (2) Where he has been held over for trial by the committing: magistrate in such other district. (3) Where a bench warrant has been issued for him. (4) Where a verified complaint has been made before a proper ofl^cer in such other district. (5) Where such verified complaint is made before such officer of the district where the accused may be. U. S. v. Yarborough, 122 F. 293. 44. See 1 Curr. L. 214. 45. Pen. Code 1895, § 900. Franklin v. Amerson, 118 Ga. 860. 45 S. E. 698. 46. Pen. Code 1895, § 900. Franklin v. Amerson, 118 Ga. 860, 45 S. B. 698. 47. See 1 Curr. L. 215. 48. A court which has in its custody a person charged with a crime has exclusive custody and jurisdiction until the question of his guilt or innocence is determined, and if he is found guilty, until the imprisonment has expired. In re Beavers, 125 F. 988. 49. When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. In re Beavers, 125 F. 9S8. Comp. Laws, § 1117, providing that ofllcers of courts shall be liable to arrest except during sitting of the court, does not permit counsel who has given bail for liberty of jail limits to go beyond the limits on professional business before the sitting of the court. Hughes v. Hally [Mich.] 100 N. W. 591. 50. See 1 Curr. L, 215. 51. 52. In re Sly [Idaho] 76 P. 766. 53. That affiant "has reason to believe and does believe" that an offense has been committed Is not equivalent to an affirma- tion of the existence of a probable cause for believing. Streater v. State, 137 Ala. 93 34 So. 395; Sims v. State, 137 Ala. 79, 34 So. 400. An affidavit defective in this respect does not authorize the issuance of a war- rant, does not support a conviction and no valid judgment can be rendered upon It. Monroe v. State, 137 Ala. 88, 34 So. 382. Code Cr. Proc. § 177. Affidavit of an officer mak- ing an arrest without a warrant from the fact that the accused was charged by a bank cashier with committing a larceny held Insufficient. People v. Crane, 88 N. Y. S. 843. 54. Spraggins v. State [Ala.] S5 So. 1000. . Designation by number of the statute al- leged to have been violated is sufficient. State V. Marmouget, 110 La. 191, 34 So. 40S. T>S. Spraggins v. State [Ala.] 35 So. 1000. 56. In prosecutions begun by affidavit it is not error per se for the court to allow the affidavit to be amended so as to perfect it or meet any supposed defects. Wright v. State, 136 Ala. 139, 34 So. 233. 5T. People v. Mayer, 41 Misc. 368, 84 N. Y. S. 817. Affidavit for arrest for drawing a check on a bank in which one had no funds; It did not appear that there were no funds when the check was presented, nor did It appear where the transaction took place, or that there was a. statute In that state making It a crime. Brown v. Cole- man, 89 N. Y. S. 427. 58. People v. Stockwell [Mich.] 97 N. W. 765. An Information charging one with em- bezzling money of a certain company, re- ceived by him as its agent, is not a depart- ure from the original complaint under which he was committed, charging him with em- bezzling money intrusted to him as bailee. People v. Walker [Cal.] 77 P. 705. An af- fidavit for a prosecution for selling intox- icating liquor charging three separate sales, Is In legal effect a charge of a first offense, and did not entitle accused to a trial by jury as no Imprisonment could be Imposed as sentence. Carey v. State [Ohio] 70 N. E. 955. 3 Cur. Law. AEREST AND BINDING OVER § 4. 31S him for a different ofEense."*" A deposition setting forth the adoption of a resolu- tion by a town board prohibiting the hawking of goods without a license, on which a warrant is based, need not set forth in full the resolution."" An information is sufficient basis for extradition.'* In the prosecution of a corporation a preliminary complaint is not necessary.*^ § 4. The warrant and its issvance.^^ — ^A warrant must be supported by oath or affirmation,'* and be fair upon its face, to be a protection to the officer serving it;'" it must be sufficiently definite in the description of the ofEense," though it may be amended in this respect;*" and will not be held void because of a clerical error.*' A warrant "particularly describes" a person though the initial letter of the middle name is omitted,'" or only the initial letter of the first name is used,''" and whether a warrant sufficiently describes a person is a question of law.'* The governor's warrant is sufficient, where the accused is a fugitive from the state.''* A United States conamissioner may issue a warrant for the arrest of a person in his district for an offense committed in Indian Territory against the laws of the United States,'^ and it is preferable that the application for warrant be made to the nearest commissioner.''* Probable cause must be shown for the issue of a warrant for removal,'" but an indictment is sufficient," and the commissioner should consider whether the indictment or complaint alleges an offense against the United States;" such a warrant may not be issued except where an offender has been committed in a dis- trict other than that where the offense is to be tried." In Texas before a warrant can be executed in another county than that of the issuing magistrate, it must be indorsed by a magistrate of such other county," 59. A justice committed one for assault with a deadly weapon. The prosecuting at- torney filed his Information charging him with assault with a deadly weapon with in- tent to kill [Code, §§ 872, 809]. People v. Noglrl [Cal.] 76 P. 490. 60. Gilbert v. Satterlee, 88 N. T. S. 871. A deposition alleged on positive knowledge of a violation of Laws 1898. §§ 184, 187. for- bidding hawking of goods without a license, held sufficient to give a justice jurisdiction to issue a warrant. Gilbert v. Satterlee, 88 N. T. S, 871. 61. People V. Stockwell [Mich.] 97 N. W. 765. «2. The finding of an Indictment Is the appi'opriate first step. U. S. v. Correspond- ence Institute of America, 125 F. 04. 63. See 1 Curr. L. 215. 64. The ofiicer issuing a warrant under such circumstances Is liable for false im- prisonment. Kossouf V. Knarr, 206 Pa. 145, 55 A. 854. 6.^. The officer Is not liable for false im- prisonment If It apparently be process law- fully issued, and such as the officer might lawfully serve. Douglass v. Stahl [Ark.] 72 S. W. 568. If a justice has jurisdiction to Issue a warrant he cannot be held liable In an action for false Imprisonment, though it subsequently appear that no crime was committed. Gilbert v. Satterlee, 88 N. T. S. 871. 66. Cr. Code, c. 178, art. 1, p. 403, 5§ 5204-5208. Spraggins v. State [Ala.] 35 So. 1000. 67. Even after appeal. Louisville v. Wehmhoff, 25 Ky. L. R. 995, 76 S. W. 876. 68. So held when a United States commis- sioner signed a warrant as "Commissioner of the Circuit Court of the United States for the VS'^estern District of Arkansas." Douglass V. Stahl [Ark.] 72 S. W. 568. 69. A person's middle name is not recog- nized In law. Cox v. Durham [C. C. A.] 128 P. 870. A warrant for the arrest of J. I. Cox, late of Boulder, protects the officer in the arrest thereon of James T. Cox, where he was the person in fact intended. Id. 70. Especially where he Is known by the initial. Cox v. Durham [C. C. A.] 128 F. 870. 71. To afford protection to the officer against an action for false imprisonment. Cox V. Durham [C. C. A.] 128 F. 870. 72. Held in extradition to authorize the sheriff to produce the respondent before the court In which an information had been filed. People v. Stockwell [Mich.] 97 N. W. 765. 73. 568. 74. 75. Douglass V. Stahl [Ark.] 72 S. W. U. S. V. Tarborough, 122 F. 293. Probable cause is shown by an in- dictment or a bench warrant, or a verified complaint before a committing magistrate of some other jurisdiction, or a record of the accused having been held for trial. U. S. V. Tarborough, 122 F. 293. 76. Indictment of a public officer for hav- ing received money for procuring a public contract. Beavers v. Henkel, 194 U. S. 73, 24 S. Ct. 605. 77. All doubts on this subject should be resolved in favor of the government. U. S. V. Tarborough, 122 F. 293. 78. Rev. St. § 1014 (U. S. Comp. St. 1901, p. 716). U. S. v. Tarborough, 122 F. 293. 79. Code Cr. Proo. §§ ?59, 260. Ex parte Sykes [Tex. Cr. App.] 79 S. W. 538. 316 AEEEST AND BINDING OVER § 5. 3 Cur. Law. but whether a TJ. S. inaTsh9,l may make an arrest on a warrant issued in another district than his own is unsettled.*" § 5. Making arrest and heeping and disposition of prisoner."'^ — To constitute an arrest the oflBcer must lay his hand on the defendant or take possession of his person,^^ and the accused should in some way have notice that he is taken by law- ful authority;'^ though in Delaware all are bound to know the character of an officer acting within his jurisdiction.'* A delay in obtaining or serving a warrant will not be fatal where the evidence does not show the officer to have been dilatory or negligent,*° and the immediate arrest required under the search and seizure process does not apply to an ordinary arrest.*" In making an arrest the officer should use no more force than to him, acting as an ordinarily prudent person, considering the degree of the crime,'' whether the alleged crime be a misdemeanor or a felony,'' would seem reasonable and apparently necessary to effect the arrest,'" or prevent an escape, or protect him- self."" The force he may use is necessarily greater than that required for self- defense. ""^ It wiU be presumed that only that was done which was necessary to accomplish the arrest,"" but this presumption may be rebutted."' A policeman has no greater authority than a private person to arrest beyond the town limits, or pursue beyond the limit one who has successfully resisted arrest and escaped therefrom,"* and an arrest beyond the limits of a state on a warrant issued therein, is without authority."" Where a prisoner charged with a misdemeanor has already escaped, the officer cannot lawfully use any means to recapture him that he would not have been justi- fied in employing to make the first arrest."" The return of service is not a condition precedent to holding the prisoner, where the original warrant is stiU in the possession of the officer;"' and the sus- pected party may be detained for only such a reasonable time as will enable the 80. IT. S. V. Tarborough, 122 F. 293. 81. See 1 Curr. L. 216. 82. Petit V. Colmary [Del. Super.] 56 A. 344. 83. This may be by knowing the person making the arrest to be an officer, or by seeing his badge or uniform, or by being arrested Tvhile committing a breach of the peace or other crime, or by the person mak- ing the arrest giving notice of his purpose and reason for it, or by being immediately pursued from the scene of his crime. But it Is not sufficient that the officer who was unknown to defendant, wore a badge cov- ered by the lapel of his coat. Franklin v. Amerson, 118 Ga. 860, 45 S. B. 698. 84. He need not show his authority un- less it is demanded or after the arrest. Petit V. Colmary [Del. Super.] 55 A. 344. 85. So held where an arrest was made 29 days after the seizure of property il- legally held, and 23 days after the issuance of the warrant for arrest. State v. Nadeau, 97 Me. 275, 54 A. 725. 86. State v. Nadeau, 97 Me. 275, 54 A. 725. 87. He cannot chastise a prisoner for in- solence. Moody v. State [Ga.] 48 S. B. 340. 88. Sossaman v. Cruse, 133 N. C. 470, 45 S. B. 757. 89. State v. Phillips, 119 Iowa, 652, 94 N. W. 229. Discussion of the rules that the force used must have been necessary, and that life may not be taken on arrest for misdemeanor or an attempted escape there- from, unless the officer has reasonable ap- prehension of peril of his own life or great bodily harm. State v. Phillips, 119 Iowa. 652, 94 N. W. 229. Shooting with a pistol in an endeavor to arrest for a misdemeanor is excessive force. Sossaman v. Cruse, 133 N. C. 470, 45 S. E. 757. An arrest must not be made In a threatening and menacing manner. Vann v. State [Tex. Cr. App.] 77 S. W. 813. 90. The officer must use as little violence as the case will admit of. Petit v. Colmary [Del. Super.] 55 A. 344. The test Is whether, in view of the surrounding circumstances, the officers were Justified In a reasonable apprehension of danger. In re Lang, 127 F. 213. 91. Moody V. State [Ga.] 48 S. E. 340. 92. But this presumption may be over- come by evidence. In re Laing, 127 F S13. 93. Bvldence held sufficient to show an officer guilty of assault^ and battery. Moody V. State [Ga.] 48 S. B. 340. 94. Sossamon v. Cruse, 133 N. C. 470, 45 S. B. 757. 95. Sheriff of Dallas county, Texas, on a warrant there Issued arrested a prisoner who had escaped into Indian Territory. Ex parte Sykes [Tex.] 79 S. W. 538. 96. Sossamon v. Cruse, 133 N. C 470, 45 S. E. 757. 97. Rev. St. 1876, § 1085. State V. Auooln. Ill La. 51, 35 So. 381. 3 Cur. Law. AEEEST AND BINDING OVER § 6. 317 officer to carry Hm before a magistrate," and he must not be subjected to cruel and unnecessary exposure to cold, nor deprived of suitable clothing and covering.'* A prisoner cannot be held for attempting to bribe an officer for his release unless the arrest was legal,* and whether the alleged bribe was ofEered before or after arrest is a question for the jury upon the final trial, and pending its deter- mination the prisoner should be held.* § 6. Preliminary hearing^ binding over, or discharge.' — A preliminary exam- ination or a waiver thereof is necessary before the prosecution of a private person upon an information, for a felony,* and an irregularity in this respect may be raised by plea in abatement," or in some cases by certiorari;' in the prosecution of a cor- poration a preliminary hearing is not essential.'' A recognizance must be in the words of the statute.* A policeman has no authority to accept bail for an appearance.* The accused may be examined on two distinct and separate charges at one time,*" and the evidence need show only probable cause for holding;** though in Alabama uncorroborated accomplice testimony will not be sufficient.** One arrested as a fugitive from justice is entitled to an examination before the magistrate causing the arrest,*' but not upon the merits of the case.** The magistrate's return as to whether such examination has been held or offered is conclusive,*' and a justice docket entry of an examination describing the 98. Brisch v. Carter [Md.] 57 A. 210. 99. Petit V. Colmary [Del. Super.] 55 A. 344. 1. Arrest made upon a telephone request and the crrcumstance not authorizing: an arrest ■without a warrant. Bx parte Rich- ards [Tex. Cr. App.] 72 S. W. 838. 2. The court refused a discharge on ha- beas corpus, where the evidence on this point was conflicting. Ex parte Richards [Tex. Cr. App.] 72 S. W. 838. 3. See 1 Curr. L 216. 4. Jahnke v. State [Neb.] 94 N. W. 1B8. A coroner is not a magistrate and hag no power to hold a preliminary examination TRev. St. 1887, 5 7511]. In ro Sly [Idaho] 76 P. 766. • 5. Upon such plea the court will only de- termine Whether such examination has been had or ■waiveA; errors in Judgment by the examining magistrate will not be thus re- viewed. Jahnke v. State [Neb.] 94 N. W. 158. 6. State V. Aucoin, 110 IjO. 959, 35 So. 141. 7. The finding ol an Indictment Is the ap- propriate first step. U. S. v. Correspondence Inst, of America, 125 F. 94. 8. Under Code Civ. Proc. 1895, art. 887, requiring a recognizance that accused shall appear from day to day and from "term to term," a recognizance binding an accused to appear from "time to time" is fatally de- fective. Samamiego v. State [Tex. Cr. App.] 80 S. W. 996. 9. A city council has no power by ordi- nance or otherwise to authorize policemen on making arrests for violation of a city ordinance to accept a deposit of money for the appearance of the party in the police court. Richardson v. Junction City [Kan.J 77 P. 691. 10. The rule forbidding a trial on more than one charge at a time does not apply to examinations before a justice. People V. Shuler [Mich.] 98 N. W. 986. 11. It is not necessary that the evidence be sufllclent to support a verdict of guilty or show guilt beyond a reasonable doubt. The Intent of the statute is that a magis- trate shall at once ascertain whether the crime charged has been committed, and whether there be reasonable cause to be- lieve the accused comniltted It. Jahnke v. State [Neb.] 94 N. W. 158. In general one may properly be bound over, If there is any evidence tending to shot? guilt. But upon habeas corpus proceedings the court will not consider the weight of the evidence where an alderman is held for trial on a charge of bribery, the evidence tending to shoTV an Illegal offer In consideration of his vote. People v. Van De Carr, 87 App. DIv. 386, 84 N. T. S. 461. It Is sufllcient if there be some competent evidence before the magistrate tending to show the commis- sion of the offense named by the accused. State V. Baeverstad [N. D.] 97 N. W. 548. The failure of a state to produce all its attainable evidence on a preliminary exam- ination is not ground for a release of a de- fendant held to answer. In re Sly [Idaho] 76 P. 766. 12. Because not sufilclent to convict [Code 1896, 5 5300]. State v. Smith, 138 Ala. Ill, 35 So. 42. 13. Rev. St. 1876, 5 1019. State v. Aucoin, 110 La. 959, 35 So. 141. 14. It would be against public policy to require the examination on the merits in the parish when arrest as a fugitive is made, because of the probable location of witnesses for prosecution. State v. Aucoin, 111 La. 51. 35 So. 381. 15. The relator's verified statement that he has been refused an examination, held to be overborne by the magistrate's return and certified copies of the record showing the contrary. State v. Aucoin, 110 La, 959, 36 So. 141. 318 AREEST AND BINDING OVEE § 6. 3 Cur. Law. offense as "pocket picking or larceny from the person" is suiBcient.*' There should be evidence as to identification of the accused to satisfy the magistrate." A prop- erly certified copy of an indictment constitutes a prima facie ease to justify hold- ing/' but upon a mere verified complaint before a foreign magistrate, the accused is entitled to hare the commissioner hear evidence as to the probable cause/' and he should be apprised of his right to be present before the judge and resist the application for a warrant of removal.'"' One may be held for trial upon a different offense than that charged in the complaint.-^ It is not necessary that a coroner's inquest be held, before one charged with murder may be held on preliminary examination.-^ An illegal discharge from custody confers no rights upon the prisoner.^' In California the postponing of the preliminary examination for more than two days at a time, without the consent of the defendant, will not be ground for setting aside the information.^* In New York the commitment on adjournment of an examination, without a written information being filed, is illegal.'" § 7. Custody avMiting indictment or trialJ^' ABSOIT. Arson is an offense against the possession and not against the property." Consequently, one in possession and occupancy of a house under a lease is not guilty of arson in burning the same,-' unless made so by statute.'* The burning of any object which falls legally under the words of the statute may be charged as a crime,^" and the fact that certain articles are specifically mentioned does not limit its scope.'^ Every essential ingredient of the crime must be set forth in the indictment.'* The crime must be proved beyond a reasonable doubt.'* Evidence of motive'* and other circumstantial evidence'" is admissible. 16. The word "or" Is not used disjunctive- ly but Indicates the synonym of the terms preceding: and following it. State v. Dunn, 66 Kan. 483, 71 P. 811. 17. The sufficiency of such evidence will not be reviewed on certiorari. Stat« v. Au- coin, 111 La. 51, 35 So. 381. 18. The prisoner admitted he was the per- son mentioned in the indictment, and offered no evidence. He cannot insist on the pro- duction of the witnesses for the state. In re Runkle, 125 F. 996. 19. A verified complaint is prima facie true, and further evidence from the govern- ment cannot be required until the accused has raised a substantial doubt in his favor. U. S. V. Yarborough. 122 F. 293. 20. U. S. V. Yarborough, 122 F. 293. 21. State V. Aueoin, 111 La. 61, ■ 35 So. 381. 32. In re Sly [Idaho] 76 P. 766. 23. He is In no better situation than one who escaped through the connivance of the officers. In re Troy, 67 Kan. 186, 72 P. 631. 24. The record failed to show that the de- fendant had not consented. The court also cited its own precedent that if appellant suf- fered any legal wrong it was merely in tem- porary Illegal confinement, for which there was a remedy at the time. People v. Boren, 139 Cal. 210, 72 P. 899. 25. Code Cr. Proc. §§ 145, 148, 150, 188, 192. 194. People v. Crane. 88 N. Y. S. 343. rode Cr. Proc. ? 192, providing that on ad- journment of the examination of a person, the magistrate must commit or release him on bail, and § 193. prescribing form of com- mitment, a detention after adjournmsnt without commitment is Illegal. People v. Crane, 88 N. Y. S. 343. 26. See 1 Curr. L. 217. 2?. This is true at common law and un- der the Alabama statute. State v. Young [Ala.] 36 So. 19. 28. State V, Young [Ala.] 36 So. 19. 29. Under Rev. St. § 6832, making it arson to burn one's own property of the value of $50.00 for the purpose of getting the insur- ance, it is not necessary that the building be the sole property of him who burns it; it is sufficient if it bo of the required value. Jones v. State [Ohio] 70 N. E. 962. 30. Merry-go-round outfit is "goods, wares and merchandise." State v. Fontenot [La.] 36 So. 630. The words "goods, wares, and merchandise" are to be considered separately as to their meaning. Id. 81. State V. Fontenot [La.] 36 So. 630. 32. Charging the burning of a merry-go- round outfit must allege that the outfit was part of a stock of goods. State v. Fontenot [La.] 36 So. 630. 33. Evidence of a confession and motive held sufficient to sustain a conviction. Mor- gan V. State [G*J 48 S. E. 238. The building burned being private and unoccupied, own- ersliip must be proved by Introduction of the deed. Goldsmith v. State [Tex. Cr. App.] 81 3 Cur. Law. ASSAULT AND BATTEKY §'1. 319 ASSAULT AND BATTERY. $ 1. Nature and Klements of Criminal Of- § 4. Evidence; Instructions; Verdict; PiDX tense (310). islunent (331). 5 2. Defenses (320). § 6. Civil Llabllltr (323). S S. Indictment (321). § 1. Nature and elements of criminal offense.^^—kn assault is an attempt to inflict unlawful corporal injuries on another.*' There must be a present and apparent ability to inflict injury,** and a specific intent to injure.*" If injury be inflicted, it is assault and battery. It is sufficient if the force put in operation comes in contact with a person indirectly.*" In Texas, assaults are defined as aggravated by the use of a weapon,*^ or by difference in age or condition of par- ties.*^ There must be an intention to injure.'"' Indecent proposals to a female constitute an aggravated assault under this statute.** Former conviction for a simple assault is no bar to a subsequent prosecution for an aggravated assault." S. W. 710. Denial of a continuance because of absence of a witness who would testify to an alibi was error, the incriminating evi- dence being meager. Id. 34. Statement on oath that a merchant in- tended to carry a $4,000 stock admissible to show real value, an^ motive for arson, when insurance carried was $14,000. Hooker V. State [Md.] 56 A. 390. 35. State v. Ledford. 133 N. C. 714. 45 S. B. 944. Evidence of an experiment tried to test state's theory in a prosecution for arson held Inadmissible. Hooker v. State [Md.] 56 A. 390. 36. See 1 Curr. L. 218. 37. State v. Harrigan [Del. Gen. Sess.] 55 A. 5. An assault la an unlawful attempt by violence, to do injury to the person of another: the person making tlie attempt having the present ability to commit such injury. Id. An assault consists In an offer to do bodily harm, made by a person who is In a position to Inflict It. State v. Hunt [R. I.] 54 A. 773. An assault is an unlaw- ful attempt to do violence to the person of another, and a battery Is the unl.iwfiil com- mission of such violence. State v. Harrigan [Del. Gen. Sess.] 55 A. 5. Note: An actual or specific Intent Is necessary. Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132: State v. Myers. 19 Iowa. 517. So one who Innocently Injures another while acting in self defense is not liable. Morris V. Piatt, 32 Conn. 75. Accidental Injuries caused by doing a lawful act are not as- saults. Brown v. Kendall. 6 Cush. [Mass.] 292; Gibbons v. Pepper. 4 Mod. 405. But in- juries caused by reckless conduct are. Hoff- man V. Eppers, 41 TVis. 251; Welch V. Durand, 36 Conn. 182; Weaver v. Ward, Hob. 134; Com. V. Lister, 15 Phila. [Pa.] 406, .ind note to Vosberg v. Putney [Wis.] 14 L,. R. A. 226. It Is universally held that solicitation to have illicit intercourse la not an assault. State V. White, 52 Mo. App. 285; State v. Priestley, 74 Mo. 24; People v. Fleming, 94 Cal. 308, 29 P. 647; Rex v. Butler, 6 Car. & P. 368: State v. Owsley, 102 Mo. 678, 15 S. W. 137: State v. Butler, 8 Wash. 194, 35 P. 1093, and note 25 L. R. A. 434. 3SL Where one had approached within three feet of another, and drawn back his hand as though to strike her with a bottle grasped therein, and she turned and fled, it was a question for the jury whether an assault had been committed. The jury re- turned a verdict of gvTilty. Robinson v. State, lis Ga. 750, 45 S. E. 620. Pointing an unloaded gun at another accompanied with' a threat to discharge it is not an as- sault. People V. Sylva [Cal.] 76 P. 814. Contra: Where one drew his pistol and pointed It at another, he was held guilty of assault, though the pistol was not cocked. Pace v. State [Tex. Or. App.] 79 S. W. 531. A bullet fired need not go in the direction of the person assaulted, as accuracy or in- accuracy of aim cannot determine guilt or Innocence, State v. Hunt [R. I.] 54 A. 773. 39. In case of a kiss, the Injury Is solely to the feelings, the Intent cannot be pre- sumed. Chambless v. State [Tex. Cr. App.] 79 S. W. 577. If a man attempts by force to make a woman kiss him. It Is an assault. But if he merely attempts to kiss her by her consent, intending no force, he is not guilty. Id. It is an assault to restrain one. by violence, from separating parties from fighting. Even though person restrained was a private citizen. Wilson v. State [Tex. Cr. App.] 74 S. W. 315. 40. Willfully and Intentionally driving a horse into contact with a person lawfully on a highway. State v. Lewis [Del. Gen. Sess.] 55 A. 3. 41. An aggravated assault may be com- mitted with a pistol, though it be not cocked. Pace V. State [Tex. Cr. App.] 79 S. W. 531. 42. The evidence must show that defend- ■int was an adult male person. Davis v. State [Tex. Cr. App.] 76 S. W. 466. 43. Stripling v. State [Tex. Cr. App.] SO S. W. 376. 44. In order to constitute an aggravated assault, there must have been an intent to make an indecent proposal. Where the only act done by one going into the room of a female was to take hold of her gown, the question of assault was for the jury. Stev- mer v. State [Tex Cr. App.] 78 S. W. 1072. One placing his arm on the b.ack of the bug- gy seat and merely touching a female is not guilty of aggravated assault. Stripling V. State [Tex. Cr. App.] SO S. W. 376. Or if he attempted to embrace her, having no intention to injure her feelings, and having ground to believe his advances would not be objected to. Id. Where prosecutrix and defendant's wife were sleeping in adjoining rooms, and defendant testified that he went into prosecutrix's room by mistake and left 320 ASSAULT AND BATTBEY § 2. 3 Cur. Law. § 2. Defenses.^^ — Eight of self defense is based on necessity," and is avail- able to every person who on just grounds apprehends an unlawful attack,*' though it does not threaten serious bodily harm,** and a person threatened by several may exercise his right against the nearest assailant.^" One assaulted may stand his ground and repel force with foree,°^ so long as his defensive acts do not threaten death or great bodily harm to the assailant."^ Whether unnecessary force was used is a question for the jury."' Though one acting in self d:; Tense accidentally injures another than his assailant, he is yet justified, criminal intent being lacking.''* An owner may use sufficient force in removing a trespaster and is not guilty, though he acts in anger j"^ but an owner out of possession cannot regain it by force."' A parent may moderately chastise his child without being guilty of assault."' An officer who uses more force than is necessary in making an arrest is guilty of an assault."' Opprobrious words and insult constitute no defense,"* unless so provided by statute.*" as soon as he discovered where he was, there was a question for the jury. Stermer v. State [Tex. Cr. App.] 78 S. "W. 1072. 45. Jury Instructed to acquit if assault was not aggravated one. Heinen v. State [Tex. Cr. App.] 74 S. W. 776. 40. See 1 Curr. L. 219. 47. Defendant struck prosecutor and drew a pistol; prosecutor reached for defendant's pistol, but he retreated and, on prosecutor's advancing, shot him. State v. MoCann, 43 Or. 155, 72 P. 137. 48. One traveling along a highway across which a fence had been built which he was engaged in tearing down. Fence had been erected by abutting owners who claimed the road had not been legally established. Hoy V. State [Neb.] 96 N. W. 228. Merely seeking a person for the purpose of provok- . ing a difficulty does not deprive one of the right of self defense. Price v. State [Tex. Cr. App.] 79 S. W. 540. And in such case one is entitled to a charge on self defense, disconnected from the question of provok- ing a difficulty. Id. Where evidence showed only that the prosecutrix made an assault on the defendant, there could not be a con- viction for aggravated assault. Reese v. State [Tex. Cr. App.] 78 S. "W. 511. 49. Price v. State [Tex. Cr. App.] 79 S. W. 540; Rea v. State [Tex. Cr. App.] 80 S. W. 1003. 50. The others were swearing and threat- ening while advancing, while the one as- saulted had hold of his bridle rein. Hoy v. State [Neb.] 96 N. W. S28. 51. Where citizens of a town attacked boisterous persons who were using profane language in the street, the roisterers felled one of them with a scale weight. State v. Evenson [Iowa] 97 N. W. 979. It is the duty of one assaulted to get out of the way if he can. State v. Harrigan [Del. Gen. Sess.] 55 A. 5. 52. People V. Dankberg, 91 App. Dlv. 67, 86 N. Y. S. 423. And see Homicide, 2 Curr. L. 223. 53. Where one was advancing with' clenched fists and was stabbed, the defend- ant Is guilty only in case he used excessive force. Rea v. State [Tex. Cr. App.] 80 S. W. 1003. Where parties threw flower pots and bottles of benzine at each other. State v. Green, 134 N. C. 658, 46 S. B. 761. Where defendant followed prosecuting witness and his wife for some distance to their wagon, where said witness got a gun, whereupon defendant drew his gun, it was no error to refuse to charge on self defense. Pace V. State [Tex. Cr. App.] 79 S. W. 631. Where two persons followed another, came upon him unawares, knocked him down and beat him, evidence held sufficient to authorize a charge of assault with premeditated design. Plain V. State [Tex. Cr. App.] 78 S. W. 518. Where a woman was the assailant and the defendant pushed her away and she fell down, evidence held sufficient to require a charge on self defense. Maxwell v. State [Tex. Cr. App.] 78 S. W. 516. Where the assaulted party was at the time in the act of picking up a knife, evidence held to entitle assailant to an instruction on self defense. McCardell v. State [Tex. Cr. App.] 77 S. W. 146. 64. O'Rear v. Com., 25 Ky. L. R. 1537, 78" S. W. 407; Howard v. Com. [Ky.] 81 S. W. 689. 55. Removing a drunken person who was objectionable. State v. Crook, 133 N. C. 672, 45 S. B. 564. One may use whatever force Is necessary to protect his property from the trespass. Taylor v. State [Tex. Cr. App.] 80 S. W. 378. 50. State V. Bradbury, 67 Kan. 808, 74 P. 231. 57. Thompson v. State [Tex. Cr. App.] 80 S. W. 623. Where a father led his 17 year old daughter home by the hair, he was not guilty of aggravated assault. Goods v. State [Tex. Cr. App.] 77 S. W. 799. Texas statute defining aggravated assault on a child does not apply to a male over 14 years of age. Thompson v. State [Tex. Cr. App.] 80 S. W. 623. 58. Evidence held to show that an of- ficer used excessive force. Moody v. State [Ga.] 48 S. E. 340. 59. State v. Harrigan [Del. Gen; Sess.] 55 A. 5. Accusing one of undue fondness for women and wine. State v. Leuhrsman [Iowa] 99 N. W. 140. Abusive and insult- ing language addressed by prosecutor to defendant's daughter on the day before the assault is not admissible In evidence as jus- tification. Walker v. State, 117 Ga, 323| 43 S. B. 737. [To be concluded.] VOL. Ill, NO. 2, GUKEEJSTT LAW, OCTOBEK, 1904. OopTTlght 1904, by Eeefe-Daviason Co. ASSAULT AND BATTERY— Cont'd. 321 § 3. Indictment."^ — ^An indictment need not allege the acts constituting ttie assault,*^ unless it is so provided by statute.^' Where aggravated assault depends on particular means used, such means must be alleged,'* but not where a particular kind of an assault is made by the statute an aggravated assault."" A blank in the indictment for the given name may be filled in after trial has begun,*" and errors of form may be cured by amendment."^ A verdict for a less crime may be found under an indictment for the greater of the same generic class, notwithstanding the two are statutory,"* and it is re- versible error for a court to refuse to so instruct. "" § 4. Evidence; instructions; verdict; punishment.'"' — The evidence must sat- isfy beyond a reasonable doubt.'^ Matters constituting res gestae,'^ and evidence bearing on the probability of the assault, is admissible,'^ if not too remote,'* evi- 60. For simple assault. Price v. State, 118 Ga. 60, U S. E. 820. 61. See 1 Curr. L. 219. 62. That accused made an assault on a named person and did lilm unlawfully beat. Sims V. State, 118 Ga. 774, 45 S. E. 621. Rev. St. 1883, c. 118, defining assault,' is merely declaratory of the common law, and an In- dictment thereunder need not. allege that th« act was done In a willful, wanton or insult- ing manner. State v. Crelghton [Me.] 57 A. 592. 63. Where the statute provides that the information must charge the particular means used, the phrase ,"a heavy wooden stick" is not sufficient [Pen. Code, §5 950- 952]. People v. Perales, 141 Cal. 581, 76 P. 170. 64. Stolies v. State [Tex. Cr. App.] 81 S. W. 1213. 65. Assault by adult male on a female. Stolces V. State [Tex. Cr. App.] 81 S. W, 1213. An information that one, an adult male person, did then and there commit an aggravated assault upon a certain female person is sufficient. Stripling v. State [Tex. Cr. App.] 80 S. W. 376. 66. Accused was arraigned by his full name which also appeared on the back of the indictment. State v. Matthews [La.] 36 So. 48. 67. Fortenberry v. State [Tex. Cr. App.] 72 S. W. 593. 68. Indictment for willfully shooting at; verdict for assault. State v. Matthews, 111 La. 962, 36 So. 48. One indicted for assault with Intent to commit murder found guilty of the offense of shooting at another. Harris V. State [Ga.] 47 S. E. 520. Assault with in- tent to murder. State v. Dl Guglielmo [Dei. Gen. Sess.] 55 A. 350. In a prosecution for assault with intent to do great bodily in- jury, it is not error to instruct that the crime charged includes assault and battery and assault, which may be considered In turn. State v. Lauhrsman [Iowa] 99 N. "W. 140. An Instruction on - simple assault should also be given in a prosecution for felonious assault with a rock, it being for the jury to determine whether the rock was a deadly or a dangerous weapon. State v. Shipley, 174 Mo. 512, 74 S. W. 612. An Information for larceny from the person charged assault; held the crime alleged could not have been committed without an assault, and was there- fore Included in the greater offense. State V. Houghton [Or.] 75 P. 822. The doctrine of conviction of included offenses is fully treated in Indictment and Prosecution, 2 Curr. L. 307. 69. State V. Matthews, 111 La. 962, 36 So. 48. 70. See 1 Curr. L. 219. 71. Where one was stabbed at a Christ- mas tree entertainment, evidence held suffl- olent to support a conviction of felonious assault. State v. Thornhlll, 177 Mo. 691, 76 S. W. 948. Where all the witnesses except prosecutor agreed that the latter assaulted the defendant, and was pushing him into the street when the latter struck him with a small cane, which broke at the first blow, a verdict of conviction was contrary to the weight of evidence. People v. Dankberg, 91 App. Div. 67, 86 N. T. S. 423. Verdict for simple assault held error, where, ac- cording to the evidence, accused must have been guiliy of assault wi,th a deadly weapon if guilty at all. People v. Sylva [Cal.] 76 P. 814; State v. Lewis [Del. Gen. Sess.] 55 A. 3. Positive evidence of prosecutrix that defendant hit her with his fist in his own house where she had called in a peaceful manner, held sufficient to support a convic- tion. State V. Sayman [Mo. App.] 77 S. W. 337. Evidence warranting conviction for as- sault where one menaced another with a hoe. Price v. State, 118 Ga. 60, 44 S. E. 820. Evidence sufficient to sustain conviction for assault and battery. State v. Bragg, 90 Minn. 7, 95 N. W. 578. 72. Evidence as to acts of a third person who took part in an affray in which a feloni- ous assault was committed was admissible as res gestae. State v. Thornhill, 177 Mo. 691, 76 S. W. 948. Conversation immediately succeeding the battery admissible. Moody V. State [Ga.] 48 S. E. 340. What one told a witness immediately after the assault la ad- missible. Taylor v. State [Tex. Cr. App.] 80 S. W. 378. Remarks concerning iron knuckles held admissible as res gestae. Wil- son V. State [Tex. Cr. App.] 78 S. W. 232. 73. Character and reputation for chastity of a female. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. In a prosecution for felonious assault, the clothes of the prosecuting wit- ness are admissible after the state had closed its case, they having been previously iden- tified. State V. Thornhill, 177 Mo. 691, 76 S. W. 948. Evidence that a witness for the 3 Curr. Law — 21 322 ASSAULT AND BATTEEY § 4. 3 Cur. Law. denee of past assaults is not.'" The rule allowing admission of all of a conversa- tion where part has been introduced does not apply to past interviews.''* An instruction must furnish a definite legal rule for the guidance of the jury," and be free from ambignity.'' An instruction need not be given on a theory to which the evidence aSords no support/' and it is improper if given.^" Points already covered need not -be made the subject of another charge.^^ A general verdict of guilty as charged is sufficient where court submitted only aggravated assault. *'' An immaterial departure from the words of the statute in the form of the verdict is not error," and meaningless matter may be rejected as surplusage.'* Where a statute provides the punishment as "fine or imprisonment," both can- not be imposed,*" nor can excessive punishments,** nor punishments not named in the statute. '^ defense undertook to prevent a witness for the state from appearing was admissible. Id. Evidence that the prosecuting witness arrested the defendant the night befpre the assault was admissible. Wilson v. State [Tex. Cr. App.] 78 S. W. 232. Defendant may show that prosecutor had previously shot a dog of defendant's mother and had been warned not to come upon her property again to show defendant's conduct from his standpoint. Coleman v. State [Tex. Cr. App.J 74 S. W. 24. 74. The fact that a woman purchased beer. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. Where defendant allowed an agent to take peaceable possession of a machine and then assaulted him, evidence of the contract In reference to the posses- sion of the machine is Immaterial. Lock- land V. State [Tex. Cr. App.] 73 S. W. 1054. 75. In an action for assault on a woman, in- decent proposals made to other women are inadmissible. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. Evidence of previous Instances in which defendant- was either tried or ar- rested for disturbance of the peace is Inad- missible. Maxwell v. State [Tex. Cr. App.] 78 S. W. 516. On a prosecution for aggravated assault. It was error to admit testimony on behalf of the state that the railroad hands of the crews to which the parties belonged were In the habit of throwing knives at each other. McCardell v. State [Tex. Cr. App.] 77 S. W. 446. 76. State V. Leuhrsman [Iowa] 99 N. W. 140. 77. An instruction that "if there was a clear Intent to commit violence," the jury should find that an assault had been com- mitted was Insufficient. Butler v. State [Miss.] 36 So. 569. Where an assailant struck with his hands, and the assaulted Im- mediately struck back with a knife, an in- struction on what degree of force may be used Is proper. Redden v. State [Tex. Cr. App.] 78 S. W. 929. Where the evidence raises the issue, de- fendant is entitled to a charge that if the offense did not occur In the county charged, he cannot be convicted. Stripling v. State [Tex. Cr. App.] 80 S. W. 376. Where one persisted in untying a mule tied on her premises, whereupon the owner assaulted her, the statute on provoking an assault was properly charged. Taylor v. State [Tex. Cr. App.] 80 S. W. 378. A charge under Pen. Code 1895, § 486, that where injury Is caused by violence, an intent to Injure is presumed and it rests with the assailant to show the contrary, is not objectionable as a charge on the weight of evidence. Strip- ling v. State [Tex. Cr. App.] 80 S. W. 376. 78. Instruction defining assault held am- biguous. People V. Sylva [Cal.] 76 P. 814. 79. Indictment for willfully shooting, no evidence on which a verdict of simple as- sault could be found. State v. Matthews [La.] 36 So. 48; Stokes v. State [,Tex. Cr. App.] 81 S. W. 1213; Rea v. State [Tex. Cr. App.] 80 S. W. 1003. Whore an information charged an assault on one certain person, it was er- ror to instruct that he would be guilty if he assaulted either of three persons named in the Instruction. State v. Moore [Mo.] 77 S. W. 522. 80. Charge relative to a dangerous weap- on, none being used. Taylor v. State [Tex. Cr. App.] 80 S. W. 378. 81. State v. Thornhill, 177 Mo. 691, 76 S. W. 948. 82. Heinen v. State [Tex. Cr. App.] 74 S. W. 776. 83. Verdict as prepared read "assault with intent to commit great bodily injury"; as rendered, "assault with Intent to do great bodily Injury." State v. Leuhrsman [Iowa] 99 N. W. 140. 84. Under Ball. Ann. St. §§ 7057, 7068. Where the verdict was "assault with a dead- ly weapon" and there was no such crime defined In the statute, "with a deadly weap- on" was rejected as surplusage and accused sentenced for simple assault. State v. Snider, 32 Wash. 299, 73 P. 355. One was indicted for assault with Intent to kill, being armed with a dangerous weapon. The jury returned a verdict of "assault and battery with a dangerous weapon." Held, that the ver- dict meant no more than "assault and bat- tery," and the words "and battery" might be rejected as surplusage. State v. Henry [Me.] 57 A. 891. 85. Gen. St. 1901, § 2028. One can be discharged on habeas corpus after paying the fine. In re McNeil [Kan.] 74 P. 1110. Under 22 Del. Laws, p. 493, one convicted of assault on his wife jnay be punished by fine and Imprisonment, or whipping, In the discretion of the court. State v. FInley [Del. Gen. Sess.] 55 A. 1010. 86. $1,000.00 and two years in jail held excessive, where the only possible injury was to the feelings, resulting from a kiss. Chambless v. State [Tex. Cr. App.] 79 S. W. 577. 87. Under B. & C. Comp. § 1772. punishing 3 Cur. Law. ASSAULT AND BATTEEY § 5, 323 § 5. Civil liahility.^^ What constitutes. ^° — The same elements must appear in a civil as in a criminal assault.'" A carrier is liable if his conductor uses ex- cessive force in removing,"^ or assaults a passenger,^- and an innkeeper is liable for an assault committed by his servant upon a guest."^ An officer who uses excessive force in making an arrest is liable,"* but a superintendent of a house of correction who directs his subordinates to punish an inmate is not.°° It is not necessary that injury result,'" as nominal damages may be awarded."^ Cross actions in favor of each party against the other may arise out of the same affray,** and the claims may be presented by a petition by one and set off by the other.'" Infants may sue by next friend to recover damages for injuries occa- sioned by assault and battery committed by one other than a parent.^ Defenses.^ — Consent is a defense to a civil action.' A parent,* or one stand- ing in loco parentis, may administer reasonable chastisement," and an officer in executing a valid writ,° or officials in clearing obstructions from the highway," or carriers in expelling a passenger for unseemly conduct,' or any person in repelling an attack," may use reasonable force, but cannot take life unless life or limb is in danger.^' That one is entitled to the possession of premises does not justify an assault committed in taking it.^^ Abusive language, opprobrious epithets,^" a character for turbulence,^' or the fact that one is supposed to be guilty of a crime, does not justify an assault.^* simple assault by fine or imprlsonmgnt In the county jail, one convicted could not be condemned to hard labor. State v. Houghton [Or.] 75 P. 822. The words "at hard labor" could not be treated as surplusage. Id. 88, 89. See 1 Curr. L. 220. 90. It is not an assault to solicit a wom- an to indulge in sexual Intercourse. Reed V. Maley, 25 Ky. L. R. 209, 74 S. W. 1079. 91. Female passenger had no ticket. Ran- dell V. Chicago, etc., R. Co., 102 Mo. App. 342, 76 S. W. 493. 9a. The fact that the conductor supposed himself justified would not exempt the com- pany from liability. Birmingham R. Light & Power Co. v. Mullen, 138 Ala. 614, 35 So. 701; Houston & T. C. R. Co. v. Bell [Tex. Civ. App.] 73 S. W. 56. • And see Carriers, 1 Curr. L. 421. 93. A porter who was not engaged in the discharge of his duties at the time pointed a revolver at an infant son of a guest. Clancy V. Barker [Neb.] 98 N. W. 440. 94. Shooting with a pistol in an endeavor to arrest for a misdemeanor. An officer shot the prisoner after he had escaped from his control. Sossamon v. Cruse, 133 N. C. 470, 45 S. B. 757. 95. Martin v. Moore [Md.] 57 A. 671. 96. It was error for a court to instruct that unless the miscarriage resulted from injuries inflicted by the woman being thrown to the ground, there could be no recovery. Frederickson v. Nelson [Mich.] 97 N. W. 678. 97. Where plaintiff and another testified, to the assault, demurrer was properly over- ruled. Willett V. Johnson, 13 Okl. 563, 76 P. 174. 98. Where one wrongfully makes an as- sault, and then retires and is assailed by the other. MoNutt v. McRae, 117 Ga. 898, 45 S. B. 248. 99. McNatt V. McRae, 117 Ga. 898, 45 S. E 248 1. Clasen v. Pruhs [Neb.] 95 N. W. 640. 2. See 1 Curr. L,. 221. 3. Where two persons voluntarily entered into a souffle and one of them was accident- ally injured. Gibeline v. Smith [Mo. App.] 80 S. W. 961. 4. A minor cannot recover damages for an assault by its parent. Parent and Child, 2 Curr. L. 1089. McKelvey v. MoKelvey [Tenn.] 77 S. W. 664. 5. Whether or not the punishment was excessive, reasonable, or cruel, is question of fact for jury. Clasen v. Pruhs [Neb.] 95 N. W. 640. Aunt acting as foster mother; chas- tisement held unreasonably severe. Id. See, also. Drum v. Miller [N. C] 47 S. E. 421, in which a school teacher was held not lia- ble for injuries caused by throwing a pencil at a pupil who was misbehaving. 6. Writ of replevin. McKlnstry v. Col- lins [Vt.] 56 A. 985. 7. It is a good defense that selectmen were using no more force than was neces- sary in removing obstructions from the high- way [V. S. 3508-10]. Chase v. Watson, 75 Vt. 385, 56 A. 10. One was preventing the removal. Id. 8. Ickenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162. 9. Where plaintiff attempted to drive over defendant with a horse, defendant was en- titled in self defense to arm himself with a stick, and if a movement on his part, with- out striking plaintiff, frightened the horse, causing plaintiff to be thrown and injured, defendant is not liable for such injuries. Halley v. Tichenor, 120 Iowa, 164, 94 N. w. 472. The question as to who was the ag-- gressor is for the jury. Sweet v. Boyd [Iowa] 98 N. W. 601. 10. Moran V. Vicroy, 24 Ky. L. R. 2415 74 S. W. 244. 11. A guest of one wrongfully in posses- sion was taken by the arm and led off the premises. Shaffer v. Austin [Kan.] 74 p 1118. 12. Used by a, passenger toward a street S2i ASSAULT AND BATTEKY § 5. 3 Cur. Law. Pleading, evidence and trial." — A complaint foimded in negligence cannot be treated as one for assault and battery.'* Pleadings held sufficient.'" The defense of son assault demesne/' or matters in justification must be spe- cially pleaded,'" and evidence thereof is not admissible under the general issue.^° The biirden is on the plaintiff to establish a prima facie case^' by a preponder- ance of evidence,^^ therefore the presimiption that defendant is innocent until proven guilty does not apply. ^' Ees gestae,''* and evidence of the relative ages and sizes of the parties,^' and evidence tending to show a disposition to commit the act, is admissible.'" Other evidence held admissible is discussed in the note.*" One can- car conductor. Birmingham R. Light & Pow- er Co. V. Mullen, 138 Ala. 614, 35 So. 701. Nor will the plea of self defense avail In such a case. Dannenberg v. Berkner, 118 Ga. 885, 45 S. B. 682, 13. Where persons attacked one who had called them names, and who had a rep- utation for shooting when drunk. Dannen- berg V. Berkner, 118 Ga. 885, 45 S. B. 682. 14. Warner v. Talbot [La.] 36 Bo. 743. 16. See 1 Curr. L. 221. 16. Complaint alleged that Injury occurred through negligent act of striking plaintiff with a pistol, which was discharged. Great- house V. Croan [Ind. T.] 76 S. W. 273. An allegation of willful assault Is not supported by proof of a battery resulting from negli- gence. One Injured In a friendly scuffle. Glbellne v. Smith [Mo. App.] 80 S. W. 961. 17. Physical pain and mental suffering as elements of damage are alleged by an alle- gation that defendant struck plaintiff caus- ing great pain and suffering. Carlson v. Hall [Iowa] 99 N. W. 571. Where one al- leged that he believed his injuries were per- manent; that he was lame and suffered pain and was under the care of a physician. It was an allegation that his injuries were permanent. Evans v. Blwood [Iowa] 98 N. W. 584. An action Is not begun by trustee process, within meaning of section 1, c.' 245, Pub. St. 1891, where a trustee blank was filled out with a flotitious name with no Intention of having it served, and it Tvas not served upon a trustee. Keenan v. Per- pault [N. H.] 57 A. 335. 18. Lutlopp v. Heokmann [N. J. Brr. & App.] 57 A. 1046. 19. Evidence thereof cannot be received under the general Issue, and if received with- out objection cannot be considered. Harden V. Hodges- [Tex. Civ. App.] 76 S. W. 217. 20. Blackmore v. Ellis [N. J. Brr. & App.] 67 A. 1047. 21. To show that the Injuries complained of are the result of the wrongful act. Wll- let V. Johnson, 13 Okl. 563, 76 P. 174. It is not incumbent on the one assaulted to show that it was without provocation. Sweet v. Boyd [Iowa] 98 N. W. 601. 23. Blackmore v. Bills [N. J. Brr. & App.] 57 A. 1047; Clasen v. Pruhs [Neb.] 95 N. W. 640. Evidence held insufficient to show that Injuries to bladder and uterus resulted from the assault. Willet v. Johnson, 13 Okl. 563, 76 P. 174. A verdict for one on bis own testimony will not be disturbed because the assail- ant's denial Is corroborated by three wit- nesses. Zwangizer v. Newman, 87 App. Dlv. 64, 83 N. T. S. 1071. Where two witnesses testified that defendant was the aggressor, evidence held sufficient to show that he was. Evans v. Elwood [Iowa] 98 N. W. 584. Where one assaulted testified that his as- sailant struck him in the eye and that he was also Internally Injured, though the phy- sician who examined him testified that the Injury did not amount to anything, held sufficiently conflicting to go to the Jury on the right to recover. Sohmltz v. Kirohan, 32 Wash. 546, 73 P. 678. Where there was evi- dence that one had been assaulted and beat and his face was cut, causing great pain, a nonsuit was properly denied. Jones v. Peterson [Or.] 74 P. 661. An allegation that an eye was cut out was supported by proof that the sight was cut out. Orscheln v. Scott [Mo. App.] 80 S. W. 982. Where a woman commenced an affray, and the person she attacked took her by the wrists and held her. While she was bruised to some extent, evidence held to show that excessive force was not used. Mattlce v. Scutt, 87 N. T. S. 1009. A cause of action for the wrong exists In favor of a female against one ravishing her, and in such case no testimony In corrobo- ration of her Is necessary to support a re- covery; neither is her delay or failure to make seasonable complaint a bar to her ac- tion, but merely goes to her credibility; the sufficiency of the evidence In this as In other civil cases being, where there is a confliot, for the Jury. Starnea v. Stevenson [Iowa] 98 N. W. 312. 23. Kurz V. Doerr, 86 App. Dlv. 507, 13 Ann. Cas. 340, 83 N. T. S. 736. 24. Proof of complaint of pain at time of receiving the injury is admissible. Eobin- son V. Halley [Iowa] 100 N. W. 328. What was said and done by each of the parties at the time is admissible. Profane language used. Birmingham R. Light & Power Co. V. Mullen, 138 'Ala. 614, 35 So. 701. 25. Birmingham R. Light & Power Co. V. Mullen, 138 Ala. 614, 35 So. 701. 26. One's habit of playing pranks on peo- ple; evidence of throwing pepper In a col- ored boy's eyes after the assault in issue. Lee v. Longwell [Mich.] 99 N. W. 379, citing People V. Seaman, 107 Mich. 357, 65 N. W. 203. Declarations of one pleading, self de- fense that he would not go to a certain place for fear of meeting plaintiff, such dec- larations being made on occasions different from the occasion of the assault are too re- mote. Evans v. Elwood [Iowa] 98 N. W. 584. A Question as to assailant's reputa- tion for peace was not reversible error. Orscheln v. Scott [Mo. App.] 80 S. W. 982. Upon the issue of self defense, evidence of prior threats and hostile demonstrations, is competent as tending to show that defendant 3 Cur. Law. ASSAULT AND BATTEEY § 5. 335 not testify to conclusions.^' A nonmedical witness is competent to testify whether an injury appeared recent or otherwise/' but not as to the cause and extent thereof.'" Instructions must be based on CYidence within the issues." Issues made by the pleadings cannot be broadened by instructions.'''' The court cannot be required to charge as to the legal effect of part of the facts proved/' nor to make facts sub- stantially covered, the subject of a subsequent charge."* Actual/' and if the assault was founded in malice/" exemplary damages may be recovered, but it is held that since the defendant is subject to criminal prosecu- tion punitive damages cannot be assessed.''' As a general rule provocation cannot be shown in mitigation," but the contrary has been held." The aggressor in an was In peril, that plaintiff began the dlffl- oulty, and his motive. Moran v. Vloroy, 24 Ky. L. R. 2415, 74 S. W. 244. Evidence of plaintiff's character for violence and tur- bulence is Inadmissible as. In the absence of any act of plaintiff of dubious import, is his general reputation for violence and tur- bulence. Houston & T. C. R. Co. v. Bell [Tex. Civ. App.] 73 S. W. 56. 27. In an action for assault on one's wife, which resulted in her death, he is entitled to show her physical condition before the injury. McKinstry v. Collins [Vt.] 56 A. 985. Evidence held not to show that plaintiff had been acquitted of an attempt to provoke a prior assault, therefore it did not consti- tute error. Sohmitz v. Kirchan, 32 Wash. 546, 73 P. 678. "Where one admitted that he assaulted another. It was harmless error to permit the Justice before whom he pleaded guilty to testify. Id. A survey of the high- way was admissible on the question of good faith. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. A photograph taken of the in- mate on the day of the assault was Inad- missible, there being no proof of its correct- ness. Martin v. Moore [Md.] 57 A. 671. 2S. Counsel asked defendant whether he kicked plaintiff In self defense. Evans v. Blwood [Iowa] 98 N. W. 584. To ask the assaulting party whether he did anything that would cause the injury complained of Is Incompetent. Robinson v. Halley [Iowa] 100 N. "W. 328. 29. Wife's testimony as to the appear- ance of an Injury. Robinson v. Halley [Iowa] 100 N. W. 328. 30. Injuries to bladder, uterus, and ova- ries. Willet V. Johnson, 13 Okl. 663, 76 P. 174. 31. Matters in justification, received with- out being specially pleaded, cannot be sub- ject of a charge. Harden v. Hodges [Tex. Civ. App.] 76 S. W. 217. An instruction as- suming mitigating circumstances was prop- erly refused when there were none. Bir- mingham R. Light & Power Co. v. Mullen, 138 Ala. 614, 35 So. 701. 82. Complaint alleged negligence and the court charged that a recovery could be had on proof of willful shooting. Greathouse v. Groan [Ind. T.] 76 S. W. 273. 38. Blackmore v. Ellis [N. J. Err. & App.] 67 Atl. 1047. 84. Where the court charged that If the facts were as testified to by the defendant there could be no reoovei'y, defendant was not prejudiced by the refusal to give In- structions presenting his theory. Lee v. Longwell [Mich.] 99 N. W. 379. A charge that defendant could recover on hia plea of set-off If he was without fault was not er- ror, as it was apparent from the charge as a whole what was meant. McNatt v. Mo- Rae, 117 Ga. 898, 45 S. E. 248. 35. Verdict of $1,025.00 for a broken arm which was the principal Injury complained of, held excessive In a case where damages by way of punishment were not allowed. Rees V. Rasmussen [Neb.] 98 N. W. 830. Where one testified that his eye was black- ened and that he was Injured internally, but his physician testified that the injuries did not amount to anything, a verdict for $225.00 was not excessive. Sclimitz v. Kirchan, 32 Wash. 546, 73 P. 678. An objection that nominal damages only should be allowed was without merit. Id. Where a mob took a person, threatened to hang him, pulled him up several times, and held a pistol at his head, with' a view to extort from him a con- fession of arson, a verdict for $500 was held insufficient. Warner v. Talbot [La.] 36 So. 743. $2,500.00 for destruction of an eye was not excessive In the absence of mitigating circumstances. Orscheln v. Scott [Mo. App.] 80 S. W. 982. Damases of $4,100 held not excessive where plaintiff lost for life his earning capacity of $1.26 to $1.60 per day, and his expectancy was 23 or 24 years. Houston & T. C. Jl. Co. v. Bell [Tex. Civ. App.] 73 S. W. 56. Where counsel In argument asked the Jury to allow plaintiff what they would demand for loss of an eye, was not prejudicial where the jury returned a verdict for the same amount as rendered by two juries in pre- ceding trials. Orscheln v. Scott [Mo. App.] 80 S. W. 982. 86. Blackmore v. Ellis [N. J. Err. & App.] 57 Atl. 1047. Punitive damages may be al- lowed if the assault is wanton, malicious, or brutal. lokenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162. Where the Jury found that no actual damage had re- sulted, it was not prejudicial error to with- draw the question of malice. Robinson v. Halley [Iowa] 100 N. W. 328, citing Myers v. Wright, 44 Iowa, 38. 37. Borkenstein v. Schrack, SI 111. App. 220, 67 N. E. 647. 38. Actual damages cannot be reduced by any evidence of provocation that does not amount to Justification. Barrette v. Carr, 75 Vt. 425, 66 A. 93. Where one said to a street car conductor "if you put my friend off you will have to put me off," did not justify an assault by the conductor, nor mitigate dam- ages therefor. Birmingham R. Light & Power Co. v. Mullen, 138 Ala. 614, 36 So. 701' Warner v. Talbot [La.] 36 So. 743. 336 ASSIGNMENTS § 1. 3 Cur. Law. affray with a minor cannot recover damages from the father.*" The jury may consider future suffering in assessing damages,*^ and actual damages may be proved, though the damages laid are bodily pain and mental distress.*^ A court may set aside a verdict on the ground that damages are inadequate.*' Evidence as to assailant's financial condition is admissible.** Other points admissible are discussed in the note.** ASSIGNMENTS. I 4. Construction, Interpretation, and Ef- fect (334). § a. E^nforceiticut of Assignment and of KlS'hta Assigned (335>. § 1. Riglats Susceptible of Assignment (326.) § 2. Rcanisltes and Sufficiency of Elxpress Assigfnments (320). § 3. Constructive or ISquitablc Assign- ments (331). § 1. Rights susceptible of assignment.** — A trust deed, in the nature of a mortgage*^ or a chattel mortgage, may be assigned.** A mortgagor before sale, but after foreclosure, may assign his right of redemption.*" Notes, though in- dorsed nontransferable,°° open accounts,"'^ or debts, are assignable'^^ in whole or in part,^^ but not by the debtor himself.^* Contracts are assignable unless there is something in their terms to indicate the contrary.^^ An executory contract should not be assigned to a competing concern without the consent of the other party thereto.^' 39. Opprobrious words though not action- able in slander. Dannenberg v. Berkner, 118 Ga. 885, 45 S. E. 682. Matters in justification admitted without being pleaded may be shown in mitigation of exemplary damages. Harden v. Hodgres [Tex. Civ. App.] 76 S. W. 217. 40. The minor shot the plaintiff and was at the time this suit was prosecuted serving sentence therefor. Miller v. Mofthe, 111 La. 143, 35 So. 491. 41. Allegations that the assaulted person suffered pain and believed himself to be per- .manently injured were sufficient to authorize the jury to consider future suffering. Evans v. BIwood [Iowa] 98 N. W. 584. This is not permitting them to conjecture as to the amount. Id. The amount of damage suf- fered is for the Jury. Sweet v. Boyd [Iowa] 98 N. W.' 601. 42. Time he was forced to be Idle. Jones V. Peterson [Or.] 74 P. 661. 43. The damages awarded barely covered the doctor's bill, so other elements must have been ignored. Barrette v. Carr. 75 Vt. 425, 56 A. 93, and note to Benton v. Collins [N. C] 47 L. R. A. 33. In the absence of abuse of discretion its action is not subject to review. Id. 44. The Jury may take that into consid- eration in assessing exemplary damages. Willet V. Johnson, 13 Okl. 563, 76 P. 174. 45. Testimony of a physician who had not been paid was competent to lay a foundation for evidence as to the value of them. Jones V. Peterson [Or.] 74 P. 661. Under B. & C. Comp. § 842, testimony of a physician's serv- ices is admissible though unconnected at the time with' their value. Id. A married woman may be liable for medical services, so evi- dence thereof is admissible. Willet v. John- son, 13 Okl. 563, 76 P. 174. Where both par- ties to an affray claimed punitive damages it was no error to read Civ. Code, § 3609, provid- ing that additional damages may be given for wounded feelings of the plaintiff. McNatt v. McRae, 117 Ga. 898, 45 S. B. 248. 46. See 1 Curr. L. 222. 47. Bouton v. Cameron, 205 111. 50, 68 N. B. 800. 48. But assignment pendente lite cannot operate to prejudice the other party. Powell V. National Bank of Commerce [Colo. App.] 74 P. 536. 49. This may be done Independently of the statute [Iowa Code, § 4061]. Cooper v. Mau- rer, 122 Iowa, 321, 98 N. W. 124. 50. Herrick v. Edwards [Mo. App.] sr S. W. 466. 51. Account for medical services rendered. Neal V. Keying [Iowa] 98 N. W. 603. 52. Amount due on a building contract. Allen V. Mayler, 184 Mass. 486, 69 N. E. 220. Bills for work done assigned. Zertanna v. Gray, 102 Mo. App. 188, 76 S. W. 710. 53. A partial assignment cannot be en- forced at law, unless the debtor has con- sented thereto. Columbia Finance & Trust Co. V. First Nat. Bank, 25 Ky. L. R. 561, 76 S. W. 156. 54. The assignment by a contractor to his surety, to protect him for advances, of war- rants in his favor drawn against his own property, gave the surety no lien on the property which he could enforce against a mortgage. United Loan & Deposit Bank v. Bitzer, 25 Ky. L. R. 1538, 78 S. W. 183. 55. Contracts by receiver for the better- ment of a railroad were assignable to the purchaser at the foreclosure sale, as from the nature of the case, the property was lia- ble to be sold at any time, and the surety company bonds of the contractor were also assignable, though in a certain ^ense insur- ance contracts, as the liability was not In- creased. American Bonding & Trust Co. v. Baltimore & O. S. W. R. Co. [C. C. A.] 124 F. 866. A logging contract sold. Forsman v. Mace, 111 La. 28, 35 So. 372. A contract to print a county map assigned. Hixson Map 3 Cur. Law. ASSIGNMENTS 837 Contracts for personal services requiring skill, science, and peculiar quali- fications are not assignable,^' this includes contracts to draw up abstracts,^* to take care of and manage cattle,'" or to act as a salesman,"" but the other party may give force to the assignment by assenting thereto,"^ and this assent may be shown by receiving benefits under the assignment."'' Contracts to furnish horses for delivery purposes,"" or to furnish logs to be manufactured into lumber are not such personal contracts,"* nor is a contract with a body politic to erect and operate a factory in consideration of certain concessions."" The right to select exempt property is not assignable."" The amount to become due on a contract,"' a part- nership interest,"* the interest of a beneficiary of a policy after the death of the insured,''" time checks,'" or trade secrets are assignable,'^ but the right to a patent not yet issued cannot be assigned at law.'^ The assignor may recover the consid- eration for, the assignment.'^ * An assignment of future earnings is not void as against public policy,'* and the assignee takes precedence of subsequent attaching creditors,'" though the term of the employment is indefinite,'" and the duration or amount of the assignment is uncertain," nor is such an assignment rendered invalid by statutes exempting Co. V. Nebraska Post Co. CNeb.] 98 N. W. 872. 58. Where an electric power company con- tracted to supply a cement company with electricity for five years, an assignment by the latter to a lighting company, which was in competition with the former, was not en- forceable, and the fact that after notice of the assignment the power company had fur- nished electricity to light company and ac- cepted two monthly payments, was not a ratification of assignment, where there was no evidence that power company knew of the circumstances. Hudson River Water Power Co. v. Glens Falls Portland Cement Co., 41 Misc. 254, 84 N. T. S. 62. But on ap- peal it was held that as the cement company was only forbidden to use the power for manufacture of paper, and the contract was to inure to the "successors and assigns" the contract was assignable, and that at any rate the power company was estopped from objecting since it had accepted payment with notice of the assignment, and that power trEinsformers were to be introduced. Hud- son River Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Div. 513, 85 N. Y. S. 577. 57. Linn County Abstract Co. v. Beechley [Iowa] 99 N. W. 702. See 1 Curr. L. 222, n. 9-15. OS. Linn County Abstract Co. v. Beechley [Iowa] 93 N. W. 702. 59. Where one entered into a contract selling cattle with a clause that the manage- ment should belong to him, the contract was assignable by him where he in fact cared for the cattle. Houssels v. Jacobs [Mo.] 77 S. W. 857. 60. Wilson V. Imperial Fertilizer Co. [S. C] 46 S. B. 279. Gl. Hire shown by his active co-opera- tion in the assignment. Willson v. Imperial Fertilizer Co. [S. C] 46 S. B. 279. An in- demnitor assenting to an assignment of the indemnity contract by the indemnitee Is bound to the assignee. Hall v. Chitwood [Mo. App.] 81 S. W. 208. 02. Accepting payments from the as- signee. Hudson River Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Div. 513, 85 N. T. S. 577. 63. A contract by a livery stable keeper to supply horses and wagons to a library for delivery purposes. Merrltt v. Booklov- ers' Library, 89 App. Div. 454, 85 N. T. S. 797. 64. Poling v. Condon-Lane Boom & Lum- ber Co. [W. Va.] 47 S. B. 279. 65. Residents of township agreed to fur- nish site and pay taxes of a factory for a certain time, if it would erect and operate the factory within said township, held as- signable by the company. Northwestern Cooperage & Lumber Co. v. Byers [Mich.] 95 N. W. 529. 66. Wabash R. Co. v. Bowring [Mo. App.] 77 S. W. 106. 67. Berlin Iron Bridge Co. v. Connecticut River Banking Co. [Conn.] 57 A. 275. 68. Driscoll v. Driscoll [Cal.] 77 P. 471. 69. Sallng v. Bolander [C. C. A.] 125 F. 701. 70. Their assignment operates also as an assignment of the cause of action. Fltger V. Archibald Guthrie & Co., 89 Minn. 330, 94 N. W. 888 71. Vulcan Detinning Co. v. American Can. Co. [N. J. Bq.] 58 A. 290. 78. The assignment to plaintiffs of exclu- sive right to use a machine for which gran- tors have applied for patent, does not give plaintiffs legal title to patent subsequently issued, or right to sue for its infringement. Milwaukee Carving Co. v. Brunswick-Balke- Collender Co. [C. C. A.] 126 F. 171. 73. The transferrer of a county contract to build a bridge, may sue the transferee for the consideration for the transfer. Herring V. White, 119 Ga. 48, 45 S. B. 697. 74. Mallin v. Wenham, 209 111. 252, 70 N. E. 564; Colorado Fuel & Iron Co. v. Kidwell [Colo. App.] 76 P. 922. To a grocer to secure past debts and future advances, and also to prevent attachment of future earnings. Dole v. Farwell [N. H.] 55 A. 553; Petersen v. Ball, 121 Iowa, 544, 97 N. W. 79. See 1 Curr. L. 222, n. 4, 5. 75. 76. Colorado Fuel & Iron Co. v. Kid- well [Colo. App.] 76 P. 922; Mallin v. Wen- ham, 209 m. 252, 70 N. B. 564. 77. For such accessories as assignor should need, held valid. Colorado Fuel & Iron Co. V. Kidwell [Colo. App.] 76 P. 922. 323 ASSIGNMENTS § 1. 3 Cur. Law. wages from execution/' though in some states it must be recorded in order to be valid except as between the parties;''' in such states the assignor making two as- signments of the same wages simultaneous in date and record, the assignee is not Jiable to an action thereon,*" nor does want of knowledge on the part of the assignee of the other assignment affect th6 employer's liability,*^ and the statute not requir- ing the debt for which the assignment is security to be stated, it covers all debts between the same parties during its duration.'" As to whether or not a discharge in bankruptcy will render the assignment inoperative there is a conflict." Moneys due a contractor are not "future earnings."'* Contingent interests may be assigned,^^ and the current of authority is that an assignment of the naked expectancy of an heir apparent vrill be enforced in a court of equity." A chose in action" or rights of action arising out of contract may be ■assigned" to any one except an attorney in the action;" this includes a right of action for real estate commissions,'" or for the breach of a lease."^ The survivor of joint payees may assign the right of action upon the obligation.'^ Eights of action, sounding in tort, affecting real property are assignable," as the right to sue for flooding land,'* also those affecting personal property, as the right to sue a sheriff for seizing property,"* to recover money deposited in pursuance of a wagering agreement," or for conversion," but not a right to recover a penalty for usury." An unliquidated claim for personal injuries cannot be assigned," 78. Mallln v. Wenham, 209 111. 252, 70 N. B. 564. 79. Park Brew. Co. v. McDermott, 25 R. I. 95, 64 A. 924; Whitcomb v. Waterville [Me.] 58 A. 68. 80. 81. Whltcomb T. Waterville [Me.] 68 A. 6S. 82. Park Brew. Co. v. McDermott, 25 R. I. 95. 54 A. 924. 83. See Bankruptcy, 1 Curr. L.. 337. That It Is rendered Inoperative. . In re West, 128 P. 205. That it is not. Mallln V. Wenham, 209 111. 262, 70 N. B. 664. 84. Berlin Iron Bridge Co. v. Connecticut River Banking Co. [Conn.] 67 A. 275. 85. A beneficiary may assign his right In a benefit certificate on the life of another to a stranger to secure a debt, notwithstanding charter provision that the object is to aid the members and their families. Jarvis v. Blnkley, 206 111. 541, 69 N. B. 682. A son's expectancy in the estate of his mother who was a lunatic is assignable. Searcy v. Gwalt- ney Bros. [Tex. Civ. App.] 81 S. W. 676. See 1 Curr. L. 222, n. 7. 86. If in good faith and for an adequate consideration; query, as to necessity of an- cestor's knowledge. Mally v. Mally, 121 Iowa, 169, 96 N. W. 735. 87. Ebel V. Piehl [Mich.] 95 N. W. 1004. See 1 Curr. L. 223, n. 18-29. 88. Action for breach of contract of sale of tobacco assigned for two-thirds of what should be collected. Devlne v. Warner [Conn.] 56 A. 562. 89. N. T. Code Civ. Proo. § 73, prohibits attorneys from buying any chose in action for the purpose of suing thereon, but does not prevent an attorney who has wrongfully purchased a bond and mortgage from assign- ing It to another, here his wife, who may enforce it if in her own interest and not in fact in the attorney's Interest. Beers v. Washbond, 86 App. Div. 682, 83 N. T. S. 993. 90. Von Tobel v. Stetson & Post Mill Co., 32 Wash. 683, 73 P. 788. 01. Raywood Rice Canal & Milling Co. v. Langford Bros. [Tex. Civ. App.] 74 S. W. 926. OS. Semper v. Coates [Minn.] 100 N. W. 662. 93. Arose upon a counter-claim. McCor- nlck V. Friedman [Idaho] 76 P. 762. 94. Right of action against a railroad for flooding crops. Hovey v. Grand Trunk West- ern R. Co. [Mich.] 97 N. W. 398. Action against a city for overflowing land. Niel- sen V. Albert Lea [Minn.] 98 N. W. 195. 95. Action against a sheriff for seizure of stock assigned to secure moneys advanced to carry on the suit. Curtis v. Curtis [Mich.] 96 N. W. 32. 96. Is a chose In action arising upon an implied contract and hence is assignable un- der the Practice Act (Gen. St. p. 2591) § 340. Van Pelt v. Schauble, 68 N. J. Law, 638, 54 A. 437. 1 N. T. Rev. St. (1st Bd.) p. 662, pt. 1, o. 20, tit 8, 9 8. Bernstein v. Horth, 85 N. T. S. 263. 97. A common carrier settling with a con- signee for goods converted by another may take an assignment of the consignee's claim and sue the person who has wrongfully tak- en the goods, in the name of the consignee, for the carrier's use. Breisch v. Leitzel, 23 Pa. Super. Ct. 25; Johnson, Nesbitt & Co. v. Gulf & C. R. Co. [Miss.] 34 So. 357. 08. Not assignable until reduced to judg- ment. Ex parte Hlers [S. C] 46 S. B. 146. 99. McLeland v. St. Louis Transit Co. [Mo. App.] 80 S. W. 30. NOTE]. AHslernnblllty of cause of action for personal injurleai In the absence of stat- utory provisions as to the survival or assign- ment of a cause of action for a personal in- jury, it is generally held to be nonassign- able. Francis v. Burnett, 84 Ky. 23; Lawer- ence v. Martin, 22 Cal. 173; Pulver v. Harris, 62 N. T. 73. And the same Is held even though the assignment be made after verdict. Central R. & Banking Co. v. Brunswick & W. B. Co., 87 Ga. 386, 13 S. E. 620; Averill v. 3 Cur. Law. ASSIGNMENTS § 3. 329 though in some states it may be partially assigned to attorneys as compensation for their services in such suit.^ In some states rights and liabilities regulated by special provision of law are not assignable.* Judgments are assignable/ and the joint owner of a judgment may assign his undivided interest therein.* Liquor licenses are usually not transferable/ except with the consent of the authorities." A land warrant {o a Mexican war soldier may be assigned, and the assignee can lo- cate the land/ but the. assignment of half-breed scrip is forbidden by Act of Con- gress." § 2. Requisites and sufficiency of express assignments." — Claims may be as- signed before^" or after suit is brought/^ or while suit is pending in the supreme court.^* In some states an assignment of a cause of action after suit and before judgment must be in writing, filed with the clerk of the court, and noted upon the docket.^' The evidence must be sufficient to show an actual assignment^* from the owner of the thing assigned,^" to an existing person,^" the interest to vest in the assignee being a present right in the thing assigned.''' Longfellow, 66 Me. 237. But where the cause of action survives by statute It Is assignable. Hawley v. Chicago, etc., R. Co., 71 Iowa, 717, 29 N. "W. 787; Quin v. Moore, 15 N. T. 432; Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, 33 L. R. A. 833. Contra, North Chi- cago St. R. Co. V. Ackley, 171 111. 100, 49 N. E. 222, 44 L. R. A. 177. And where the claim survives verdict It Is assignable. Kent V. Chapel, 67 Minn. 420, 70 N. "W. 2; Mackey V. Mackey, 43 Barb. 58. — From note to North Chicago S. R. Co. v. Ackley, 171 in. 100, 49 N. B. 222, 44 L. R. A. 177. See 1 Curr. L. 223 n 24 1. Rev. St. 1895, art. 3353a. Gulf, C. & S. F. R. Co. v. Bldredge [Tex. Civ. App.] 80 S. W. 556. 2. Code Civ. Proc. § 1910. Penalty for re- fusal of street railway company to give a transfer is such a right, being regulated by Laws 1892, p. 1406, c. 676. Coyle V. Inter- urban" St. R. Co., 88 N. T. S. 136. 5. But the right of set-off not affected where assignee takes with knowledge of prior Judgment. "Wabash R. Co. v. Bowrlng [Mo. App.] 77 S. "W. 106. 4. The assignee may redeem from a sale under a prior judgment. Hunter v. Mauseau [Minn.] 97 N. "W. 651. B. A liquor license Is a personal privilege and not transferable, and a creditor who ac- cepts a transfer from an Insolvent, Is not liable to pay to the Insolvent trustee In bankruptcy. Bonnie & Co. v. Perry's Trus- tee, 25 Ky. L. R. 1560, 78 S. "W. 208. 6. Liquor tax certificate, permitting liquor traffic on certain premises may be trans_- ferred. In re Culllnan, 87 App. Dlv. 47, 83 N. Y. S. 1025. Boston (Mass.) liquor licenses may be transferred by trustee In bankruptcy, though they are not mortgagable. In re McArdle, 126 P. 442. 7. Though Act Cong. Feb. 11, 1847, § 9, provides that instruments affecting the title to such bounty right executed before the Is- sue of the warrant are void. Johnson v. Fluetsch, 176 Mo. 452, 75 S. "W. 1005. 5. Buffalo Land & Exploration Co. v. Strong [Minn.] 97 N. "W. 576. 9. See 1 Curr. L. 223. 10. Claims of 18 persons against defend- ant for fraudulent misrepresentations as to mining stock may be assigned so as to per- mit a single action to be brought. Benedict V. Guardian Trust Co., 91 App. Dlv. 103, 86 N. Y. S. 370. 11. But assignees' rights are limited to those of the original plaintiffs. Yazoo & M. "V". R. Co. V. S. B. "Wilson & Co. [Miss.] 35 So. 340. 12. "Where one third of a cause of action was assigned with agreement that It should not be compromised so that the assignee should receive less than $5,000 and the as- signee paid for the assignment $5,000 It was not void as against public policy, or In con- travention of Mills' Colo. Ann. St. § 1299, against officiously Intermeddling In other's suits. O'DrlsooU v. Doyle, 31 Colo. 193, 73 P. 27. 13. A complaint In an action upon a Judg- ment showing that the cause of action had been assigned after suit and before Judg- ment, but which did not show an assign- ment according to the statute is demurrable [Laws 1899, p. 154]. Fordyoe v. McPhetrlge, 71 Ark. 327, 73 S. "W. 1096. Such statutes do not refer to assignments executed before suit Is brought. Gulf, C. & S. F. R. Co. v. Eld- redge [Tex. Civ. App.] 80 S. "W. 556. 14. "Where plaintiff, assignee, and his as- signor, both testified as to the assignment of the contract, and the written assignment was offered In evidence, there was sufficient proof of the assignment. Miller v. Luders, 86 N. Y. S. 265. "Where an oral assignment could not be established except by the tes- timony of the assignor who denied Its ex- istence, held too doubtful to be sustained.. Wooster v. Trowbridge [C. C. A.] 120 F. 667. The assignment of a chose In action sufficiently proved by testimony of assignor that he intended to assign his title. Crocker V. Muller, 40 Misc. 685, 83 N. Y. S. 189. 15. Allegation that claim of Consolidated Chandelier Co. was assigned to plaintiff not supported by an assignment from Sanberg, and testimony that he was the "owner" of the company. Saffier v. Haft, 86 App. Dlv. 284, 13 Ann. Cas. 318, 83 N. Y. S. 763. 16. A claim to recover a wager from a stockholder Is assignable by parbl, but testi- mony of assignor that he had assigned It to assignee, without any proof of existence of latter, or that he had not reassigned It, was not sufficient to sustain suit by assignee. Bernstein v. Horth, 85 N. Y. S. 263. 17. Donovan v. Middlebrook, 88 N. T. S, 330 ASSIGNMENTS § 2. 3 Cur. Law. The article assigned must be delivered/^ but being incapable of manual de- livery a written assignment duly delivered,^" or an oral assignment if founded upon a valuable and adequate consideration and accompanied by acts which amount to a constructive delivery,-" is sufficient. A chose in action may be assigned by parol,-' and is sufficiently delivered by the debtor's promising to pay it to another.^^ Leases for terms of years,-' notes,^* and mortgages, must be assigned in writing and be duly delivered."^ Execution of a written assignment, it being recorded, in pursuance of a previous oral assignment, and notice being given the one having possession of the property, removes all question of the sufficiency of the oral assign- ment.^" Any right of action in connection with the thing assigned passes, though not specifically mentioned.^' As between the parties there must be a consideration.^' At common law ac execiitor, administrator, or guardian can assign promissory notes payable to himself without an order of the court,^° but this rule has been abrogated in some states by statute.'" No particular form and specific instrument in writing is required in giving notice to the debtor in the assignment of debts, any notice to the debtor being suffi- cient,'* No formal acceptance is necessary to an assignment of future earnings,''' payment to the assignee is sufficient," and an agent may obtain authority to accept such assignments for the holder of the fund by course of dealing.'* 607. Assignment of a written contract. Lib- erty Wall Paper Co. v. Stoner Wall Paper Mfg. Co. [N. T.] 70 N. E. 501. ig. The possession by the assignee of, and the general Indorsement of the assignor on, a written contract is a sufficient assignment thereof. Hixson Map Co. v. Nebraska Post Co. [Neb.] 98 N. W. 872. NOTE. Delivery: Delivery is essential to the assignment. Basket v. Hassell, 107 TJ. S. 602, 2 S. Ct. 415; Pringle v. Prlngle, 59 Pa. 281; In re Crawford, 113 N. T. 560, 21 N. B. 692. And the delivery must be such as to confer upon the donee the present right to reduce the fund to possession. Baskett v. Hassell, 107 U. S. 602, 2 S. Ct. 415; Sterling v. Wilkinson, 83 Va. 791, 3 S. B. 533; Yancey v. Field, 85 Va. 756, 8 S. E. 721. — From note to Williamson v. Yager [Ky.] 34 Am. St. Rep. 184. 19. A written assignment of a partner's interest is sufficient, though the assignor continue to deal with the partnership prop- erty as he had formerly done. Driscoll v. Driscoll [Cal.] 77 P. 471. An assignment duly signed at the end of a statement of services rendered wliich was attached to the petition is sufficient. Neal v. Keying [Iowa] 98 N. W. 603. See 1 Curr. L. 22.5, n. 35, 36. 30. Share of estate in the hands of an ad- ministrator. Howe v. Howe, 97 Me. 422, 54 A. 908. See 1 Curr. L. 223, n. 31-33. ai. Father paid money to son directing him to pay $400 thereof to the latter's sister upon the father's death, the son promising to do so, in the presence of the daughter, held a sufficient assignment. Bbel v. Piehl [Mich.] 95 N. W. 1004. 22. Ebel v. Piehl [Mich.] 95 N. W. 1004. 23. A bond referring to a lease as "as- signed" to defendant Is not a sufficient writ- ing to sustain the assignment. Landt v. McCuUough, 206 111. 214, 69 N. E. 107. 24. A note must be assigned by Indorse- ment thereon [Kurd's 111. Rev. St. 1899, c. 98. § 4]. Bouton V. Cameron, 206 111. 50, 68 N.E. 800. 25. Where decedent executed assignments of mortgages to certain beneflclarles, and left in box with memorandum to deliver to beneficiaries after his death, and where some were partly paid he executed checks to the beneficiaries for the amount and left with the assignments, but died with them all in his possession, there was no delivery. Clav V. Layton [Mich.] 96 N. W. 458. 28. Howe V. Howe, 97 Me. 422, 54 A. 908. 27. Assigning in writing "all damage which I sustained on account of flooding on the 2d day of July, " held sufficiently to show intent to assign right of action. Hovev V. Grand Trunk W. R. Co. [Mich.] 97 N. "W. 398. The assignment of the "right, title and interest" of the assignor to certain shares of stock which had been converted carries with it the right of action for the conversion. Rothschild v. Allen, 90 App. Div. 233, 86 N. Y. S. 42. An assignment of time checks car- ries with it the right of action. Fitger v. Archibald Guthrie & Co., 89 Minn. 330, 94 N. W. 888. 38. An assignment of a vested remainder Interest worth $32,500 for $8,750 cash, the life tenant dying 10 years thereafter, held a sufficient consideration and assignee entitled to the $32,500, In re Phillips' Estate, 205 Pa, 511, 55 A. 212. The uncontradicted evidence being that the assignment of a right of ac- tion for breach of a contract of sale was to one who had helped raise the crop sold, and that the assignee was to retain ^ of the proceeds and give the assignor %, held suf- ficient to warrant the jury in finding that the assignee was a bona fide holder of the claim. Devine v. Warner [Conn.] 56 A. 562. See 1 Curr. 1,. 224, n. 45-48. 29. Browne v. Fidelity & Deposit Co. [Tex.] 80 S. W. 593. 30. Rev. St. 1895, arts. 2113, 2558. Browne V. Fidelity & Deposit Co. [Tex.] 80 S. W. 698. 31. Notice to a city is sufficient If given to the proper oflScer though the latter fails to 3 Cur. Law. ASSIGNMEiNTTS § 3. 331 Record."' — Assignments of "future earnings'""' in some states must be recorded to be valid except as between the parties," though in some states they need not where given to secure a bona fide debt.=* As to the right of the contracting parties to restrict the assignment of a contract see note.'" § 3. Constnictive or equitable assignments.*" — The transfer of a note,*^ or debt,*= or chose in action/' or part thereof,** carries with it the mortgage or lien securing it/° notwithstanding the statutory requisites have not been eoniplied with." enter it on the books as required. Sintes v. Commerford [La.] 36 So. 656. 33. Colorado Fuel & Iron Co. v. Kldwell [Colo. App.] 76 P. 922. The acceptance by a street commissioner of an assignment of fu- ture earnings by an employe in his de- partment in the following words. "Accepted. John B. Noyes, Street Commissioner." held sufficient. Lamoreux v. Morln [N. H.] 54 A. 1023. 33. Colorado Fuel & Iron Co. v. Kldwell [Colo. App.] 76 P. 922. 34. Street commissioner as agent of a city in accepting assignments by employes of his department of their future earnings. Lamor- eux V. Morln [N. H.] 54 A. 1023. 35. See 1 Curr. L. 224. 36. Query, whether future earned wages are exempt property under la. Code. § 2906, and husband and wife must both join In a written assignment. Petersen v. Ball, 121 Iowa, 544, 97 N. W. 79. 37. Mass. Rev. Laws, c. 189, § 34. But where only a few dollars worth of work re- mained to be done on a contract to build a stable for $1,473, the assignment of the bal- ance due on the contract was not an assign- ment of future earnings as the contract was substantially performed. Allen v. Mayers, 184 Mass. 472, 69 N. E. 220; Park Brew. Co. V. McDermott, 25 R. I. 95, 54 A. 924; Whit- comb V. Waterville [Me.] 58 A. 68. 38. Conn. Gen. St. 1902, § 836, declaring assignment of future earnings not valid against an attaching creditor unless to se- cure a bona fide debt, or recorded, does not apply to money due a contractor. Berlin Iron Bridge Co. v. Connecticut River Bank- ing Co. [Conn.] 57 A. 275. 39. note:. Right to prohibit the asuign- nien^ of a contract: Though a contract be in its nature assignable, the parties thereto may in terms restrict or prohibit its assign- ment, so that an assignee cannot succeed to any rights In the contract by virtue of the assignment thereof to him. Mueller v. North- western University, 195 III. 236. 63 N. E. 110, 88 Am. St. Rep. 194; Delaware County v. Die- bold Safe, etc., Co., 133 U. S. 473, 10 S. Ct. 399; Carter v. State, 8 S. D. 153, 65 N. W. 422; Omaha v. Standard Oil Co., 55 Neb. 337. 75 N. W. 859; Burck v. Taylor, 152 U. S. 635, 14 S. Ct. 696. An assignment of a contract in express vio- lation of its positive provisions is void, and the person claiming through such an assign- ment is entitled to no relief in equity (Grlgg V. Landis, 19 N. J. Bq. 350), and, on the other hand, a collateral covenant restraining the assignment of a contract cannot be enforced In equity it appearing that such I'estraint is but an incident to the objects of the principal covenants which have been substantially performed (Id.). The debtor or contractor may waive a pro- vision forbidding the assignment of the con- tract without his consent (Brewster v. City of Hornellsville. 35 App. Div. 161, 54 N. T. S. 904), or he may become estopped to raise objection to the assignment (Pike v. Wal- tham, 168 Mass. 581, 47 N. E. 437; Staples V. Somerville, 176 Mass. 241, 57 N. E. 380). The assignment being void all that is ac- quired by the assignee Is a right to main- tain an action against the assignor for the share of the profits which he has attempted to transfer. Burck v. Taylor, 152 U. S. 634. 14 S. Ct. 696. Only the party for whose benefit such a restriction is m.ade can insist upon it. Wil- son V. Reuter, 29 Iowa, 176; Fortunate v.' Patten, 147 N. Y. 277-281, 41 N, E. 572; Bur- nett V. Jersey City, 31 N. J. Eq. 341. A stipulation In a contract against its as- signment is not violated by its assignment as collateral security. Butler v. Rockwell, 14 Colo. 125. 23 P. 462; Board of Trustees v. Whalen, 17 Mont. 1, 41 P. 849. Quaere, is the general rule permitting par- ties to stipulate against the assignment of their contracts restricted in its operation to transfers voluntarily made by them? It would seem so. See Freeman. Ex'ns, §§ 119, 194; Jackson v. Silvernail, 15 Johns. [N. Y.] 278: Hlgglns V. McConnell, 130 N. Y. 482, 29 N. E. 978; Moser v. Tucker, 87 Tex. 94, 26 S. W. 1044; Boone v. First Nat. Bank, 17 Tex. Civ. App. 365, 43 S. W. 594; Smith v. Putman, 3 Pick. [Mass.] 221; Rlggs v. Pursell, 66 N. Y. 193; Jackson v. Corliss, 7 Johns. [N. Y.] 531; Doe d. Mltchinson v. Carter, 8 Term R. 300. — From note to Mueller v. Northwestern Uni- versity, 195 111. 236, 63 N. B. 110, 88 Am. St. Rep. 194. 40. See 1 Curr. L. 224. 41. In action to foreclose a mortgage, the want of a formal written assignment, will not defeat the foreclosure. Brynjolfson v. Osthus [N. D.] 96 N. W. 261. 43. The indorsement of a note given for purchase money of land carries the vendor's lien and the right to enforce It. Mulky v. Karsell, 31 Ind. App. 595, 68 N. E. 689. 43. The assignee of a chose in action pur- chased at a receiver's sale became invested with equitable Hen, which was created by the contract creating the debt. Appellant ad- vanced money to purchase tobacco, which It was to sell, and It was to have a Hen on tobacco and proceeds for advances, and ex- penses. Cincinnati Tobacco Warehouse Co. v. Leslie & Whitaker's Trustee, 25 Ky. L. R. 1570, 78 S. W. 413. 44. An assignment of part of the indebt- edness carries a pro tanto Interest In the mortgage securing it. Miller v. Campbell Commission Co., 13 Okl. 75, 74 P. 507. 45. Where one who held land under a deed which was subsequently declared to be a mortgage gave a mortgage to another, the 332 ASSIGNMENTS § 3. 3 Cur. Law. A court of equity gives effect to assignments of all kinds of future and con- tingent interests in personalty, as well as realty, if made for a valuable considera- tion, and not in contravention of public policy;*^ this includes patents applied for,*' the interest of a beneficiary in a benefit certificate on the life of another,*' and expectancies in real estate.''" The assignor must be in a condition to transfer the property or chose in action, or to cause it to be transferred, to the assignee."^ A partner after the dissolution of the partnership cannot assign partnership claims without consent of his former partners."" Any order, writing or act, which makes an appropriation of a fund, amounts to an equitable assignment thereof, ^^ but it must be drawn upon a particular fund,'* latter Is an equitable assignee of the for- mer. Kiddell V. Bristow [S. C] 45 S. B3. 174. 46. Where note and trust deed were as- signed by a separate Instrument, it only amounted to an equitable assignment, since Kurd's 111. Rev. St. 1899, c. 98, § 4, requires indorsement on the note. Bouton v. Came- ron, 205 111. 50, &8 N. B. 800. 47. Guarantee fund belonging to con- tractors in the hands of the government. Wagenhurst v. Wlneland, 20 App. D. C. 85. 48. The assignment of an exclusive right to U9e a machine, for which grantors have applied for patent, may operate In equity as an assignment of the patent subsequently Issued. Milwaukee Carving Co. v. Bruns- wick-Balke-Collender Co. [C. C. A.] 126 F. 171. 49. An assignment of a benefit certificate on life of another to secure a debt will be sup- ported In equity, notwithstanding charter rule that the benefit fund is to assist members, and that it shall be exempt from execution. Jarvls V. Binkley, 206 111. 541, 69 N. B. 582. 60. Conveyance by heir apparent of land he does not own is void at law, but may be enforced In equity as an agreement to convey. In re Ryder's Bstate, 141 Gal. 366, 74 P. 993. Where, for a valuable considera- tion, consisting of present Indebtedness and future advances, an assignment la made of all sums of money then due or which might become due to the assignor from an estate then unsettled in the hands of an adminis- trator, held a valid equitable assignment as between the assignor and claimants. Howe v. Howe, 97 Me. 422, 54 A. 908. 51, 52. Wagenhurst v. Wlneland, 20 App. D. C. 85. 53. Check. Fortler v. Delgado & Co. [C. C. A.] 122 P. 604. See 1 Curr. L. 224, n. 52. NOTE]. Check, Whether Assignment of Fnndt One class of cases asserts the doc- trine that the drawing and delivery of a check do not operate as an assignment. In any sense, of the drawer's rights as against the drawee, unless the check is in some way accepted by the drawee, and hence that, as between the drawer and the payee or hold- er, the check does not operate as an assign- ment of so much of the fund as Is drawn upon, or of the drawer's rights as against the drawee. In other words, that a check drawn and delivered to the person to whose order It is payable does not operate, with- out acceptance by the drawee, as an assign- ment of the sum for which It was given, al- though the drawer may have, or may have had at the time it was drawn, funds In the possession of the drawee of an equal or larger amount. There being no privity, ex- press or Implied, between the holder of the check and the drawee, such holder of the check In Its original form can bring no suit on It against the drawee. In case of non- payment, the recourse of the holder is against the drawer and the indorser, if any. The drawer alone can bring suit to recover the funds against which the check was drawn, and ordinarily he only can maintain an action for failure to pay on presentment. He may revoke the check, and countermand its payment before acceptance, and If unac- cepted, his death will operate as a revoca- tion, and it seems that his insolvency has the same effect. This view of the law of checks is unani- mously adopted by the courts of England, and the vast weight of American authority Is also found to be In full accord with this rule. Among the cases supporting It are National Bank v. Millard, 10 Wall. 152; Na- tional Bank v. Whitman, 94 TJ. S. 343; Dana V. Third Nat. Bank, 13 Allen, 445; Carr v. National, etc.. Bank, 107 Mass. 45, 9 Am. Rep. 6; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. T. 82, 7 Am. Rep. 314; Case v. Henderson, 23 La. Ann. 49, 8 Am. Rep. 590; Colorado Nat. Bank v. Boettcher, 5 Colo. 185, 40 Am. Rep. 142; Griffin v. Kemp, 46 Ind. 172; National Bank v. Second Nat. Bank, 69 Ind. 479, 35 Am. Rep. 236; Harrison v. Wright, 100 Ind. 516, 50 Am. Rep. 805, fully discuss- ing the subject and citing and classifying the cases; Merchants' Nat. Bank v. Coates, 79 Mo. 168; Dickinson v. Coates, 79 Mo. 250, 49 Am. Rep. 228; Coates v. Doran, 83 Mo. 337 (these cases overruling several cases In the Missouri court of appeals holding a contrary view) ; Crevellng v. Bloomsbury Nat. Bank, 46 N. J. Zi. 255, 60 Am. Rep. 417; Duncan v. Berlin, 60 N. Y. 151; People v. Merchants' Bank, 78 N. T. 269, 34 Am. Rep. 632; Risley v. Phoenix Bank, 83 N. T. 318, 38 Am. Rep. 421; Veits v. Union Nat. Bank, 101 N. T. 563; Saylor v. Bushong, 100 Pa. St. 23, 45 Am. Rep. 353; First Nat. Bank v. McMichael, 106 Pa. St. 460, 51 Am. Rep. 629; First Nat. Bank V. Shoemaker, 117 Pa, St. 94, 2 Am. St. Rep. 649; Purcell v. Allemong, 22 Graft. 739; Es- sex Co. Nat. Bank v. Bank, 7 Biss. 193; Strain v. Courdin, 11 Nat. Bank Reg. 156; Rosenthal v. Mastin Bank, 17 Blatchf. 318; Moses V. Franklin Bank, 34 Md. 574; Attor- ney-General V. Continental Life Ins. Co., 71 N. T. 325, 27 Am. Rep. 55; Lunt v. Bank, 49 Barb. 221; Grammel v. Carmer, 55 Mich. 201; First Nat. Bank v. Gish, 72 Pa. St. 14. The doctrine has been lately approved by the supreme court of Alabama in National, etc.. Bank v. Miller, 77 Ala. 168, and reaf- firmed by the supreme court of the United States In Laclede Bank v. Sohuler, 120 U. S. 511, where the court said: "The question of 3 Cur. Law. 'ASSIGNMENTS § 3. 333 must be accepted by the party upon whom it is drawn," and delivered to the payee."" A check for a portion of a deposit does not generally operate at the time of delivery as an assignment pro tanto of the fund on deposit."' Orders given by a contractor for payment of money due which are accepted by the holder of the fund,°^ or warrants registered with a county treasurer/" operate as an equitable assignment of the fund. An agreement to pay a certain sum out of, or that one is entitled to receive the same from, a designated sum when received, does not operate as an equitable assignment,"" the test being whether or not the debtor would be justified in paying the debt, or the portion contracted about, to the person claim- ing to be the assignee;"^ but it has been held that a direction to pay to another the money due does not constitute an assignment.®' Neither a revocable power of how far and under what circumstances a check of a depositor In a hank will be con- sidered an equitable assignment to the payee of the check of all or any portion of the funds or deposits to the credit of the drawer In the bank, is one which has been very much considered of late years In the courts, and about which' there Is not a unanimity of opinion. In this court. It is very well set- tled that such a check-, unless accepted by the . bank, will not sustain an action at law by the drawee against the bank, as there is no privity of contract between them." In the later case of Florence Mining Co. v. Brown, 124 U. S. 391, the court said: "An order to pay a particular sum out of a spe- cial fund cannot be treated as an equitable assignment pro tanto, unless accompanied with such a relinquishment of control over the sum designated that the fundholder can safely pay it, and be compelled to do so, though forbidden by the drawer. A general deposit tn a bank la so much money to the depositor's credit; It Is a debt to him by the bank, payable on demand, to his order, not properly capable of Identiflcatlon and spe- cific appropriation. A check upon the bank in the usual form not accepted or certified by Its cashier to be good, does not constitute a transfer of any money to the credit of the holder; It is simply an order, which may be countermanded; and payment forbidden by the drawer at any time before It is actually cashed. It creates no Hen on the money which the holder can enforce against the bank. It does not of itself constitute an equitable assignment." In the late case of Pickle V. Muse, 88 Tenn. 380-385, 17 Am. St. Rep. 900, the court reaffirmed this doctrine, and said: "This brings us to the question as to whether complainant can recover upon this check as against the bank. While the authorities are not agreed, yet the decided weight of opinion Is, that the holder of a bank check cannot sue the bank for refus- ing payment. In the absence of proof that it was accepted by the bank, or that it has done some other act equivalent to and im- plying acceptance. This has been the uni- form view of this court. Planters' Bank v. Merritt, 7 Helsk. 177; Planters' Bank v. Keesee, 7 Helsk. 200; Imboden v. Perrie, 13 Lea, 504. 'We are unable to see any reason for ' disturbing the rule as heretofore de- clared by this court, especially as the decid- ed weight of authority Is in accord with our decisions." — From note to Hemphill v. Yerkes [Pa.] 19 Am. St. Rep. 607. Other notes on the same subject will be found In 19 Am. Dec. 422, 96 Am. Dec. 132 and 45 Am. Rep. 355. 54. Curtis Bros. Dumber Co. v. McLough- Un, 80 App. Dlv. 636, 80 N. T. S. 1016. A draft must specify the fund, and this though the amount of the draft Is the precise sum In the drawee's hands [Negotiable Instruments Daw, § 127]. Fulton v. Gesterding [Fla.] 36 So. 56. Check. Reviere v. Chambliss [Ga.] 48 S. E. 122. See 1 Curr. D. 224, n. 54. 55. Checks. Baltimore, etc., R. Co. v. First Nat. Bank [Va.] 47 S. E. 837; Reviere v. Chambliss [Ga.] 48 S. E. 122. See 1 Curr. D. 224, n. 55. 56. Where drawer placed order in an en- velope and delivered it to the payee, he not knowing what the envelope contained, the envelope being Indorsed that It was to be opened only upon the drawer's death or by his direction, held no delivery. Duryea v. Harvey, 183 Mass. 429, 67 N. B. 351. 57. Reviere v. Chambliss [Ga.] 48 S. B. 122. Where a distinct deposit was kept out of which the wages of employes were paid, and the checks on which were stamped "Cash Account," held, such checks operated as equi- table assignments of so much of the deposit as was necessary for their payment. Fortier V. Delgado & Co. [C. C. A.] 122 F. 604. Under the negotiable Instruments act. Bal- timore, etc., R. Co. V. First Nat. Bank [Va.] 47 S. B. 837. See 1 Curr. D. 225, n. 56, 57. 68. Third Nat. Bank v. Atlantic City, 126 F. 413. Contractor for a city building to whom money was due presented an order to the city comptroller requesting him to Issue a warrant for a specified sum in favor of a bank, which order the comptroller accepted, the order being then given to a bank which advanced money thereon, held not only an equitable assignment, but a transfer of the legal title to the payee. Third Nat. Bank V. Atlantic City [C. C. A.] 130 F. 711. Or- der upon a city comptroller given by a con- tractor upon any moneys becoming due upon the contract, held, the order was payable only out of the reserve fund or what might be due upon final settlement. Dlekerson v. City of Spokane [Wash.] 77 P. 730. 59. Warrants of a county duly issued and registered with treasurer operate as an equi- table assignment of the funds in his hands for their payment. Jennings v. Taylor [Va.] 45 S. B. 913. 60. Donovan v. Middlebrook, 88 N. T. S. 607. Conversations to effect whatever Inter- est one should have In his mother's estate should go to a certain person, insufficient to show a transfer. Mally v. Mally, 121 Iowa, 169, 96 N. W. 735. See 1 Curr. D. 224, n. 38; Id. 225, n. 59. 61. Donovan V. Middlebrook, 88 N. T. S. 607. 62. Where a salesman sold goods for a 334 ASSIGNMENTS § 4. 3 Cur. Law. attorney to locate half-breed scrip,"^ nor an application by a beneficiary of an in- surance policy for a change of beneficiaries,"* nor the- employment of an attorney on a contingent fee operate as an assignment of the claim." § 4. Construction, interpretation, and effect.^" — An assignment though abso- lute on its face may be shown to have been taken for collateral security.'^ An as- signment of a contract carries with it all sums due thereunder,"' but money due for extra work will not pass unless mentioned."' An assignment of one's interest in property carries with it the right to sue for torts concerning that property.'" An assignment of a chose in action,'^ or of an expectancy,'^ is wholly ineffectual as against the debtor unless he has notice or knowledge of facts sufficient to put him on inquiry, and then the debtor may not be bound to recognize it,'^ but it will be complete, as against creditors of the assignor, if the trustee has notice or knowl- edge of it in season to disclose the fact of the assignment.'* There is a conflict as to whether assignees have priority according to priority of notice," or priority of assignment." A letter mentioning the assignment inci- dentally," or presenting the order to the debtor before delivery to the assignee,'^ are mill to defendants the bills being stamped "payable to" plaintiffs, that was not suffi- cient evidence of an assignment to sustain an action by plaintiffs. Greeff v. Levlson, 84 N. Y. S. 298. 63. Power of attorney to locate Sioux half-breed scrip, and another to convey the land so located, where not coupled with an interest or given for a valuable considera- tion, are revocable, and so do not amount to an assignment of the scrip, which is for- bidden. Buffalo Land & Exploration Co. t. Strong [Minn.] 97 N. W. 575. See 1 Curr. L. 225, n. 60-62. 64. Application signed by part of the ben- eficiaries. Saling V. Bolander [C. C. A.] 125 F. 701. 65. As to whether contract of employment of an attorney amounts to an equitable as- signment of claim to him, see Nielsen v. Al- bert Lea [Minn.] 98 N. W. 195. See 1 Curr. L. 225, n. 60-62. 66. See 1 Curr. L. 225. 67. McDonald v. New York, 89 App. Dlv. 131, 85 N. Y. S. 1096. [ 68. Carries with It money retained by a city to insure completion of public works. I Chapin v. Pike, 184 Mass. 184, 68 N. B. 42. 60. Plaintiff's letter to defendant saying he had assigned to another, certain bills due from defendant, did not cover "what "was due for extr,a work. Zertanna v. Gray, 102 Mo. App. 188, 76 S. W. 710. 70. Johnson, Nesbitt & Co. v. Gulf & C. R. Co. [Miss.] 34 So. 357. 71. Parties may settle a cause of action without consultation with their attorneys. If It is not done to defraud them, and is done without notice of any equitable assignment to the attorney. Nielsen v. Albert Lea [Minn.] 98 N. "W. 195. 73. Howe V. Howe, 97 Me. 422, 54 A. 908. 73. Query, whether an employer is bound after notice of assignment of future wages to withhold them from employe. Petersen v. Ball, 121 Iowa, 544; 97 N. W. 79. 74. Howe V. Howe, 97 Me. 422, 54 A. 908. 75. In re Phillips' Estate, 205 Pa. 515, 55 A. 213; Third Nat. Bank v. Atlantic City, 126 P. 413. 76. Columbia Finance & Trust Co. v. First Nat. Bank, 25 Ky. L. R. 561, 76 S. W. 150. JfOTBi Cnn snl>seqiient nsisijmees obtnln precedence by first givins notice? Upon this question there is irreconcilable conflict. In some states the rule is that the prior as- signee in point of time is protected, this de- cision being supported by two reasons: (1) A valid assignment once being made the as- signor has no further Interest in the claim; Clark V. Hogeman, 13 W. Va. 718; Luse v. Parke, 17 N. J. Eq. 415: (2) The maxim. Prior in tempore, potior in jure; Maybin v. Klrby, 4 Rich. Eq. [S. C] 105; Coon v. Reed. 79 Pa. 240; Muir v. Schenck, 3 Hill [N. Y.l 228, 38 Am. Dec. 633; Fairbanks V. Sargent. 104 N. Y. 108. 9 N. B. 870, 58 Am. Rep. 490; Tingle v. Fisher, 20 W. Va. 497. In other states, in the Federal courts and in England a different rule prevails; it being held that the question which of the successive bona flde assignees for value of the same obliga- tion is entitled to priority depends upon when notice thereof was communicated to the debtor. Laclede Bank v. Schuler, 120 U. S. 511, 7 S. Ct. 644; Ward v. Morrison. 25 Vt. 593; Murdoch v. Finney, 21 Mo. 138; Mil- ler v. Bomberger, 76 Pa. 78; Merchants," etc.. Bank v. Hewitt, 3 Iowa, 93, 66 Am. Dec. 49; The Blmbank, 72 Fed. 610; Dearie v. Hall, 3 Russ. 1; Stocks v. Dobson, 4 De Gex, M. & G. 11, 16, and annotations thereto. Special no- tice does not seem to be necessary, it being Bufflclent If the party to be affected has Buch knowledge of the facts or circumstan- ces as ought to induce a reasonable belief of the fact, and the debtor is bound from the time of notice, although not concurring In the arrangement: Note to Stocks v. Dobson, 4 De Gex, M. & G. 11. If notice of assign- ments are simultaneous, the earlier assign- ment has priority: Calisher v. Forbes, 7 Ch. App. 109; Murdoch v. Finney, 21 Mo. 138. 140. — Prom note to Graham Paper Co. v. Pem- broke [Cal.] 71 Am. St. Rep. 26. 77. A letter to the holder of the legal title to a chose in action assigned as collateral security offering to sell the property secured by the assignment, and stating that It was so secured, held not sufficient notice so as to give assignee priority over subsequent as- signments of which proper notice was given. In re Phillips' Estate, 205 Pa. 525, 55 A. 216. r.=. Third Nat. Bank v. Atlantic Citv, 12fi F. 413. 3 Cur. Law. ASSIGNMENTS § 4. 535 ineffectual as notice. An assignment being superior to a foreign attachment, it is superior to an assignment after tlie attachment in which the assignee has given no- tice to the holder of the fund." An assignment of property as security for a run- ning account is not security for advances made by the assignee after notice of attach- ments placed on the security by creditors.'" An assignment for the payment of a debt past due of such money as might thereafter become due upon a contract during its performance does not take priority over the claims of an assignee of the contract, who completed it after the assignor's abandonment.^^ The assignee is not a bona fide holder, but he takes the property or right sub- ject to all the equities existing between the parties,'^ he is chargeable with any notice or knowledge the original creditor possessed of fraud on the part of the debtor affecting the collection of the debt,^' takes the right subject to forfeiture for acts of the assignor,''* and is bound by any settlement,'" or release,'* entered into by the assignor prior to the assignment. A plaintiff suing in tort, assigning to his attorneys an interest in the cause of action declared upon, the attorney does . not therebjr become a necessary party to the suit," nor can he be made a party to the suit upon the motion of the adverse party," nor does it entitle the court to treat him as a party for the purpose of giving security for costs." A transfer to an attorney of a part of a cause of action, referring to the cause and authorizing the attorney to do all things necessary for the prosecution or settlement of the cause, authorizes the attorney to prosecute the cause in the assignor's name."" On an absolute assignment of a claim in pajrment of a debt, the surplus to be paid to other creditors of the assignor, the assignee takes the legal title, the equi- table title as to such surplus being in the other creditors.'^ An assignor cannot settle a claim after assignment and notice to the debtor.** An assignor not ac- quiring title until subsequent to the assignment, the assignee takes title by estop- pel.*' A reassignment back to the assignor does not annul the assignment.** § 5. Enforcement of assignment and of rights assigned.^' — The assignment 79. In re PhiUlps' Estate, 205 Pa. 525, 55 A. 216. 80. Howe v. Howe, 97 Me. 422, 54 A. 908. 81. Where a city contractor defaulted and assigned the contract to a surety, who com- pleted the contract and then assigned his claim to plaintiff, such assignments were su- perior to a prior assignment made before any money was earned, to secure a past due debt, as contractor had abandoned contract, and nothing was then due him. Weeks v. New York, 42 Misc. 436, 87 N. T. S. 98. 88. Where a corporation had no power to Issue coupon bonds to pass by delivery, the assignee took them subject to prior equi- ties. Georgetown Water Co. v. Fidelity Trust & Safety Vault Co., 25 Ky. L. R. 1739, 78 S. W. 113. Assignee of judgment acquires the assignor's interest at the date of the transfer. Fischbeck v. Mielenz, 119 Wis. 27. 96 N. W. 426. Assignee of a trust deed in the nature of a mortgage takes it subject to all defenses which the grantor could make against the grantee. Bouton v. Cameron, 205 111. 50, 68 N. E. 800. See 1 Curr. L. 225, n. 63; Id. 226, n. 75. S3. Fuller v. Horner [Kan.] 77 P, 88. 84. Where one transferred liquor certifi- cate after an offense had been committed, which was approved by authorities, who knew of the offense, it will not prevent them from enforcing the forfeiture. In re Culli- nan, 87 App. Dlv. 47, 83 N. T. S. 1025. 8S. Dannenmann v. Charlton [La.] 36 So. 965. SO. Where the assignor, for consideration, releases the other party to the contract who had no notice of the assignment, the release binds the assignee. Smith v. Kissel, 92 App. Dlv. 235, 87 N. T. S. 176. 87. Galveston, H. & S. A. R. Co. v. Mathes [Tex. Civ. App.] 73 S. W. 411. Does not render him a party in interest in the action. McLeland v. St. Louis Transit Co. [Mo. App.] 80 S. W. 30. 88. Galveston, H. & S. A. R. Co. v. Mathes [Tex. Civ. App.] 73 S. W. 411. 89. International & G. N. R. Co. v. Reeves [Tex. Civ. App.] 79 S. W. 1099; Galveston, H. & S. A. R. Co. V. Mathes [Tex. Civ. App.] 73 S. W. 411. 90. International, etc., R. Co. v. Reeves [Tex. Civ. App.] 79 S. W. 1099. 91. Sintes v. Commerford [La.] 36 So. 656. 92. Ivy Coal & Coke Co. v. Long [Ala.] 36 So. 722. 93. Vulcan Detlnning Co. v. American Can. Co. [N. J. Eq.] 58 A. 290. 94. Where defendant had contracted to sell iron to plaintiff who assigned the con- tract to another, and on defendant's refusal to consent, the contract was reassigned to plaintiff, that did not annul the original as- signment so as to authorize plaintiff to sue on the contract. Gardiner Campbell Co. v Iroquois Iron Co. [C. C. A.] 127 F. 648. 95. See 1 Curr. L. 226. 336 ASSIGNMENTS § 5. 3 Cur. Law. being absolute, the assignee may generally sue in his own name," though in some states he must show, as a condition precedent to exercising this right, that he is the owner in his own right and for his own benefit, without accountability,"'' and in an action upon such an assignment the assignor is not a necessary party,°* and where the claim is assigned for security the assignee j" or the assignor, with the knowledge and acquiescence of the assignee,^ may sue thereon in his own name; and the assignee of such a claim may make a settlement with the consent of his assignor,^ and where such claim requires presentation before suit can be brought, presentation by the assignor with the assignee's knowledge and acquiescence is suf- ficient.^ The assignment must be in existence at the commencement of the suit in order to entitle the assignee to sue thereon,* and in some states one's interest in an action being assigned during the pendency thereof, it may be prosecuted to judgment in the name of the original plaintiff.^ The assignee of a trade secret may enjoin employees of his assignor, haviag knowledge of the same, from utilizing it.' The right to attach does not follow the debt assigned.' The assignor in suing the assignee must allege the performance of conditions precedent.' It is sufficient to allege an assignment without specifying the assignor's authority,* though one claiming an assignment through an attorney in fact must show that the latter had authority.^" An allegation of an assignment by a company is not supported by proof of an assignment executed by an individual.^^ Clerical errors will be overlooked.^^ Where a plaintiff claims as an assignee, an amendment of his complaint, so as to declare upon an account stated immediately between the parties without reference to the assignor, is a departure from the original cause of action.^' One assailing the validity of an assignment on the ground that there was no consid- eration must prove lack of consideration.^* The first assignee's title being defective a subsequent assignee must show that he is a bona fide purchaser for a valuable con- sideration.^" The burden is upon the assignee to show that the debtor had knowl- 96. Claims. Huddleson v. Polk [Neb.] 97 N. "W. 624. Practice Act (Gen. St. p. 2591) § 340. Van Pelt v. Sohauble, 68 N. J. Law, 638, 54 A. 437. 97. Uncas Paper Co. v. Corbln, 75 Conn. 675, 65 A. 165. 98. O'Shaugnessy v. Humes, 129 P. 953. 99. Where a claim was assigned to se- cure a debt, the legal title thereto was in. the assignee, even after the debt was paid, in the absence of a reassignment, and the assignee may sue thereon [Ball. Ann. Codes & St. § 4835]. Von Tobel v. Stetson & Post Mill Co., 32 "Wash. 683, 73 P. 788. 1. Lamson v. Marshall [Mich.] 95 N. W. 78. 2. Curtis V. Curtis [Mich.] 96 N. W. 32. 8. Lamson v. Marshall [Mich.] 95 N. W. 78. 4. An undated writing purporting to be an assignment of a contract is not admissi- ble In evidence to show defendant was the owner of the contract at the commencement of the action, where on cross-examination, it Is shown that the writing was actually signed after the action was brought. Lib- erty Wall Paper Co. v. Stoner Wall Paper Mfg. Co. [N. T.] 70 N. B. 501. 5. Code, § 3476. Mayo v. Halley [Iowa] 100 N. W. 529. 6. Vulcan Detlnning Co. v. American Can. Co. [N. J. Bq.] 58 A. 290. 7. Fraud In the contracting of a debt is personal and does not follow an assignment nf the debt, so that the assignee may pro- cure a writ of attachment. Thwing v. Wink- ler, 13 Okl. 643, 75 P. 1126; Thwing v. Humphrey, 13 Okl. 646, 75 P. 1127. 8. Where assignee of a building contract W9,s to pay assignor when paid by the own- er, assignor must allege that the assignee has been paid by the owner. Schilling Co. v. Robert H. Reld & Co., 87 N. T. S. 1115. 9. An allegation that the executor of the payee assigned some notes, without alleging that he had authority from the probate court, is suflloient as It is presumed that a valid assignment Is alleged. Kern v. Brooks [Colo. App.] 73 P. 1092. 10. Darlington Miller Lumber Co. v. Na- tional Surety Co. [Tex. Civ. App.] 80 S. W. 238. 11. Saffler v. Haft, 86 App. Div. 284, 13 Ann. Cas. 318, 83 N. T. S. 763. 12. That one in tracing his title to a trade secret states that the assignment to him was in April, 1898, and the date of assign- ment to his assignor was fixed as In Febru- ary, 1899, held, discrepancy a clerical error. Vulcan Detinning Co. v. American Can. Co. [N. J. Bq.] 58 A. 290 13. Ivy Coal & Coke Co. v. Long [Ala.] 36 So. 722. 14. Colorado Fuel & Iron Co. \. Kidwell [Colo. App.] 76 P. 922. Under Civ. Code, §§ 1614, 1615. DriscoU v. DrIscoU [Cal.] T7 P. 471. 15. Wagenhurst v. Wineland, 20 App. D. C. 85. Where the assignment was made only three days before suit and the assignment 3 Ctit. Law. ASSIGNMENT FOR CEEDITOES § 2. 337 edge of the assignment before a settlement was made.^' An assignor is a compe- tent witness, and may be questioned on cross-examination as to particulars of the transaction occurring before the assignment.^'' Upon default the assignee may purchase claims assigned as collateral security.^* Where a settlement is made with an assignor, after suit is brought by the assignees, of part of the claim the court has jurisdiction to determine the debtor's liability to the assignee." ASSIQITMENTS FOB BENEFIT OF CBEDITOBS. § 9. Collection of Assets and Rednctton to Money. Sale of Assets by Asslsnee (342). § 10. Administration of the Tmst In Gen- eral (343). § 11. Debts and lilabllitles of the Batata (343). § 12. Presentment and Allowance of Claims (344). § 13. Classes and Frlorltles of Debts (344). § 14. Satisfaction and Discharge of Debts and Claims (345). § IS. Accountlns, Settlement and Dls- charge, or Failure of Tmst (345). § 1. Nature of Transaction tn General (337). § a. Statutory FroTlsions and Conflict of Laws (337). § 3. Right to Make a General Assignment (338). § 4, Filing, Recording, or Registering) Q,nallfying of Assignee, Removals, and Sub- stitution (338). § 5. Meaning and Bftect In General (338). § 6. Legality and Bqnltableness (338). § 7. Property Passing to and Rights of the Assignee Therein (341). S 8. liiablllty of Assignee; Bond (342). § 1. Nature of transaction in general.^" — A direct transfer to creditors, with- out the intervention of a duly appointed trustee, is not an assignment for the bene- fit of creditors,''^ nor does this term include the assignment of specific property for the benefit of particular creditors,'^ though in some states an assignment of all the debtor's property to one or more creditors is equivalent to a general assignment,"' a surety on a note being a creditor of the maker within the meaning of such a statute.^* In order to distinguish an assignment from a mortgage, the test is, was it the intention of the parties at the time of executing the instrument to divest the debtor of his title and so make an appropriation of the property affected to the raising of a fund to pay debts? If such was the intention, the instrument is an assignment for benefit of creditors.^" § 2. Statutory provisions and conflict of laws.^' — State acts on the subject are not generally retroactive,"" and must not violate constitutional provisions.''* The law of the state where the assignment was made governs, there being nothing represented sums not really owing the as- signee, held, the latter not a bona flde hold- er. Unoas Paper Co. v. Corbln, 75 Conn. 175, 56 A. 165. 16. Gulf, C. & S. F. R. Co. V. Eldredge [Tex. Civ. App.] 80 S. W. 556. 17. Ivy Coal & Coke Co. v. Long [Ala.] 36 So. 722. 18. The owner of a chose In action as- signed It to secure a loan, his son Joining in the assignment, though having no Inter- est in the fund, under an agreement with the assignee that In default of the payment of premiums on policies on their lives Issued by the assignee, it might sell the assignee's interest and become the purchaser at the sale. Held, on such a sale the assignee could acquire the assigned interest as against the assignor. In re Phillips' Estate, 205 Pa. 631, 55 A. 218. 19. Gulf, C. & S. F. Ry. ,Co. v. Eldredge [Tex. Civ. App.] 80 S. W. 556. 20. See 1 Curr. L. 227. 21. Anniston Iron & Supply Co. v. Annls- ton Rolling Mill Co., 125 F. 974. See 1 Curr. L. 227, n. 1. 22. Assignment of claim for injuries to assignor's attorney held not an assignment 3 Curr. Law — 22 within the meaning of Code Pub. Gen. Laws, art. 16, § 205, and hence need not be record- ed. United Rys. & Elec. Co. v. Rowe, 97 Md. 656, 55 A. 703. Where the transferror re- served the income for his own benefit. Heath v. Wilson, 139 Cal. 362, 73 P. 182. See I Curr. L. 227, n. 3. 23. Where debtor conveyed Its property to Its manager, he to give a mortgage thereon to a creditor, held a mere evasion of the statute [Code 1896, § 2158]. Smith v. Mc- Cadden [Ala.] 36 So. 376. Mortgage of all of grantor's estate held an assignment for benefit of creditors. Pollock v. Jones [C C A.] 124 F. 163. 24. Code 1896, S 2158. Smith v. McCadden [Ala.] 36 So. 376. 25. Smead v. Chandler & Co., 71 Ark 506 76 S. W. 1066. 26. See 1 Curr. L. 227. 27. Kentucky St. 1903, §§ 74-96 Is not retroactive. Pitch v. Duokwall, 25 Ky L. R 1635, 78 S. W. 185. 28. Washington Insolvency Act (Laws 1890, p. 88) § 15 is not unconstitutional as embracing more than one subject, and that not stated in the title. Jensen-king-Eyrd Co. V. Williams [Wash.] 76 P. 934. 338 ASSIGNMENT FOB CEEDITOllS § 3. 3 Cut. Law. in the instrument to indicate that it is to be performed elsewhere,^' and the courts of such state are the only ones having jurisdiction of the proceedings.^" The rights of a nonresident creditor in the collection of his claim in the state of his domicile are not affected by state insolvency laws, unless he has voluntarily sub- mitted himself to their operation,'^ but a common-law assignment, containing no prejudicial provisions and being made in good faith, binds resident and nonresi- dent creditors alike.^^ In the latter ease, the assent of the creditors may be pre- sumed ; in the former it cannot.^* The bankruptcy law does not suspend the opera- tion of state insolvency laws, an assignment being good unless seasonably im- peached by bankruptcy proceedings.^* § 3. Bight to make a general assignment.^^ — In Missouri, insurance com- panies under the surveillance of the superintendent of insurance cannot make a valid assignment for the benefit of creditors."' § 4. Filing, recording, or registering ; qualifying of assignee, removals, and substitution."'' — In some of the states, the deed of assignment must be recorded,'* and it is no excuse that the assignor requested the assignee not to so record it."" That the assignee prior to the assignment and as attorney for several creditors at- tached the property of the debtor, subject to which attachments the property was assigned, does not invalidate the assignment.'"* The assignee's management being wasteful, negligent, or otherwise inefficient, he may be removed upon petition by creditors,*^ though this right may be lost by laches.*^ The assignor being a corporation and insolvent, the courts in some states will remove the assignee and appoint a receiver.*' § 5. Meaning and effect in general.** — Either an acceptance by the assignee or a deposit for record by the assignor without the assignee's acceptance irrevocably vests the beneficial interest in the property in the creditors.*^ In Missouri, the execution of a deed of assignment immediately after giving a preference does not invalidate the latter.*" The intent to waive a constitutional right should be clear.*' § 6. Legality and equitdbleness.*^ — Seals are seldom necessary.** A deed of 29. In re Browning [N. J. Prerog.] 57 A. 869. See 1 Curr. L,. 227, n. 6, 6. 30. In re Browning [N. J. Prerog.] 57 A. 869. 31. Such assignment Is not good as against a prior attachment, the creditor not assenting. Weston v. Nevers CN. H.] 54 A. 703. 32. 33. Weston v. Nevers [N. H.] 54 A. 703. 34. Hiniard v. Burlington Shoe Co. [Vt.] 56 A. 283. Assignment operates as a valid release. Haljek v. Luck, 96 Tex. 517, 74 S. W. 305. The assignee may still sue under a state statute for property fraudulently con- veyed. Downer v. Porter, 25 Ky. L. R. 571, 76 S. W. 135. Does not suspend the juris- diction of state courts where no proceedings have been Instituted in bankruptcy respect- ing the matter in controversy. Jensen-King- Byrd Co. v. Williams [Wash.] 76 P. 934. 315. See 1 Curr. L. 227. SO. Beale v. Connecticut Fire Ins. Co. [C. C. A.] 120 P. 790. 37. See 1 Curr. L. 227. 38. Comp. St. 1899, c. 6, § 6, providing that an assignment must be recorded within 24 hours, is mandatory and assignment void unless so recorded. Huddleson v. Polk [Neb.] 97 N. W. 624. Where assignment was de- posited for record and before recorded with drawn, held no record. ^^ ^.~ - -. 227, n. 10. Id. See 1 Curr. L. 39. Huddleson v. Folk [Neb.] 97 N. W. 624. 40. He having no lien on the land for his fees. Hllliard v. Burlington Shoe Co. [Vt.] 56 A. 283. 41. Dunlap V. Fible & Crabb Distilling Co., 25 Ky. L. R. 1116, 77 S. W. 173. See 1 Curr. L. 227, n. 11; Id. 228, n. 15. 42. Application made 7 years after ap- pointment and 6 years after waiver of for- mal accounting by creditors, the debts ex- ceeding the assets, held too late. In re Geb- hart, 41 Misc. 570, 85 N. T. S. 118. 43. P. L. 1899, p. 146, § 24. Corporation insolvent had not paid dividends for three years and was on the eve of bankruptcy; held, receiver would be appointed. Gilroy v. Somerville Woolen Mills [N. J. Ea.l 58 A. 651. 44. See 1 Curr. L, 228. 45. In re Browning [N. J. Prerog.] 57 A. 869. See 1 Curr. 228, n. 17. 40. Preference given by deed of trust. Smead v. D. W. Chandler & Co., 71 Ark. 506, 76 S. W. 1066. 47. Construing the phrase "subject to homestead exemption" as used In an assign- ment for benefit of creditors. Armour v. Doig [Fla.] 34 So. 249. 48. See 1 Curr. L. 228. 49. MlUiken v. Houghton, 97 Me. 447, 54 A. 1075. 3 Cur. Law. ASSIGNMENT FOE CEBDITOKS 239 assignment executed in the name of a corporation by its president need not show on its face authority for its execution.'" A deed of assignment by the directors of a corporation being made without authority may be validated by the subsequent assent or acquiescence of the stockholders/^ and, the stockholders so assenting, creditors cannot attack the assignment in that it was made without authority." By assenting to the assignment, creditors will be estopped to question the validity thereof.'* The deed of assignment is not rendered void by providing for payment of the assignee."" The assig-nment being void in part it is void in toto."" Reservation of property.^" — The assignor intentionally withholding or secret- ing a part of his property, the assignment is void." 50. HlUlard v. Burlington Shoe Co. [Vt.] 66 A. 283. 61. Blanton v. Kentucky DistlUerles & "Warehouse Co.. 120 P. 318. But see 1 Curr. L. 228, n. 18-21. 52. In that proper legal notice of the meeting was not given. State Nat. Bank v. Duncan [Miss.] 35 So. 569. 63. Kaufman v. Simon, 80 Miss. 18». 04. Armour v. Doig [Fla.] 34 So. 249. ."55. NOTE. The assigninent betas void tn paitf, it is void in toto. Ware v. Wanless, 2 Wyo. 144. Equity will not sever the ele- ments of fraud from the instrument and give effect to the rest. Ware v. Wanless, 2 Wyo. 144; Kayser v. Heavenrioh, 5 Kan. S24. A debt being Intentionally preferred, the whole assignment is void. Hiller v. Ellis, 72 Miss. 701, 18 So. 95. — From note to Bank of Little Rock v. Frank [Ark.] 58 Am. St: Rep. 65, 99. 56. See 1 Curr. li. 228. B7. Armour v. Doig [Fla.] 34 So. 849. Evidence that a few months previous the as- signor had a larger amount of property than that turned over is competent on this ques- tion, no material losses appearing. Armour V. Doig [Fla.] 34 So. 249. See 1 Curr. X.. 228, n. 25. NOTE. Illegal reservations: A voluntary assignment for the benefit of creditors which reserves to the assignor any interest, benefit, or advantage, out of the property conveyed, to the exclusion or injury of creditors is fraudulent and void on its face. Kayser v. Heavenrioh, 5 Kan. 324; Claflin v. Iseman, 23 S. C. 416; Chafee v. Blatchford, 6 Mackey, 459; Ware v. Wanless, 2 Wyo. 144; Lawrence V. Norton, 15 F. 853; Muller v. Norton, 19 F. 719; Stadler v. Carroll, 19 F. 721; Bailey V. Mills, 27 Tex. 434; note to Turnipseed v. Schaefer, 2 Am. St. Rep. 24; Baldwin v. Peet, 22 Tex. 708, 75 Am. Deo. 806; Linn V. Wright, 18 Tex. 317, 70 Am. Dec. 282; Pike v. Bacon, 21 Me. 280, 38 Am. Dec. 259; Anderson v. Ful- ler, 1 McMuU. Eq. 27, 36 Am. Dec. 290; Mc- Clurg V. Lecky, 3 Penr. & W. 83, 23 Am. Deo. 64; Doremus v. Lewis, 8 Barb. 124, 128; Curtis V. Leavitt, 15 N. T. 9, 116; Kuyk'ndall v. Mc- Donald, 15 Mo. 416, 57 Am. Dec. 212; Austin V. Bell, 20 Johns. 442, 11 Am. Dec. 297. Reservation of surplus. Grimshaw v. Wallter, 12 Ala. 101; MoReynolds v. Dedman, 47 Ark. 347; Truitt v. Caldwell, 3 Minn. 364, 74 Am. Dec. 764. Reservation of surplus after paying certain creditors. Doremus v. Lewis, 8 Barb. 124; Truitt v. Caldwell, 3 Minn. 364, 74 Am. Dec. 764; Greeley v. Dixon, 21 Fla. 413, 58 Am. Rep. 673. Reservation of the surplus, after payment of all the creditors, is valid. Hoffman v. Mackall, 5 Ohio St. 124, 64 Am. Dec. 637. Compare Bai- ley V. Mills, 27 Tex. 434. Reservation of sur- plus after the complete discharge of tlie debts of all "assenting" creditors Is void, in so far as it attempts to protect such sur- plus from the claims of the nonassenting creditors,, but does not invalidate tlie as.slgii- ment as to the assenting creditors. Skip- wlth v. Cunningham, 8 Leigh, 271, 81 Am. Dec. 642. Ijeavtas debtor in possession vitiates an assignnient: Anderson v. Fuller, 1 McMull. Eq. 27, 36 Am. Dec. 290; Shufeldt v. Jenkins, 22 P. 359, 368; Baum v. Pearce, 67 Miss. 700; especially where such possession is for any considerable length of time, and is unex- plained (Grimsley v. Hooker, 3 Jones, Eq. 4, 67 Am. Dec. 227) ; or where control of the property is so reserved as to enable the debtor, at his pleasure, to make or withhold payment, according as his creditors shall submit to or reject the terms dictated by him. Niolon v. Douglas, 2 Hill Ch. 443, 30 Am. Dec. 368; Saunders v. Waggoner, 82 Va. 316; McCormick v. Atkinson, 78 Va. 8. A debtor, in making an assignment for the benefit of his creditors, cannot withdraw from its operation any part of his property for the future support of himself. Pettibone V. Stevens, 15 Conn. 19^ 38 Am. Dec. 57. So. if the assignor reserves one hundred dollars out of assets, for his own benefit, it will make the assignment fraudulent and void as to creditors, although the assets assigned are of great value, and the sum witliheld by the assignor is to meet pressing family necessities (Montgomery v. Goodbar, 69 Miss. 333; but In Shufeldt v. Jenkins, 22 Fed. Rep. 359) 367, It is said that: "The law does not forbid the retention of a few hundred dollars by an insolvent grantor for paying small debts, when circumstances warrant the measure;" but that the deed of assign- ment ought not to conceal the fact. An assignment which includes property consumable in using. Is fraudulent and void, if it provides that the debtor shall remain in possession of such property and use it although other property not consumable is also included. SommerviUe v. Horton, 4 Yerg. 541, 26 Am. Dec. 242. An assignment is not avoided, however, by the assignor's retention of property specified In the instru- ment as having been assigned. Pike v. Ba- con, 21 Me. 280, 38 Am. Dec. 259. Any reservation, in the assignment, of property for the benefit of the debtor's fam- ily, is fraudulent and void as to his non- assenting creditors (McClurg v, Lecky 3 Penr. & W. 83, 23 Am. Dec. 64; Beck v. Bur- dett, 1 Paige, 305, 19 Am. Deo. 436); who may 340 ASSIGNMENT FOE CKEDITORS § 6. 3 Cur. Law. Preferences."^ — An assignment preferring certain creditors is void,"" but an assignment providing for the payment of a secured creditor/" or a void claim/* does not provide for a real preference and is valid. take the property in execution (McAllister v. Marshall, 6 Bin. 338, 6 Am. Dec. 458). While an assignment for the benefit of creditors Is fraudulent and void as against attaching creditors of the assignor, if he re- served a part of his property not exempt by law for his own benefit (Wichita, etc., Gro- cery Co. V. Records, 40 Kan. 119; Penzel Grocer Co. v. Williams, 53 Ark. 81), a gen- eral assignment of all the debtor's property is not rendered fraudulent because the debt- or reserves to himself a homestead or other exemptions to which he is lawfully entitled. Southern Suspender Co. v. Van Berries, 91 Ala. 507; Frank v. Myers, 97 Ala. 437; Rich- ardson V. Strlngfellow, 100 Ala. 416; Penzel Grocer Co. v. Williams, 53 Ark. 81; Clark Shoe Co. V. Edwards, 57 Ark. 331; Baker v. Baer, 59 Ark. 503; King v. Hargadine-Mc- Kittrick, etc., Co., 60 Ark. 1; Wilhoit v. Bry- ant, 78 Cal. 263; Parker v. Cleveland, 37 Fla. 39; Dorr v. Schmidt, 38 Fla. 354; Bradley v. BIsohel, 81 Iowa, 80; Muhr v. Plnover, 67 Md. 480; Hartzler v. Tottle, 85 Mo. 23; Bob- bitt V. Rodwell, 105 N. C. 236; Morehead Banking Co. v. Whltaker, 110 N. C. 345; Da- vis V. Smith, 113 N. C. 94; Haynes v. Hoff- man, 46 S. C. 157; Durham, etc, Co. v. Hemp- hill, 45 S. C. 621; Dawley v. Sherwln, 6 S. D. 594; Richardson v. Marqueze, 59 Miss. 80, 42 Am. Rep. 353; McFarland v. Bate, 45 Kan. 1. Creditors are not hindered or delayed by the reservation of that which they have no right to touch. Hildebrand v. Bowman, 100 Pa. St. 580. The reservation of money which, in amount, Is equal to a personal property exemption, in lieu of such exemp- tion is no evidence of a fraudulent purpose. Morehead Banking Co. v. Whltaker, 110 N. C. 345. Nor Is a provision in the assignment that the assignee shall sell the property conveyed and pay to the Assignor a certain amount of money as his personal property exemptions. Blair v. Brown, 116 N. C. 631; showing facts, however, constituting suffi- cient evidence of a conspiracy to defraud the creditors to admit evidence of declarations of the debtor made after the assignment. It has been held that the reservation, from the proceeds of personal property assigned, of a sum equal to the assignor's exemptions' ren- ders the deed of assignment void (King v. Ru- ble, 54 Ark. 418) ; and, on the other hand, that, if the deed of assignment does not provide for the payment of exemptions out of the proceeds of the assigned property, and no fraud or collusion as to the execution of the instrument is shown, the subsequent allow- ance of the exemptions out of the sale of the assigned property does not render the deed of assignment fraudulent as to creditors (Dorr v. Schmidt, 38 Fla. 354). An assign- ment Is not invalid because of a direction that a chattel exemption to which the debt- or is entitled under the homestead laws of the state shall be in money derived from a sale of the property assigned for the benefit of creditors. Adler v. Cloud, 42 S. C. 272. But if appraisers award the assignor his ex- emption out of the proceeds of real estate to be sold, and the assignee afterward pays over the money of his own motion and witli- out an order of the court, he will be sur- charged with it on proof that the assignor's right to receive it had been forfeited by fraud. Kreider's Estate, 135 Pa. St. 578. An assignor for the benefit of creditors, who fraudulently denies the ownership of prop- erty belonging to him, and thus hinders the assignee in the discharge of his duties, for- feits his right to receive out of the assigned estate "so much property as would be ex- empt from levy and sale on execution," re- served by him in his deed of assignment. Kreider's Estate, 135 Pa. St. 578. Wlthboldlngr of property: It is a fraud to intentionally withhold from a general as- signment for the benefit of creditors prop- erty which ought to have been included in it. If necessary, he should devote the whole of his property to the payment of his debts. Farrington v. Sexton, 43 Mich. 454; Smith v. Woodruff, 1 Hilt. 462; Tates v. Lyon, 61 Barb. 205, 209; Young V. Heermans, 66 N. T. 374. 382; Shufeldt v. Jenkins, 22 F. 359, 367; Pike V. Bacon, 21 Me. 280, 38 Am. Dec. 249; Graves v. Roy, 13 La. 454, 33 Am. Dec. 568; Turnlpseed v. Schaefer, 76 Ga. 109, 2 Am. St; Rep. 17; Albany, etc.. Steel Co. v. Southern, etc.. Works, 76 Ga. 135, 2 Am. St. Rep. 26. An assignment for the benefit of creditors purporting to convey all of the property "^ the assignor except that ex- empt is made fraudulent by the intentional withholding of any part of It not exempt. Penzel Grocer Co. v. Williams, 53 Ark. 81; Beardsley v. Frame, 85 Cal. 134. Though such material part is withheld for the pur- pose of applying it to other debts not se- cured by the assignment, and is actually so applied. Probst v. Welden, 46 Ark. 405; Clark Shoe Co. v. Edwards, 57 Ark. 331. The withholding of property considered to be of little or no value does not, however, invalidate an assignment. Sabin v. Leben- baum, 26 Or. 420. It is not so much the value of Vhat an assignor retains from an assignment that affects Its good faith, as the fact of concealment. Shufeldt v. Jenk- ins, 22 F. 359, 368. A party must be deemed to have intended the natural and Inevitable consequences of his own acts; and so, when they are volun- tary and necessarily operate to defraud oth- ers, he will be deemed to have Intended the fraud. Coursey v. Morton, 132 N. Y. 556. If, therefore, an assignor for the benefit of creditors intentionally withholds and se- cretes property of a substantial value from the possession of the assignee. It renders the assignment void. Coursey v. Morton, 132 N. Y. 556; Turnlpseed v. Schaefer, 76 Ga. 109, 2 Am. St. Rep. 17; Farrington v. Sexton, 43 Mich. 454; Baum v. Pearce, 67 Miss. 700; Tarbox v. Stevenson, 56 Minn. 510; Barnitz v. Rice, 14 Md. 24, 74 Am. Dec. 513. — Prom note to Bank of Little Rook v. Frank, 68 A. S. R. 66. 58. See 1 Curr. L. 228. 69. A mortgage disposing of the whole of the grantor's estate for the purpose of se- curing a single creditor is an assignment for creditors and void as a creference. Pol- 3 Cur. Law. ASSIGNMENTS POE CEEDITOES § 7. 341 § 7. Property passing to and rights of the assignee therein.''^ — The assign- ment being valid,'" all the right, title, and interest the assignor has in the prop- erty passes thereby,'* and becomes vested in the assignee the moment he accepts the trust and files the assignment for record.'" Under a voluntary assignment, the assignee becomes a trustee for the creditors." The estate does not "devolve" upon the assignee by the assignment, but is "granted" by it.'^ The assignee mak- ing an assignment for benefit of creditors, his assignee takes no title or right to the property held by his assignor as assignee.'* At the common law, the assignee stands in the shoes of the assignor, representing him and taking the assigned property subject to all transfers and incumbrances, whether fraudulent as to cred- itors or not, and subject also to all equities existing between the assignor and any particular creditor;" under this rule he cannot sue the assignors for conspiring with others to defraud the firm and its creditors," nor does he acquire title to property held by the assignor under a contract of conditional sale, though such contract is not recorded,^^ the seller being entitled to enforce the contract and ob- tain possession of the property by petition of intervention in the assignment pro- ceedings,'^ no demand or surrender of the note given for the purchase price be- ing necessary to entitle the seller to so intervene," and there being a balance due the seller after the return of such chattels, he may prove it against the estate.'* In some of the states, however, this rule has now been changed by statute, the assignee representing the creditors, not the assignor,'" and hence he has power to set aside all conveyances or transfers of property by the assignor, which are fraudulent as to creditors, whether the property be within or without the state wherein he is ap- pointed," and the creditors have through him the rights of attaching creditors." An assignment for the benefit of creditors does not at the common law, in the absence of an estoppel, pass the debtor's interest ■ in a contingent remainder," though this ride has been changed by statute in some states." The assignor's wife not joining in the assignment, has no effect on her dower interest.*' The interest of an assignor in property can only be enforced or collected by the assignor.'^ A secured creditor not being paid may sell his security after notifying the assignee, and the sale being made in good faith and for as large a sum as possible, it is valid.'' lock V. Jones [C. C. A.] 124 F. 163. See 1 Curr. L. 228, n. 28, 29. 60. Within act requiring- assignor to file a schedule of preferred creditors. Sutton v. Bessent, 133 N. C. 559, 45 S. E. 844. Attach- ment. Hilliard v. Burlington Shoe Co. [Vt.] 56 A. 283. 61. Within act requiring assignor to file a schedule of preferred creditors. Sutton v. Bessent, 133 N. C. 559, 45 S. B. 844. 62. See 1 Curr. L. 228. 63. The assignment being void, the as- signee acquires no title. Beale v. Connecti- cut Fire Ins. Co. [C. C. A.] 120 F. 790. 64. Assignment by partner held to convey- all the interest of such partner in partner- ship realty, title to which stood in the part- ners' individual names. Kyan v. Ruft, 90 Minn. 169, 95 N. W. 1114. See 1 Curr. L. 229, n. 39. 65. Declaring the Pennsylvania rule. In re Bro-w-ning [N. J. Prerog.] 67 A. 869. 66. Hillis V. Asay, 105 111. App. 667. 67. Construing Civ. Code, S 4491. Babcook V Maxwell [Mont.] 74 P. 64. 68. Rutherford v. Loving [Tex. Civ. App.] 73 S. W. 418. 60. In re St. Paul & K. C. Grain Co., 89 Minn. 98 94 N. W. 218; In re Wise, 121 Iowa, 359, 96 N. W. 872. This rule has been adopt- ed by statute in Montana [Civ. Code, § 4521]. Babcook V. Max-well [Mont.] 74 P. 64. 70. This is not changed by Rev. St. 1899, § 365, giving such assignee the po-wers of a trustee in a deed of trust. Haseltine v. Messmore [Mo.] 82 S. W. 115. 71, 72, 73. In re Wise, 121 lo-wa, 359, 96 N. W. 872. 74. Where contract Hxed price, testimony as to value is immaterial. In re Wise, 121 lo-wa, 359, 96 N. W. 872. 75. Gen. St. 1894, § 4233. In re St. Paul & K. C. Grain Co., 89 Minn. 98, 94 N. W. 218. 76. 77. In re St. Paul & K. C. Grain Co., 89 Minn. 98, 94 N. W. 218. 78. Wilson v. Langhorne [Va.] 47 S. E. 871. 79. Code 1887, 5 2418. Wilson v. Lang- horne [Va.] 47 S. B. 871. See 1 Curr. L. 229, n. 45. 80. Hanna's Assignees v. Gay, 26 Ky. L. R. 1794, 78 S. W. 916. 81. Where assignor's executrix joined In suit, held misjoinder of parties. Com. -Trust Co. V. Frick, 120 F. 688. 82. Arbogast v. American Exch. Nat. Bank [C. C. A.] 125 F. 518. 342 ASSIGNMENTS FOE CREDITOES 8 8. 3 Cur. Law. Property transferred or conveyed hy assignor}^ — A sale by a debtor to a cred- itor, though made the day of the assignment, is valid as between the parties and cannot be set aside by the assignee where the only result would be to benefit the debtor.'* An assignee claiming that a transfer by the assignor is within a statu- tory prohibition must prove the facts bringing the transaction within the terms of the statute and malce it applicable,^^ there being no presxunption that the property was delivered after the execution of the assignment § 8. Liability of assignee; bond.^'' — An assignee is only bound to use ordi- nary and reasonable diligence in the execution of his trust;*' he is not personally liable upon a lease taken as part of the assigned estate,'^ and a creditor expressly releasing him from liability is bound by the release."" The assignee violating the conditions of the order of discharge,"^ as where he wrongfully redelivers property to the assignor, an action may be maintained on his bond for the damages caused thereby,'^ unless the aggrieved creditor assents to such violation."^ In Wisconsin, the plaintiff need not file security for costs."* The creditor does not lose his right to proceed upon the bond by proving his claim in bankruptcy proceedings, after- wards brought by the assignor."" A surety on an assignee's bond, conditioned that the assignee will faithfully discharge all his duties, is liable for his principal's failure to pay over the assets as required by law."" A proceeding to release the sureties from liability for subsequent acts or omissions of the principal may be ex pai'te as to creditors of the principal, and, upon notice, to the latter only."' § 9. Collection of assets and reduction to money. Sale of assets by as- signee.^^ — In some states, the assignee may sell real property at private or public sale,"" an appraisal not being necessary.^ If an appraisal, however, is necessary, the including of personalty is an irregularity which is cured by a confirmation of the sale as provided by the statutes, without any exception having been filed there- to.^ The assignee and administrator of the deceased assignor may join in a special proceeding for the sale of the real estate to pay debts,' and an allegation in the petition that the intestate was seized in fee of the land does not affect the rights of creditors in such land.* The assignee selling claims of the assignor, not guar- 83. See 1 Curr. L.. 229. 84. Would become part of his exempt property. Murray v. Williamson, 133 N. C. 318, 45 S. B. 637. See 1 Curr. L. 229, n. 52. 85. Dunn v. Train [C. C. A.1 125 P. 221. 86. Evidence held insufficient to support such a contention. Hayes v. Ammon, 90 App. Div. 604, 85 N. Y. S. 607. 87. See 1 Curr. L. 230. 88. He is not responsible for stolen goods unless It can be shown that the loss occurred by reason of his culpable negligence. HllUs V. Asay, 105 111. App. 667. 89. Man v. Katz, 40 MIso. 645, 83 N. T. 3. 94. 90. Held to have released assignee by a letter, and the latter having sold land upon which a lien existed and transferred the pro- ceeds to another pursuant to an agreement to which the creditor had assented, the as- signee is not liable. Louisville Ins. Co. v. Tate, 25 Ky. L. R. 61, 74 S. W. 722. 91. • Ringenoldus v. Abresch, 119 Wis. 410, 96 N. W. 817. 92. An assignee being discharged on con- dition that assignor pay costs and expenses, redelivered property without assignor so do- ing, held action not a collateral attack on or- der of discharge, and maintainable, It being Immaterial that the sureties might not be liable for debts Incurred in the management of the estate. Construing also Rev. St. 1898, §§ 1700, 1701, 2832. Ringenoldus v. Abresch, 119 Wis. 410, 96 N. W. 817. 93. Accepting an indemnity bond, held an assent to the release. Ringenoldus v. Ab- resch, 119 Wis. 410, 96 N. W. 817. 94. Construing Rev. St. 1898, § 986. Ring- enoldus V. Abresch, 119 Wis. 410, 96 N. W. 817. 95. Ringenoldus v. Abresch, 119 Wis. 410, 95 N. W. 817. 96. Wilson's Assignees v. Louisville Nat. Banking Co., 25 Ky. L. R. 1065. 76 S. W. 1095. 97. Construing Code Civ. Proc. § 812. Sie- bert V. Mllbank, 88 N. T. S. 993. 08. An assignment directing a sale with "all reasonable dispatch" dees not violate Rev. St. § 2312, providing for a sale of the property. Armour v. Doig [Fla.] 34 So. 249. See 1 Curr. L. 230. 99. Kentucky St. 5 87, as amended by Sess. Acts 1898, p. 104. Blanton v. Kentucky Distilleries & Warehouse Co., 120 P. 318. 1. Kentucky St. § 2362 et seq. Blanton v. Kentucky Distilleries & Warehouse Co., 120 P. 318. 2. Blanton v. Kentucky Distilleries & Warehouse Co., 120 P. 318. 3. 4. Robinson v. McDowell, 138 N. C. 182, 45 S. E. 545. 3 Cur. Law. ASSIGNMENTS FOE CKEDITOES § 11. 343 antying the amount, cannot recover from the purchaser money paid him by an attorney who had collected the same prior to the sale.= An assignee cannot indirectly purchase assigned property," though he may ac- quire property, which he has fairly sold in his fiduciary capacity, after the sale is complete and the title vested in the purchaser, but the sale remaining executory, he is disqualified to buy,' and the burden of showing that the first sale was fairly and regularly made is upon the assignee.' Validity and setting aside sale.^ — Persons having no interest in the property should not be made parties to proceedings on exceptions to the judicial sale of the property of the assignor.^" § 10. Administration of the trust im, general}^ — A court obtaining jurisdic- tion of the proceedings, no other court has the right to interpose for the purpose of adjusting any claim or administering the estate, except, perhaps, a court of equity may, under special circumstances, intervene to prevent a failure of justice.^^ The assignee must administer the estate under the supervision of the court having juris- diction of the proceedings.^^ At common law, the effect of an assignment for the benefit of creditors is to put an end to the business as ordinarily conducted, it being the duty of the assignee to proceed without unnecessary delay to convert the as- signed estate into money and to apply the same to the payment of the assignor's debts,^* and the assignor cannot in the deed of assignment authorize his assignee to continue and carry on the business, either for the benefit of creditors or for his own benefit.^* While this is the general rule, there are exceptional cases in which the assignee with the consent of the creditors may work up the stock on hand and prepare it for the market, it being manifest that it will be for the benefit of the assigned estate.^" The assignee, on his own judgment and against the protest of creditors, electing to continue a manifestly improfitable business, he is liable for the cash and valiie of the property on hand when taking charge of the business.^^ § 11. Debts and liabilities of the estate.^^ — The claim must not be fraudu- lent,^" and a lien being claimed, the petition must assert the same.^" A claimant is not entitled to an allowance from the estate for services rendered in contesting other claims, the assignee being represented by competent counsel.^^ Claim of assignee for compensation and allowance.^'' — The assignment being fairly made in good faith, the assignee is entitled to reasonable compensation for beneficial services and disbursements,^' and for this compensation the assignee has 5. Remedy If any is against attorney. Cur- tis V. Albee, 36 App. Div. 145, 83 N. T. S. 430. O. Whore he guaranteed that the purchas- er could sell the property for a certain price, if not he would buy it, and in furtherance of such guaranty did buy it, the price guaran- teed being more than the property could be sold for, held purchase invalid. Nabours v. McCord [Tex. Civ. App.] 75 S. W. 827. See 1 Curr. L. 230, n. 69-72. 7. Naboura v. McCord [Tex.] 80 S. W. 595. S. Nabours v. McCord [Tex. Civ. App.] 75 S. W. 827. 9. See 1 Curr. L. 230. 10. Assignor having fee, daughter should not be made a party. McAdams v. Norton's Assignee, 25 Ky. L. R. 1719, 78 S. W. 880. 11. For rules respecting the collection of assets, administration, and settlement, see Bankruptcy, 1 Curr. L. 311; Estates of Deced- ents, 1 Curr. L. 1090; Receivers, 2 Curr. I* 1465; Trusts, 2 Curr. L. 1924. See, also, 1 Curr. L. 231. la. Hillis V. Asay, 105 111. Al>p. 667. 18. In re Browning [N. J. Prerog.] 67 A. S69. 14. Cooper V. Lankford, 25 Ky. K R. 1578, 78 S. W. 197. See 1 Curr. L. 231, n. 82. 15, 16, 17. Cooper v. Lankford, 25 Ky. L. R. 1578, 78 S. W. 197. 18. See 1 Curr. L. 231. 19. Evidence that the creditor knew of and participated in another fraudulent claim is admissible on the issue as to whether the creditor's claim is fraudulent. Baum v. Cor- sicana Nat. Bank [Tex. Civ. App.] 76 S. W. 863. ao. Petition held to assert a lien on or interest in the proceeds of a sale of the as- signed property under an attachment thereon. Baum v. Corsicana Nat. Bank [Tex. Civ. App] 75 S. W. 863. 21. This under Ky. St. 1899, 8 489, allowing parties in Interest a reasonable compensa- tion for prosecuting for the benefit of others interested. Weller v. Hull's Assignee, 24 Ky. L,. R. 2185, 74 S. W. 172. 22. See 1 Curr. L. 231. 23. Armour v. Doig [Fla.] 34 So. 249. 344 ASSIGNMENTS FOE CEEDITOES § 13. 3 Cur. Law. a lien on the estate/* which lien is unaffected by subsequent bankruptcy proceed- ings,^" and is not waived by surrendering all the assets to the .trustee in bank- ruptcy.'° The assignee may iu good faith employ counsel to advise and assist Mm in the discharge of his duties, and may pay them out of the trust fund reasonable compensation for their services,^^ and the allowance being made direct to the at- torneys it cannot be defeated by any subsequent arrangement made by the assignor with his assignee.'" An allowance of compensation,''" or attornejr's fees,*" will not generally be disturbed on appeal. § 13. Presentment and allowance of claims.^''^ — Statutes requiring the filing of claims against insolvents do not relate to a claim for an indebtedness incurred by the assignee on behalf of the estate after the assignment.'^ A claim being fraudulent, the creditor cannot object to the claim of another.'^ A claim should not be rejected without proof, and in some cases, pleadings should be filed and a trial had°* before the proper officer, "* of the issues raised. An objection to the allowance of a claim is sufficient if adequate to identify the claim.^* Exceptions by a creditor to the allowance of exemptions to the assignor are an assertion of his claim and makes him a party t» the proceedings, so that if the claim is not then barred by limitations, such defense cannot be set up after a judgment in his favor, though he did not present his claim to the assignee for allowance.'^ Payment by a debtor of the assignor, of a debt contracted by the assignor subsequent to the as- signment, which does not result in benefit to the creditors, cannot be credited on the payor's debt.'* A purchaser of goods assuming the debts of the seller as part consideration, such creditors are entitled to share in the purchaser's estate subse- quently assigned for the benefit of creditors and entitled to have the assignee ac- count to them.'' The assignee is bound by the decree of a court unless he appeals therefrom,*" and a creditor objecting to the allowance of the assignor's exemption, a trial on the merits resulting in favor of the creditor not being appealed from, is binding upon the assignee, though not a party to the proceedings, no other creditors having a debt superior to the exemption.** § 13. Classes and priorities of debts.*^ — The assignee takes the property of his assignor subject to all equities and liens that might have been enforced before the assignment;*' thus a mechanic's lien,** a creditor secured by a deed of trust,*" Joint assignment by corporation and presi- dent thereof, corporation creditors claiming Individual assets. Dunlap v. Fible & C. Dis- tilling Co., 25 Ky. L,. R. 1116, 77 S. W. 173. Estate sold for $60,000, assignee put in two years' time, held entitled to $2,400 compensa- tion. Id. 24, 25, 26. In re Chase [C. C. A.] 124 F. 753. 27. Berkeley v. Green [Va.] 46 S. B. 387; Mattlngly's Trustee v. Mattingly, 24 Ky. L. R. 2029, 72 S. W. 802. 28. Mattlngly's Trustee v. Mattingly, 24 Ky. L. R. 2029, 72 S. W. 802. 29. Auditor's finding of fact. In re Bow- el's Estate [Pa.] 67 A. 981. 30. Tliough appearing small in view of all the circumstances. Thum v. Kentucky Citi- zens' Bldg. & Loan Ass'n's Receiver [Ky.] 80 S. W. 790. 31. See 1 Curr. I,. 231. 32. Ringenoldus v. Abresch, 119 Wis. 410, 96 N. W. 817. 33. Baum v. Corsloana Nat. Bank [Tex. Civ. App.] 75 S. "W. 863. 34. "Where it was alleged that the claim belonged to the assignor's father's estate and that the father had devised him property subject to such Indebtedness. Weller v. Hull's Assignee, 24 Ky. L. R. 2185, 74 S. W. 172. 35. In Alabama, the register In chancery may hear objections to a preferential allow- ance as well as to the claim as a whole [Code 1896, §§ 4162-4173]. Winston v. Miller [Ala.] 35 So. 853. 36. Held adequate though not stating the representative capacity of the claimant and misstating the amount of the preference claimed. Winston v. Miller [Ala.] 35 So. 853. 37. Matthews' Assignee v. Matthews' As- signee, 25 Ky. L.. R. 1873, 79 S. W. 188. 38. Miller v. Arthur [Va.] 46 S. B. 323. 39. Voorhees, Miller & Co. v. Porter, 1S4 N. C. 691, 47 S. B. 31. 40. Decree of the probate court distrib- uting the property of the assignor to judg- ment creditors. Snyder v. Murdock, 26 Utah, 233, 73 P. 22. 41. Matthews' Assignee v. Matthews' As- signee, 25 Ky. L. R. 1873, 79 S. W. 188. 42. See 1 Curr. L. 231. 43. John P. Kane & Co. v. Kinney, 174 N. T. 69, 66 N. B. 619. 44. If Hen statement Is filed within the 3 Cur. Law. ASSISTANCE, WEIT OF. 345 and the beneficiaiy of trust funds/' are entitled to preferential payment. In some states -wages of employes earned within a certain time before the assignment are given priority.*^ Creditors having liens should be first compelled to exhaust their liens and as to any balance should be allowed to share pro rata in the same man- ner as unsecured creditors.*' The claims of creditors who stand in a hostile atti- tude to an assignment cannot be prorated with the claims of those who have com- plied with the act iu a distribution of the proceeds of the assigned property/" but an action by a creditor to set aside the assignment on the ground of fraud is not an election by him to take in hostility to the assignment."" § 14. Satisfaction and discharge of debts and claims.^^ — The assignee being a debtor of the assignor, the debt, less commissions thereon, will be set off against the commissions allowed such assignee."^ An insolvent having executed simul- taneously two deeds of assignment, each for property in separate states, creditors presenting their claims in one state are not entitled to participate in the distribu- tion of assets in the other state imtil the creditors in the latter state have received in the other state a percentage on their claims equal to the percentage received by the creditors in such state."' The assignment directing the distribution to be ratable, a creditor holding collateral security cannot receive dividends upon the face of his claim without crediting the value of the collaterals."* A creditor hav- ing a claim antedating the assignment, and having full knowledge of the latter and the administration of the estate, cannot enforce a judgment, subsequently re- covered, outside of the insolvency proceedings."" § 15. Accounting, settlement and discharge, or failure of trust.^^ — One de- manding an accounting several years after waiver of a formal accounting by the other creditors must do so by a suit in equity."' That the assignee was not charged on the accounting with interest on funds he neglected to invest is no ground for denying him commissions or the taxable costs of his accounting."' Costs in an accounting should be taxed by the clerk on notice to all parties who appeared in the proceeding,"" though the court will tax them in the first instance if all parties have notice" of the motion and there is no dispute.'" The assignment being settled out of court, the assignor's title to the assets is not affected thereby." ASSISTANCE, WRIT OE. Courts of equity have jurisdiction to issue the writ,'^ but a judge at chambers has not.'* The judgment of a court ordering the writ may operate as a con- statutory time. John P. Kane & Co. v. Kin- ney, 174 N. Y. 69, 66 N. E. 619. 48. Though a subsequent deed of trust had been given on the same land to another creditor, and the property had been sold by the assignee for benefit of creditors who held the proceeds. Sutton v. Bessent, 133 N. C. 569, 45 S. E. 844. 46. Upon showing that the assigned prop- erty Included such trust funds. Winston v. Miller [Ala.] 35 So. 853. 47. Held, one buying produce from the farmers and shipping It to the assignor, though called a superintendent, Is an em- ploye [Daws 1897, p. 772, c. 624, § 29]. Hop- kins V. Cromwell, 89 App. Dlv. 481, 85 N. T. S. 839. 48. "Weller v. Hull's Assignee, 24 Ky. L. R. 2185, 74 S. "W. 172. 49. Huddleson v. Polk [Neb.] 97 N. W. 624. BO. Where he recovered judgment^ but ob- tained no benefit therefrom. In re Garver, 176 N. T. 386, 68 N. E. 667. Bl. See 1 Curr. I* 232. 62. Supreme court in the first department has power to so do. In re Oakley, 41 Misc. 652, 85 N. T. S. 227. 63. Weller v. Hull's Assignee, 24 Ky. Li. R. 2185, 74 S. W. 172. 64. Union & Planters' Bank v. Duncan [Miss.] 36 So. 690. 65. Jensen-Klng-Byrd Co. v. Williams [Wash.] 76 P. 934. Be. Bee 1 Curr. L. 232. B7. In re Gebhardt, 41 Misc. 570, 85 N. T. S. 118. B8. In re Bostwlck, 40 Misc. 17, 81 N. T. S. 172. 69, 60. In re Oakley, 41 Misc. 652, 86 N. T. S. 227. 61. Overholt v. Dietz, 43 Or. 194, 72 P. 695. 62. In foreclosure proceedings, to put pur- chasers into possession. State v. Evans, 176 Mo. 310, 76 S. W. 914. 63. Hartsuff v. Huss [Neb.] 95 N. W. 1070. 316 ASSOCIATIONS AND SOCIETIES § 1. 3 Cur. Law. firmation of a foreclosure sale.'* That an order of the court takes the form of a writ of assistance is immaterial.'" A writ of assistance may be set aside at the instance of one who was not a party to the action at the time of its issue/' if it appear that he was a necessary party,'^ and a notice of appeal from the order granting the writ need not be served on all the parties to the original action.'* ASSOCIATIONS AND SOCIETIBS.ei) § 1. DefinStSon, N'ature, and Org^anixation (S40). § 2. Internal Relations, Rights, and Du- ties (346). and Persons Not § 3. The Association Memhers (347). § 4. Actions and Liitigation (348). § 5. Dissolution and Termination (34S). § 1. Definition, nature, and organization.'"' — Associations formed for the purpose of pecuniary profit are controlled, as to the liabilities arising from con- tract, by the law of partnership.''^ Adoption of a name in use by an existing association will be enjoined. '- § 2. Internal relations, rights, and duties.'^ — The constitution and by-laws adopted by a voluntary association constitute a contract between the members which, if not immoral or contrary to public policy or law, will be enforced by the courts,''* and the funds of an association can be diverted from the purposes de- clared in the constitution, by-laws and rules only on consent of each individual member.'"' Where a power is vested in the majority, a member cannot object to a majority action, on the ground that he was not in the state or had but constructive notice, there Ijeing no fraud.''" Parol evidence may establish such action.'''' The discretion of an association as to who may be admitted to membership will not usually be judicially controlled,'* or its proceedings under its laws for fthe discipline of members,''^ though a member may have an action in damages for wrongful expulsion,*' which wiU lie when the association has ratified an 64. state V. Evans, 176 Mo. 310, 75 S. W. 914. 85. Directing- a sheriff to put mortg-agee in possession [Code Civ. Proo. §§ 1675, 1347, 1373]. Title Guaranty & Trust Co. v. Ameri- can Power & Const. Co., 88 N. T. S. 502. 66. Grantee of a mortgagor who had been foreclosed. Mills v. Smiley [Idaho] 76 P. 783. 07. One claiming an interest in the land had not placed his deed on record [Rev. St. 1887, § 4520]. Mills v. Smiley [Idaho] 76 P. 7S3. 68. Only the parties to the writ. Mills v. Smiley [Idaho] 76 P. 783. 60. See Corporations, 1 Curr. L. 710; Joint Stock Companies, 2 Curr. L. 576; Exchanges and Boards of Trade, 1 Curr. L. 1176; Build- ing and Loan Associations, 1 Curr. L. 387; Fraternal and Mutual Benefit Associations, 2 Curr. L. 79; Religious Societies, 2 Curr. I* 1502. 70. See 1 Curr. L. 233. 71. Contracts by association are regarded as Joint and a judgment against a member merges the cause of action against all. United Press v. Abell Co., 87 App. Div. 344, 84 N. T. S. 425. 73. Lane v. Brothers & Sisters of Even- ing Star Soe. [Ga.] 47 S. B. 951. 73. See Fraternal and Mutual Benefit As- sociations, 2 Curr. D. 79, for status of lodge members. See 1 Curr. L. 233. 74. Kalbitzer v. Goodhue, 52 W. Va, 435. 44 B. E. 264. Contracts of association for the division of town lots among the members who were purchasers, held to authorize sale of right of preference In selection at auc- tion to the highest bidder, under a scheme adopted by the majority. Morey v. Clopton [Mo. App.] 77 S. W. 467. 75. Majority vote Is not sufficient. Kal- bitzer V. Goodhue, 62 W. Va. 435, 44 S. E. 264. 76. Moray v. Clopton [Mo. APP.] 77 S. W. 467. 77. "Where a temporary association is formed to divide land as agreed on by the majority, a meeting and action for such pur- pose may be proved by parol, without refer- ence to any record kept by the secretary. Morey v. Clopton [Mo. App.] 77 S. W. 467. 78. A bar association, though incorpo- rated, cannot be compelled by mandamus to admit to membership one whose application has been denied after consideration in ac- cordance with its rules and regulations. State v. Louisiana Bar Ass'n, 111 La. 967, 36 So. ."ifl. 79. Mason cannot have injunction of a trial on unproven allegation of a conspiracy to affect to his prejudice his trial on pending criminal indictments. Franklin v. Burnham, 40 Misc. 566, 82 N. Y. S. 882. 80. Mandamus is not his sole remedy. He may recover for the loss of benefits, of 3 Cur. Law. ASSOCIATIONS AND SOCIETIES § 3. 347 expulsion not at first its associate aet.^"^ The member is not remitted to remedy within association, if inadequate or impracticable.*'' Membership does not become a property right through the mere fact of the possession of property by the association.*^ By-laws giving a power to terminate membership are not self executing,"* but a notice that a member will be dropped unless he pays dues before a date named is sufficient.'" A member is entitled to notice of the proceedings of a committee appointed to act with reference to a dispute with a co-member. *° Objection to the juris- diction of a tribunal is waived by submission by the member and allowing the investigation to proceed.'" If the action of a trial board is valid the invalidity of an attempted adoption by the association at an unauthorized meeting is cured by a valid subsequent adoption.'' Eesignation,'" or notice of intention to resign, in compliance with by-laws, may terminate further liabilities as a member.'" § 3. The association and persons not members.^^ — An association may re- cover the entire amount of a debt due it as such, though a portion of its members have withdrawn.®" One contracting for an unincorporated association having no corporate or legal status is personally liable,"^ but an action cannot be maintained against aji officer, unless the debt is one on which an action could be maintained against all the associates either jointly or severally.^* use and enjoyment of the property of the society, and also mental suffering occasioned by the fact and manner of expulsion. Lahiff V. St. Joseph's Total Abstinence & Benev. Soc. [Conn.] 57 A. 692. 81. A refusal at a regular meeting of re- admission imposes liability for a wrongful expulsion though it is contended that a spe- cial meeting was not lawful for the purpose, hence an expulsion thereat was not binding on the association. Lahiff v. St. Joseph's Total Abstinence & Benevolent Soc. [Conn.] 57 A. 692. 82. Remedy by internal appeal before dis- tant tribunal presided over by officer possi- bly hostile, and papers for appeal refused until payment of fine. Corregan v. Hay, 87 N. T. S. 956. 83. The fact that an association has prop- erty derived from the payment of dues and fines, the possession of which is a mere In- cident and not the main object of the asso- ciation, does not confer a property right on the members save that of enjoyment while In good standing. Hence proceedings under the laws of the association cannot be re- strained as interfering with property rights. Injunction will not He to prevent expulsion of mason. Franklin v. Burnham, 40 Misc. 566, 82 N. T. S. 882. 84. A provision that on failure to pay dues a member shall be dropped is not self- executing, where it Is provided that the ac- tion shall be taken by the board of govern- ors. Member may still be held for regular dues. Westchester Golf Club Co. v. Pinkney, 87 N. T. S. 153. 85. Westchester Golf Club. v. Pinkney, 87 N. T. S. 153. 88. People v. Bast Buffalo Live Stock Ass'n, 88 App. Div. 619, 84 N. T. S. 795. 87. People v. Old Guard of City of New York, 87 App. Div. 478, 84 N. T. S. 766. 88. Such action pending mandamus for restoration of membership will cause denial of the writ. People v. Old Guard of City of New Tork, 87 App. Div. 478, 84 N. Y. S. 766. 89. Where an association of bottlers con- tracts for the collection of bottles for its members for a fixed period, a fixed sum can- not be recovered from a resigning member after his resignation. Such a contract Is not contemplated by a by-law requiring payment of all liabilities as a condition to resigna- tion. Long Island Bottlers' Union v Lieb- mann's Sons Brew. Co., 83 App. Dev. 146, 82 N. Y. S. 561. 90. Where it is provided that a member may resign on written notice of intent to do so, a specified time before the resignation shall take effect, the notice is sufficient without an additional filing of an actual resignation at the end of the period. Long Island Bottlers' Union v. Liebmann's Sons Brew. Co., S3 App. Div. 146, 82 N. Y. S. 561. Under a provision that notice of intention to resign shall operate as a waiver of all rights and privileges, such notice terminates gen- eral obligations on the discharge of exist- ing dues to the association precedent to official resignation. Id. 91. See 1 Curr. L. 235. 92. Band held entitled to complete recov- ery on contract to furnish music. . Detroit Light Guard Band v. First Michigan Inde- pendent Infantry [Mich.] 96 N. W. 934. 93. Complaint alleging a contract as com- mittee of a commandery of Knights Templars in the name of the association, and signing in name of defendant's testator, held good against demurrer. McKinnle v. Postles [Del. Super.] 54 A. 798. Member contracting as agent. Detroit Light Guard Band v. First Mich. Independent Infantry [Mich.] 96 N. W. 934. 94. Association of more than seven mem- 348 ASSUMPSIT § 1. 3 Cur. Law. § 4; Actions and litigation."^ — In the absence of statute a voltmtary asso- ciation cannot be sued at law as sueh,°° but the right to sue an unincorporated association in the name under which it is known is frequently given by stat- ute.^' Such statutes do not abrogate the right to sue the members and associa- tion jointly."' Where the statutes of a state authorize such a suit its courts are not bound by comity to follow the method prescribed by the statute of an- other state."" Process must be served in accordance with statutory provisions."" § 5. Dissolution and termination}"'^ ASSUMPSIT. 9 !• Nature, Form, and Propriety of Ac- I % 3. Declaration, Fleas, and Defenaes tlon (348). (351). § 2. The Common Connts (349). I § 4. Evidence (352). § 1. Nature, form, and propriety of action} — Assumpsit lies only on a sim- ple contract/ express or implied,' the promise being the gist of the action.* Special statutory remedies are usually deemed merely cumulative to the remedy by assumpsit." Waiver of tort.^ — The owner of property which has been converted may waive the tort and sue on the common counts in assumpsit.' Some states limit the right of election to cases in which the property has been converted into money.' Where the breach of duty sued on is a breach of a contract on which assumpsit will not lie, not a tort, the doctrine of waiver does not apply." An election to pursue one remedy is a waiver of the right to pursue the other." bers formed for political purposes. Hosman V. Klnneally, 86 N. Y. S. 263. 95. See 1 Curr. L. 235. 96. Evidence held to show absence of any- general fund In the hands of the association which might be chargeable in equity with debt. Methodist Episcopal Church South v. Clifton [Tex. Civ. App.] 78 S. W. 732. "Where not organized to carry on trade or hold property within the state and not so doing. Cleland v. Anderson [Neb.] 92 N. W. 306. Bondholders' association In charge of Im- provement and reconstruction of corporate property. Standard L. & P. Co. v. Munsey [Tex. Civ. App.] 76 S. W. 931. »7. Under Code, art. 23, § 301, the creditor has an option to sue either the association or the members. Littleton v. Wells & McComas Council, No. 14 [Md.] 56 A. 798. Gen. St. 1902, § 588. Lahlff v. St. Joseph's Total Ab- stinence & Benev. Soo. [Conn.] 57 A. 692. 98. Comp. Laws, § 10,025. Detroit Light Guard Band v. First Michigan Independent Infantry [Mich.] 96 N. W. 934. 99. Saunders v. Adams Exp. Co. [N. J.] 57 A. 899. 100. Under P. L. 1903, p. 546, § 40, requir- ing service, in the case of an unincorporated organization, to be made on the agent or manager, or person In charge of the business of the organization, the agent need not be in charge of the whole business. Saunders v. Adams Exp. Co. [N. J.] 57 A. 899. 101. See 1 Curr. L. 236. 1. See 1 Curr. L. 236. See, also. Contracts, 1 Curr. L. 626; Implied Contracts, 2 Curr. L. 285. 2. Assumpsit will not lie on a lease, inten- tionally under seal, though It need not have been under seal. Crandall v. Johnson [R. I.l 58 A. 765. 3. Wherever one person has money equi- tably belonging to another, the law creates a promise by the former to pay It to the latter, and the obligation to do so may be enforced by assumpsit. Devries' Estate v. Hawkins [Neb.] 97 N. W. 792. 4. Wald V. Dixon [W. Va.] 46 S. B. 918. 5. Assumpsit will lie by a corporation to recover assessments from a delinquent stock- holder, even though a state statute gives the corporation a lien and provides a forfeiture for nonpayment. Campbell v. American Al- kali Co. [C. C. A.] 125 F. 207. 6. See Election of Remedies and Rights, 1 Curr. L. 992. 7. Brown v. Poster [Mich.] 100 N. W. 167. Petition held good, and suit properly brought In the name of one to whom the con- verted property had been pledged as secu- rity. Farmers' & Merchants' Bank v. Bennett & Co. [Ga.] 48 S. B. 398. Conversion of a check may be waived and suit for money had and received maintained to recover the proceeds. Silver v. Krellman, 89 App. Div. 363, 85 N. T. S. 946. 8. It Is said in this case that when the property has been converted into money or money's worth, plaintiff may sue either in trover for conversion, or in assumpsit, waiv- ing the tort. But the larger number of states, including Rhode Island, hold that as- sumpsit will not lie when the property has not been so changed In form. So It was held in this case that it would not He for the value of goods converted by defendant and destroyed while In his possession, after demand. Whipple v. Stephens [R. I.] 61 A. 375. 9. Where plaintiff claimed brokers were indebted to him by reason of a breach of duty in failing to require margins from a 3 Cur. Law. ASSUMPSIT § 2. 849 § 2. The common counts.'^^ — At eommon law when the action is based on an express promise, special assumpsit must be brought/^ unless the facts alleged are such that the law raises therefrom an implied promise.^' When a contract is executed and nothing further remains to be done on the part of the plaintiff, he may recover on the common counts,^* When a contract has been performed, the fact that it was unenforceable because not in writing, wiU not warrant the bringiag of a quantum valebat to recover alleged damages for breach.^" Under a statute forbidding the use of the common counts unitedly, but permitting the count on an account annexed, when one or more of the items claimed would be described by any one of the common counts, such count on an account annexed includes, by intendment, all the allegations of all the common counts.^" A statute authorizing the general counts in assumpsit in actions on insurance policies, and providing that the plea of nonassumpsit shall put in is- sue only the execution of the policy and the amount of damages sustained there- under, does not place upon the defendant the burden of establishing the facts which he must put in issue,^' and it is therefore constitutional.^* The statute in Michigan, providing that an action in assumpsit may be brought for fraudulent representations or conduct for which trespass on the case would lie is constitu- tional.^' To maintain such an action under this statute, it must clearly appear, by the necessary averments or by reference to it, that the suit is within the statu- tory provisions."" Special counts under this statute may be united with the com- mon counts in assumpsit.'^ Goods sold and delivered. — Both sale and delivery must appear to sustain a count in common form for goods sold and delivered.^* lender of stocks borrowed to cover a short sale, he could not recover the amount claimed on common counts for money had and received, since the breach of duty. If aiiy, was a breach of contract, not a tort which could be waived and suit in assump- sit brought. Morris v. Jamieson, 205 111. 87, 68 N. E. 742. 10. But there can be no such waiver when the right to either remedy does not exist. "Whipple v. Stephens [R. I.] 57 A. 375. 11. See 1 Curr. L. 236. 12. In an action on an Insurance policy, the promise, conditions and fulflllment of the conditions, must be set forth. Hersey V. Northern Assur. Co., 75 Vt. 441, 56 A. 95. There can be no recovery on common counts on a promise to answer for the debt or de- fault of a third person. West v. Grainger [Fla.] 35 So. 91. Suit on the common counts cannot be maintained for the recovery back of rent paid because of breach of covenant for quiet enjoyment.. Prochaska v. Fox [Mich.] 100 N. W. 746. 13. Plaintiff's ownership of property, its destruction by Are, and payment of pre- miums, do not raise an Implied promise to pay Insurance. Hersey v. Northern Assur. Co., 75 Vt. 441, 56 A. 95. 14. Common counts for goods sold and de- livered, for money' paid for the use of the defendants, and for work and labor. Mas- sey v. Greenabaum Bros. [Del.] 58 A. 804. Plaintiff exchanged a stock of goods for de- fendant's farm, agreeing to assume an In- cumbrance thereon. The mortgage was for a larger amount than that agreed to be assumed. Held, plaintiff having fully exe- cuted could recover the excess from the de- fendant In assumpsit. Wilson v. Wilson [Mo. App.] 80 S. W. 711. 15. The contract, though void, expresses the terms on which both parties acted. St. Louis Hay & Grain Co. v. United States, 191 U. S. 159, 24 S. Ct. 47. 16. Hence Includes an allegation that money was paid at defendant's request. Rev. Laws, c. 173,. § 6, clauses 7, 8. Action to re- cover taxes paid on defendant's land. Mass. Mut. Life Ins. Co. v. Green [Mass.] 70 N. E. 202. 17. Acts 1896, No. 121, p. 89. Hersey v. Northern Assur. Co., 76 Vt. 441, 66 A. 95. 18. It does not alter the substantive rights of the parties. Hersey v. Northern Assur. Co., 75 Vt. 441, 66 A. 95. 19. Comp. Laws, 1897, § 10421. First Nat. Bank v. Steel [Mich.] 99 N. W. 786. 20. Where two corporations merge in one, receiving stock of the new corporation in proportion to their assets, an action In as- sumpsit for money had and receiv'ed will not He to recover from a stockholder an amount in excess of the real value of his stock, alleged to have been obtained by fraudulent representations as to its value. Anderson Carriage Co. v. Pungs [Mich.] 95 N. W. 986. 21. To recover money loaned on worthless security by defendant's fraud. First Nat. Bank v. Steel [Mich.] 99 N. W. 786. 22. One cannot recover on a complaint for goods sold and delivered when the proof tends to show an account stated, no sale or delivery being shown. Consolidated Car Heating Co. v. Kahn, 84 N. Y. S. 919. The common count in assumpsit declaring on a promise to pay for goods sold and deliv- ered cannot be used In a suit against a vendee of the original vendee to recover a balance due on goods sold, where the seller forebore to take the goods under a mortgage 350 ASSUMPSIT § 3. 3 Cur. Law, Money had and received.'^^ — An action in this form may be maintained to recover money paid on a judicial order or judgment subsequently set aside,^* or money paid on a conditional sale after breach, of the contract by the seller.^^ It is maintainable by a principal to recover money misappropriated by an agent,"" by a corporation to recover money received from its officers under a contract void because ulti-a vires/' by one who has innocently made payments on an execu- tory contract, void by statute, to recover money so paid,^' or by a cestui que use against one who has received, and neglects or refuses to pay over, money received for plaintiff's use.=' The action for money had and received may be maintained irrespective of whether it is maintainable as an action of trover and conversion.'" Money paid.^^ — Assumpsit will lie to recover money paid by plaintiff tc a third person at defendant's request, to satisfy a -claim against him.'" A coant for money paid must state it was paid at defendant's request,'' and the omission of such allegation will not be cured by the allegation of a subsequent promise to pay in other counts.'* Under a statute providing for a recovery of expenses incurred in breaking log jams and driving logs of another in order to secure a passageway, expenses incurred in merely moving logs to one side cannot be re- covered." Worhj labor and materials. — Where the employer refuses to perform, after performance by the employe, under a contract of employment, the employe may treat the contract as rescinded and sue on a quantum meruit.'" In such case plaintiff may recover an amount not exceeding that claimed, if it appears that there was no agreement as to price." One who has failed to fully perform his contract may recover the value of labor and materials actually furnished under it, not to exceed the contract price," and in such action the defendants may recoup damages for failure to fully perform, unless they have waived that right." Where a contractor coiild maintain mandamus to compel city officials to levy new assessr ments to pay for sewer construction, he could not recover from the city in assump- sit.*" given by the original vendee, the subsequent vendee having promised to pay. Miller v. Wilbur [Vt.] 56 A. 280. 83. See 1 Curr. L. 237. 24. Presumption is that -payment was made upon implied understanding of restora- tion under such circumstances. Harrigan v. Gilchrist [Wis.] 99 N. W. 909. 25. Wood V. Kaufman [Mich.] 97 N. W. 47. 26. Guernsey v. Davis, 67 Kan. 378, 73 P. 101. 37. Loan to a private partnership. Leigh V. American Brake Beam Co., 205 111. 147, 68 N. B. 713. 28. Jones v. Mutual Fidelity Co., 123 F. 506. 29. If plaintiff is legally entitled to the money, it is immaterial how it came into defendant's hands. York v. Farmers' Bank [Mo. App.] 79 S. W. 968. 30. Bank received money with notice of the title of plaintiff thereto. York v. Far- mers' Bank [Mo. App.] 79 S. W. 968. 31. See 1 Curr. L. 237. 32. Proof that payment was by a receipt for money due plaintiff is not a material va- riance from an allegation in a bill of par- ticulars alleging a cash payment. MoNer- ney v. Barnes [Conn.] 58 A. 714. 33, 34. Massachusetts Mut. Life Ins. Co. v. Green [Mass.] 70 N. E. 202. 35. Doj'le V. Pelton [Mich.] 96 N. W. 483. 36. Boyd v. Vale, 84 App. Div. 414, 82 N. Y. S. 932. The value of services rendered under a contract so terminated may be re- covered under a common count, no objection being made to the form of the pleading. Jerson v. Lee, 67 Kan. 539, 73 P. 72. Em- ploye may elect to sue on the contract for damages for the breach, or recover in quan- tum meruit the value of his services. That employer boarded employe's mother and father for a time in part payment for serv- ices would not prevent a recovery on quan- tum meruit. Brown v. Woodbury, 183 Mass. 279, 67 N. B. 327. 37. Gill V. Staylor, 97 Md. 665, 56 A. 398. Verdict of $500 for services of daughter-in- law to a decedent held not excessive. Allen v. Allen, 101 Mo. App. 676, 74 S. W. 396. 38. 39. Decker v. School Dist. No. 2, 101 Mo. App. 115, 74 S. W. ,390. In an action on a special contract for construction of a, house there may be a recovery on common counts for work, labor and materials, if an accept- ance of the work by defendant be shown. Aarnes v. Windham, 137 Ala. 513, 34 So. 816. 40. City of Alton v. Foster, 207 111. 150, 69 N. B. 783. 3 Cur. Law. ASSUMPSIT § 3. 351 § 3. Declaration^ pleas, and defenses.^^ — In assumpsit the gist of the action is the promise to pay by defendant, and this promise the declaration must clearly allege,*^ unless its omission is permitted under a statute.^^ The averment of the promise may be in the same form or language, -whether the promise is implied or express.** A count on a quantum meruit for work, labor, and services, must al- lege nonpayment,*" Statutory provisions modifying the common law remedy or procedure must be observed. Statutes may provide forms for the statement of counts,*" or prescribe what pleadings shall be required,*' or require affidavits in certain cases.** Though a bill of particulars filed with a declaration for work and labor is defective, the declaration will be held sufficient on appeal if it shows defendant indebted to plaintiff in a certain sum which he agreed to pay.*° A special count to enforce a lien for labor may be joined in a common law action with common counts for work done and materials furnished, and upon account stated.''" Under a statute providing that general counts in assumpsit shall be a sufficient declaration in actions on insurance policies, the general counts must be aptly framed for the recovery of money due on a policy, but need not set forth the terms and conditions of the contract of insuranee.^^ The declaration need not state that the specification required by this statute has been filed, since such speci- fication, when filed, is a part of the record."" A petition that plaintiff was the owner and entitled to the possession of certain property, consigned to and sold by a third person, and that defendant had received the proceeds of such sale with k,nowledge of plaintiff's right thereto, and that plaintiff had demanded payment which defendant had refused, states a cause of action for money had and re- ceived.^' A declaration contaiaing allegations which are patently inconsistent is subject to a general demurrer.'* An allegation in the declaration that all counts are for the same cause of action will not render a count, otherwise good, demur- rable."" Where a declaration contains two counts, one based on an affirmance and 41. See 1 Curr. L. 238. 42. Wald V. Dixon [W. Va.] 46 S. B. 918. A. declaration in assumpsit, based on con- tract, must allege mutual promises based on Eufflcient consideration. If based on an ac- cord and satisfaction, such agreement must be complete as alleged. Grover v. Ohio Riv- er R. Co., 53 W. Va. 103, 44 S. E. 147. 43. A common count of indebitatus for services rendered is not demurrable for fail- ure to include the usual allegation of a promise to pay. Under Code 1887, | 3272, providing for.disregard of defects on demur- rer unless there be an omission of something essential to the cause of action. City of Newport News v. Potter [C. C. A.] 122 F. 321. 44. If implied, the proof need not show a promise, but only a liability under the allegations. "Wald v. Dixon [W^. Va.] 46 S. E. SIS. 45. Bacon v. Chapman, 85 App. Dlv. 309, S2 N. Y. S. 545. 48. A count reading, "For money payable to plaintiff. For money had and received by the defendant for the use of the plaintiff," held a sufficient compliance with a statute requiring such a count to read: "For money payable by the defendant to the plaintiff." Littleton v. Wells & McComas Council, No. 14 [Md.] 56 A. 798. 47. The statute required plaintiff in as- sumpsit to file a concise statement of his demand and the defendant to enter the stat- utory plea. Instead there were filed an an- swer, replication, amended answer, amended replication, and rejoinder, no plea being filed. . Act 1887, p. 271. Hatfield v. Thomas Iron Co. [Pa.] 57 A. 950. 48. A plaintiff seeking to take advantage of a statute providing that. If plaintiff In as- sumpsit file an affidavit of his claim with the declaration, no plea In bar will be received without an affidavit, must make his affidavit conform strictly to the statutory require- ments [Code 1887. § 3286]. Merriman Co. v. Thomas & Co. [Va.] 48 S. E. 490. Aflidavit held defective because insufficient and not shown to have been filed by one having au- thority. Id. 49. Noyes Carriage Co. v. Robbins, 31 Ind. App. 300, 67 N. E. 959. 50. Under Rev. St. 1892, §§ 1004, 1744, as amended by chapter 4582. p. 122. West v. Grainger [Fla.] 35 So. 91. 51. Acts 1896, No. 121, p. 89. Hersey v. Northern Assur. Co., 75 Vt. 441, 56 A. 95. 52. Hersey v. Northern Assur. Co., 75 Vt. 441, 56 A. 95. 53. York V. Farmers' Bank [Mo. App.] 79 S. W. 968. 64. Counts alleging that defendant Is In- debted to plaintiff on a policy of insurance by reason of a loss, and that in considera- tion thereof, and of certain other things, It undertook to pay a certain sum If a loss should occur, and that such loss has occur- red, are patently inconsistent. Hersey v. Northern Assur, Co., 75 Vt. 441, 56 A. 95. 55. Massachusetts Mut. Life Ins. Co. v. Green [Mass.] 70 N. E. 202. 353 ASYLUMS AND HOSPITALS § 1. 3 Cur. Law. the other on a disaffirmance of the contract, plaintiff may rely on both through- out the trial, and strike out one and rely on the other at the close of the evi- dence."' A court has no power to permit the amendment of a declaration con- taining the common counts in assumpsit by the addition of a count "in tort."'' When a verdict is for a sum greater than that demanded in the complaint, but the evi- dence shows plaintiff entitled to the sum awarded, the demand in the complaint may be deemed amended."* The plea of the general issue admits the capacity in which the defendant is sued."' Under the general issue the defendant may prove that plaintiff prevented performance of the contract by him.°° Where a declaration contains a special count and also common counts and defendant demurs to the declaration generally, except the common counts, he may be required to plead to the common counts without requiring the plaintiff to amend by striking the matter held bad on the demurrer.'^ Where special assumpsit was brought to recover a sum promised, to procure a settlement of insurance policies, and the proof showed an agreement procured by plaintiff, which defendant refused to carry out, there was at most a variance, not a failure of proof.*^ The sufficiency of the affidavit of defense de- pends upon the facts of the particular case." § 4. Evidence.^* — ^Under an allegation that the services sued for were reason- ably worth a certain sum which defendant agreed to pay, plaintiff may show nature, extent, and fair value of the services, and the circumstances under which they were rendered.'" The contract price of the services is competent evidence on the question of their value." Evidence as to wages received by another employe is incompetent,'^ and evidence as to plaintiffs manner of living is iaadmissible to show nonpayment of wages." A promise by a decedent to pay a daughter-in- law for services need not be shown by direct evidence, but may be proved by cir- cumstances and the nature of the services." A book accoimt admissible, the evi- dence tending to show it correctly kept." ASYXTTMS AND HOSFITAIiS. S 1. Officers, Their Fonvera, Dntles and Uabllltles (352). S 2. Maintenance of Instltntlona and Sup- port of Inmates (353). i 3. Liability of Institntions or Officers for Inlnrlea to Inmate* (353). § 1. Officers, their powers, duties and liabilities.''''^ — ^The salary and term of 66. Brown V. Woodbury, 183 Mass. 279, 67 N. E. 327. 57. Doyle v. Pelton [Mich.] 96 N. W. 483. 58. Noyes Carriage Co. v. Robblns, 31 Ind. App. 300, 67 N. B. 959. 59. In assumpsit, the defense that de- fendant Is not executor, must be pleaded In abatement, otherwise It Is waived. Stewart V. Smith, 98 Me. 104, 56 A. 401. Kelly V. Fahrney [C. C. A.] 123 F. West- V. Grainger [Fla.] 35 So. 91. Muldoon V. Meriwether, 25 Ky. L. R. 60. 280. 61. 62. 2085, 79 S. W. 1183. 63. In an action for money had and re- ceived, being money given defendants to purchase stock with leave to apply part for expenses, etc., It being charged that the stock bought was defendants' own, and that it had cost them $200, whereas they sold It for $300, an affidavit of defense setting up that plaintiffs knew defendants owned the stock and that it cost them $300, etc., held. by divided court, sufficient to take case to the Jury. Tranter v. Porter, 207 Pa. 279, 66 A. 539. In an action to recover an alleged loan, an affidavit of defense setting up that plaintiff held the funds only as trustee for defendant, held sufficient. Knight v. Somer- ton Hills Cemetery, 205 Pa. 552, 55 A. 636. 64. See 1 Curr. L. 238. 65. Shirk v. Brookfleld, 77 App. Dlv. 295, 79 N. T. S. 225. Under an Indebitatus count for services, evidence of the value of the services Is admissible. City of Newport News V. Potter [C. C. A.] 122 F. 321. 66. Boyd v. Vale, 84 App. Dlv. 414, 82 N. T. S. 932. The written contract of employ- ment is admissible. Shirk v. Brookfleld, 77 App. Dlv. 295, 79 N. T. S. 225. 67. 68. Gill V. Staylor, 97 Md. 665, 55 A. 398. 69. Allen V. Allen, 101 Mo. App. 676, 74 S. W. 396. Statements by decedent to a third person are competent on this issue. Id. 70. Hurley v. Macey, 87 N. T. S. 924. 3 Cur. Law. ASYLUMS AND HOSPITALS § 3. 353 office of members of the State Board of Charities and Corrections may be regu- lated by the legislature.'^ The trustees of a charitable corporation have no power to establish a pay-pupil department.'* The trustees of the Michigan Asylum for the Insane have no authority to obligate the state to pay for drafting proposed legislation/* and it was the duty of the state auditor to refuse to audit such claims,'" or to draw his warrant for the maintenance bills of the asylum until itemized vouchers covering expenditure of money previously drawn had been pre- sented." In New York, the matron of a charitable institution may make a bind- ing contract to furnish a competent nurse to an inmate." § 3. Maintenance of institutions and support of inmates.''^ — ^A voluntary association cannot be subjected to an ordinary judgment for debt." § 3. Liahility of institutions or officers for injuries to inmates.^" — That a governmental charitable institution has power to sue and be sued does not render it liable for negligence.^^ A railroad relief department is not a charity relieved from liability for negligence " in employing physicians/* but is only bound to exercise reasonable care in selecting them.*' ATTACHITEH-T. 5 1. (854). § a. § 3. (355). § 4. 5 5. I e. Definition, Nature and DistlnctlonB In WTiat Aetions It Will Issue (364). Rlslit to and Grounds for tlie Writ Attachable Property (857). Procedure In General (359). Afflda-Fit and Its Sufficiency (361). 9 7. Attacliinent Bond on rTndertaklng) Terms (862). S 8. The 'Writ or 'Warrant (863). 9 9. The Levy or Seizure; IndemnUylns Bonds (804). § 10. Return to the Writ (865). 9 11. Custody, Sale, Redelivery, or Re- lease of Attached Property (366). 71. See 1 Curr. L. 508. 72. Constitution limiting the number of members of State Board of Charities and Corrections to five is not violated by a laiv creating a ne'sr board of three to take the place of the old board. Thomas v. State [S. D.] 97 N. "W. 1011. Constitutional provision that compensation of a public ofiicer shall not be changed during his term is not violated by appointing a new Board of Charities and Corrections and changing the salary. Id. The contention that the legislature, having once fixed the compensation of members of the State Board of Charities and Corrections have no po'wer to change It, is untenable. Id. 73. A testator bequeathed a sum for the establishment of a school for destitute chil- dren. A corporation was constituted to car- ry out his will. It was enjoined from es- tablishing a pay pupil department. Rankine V. De Veaux College, 41 Misc. 656, 85 N. T. S. 239. 74. Revision of asylum laws. Phelps v. Auditor General [Mich.] 99 N. W. 374, citing Gahil V. Board of State Auditors, 127 Mich. 487, 86 N. "W. 950, holding that the governor did' not have such authority. 75. 76. Comp. Laws 1897, § 1207. Phelps V. Auditor General [Mich.] 99 N. W. 374. 77. If such authority is conferred by the trustees. Ward v. St. Vincent's Hospital, 78 App. Dlv. S17, 79 N. T. S. 1004. But a mere assurance that a nurse was competent is not sufficient. Id. A physician familiar with her work was competent to testify as to her ability. Her own testimony that she had had entire charge of similar work was competent. Id. Conduct of nurse in this particular case admissible. Id. 78. See 1 Curr. L. 509. 3 Cutr. Law — 23 79. Parties as trustees of a voluntary re- ligious association expended their moneys in erecting a building which was subsequently sold. The association held no property as a general fund, but all its property was char- ged with charitable uses distinct from the building in question. Methodist Episcopal Church South v. Clifton [Tex. Civ. App.] 78 S. "W. 732. 80. See 1 Curr. L. 610. 81. The Alabama Insane Hospital Is a state agency and not subject to suits for damage arising from its negligence in oper- ating coal mines on the premises for pur- pose of furnishing fuel for the hospital. ■White V. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454. Trustees of an asylum joined in an answer with the contractor against a materialman. The contractor alone might have answered. Held, this did not render them liable for Interest on the money in con- troversy In their hands, which by injunction they were prevented from paying to any one. Newport 'Wharf & Lumber Co. v. Drew, 141 Cal. 103, 74 P. 697. See 1 Curr. L. 510, n. 74. 82. Haggerty v. St. Louis, etc., R. Co., 100 Mo. App. 424, 74 S. W. 456. 'Where a medi- cal examiner visited a patient occasionally and advised him as to certain matters, he was held an attending physician. Haggerty V. St. Louis, etc., R. Co., 100 Mo. App. 424, 74 S. 'W. 456. See 1 Curr. L. 510. 83. Not liable under doctrine of respond- eat superior for malpractice or negligence. Haggerty v. St. Louis, etc., R. Co., 100 Mo. App. 424, 74 S. 'W. 456. "Whether an examin- ing physician had authority to employ anoth- er to treat an injured employe, held a ques- tion for the jury. Id. 354 ATTACHMENT § 1. 3 Cut. Law. § 12. Forthcoming Bonds and Receipts (367). § 13. lilen or Other Consequences of Levy (367). § 14. Conflicting Levies, Liens, and Cred- itors; Priorities (368). i 15. Enforcement and Dissolution, Dis- charge, Vacation, or Abandonment of At- tachment (370). A. Validity and Grounds for Setting Aside (370). B. Procedure (371). § 16. Hostile and Opposing Claims to At- tached Property (373). § 17. Wrongful Attachment (374). § 1. Definition, nature and distinctions.^* — Attachment is a statutory rem- edy, and the local statutes must be consulted, any seemingly general rule being so only by reason of similar enactments in various states. It is a summary remedy,*^ and the statutes thereon are to be strictly interpreted or construed.*" After appear- ance, the suit proceeds in personam, remaining a proceeding in rem as to the prop- erty attached.*' A proceeding upon foreign attachment is in rem.*' Attachment laws wiU not be impliedly repealed by further laws upon the same subject, unless the intention of the legislature is plain.*' § 2. In what actions it will isstte.'"— Statutes regulating the grounds of at- tachment do not afEect rights of attachment previously vested."^ A party to sustain an attachment must have a just claim to found it upon,'* the complaint must state a cause of action,"* and under the statutes of some states contain a sufficient allegation of the service of the writ of attachment."* Unliquidated demands,"* or nominal damages,"' will not generally support attachment. The word "damages" after the amount alleged to be due as a debt is construed as only embracing inter- est, thus rendering the amount claimed certain.*' Special grounds, as fraud, non- residence, or concealment, must in some states coexist with the fact that the action is of a given class."* In most states attachments wiU issue on claims arising on contract;"" this includes implied contracts.* A contract being separable, an at- tachment may issue if justified by any separable part.* A del credere agent, pay- ing his employer, may sue, in his own name, the vendee, and attach his property.* The vendor in a conditional sale cannot maintaia an attachment in an action 84. See 1 Curr. I* 239. 85. Forbes Piano Co. v. Owens [Ga.] 47 S. K. 938. 86. Munger v. Doolan, 75 Conn. 656, 55 A. 169; Buchanan v. Bdmlsten [Neb.] 95 N. W. 620; Forbes Piano Co. v. Owens [Ga.] 47 S. B. 938. 87. Chemical Nat. Bank v. Kellogg [N. J. Law] 67 A. 149. 88. If neither of the defendants own the property, they are not affected in any way. Coughran v. Germain [S. D.] 97 N. W. 743. 89. P. L.. 1901, p. 158, § 1, Is not impliedly repealed by P. L<. 1903, p. 560, § 84. See this case for history of attachment legislation in New Jersey. Hotel Registry Realty Corp. V. Stafford [N. J. Law] 57 A. 145. Attach- ment laws of Louisiana are only modified, not repealed, by Act 23 of 1900. Hornbeck V. Gilmer, 110 La. 500. 34 So. 651. 90. See 1 Curr. L. 240. 91. Ky. St. 1903, §§ 74-96, as to assign- ments for benefit of creditors. Fitch v. Duckwall, 25 Ky. L. R. 1535, 78 S. W. 185. 92. Whitley v. Whitley's Adm'r [Ky.] 80 S. W. 825. 93. Porter v. Plymouth Gold Min. Co. [Mont.] 74 P. 938; Outerttridge v. Campbell, 87 App. Dlv. 697, 84 N. T. S. 537. Allega- tions in the complaint and aflidavit In an action for conversion of money held to show a cause of action therefor and to support the warrant of attachment. Kelsey v. Bank of Mansfield, 85 App. Div. 334, 83 N. Y. S. 281. 94. Code Civ. Proe. § 649. Allegation of service on one as treasurer is insufficient without an averment that the defendant i.s a corporation. Barton v. Albert Palmer Co., 87 App. Dlv. 35, 83 N. T. S. 1041. 95. Stuart v. Chappell [Md.] 57 A. 17. Held would lie w^here damages were caused by delay in delivering structural steel under a contract. Hale Bros. v. Milliken, 142 Gal. 134, 75 P. 653. But see 1 Curr. L. 240, n. 4, 14. 96. Austrian Eentwood Furniture Co. v. Wright, 88 N. T. S. 142. 97. Gardner v. Swift & Co. [Tenn.] 80 S. W. 764. 98. See post, § 3. 99. Sand. & H. Dig. § 325. Judge v. Cur- tis [Ark.] 78 S. W. 746. On a contract for the "direct payment" of money. Code Civ. Proc. § 890, will not issue in an action against sureties on a bond conditioned to be void, if the principal performed his contract. Ancient Order of Hibernians, Division No. 1 v. Sparrow [Mont] 74 P. 197. 1. Liability of one knowingly buying crops subject to a landlord's lien may be treated by the landlord as arising upon an implied con- tract. Judge V. Curtis [Ark.] 78 S. W. 746. 2. A contract to train horses for a cer- tain stated compensation and a per cent, of the purses won. Brien v. Stone, 82 App. Dlv, 450, 81 N. T. S. 597. 3. McLean v. Colburn, 2 Ohio N. P. fN. S.) 257. 3 Cur. Law. ATTACHMENT § 3. 355 for the purchase price, though by bringing suit he waives his lien.* Generally, a secured creditor can only procure the levy of an attachment when the security without any fault on his part has become valueless.^ By statute in some states, a landlord in an action to recover rent can attach crops growing or grown upon the land.* The collection of one's debt being endangered if the creditor should stop to obtain judgment or a return of no property found, an attachment will generally issue.' That a nonresident has conveyed property by a deed of trust does not authorize an attachment.' An attorney cannot attach the property of a non- resident client in a suit to recover for fees without notifying his client and giving him an opportunity to come in and defend.' § 3. Right to and grounds for the tvrit}'^ — Foreign attachment proceedings against residents of a state are void.^^ Nonresidence.^-— An action of attachment may be brought against a nonresi- dent in any court in whose jurisdiction he has property,^" and, after due notice, the court may satisfy the attachment out of such property.^* A nonresident ap- pearing and pleading to the merits, the court has jurisdiction of his person,^' unless such plea is made with a distinct protestation that no jurisdiction has been acquired.^* Personal service of a warrant of attachment on a resident member of a foreign limited partnership does not confer jurisdiction so as to render a non- resident partner liable therefor, the liability incurred by the resident partner being the only liability attached.^' It appearing from the judgment roll that no prop- erty was attached, that defendant was a nonresident, was not served and did not appear, the court has no jurisdiction.^* In some states, attachment may be made against a nonresident after two non ests.^° The filing of an undertaking is not jurisdictional to the right to have an attachment issued against a nonresident de- fendant for a debt not due.^" One who occasionally comes within the jurisdiction or intends at some uncertain time to return to it permanently is a nonresident. 4. Mark Means Transfer Co. v. Maokinzle [Idaho] 73 P. 135. 5. Security worthless at the time of pledging, and never becoming valuable, does not preclude the creditor from obtaining such .attachment [Code Civ. Proo. | 537]. MoPhee V. Townsend, 139 Cal. 638, 73 P. 584. 6. Sess. Laws 1901, p. 141, c. 17. Greeley V. Greeley, 12 Okl. 659, 73 P. 295. Under Gen. St. 1901, § 3871, landlord is entitled to attach crops raised by a tenant upon shares, the tenant having disposed of an apprecia- ble portion of the crop, even though the time for harvesting and delivering the land- lord's share has not arrived, and the crops being sold, the landlord is entitled to his share as of the date the crop should have been delivered to him. Harmon v. Payton [Kan.] 74 P. 618. 7. Where, on the day after levying such an attachment, the debtor made an assign- ment for the benefit of creditors, being hope- lessly Insolvent, its net loss for the ten months preceding the attachment being $20,- 000 and its liabilities increasing every day, held sufficient to warrant the attachment. Herman Goepper & Co. v. Phoenix Erew. Co., 35 Ky. L. E. 84, 74 S. "W. 726. 8. Chattel mortgage permitted mortgagor to retain and dispose of property, substitut- ing other of the same kind therefor, held not to furnish a ground of attachment where all the property was afterwards embraced in a deed of trust to the mortgagee. Wolf & Bro. v. Brwin & Wood Co., 71 Ark 438, 75 S. W. 722. 0. Truitt V. Darnell [N. J. Eq.] 56 A. 692. 10. See 1 Curr. L. 240. 11. Though prosecuted in a county where they did not reside and could not be found, they making no appearance. Nelson v. Beat- rice [Neb.] 96 N. W. 288; Coles & Sons Co v. Blythe, 69 N. J. Law, 203, 54 A. 240. 12. See 1 Curr. L 240. IS. Though temporarily In another coun- ty [Code Civ. Proe. art. 5, §§ 46-56]. Rey- nolds V. Williamson [Kan.] 74 P. 1122; Na- tional Broadway Bank v. Sampson [N. T.] 71 N. B. 766; Jewett v. Boardman [Mo.] 81 S. W. 186; Hornbeok v. Gilmer, 110 La. 500, 34 So. 651. The court proceeds only against the defendant's interest in the property at- tached. Barnes v. Boston Inv. Co. [Neb ] 94 N. W. 101. See 1 Curr. L. 240, n. 16. 14. Brand v. Brand, 25 Ky. L. R. 987, 76 S. W. 868; Barnes v. Boston Inv. Co. [Neb.] 94 N. W. 101; Hornbeck v. Gilmer. 110 La 500 34 So. 651. 15. Brand v. Brand, 25 Ky. L. R. 987. 76 S. W. 868. High V. Padrosa, 119 Ga. 648, 46 S. E. 1«. 859. 17. National Broadway Bank v. Sampson [N. T.] 71 N. E. 766. 18. Ireland v. Adair [N.'d.] 94 N. W 766 1». Code, art. 9, § 24. Steuart v. Cha'pneli [Md.] 57 A. 17. ^ 20. Gutterson v. Meyer [Neb.] 94 N. W. 356 ATTACHMENT § 3, 3 Cur. Law. within the meaning of the attachment laws,^^ as is one traveling through a state delivering lectures.^^ Temporary absence is not nonresidence justifying attach- ment.^' In some states attachment may issue against the property of an adult resident continuously without the state for a certain period, he not having desig- nated a person to receive service.^* Attachmeni against corporations.^^ — In most states writs of attachment prop- erly issue against the property of corporations.^® Fraudulent transfer or disposition of property.^'' — Fraudulent ti'ansfer of a debtor's assets is ground for attachment of the property.^' Fraud,''* actuaP" or intended/^ is an essential element. Ordinarily, fraud should be found as a find- ing of fact,''' though a conclusion of law may sometimes suffice." Ordinarily, sales of property in the usual course of business to customers outside of the state 21. Imperial Cotton Oil Co. v. Allen [Miss.] 36 So. 216. NOTE. Wlio Is a nonresident I This is a question of actual residence, not of domicile, and is a question of fact to be determined by the ordinary and obvious indicia of resi- dence. Keller v. Carr, 40 Minn. 428, 42 N. W. 292. But mere temporary absence of a debtor from the state does not render him a non- resident even though he may not have a house of usual abode there at which a sum- mons against him might be served during such absence. Keller v. Carr, 40 Minn. 428, 42 N. "W. 292; Crawford v. Wilson, 4 Barb. [N. T.] 604 J Tlbbitts v. Townsend, 16 Abb. Pr. [N. T.] 221. But it is otherwise where the absence is protracted. Haggart v. Mor- gan, 4 Sandf. [N. T.] 198; Id., 5 N. T. 422, 55 Am. Dec. 350; Caldwell v. Barclay, 1 Dall. [U. S.] 306, 1 Law. Ed. 149. Absence on ac- count of war will not generally justify an attachment for nonresidence. Clark v. Pratt, 19 La. Ann. 102; Haynes v. Powell, 1 Lea [Tenn.] 347. Contra, Dorsey v. Kyle, 30 Md. 612; Dorsey v. Dorsey, 30 Md. 522, 96 Am. Dec. 633. That one has a place of business in a state will not of itself constitute him a resident. In these cases declarations of intent and domicile of family largely govern. Breed v. Mitchell, 48 Ga. 533; Chase v. Ninth Nat. Bank, 56 Pa. 355; Rayne v. Taylor, 10 La. Ann. 726; Perrlne v. Evans, 35 N. J. Law. 221; Morgan v. Nunes, 64 Miss. 308; Wallace v. Castle, 68 N. T. 370. A nonresident com- ing into a state does not become a resident until he has formed an Intention to locate there. Burrows v. Miller, 4 How. Pr. 349; In re Fitzgerald, 2 Caines [N. T.] 318. An absconding debtor is not necessarily a non- resident. Field V. Adreon, 7 Md. 209; Crox- all V. Hutohlngs, 12 N. J. Law, 97; Bar- net's Case, 1 Dall. [U. S.] 153, 1 Law. Ed. 77; Kennedy v. Balllie, 3 Teates [Pa.] 55. Fugitives from justice are nonresidents. New York v. Genet, 63 N. T. 646, 4 Hun, 487; Thames & M. Marine Ins. Co. v. Dlm- mick, 51 N. T. St. Rep. 41, 22 N. T. S. 1096. But see Starke v. Scott, 78 Va. 180. — Prom notes to Cousins v. Alworth [Minn.] 10 L. R. A. 504, and Monroe v. Williams & Turley [S. C] 19 L. R. A. 665. See 1 Curr. L. 241, n. 23. 22. Garbett v. Mountford [N. J. Law] 54 A. 872. 23. Evidence as to abandonment of home- stead and removal to another state, being denied, held insufflcient. Werner v. Lln- senmeyer [Neb.] 94 N. W. 105. See 1 Curr. L. 241, n. 22. 24. Code Civ. Proo. § 636. Certificate of clerk that no such designation has been found after search is a sufficient basis for a creditor's assertion on Information and belief in the affidavit that none has been made. Ennls v. Untermyer, 87 N. T. S. 695. This section does not apply to the city court of New York, which is governed by § 3169. Pierce v. Martin, 89 N. Y. S. 434. 25. See 1 Curr. L. 241. 26. Gokey v. Boston, etc., R. Co., 130 F. 994. 27. See 1 Curr. L. 241. 28. Belcher-Brown Lumber & Mercantile Co. v. Drane [Mo. App.] 80 S. W. 307. See 1 Curr. L. 241, n, 30. 29. Belcher-Brown Lumber & Mercantile Co. V. Drane [Mo. App.] 80 S, W. 307. State- ment by agent of corporation about to move its factory to another state, made while engaged in dismantling its machinery, that It was a "dirty Job," held to refer to the work in which he was engaged and had no reference to removal as affecting cred- itors. Davis V. Reflex Camera Co., 89 N. Y. S. 587. An affidavit of attachment showing that defendant, after being threatened with suit, stated that if plaintiff sued he would not get a cent, as she would sell her prop- erty and leave New York, and that three days thereafter she did sell it, held to show an intent to defraud creditors. Hill v. Mar- tin, 88 N. Y. S. 708. SO. "Violation of the limited partnership law^ by the payment of an honest debt Is not such actual fraud. Pfluke Co. v. Papu- lias, 42 Misc. 15, 85 N. Y. S. 541. That the debtor gave a chattel mortgage with a pro- vision allowing him to sell the goods mort- gaged without accounting for the proceeds or reducing the debt, and that he had so sold some of the goods in the course of busi- ness, is not such actual fraud. Id. 31. Not fraud declared by statute owing to the omission of certain formalities. Mohl- man Co. v. Landwehr, 87 App. DIv. 83, 83 N. Y. S. 1073. Transfer must be made with Intent to defraud creditors. This Intent must be stated in the affidavit. American Bxch. Bank v. Puckett [Neb.] 95 N. W. 796; Dunn V. Claunoh, 13 Okl. 577, 76 P. 143. That one is about to dispose of his property so as to hinder and delay creditors is not a ground for attachment proceedings. Belcher-Brown Lumber & Mercantile Co. v. Drane [Mo. App.] 80 S. W. 307. But see 1 Curr. L. 241, n. 31. 32, 33. Zacharlae v. Swanson [Tex. Civ. App.] 77 S. W. 627. 3 Cur. Law. ATTACHMENT § 4. 357 do not justify attacliment.'* The mere fact that a debtor is about to leave the state is no ground for attachment.^" A debt being fraudulently contracted an attachment may be had.'' In the absence of statutory definitions, the word "debt" as here used imports an obligation resting upon contract.'^ One from whom property is obtained by fraud may attach the same upon discovering the fraud.'* The right of an assignee of a chose in action to procure a writ of attachment on the ground that the debt or obligation was fraudulently contracted exists only as against his immediate assignee.'" The burden of proving a fraudulent intent is with the party applying for the writ," and circumstances creating a strong sus- picion, but falling short of prima facie proof, are not sufficient;*^ but the effect of a transfer from the debtor to his wife, being to leave his subsequently contracted indebtedness unpaid, the burden is upon the wife to show the good faith of the transaction as against an attaching creditor.*^ § 4. Attachable property.*^ — The property attached must be in the posses- sion of the attachment debtor, or held for his benefit, or in fraud of the rights of the plaintiff,'** and he must have an attachable interest therein.*" An insurance policy being payable to any one of several parties, no one of them has an attach- able interest in the insurance fund.** There being a reservation of produce in a contract for the sale of land until the land is paid for, the vendee has no attach- able interest m the crops until such time.*^ Property which the debtor paid for but which was conveyed direct to hie wife cannot be levied upon by attachment as against the debtor.** Where an attachment is sued out against several de- fendants and the property of only one is levied upon, the levy is properly dis- 84. Herman Goepper & Co. v. Phoenix Brewing Co., 25 Ky. L. R. 84, 74 S. W. 726. See 1 Curr. L.. 242, n. 34. 35. Tyler v. Bowen [Iowa] 100 N. W. B05. The mere fact that a corporation was chan- ging the location of Its factory to a point without the state Is no Indication of fraud sufficient to support an attachment. Davis V. Reflex Camera Co., 89 N. T. S. 587. In Georgia, that the defendant "has left the county and absconded" Is no ground for at- tachment. Forbes Piano Co. v. Owens £Ga.] 47 S. B. 938. 36. Sonnesyn v. Akin [N. D.] 97 N. W. 557. 37. Does not apply In actions to recover damages for tort fRev. Codes 1899, § 5352]. Sonne- yn v. Akin IN. D.] 97 N. W. 557. 3S. Alexander v. Wade [Mo. App.] 80 S. W. 917. 39. Thwlng V. Winkler, 13 OkL S43, 75 P. 1126; Thwlng v. Humphrey, 13 Okl. 646, 76 P. 1127. 40. Mohlman Co. V. Landwehr, 87 App. Div. 83, 83 N. T. S. 1073; Durkin v. Paten, 89 N. T. S. 622. 41. Allegation of suspicious acts subse- quent to a sale, which are physically con- sistent with his having received full vaJue for his property and with Intent to apply the proceeds In good faith to the payment of his debts, held Insufficient. Mohlman Co. V. Landwehr, 87 App. Dlv. 83, 83 N. T. S. 1073. Affidavits stating that defendant had been away for several weeks, had offered to sell a horse and rig at a figure not disclosed, that fae was sending a horse and carriage into the country for sale, that a few months previous a bank had refused to pay his check, and that he was indebted to a number of creditors, that there were mortgages against his property and that his liabilities were more than his assets, held insufficient. Dur- kin V. Paten, 89 N. T. S. 622. 42. Bartlett v. Smith [Neb.] 95 N. W. 661. 43. Bee 1 Curr. L.. 242. 44. McNabb v. Brlce [Ga.] 48 S. E. 199; Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 518, 75 S. W. 445. In an action of attachment and to set aside a fraudulent conveyance, an allegation that the grantor "was the owner in fee simple of the unin- cumbered title" held a sufficient allegation of ownership. Trent v. Edmonds [Ind. App.] 70 N. B. 169. Where one continued in pos- session as before the alleged sale, no one but the immediate parties knowing of the transaction, the bill of sale not being record- ed, held, the sheriff attached the stock be- fore he had notice of the sale. Jordan v. Crickett [Iowa] 99 N. W. 163. 45. Joslyn v. Taplln [Vt.] 57 A. 995. Gen. Daws 1896, c. 212, § 9, giving the husband the right to administer upon the wife's In- testate estate, and to take to himself the surplus after the payment of debts, held, he did not have an attachable Interest in her choses In action until reduced to posses- sion by suit as administrator. Providence County Sav. Bank v. Vadnals [R. I.] 68 A. 454. note:. The reversionary interest In shares of stock in a foreign corporation, owned by a nonresident and pledged to a resident for the payment of a debt, is subject to attach- ment for claims against the nonresident owner. Simpson v. Jersey City Contracting Co., 166 N. Y. 193, 58 N. B. 896, 56 I* R. A. 796. 46. Providence County Sav. Bank v. Vad- nals [R. I.] 68 A. 454. 47. Joslyn v. Taplln [Vt.] 57 A. 995. 48. Creditor must resort to equity. Fletoh. er V. Tuttle, 97 Me. 491, 54 A. 1110. 358 ATTACHMENT § 4. 3 Cur. Law. Jnissed as to the rest.*" Under the modern theory of attachment, property subject to execution is subject to attachment.^" Exempt property is not subject to attach- ment/^ and that the debtor appeared and moved to dissolve the attachment with- out first making claim for his exemption does not waive his right thereto.^- An exemption of property of a husband continues for the benefit of his wife not- withstanding her abandonment by the husband.^' At common law, the rolling stock and all other movable property of a railroad corporation were exempt from attachment,''^ though this has been changed by the constitution or statutes in va- rious states,^^ and while such laws do not of themselves violate the Federal con- stitution, any writ of attachment interfering with the freedom of interstate com- merce is abortive.^" The interest of a debtor in property fraudulently conveyed is subject to at- tachment,''^ the creditor being allowed to attach the property so conveyed, wheth- er the debt is due or not,''^ as if no such conveyance had been made or at- tempted,'"' the attachment issuing against the grantee,®" and after acquiring title, such levying creditor may maintain an action at law to recover possession of his premises, or may resort to equity to have the apparent cloud upon his title removed,"^ or his lien enforced,*^ or the action in attachment and to set aside the .fraudulent conveyance, may be jointly prosecuted."" The property of an in- solvent buUding association is subject to attachment."* Trust property cannot be held under an attachment for the trustee's personal debts."'' Property in the hands of an administrator is not subject to attachment."" One's interest in 49. Connolly v. Atlantic Contracting Co. [Ga.] 47 S. B. 575. 50. Wall V. Norfolk & "W. R. Co., 52 W. Va. 4S5, 44 S. B. 294. No writ of attach- ment can be enforced against property which cannot be seized upon execution. Fletcher V. Tuttle, 97 Me. 491, 54 A. 1110. 51. Under 2 Ball. Ann. Codes & St. i 5255, a debtor furnishing the sheriff a list of his exemptions and the creditor makingr no de- mand for an appraisement within a reason- able time, it becomes the duty of the sheriff to release such property as exempt. State V. Gardner, 32 Wash. 550, 73 P. 690. A homestead [Code 1896, § 2033]. Bailey v. Diinlap Mercantile Co., 138 Ala. 415, 35 So. 451. Under Rev. St. §§ 5438, 5441, a non- resident is not entitled to an exemption therein provided In lieu of homestead (Camp- bell V. Bennington, i Ohio Circ. R. [N. S.] 447), though an abandoned homestead may be subject to attachment (Stickley v. Widle, 122 Iowa, 400, 98 N. W. 135). NOTK. Rigrlit to enjoin attachment pro- ceedings: Attachment proceeding to reach any exempt property may be enjoined. Ha- ger V. Adams, 70 Iowa, 746, 30 N. W. 36 Zimmerman v. Pranke, 34 Kan. 650, 9 P. 747 Wabash Western R. Co. v. Slefert, 41 Mo. App. 35; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448; Moton v. Hull, 77 Tex, 80, 13 S. W. 849, 8 L. R. A. 722. Also where debtor and creditor reside In the same state and the proceedings are in a foreign state. Snook V. Snetzer, 25 Ohio St. 516; Teager v. Lands- ley, 69 Iowa, 725, 27 N. W. 739. — From note to Thorndike v. Thomdlke [111.] 21 L. R. A. 71, 7B. 52. State V. Gardner, 32 Wash. 550, 73 P. 690. 53. Baum v. Turner, 25 Ky. L. R. 600, 76 S. W. 129. 54. Wall V. Norfolk & W. R. Co., 52 W. Va. 485, 44 S. E. 294. A railroad car of a foreign company temporarily within a state is not liable to attachment issued in an ac- tion in the courts of that state. Connery v. Quincy, etc., R. Co. [Minn.] 99 N. W. 365. 55. Constitution, art. 11, § 8. Wall v. Nor- folk & W. B. Co., 52 W. Va. 485, 44 S. B. 294. .56. A car sent into a state loaded with freight from another state and to be re- turned to the latter state in the transaction of Interstate commerce cannot be levied upon under an attachment in the iirst named state. Wall v. Norfolk & W. R. Co. 62 W. Va. 485, 44 S. E. 294. 57. Westervelt v. Baker [Neb.] 95 N. W. 793; Coulson v. Galtsman [Neb.] 96 N. W. 349. 58. Burns' Rev. St. 1901, § 925. Trent v. Edmonds [Ind. App.] 70 N. E. 169. 59. Fletcher v. Tuttle, 97 Me. 491, 54 A 1110. «0. Trent v. Edmonds [Ind. App.] 70 N. E. 169. Under Code, § 3896, providing for the attachment of property in the posses- sion of a third party, but of which the de- fendant Is entitled to the Immediate posses- sion. Jordan v. Crlckett [Iowa] 99 N. W. Fletcher v. Tuttle, 97 Me. 491, 54 A. Coulson V. Galtsman [Neb.] 96 N. W. Trent v. Bdmonds [Ind. App.] 70 N. E. 163. ei. nio. 62. 349. 63. 169. 64. Bories v. Union Building & Loan Ass'n 141 Cal. 74, 74 P. 652. 65. Hussey v. Arnold [Mass.] 70 N. B. 87. As to beneficiaries' interest, see 1 Curr. L. 242, n. 46. 66. District court of Kansas has no juris- diction to order such an attachment. O'Lough- lin V. Overton [Kan.] 74 P. 604. See 1 Curr. L. 242, n. 44, 45. 3 Cur. Law. ATTACHMENT § 5. 359 an estate in the lianda of an executor during the course of administration is not attachable."^ Funds in .eustodia legis/* or in the hands of a public ofiQcer/" are exempt from attachment. In the absence of statutory provisions, equitable inter- ests in property are not attachable in an action at law.'" Under statutes providtag that persons holding property of the defendant shall, upon application, give a certificate of the latter's interest therein, and upon refusal shall be subject to examination, it is not necessary to show that the property would be subject to levy in order to secure such examination,'^ nor does the right to demand the cer- tificate depend, in most states, on the service of the warrant,''' and the affidavit of the sheriH must show that the third party wholly failed to give a certificate.''' Attachable debts and choses in action.''* — Some courts hold the situs of a debt, for the purposes of attachment proceedings, to be at the domicile of the debtor,'" others that it is at the domicile of the creditor.'" A contract debt, payable within a state but due a nonresident defendant by a foreign corporation, may be attached in an action brought in the state." § 5. Procedure in general.''^ — The trial of the attachment is wholly distinct •from the trial of the ease on its merits, and sometimes precedes and sometimes follows the main trial." The plaintiff must join as parties all persons interested in the property attached.*" An action which has for its purpose the subjection of property to the payment of a debt, and is commenced by attachment for that pur- pose, is a civil action,'^ and is governed by statutes regulating such actions.*^ In attachment proceedings, it is not necessary that the account should itemize the indebtedness,*' nor is a variance between an account filed with an original declara- tion under a rule-day act and one filed with a petition for a writ of attachment material, defendant never being summoned and no judgment by default being taken.** In most states, papers in attachment proceedings are amendable the same as S. W. 917. 44. Code, § 3901. Carpenter v. Clements, 122 Iowa, 294, 98 N. W. 129. 45. Carpenter v. Clements, 122 Iowa, 294, 98 N. W. 129. 46. Sonnesyn v. Akin [N. D.] 97 N. W. 567, for authorities pro and con. 47. A prior agreement on the facts in another motion does not relieve him of the necessity of proof, where the motions were before different judges. Goldman v. Floter, 142 Cal. 388, 76 P. 58. 48. 49. In re Warthman [Del. Super.] 55 A. 6. 50. MoLane v. Colburn, 2 Ohio N. P. (N. S.) 267. 51. See. 1 Curr. L. 255. 52. Code 1896, | 2062. Bailey v. Dunlap Mercantile Co., 138 Ala. 415, 35 So. 451. 53. Wolf V. Erwin & Wood Co., 71 Ark. 438, 75 S. W. 722. 54. Williams v. Farmers' Gin & Grain Co., 13 Okl. 5, 73 P. 269; Dunn v. Claunch, 13 Okl. 677, 76 P. 14S. 3 Cur. Law. ATTACHMENT § 16. 373 on his own behalf."' The question of nonresidence being presented by affidavits, it becomes purely a question of fact." On the trial of a contest of a claim for exemption from an attachment the affidavit and undertaking are not relevant evidence,"' but book entries by the sheriff of facts concerning the levy are admis- sible." Judgment and decree or order.^^ — The property being taken on a forthcom- ing bond the judgment must provide that defendant shall return the property or pay its value."" An order refusing to quash an attachment is not a final order,*^ but an order quashing an attachment is."^ Appeal. — An order vacating an attachment is not appealable." In an action to compel delivery of property taken by attachment, there being nothing in the record to show whether the amount due under the attachment was less or more than the value of the property, it wiU be presumed upon appeal that it was not a less sum.** An order of the trial court discharging an attachment will be sustained unless clearly against the weight of the evidence."" § 16. Hostile and opposing claims to attached property.*'' — Any person claiming property attached may interplead in the cause," but such interpleader must have the legal title or right to the immediate possession of the property," and must recover upon the strength of his own claim, not upon the weakness of that of his adversary."' One of several interpleaders purchasing the claim of the plaintiff, the claims of the other interpleaders are not thereby disposed of but the case should proceed upon the issues raised.'" In the absence of statutory provisions such interpleader is not required to give a bond before filing his in- terplea.'* Under statutes permitting a married woman to contract, sue, and be sued on her own account, she can interplead in an attachment suit against her husband to recover her separate property.'* The true ovmer is not estopped from asserting ownership as against an attaching creditor, by declarations of title by the party in possession, such declarations being unknown to the owner.'* Pre- ferred creditors intervening in an attachment suit which is about to be dismissed as groundless cannot maintain a bill in equity to have the attachment enforced for their benefit.'* Neither the sheriff nor the attaching creditors are necessary or proper parties to a suit by a claimant to establish a disputed claim.'" 55. Dunnv. Claunch. 13 Okl. 143, 76 P. 143. 56. ■Williams v. Parmera' Gin & Grain Co., 13 Okl. 6, 73 P. 269. 57. Bailey v. Dunlap Mercantile Co., 138 Ala. 415, 35 So. 451. 58. Book entries by a sheriff of facts concerning the levy outside of the Informa- tion contained In the writs and returns are admissible, though the books are not re- quired to be kept by law, and as to facts contained In the writs or return Is merely cumulative and their admission is harmless. Hesser v. Rowley, 139 Cal. 410, 73 P. 156. 59. See 1 Curr. L. 256. 60. Balllng-er's Ann. Codes & St. %i 5262, 5266. Hill V. Gardner [Wash.] 77 P. 808. 61. Steuart v. Chappell [Md.] 57 A. 17. 62. Hence la appealable. Steuart v. Chap- pell [Md.] 57 A. 17.' 63. Peldman v. Siegel, 87 N. T. S. 538. 64. Hill V. Gardner [Wash.] 77 P. 808. 65. Evidence consisted solely of affidavits and counter-affidavits. Fremont Brewing Co. v. Pekarek [Neb.] 95 N. W. 12; Werner v. Llnsenmeyer [Neb.] 94 N. W. 105. 66. See 1 Curr. L. 257; also Liens, 2 Curr. L,. 736. 67. Mortgagee and other lienors. Miller V, Campbell Commlaalon Co., 13 Okl. 75, 7» P. 507. But see 1 Curr. L. 257, n. 62. es. Rice, Stlx & Co. V. Sally, 176 Mo. 107, 75 S. W. 398. Under a chattel mortgage pro- viding that after default the mortgagee could take possession of and sell the chat- tels, the mortgagor after default cannot in- tertilea In an attachment brought against the mortgagee. Connersville Buggy Co. v. Lowry [Mo. App.] 77 S. W. 771. 69. Defaulting mortgagor not having suf- ficient interest to interplead as against at- taching creditor of mortgagee cannot show that the note was transferred to and owned by another than the defendant mortgagee. Connersville Buggy Co. v. Lowry [Mo. App.] 77 S. W. 771. 70, 71. Miller v. Campbell Commission Co., 13 Okl. 75, 74 P. 507. 72. Rev. St. 1899, 5 4335. It makes no difference that the property was acquired from the husband. Evidence held insuffi- cient to sustain such a transfer. Rice, Stlx & Co. V. Sally, 176 Mo. 107, 75 S. W. 398. 73. Personal property. Wright v. Tanner [Minn.] 99 N. W. 422. 74. Wlnrod v. Woltera, 141 Cal. 399, 74 P. 1037. 374 ATTACHMENT § 17. 3 Cur. Law. Pleading.^' — The ownership of movable property being in dispute, the party against whom the claim is asserted may require the intervenors to amend their pleadings so as to give him such information as will acquaint him with the details of the claim he must meet.'' Evidence and questions of fact.''^ — The burden is upon an interpleader to prove his title/' or right to possession/" though in some states the plaintiff must first make out a prima facie case that the property is liable to attachment/^ which he may do by proving that the goods were in the control and possession of the defendant at the time of the levy.*^ Statements by the attachment defendant to the attaching creditor as to his own financial condition are inadmissible.*' The nature of the possession, declarations of the parties as to title, and the relationship of the owner and party in possession, are competent evidence on the question of ownership.** Trial.^" — In some states the issues on the affidavit of claim must be made up at the term at which the attachment is returnable.*' The issues made by the interpleader should be tried as like issues between plaintiff and defendant." Several claimants interpleading, all the issues should be tried and determined, and the property awarded to the rightful claimant.** § 17. Wrongful attacliment.^^ — An attachment maliciously made for an ex- cessive amount is an actionable wrong,^° but no action lies for wrongful attach- ment if facts justifying an attachment exist, although the creditor was ignorant thereof."^ A judgment in favor of defendant conclilsively establishes that the attachment was without sufficient cause.°- That the plaintiff in his affidavit knowingly and grossly overstates the amount of his claim, warrants the inference of malice," but that the claim attempted to be prosecuted by attachment was subject to a set-off of greater amount is not sufficient to justify such a con- clusion.'* There being several wrongful levies on the same property by the same parties but one cause of action arises."*^ A wife abandoned by her husband,"" or a purchaser from an assignee for the benefit of creditors," can maintain this 75. Code Civ. Proc. §§ 2153, 2154. Shea v, Regan [Mont.l 74 P. 737. 76. See 1 Curr. L,. 257. 77. Intervenors claiming some liorses out of a number attaclied ordered to give in their petition the name and description of each horse, the date and place of purchase, the price, if possible, and the person from whom they bought. Curtis v. Jordan, 110 La. 429, 34 So. 591. 78. See 1 Curr. Li. 258. 79. Willard Mfg. Co. V. Tlerney, 133 M C. 630, 45 S. E. 1026; Torreyson v. Turnbaugh [Mo. App.] 79 S. "W. 1002. See 1 Curr. L. 258, n. 84. 80. Torreyson v. Turnbaugh [Mo. App.] 79 S. "W. 1002. See 1 Curr. L. 258, n. 84. 81. Code, § 4141. British & A. Mortg. Co. V. Cody, 135 Ala. 622, 33 So. 832. 82. The attachment being levied upon a crop, and being for rent due, testimony by the sheriff that he levied upon the crop while on land cultivated by the defendant, held to make a prima facie case. British & A. Mortg. Co. v. Cody, 135 Ala. 622, S3 So. 832. S3. Torreyson v. Turnbaugh [Mo. App.] 79 S. W. 1002. 84. Wright V. Tanner [Minn.] 99 N. W. 422. 85. See 1 Curr. L. 258. 86. In Mississippi, if not so done, the at- tachment may be discharged and the claim- ant released from his bond [Rev. Code 1892, §§ 4425-4428]. Tennent-Stribling Shoo Co. v. Roper [C. C. A.] 128 F. 40. 87, 88. Miller v. Campbell Commission Co., 13 Okl. 75, 74 P. 507. 89. See 1 Curr. L. 259. 90. Tamblyn v. Johnston [C. C. A.] 126 F. 267. 9H liOrd, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. "W. 842. 92. Anvil Gold Min. Co. v. Hoxsie [C. C. A.] 125 F. 724. 93. Tamblyn v. Johnston [C. C. A.] 126 F. 267. 94. Smeaton v. Cole, 120 Iowa, 368, 94 N. W. 909. 95. Burdge v. Kelchner, 66 Kan. 642, 72 P. 232. 96. Civ. Code, 5 34, subsec. 4, providing that if a husband desert his wife she may bring or defend any action he might bring or defend, held she could maintain an action for wrongful attachment of exempt property. Baum V. Turner, 25 Ky. L. R. 600, 76 S. W. 129. 97. A purchaser from an assignee for ben- efit of creditors by a sale ratified by the creditors, although' not in accordance with the terms of the assignment, has sufHclent title to maintain an action for wrongful 3 Cur. Law. ATTACHMENT § 17. 375 action. Allowing the garnishee to be discharged and costs to be entered against himself does not estop the attachment defendant from maintaining an action for wrongful attachment." The sheriff assuming liability for the levy the owners have a cause of action against him for conversion, the levy being declared unlaw- ful.®° Mandamus has been allowed to compel the sheriff to redeliver property wrongfully attached.^ A counterclaim for wrongful attachment cannot be made in the suit begun by the attachment.* Pleading.^ — The allegations must not be inconsistent.* An allegation that one wrongfully sued out his attachment is suflScient, after verdict, in the absence of a motion to make more specific* Evidence and questions of fact.'' — The claim being that the attachment was wrongfully sued out, the attachment defendant must show that the attachment has been discharged in the suit in which it was issued,' but the wrong complained of being the seizure of propertj' not subject to the writ, plaintiff need not show such discharge.' Malice being alleged aU matters directly connected with the conduct of the business transactions between the two parties are relevant,' also that the attachment plaintiff did not properly apply money received to pay the debt.^" Declarations of agent of attorney who filed the attachment papers are admissible as against the attorney's client.^^ Damages.'^'' — In the absence of statutes the wrongful issuance of the writ will not alone warrant the recovery of damages.^' No damages being proven none can be recovered.^* Damages allowed by a state court are recoverable, though the action is removed to the Federal courts.^' The measure of damages is not affected by the subsequent conduct of the defendant in seizing the prop- erty upon execution.^* Eent,^'' clerk hire,^* depreciation of goods,^' value of license to carry on business,-" and of property used by sheriff,'^ may be recovered. attachment. Rouss v. Ratliff [Tex. Civ. App.] 75 S. W. 862. 98. Tamblyn v. Johnston [C. C. ^.] 126 F. 267. 99. Burdge v. Kelohner, 66 Kan. 642, 72 P. 232. I. "Where property was exempt. State v. Gardner, 32 Wash. 550, 73 P. 690. a. Ingram v. Dailey [Iowa] 98 N. W. 627. 2 Balllnger's Ann. Codes & St. § 4913. Tres- pass. See this case for short discussion pro and con of above proposition. Tacoma Mill Co. V. Perry. 32 Wash. 650, 73 P. 801. 3. See 1 Curr. L. 260. 4. An allegation in the complaint that the property had been released from the levy, held, as against a general demurrer, merely a recitation of the effect of the Judg- ment and not inconsistent with an allegation that the officer had refused to deliver the property to plaintiff. Chandler v. Howell [Tex. Civ. App.] 73 S. W. 426. 5. W^aller v. Deranleau [Neb.] 94 N. W. 1038. 6. See 1 Curr. L. 260. 7. 8. Baum v. Turner, 25 Ky. L. R. 600, 76 S. W. 129. 9. Conversation of debtor's mother with creditors when account was opened, admis- sible. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. 10. Applied it on a debt not yet due. Tamblyn v. Johnston [C. C. A.] 126 F. 267. II. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. 12. See 1 Curr. L. 260. 13. Smeaton v. Cole, 120 Iowa, 368, 94 N. W. 909. 14. Where no Injury to defendant's cred- it or reputation Is shown, and it not appear- ing what the value of the use of the prop- erty was during the existence of the lien, held, no damages could be recovered. Hume v. Netter, Geismar & Co. [Tex. Civ. App.] 72 S. W. 865. 15. Attorney's fees. Fidelity & Deposit Co. v. Bucki & Son Lumber Co., 189 U. S. 135, 23 S. Ct. 682, 47 Law. Ed. 744. 16. Miller V. Baker, 25 Ky. L. R. 1858, 79 S. W. 187. 17. Of the building in which the business is carried on. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. The sheriff, re- taining possession of a building rented by the attachment defendant longer than Is nec- essary to take an inventory of the goods seized. Is liable for the rent. Hooks v. Paf- ford [Tex. Civ. App.] 78 S. W. 991. 18. Where a business could not be carried on, owing to a wrongful levy on a stock of goods, clerk hire which plaintiffs were com- pelled to pay under their contract could be recovered In an action for damages for the wrongful levy. Hooks v. Pafford [Tex. Civ. App.] 78 S. W. 991. 19. He is not estopped from claiming such damages, although he protested against a sale on the ground that they might depre- ciate. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. 20. A stock of liquors and a saloon li- cense of plaintiff were wrongfully levied on as the property of plaintiff's vendor, so that plaintiff could not carry on his business. Held, he could recover the value of the li- cense as a part of his damage. Hooks v. 376 ATTOENEYS AND C0U2srSEL0ES § 1. 3 Cur. Law. Damages for loss of credit by reason of the wrongful attachment are recovera- ble,^* though damages for injuries to the vendee's credit, and loss of profits resulting from actions brought by his vendor for breach of contract are not recoverable in a suit on the attachment bonds issued in such actions. ^^ Attorney's fees paid for recovering property wrongfully attached cannot generally be recov- ered;"* nor is interest accruing prior to the date of judgment recoverable."" The attachment defendant remaining in the possession of the property he can only recover nominal damages, unless he refrains from using it under instructions from the officer."" Exemplary damages may be allowed."' The attachment defendant may recover in the same action damages for the value of the goods not returned, together with expenses incurred in dissolving the attachment, and for loss of time."' That the attachment defendant procured a release of the property shortly after seizure is relevant and material on the question of damages,"' and the good faith of the attachment plaintifE and the sureties on the bond is no defense.'" The measure of the debtor's damages for loss of time is what his time would have been worth at his particular business.'^ The property being held under subsequent attachments at the time of the vacation of defendant's attachment, the measure of damages is the difEerence in the market value of the property on the da:te of the levy of defendant's writ, and their value on the day when such writ was dissolved.'" The property being held, at the time of the dissolution of the writ of attachment, under a valid writ of sequestration, the damages recover- able by the attachment defendant are only such as he appears to have sustained by reason of the charges in the affidavit and his expenses in procuring the disso- lution of the writ.'* ATTORNEYS AMTJ COUlirSBLOBS. I 1* Admission to Practice and License Ta^es (376). § 2. Privileges and Disabilities (377). S 3. Suspension and Disbarment* Grounds (378). § 4. Creation and Termination of Relation wltli Client (379). § 5. Rights, Duties and lilabllltles Be- tvreen Attorney and Client? Generally; liOy- nlty and Good Faitli (379). i 6. Remedies Between the Parties (381). { 7. Compensation and Lien (381). § 8. Authority of Attorney to Represent Client (390). § ». Rights and UabiUties to Third Per- sons (392). § 10. Law Partnerships and Associations (392). S 11. PnbUc Attorneys (392). A. Attorneys General (392). B. District and State's or Prosecuting Attorneys (393). § 1. Admission to practice and license taxes?* — The granting of a license to practice law, being the exercise of a judicial function, can be impeached eol- Pallord [Tex. Civ. App.] 78 S. "W. 991. 21. Coal. Hooks v. Paftord [Tex. Civ. App.] 78 S. W. 991. 22. Tamblyn v. Johnston [C. C. A.] 126 F. 267. S3. Fidelity & Deposit Co. v. Buckl & Son Lumber Co.. 189 U. S. 135, 23 S. Ct. 582, 47 Law. Ed. 744. 24. Property of third party wrongfully seized. Bogard v. Tyler's Adm'r, 25 Ky. L. R. 1416, 78 S. "W. 138. 25. Hill V. Gardiner [Wash.] 77 P. 808. 26. Low V. Ne Smith [Tex. Civ. App.] 77 S. W. 32. 27. NOTE. Exemplary damages : If an at- tachment, In addition to being wrongful, is sued out maliciously or vexatiously and without probable cause, for the purpose of harassing and oppressing the attachment defendant, rather than to preserve legal rights, exemplary or vindictive damages may be recovered in addition to actual damages. Kirksey v. Jones, 7 Ala. 622; Seay v. Green- wood, 21 Ala. 491; Foster v. Sweeney, 14 Serg. & R. [Pa.] 386; Frank v. Curtis, 58 Mo. App. 349; Campbell v. Chamberlain, 10 Iowa, 337. — From note to Tisdale v. Major, [Iowa] 68 Am. St. Rep. 263, 277. 28. Is not a misjoinder of cause of action ex contractu with causes ex delicto. Voss V. Bender, 32 Wash. 566, 73 P. 697. 29, 30. Anvil Gold Min. Co. v. Hoxsle [C. C. A.] 125 F. 724. 31. Not his reasonable wage or what he would have been able to earn in other em- ployments. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. 32. Goods were perishable. The several writs of attachment were In no way con- nected with each other. Engelke & Felner Mill. Co. v. Grunthal [Fla.] 35 So. 17. 3 Cur. Law. ATTOENEYS AND COUNSELOKS § 2 377 laterally .only by what affinnatively appears on the face of the record;" but a license to practice law may be withdrawn by the power which confers it.'° The failure of an attorney to pay the statutory occupation tax will not bar his right to recover on a cause of action assigned to him by his client as compensation for his services."' In New Jersey, attorneys are licensed by the governor after exam- ination and recommendation by the supreme court, the right of examination by that court being a constitutional one.'' § 2. Privileges and disabilities.^^ — Attorneys are oflBcers of the court, and must uphold and sustain its dignity, both in and out of court.*" They are not exempt from arrest in civil actions, except when they are actually in attendance in court in the due course of their employment as attorneys, and are not -at any time exempt from service of summons.*^ They may not sign any bond, or enter into any recognizance as surety for an appearance in a criminal case.*'' An attorney may be committed for contempt of court, but the final order committing him must recite the particular circumstances of the ofEense.*^ When an attorney at law is elevated to the bench, his right to practice in any of the courts of the state is suspended as long as he remains thereon, except when he is party in an action and protecting his own individual rights exclusively.** Conduct which would disbar an attorney and subject him to criminal prosecution will prevent him from obtaining relief from the court.*" A "Bar Association" is a private corporation, and all questions of membership are left to its determination imder its regulations.** S3. Southern Grocer Co. v. Adams [La.] 36 So. 226. 34. See 1 Curr. L. 261. 35. Fish V. St. Douls County Print. & Pub. Co., 102 Mo. App. 6, 74 S. "W. 641. Where, In a jury action against an attorney to re- cover securities which he claimed to hold as fees. It was admitted that he was a mem- ber of the bar, it was prejudicial error to permit defendant, over objections, to be asli- ed questions as to his admission, and sug- gresting- that it had been procured by unlaw- ful and corrupt practices. Dodds v. Gregson [Wash.] 77 P. 791. 36. The circuit court may of Its own mo- tion, at the same term at which It had grant- ed a license to practice law, set aside the order, and good grounds for such action will, on appeal, be presumed. Kllllan v. State [Ark.] 78 S. W. 766. 37. Ft. Worth & D. C. R. Co. v. Carlock & Gillespie [Tex. Civ. App.] 75 S. W. 931. 38. An act relieving registered law stu- dents from an examination provided by the supreme court Is invalid. In re Branch [N. J. Law] 67 A. 431. 39. See 1 Curr. L. 262. As to privilege of communications see Witnesses, 2 Curr. L. 2163. 40. An attorney as party to an action Is prohibited from knowingly making defama- tory charges against a Judge. Morrison v. Snow, 26 Utah, 247, 72 P. 924. 41. Attorney attending Judicial sale is not privileged. Greenleaf v. People's Bank, 133 N. C. 292, 46 S. B. 638. 42. But they may sign as securities for a confession of judgment for a fine and costs. Halfacre v. State [Tenn.] 79 S. W. 132. In Texas, the district court rule that attorneys shall not be surety in any cause pending In court is directory merely, and such a bond Is not defective on that ground. Prusleckl v. Ramzinskl [Tex. Civ. App.] 81 S. W. 549. Note. At common law an attorney was not prohibited from becoming surety for his client, except where so doing Involved champerty. See Walker v. Holmes, 22 Wend. [N. T.] 614; Abbott v. Zeigler, 9 Ind. 511. But statutes or rules of court in most states now forbid his doing so. If he become sure- ty in violation thereof, he Is liable on breach of the bond. Morrill v. Lamson, 138 Mass. 115; Tessier v.. Crowley, 17 Neb. 207, 22 N. W. 422; Wright v. Schmidt, 47 Iowa, 233. But if the bond be attacked by motion. It win be deemed Insufficient for the purposes of the action. Massle v. Mann, 17 Iowa, 131; Gilbank v. Stephenson, 30 Wis. 155. And it has been said that the attorney may be pun- ished for contempt If the prohibition is by rule of court. Ohio & M. R. Co. v. Hardy, 64 Ind. 466. 43. A statement that he behaved In an Insolent and disorderly manner, tending to interrupt the court and impair the respect due it, is insufficient. People v. Marean 86 App. Div. 278, 83 N. Y. S. 843. 44. Perry v. Bush [Fla.] 36 So. 225. An order of court suspending an attorney from practice on his election to a Judicial office Is not needed when the constitution forbids his so practicing. In re Silkman, 84 N. T. S. 1026. 45. Plaintiff obtained judgment for return of a diamond given to an attorney under an Iniquitous agreement to testify falsely; at- torney brings writ of error. Proceeding dismissed with censure. Smith v. Blank [Kan.] 76 P. 858. 46. Mandamus to compel a bar associa- tion to act upon an attorney's application for membership, will be denied on a showing that the application had been acted upon un- favorably. State v. Louisiana Bar Ass'n 111 La. 967, 36 So. 60. 378 ATTOENEYS AND COUNSELOES § 3. 3 Cur. Law, § 3. Suspension and disbarment. Grounds." — Where, subsequently to his admission to the bar, an attorney is guilty of such conduct that he no longer pos- sesses the qualifications necessary to admit him, he should be disbarred.** The giv- ing of fictitious copy of a decree of divorce to a client,*' false allegations in a plead- ing reflecting on the character of one of the state judiciary,'" advertising as a divorce lawyer," imposing upon the eourt,''^ deceit and fraud upon clients,"' or retain- ing a client's funds,"* have been held good ground for disbarment; but the reten- tion of funds under a claim of right does not merit the penalty of disbarment,"' nor do exorbitant charges, nor the indebtedness to a client of a balance which is the subject of a bona fide dispute."" The conviction of crime many years prior to admission to the bar is not, as a matter of law, sufficient cause for disbarment."'' A judicial officer practicing as a lavrj'er against a constitutional provision can- not be disbarred by the court; his ofEense being in his capacity as a judicial officer, and not as an attorney."' Defense or excuse.^^ — Where collecting and failing to remit or account for money due to a client is ground for disbarment, the defense of alcoholism is not even a mitigating circumstance.'"' Where false allegations in a pleading reflect upon the character of a justice of the supreme court, the attorney making them cannot be excused by filing a disclaimer, in disbarment proceedings, that any such meaning was intended."' Proceedings in general.'^- — Petitions in disbarment proceedings must be signed and verified according to statute, and the charges must be properly formu- lated."' In Washington, the superior court has original jurisdiction in matters of disbarment; the supreme court has only appellate jurisdiction."* The defendant is •entitled to a change of venue, on motion for same, on the ground of prejudice of the judge.*" The proceeding being quasi criminal, the evidence should be clear 47. See 1 Curr. L. 262. 48. People v. Essington [Colo.] 75 P. 394. The license of an attorney violating the statu-te regulating attorneys may be revoked by the court. Morrison v. Snow, 26 Utah, 247, 72 P. 924. NOTE]. liSglit to disbar for crime before erliialiaa.1 conviction: The weight of authori- ty is to the effect that an attorney may be disbarred for an act constituting a crime, though there has been no criminal prosecu- tion therefor. Ex parte Wall, 107 U. S. 266, 2 S. Ct. 569; In re Percy, 36 N. T. 651; Penob- scot County Bar v. Kimball, 64 Me. 140; De- lano's Case, 58 N. H. 5; State v. Finley, 30 Fla. 302, 11 So. 500; Perry v. State, 3 G. Greene [Iowa] 550; Baker v. Com., 10 Bush [Ky.] 592; In re Bldrldge, 82 N. T. 161; Peo- ple v. Appleton, 105 111. 474. The contrary rule was held in Anonymous, 7 N. J. Law, 162; Beene v. State, 22 Ark. 149; Ex parte Steinman. 95 Pa. 220; but see Serfass' Case, 116 Pa. 455, 9 A. 674. And a statute in Cali- fornia providing that "conviction of felony" shall be ground for disbarment has been held to make conviction a condition prece- dent to disbarment for acts constituting a felony. In re Stephens, 102 Cal. 264, 36 P. 586. The contrary conclusion was reached by another court under an Identical statute. State V. Winton, 11 Or. 456, 5 P. 337. 4». People V. Belinski, 205 111. 564, 69 N. E 5 .50. In re Snow [Utah] 75 P. 741. .51. People V. Taylor [Colo.] 75 P. 914. 52. An attorney retained and paid in a criminal suit Induced his client to swear he was poor and had no attorney and had him- self appointed and paid in addition by the county. In re Byrnes [Minn.] 100 N. W. 645. 53. An attorney is estopped to object that the fraud perpetrated on his client was three days before his admission, since that proved him guilty of falsely representing himself to be a licensed attorney. In re Elliott [S. D.] 100 N. W. 431. 54. Evidence of retaining money collected for a client and other money sent to redeem lands held sufBclent to warrant the attor- ney's disbarment. Peopje v. Kelsey [Colo.] 75 P. 390. 65. In re Thresher [Mont.] 73 P. 1109. 56. People v. Robinson [Colo.] 75 P. 922. 57. The attorney had been convicted of crime thirteen years before his admission to the bar, but had lived an upright life since being pardoned out. People v. Coleman [111.] 71. N. E. 693. 68. Surrogate practicing as an attorney. In re Silkman, 88 App. Div. 102, 84 N. Y. S. 1025. See 1 Curr. L. 264. People V. Webster, 31 Colo. 43, 71 P. 5». 60. 1116. 61. 62. 63. 249. 64. 65. In re Snow [Utah] 75 P. 741. See 1 Curr. L. 264. In re Roe, 81 App. Div. 656, 81 N. T. S. In re Waugh, S2 Wash. 50, 72 P. 710. State ex rel. Scott v. Smith, 176 Mo. 90, 75 S. W. 586. 3 Cur. Law. ATTOENEYS AND COUNSELORS § 5. 379 and convincing.^" Disbarment proceedings, when carried to the court of appeals, are only reviewable, and not triable de novo.*' Reinstatement.^^— The same authority that disbars attorneys may reinstate them, and this may be done purely as an act of judicial clemency."" The petition for the reinstatement must express regret for the culpable acts, and the assurance of upright future conduct.'" A provision in an order denying reinstatement of an attorney, that it is without prejudice to the filing of another similar petition after a future date, does not preclude him from a hearing on the merits of another petition filed before that date, founded on other facts.'^ § 4. Creation and termination of relation with client.'^ — Parties have al- ways the right to select their own attorneys.'" Though an attorney be employed on a contingent fee, the client may discharge him at any time, he being then entitled to reasonable compensation;'* but the client must notify interested par- ties of the discharge of the first attorney or be estopped, as to such parties, from questioning .his authority." In Wisconsin, the written consent of both the party to the action and his attorney is required, before an order for substitution of attorneys be signed.'* The insanity of a client operates to terminate the relation of attorney and client, or to invalidate any contract between them." § 5. Eights, duties and liabilities between attorney and client; generally; loyalty and good faith. ''^ — An attorney owes his client the utmost loyalty and faith in conducting his afEairs,'" but an attorney is not under obligation to his client to maintain positions in court that do not accord with his own notions of law and justice, simply because they tend to his client's advantage."" Informa- ce. The client's claim to money with- held should be legally established before disbarment proceedings are begun. An ap- plication for disbarment of an attorney for fraud in depriving his Qllent of money will not be entertained by the supreme court un- til the client has established his claim in the ordinary tribunals of the county where the cause of action arose. In re Delmas. 139 dal. xix. 72 P. 402. The evidence of fraudu- lent acts of an attorney should be clear and convincing, as the charge involves moral turpitude and a liability to imprisonment. Dicker v. Cohen, 84 N. T. S. 189. The evi- dence to justify a disbarment should be full, clear and convincing not merely a prepon- derance of evidence as in civil cases. In re Dodge [Minn.] 100 N. W. 684. Official mis- conduct, warranting disbarment, must be clearly proved, as it involves serious charges. People v. Hoblnson [Colo.] 75 P. 922. Evidence insufficient to convict an at- torney of forging his client's name. Seiferd V. Meyer, 87 N. T. S. 636. 67. An order reciting that the court "be- ing of the opinion that the matters involved tiere are triable de novo, doth find," etc., shows that the court of appeals tried the case de novo, Instead of exercising appellate jurisdiction which alone it could do. State v. Smith, 176 Mo. 90, 75 S. W. 586. 68. See 1 Curr. L. 265. 69. People v. Essington [Colo.] 75 P. 394. At the expiration of the time for which an attorney has been disbarred, he may apply to be reinstated, and on proper petition this will be done. A petition, with a certificate signed by nearly every member of the bar of hie county, that the attorney since his disbarment "has conducted himself as, and Is now, a man of good moral character," en- titles him to reinstatement. In re Weed [Mont.] 77 P. 50. 70. In re Weed, 28 Mont. 264, 72 P. 653. 71. In re Sullivan [Mass.] 70 N. E. 441. 7a. See 1 Curr. L. 265. Effect of termina- tion of relation on compensation and lien, see post, § 7. 73. A court in permitting parties to in- tervene as defendants has no authority to require them to appear through the attorney employed by the original defendants. O'Connor v. Hendriok, 90 App. Div. 432, 86 N. Y. S. 1. An attorney representing a per- son who becomes insane has not per se the right to represent the person appointed as guardian. State v. District Court of Second Judicial Dlst. [Mont.] 75 P. 516. 74. Breathitt Coal, Iron & Lumber Co. v. Gregory, 25 Ky. L. R. 1507, 78 S. W. 148. Where an attorney has contracted for a cer- tain compensation, and an application for a substitution of attorneys is made, the fee to be paid as a condition of such substitution, la the' reasonable value of the services ren- dered up to that time. Such v. Bank of State of New York, 121 P. 202; Joseph's Adm'r V. Lapp's Adm'r, 25 Ky. L. R. 1875, 78 S. W. 1119. 75. Butcher v. Qulnn, 86 App. Dlv. 391, 83 N. Y. S. 700. 76. The court need not recognize a con- sent signed only by the attorney of record. In re McMahon's Estate, 117 Wis. 463, 94 N. W. 351. 77. Chase v. Chase [Ind.] 71 N. E. 485. 78. See 1 Curr. L. 266. 79. CahiU V. Dickson [Tex. Civ. App.] 77 S. W. 281. 80. Sprague v. Moore [Mich.] 99 N. W, ST7. 380 ATTOEJSTEYS AND COUNSELOES § 5. 3 Cur. Law. tion acquired during the existence of the relation of attorney and client cannot thereafter be used by the attorney against his client.'* He may not acquire title to property which is in any way the subject of his client's litigation, without knowledge of the client and adverse to his interests;'^ but upon the termination of the trust relation with their clients, attorneys may deal with property which had been the subject of litigation, the same as outside parties.'' Having acted as general counsel does not prevent an attorney appearing for an adverse party.'* An attorney has the right to advise and assist his client to the most advantageous compromise in his behalf, provided he makes no false statement of fact to the adverse party to induce such compromise.'" He may also properly act for his clients, and at the same time assist the defendant in purchasing the claims of other creditors of the defendant." Diligence.^'' — An attorney is liable to his client for damages proximately flowing from his failure to possess and exercise such skill, prudence and diligence as commonly exercised by lawyers of ordinary skill and capacity; and is liable for both the actual and exemplary damages the client might reasonably have recovered in an action lost by the attorney's fault," and unreasonable delay by an attorney in prosecuting an action works an abandonment of the employment." Dealings between attorney and client.^" — Transactions between attorney and client will, on account of the confidential relation, be closely scrutinized, and the burden is on the attorney to show its fairness,®^ especially where he acquires any of his client's property;*^ but where the relation does not exist, the burden is on the layman to show the fraud in a transaction with an attorney." A contract 81. Carson v. Fogg [Wash.] 76 P. 112. Knowledge acquired by an attorney -when acting for one party Is not chargeable to another party who subsequently employs the same attorney. An attorney is not required to disclose to one client secrets entrusted to him by another. Downer v. Porter, 25 Ky. L,. R. 671, 76 S. W. 135. 82. Property so acquired will be deemed as held In trust for the client, though ob- tained with the attorney's money. Stanwood V. Wishard, 128 F. 499. An attorney Is not permitted to buy In things, In the course of litigation, of which he has the manage- ment; the purchase, if made, will be held as In trust for the client, or may even be declared Invalid. Phillips v. Phillips [Ky.] 80 S. W. 826. An attorney for a married couple cannot buy a judgment against the husband and enforce the same ^y a creditor's bin against lands In the wife's name, nor will he be heard in a court of equity to assert, in his interest, that the transfers to her are fraudulent, he having advised and assisted in such transfers. Garlnger v. Pal- mer [C. C. A.] 126 F. 906. 83. Grantz v. Deadwood Terra Mln. Co. [S. D.] 95 N. W. 277. A foreclosure sale does not terminate the relation of mortga- gor and attorney, so as to permit the at- torney to make a gain from the same sub- ject-matter, and he holds in trust for his client any outstanding title that he may buy, adverse to such client's interest. Car- son V. Fogg, [Wash.] 76 P. 112. An attorney holding a second mortgage as part of lands covered by his client's first mortgage may, after the conclusion of his client's foreclosure and the bringing of suit against him for services, enforce his right of redemption. Sheehan v. Farwell [Mich.] 97 N. W. 728. 84. An attorney who has acted as general counsel for a party may appear as attorney for an adverse party in an action, provided he had not been consulted as to that action by the party for whom he had acted gen- erally and had not learned from him facts that could be used prejudically to him. Mes- senger V. Murphy, 33 Wash. 353, 74 P. 480. 85. Bunel v. O'Day, 125 F. 303. 86. Elastic Tip Co. v. Graham [Mass.] 71 N. H. 117. 87. See 1 Curr. !■. 267. 88. Patterson v. Prazer [Tex. Civ. App.] 79 S. W. 1077. For an attorney employed to examine a title, to omit showing a judgment against the property, is actionable negli- gence. Renkert v. Title Guaranty Trust Co., 102 Mo. App. 267, 76 S. W. 641. 89. A judgment in favor of client was re- versed on appeal; the attorney neglected and refused for 10 years to bring the case on for retrial. He was entitled to no com- pension. Farwell v. Colman [Wash.] 77 P. 379. 90. See 1 Curr. L. 267. 91. Barrett v. Ball, 101 Mo. App. 288, 78 S. W. 865. 98. Klein v. Borohert, 189 Minn. 377, 95 N. W. 215; Young v. Murphy [Wis.] 97 N. W. 496; Goldberg v. Goldstein, 87 App. Div. 516, 84 N. T. S. 782. The validity of an assign- ment by an heir of his entire interest in an estate to the attorney who had procured It for him, though made after the attorney's employment was completed, will be review- ed as though the matters were still pending. Barrett v. Ball, 101 Mo. App. 288, 73 S. W. 865. 93. Jinks V. Moppin [Tex. Civ. App.] 80 S. W. 390. 3 Cur. Law. ATTOENEYS AND COUNSELOES § 7. 381 by an attorney purchasing his client's interest in a claim in litigation will be closely scrutinized, but is not necessarily invalid.'* Accounting to client.^'^ — An attorney must account to his client for all money or other assets coming into his hands in his capacity as attorney." The rela- tion of trust between an attorney and client in respect to funds collected by the latter does not pass to the bank in which the attorney has deposited the funds in his own name, so as to charge the bank, in respect thereto, as trustees for the client.*' The rule that no assignment of a chose in action is -good without notice to the debtor applies between attorneys and clients, as between others."' § 6. Remedies between the parties.'" — Moneys collected and retained by an attorney may be recovered in an action for money had and received.^ Such sums are not trusts and may be barred by the statute of limitations.^ No demand is necessary before suit.' An attorney may be summarily ordered to repay money wrongfully withdrawn after being deposited in court.* The right to rule an attorney to pay over money retained depends upon the relation of attorney and client, and is limited to the client. It is penal in its nature and must be strictly construed.* § 7. Compensation and lien.' — ^The general principles of the law of con- tracts apply to permit an attorney to recover the fee contracted for if he perform the services agreed' or if performance is prevented by the client,' to extra com- pensation for services not covered by the contract,' and to recover on a quantum 94. Myers v. Luzerne County, 124 F. 436. 95. See 1 Curr. L.. 268. 96. Hernandez v. Dart, 109 La. 880, 33 So. 905. An attorney for an administratrix may not retain from funds collected for her an amount claimed to be due him from her de- cedent. In re Thresher [Mont.] 73 P. 1109. 97. Rhinehart v. New Madrid Banking Co., 99 Mo. App. 381, 73 S. W. 315. 98. Nielsen ▼. Albert Lea [Minn.] 98 N. W. 195. 99. See 1 Curr. L. 268. 1. Where plaintiff admits a promise to pay, but there was no evidence that the agreed amount or the value of the services was equal to the amount retained, the com- plaint should not be dismissed. Reed v. Hayward, 82 App. Dlv. 416, 81 N. T. S. 608. The remedy to compel an attorney to pay over money collected and unlawfully retained is by action and not by motion that the court summarily order payment to be made. Arone v. Launders, 43 Misc. 138, 88 N. T. S. 259. If a client sues his attorneys for money had and received, he is estopped by his pleading from showing the character and origin of the fund, and -that it was received by the attorneys under circumstances which pre- cluded them from retaining it for their services. Dobbs v. Campbell, 66 Kan. 806, 72 P. 273. 2. Sheaf v. Dodge, 161 Ind. 270, 68 N. E. 292. 3. The client's action not being of the nature of trover. Vooth v. McBachen, 91 App. Div. 30, 86 N. Y. S. 431. 4. Brott V. Davidson, 87 App. Dlv. 29, 83 N. T. S. 1075. 6. Associate counsel cannot by rule en- force a contract for equal division of fees. Haygood v. Haden, 119 Ga. 463, 46 S. B. 625. An attorney who retains money collected for a client is liable to rule. If after demand he falls to account therefor; but he Is not lia- ble under this summary process, for money received by him, not In his professional capacity, but merely as agent, to be remit- ted to a third party. Haygood v. McKenzie, 119 Ga. 466, 46 S. B. 624. 6. See 1 Curr. L. 269. 7. The conditions upon which a contract for a stipulated fee was made, being sub- stantially fulfilled, the contract should be enforced, especially where It was brief and Informally made; Ingersoll v. Coram, 127 F. 418. A valid contract between attorney and client for fees Is not abrogated by an attempt to merge it In a void contract, and a void contract will not prevent recovery on a quantum meruit. McCurdy v. Dillon [Mich.] 98 N. W. 746. In an action for legal services, the fact that the payee named in the written contract was not an attorney was no defense, -where the payee had no interest in the sums promised to be paid. Mulligan V. Smith [Colo.] 76 P. 1063. 8. A client may not by making a com- promise over his attorney's objectlo - defeat the latter's right to his contract Ci nsa- tlon. Cosgrove v. Burton [Mo. App. J 78 S. W. 667. A client may abandon a suit at any time, but cannot by so doing defeat the con- tract claim of his attorney for what he would have recovered If not so prevented. Williams V. Philadelphia [Pa.] 57 A. 578. An attorney being paid in advance to prose- cute an action, the client, on electing to abandon same, cannot recover the money so paid, if the attorney is willing to pro- ceed, even though the abandonment was in- duced by attorney's admitting that he did not know whether the suit would be suc- cessful or not. Riehl v. Levy, 86 N. T. S. 464. 9. Services rendered in excess of those contemplated in a written contract between attorney and client call for extra compen- sation, and parol evidence is admissible to show the surrounding circumstances, and the 382 ATTOENEYS AND COUKSELOES § 7. 3 Cur. Law. meruit for part performanee.^" A contract for additional compensation without extra service lacks consideration.^"^ Statutory costs awarded to a party in an action belong to him, and his attorney has no interest therein/^ except a mere lien on them for his services.^' Contingent fees}* — Contingent fees, though tending to encourage specu- lative litigation, are not illegal,^" unless infringing some other rule of public nature of the services -contemplated, the con- tract being uncertain in that respect. Bar- cus V. Gates, 130 F. 3B4. 10. An attorney conducting a foreclosure suit, after its commencement by another at- torney and its reference to a master, is only entitled to fees in the proportion of his serv- ices to the whole legal services rendered. Ganzer v. Schmeltz, 206 111. 560, 69 N. E. 584. On rescission of a contract for legal compensation, an attorney may sue for the value of his services on a quantum meruit, and his right is not affected by his pleading and failing to prove a contract for a par- ticular sum. On the disagreement of the jury, plaintiff declined to proceed further. The attorney then had a right to hold his contract for half the amount recovered as rescinded. Tuells v. Hyman, 84 N. Y. S. 460. In suing on a contract by which cer- tain sums were to be paid in case of a suc- cessful termination, the fact that adverse judgments "were entered defeats recovery: the proper remedy being a suit on a quantum meruit. Foley v. Kleinschmldt, 28 Mont. 198, 72 P. 432. A contract for a certain fee in event of a successful termination of a suit is abandoned by a compromise and dismissal of the action, and the attorney's fees must be recovered on a quantum meruit. Harris V. Root, 28 Mont. 159, 72 P. 429. Where an attorney makes a contract for certain serv-" ices, but dies before completing them, his representative cannot recover the full .amount of compensation agreed on. Appeal taken, but attorney died before hearing, and parties then settled the suit. Boyd v. Daily, 85 App. Div. 581, 83 N. Y. S. 539. An at- torney for whom another is substituted may have the value of his services ascertained, and the amount made a lien upon the cause of action and the proceeds in the hands of the substituted attorneys. British Empire Tvpesetting Machine Co. v. Spellissy, S3 App. Div. 640, S2 N. Y. S. 47. 11. Kahle V. Plummer [Tex. Civ. App.] 74 S. W. 786. 12. Barry v. Third Ave. R. Co., 87 App. Div. 543, 84 N. Y. S. 830. 13. Mcllvaine v. Steinson, 90 App. Div. 77, 85 N. Y. S. 889. 14. See 1 Curr. L. 270. 15. A contract by a city with an attorney to obtain credits with the state, at 10% on the amount collected is not champertous. Williams V. Philadelphia [Pa.] 57 A. 578. Where the services rendered by an attorney are not of such a character as to warrant a contingent fee, recovery can only be had for value of actual services rendered. Dorr v. Camden [W. Va.] 46 S. E. 1014. Under an agreement to pay the attorney a certain per- centage of the amount recovered, and that the attorney was to get what he could in addition from the adverse party, it Is imma- terial what amount he received from that source. Dyon v. Wilcox. 85 App. Div. 617, S3 N. Y. S. 3S2. A contract that tho at- torney should have a certain percentage "of the amount collected" gives him a right to such per cent on the entire Judgment in- cluding the costs. Mcllvaine v. Steinson, 90 App. Div. 77, 85 N. Y. S. 889. The promise of an attorney to pay the expenses incident to the collection of his claim, if made with a view to induce his employment is illegal and a misdemeanor. But the taking of an interest in the claim as compensation for his services in collecting it is not against public policy, even though it prevents the client from settling it without the attorney's con- sent. Ft. Worth & D. C. R. Co. v. Carlock & Gillespie [Tex. Civ. App.] 75 S. W. 931. A contract for attorneys' services, by which they look solely to a percentage of the re- covery for compensation without any right of recovery for services rendered, is void for champerty. That services were rendered before the execution of the contract does not affect its invalidity for champerty. Gar- gano V. Popel, 184 Mass. 571, 69 N. E. 343. An agreement by which an attorney under- takes proceedings to recover abatements, and to be paid nothing in case of failure, is champertous. Begly v. Weddigen, 86 App. Div. 629, 83 N. Y. S. 805. So also is an agree- ment by an attorney to prosecute certain claims at his own expense, for a certain compensation. Stedwell v. Hartmann, 173 N. Y. 624, 66 N. E. 1117. In Washington, the doctrine of champerty, in so far as it relates to the mode of payment between attorney and client, is repealed by statute, leaving the matter to the agreement of the parties. A contract between attorney and client to prosecute a suit against a physician for malpractice, the attorney to pay the dis- bursements, for a percentage of the recov- ery, is valid. Smits v. Hogan [Wash.] 77 P. 390. Equity may relieve from a champertous contract for attorney's services on the ground of constructive fraud, and a client is not barred from relief on the ground of be- ing in pari delicto, and not coming into equity with clean hands. Gargano v. Popel, 184 Mass. 571, 69 N. E. 343. NOTE. Contracts for contingent tecs: .A" attorney's compensation may .be made con- tingent upon his success, and be made pay- able by percentage or otherwise of the pro- ceeds of the litigation. Such contracts are common, and while their propriety has been vehemently debated, they are not illegal as contrary to public policy or otherwise, and, when fairly made, are steadily enforced. Fowler v. Callan, 102 N. Y. 395, 7 N. E. 169: Croco V. Oregon Short Line R. R. Co.. IS Utah, 311, 54 P. 985: Davis v. Webber, 66 Ark. 190, 49 S. W. 822, 74 Am. St. Rep. 81: Rector v. Rose, 62 Ark. 279, 36 S. W. S9S: Hoffman v. "Vallejo, 45 Cal. 564: Bergen v. Frisbie, 125 Cal. 168, 57 P. 784: Newkirk V. Cone, 18 111. 449: Funk v. Mohr, 185 111. 395, 57 N. B. 2; North Chicago St. R. Go. V. Ackley, 58 111. App. 572; Jewel v. Neidy, 61 lov.-T. 29n, 16 N. W. 141: Louisville Gas 3 Cur. Law. ATTORNEYS AND COUNSELOES § 7. 383 policy ;^^ but contracts for contingent fees will also be closely scrutinized, and if Co. V. Hargis, 17 Ky. L. R. 1190, 33 S. W. 946; Martinez v. Succession of Vives, 32 La. Ann. 305; Cain v. Warford, 33 Md. 23; Blais- dell V. Ahem, 144 Mass. 393, 11 N. B. 681, 59 Am. Rep. 99; Davis v. Com., 164 Mass. 241, 41 N. B. 292; County of Chester v. Bar- ber, 97 Pa. 455; Perry v. Dicken, 105 Pa. 83, 51 Am. Rep. 181; Fellows v. Smith, 190 Pa. 301, 42 A. 678; Wheeler v. Riviere [Tex. Civ. App.] 49 S. W. 697; Lewis v. Broun, 36 W. Va. 1, 14 S. B. 444; Gilchrist v. Brande, 58 Wis. 184, 15 N. W. 817; Dale v. Richards, 21 D. C. 312; Bx parte Plitt, 2 Wall. Jr. 453, Fed. Gas. No. 11,228. Thus, an agreement to pay a proctor in an admiralty case, out of the proceeds of a recovery, is valid and enforceable. The Alice Strong, 57 Fed. 249. And there is nothing illegal, immoral, or against public policy, in an agreement by an attorney for a contingent fee or a share of the proceeds, to present and prosecute claims against the United States. Taylor v. Bemiss, 110 U. S. 42. 3 S. Ct. 441; Stanton v. Bmbrey, 93 U. S. 548; Manning v. Perkins, 85 Me. 172, 26 A. 1015. A contract to pay an attorney a percentage of the value of the subject- matter in litigation to secure "a favorable" decision from the land department is not contrary to good morals or public policy. Bergen v. Frisbie, 125 Cal. 168, 57 P. 784. An agreement for a contingent fee does not make the attorney a party to the action (Gilchrist v. Brande, 58 Wis. 184, 15 N. W. 817); nor does his agreement for a certain percentage of recovery make him a neces- .sary party plaintiff, and he need not be .ioined as such (McDonald v. Chicago, etc., R. Co., 26 Iowa, 124, 96 Am. Dec. 114). A conditional obligation to pay an attorney an extra fee in case of success. In an action in which the obligor is not a party, is given upon a valid and sufficient consideration. If such obligor is a party to other suits in which the same question is involved. Clay V. Ballard, 9 Rob. [La.] 308, 41 Am. Dec. 328. An attorney's contingent fee of flve-twelfths of whatever the client may "realize" out of certain litigation means flve-twelfths of the gross amount recovered, without deduction for the expense of litigation or settlement attending the transaction. Funk v. Mohr, 185 111. 395, 57 N. E. 2. His agreement to collect bonds for twenty-five per cent of the "amount made" entitles him to one-fourth of the amount collected on the bonds by suit or otherwise (Larned v. Dubuque. 86 Iowa, 166, 53 N. W. 105); but where the client agrees to pay a fee of. fifty dollars, and also a percentage of the damages which lie may recover in the action, he is answer- able only for a percentage of the damages received, not for such percentage of the judgment obtained (Fisher v. Mylius, 42 W. Va. 638, 26 S. E. 309). If the compensation agreed upon is contingent on the successful result of the suit, the measure of damages is not the contingent fee, but the reason- able value of the services rendered by the attorney. French v. Cunningham, 149 Ind. 632, 49 N. E. 797. A contract for a con- tingent fee made by the mother and sole next of kin of a decedent, though binding on her, does not bind her descendants, nor the estate toward which she stands in no other relation than that of distributee. Sloan's Estate. 161 Pa. 237, 23 A. 1084. Un- der some circumstances, an attorney having a contract for a contingent fee may recover on a quantum meruit. Thus, where an at- torney made a special contract to prosecute a suit for a certain fixed fee and a further contingent fee in case of success, and the client afterward dismissed the case without the attorney's consent, the attorney is not entitled to recover the whole contingent fee, but can recover, either on a special count or quantum meruit, reasonable value for his services. Polsley v. Anderson, 7 W. Va. 202, 23 Am. Rep. 613. So in case of a special contract for legal services for a per- centage of the recovery, where the services are wrongfully prevented by the client, and where the attorney holds himself continually ready to serve, he may claim the whole compensation agreed on, subject to such abatement as would, in the natural course of things, have been incurred by him if the services had been continued. Brodie v. Wat- kins. 33 Ark. 545, 34 Am. Rep. 49. Where the complete performance of an attorney's services has been rendered impossible, or otherwise prevented, by the client, the at- torney may, as a rule, recover on a quantum meruit, for the services rendered by him (French v. Cunningham, 149 Ind. 632, 49 N. E. 797) ; but a lawyer who has violated ills contract for a contingent foe cannot re- cover on a quantum meruit without shov/ing the performance of services, and that those services were of Benefit to his client (Moyers v. fcrraham, 15 Lea [Tenn.] 57). If an at- torney is employed by a county to prose- cute an action against a county officer to recover moneys alleged to be illegally re- tained, under an agreement whereby his compensation is made contingent upon the success of the suit, and he is discharged be- fore the termination of the suit, he cannot recover damages for the breach of the con- tract of employment, Tvhere it appears that the suit ought not to have resulted in favor of the county had it been prosecuted to judg- ment. Swinnerton v. Monterey Co., 76 Cal. 113, 18 P. 135.— From note to Shirk v. Nelble [Ind.] 83 Am. St. Rep. 151. 16. Contract for fees in a divorce case based on percentage of alimony, and in case of settlement, to be a minimum of $2,000, is void as tending to prevent a reconcilia- tion between husband and wife. McCurdy V. Dillon [Mich.] 98 N. W. 746. Note; While a contract for a contingent fee is not illegal where the suit is of a legitimate character, it is otherwise where the employment of the attorney is of an unlawful character. Thus, if he agrees to prosecute a suit on a contingent fee and bear the costs and expense of litigation, the agreement Is champertous and cannot be enforced in law or in equity. So his agree- ment to prosecute a suit on a contingent fee is void, if part of the consideration for his undertaking is that another attorney shall render his services and bear the costs and expense of litigation. Geer v. Frank, 171? 111. 570, 53 N. E. 965. An attorney may re- cover compensation for purely professional services in procuring legislation in which his client is interested; but when the agree- ment between attorney and client provides 384 ATTOENBYS AND COUNSELOES § 7. 3 Cur. Law. extortionate or obtained by nndue means, will not be upheld/'' the burden of showing unreasonableness being, however, on the client.*' The champertous character of such agreements is specifically treated elsewhere.** An attorney obtaining a settlement without suit is entitled to a contingent fee contracted for.2» Implied contract^^ — The contract to pay for legal services may be implied, or negatived, according . to the circumstances."^ There is no implied promise to pay an attorney whom one has not employed, because of incidental benefits derived from his services.'" If a client prevent the prosecution of an action in which the attorney, under a contract, is to have a percentage of the amount recov- ered, the attorney's remedy is action for breach of contract, or on a quantum meruit, but in no such case is the percentage agreed on recoverable."* If prop- for compensation contingent on the amount recovered under such legislation when pro- cured by the attorney, the contract is against public policy and cannot be enforced. Spald- ing V. Swing, 149 Pa. 376, 24 A. 219, 24 Am. St. Rep. 608; Trist v. Child, 21 Wall. [U. S.] 441. A contract to give an attorney a cer- tain percentage of a claim against the United States government for services in collecting it is void as against public policy, when such services consist In procuring legislation com- pelling the payment of the claim. Id. So, if the valid part of an attorney's contract is blended and confused with the part which is forbidden, compensation cannot be recov- ered for eittier part, as the whole is a unit and Indivisible, and that which is bad de- stroys the good. Trist v. Child, 21 Wall. [U. S.] 441. But unless there ia something on the face of the contract which shows that the means and methods to be used by the attorney, or which were used by him, were improper, the presumption is that a con- tract for a contingent fee Is valid and en- forceable. Bergen v. Frlsble, 125 Cal. 168, 57 P. 784. Contracts for contingent fees will not be countenanced In proceedings for divorce or alimony. Such fees in these pro- ceedings are vicious, because the law does not favor divorce, but does favor marriage, and will not sanction contracts intended to promote its dissolution by lending itself to their enforcement. All such contracts. In these oases, should be held illegal and void, as contrary to public policy. Newman v. Freitas, 129 Cal. 283, 61 P. 907; Brindley v. Brlndley, 121 Ala. 429, 25 So. 751. So it has been held that the giving of contingent fees, or compensation for services rendered to the public, is contrary to sound policy, as where a county agrees to give attorneys a contingent fee to enable Its commissioners to lawfully place upon the tax list certain lands which the assessor has erroneously left off of the assessment roll. Such a con- tract Is void as against public policy. Platte County V. Gerrard, 12 Neb. 244, 11 N. W. 298. — From note to Shirk v. Neible [Ind.] 83 Am. St. Rep. 151. 17. Muller v. Kelly [C. C. A.] 125 F. 212. An agreement that plaintiff pay all dis- bursements, and pay his attorney 50% of amount of any recovery for injuries is un- conscionable and void. Herman v. Metro- politan St. R. Co., 121 F. 184. An agree- ment for a percentage of money to be recov- ered, extorted from a client by threatening to refuse to take action or to disclose his exclusive information, unless client signed without consulting anyone, may be set aside and a reasonable compensation fixed. In re Plerls, 82 App. Div. 466, 81 N. T. S. 927. 18. Tabet v. Powell [Tex. Civ. App.] 78 S. W. 997. 19. See Champerty and Maintenance, 1 Curr. li. 506. 20. Stoutenburgh v. Fleer, 87 N. T. S. 504. 21. See 1 Curr. L.. 270. 22. Where attorneys' services, beneficial to an estate, are rendered with the knowl- edge and without the objection of the ad- ministrator, who, however, did not employ them so as to become personally liable, the estate is chargeable therewith. Marx v. Mo- Morran [Mloh.] 99 N. W. 396. An attorney directed by the court to condufct a criminal prosecution, in place of the county attorney who is disqualified, is entitled to compensa- tion from the county. Mathews v. Lincoln County Com'rs, 90 Minn. 348, 97 N. W. 101. In disbarment proceedings, the attorney di- rected by the court to draw up the accusa- tion and prosecute may recover reasonable compensation from the county, though there is no statutory provision therefor. Hyatt v. Hamilton County, 121 Iowa, 292, 96 N. W. 855. Where a citizen employs an attorney to compel city officers to perform certain duties, and the result brings funds Into the city treasury. It does not create an implied contract on the part of the city to pay the attorney for such services. Park v. Laurens [S. C] 46 S. B. 1012. An attorney is not en- titled to fees for foreclosing a trust deed wherein he is named as trustee. Gantzer v. Sohmeltz, 206 111. 560, 69 N. E. 584. The allowance of attorney's fees in bankruptcy is in the discretion of the judge, and fees paid In contemplation of bankruptcy are only valid In so far as subsequently approved by the court. In re Morris, 125 F. 841. 23. Petitioners who oppose a trustee's sale, which later realizes an amount Insuffi- cient to pay the lien creditors wh» force the sale, are not entitled to have their attor- ney's fees paid out of the trust fund. La- mar V. Hall & Wlmberly [C. C. A.] 129 F. 79. 24. Jordan v. Davis, 172 Mo. 599, 72 S. W. 686. Under an attorney's contract for a certain percentage of sums recovered, where he is prevented from prosecuting the claim, he Is not entitled to anything under the contract but may bring damages for the breach thereof. Johnston v. Cutchin, 133 N. C. 119, 46 S. B. 522. Where a client pre- vents his attorney from performing the con- tract for services entered into between them. 3 Cur. Law. ATTOENEYS AND COUNSBLOKS § 7. 385 erty is taken in part satisfaction of a judgment recovered, an attorney who holds a contract for a percentage of the recovery is entitled to a percentage on the fair value of the property, regardless of the price at which it was taken.'"' An agree- ment for a percentage of money recovered, where no charge is to be made by the attorney in case of failure to recover, is not a common-law contract for serv- ices, but an equitable assignment of part of whatever should be received, which the attorney can recover by a suit in equity.''" Assignments as security. — Where the client has in part assigned his claim to his attorney, with notice to the adverse party, he can only validly settle with the adverse party to the extent of the remainder of his claim.'" Notice to the defend- ant's attorney of an assignment of an interest in a cause of action pending is notice to the defendant."^ The filing and recording required by statute of the assignment of part of a claim for damages as compensation for legal services are not required to charge the one liable for the damages with notice of assignee's rights, but the burden is on the attorney to show that defendant had knowledge of the assignment.*" Employment of several attorneys, or iy several clients.^" — Where an attorney represents several parties, the fact that the services were for their common benefit is not conclusive as to whether their liability was joint or several, which question depends upon their express agreement, or their intention as gathered from all the circumstances.'^ Coimsel, not partners, associated in litigation through sepa- rate employments, should be allowed fees from the fund in court in proportion to the services of each."" Where it is agreed in writing that two attorneys are to receive a certain percentage of money secured, and on one declining to act another is employed, that other is entitled to half of the percentage though not a party to the written agreement.'' If an attorney reduce a claim to judgment, which judgment is in part enforced by another attorney acting for the creditor, the first attorney is entitled to his agreed commission.'* Allowance by court or taxation as costsJ^' — Professional services in ordinary cases cannot be taxed as costs," but in many equitable proceedings solicitor's fees are allowed." Statutes allowing taxation of attorney's fees are generally up- held," and courts of equity often allow attorney's fees out of a fund in court the client Is liable to the attorney for breach of such contract, and the attorney need not wait for the conclusion of the case In which he tenders his services to bring his suit for damages. W^atson v. Columbia Min. Co., 118 Ga. 603, 45 S. E. 460. as. Barcus v. Gates, 130 F. 364. 26. Bennett v. Donovan, 83 App. Dlv. 96, 82 N. T. S. 506. 27. Powell V. Galveston, etc., R. Co. [Tex. Civ. App.] 78 S. W. 975. 28. Missouri, etc., R. Co. v. Bacon [Tex. Civ. App.] 80 S. W. 572. 29. Gulf, etc., R. Co. v. Eldredge [Tex. Civ. App.] 80 .S. W. 556. 30. See 1 Curr. L. 270. 31. Matthews v. Williams Mfg. Co., 98 Me. 234, 56 A. 759. 32. Glldden v. Cowen [C. C. A.] 123 F. 48. 33. In re McGee's Estate, 205 Fa. 590, 55 A. 776. 34. Raley v. Smith [Tex. Civ. App.] 73 S. W. 54. 35. See 1 Curr. L. 271. 3fl. Where a foreign deposition is taken In an action, defendant is not entitled to tax as costs a sum charged by foreign attorneys for professional services rendered defendant S Curr. Law — 25 in taking the deposition. Topken v. Cunard S. S. Co., 88 N. T. S. 394. Attorney's fees In a suit for dower against a purchaser from the husband cannot be taxed against the defendant. Beeman v. Kitzman [Iowa] 99 N. W. 171. 37. Solicitors' fees when taxable should be taxed like other costs, and a Judgment therefor should not be rendered in favor of the solicitor in his o"wn name. McMullen v. Reynolds, 209 111. 504, 70 N. E. 1041. 38. An attorney's fee provided for by statute in the prosecution of claims against Insurance companies is not in violation of the U. S. Constitution, as denying to the In- surance companies the equal protection of the laws. Farmers' & Merchants' Ins. Co. v. Dobney, 189 U. S. 301, 23 S. Ct. 565, 47 Ll Ed. 821. An attorney's fee cannot consti- tutionally be taxed as costs in proceedings to foreclose a mechanic's lien. Atkinson v. Woodmansee [Kan.] 74 P. 640. The provision of a statute allowing an attorney's fee on foreclosure of assessment liens is valid as imposing a penalty for the property owner's delay in paying his obligations tor public Improvements. Brown v. Central Bermudez Co. [Ind.] 69 N. E. 150. 386 ATTOENEYS AND COUNSELOES § 7. 3 Cur. Law. obtained or protected by legal services.'" Where all the claimants of a fund ap- point a trustee to collect the same, an attorney who intervenes in behalf of some of claimants individually is not entitled to have his fees made a charge on the fund.*" The refusal to order an attorney to repay fees paid him on an order made without notice to adverse party is not an abuse of discretion, though the order be vacated after it has been complied with.*^ Amount.*^ — Where attorney's fees are allowed against a fund in court, a reasonable amount in the discretion of the court is allowed.*' Evidence as to value of services.** — In estimating the value of legal services, the value of the property affected and the results achieved, may be considered;*'* it is also proper to include a reasonable retaining fee.*" Attorneys who represent parties in the sale of state bonds, where litigation is necessary and undertaken to compel the state to accept such bonds for taxes, are not mere brokers, and the value of their services is not to be determined on that basis." Eestatements made on a rehearing of arguments made on appeal should not be treated as services rendered in separate cases in determining the compensation of attorneys so. An attorney employed to resist the appointment of a receiver for a tiullding as- sociation is entitled to fees out of the fund raised by the sale of the assets in the re- ceiver's hands. Commonwealth v. Penn Ger- mania Bld'g & Loan Ass'n, 204 Pa. 29, 53 A. 516. Equity may determine that counsel should be compensated for preserving a fund in court, notwithstanding an agreement, or an order of the court to the contrary. Oliver V. South Carolina Interstate & West Indian Exposition Co. [S. C] 47 S. E. 988. When an award of counsel fees is set aside the re- ceiver may recover from the attorney any excess paid in accordance with the erroneous award. Harrigan v. Gilchrist [Wis.] 99 N. W. 909. Where an attorney employed by a receiver Joins the receiver in submitting his claim for services to the court, the court's award is binding upon him until properly set aside, though the receiver is personally liable to him. Id. A general attorney for a receiver rendering services of a general and continuous character need not keep an itemized account thereof, as the court cus- tomarily allows such sum as la reasonable for the services performed. The amount al- lowed should depend on results accomplish- ed, though a reasonable expense account may also be allowed. Id. 40. Sloan V. Smith [Conn.] 68 A. 712. 41. Brunings v. Townsend, 139 Cal. 137, 72 P 919. 43." See 1 Curr. L. 271. 43. Services of an attorney, if adverse rather than beneficial to a trust fund, are not chargeable to that fund. Sprague v. Moore [Mich.] 99 N. W. 377. $225 for draw- ing an answer, making a motion for disclo- sure of residence, and a motion for costs, is excessive. $100 is sufficient. Frost v. Rein- ach, 81 N. T. S. 246. $300 Is a sufficient compensation for attorney's services in filing letters of administration. In re Pieris, 82 App. Dlv. 466, 81 N. T. S. 927. "Verdict for $1,000 was against the weight of the evi- dence. Whallen v. Hallam, 25 Ky. L. R. 965, 76 S. W. 860. Where evidence as to counsel fees placed the value at $1,000, and $700, and no disinterested witness placed it below $500, the fees allowed should not be less than $500. Reed v. Reed, 24 Ky. L. R. 2438, 74 S. W. 207. Under an act allowing $30 to attorneys appointed to defend crim- inals in cases where the punishment is im- prisonment, an allowance of $50 by the court in a murder case is properly cut to $30, capital punishment having been abolished. Lake County Com'rs v. Glynn [Colo. App.] 74 P. 339. The measure of the husband's liability for wife's attorney's fees in separa- tion suits is conclusively established by the order requiring him to pay a certain amount, and additional fees cannot be collected for recovering personal property of the w^ife re- maining in the husband's possession. Dam- man V. Bancroft, 88 N. T. S. 386. In fixing the value of the services of complainant so- licitor in partition, the court has no right to refer that matter to members of the bar called in on the court's own motion. The report of members of the bar called in as a committee by the court, but not sworn, is not competent evidence and will not support an allowance for solicitor's fees. McMullen V. Reynolds, 209 111. 504, 70 N. B. 1041. 44. See 1 Curr. L. 271. 45. In an action to recover for services in examining the articles of incorporation of a mining company and passing on the value of the mine, evidence as to the value of the mine, of its productiveness, and of its capital stock is admissible. Graves v. Sanders [C. C. A.] 125 F. 690. Where favorable legis- lation is in part the result of actions at law, that fact may be considered in estimating the value of the attorney's services In those actions. Town of Hempstead v. New York, 86 App. Div. 300, 83 N. Y. S. 806. Where an attorney renders some services of value in the way of facilitating and expediting the collection of a claim, a contract for a per- centage of the amount recovered is not void for want of consideration by reason of the fact that the claim would ultimately have been paid voluntarily. Claim against city for overpaid water rates, where the at- torney prepared and filed affidavit as basis of claim and adjusted amount^ with the officials. Rogers v. Polytechnic Institute of Brooklyn, 87 App. Dlv. 81, 84 N. Y. S. 12. 46. Roche V. Baldwin [Cal.] 76 P. 956. 47. Parsons v. Maury, 101 Va. 516, 44 B. E. 758. 3 Cur. Law. ATTOENEYS AND COUNSELOKS § 7. 387 so engaged.** Whether a note is placed in the hands of an attorney for collec- tion, so as to entitle the holder to collect attorney's fees, is a question of fact for the ]ury.*° On conflicting evidence as to value of legal services the verdict of a jury will not be disturbed.^" Proceedings to recover. — ^A contract by one attorney for services rendered at the request of another attorney, for a share of the fee received by the latter, is enforceable against the latter either at law for breach of contract, or in equity for money had and received.^^ The attorney's right of compensation does not accrue until his relation in the suit has terminated, at which period also the statute of limitations against his claim begins to run.°^ Attorneys must notify their clients of the specific sum claimed as fees before beginning suit for same, and make known to them pending proceedings for recovery thereof.^" A judgment that part of a recovery inure to the benefit of the attorneys of litigants who are all minors, the attorneys not being parties, is erroneous.'** Where a private settlement is made after suit brought, the court has jurisdiction to determine defendant's liability to plaintiffs attorneys for an aliquot part of the settlement previously assigned to them as compensation,"' but a satisfaction of a judgment will not be -set aside in a ease settled by the parties, unless it is necessary for the attorneys to realize the amotint due them for their services, which amount they are entitled to have determined."' To recover their fees, attorneys are frequently allowed to continue, in their ovni interest, actions which their clients have settled, abandoned, or otherwise prevented the attorneys from completing,'*^ and the evidence must be of such a character as would authorize a. recovery by the client were the suit still proceeding for his benefit.^* But they may not be continued merely to get costs against the adverse party as compensa- tion for services rendered the client."* 48. In re Kellogg, 88 N. T. S. 1033. 48. Rog-ers v. O'Barr [Tex. Civ. App.] 76 S. W. 593. Right to claim attorney's fees for collection provided for by note may be waived. Wicks-Nease v. James, 31 Tex. Civ. App. 151, 72 S. W. 87, where waiver was by presentment without demand for fees and aUowance of amount of note only by pro- bate court. 50. Evidence placed the value as high as $16,000 and as low as $100. A ver- dict of $700 would not be disturbed as against tlie weight of the evidence. Mack V. Miller, 87 App. Dlv. 359, 84 N. T. S. 440. 51. Harrison v. Murphy [Mo. App.] 80 S. W. 724. 52. McCrea v. Scofleld, 86 N. T. S. 10. 53. Trultt v. Darnell [N. J. Eq.] 55 A. 692. "Where Judgment is rendered for legal services and there Is no proof of demand, interest Is properly allowed from the date of commencing suit. Trimble v. Kansas City, P. & G. R. Co. [Mo.] 79 S. W. 678. 54. White v. Slmonton [Tex. Civ. App.] 79 S. W. 621. 55. Gulf, etc., R. Co. v. Eldredge [Tex. Civ. App.] 80 S. W. 556. The compromise of a Judgment by plaintiff and defendant in fraud of an attorney having a lien thereon may be set aside at the suit of the attorney defrauded. Jones v. Duff Grain Co. [Neb.] 95 N. W.*!. 56. Corbit V. Watson, 88 App. Dlv. 467, 85 N. T. S. 125. 57. An attorney to whom an interest in a cause of action Is assigned in considera- tion of his services may, if the defendant settle with claimant with knowledge of the assignment, prosecute the original suit to judgment in his own interest and recover to the extent thereof. Powell v. Galveston, etc., R. Co. [Tex. Civ. App.] 78 S. W. 975. In a suit for fees by an attorney who has been prevented from prosecuting an action under his contract and discharged by his client, the opinion of witnesses cannot bo heard as to what would have been the re- sult of the action which is afterwards suc- cessfully prosecuted by another attorney. Breathitt Coal, Iron & Lumber Co. v. Gregory, 25 Ky. L. R. 1507, 78 3. W. 148. Where a defendant settles with a claimant, so that the attorney Is prosecuting the ac- tion for his fees, and the defendant fraudu- lently keeps the claimant hidden out of the state, so that the attorney cannot prove In- juries or damages, the attorney is entitled to recover from the defendant his proportion of the settlement. Powell v. Galveston, etc., R. Co. [Tex. Civ. App.] 78 S. W. 975. At- torneys who undertake to establish a client's right to a fund in court maj', in spite of client's direction to proceed no further, con- tinue the proceedings In his name to reverse the decision against him, in order to collect their fee out of the fund. Counsman v. Mod- ern Woodmen of America [Neb.] 98 N. W. 414. 58. Atlanta R. & Power Co. V. Owens, 119 Ga. 833, 47 S. B. 213. 69. Pomeranz v. Marcus, 40 Misc. 44S, 82 N. Y. S. 707. 388 ATTOENEYS AND COUNSELORS § 7. 3 Cur. Law. Lien.'" — An attorney can only claim a lien on money secured by his services when it has come into his possession, or is in an equity ease in the grasp of the court;'* but in a common law action he has no lien on funds brought into court in the action for distribution."^ No lien on a fund secured by an attorney's serv- ices is allowed in Missouri.*' The lien on a fund can only be for services ren- dered in the proceeding by which the money was recovered.'* He can only have a lien on a claim when placed in his hands by a person who has title to it and the right to collect or assign it.'° An attorney's lien for services rendered is on money due by the adverse party, and not on the judgment recovered. It is for services rendered by himself and not by another employed by him." A client cannot, by dismissing an action and employing another attorney, defeat the lien of an attorney duly employed," and the attorney's lien attaches to the proceeds of a compromise." The act giving an attorney a lien does not apply to a judg- ment obtained by him before the passage of the act.'° The New York statute relating to attorneys' liens applies to surrogates' courts; the right is not affected by the fact that the client is an executor, and the services rendered are in behalf of the estate, nor is the lien confined to moneys recovered by judgment.^" The lien attaches to the whole judgment and the client cannot compel the attorney to forego same on showing that only a small portion of the face value of the judgment can be obtained, and that only in case the lien is extinguished.''* An attorney's lien on the judgment is superior to defendant's equity of set-off.'* An attorney has a lien upon the securities of his client,^' if they come into his hands in the course of his professional emploj^ment.'* In Louisiana attorneys have no lien for their fees prior to judgment.'" 60. See 1 Curr. L. 272. 61. There Is no attorney's lien on money In the hands of a subsequently employed at- torney. Seybert v. Salem Tp., 22 Pa. Super. Ct. 459. An attorney who prosecutes an ap- peal from a city auditing board to the board of county supervisors for the adjustment of a constable's fees has a Hen enforceable against the award. Perry v. Myer, 89 N. T. 3. 347. 62. Quakertown & B. R. Co. v. Guaran- tors' Liability Indemnity Co., 206 Pa. 350, 55 A. 1033. 63. The lien of an attorney Is only that which he has aa bailee of property coming Into his hands. Kersey v. O'Day, 173 Mo. 560, 73 S. W. 481. 64. Halsell V. Turner [Miss.] 36 So. 531. An attorney securing a judgment for a client has no Hen on a fund obtained from a bank by garnishment proceedings founded on said Judgment, the judgment against the gar- nishee being procured by another attorney. Raley v. Hancock [Tex. Civ. App.] 77 S. W. 658. An attorney employed by an insolvent debtor to resist claims of creditors has no Hen on the fund in the hands of the re- ceiver, nor Is he entitled to be paid there- from. Ford V. Gilbert [Or.] 76 P. 138. An attorney defeating tax liens, under employ- ment by holders of fractional parts of a previously acquired judgment, has no Hen on the judgment as against a subsequent purchaser thereof. Alden v. White [Ind. App.] 68 N. E. 913. Nor In procuring a judg- ment In garnishment has he any Hen on the fund for an amount due from his client under a contract made after his client's right had attached by means of the garnish- ment. Raley v. Hancock [Tex. Civ. App.] 77 S. W. 658. 65. Heirs of a beneficiary of an Insurance policy have no right to collect, or assign same. It being the property of the adminis- trator until the payment of debts. Joseph's Adm'r v. Lapp's Adm'r, 25 Ky. L. R. 1876 78 S. W. 1119. 66. Code, § 321. Gibson v. Chicago, etc., R. Co., 122 Iowa, 566, 98 N. "W. 474. The claim for services by an attorney who is employed by another attorney holding con- tractual relations with the plaintiff Is not a Hen, nor anything more than a personal claim against the attorney employing him. Hallam v. Coulter, 24 Ky. L. R. 2200, 73 S. "W. 772. 67. Gibson v. Chicago, etc., R. Co. 122 Iowa, 565, 98 N. W. 474. 68. Witmark v. Perley, 86 N. T. S. 756. Plaintiff may settle a case at any time, but the Hen continues on the amount agreed on in settlement and may be foreclosed not- withstanding the defendant pays the money to the plaintiff without the attorney's con- sent. Morehouse v. Brooklyn Heights R. Co 89 N. T. S. 332. 69. Toung V. Renshaw, 102 Mo. App. 173 76 S. W. 701. 70. In re Crouch's Estate, 89 N. Y. S. 466. 71. Serwer v. Sarasohn, 91 App. Div. B38 86 N. Y. S. 838. 72. Barry v. Third Ave. R. Co., 87 App. Div. 543, 84 N. Y. S. 830. 73. In re Sweeney, 86 App. Div. «47, 83 N. Y. S. 680. 74. Wlnans v. Grable [S. D.] 99 N W. 1110. 7.5. While, as between plaintiff and his 3 Cur. Law. ATTORNEYS AND COUNSELORS § 7, 389 Loss of lienJ^ — An attorney's lien is confined to the judgment or fund recov- ered by him as attorney. His lien on his client's papers depends on his posses- sion, and ceases when- he voluntarily parts with such possession.'^ If on a fund collected, it is released by the voluntary payment of the money to the client. '" The lien for services rendered to an executor is not lost by transfer of the estate, by order of the court, to a co-executor, before final administration,'* or by the appointment of a guardian for the client.*" Enforcement of lien}^ — A statutory lien can be created and enforced only in the manner prescribed.'^ The written notice of lien required to be served on the defendant must be served personally, and not on the defendant's attorney.*' If signed as attorney for his client, instead of for himself, it is sufiicient to apprise defendant of a claim to a lien as attorney.'* Where a judgment creditor has no notice of an attorney's intention to claim a lien on certain land belonging to a client, the lien acquired by filing the transcript of his judgment is superior to the attorney's right of lien.*° The attorney's remedy for enforcing a lien is at common law and where the judgment is satisfied in disregard of his rights, it should be set aside and execution awarded to the extent of the lien.*" The action to enforce may be brought against the client, or the adverse party, or both," and a reference may be had to determine the amount of the attorney's lien." In New York, the act authorizing the determining and enforcement of an attor- ney's lien provides a practice only as between attorney and client, and not against a defendant who has settled with plaintiff, unless plaintiff is shown to be insolv- ent.*' The proper procedure, where an attorney has been defrauded by the com- promise of a judgment upon which he had a lien, is to file an intervening petition and have the amount of his lien judicially determined before other steps are taken for its enforcement."* But it is not essential to the existence of the lien that the dmount be definitely fixed, an allegation in the complaint of reasonable value is sufficient.'^ An attorney having a lien on a judgment may intervene in proceedings to revive such judgment and is entitled to a revivor thereof in his own name to the extent of his lien.'* The attorney can follow the proceeds of a attorney, the former has no right to com- promise his claim without the attorney's consent, yet If the defendant Is guilty of no collusion to defraud, and Is not notified of the transfer to the attorney of all right of compromise, the attorney has no redress against the defendant. Smith v. Vloksburg, S. & P. R. Co. [La.] 36 So. 826. 76. See 1 Curr. L,. 274. 77. Hazeltlne v. Keenan [W. Va.] 46 S. E. 609. Lien asserted at time of surrendering papers, but no claim for compensation pre- sented for three years. WInans v, Grable [S. D.] 99 N. W. 1110. 78. In an action at law to recover from an attorney part of the money retained by him as fees in a prior case, the attorney is not entitled to have the suit enjoined and his claim determined in equity, there being an adequate remedy at law. German v. Browne, 137 Ala. 429, 34 So. 985. 79. In re Crough's Estate, 41 Misc. 349, 84 N. T. S. 936. 80. State v. District Court of Second Judi- cial Dlst. of Silver Bow County [Mont.] 75 P. 516. 81. See 1 Curr. I* 275. 82. Nielsen v Albert Lea [Minn.] 9S N. W. 196. 83. Young V. Renshaw, 102 Mo. App. 173, 76 S. "W. 701. 84. Gibson V. Chicago, etc., R. Co., 122 Iowa, 565, 98 N. W. 474. 85. Teller v. Hill [Colo. App.] 72 P. 811. 86. Young V. Renshaw, 102 Mo. App. 173, 76 S. "W. 701. Where an attorney has served notice of lien for his compensation, and with- out his knowledge plaintiff before trial set- tles the case with defendant, the attorney may prosecute the case for his fees, and ver- dict may be rendered for the reasonable worth of his services, to which verdict his lien will attach. Herman v. Metropolitan St. R. Co., 121 P. 184. 87. Coombe v. Knox, 28 Mont. 202, 73 P. 641. 88. Cohn V. Polstein, 41 Misc. 431, 84 N. Y. S. 1072. On a substitution of attorneys the court may order a reference to determine the amount of the attorney's lien, and may impose as a condition of the order of sub- stitution that clients pay the amount due. In default of payment the attorney may have an execution. Kane v. Rose, 87 App. Div. 101, 84 N. Y. S. 111. 89. Dumowlth v. Marks, 84 N. Y. S. 463. 90. Jones V. Duft Grain Co. [Neb.] 95 N. W. 1. 91. 641. 92. Coombe v. Knox, 28 Mont. 202, 72 P. In such a case the court may render judgment In favor of the attorney and 390 ATTOENEYS AND COUNvSELOES § 8. 3 Cur. Law. lettlement bo far as they belong to his client, and be paid out of them before his client's creditors. He may not continue the action to final judgment to enforce his lien where his client's property is ample to secure the same."' An action commenced as in equity to recover the value of services and establish an attor- ney's lien is properly transferred and triable by a Jury."'' § 8. Authority of attorney to represent client.^^ Creation, proof and ter- mination of auiliority.^^ — The right of counsel to appear in a canse is generally a question of law for the court/' but it may be submitted to the jury for a spe- cial finding.®* In the absence of a statutory requirement that an attorney's au- thority shall be evidenced in writing,"' an attorney need not give proof of his authority to appear for a client.^ It is presumed, and the burden of proof is on the one seeking to show lack of authority.' It cannot be questioned by answer, but only by a rule upon the attorney to show by what authority he appears, sup- ported by affidavit showing the facts relied on to question the authority.' On a rule to determine the authority of an attorney to prosecute an appeal from a decree of lunacy, under a prior contract with the alleged lunatic, the lunacy decree cannot be treated as an adjudication that he was of imsound mind.* An attorney's authority to represent client does not have to be expressly renewed, if the court makes an order of severance and compels separate suits against the different defendants." The adverse party cannot object to an attorney's authority as to acta acquiesced in by the client or his representative." His authority ceases on the death of his client,' and as a general rule on the rendition of judgment in the action in which he was employed,' though this rule is subject to many exceptions," or in case of an employment to collect, with the taking of security to the satis- faction of his client.^" Scope of authority}^ — An attorney must act strictly within the scope of his against the judgment debtor to the amount of the lien. Greek v. McDaniel [Neb.] 94 N. W. 518. 93. Cohn V. Polstein, 41 Miao. 431, 84 N. Y. S. 1072. An attorney holding an assign- ment of a share of damages to be received cannot, by giving notice of the assignment to the defendant, prevent a settlement be- tween him and the client or compel the defendant to account to the attorney for his agreed share. Weller v. Jersey City, etc., R. Co. [N. J. Eq.] 57 A. 730. »4. Svifeeley v. Sleman [Iowa] 98 N. "W. 571. 95. See 1 Curr. L. 277. 96. Creation and termination of relation, see ante, § 5. 97. State V. De Wolfe [Mont.] 74 P. 1084. 98. Fosha v. Prosser [Wis.] 97 N. W. 924. 99. Paolflc Pav. Co. v. Vizelich, 141 Cal. 4, 74 P. 352. The statute providing that the authority of an attorney cannot be question- ed if the notice of appeal be signed by ap- pellant has no application where it appears that appellant is a dissolved corporation. Austen v. Columbia Lubricants Co., 87 N. T. 3. 497. 1. Austen V. Columbia Lubricants Co., 85 N. T. S. 362; State v. Long, 66 S. C. 398, 44 5. E. 960. a. Uehlein v. Burk, 119 Iowa, 742, 94 N. W. 243; Brown v. Arnold [C. C. A.] 131 P. 723. A judgment against a sheriff for not reserv- ing exemptions at an execution sale will not be reversed on the groUnd that the record did not show the authority of the attorney claiming the exemption, the point not hav- ing been raised at the trial. Fowler v. State [Md.] 58 A. 444. 3. Appearance in bankruptcy for petition- ing creditors. Gage & Co. v. Bell, 124 F. 371. 4. Chase v. Chase [Ind.] 71 N. E. 485. 5. Mahler v. Animarlum Co. [C. C. A.] 129 F. 897. 6. Where plaintiff in an action dies and the attorney takes subsequent proceedings which are acquiesced in by the executor, defendant cannot object to the attorney's authority. Fisher v. Musick's Ex'r, 24 Ky. L. R. 1913, 72 S. W. 787. 7. Service of notice of appeal on an at- torney who had represented a party since deceased Is ineffectual. In re Turner's Es- tate, 139 Cal. 85, 72 P. 718. S. The employment of an attorney to prosecute a claim to recovery terminates with the rendition of judgment thereon, and the exhaustion of the usual legal process upon the judgment. It does not, in the ab- sence of a showing of different 'Intent, ex- tend to subsequent proceedings against the debtor or his sureties. Lamb v. Wilson [Neb.] 97 N. W. 325. 9. Among these are that he may collect or enforce it, receipt for the proceeds and satisfy the judgment, and oppose steps to re- view or continue it. Brown v. Arnold [C. C. A.] 131 P. 723. He has the right to receive the money due on the judgment. Rhine- hart V. New Madrid Banking Co., 99 Mo. App. 381, 73 S. W. 315. 10. Willis V. Gorrell [Va.] 47 S. B. 826. 11. See 1 Curr. L. 277. 3 Ciir. Law. ATTOENEYS AND COUNSELOES § 8. 391 authority.^' In the absence of a disclaimer a party is presumed to know and acquiesce in the acts of his attorney in the case for which he is employed," within the usnal range of his duties,^* and he is bound by his attorney's errors." The acts of an attorney may be disavowed by a client upon discovery that the attornej', without the client's knowledge, is acting for other and adverse parties in the cause.^° The actions of an attorney cannot bind a party from whom he has no express authority.^' The authority of an attorney extends generally to all acts needful to the conduct of the action in which he is engaged, but not in other proceedings not essentially a part thereof,^' thus he may in the absence of his client, advance legal costs and look to his client for reimbursement,^* may make aiBdavits,^" direct the service of particular notices,^^ enter an appeal,^^ agree to the use of a deposition taken in another action,^' or agree that the case shall abide the final decision in another case.^* His general authority does not extend to the dismissaP° or compromise of an action,^® the right of dismissal being in the client,^^ or the making of contracts on behalf of his client^* not necessary to la. An authority to represent a principal and surety in an action is not authority to sign a stay bond on behalf of the surety. Anderson v. Hendrickson [Neb.] 9B N. W. 844. 13. liockner v. Holland County Ct., SI N. Y. S. 730. A client is bound by his attorney's acts where the latter adopts methods which the former does not approve but does not prohibit. Alden v. Dyer [Minn.] 99 N. "W. 784. A Judgment creditor receiving pay- ments on the judgment is held as having ratified his attorney's acts In enforcing the payments. Florence Cotton & Iron Co. v. Louisville Banking Co. [Ala.] 36 So. 456. Where a party enjoys the benefits of a set- tlement by his attorney, and has knowledge of the steps taken to procure same he must be lield to have ratified his attorney's acts. Collins V. Fidelity Trust Co., 33 Wash. 136, 73 P. 1121. The acceptance, by order of the court, of the proceeds of an unauthorized settlement, and the use by him as directed, do not preclude a party from disregarding the settlement and insisting upon full prop- erty rights. Timm v. Timm [Wash.] 75 P. 879. 14. A mere agreement between counsel that the share of one party In the proceeds of sale shall be subject to remittances made by another party is not binding without some evidence that the client really assent- ed thereto. Heyward v. Middleton, 65 8. C. 493, 43 S. B. 956. 15. Where an attorney is authorized to appear specially for a client in an action, and in so doing honestly pleads matters which operate as a general appearance, the client is bound by such general appearance. McNeal v. Gossard [Kan.] 74 P. 628. 16. Attorney for a legatee, acting also as attorney for the executors, without legatee's knowledge. In re Cummlngs' Estate, 120 Iowa, 421, 94 N. W. 1117. 17. The advice of an attorney not ex- pressly authorized cannot bind a company in a suit for malicious prosecution. Bels- wanger v. American Bonding & Trust Co. [Md.] 57 A. 202. 18. Brown v. Arnold [C. C. A.] 127 F. 387. 19. In a suit by an attorney for fees and costs an award of damages must be made separately, and a. general verdict for plain- tifC is erroneous. Shuck v. Pfenninghausen, 101 Mo. App. 697, 74 S. W. 381. 20. Harwell v. Southern Furniture Co. [Tex. Civ. App.] 75 S. W. 888. 21. Cady v. Fair Plain Literary Ass'n [Mich.] 97 N. W. 680. 22. Friar v. Curry, Arrington & Co., 119 Ga. 908, 47 S. E. 206. 23. Thompson v. Ft. Worth, etc., R. Co., 31 Tex. Civ. App. 583, 73 S. W. 29. 24. Brown v. Arnold [C. C. A.] 131 F. 723. Notet To the same effect see Stone v. Bank of Commerce, 174 TJ. S. 412, 19 S. Ct. 747; Ohlquest v. Farwell, 71 Iowa, 231, 33 N. W. 277; North Mo. R. Co. v. Stephens, 36 Mo. 150; Eldam v. Finnegan, 48 Minn. 53. 50 N. W. 933. 25. A retraxit, a release, or dismissal, cannot be made by an attorney without spe- cial authority therefor. Forest Coal Co. v. Doollttle [W. Va.] 46 S. E. 238. If employed to bring and prosecute an action he has no authority to dismiss same contrary to the desire of his client. Steinkamp v. Gaebel 89 Neb. 507, 95 N. W. 684. ae. Not to bind his client by an attempt- ed accord and satisfaction. Fosha v Pros- ser [Wis.] 97 N. W. 924. Not to compro- mise an action, or accept land Instead of money In satisfaction of a judgment, or authorize the sale of his client's land in payment for services to be rendered. Gray V. Howell, 205 Pa. 211, 54 A. 774. With- out express authority, an attorney has no authority to bind his client by a compromise of a pending suit, or any matter entrusted to him. Benedict v. Wilhoite [Ky.] 80 S. W. 1155. An attorney for a wife has no author- ity to compromise her Judgment for alimony pendente lite, though obtained by him while acting as her attorney. Schlemmer v Sohlemmer [Mo. App.] 81 S. W. 636. An at- torney authorized by the wife in a divorce case to settle the property rights involved on the basis of an equal division has no right to accept $250 for the wife's right In prop- erty worth $3,000. Timm v. Timm [Wash ] 75 P. 879. "Stipulation" In condemnation proceedings by attorney for petitioner. Held, not binding on petitioner as attorney had no power to sign It. Du Pont v. Sanitary Dist of Chicago, 203 111. 170, 67 N. E. 815. 27. A dismissal of a case by a client with- out costs may be made without the knowl- 392 ATTOENEYS AND COUNSELOES § 9. 3 Cur. Law. the prosecution of the litigation."* He may not employ another lawyer to assist him and have the latter's services allowed to him as "personal and incidental expenses" within the statute.'" § 9. Rights and liahilities to third persons.'^ — An attorney may be liable personally to a third person for his proceedings in an action.^^ § 10. Law partnerships and associations.^^ — The general principles of the law of partnerships applies to law firms.'* A suit to dissolve a law partnership and recover a bonus paid to enter therein is an equity cause, and not simply an action to recover money."* Where a contract is made with an attorney that he alone shall render the services, his death terminates the contract, whether he is alone or is a member of a firm.'" A general contract with a firm of attorneys to render certain services does not entitle client to demand that any particular member must act. In case of death of one member, or dissolution of the firm, the survivor cannot refuse to carry out executory contracts in force at the time, and if carried out the client is liable under the original contract with the firm." Where the services of both members of a firm are contracted for, and one dies, the client may discharge the survivor, settle for services rendered and employ new counsel, but cannot re-employ survivor and defeat claim of estate of deceased partner." § 11. Public attorneys. A. Attorneys generai.^' — The authority of the at- torney general goes not only to the expediency of employing counsel in receiver- ship cases but also to the amount of compensation.** Neither the attorney gen- eral, nor any officer of the department of justice is authorized to aid in the pro- ceedings before a grand jury, nor can they delegate such authority.*^ A deputy attorney general, in admitting due personal tservice of papers, may act beyond his authority, but jurisdiction is thereby acquired as against the attorney gen- eral, and proceeding taken in consequence cannot be attacked collaterally.** The attorney, general may authorize the employment of stenographers by the various district attorneys in government cases.*' The attorney general is the legal adviser of the state officers, and where his salary is named in the constitution of the edge or consent of his attorney of record. Paulson V. Lyson [N. D.] 97 N. W. 533. Parties to an action may settle litigation without consultation with the attorneys of either party, If not defeating any of the attorney's rights. Nielsen v. Albert Lea CMlnn.] 98 N. W. 195. 28. An attorney cannot without special authority bind his client by a new promise to pay a debt cancelled by Insolvency pro- ceedings. Houghton V. Bills [Colo. App.] 73 P. 752. 29. The standing attorney of a foreign corporation instructed to foreclose a trust deed has Implied authority to make contracts necessary to accomplish such foreclosure. Fowler v. Iowa Land Co. [S. D.] 99 N. "W. 1095. 30. In re Waldhelmer, 84 App. Dlv. 366, 82 N. T. S. 916. 31. See 1 Curr. L. 278. 32. An attorney who collects a Judgment from a debtor and fraudulently collects same again from his surety is liable to the surety in a suit by him to recover the amount, and it Is no defense that the attorney claims he was acting for the judgment creditor. Parsons v. Maxwell, 63 W. Va. 39, 44 S. E. 172. An attorney having an Interest in cer- tain proceedings and appearing for an un- disclosed principal, is personally liable for services therein rendered at his request by a third party. Ross v. Niles, 84 N. T. S. 142. An attorney is not liable to a sheriff for fees for levy made and released, where he did not satisfy the judgment or countermand the execution. O'Brien v. Allen, 40 Misc. 693, 83 N. T. S. 251. 33. See 1 Curr. L. 279. 34. A law firm may sue on a contract for services made by a single member. Dennis V. First Nat. Bank, 33 Wash. 161, 73 P. 1125. 35. A bonus paid to enter the partnership should on dissolution be apportioned to the agreed and actual duration thereof. Hoyt V. Baston, 40 Misc. 264, 81 N. T. S. 914. 36. 37, 38. Clifton v. Clark, Hood & Co. [Miss.] 36 So. 251. 39. See 1 Curr. L. 279. 40. Candee v. Cunneen, 86 N. T. S. 723. 41. A special assistant to the attorney general Is not an ofHoer of the department of justice. U. S. V. Rosenthal, 121 F. 862. 42. Townsend v. Oneonta, etc., R. Co., 84 N. T. S. 117. 43. An allowance per diem to stenographer if report not transcribed, and a certain amount per folio if transcribed, gives dis- trict attorney authority to have as much transcribed as he needs and to pay per diem for the balance. Swift v. U. S., 128 F. 763. .3 Cur. Law. ATTORNEYS AND COUNSELOES § IIB. 393 state, it fixes his entire compensation, so that a statute giving him a salary and fees is invalid.** (§11) B. District and state's or prosecuting attorneys.*'^ — A county attor- ney has authority to waive issuance and service of the summons in error in a ease against the county in which he has appeared for it at the trial.*" A county is not obliged to pay for legal services rendered at the instance of the county attorney without the authority of the county board.*^ The question as to whether an action in the county's name by the county attorney was sufficiently authorized cannot be raised by demurrer.*' A district attorney of the United States, in condemnation proceedings by the government, has the same authority to submit the damages to arbitration as the attorney for an individual litigant would have.*' Where the prosecution of crime by the commonwealth's attorney is provided for by statute, the employment of other attorneys for that purpose is not justified,"*" but an authority for a county to prosecute actions by the "county attorney or other person" is sufficient warrant for employing an attorney therefor." A county attorney may be appointed by a board of county commissioners for the term for which such board is elected.'"' Under certain circumstances a county attorney pro tem. may be appointed."' A deputy coimty attorney, as such, may perform any duty devolving upon the county attorney."* A county attorney cannot contract with the county for extra-official services."" A state's attorney has the right to the aid of the prosecutor in a criminal case, but if he desires' to use him as a witness, where the exclusion of vritnesses has been ruled, he should examine him first."" A city attorney cannot compromise litigation in which the city is interested, without the consent of the mayor."' A district attorney is entitled to compensation for his services in prize cases in addition to his salary."' Where a commonwealth's attorney is compensated in part by a percentage of the fines paid into the county treasury, he may claim his share when the fines are paid, even though in the early part of the year it may make up the amount limited as his annual salary."" It is against public policy for public officers to defend actions for purely personal torts at the expense of the public."" The failure of a county attorney to turn over money voluntarily collected by him, and not in the performance of his official duties, does not render his sureties liable."'^ A prosecuting attorney is the proper one to protect the interests of a lunatic."" 44. state v. Maynard [Wash.] 76 P. 937. 45. See 1 Curr. L. 279. 46. Dakota County v. Bartlett [Neb.] 93 N. "W. 192. 47. Card v. Dawes County [Neb.] 99 N. W. 662. 48. Otoe County v. Dorman [Neb.] 98 N. W. 1064. 49. Judson V. V. B. [C. C. A.] 120 F. 637. 50. Under a statute allowing compensa- tion to attorneys appointed to enforce the laws relating to Insurance companies, com- pensation to an attorney who prosecuted an insurance agent for soliciting without a license is not justified, such prosecution be- ing the duty of the commonwealth's attorney. Ky. St. 1899, § 762, construed. Sims v. Com., 26 Ky. L. R. 282, 74 S. W. 1097. 61. Heath V. Albrook [Iowa] 98 N. W. 619. A county may. If necessary, employ counsel in addition to the district attorney. Santa Cruz County v. Barnes [Ariz.] 76 P. 621. 6a. Hancock v. Craven County Com'rs, 132 N. C. 209, 43 S. B. 634. 63. Daniels v. State [Tex. Cr. App.] 77 S. W. 216. 54. Canada v. Territory, 12 Okl. 409, 72 P. 375. 55. Wilson V. Otoe County [Neb.] 98 N. W. 1050. In the absence of statutory author- ity a district attorney cannot make a county liable by contracting with a surgeon for a postmortem examination In a case where death by crime is suspected. Jones v. Sun- flower County [Miss.] 36 So. 188. The prose- cutor of the pleas has no power to bind the county by a contract with a detective to secure evidence of the violation of laws. The Judgment that the detective could not recover on such contract does not preclude him from enforcing his claim for services. Glbboney v. Board of Chosen Freeholders [C. C. A.] 122 F. 46. 66. Smartt v. State [Tenn.] 80 S. W. 686. 67. Lake v. Hood [Tex. Civ. App.] 79 S. W. 323. 68. The Adula, 127 F. 853. 69. Hager v. Franklin [Ky.] 81 S. W. 926. 60. Corporation attorney not to defend policemen sued for a willful assault In mak- ing an arrest. Donahue v. Keeshan, 91 App. Div. 602, 87 N. Y. S. 144. 394 AUCTIONS AND AUCTIONEERS. 3 Cur. Law. AtrCTIOBTS AND AtTCTIONEERS. License and regulations^ — Unless required by statute, a license is not nec- essary ;°* but where a license fee is paid, it cannot be recovered on the enactment of a law making license unnecessary.®^ Where a resident auctioneer may make sales without a license, one temporarily resident may."' 8ale." — ^A purchaser must comply with tlie terms of the sale,*' and when he does so is entitled to the property purchased or damages for breach of con- tract."" Where there is no agTeement as to credit and there has been no delivery, title will not pass until the purchase price is paid;"" but if the terms provide for credit, it is optional with the purchaser to take it or pay cash.!* A misdescription of the property in an advertisement of an auction sale,'- or misleading and untrue statements made by the auctioneer at the time of the sale,'* will release the pur- chaser, providing they were believed and acted upon by him.'* That a corpora- tion could not become an auctioneer cannot be set up as a defense by itself and the surety on the bond." BAIL, CIVIL. The discharge of the debtor exonerates the bail ;" that the order of discharge is reversed upon appeal and the debtor ordered to surrender himself is imma- terial." The judgment against the surety cannot exceed the amount of the 61. Wilson V. state, 67 Kan. 44, 72 P. 517. 62. Burna' Rev. St., % 2175. Chase v. Chase [Ind.] 71 N. E. 485. 03. See 1 Curr. L. 283. 64. Under city ordinance for licensing auctioneers, passed July 1902, no fees became due until June 1903. A prosecution and conviction for doing business -without a li- cense before that time was set aside. Atlan- tic City V. Freisinser. G9 N. J. Law, 132, 54 A. 249. 66. Under laws requiring a license fee, an auctioneer paid the fee from September, 1897, to September, 1898. Laws going into effect January 1, 1898, required no license fee. Held, the auctioneer could not recover back the proportionate part of his fee, as the latter act did not repeal the former or make the license void. Ryan v. New York, 40 Misc. 228, 81 N. T. S. 685. 66. Statute inflicting a penalty for auc- tioneers, who sold without a license, ex- cepted sales by a person made in the county where he resides. Held, one temporarily in the county was a resident. State v. Cun- ningham, 75 Vt. 332, 55 A. 654. 67. See 1 Curr. L. 283. 68. That the bidder must deposit a certain Slim as soon as property is struck oft and within 30 days examine the title and call at the office of the auctioneer prepared to take the deed and pay the balance. Sirk v. Em- ery, 184 Mass. 22, 67 N. E. 668. 69. "When one bid in real property sold at auction, evidence that he looked up the title and tendered the purchaser price held sufllclent to show that he was prepared to comply with terms of the sale. Sirk v. Em- cry, 184 Mass. 22, 67 N. E. 668. Refusal to deliver a horse sold at auction. Gruell v. Clark [Del. Super.] 54 A. 955. 70. A small portion of the purchase price was paid, and receipts for overdue Interest on a mortgage for which there was no evi- dence that the vendor was liable was ten- dered. Held, the vendee had no right of pos- session so as to entitle him to maintain re- plevin. Hand v. Mattliews [Pa.] 57 A. 351. 71. Terms of auction sale provided "sales over $10.00 a credit of eleven months will be given." Tender of cash instead of a note was compliance with terms. Gruell v. Clark [Del.] 54 A. 955. 72. That a sale of ground rent w^as of the "Calverton stock-yards," when the ground never belonged to the Calverton stock-yards. The description by courses and distances was correct. Doyle v. Whitridge. 97 Md. 711, 55 A. 459. 73. False statement that certain persons were lessees of the property, the ground rent of which was sold. Doyle v. Wliitridge, 97 Md. 711, 55 A. 459. 74. An auctioneer represented a horse he was selling to be but eight years old. Just before the purchaser bid he was told by oth- ers that the mare was fifteen. Held, he could not rescind the sale. Korbel v. Skocpol [Neb.] 96 N. W. 1022. NOTE. Clitlllns bids by nppeal to aympa- thy! The only American case discussing the effect of an appeal to sympathy without fraud or misrepresentation is Herndon v. Gibson, 38 S. C. 357, 17 S. B. 145, 20 L. R. A. 545, in which it was held that a mortgage sale should be set aside because of an an- nouncement by the mortgagor that she wag a widow, dependent on the land for support, and desired to bid it In herself. To the same effect is the English case of Puller v. Abrahams, 3 Brod. & B. 116. 75. A corporation executed a bond as auc- tioneer and received goods to be sold. In an action for the price of goods, it set up that, under the law, it could not become an auctioneer. Held, it was estopped. Lyon Bros. & Co. V. Stern, 110 La, 473, S4 So. 641. 76. 77. People v. Hathaway, 206 lU. 42, 68 N. E. 1053. 3 Cur. Law. BAIL, CIVIL. 395 bond.'^ An attorney violates his bond for the liberty of jail limits by going beyond such limits in the performance of professional engagements.'" One ar- rested on a capias ad satisfaciendum, giving a bond for the liberty of jail limits and being thereafter surrendered by his sureties upon giving another such bond, is confined by virtue of a capias ad satisfaciendum.^" Plaintiff being entitled upon forfeiture to an assignment of the bond, it may be assigned by a deputy sheriff.^^ A mere offer to surrender the principal in exoneration after the surety's time to answer has expired is unavailable as a defense to the action against said surety,*^ and the fact that such insufficient exoneration was performed upon the advice of an attorney is no ground for a new trial.'" Such sureties not having a valid defense, the denial of the motion for a new trial upon an erroneous ground is harmless.'* The denial of an exoneretur sought on the ground of the prin- cipal's discharge in banlcruptcy is not res judicata of the bail's general liability on the bond.*'' In an action against the sureties, a return of "Not found" by the sheriff is conclusive.'" BAIL, CKIMINAL. § 4. Enforcement off Bond or Rccogni- zanee (S9S). § 5. Remission of Forfeiture and Return of Deposit in Lieu of Ball (.'SOO). § 1. Authority to Take and Rii^lit to Give Bail (395). § 2. Making of Rccognixnnce and Suf- ficieuey (396). § 3. Fulfillment or Fcrfeltnre; Discharge; Rights and Liabilities of Sureties (3»7), § 1. Authority to take and right to give hail.^''- — The taking of bail consists in the acceptance by a competent court, magistrate or officer of the imdertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking that the bail will pay to the state the sum specified." Excessive bail cannot be required.'" The statutory deposit in lieu of bail may be made only by the defendant,"" and a city council cannot confer authority upon police- men or police judge to accept a deposit in lieu of recognizance."^ In general, bail is allowable in all cases "except capita,l offenses, where the proof is evident or the presumption great ;""^ but in Georgia, it is peculiarly within the discretion of the judge of the superior cotirt to grant bail in capital eases."' If bail be any- 78. Garofalo v. Prividi, 87 N. T. S. 467. 79. Professional duties called for his presence at the supreme court. Hughes v. Hally [Mich.] 100 N. "W. 591. 80. Within Comp. Laws, § 10,521, provid- ing the measure of damages for forfeiture in such cases. Hughes v. Hally [Mich.] 100 N. W. 591. 81. Construing Comp. Laws, § 10,520. Hughes V. Hally [Mich.] 100 N. "W. 591. 82. Construing Code Civ. Proc. g 599. Garofalo v. Prividi, 87 N. T. S. 407. 83. 84. Garofalo v. Prividi, 87 N. T. S. 467. 85. Petition prayed that an order might be entered discharging the bail from lia- bility. People V. Hathaway, 206 111. 42, 68 N. B. 1053. 86. Garofalo v. Prividi, 87 N. T. S. 467; Kirk V. U. S., 13 P. 331; In re Beavers, 131 F. 366; State v. Haryzell [N. D.] 100 N. W. 745; State v. Williams [Or.] 77 P. 965. 87. See 1 Curr. L. 284. 88. Ind. Ter. Ann. St. 1899, S 1385. Simon V. U. S. [Ind. T.] 76 S. W. 280. 89. State V. Lagoni [Mont.] 76 P. 1044. 90. Code, § 5524. The defendant cannot be lawfully discharged where deposit is made by a third party, and when such a deposit after an unauthorized acceptance thereof in lieu of bail has been restored to the depositor, the state cannot compel Its return. State v. Anderson, 119 Iowa, 711, 94 N. W. 208. 91. Richardson v. Junction City [Kan.] 77 P. 691. 92. There being a doiibt as to the ques- tion nf self defense, defendant should be admitted to bail. Ex parte Majors [Miss.] r'4 Bo. 151; State v. Lagoni [Mont.] 76 P. 1044. Upon the examination, it not being absolutely clear and conclusive beyond any reasonable doubt that the accused is guilty of a capital crime, he should be admitted to bail. Bx parte Locklln [Tex. Cr. App.] 72 S. W. 585. One held for murder in the second degree, it not being a capital offense under the allegations of the indictment, is entitled to bail. Accused was acquitted of murder in first degree and secured a rever- sal of his conviction for second degree. Bx parte Moore [Tex. Cr. App.] 80 S. W. 620. The supreme court on appeal will award bail in a murder case, if- it should have been awarded, without discussion. Bx parte Smith [Tex. Cr. App.] 76 S. W. 917. 93. In the absence of a manifest and flagrant abuse of such discretion, the ruling 396 BAIL, CEIMINAL § 3. 3 Cur. Law. wise admissible, it may ordinarily be taken pending an appeal as well as before tbe original hearing;'* but one is not entitled to bail, where, pending an appeal on a refusal to bail, he is indicted for the alleged crime,"' and in Louisiana, a sentence of death or hard labor is a bar to bail, pending an appeal.*" The' courts are unwilling to hold that Federal circuit judges possess no power of admitting to bail other than as specifically vested by statute,'^ or that while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case extend that relief.*' Upon reversal of a conviction, the accused cannot be compelled to give a new bond, but is entitled to his liberty under the original bond,°° and the Texas statute does not authorize the magistrate to require an increase of bail after the bail of one under indictment has once been fixed.* In Kentucky, one charged with a felony cannot be admitted to bail before being brought before a magistrate, and a bail bond so given is void.' One held to bail pending an examination for removal is not subject to arrest until the first pro- ceeding is determined.' § 2. Making of recognizance and sufficiency.* — Bail bonds should be con- strued with reference to the laws of the sovereign jurisdiction relating thereto, where given," but a bond which cannot be lawfully required of the accused is nu- dum factum." A bail bond need not be approved,' but it will be presumed that the oflBcer taking the bond did his duty.' A recognizance must be in substantial compliance with the statute," and strictly conform to the facts in its recital of the judgment,** will not be disturbed. Jernagln v. State, 118 Ga. 307, 45 S. B. 411. 94. Upon the theory that a person accus- ed of crime shall not, until he has been Anally adjudged guilty In the court of last resort be absolutely compelled to undergo imprisonment. In re Ah Tai, 125 P. 795. Pending an appeal In deportation proceed- ings, a Chinaman may be admitted to bail. U. S. Comp. St. 1901, p. 1322, does not apply when appeal is pending. Id. Relator in- dicted for murder held entitled to bail pend- ing appeal. Ex parte Terwood [Tex. Cr. App.] 81 S. W. 708. 05. Ex parte Forney [Tex. Cr. App.] 76 S. W. 440. 96. Rev. St. 1876, 9 1007. State v. Wil- liams [La.] 35 So. 140. 97, 9S. "Wright v. Henkel, 190 U. S. 40, 23 S. Ct. 781, 47 Law. Ed. 948. The circuit court held Itself to be without power to admit to ball in foreign extradition cases. In re Wright, 123 F. 463. 99. Jenkins v. State [Tex. Cr. App.] 76 S. W. 464. 1. White's Ann. Code Cr. Proc. 1896, § 295 refers only to preliminary or examining trials. Jenkins v. State [Tex. Cr. App.] 77 S. W. 224. 2. Com. V. Phillips, 26 Ky. L. R. 544, 76 S. W. 118. 3. When ball Is given, the principal Is re- garded as delivered to the custody of the sureties; It Is a continuation of the original imprisonment. In re Beavers, 126 F. t88. 4. See 1 Curr. L. 285. 5. Boyles v. State [Wash.] 77 P. 198. 6. State v. Lagoni [Mont.] 76 P. 1044. 7. It Is sufBolent, that the constable took the bond, placed It with the magistrate and released the prisoner. Crumpecker v. State [Tex. Cr. App.] 79 S. W. 664. 8. Recitals In the bond. In connection with the above presumption, held sufficient evidence that C. M. Porter and Charles Por- ter were one and the same person. State v. Porter [S. D.] 99 N. W. 80. 9. Angel v. State [Tex. Cr. App.] 80 S. W. 379. It Is not a fatal defect that a recog- nizance reads "before the court in session" instead of "in open court" (Haley v. State [Tex. Cr. App.] 74 S. W. 38), or that the bond reads the defendant Is bound in the full sum of two hundred dollars "and the sureties In additional sums of two hundred dollars each" whereas the statute requires that each be severally bound [Code Cr. Proc. § 887] (Id.). Under section 887, Code Cr. Proc, It must state that the accused was convicted "in this cause" and what the cause was, and must not be more onerous than the law provides in requiring his personal appearance. Robertson v. State [Tex. Cr. App.] 78 S. W. 517. The accidental substi- tution of the word "counseled" for "convict- ed" Is fatal [Section 887, Code Cr. Proc.]. Allen V. State [Tex. Cr. App.] 79 S. W. 308. It must state that the defendant is charged with an offense against the law; "stands charged with the offense of unlawfully car- rying a pistol" Is not sufficient. Anderson V. State [Tex. Cr. App.] 72 S. W. 593. It must be for the statutory amount, and an undertaking for $40.00 Is not sufficient when the minimum allowed is $50.00. Xydlas v. State [Tex. Cr. App.] 76 S. W. 761. In Texas, a bond Is void which is given over two months before the convening and adjourn- ing of the term of court for which appear- ance Is required. Douthlt v. State [Tex. Cr. App.] 73 S. W. 809. Time appearance required must be stated. It must state the term of court at which the accused should appear [Cr. Code, § 4362]. Tolleson v. State [Ala.] 35 So. 997. Re- quiring defendant to appear "at the next 3 Cur. Law. BAIL, CEIMINAL § 3. 397 and in the case of an appeal bond, must be executed at the time of perfecting the appeal.^^ § 3. Fulfillment or forfeiture; discharge; rights and liabilities of sureties.^^ — ^A recognizance is defeasible only by a strict performance with the conditions therein named,^' and the accused must appear at the time designated and deliver himself into the custody of the oflBcers.^* A condition that defendant appear at a certain term of court cannot be declared forfeited where he did appear and was tried,^^ and such a condition will not be construed as an obligation to appear from term to term,^° but will continue in force where there is an adjournment or continuation of the term.^'' A bond is not forfeited by one who has previously pleaded to the charge of a misdemeanor, failing to appear and plead personally. term of court" Is not sufficient under a statute requiring an appearance at the court of conviction from day to day and from term to term. Anderson v. State [Tex. Cr. App.] 76 S. W. 470. Requiring an appear- ance at tlie "next regular term and there remain from day to day and from term to term of said court" is not sufficient under Code Cr. Proo. § 887, requiring an appear- ance "from day to day and from term to term." Franklin v. State [Tex. Cr. App.] 76 S. W. 470. That the accused shall ap- pear "from day to day and from time to time" is not a substantial compliance with section 887, Code Cr. Proc, which requires an appearance from "term to term." Fulton V. State [Tex. Cr. App.] 78 S. "W. 227. To appear "until this case is finally disposed of" is not in compliance with section 887, Code Cr. Proc, requiring an appearance "to abide the judgment of the court of criminal ap- peals of the state of Texas in this case." Cooper V. State [Tex. Cr. App.] 78 S. W. 346. "Until discharged by due course of law" Is not in compliance with section 887, Code Cr. Proc, requiring that the accused "shall not depart without leave of this court." Cooper v. State [Tex. Cr. App.] 78 S. W. 346; Robertson v. State [Tex. Cr. App.] 78 S. W. 517. "And not depart without leave of the court" Is not fatally defective because it should read "without leave of this court." Kees V. State [Tex. Cr. App.] 72 S. W. 855. Description o* offense: "An aggravated' assault" is sufficient as a recital that the offense was a misdemeanor. Kees v. State [Tex. Cr. App.] 72 S. W. 855. A recital of the offense of "swindling over the value of $50.00" is sufficient designation as a felony, under a statute requiring a designation as a misdemeanor or a felony. White v. State [Tex. Cr. App.] 74 S. "W. 770. A failure to recite that the defendant was convicted in the particular case of a misdemeanor and his punishment assessed, etc., is fatal under Code Cr. Proc. 1895, § 887. Cater v. State [Tex. Cr. App.] 77 S. W. 12; Hannon v. State [Tex. Cr. App.] 73 S. "W. 1053; Angel v. State [Tex. Cr. App.] 80 S. W. 379. The bond must state the conviction of a misdemeanor "on an informa- tion on complaint" [Code Cr. Proc. 1895, § 889]. Day v. State [Tex. Cr. App.] 80 S. W. 373. "Who has been convicted in this court of a misdemeanor" is not in compliance with section 887, Code Cr. Proc, requiring the words, "who has been convicted in this cause of a misdemeanor." Perkins v. State [Tex. Cr. App.] 78 S. W. 346. A recognizance con- ditioned that the said Holcomb, who stands charged in this court of the offense of aggra- vated assault, and who has been convicted and his punisliment assessed, etc., la not suf- ficient under section 887, Code Cr. Proc Hol- comb V. State [Tex. Cr. App.] 78 S. W. 231. The recognizance in an action for unlawfully selling liquor must state such sale to have been "without the written consent of the parent or guardian, or some one standing in their stead," where such is an ingredient of the offense. Mitchell v. State [Tex. Cr. App.] 72 S. W. 594. The punishment assessed must be stated [section 887, Code Cr. Proc.]. Allen v. State [Tex. Cr. App.] 79 S. W. 537; Bean v. State [Tex. Cr. App.] 76 S. W. 759; Bourland v. State [Tex. Cr. App.] 77 S. W. 455; Angel v. State [Tex. Cr. App.] 80 S. W. 379; Hannon V. State [Tex. Cr. App.] 73 S. W. 1053; Ander- son V. State [Tex. Cr. App.] 72 S. W. 593; Jackson v. State [Tex. Cr. App.] 73 S. W. 1055. Omitting the concluding^ phrase, ''In this case" is fatally defective under section 887, Code Cr. Proc. Gaither v. State [Tex. Cr. App.] 78 S. W. 234; Lookett v. State [Tex. Cr. App.] 78 S. W. 234; Franklin v. State [Tex. Cr. App.] 76 S. W. 759; Armstrong v. State [Tex. Cr. App.] 77 S. W. 446; Heinen V. State [Tex. Cr. App.] 74 S. W. 776; Meeks v. State [Tex. Cr. App.] 74 S. W. 910. 10. A recital that the judgment was $25.00 fine and 20 days' imprisonment is fatal where the fine was $35.00 and the imprisonment for 25 days. Hargrove v. State [Tex. Qr. App.] 76 S. W. 926. A recital merely that defend- ant was convicted and appeals is fatal where in fact the appeal is from an order dismiss- ing an appeal. Buck v. State [Tex. Cr. App.] 77 S. W. 12. 11. A new bond cannot be subsequently executed to supply defects in the original bond, though it be an appearance bond. Ly- dlas V. State [Tex. Cr. App.] 76 S. W. 761. 12. See 1 Curr. L. 286. 13. State V. Bongard, 89 Minn. 426, 94 N. W. 1093. 14. Lawrence v. Com., 25 Ky. L. R. 455, 76 S. W. 10. IB. Such a bond thereupon becomes func- tus officio. Fortenberry v. State [Tex. Cr. App.] 79 S. W. 538. 16. The term of court at which defendant was recognized to appear was held, but no action was taken for forfeiting the recog- nizance until a subsequent term. Bartling v. State [Neb.] 93 N. W. 1047. 17. And the liability of the surety ex- tends to the next term [Comp. St. §5 32, 33, c 19]. Bartling v. State [Neb.] 93 N. W. 1047. 398 BAIL, CEIMINAL § 4. 3 Cur. Law. when the ease is called for trial.^' In Louisiana, the exact condition required by law for forfeiture must be shown to have been strictly fulfilled.^" The court in which the indictment is pending has jurisdiction to declare a forfeiture,^" but the magistrate is not bound to enter the forfeiture upon the day of the breach.''^ Sureties on a bail bond can only be discharged from liability by the appear- ance of their principal according to the condition of the recognizance, or by some intervening act of God, or the law of the state or of the obligee, which renders the performance of that condition impossible,^^ but the obKgors of a bond have a right to insist that the prosecution observe the mandates of the statute.^' The surrender of the defendant by his surety must be made to the sheriff or within the prison.-* An oral order of release of the accused is sufficient so far as the prisoner and his sureties are concerned.^' A continuance of the cause, without consent of the accused, does not dis- charge the sureties,^" nor does a failure of the clerk to mark the recognizance "filed,"^^ nor that it was taken by the court at chambers after an adjournment until the next day,^* nor that it states the ofEense as V. L. 0. L. meaning a vio- lation of the local option law;^' but it is a good defense that the indictment against the principal is void,'" and a judgment of forfeiture will be reversed where an indictment or information was not filed within the statutory period after the accused was held to answer.''^ The seizure of the accused, bailed on a charge of misdemeanor, is a satisfac- tion of the recognizance,^'' and the execution of an appeal recognizance releases the sureties on the bond below ;'* abandonment of a prosecution is a bar to re- covery on a bail bond.** • § 4, Enforcement of bond or recognizance.^^ — In an action against the sure- ties on a recognizance, it is immaterial that the acciised may not have signed it,'* 18. One accused of a misdemeanor may appear by counsel for any other purpose than to plead guilty [Code Cr. Proc. § 335]. People V. Welsh, 88 App. Dlv. 65, 84 N. T. S. 703. 19. Failure of the accused to appear does not work a forfeiture of a bond conditioned that he shall appear "when notified and such notice was not given. Notice to the sureties is not sufficient, under such a bond. But see, the dissenting- opinion. Louisiana Soo. for Prevention of Cruelty to Children v. Moody, 111 La. 199, 35 So. 516. 20. Kirk v. U. S., 124 F. 324. 21. An entry at a subsequent date is equally good. Lawrence v. Com., 25 Ky. L. R. 455, 76 S. W. 10. 22. Illness, ho"wever severe and critical, is not a legal defense for nonappearance. Ringeman v. State, 136 Ala. 131, 34 So. 351. 23. Delay of more than the statutory pe- riod in the filing of an information is a good defense in an action upon the bond. Boyles v. State [Wash.] 77 P. 198. 24. The accused voluntarily entered the court room, where the sheriff took him into custody; held not to be a surrender by the surety. State v. Bordelon, 111 La. 105, 35 So. 476. 25. State v. Lagoni [Mont.] 76 P. 1044. 26. State V. Ballentlne [Mo. App.] 80 S. W. 317. 27. It was In the possession of the clerk and showed on Its face that it had been tak- en and approved by the judge of the court. State V. Ballentlne [Mo. App.] SO S. W. 317. 28. Rev. St. 1899, § 4160 does not limit tlie judge's power under Rev. St. 1899, § 2543. State V. Woodson [Mo.] 78 S. W. 603. In the absence of proof to the contrary, it will be assumed that the justice had not Anally ad- journed his court at the time of approving the bond. Crumpecker v. State [Tex. Cr. App.] 79 S. W. 564. A defense that the bond was taken when the court was not in ses- sion may be raised "without a plea of non est factum. Id. 29. The sureties were in no way misled as to the character of the obligation. Allen V. Com., 24 Ky. L. R. 2257, 73 S. W. 1027. SO. Williams v. Candler, 119 Ga. 179, 45 S. H. 989. 31. . Ball. Ann. Codes & St. § 6910. Boyles V. State [Wash.] 77 P. 198. 32. Code Cr. Proc. art. 910, provides that in a misdemeanor, judgment being affirmed, no proceedings need be had after filing the mandate, except to forfeit the recognizance or issue a capias or an execution. Carleton V. State [Tex. Cr. App.] 73 S. W. 1044. 33. Dismissal of the appeal does not re- vive the liability of the original sureties. Bailey v. State, 71 Ark. 498, 76 S. W. 551. 34. Louisiana Soc. for Prevention of Cru- elty to Children v. Moody, 111 La. 199, 35 So. 516. 35. See 1 Curr. L. 287. 36. State V. Ballentlne [Mo. App.] 80 S. W. 317. But the surety need not sign until the principal has done so. State v. Quattle- baum [S. C.} 45 S. B. 162. 3 Cur. Law. BAIL, CEIMINAL § 5. 399 but the failure of the sureties to sign is fatal.*' An action on a bail bond may be brought in the district where the forfeiture occurred/' and in South Carolina, the court of general sessions has jurisdiction.^' A scire facias on a forfeited bail bond, not being a civil action, need contain no prayer for judgment.*" Such writ may be issued by the court to which the criminal prosecution was removed by change of venue.*^ The alteration of a com- plaint against the principal on a forfeited bail bond, who has been rearrested, does not affect the scire facias proceedings.*^ The complaint for forfeiture of a bail bond need not allege the filing of the bond,** nor with particularity that the defendant was released,** but it must state that the court declared the undertaking forfeited,*" and that the amount due thereon has not been paid.*° The court has authority to order the institution of a proceeding upon a bail bond,*' and may allow an amendment of the citation to the surety, he being in court.** In Kentucky, no pleadiug is required of the commonwealth in proceed- ings upon forfeited bail bonds.*" A stipulation in a recognizance, consenting to judgment immediately upon forfeiture, is a bar to an appeal from such a judgment."^" § 5. Remission of forfeiture and return of deposit in lieu of bail^^ — In an action upon a recognizance, the trial judge may remit any portion of the sum declared forfeited,'" even after the close of the term in which forfeiture oc- curred;"' but the release of defendant's co-sureties does not affect his liability for his proportionate share."* An application to set aside a forfeiture must be made withiu the statutory period."- In New York, there is no statutory limita- tion,"° but a delay of sixteen years constitutes laches."' A forfeited bond will not be remitted where the principal violated one of the conditions by leaving the state temporarily, and he was never surrendered by his sureties and his subse- 37. The signing of an affldavlt of justifica- tion at the end of the bond is not equivalent to signing the bond. Nelson v. State [Tex. Cr. App.] 73 S, W. 398. 38. The accused "was arrested and commit- ted in the central district of Indian Territory, and gave bail for appearance in the southern district; the bond being forfeited, an action thereon was properly laid In the southern district. Simon v. United States [Ind. T.] 76 S. "W. 280. 39. Under Cr. Code, § 85, the court of common pleas is without such jurisdiction. State V. Quattlebaum [S. C] 45 S. B. 162. 40. 41. State V. Baughman [Mo. App.] 74 S. W. 433. 42. A new count was Inserted In the com- plaint. Abbott V. State [Tex. Cr. App.] 78 S. W. 610. 43. Hev. St. 1898, § 4686, only requires that the bond be returned to the clerk. State V. Davis [Utah] 75 P. 857. 44. It Is sufficient to allege that the de- fendant was "admitted to ball." State v. Davis [Utah] 75 P. 857. 45. 46. State V. Dagoni [Mont.] 76 P. 1044. 47. Sess. Laws 1901, p. 70, c. 69. State v. Davis [Utah] 75 P. 857. 48. Amendment by inserting a date. White V. State [Tex. Cr. App.] 74 S. W. 770. 40. Cr. Code, § 94, sub. 3. Lawrence v. Com., 25 Ky. L. R. 455, 76 S. "W. 10. 50. An order denying a motion to vacate the judgment Is binding on the surety. In the absence of an appeal from such order. People V. PernettI, 88 N. T. S. 714. 51. See 1 Curr. L. 287. 52. This rests entirely In the discretion of the court, and It may entertain an appli- cation at any time before final judgment. State V. Bongard, 89 Minn. 426, 94 N. W. 1093; In re Sayles, 40 Misc. 135, 81 N. T. S. 258. It Is not an abuse of discretion for the court to remit only a part of a forfeited recognizance, though the accused subse- quently submitted to trial, there being un- usual equities Involved. The offense was fornication and bastardy. Com. v. Cohen, 22 Pa. Super. Ct. 55. Final disposition of a recognizance is left to the discretion of the court. Com. v. Real Estate, Title Ins. & Trust Co., 22 Pa. Super. Ct. 235. 53. Mere forfeiture of a recognizance Is not such a judgment as passes from the con- trol of the court at the close of the term. Com. v. Real Estate Title Ins. & Trust Co., 22 Pa. Super. Ct. 235. 54. The cosureties, upon their own appli- cation, were released upon payment of $281.00 each, but defendant was compelled to pay $1,250.00. State v. Bongard, 89 Minn. 426, 94 N. W. 1093. 55. 476. 56. 258. 57. A refusal to remit the forfeit after such a period Is not an abuse of discretion. In re Sayles, 84 App. Dlv. 210, 82 N. T. S. 671. State V. Bordelon, 111 La, 105, 35 So. In re Sayles, 40 Miso. 135, 81 N. Y. S. 400 BAILMENT, § 1. 3 Cur. Law. quent appearance was not a voluntary one."* A surety moving for exoneration departs from the statutory procedure at Ms peril."* A certificate of the district attorney that the state has lost no rights is not a prerequisite to an application for remission of a forfeited bail bond, in New York City.°° The state cannot compel a return of a deposit, accepted without authority from a third person, and restored to him,°^ but a deposit in lieu of bail, of money belonging to another, may be recovered from the county."* BAILMENT.ea I 1. Definition) Creation of (4«0). $ 3. Rlshta and LlablUtlea ot Third Per- 5 2. Rights and Uabllltles aa Between sona (403). Bailor and Bailee (401). § 1. Definition; creation of.'* — A bailment consists in the delivery of per- sonal property by one person to another to be held according to the purpose or object of the delivery, and to be returned or delivered over when that purpose is accomplished."' To constitute a bailment the bailee must acquire independent and temporarily exclusive possession of the property." A bailment has been said to exist whenever the ownership and possession of specific corporeal chattels are lawfully severed from each other." To create the relation of bailor and bailee there must be an agreement to return the identical property received;®^ and if it be stipulated that another thing of the same kind, or an equivalent in value, or otherwise, is to be returned, the transaction will ordinarily constitute a sale and effect a change of title.'" But where a warehouseman stands ready to de- liver to depositors a like quantity of grain of the same kind and quality as that 58. state V. Bordelon tLa.] S6 So. 874. 89. Code Cr. Proo. 5 690. People v. Ma- honey, 89 N. T. S. 424. 60. In re Sayles, 84 App. Dlv. 210, 82 N. T. S. 671. Pen. Code, S 597, governs New Tork City, and not Laws of 1882, p. 371, c. 410, § 1482. In re Sayles, 40 Misc. 135, 81 N. T. S. 258. 61. The deposit may lawfully be made only by the defendant. State v. Anderson, 119 Iowa, 711, 94 N. W. 208. 62. Though the Justice who took the ball had no authority so to do. Sutherland v. St. Lawrence County, 42 Misc. 38, 85 N. Y. S. 696. 63. Larceny by bailee, see Embezzlement, 1 Curr. L. 998. 64. See 1 Curr. L. 288. 65. Within the meaning of an embezzle- ment statute, the property must be the sub- ject of larceny [Rev. Code, 1852, p. 943, c. 782, § 1]. State V. Sienkiewiez [Del. Gen. Sess.J 55 A. 346. A contract whereby a person agrees to hold goods for a sheriff until or- dered released by him is a contract of bail- ment. Colbath V. Hoefer, 43 Or. 366, 73 P. 10. Where a porter brought grips to a hotel without authority or notice to any employe of the hotel, the owner not becoming a guest and paying nothing, the hotel company was not even a gratuitous bailee. Tulane Hotel Co. V. Holohan [Tenn.] 79 S. W. 113. Where a grocery company received goods to be sold if possible and if not to be returned, the parties expressly agreeing that there was not to be a sale, the transaction constituted a mere bailment. Purst Bros. v. Commer- cial Bank of Augusta, 117 Ga. 472, 43 S. E. 728. 66. Contract whereby the owner of tim- ber employs another to convert it Into ties at a certain rate per tie when inspected and delivered is hot a bailment under statutory definition [Civ. Code 1895, § 2894]. Atlantic, Coast Line R. Co. v. Baker, 118 Ga. 809, 45 S. B. 673. 67. Doyle v. Burns [Iowa] 99 N. W. 195. 68. Where plaintiff deposited wheat In an elevator under an agreement that he was to receive flour and bran therefor, and his as- signors under an agreement to receive cash, the transaction was a sale. Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005. 69. In a lease of mining property certain personalty was agreed to be returned at the expiration of the term, in kind or value, ac- cording to an Invoice, at the lessor's option. Held, a sale of the personalty. Scott Mining & Smelting Co. v. Shultz, 67 Kan. 605, 73 P. 903. 1VOTE3. Bailment or sale: "Where logs are delivered to be sawed into boards, or leatli- er to be made into shoes, rags into pa- per, olives into oil, grapes Into wine, wheat into flour, if the product of the identical ar- ticles delivered is to be returned to the orig- inal owner In a new form. It is said to be a bailment, and the title never vesta in the manufacturer. If, on the other hand, the manufacturer Is not bound to return the same wheat, or flour, or paper, but may de- liver any other of equal value. It is said to be a sale or a loan, and the title to the thing delivered vests in the manufacturer.'' Laflln cfe R. Powder Co. v. Burkhardt, 97 U. S. 110, 24 Law. Ed. 973. Quoted in Potter v. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. W. 1005. 3 Cur. Law. BAILMBISTT, § 2. 401 deposited by them, the transaction is a bailment, though there is no agreement to return the identical grain deposited.™ A bailment may result from the actual delivery of property, though the contract sought to be made by the parties is void.''^ The contract between the United States and the owners of mail is a bailment of the letters and their contents, for hire of labor or services.''^ A cor- poration is not the bailee of its capital stock within the meaning of a statute authorizing the assessment and taxation of property in the possession of a bailee.''* § 2. Rights and liabilities as between bailor and bailee.''* — Parties to a con- tract of bailment may substitute a special contract for the one implied by law, and in such case the express agreement determines their rights and liabilities.'* But in the absence of a special contract, the rights and liabilities of the parties are those that arise and are imposed by law.'" Legal ownership of the property is in the bailor, and the bailee has bare possession, usually for some specific pur- pose.'" Mere possession by the bailee does not give him apparent authority to seU." When a bailee fails to return property, or returns it in a damaged condi- tion, the burden is upon him to show that the loss or damage did not occur through his negligence.''' A bailee may excuse nondelivery by showing paramount title in a third person,'" or seizure of the goods by officers of the law under prima facie valid authority,*^ or that the loss or damage was caused by inevitable accident or 70. Potter V. Mt. Vernon Roller Mill Co., 101 Mo. App. 581, 73 S. "W. 1005. 71. Contract on Sunday. State v. Sienkie- wlez [Del. Gen. Sess.] 55 A. 346. 72. National Surety Co. v. U. S. [C. C. A.] 129 P. 70. 73. Ky. St. 1899, § 4023. Com. v. Chesa- peake & O. R. Co., 25 Ky. L. R. 1126, 77 S. W. 186. 74. See 1 Curr. L. 288. 76. If there was an absolute contract to return a boat in as good condition as received, liability thereunder could not be avoided by an act of God, the public enemy or any vis major. Direct Nav. Co. v. Davidson [Tex. Civ. App.] 74 S. W. 790. Bailee's liability on default fixed by the terms of the written contract. Hire of cash register with $100 forfeit for failure to return. National Cash Register Co. v. Caillias, 84 N. T. S. 166. Where the place of the return of a portable paving car plant was changed by agreement, it was held there was no delivery to the owner until the key was delivered, and the lessee was held for repairs. Municipal Imp. Go. v. Uvalde Asphalt Co. [Tex. Civ. App.] 76 S. W. 448. Instructions as to measure of damages for injuries to property leased con- flicting, one being on contract liability, and one under the general rule as in tort. Smith v. Stratton [Tex. Civ. App.] 78 S. W. 4. 76. In such case evidence of the owner's negligence, or an act of God, would be ad- missible to relieve bailee from liability. Di- rect Nav. Co. V. Davidson [Tex. Civ. App.] 74 S. W. 790. 77. In case of a trust, the trustee has legal title and possession. Held, that defendant held certain stock as bailee, not as trustee, and action in regard thereto could be main- tained at law. Doyle v. Burns [Iowa] 99 N. W. 195. 78. Nichols V. Monjeau [Mich.] 94 N. W. 6. 79. Bissell v. Harris & Co. [Neb.] 95 N. W. 779. The law will presume the negligence of the bailee to have been the cause. Dam- ages for injury to mare while In bailee's possession. Jackson v. McDonald [N. J. Law] 57 A. 126. Under a statute requiring ordinary care of a bailee, the burden of showing such care Is on him In an action against him for failure to deliver a lost article [Civ. Code, §8 2491, 2450]. Shropshire v. Sldebottom [Mont.] 76 P. 941. Bailee of horse for hire has burden of proving death of horse, while in his possession, was not caused by his negligence. Snell v. Cornwell, 87 N. T. S. 1. Central The owner of a team to recover lor damages to it while in the possession of one who hired it, must show negligence of the defendant as the cause of the damage, but need not show the exact time or place of such negligence. Wisecarver v. Long & Camp, 120 Iowa, 59, 94 N. W. 467. An instruc- tion that in order to recover for injuries to a team while In the possession of one who hired It, the owner must show negligence of the one hiring as the cause of the inju- ries, does not withdraw from the jury evidence of the condition of the team when taken out and when returned. Id. 80. Calbath v. Hoefer, 43 Or. 366, 73 P. 10. Notet "Where a third person asserts title to the property, the bailee may be entitled to maintairt suit In the nature of an inter- pleader. Ball V. Liney, 48 N. T. 6, 13, 8 Am. Rep. 511. And when the third person claims title derived from the bailor subsequent to the bailment, the bailee may compel the parties to Interplead, since there is no de- nial of the original title or right. Betchel V. Sheafer, 117 Pa. 555, 11 A. 889. But the bailee must stand Indifferent. Lawson v. Terminal Warehouse Co., 70 Hun, 281, 24 N. T. S. 281; De Zouche v. Garrison, 140 Pa. 430, 21 A. 450. And he cannot thus seek re- lief from a state of affairs brought about by his own misconduct. Hatfield v. Mc- , Whorter, 40 Ga. 269. See note on "The Right of Interpleader," 91 Am. St. Rep. 608. 81. Goods taken from "warehouse of a carrier. Southern R. Co. v. Heymann, 118 3 Curr. Law — 26 402 BAILMENT, § 2. 3 Cur. Law. irresistible force.'^ A bailee for hire is charged with the duty of ordinary care in the preservation of the property deposited,*' and the same degree of care is now usually required of a gratuitous bailee,'* and of a bailee in a bailment for the benefit of both paxties,'^ though some states adhere to the old rule and require only slight care of a bailee acting gratuitously.'" To constitute conversion by the bailee his acts must amount to an assertion of right or dominion over the property inconsistent with the bailor's right of ownership,'^ and the purpose of the bailment.*' A bailee for repairs'* or other work,"" has a lien on the goods until charges for services are paid, in the absence of a special contract."^ But such lien en- titles the bailee only to the bare possession of the goods."- He may maintain detinue for the goods, or trover and conversion for their value, to the amount of his claim, if wrongfully deprived of his possession,"' but cannot maintain a suit in equity to sell the property for paj^ment of the claim."* One to whom goods are delivered for the purpose of performing work on them cannot recover for unworkmanlike services,"" is . liable for damages caused by the improper manner in which the work is done,"^ but is not liable for the loss of the goods not caused by his negligence."^ The lessee of property is liable for the value of its use, less the expense of keeping."' In a suit for damages for breach of the con- tract of bailment, the bailees are estopped to deny matters admitted by them in a written receipt given for the goods."" A recovery from a bailee who has. failed to account for goods will not be prevented by the fact that plaintiff could not Ga. 616, 45 S. H. 491. A bailee for reward Is not liable for failure to deliver goods to the bailor on demand, when the goods were tak- en under authority of a valid legal process, and the bailee notified the bailor of that fact within a reasonable time. Glass v. Hauser, 40 Misc. 661, 83 N. Y. S. 177. 82. This showing places burden on bailor to prove negligence of bailee. Blssell v. Harris & Co. [Neb.] 95 N. W. 779. 83. A bailee of horses liable for loss Tvhen pasture was not securely fenced [Civ. Code, S 2491]. Shropshire V. Sidebottom [Mont.] 76 P. 941. 84. Bank not liable for bonds kept In safe gratuitously, and stolen by trusted employe. Smith V. Bllzabethport Banking Co., 69 N. J. Law, 288, 55 A. 248. Where a carrier receives personal baggage "with the expectation that It Is to be accompanied by the owner, but the owner does not in fact accompany it, the carrier is liable only as a gratuitous bailee. Trunk rifled while in baggageroom. Wood V. Maine Cent. R. Co., 98 Me. 98, 56 A. 457. 85. One who hires a team must use or- dinary care In driving it, which Includes ob- serving the team while on the road to note effect of travel. Wlsecarver v. Long, 120 Iowa, 59, 94 N. W. 467. 86. The mere fact that a. bailee acting gratuitously, may expect an Incidental ad- vantage from his service, does not make the ?)ailment one for hire. Merchants kept money for elevator owners to pay wheat checks, to keep business in the town and to save own- ers the expense of a safe in the elevator. Blssell V. Harris & Co. [Neb.] 95 N. W. 779. When one not a guest sends baggage to a hotel without compensation to be made, the Innkeeper, if liable at all. Is only liable as a gratuitous bailee, for gross negligence. Tulane Hotel Co. v. Holohan [Tenn.] 79 S. W. 113. 87. Where a bailee of a boat left it In possession of the owner, and never asserted any further rights over it, there was no conversion, though the boat was not deliv- ered to the owner at the place agreed upon. Direct Nav. Co. v. Davidson [Tex. Civ. App.] 74 S. W. 790. 88. State v. Slenklewlez [Del. Gen. Bess.] 65 A. 346. When one with ■whom money had been left to pay wheat checks changed some of the bills, and placed remainder in a bag In his safe, It was held there was no con- version, since the purpose of the deposit was carried out, and hence he was liable only as a bailee of the funds. Blssell v. Harris [Neb.] 95 N. W. 779. 89. Henderson v. Mahoney, 31 Tex. Civ. App. 539, 72 S. W. 1019. 90. Cut garments to be sewed. Davidson T. Fankuchen, 88 N. T. S. 196. 91. A bailee of a bicycle for repairs, who agreed to ship It when repaired to the bailor, was not entitled to withhold It until charges were paid, but was liable in damages to the bailor for so wrongfully withholding It. Rollins v. Bowman Cycle Co., 89 N. Y. S. 289. 92. 93, 94. Burrough v. Ely [W. Va.] 46 S. E. 371. 95. Long v. GIngold, 84 N. Y. S. 194. 9«. Dam&ge to skins held not to have been caused by the dyer. Steinberg v. Schleshing- er, 84 N. Y. S. 522. 97. Diamond to be polished lost because the machine which bailor caused to be used was defective. Vroman v. Kryn, 86 N. Y. S. 94. 98. Hire of horse. Not error to neglect to so instruct, when instruction was not re- quested. Palmer v. Smith [Conn.] 56 A. 510. 99. Colbath v. Hoefer, 43 Or. -366 73 P. 10. 3 Cur. Law. BANKING AND FINANCE § 1. 403 establish its loss definitely from its books, owing to negligent bookkeeping, if its claim could be otherwise proven.^ § 3. Rights and liahilities of thvrd persons.^ — Bare possession by a bailee gives him no apparent authority to sell goods so as to vest "title in a third person,' and an absolute sale by the bailee ends the bailment, so that the general owner has an immediate right of possession on which he can maintain trover.* The owner of property will not be estopped by failure to promptly disaffirm a sale by a bailee, to assert title against a subsequent transferee, when he had no knowledge of the intent of the first vendee to sell it.^ A bailee for hire of services may maintain an action of trespass, trover, or conversion, for the disturbance of his possession by a wrongdoer, and may recover the value of the property as damages." The United States, as the bailee of mail carried by it, may recover from the surety of a mail carrier the value of mail matter stolen by him, while performing his duty, whether or not the owners have presented claims for indemnity to the gov- ernment.'' A mortgage given on a stock of goods will not cover goods held by the mortgagor as bailee only.* A bailee of a third person may assert her right to possession of the property as against attaching creditors of her husband.* EANEIIfG AND riWANCE. ; 1. Tbe Occupation In Gencinl; Regula- tion, Supervision, Control (403). § 2. Associated or Incorporated Banfeers; Corporate Existence Generally (404), Divi- dends (404). Transfer of Stock (405). Lien on Stoclc (405). General Powers (405). Re- serve Fund (406). Personal Liability of Di- rectors and Officers (406). An Action .\gainst Wrongdoing Directors (407). Un- authorized Acts (408). Official or Individual Capacity (409). Notice to Banlt from Knowl- edge of Officers (409). Winding Up (410). Reorganization (411). Stocltliolders' Indi- vidual Liability (411). §~3. National Banks; OiHBcers and 'Exam- inera (412). Powers (412). Violation of Banking Act (413). Stock (413). Receiver- ship (413). Enforcement of Stockholders' Liability (414). State Interference and Pow- ers of State Courts (414). Usury by Na- tional Banks (415). § 4. Savings Banks (415). Powers (416). Liabilities of Directors (416). Rules (416). Reliance on Passbooks (416). Deposits and Repayment (417). § 5. Loan, Investment, and Trust Compa- nies (417). § 6. Deposits and Repayment Thereof; Checks, Drafts, Certificates, Receipts, Cred- its (417). Relation of Banker and Depositor (417). Evidence of Deposit (418). Letters of Credit (418). Repayment of Deposits (418). Overdrafts (420). Forged or Altered Checks and Drafts (420). Checks Drawn Without Authority (422). Set-Off of Debts Due Bank Against Deposit (422). Deposits Received After Insolvency (423). General Deposits (423). Special Deposits (423). Spe- cific Deposits (424). Trust Funds (424). Slander of Credit or Damages for Failure to Pay Checlcs (424). Actions to Recover De- posits (424). Defenses (425). Notes Paya- ble at Bank (425). Certifications (425). § 7. Loans and Discounts (42G>. Drafts with Bills of Lading Attached (426). § 8. ColIcctioiiH (426), see special article p. 428. Duty to Preserve Riglits of Parties (427). § A. Oilcnses Agralnst Banking Lbits; Penalties (427). Receipt of Deposits When Insolvent (427). § 1. The occupation in general; regulation, supervision, control}'* — The right to carry on a banldng business is not a franchise, it belonging to the citizens 1. Knoop, Freirick & Co.'s Agency v. Co- lumbus Compress Co. CMlss.] 36 So. 258. 2. See 1 Curr. L. 289. 3. Nichols V. Monjeau [Mich.] 94 N. W. 6. A mere bailee for storage has no authority to sell, and a bona flde purchaser from hira does not acquire title as against the real owner. Ullman, Einstein & Co. v. Blddle, 53 W. Va. 415, 44 S. B. 280. The bare fact that the owner of property intrusts its custody to another does not give that other any ap- parent authority to sell and pass title to a third person Applied in case of a clerk who sold goods as his own. Ball-Barnhart-Put- man Co. v. Lane [Mich] 97 N. W. 727. 4. Lessee sold lasting machlijiejs. United Shoe Machinery Co. v. Holt [Mass.] 69 N. E. 1056. B. Nichols V. Monjeau [Mich.] 94 N. W. 6. e. Applied to a case where the United States recovered from a surety company the value of registered mall matter stolen by a letter carrier. National Surety Co. v. U. S. [C. C. A.] 129 F. 70. A bailee of goods sued for labor performed on the goods by a third person may maintain a counterclaim for their conversion. Bailee sent goods to be laun- dered and returned. Langfelder v. Renouf, 84 N. T. S. 236. 7. National Surety Co. v. U. S. [C. C. A.] 129 F. 70. 8. Furst Bros. v. Commercial Bank, IIT Ga. 472, 43 S. B. 728. 9. Vermillion v. Parsons, 101 Mo. App. 602, 73 S. W. 994. 10. See 1 Curr. L. 289. 404 BANKING AND FINANCE § 2. 3 Cur. Law. generally ;^^ but the right to carry on such business through the agency of a cor- poration is a franchise, dependent on a grant of corporate powers by the state,'^ In some states, statutes regulate the amount of capital individuals must have in order to engage in the business,^' and the manner of electing direetors."^* OfiBcers of a building and loan association by participating in its lawful business do not become private bankers.^" Taxation of banhs" — ^An act exempting the capital of a bank from taxation includes an exemption from the imposition of a license tax for the carrying on of the banking business.^' Savings banks are not charitable institutions so as to be exempt from taxation.^* In New York, the personal property of trust companies is exempt from local assessment and taxation.^" § 2. Associated or incorporated hankers; corporate existence generally."'' Stock subscriptions."^ — A subscription for stock in order to be binding must have the elements of a contract,^^ and it may be made by parol.^* Where certain persons subscribe for all the stock of a bank, agreeing to afterwards apportion it among others, a subsequent subscription by one of the latter and a certificate issued to him does not constitute an overissue invalidating the last subscription.^* A pur- chase of its own stock by a banking corporation, when legal,^' does not constitute a reduction of the capital stoek,^' but the shares becoming the property of the bank may be resold or held for the benefit of creditors and the remaining stock- holders, together with any dividends that may be earned on it.^^ Dividends."^ — A dividend declared in disregard of statutory regulations is void.^° Failure to pay a declared dividend to all stockholders pro rata gives rise to a cause of action against the bank in favor of the stockholders discriminated against.^" A distribution of the reserve fund will not be ordered by the court in the absence of a showing that plaintiff is a stockholder and that the directors had refused to declare dividends to which he was entitled.'* 11. Bank of California v. San Francisco, 142 Cal. 276, 75 P. 832. 12. Taxation of a bank. Bank of Califor- nia V. San Francisco, 142. Cal. 276, 75 P. 832. 13. Under the Laws of Missouri [Rev. St. 1899, §§ 1278, 1299, 1301], individuals engag- ing' in the business of private banking in a city of over 160,000 Inhabitants are not required to have a paid up capital of over $5,000, and when the law^ is conformed to, the secretary of state Is obliged to issue the certificate provided for in § 1277 or manda- mus will lie. State v. Cook, 174 Mo. 100, 73 S. W. 489. 14. Comp. Laws, § 8553, providing for the election of directors on the cumulative plan was repealed as to banks by Comp. Daws, §§ 6101, 6153. Attorney General v. Bridgman [Mich.] 96 N. "W. 438. 15. And hence are not guilty of carrying on such a business without authority from the state. State v. Newberry [N. J. Law] 58 A. 163. 16. See Licenses, 2 Curr. L. 730; Taxes, 2 Curr. L. 1786. 17. Construing the provisions of the char- ter of the Citizens' Bank of Louisiana, as amended by La. Act Jan. 30, 1836, § 4. In this case the bank was incorporated to aid the agricultural Interests of the state, and the state assisted by a loan of its credit, and retained partial control. Citizens' Bank v. Parker, 192 U. S. 73, 24 S. Ct. 181. 18. People V. Miller, 84 App. Div. 168, 82 N. T. S. 621. 19. Construing Laws 1901, p. 318, o. 132, § 202, and § 187a (p. 316). People v. Lane, 41 Misc. 1, 83 N. T. S. 606. 20, 81. See 1 Curr. L. 290. 22. Somerset Nat. Banking Co.'s Receiver V. Brinkley, 24 Ky. L. R. 2088, 72 S. W. 1129. 23. National bank. Somerset Nat. Bank- ing Co.'s Receiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125. 24. Reorganization of state bank Into national. Somerset Nat. Banking Co.'s Re- ceiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125. 25. See post. General powers, p. 405. 26. 27. Draper v. Blaokwell, 138 Ala, 182, 35 So. HO. 28. See 1 Curr. L. 290. 29. Construing Rev. St, 1899, § 1293. Laps- ley V. Merchants' Bank of Jefferson City [Mo. App.] 78 S. W. 1096. 30. Tax dividend declared by national bank paid to some stockholders not to oth- ers. Redhead v. Iowa Nat. Bank [Iowa] 98 N. W. 806. 31. Mulcahy v. Hlbernia Sav. & Loan Soc [Cal.] 77 P. 910. An allegation In the com- plaint of bad faith on the part of the officers In endeavoring to exclude the plaintiff from membership has no bearing on any question , relative to the reserve fund. Id. The com- plaint alleging as a reason for the accumu- lation of the fund that the directors wished to divide It amongst themselves on dissolu- tion, the allegation constitutes a mere con- clusion, as is also the allesation of no in- 3 Cur. Law. BANKING AND FINANCE § 2. 405 Transfer of stock.^^ — The stock must be transferred to one legally liable to assume the obligation of a stockholder and who cannot repudiate such obligation." A bank may waive those provisions of its by-laws relating to the transfer of its stock.'* A statute requiring a transfer on the books of the bank, a delivery to the cashier with instructions to so transfer it is insufficient.'" The cashier is not a necessary party in a suit to compel a transfer of stock on the books of the bank;'" the president is sufficient.'^ Where a stockholder holds as a trustee for future pur- chasers it is not necessary to show authority from him for a transfer of such stock by the bank to a purchaser." Lien on stock.^^ — In Georgia, a bank's lien on stock being created by contract or by its charte!r cannot be foreclosed by judicial proceedings unless the defend- ant is duly served by an officer or by publication.*" General powers.*^ — It is competent for banks to form clearing-houses, and the rules made supplant the law as between themselves.*^ In the absence of statutory restriction, a solvent banking corporation, not contemplating insolvency or disso- lution, may purchase its own stock in payment of a previously existing debt due from its stockholder,*' and may contract to sell another's stock in a corporation within a certain time and for a stated sum.** A bank has the power to lease property,*" and is liable upon the covenants of the lease.*" It may become a party to a fraudulent conspiracy, the same as a natural person and with like responsi- bility.*' Dealing in checks is part of the general powers of a bank,*' and it may under certain circumstances become an undisclosed principal upon negotiable paper,*" though it has no authority to become an accommodation surety for a business in which it has no interest, and from which it can derive no profit."" Banks can only consolidate when authorized by law, and then in the manner pro- vided by law;"^ but where a bank, in contemplation of closing up its business, sells its assets, property and business to another bank, and makes arrangements for the liquidation of its assets, there is no consolidation."^ Under the statutes of some debtedness except as to depositors, and hence fund too large, the amount of deposits not being shown. Id. 33. See 1 Curr. L. 291. 33. Transfer to an infant does not relieve transferror from liability. Aldrich v. Bing- ham, 131 P. 363. 34. By-law provided that the transferee should be approved by board of directors, and should sign the by-laws. Defendant did neither, yet bank canceled old certificate and issued her a new one and paid her dividends. Held, provisions waived. People's Home Sav. Bank v. Rickard, 139 Cal. 285, 73 P. 858. 35. Construing Code of Laws 1902, § 1894. White V. Commercial & Farmers' Bank [S. C] 45 S. E. 94. 36. Johnson v. Hume [Ala.] 36 So. 421. 37. Process should be directed to him. Johnson v. Hume [Ala.] 36 So. 421. 38. Reorganization of state bank into a national bank. Somerset Nat. Banking Co.'s Receiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125. 39. See 1 Curr. L.. 291. 40. Owens V. Atlanta Trust & Banking Co. [Ga.] 47 S. B. 215. 41. See 1 Curr. L. 291. 42. Rules as to effect of indorsement. Crocker-Woolworth Nat. Bank v. Nevada Bank, 139 Cal. 664, 73 P. 456. 43. Draper v. Blackwell & Keith, 138 Ala. 182, 35 So, 110. For effect of such a purchase, see Stock subscriptions, ante p. 404. 44. As against public policy nor. In this case, as violating Laws 1892, p. 1911, c. 689, prohibiting a bank from holding stock In ex- cess of 10 per cent, of its capital. Guase v. Commonwealth Trust Co., 89 N. T. S. 723. 45. Weeks v. International Trust Co. [C. C. A.] 125 F. 370. 4«. Where, owing to Insolvency and the appointment of a receiver, a bank vacates its premises and thus breaks the covenants in a lease, it is liable in damages to the lessor. McGraw v. Union Trust Co. [Mich.] 98 N. W. 390. 47. Wright V. Stewart, 130 F. 906. 48. The fact that a bank purchased a check instead of receiving it for collection is not a deviation from the usual course of business so as to show bad faith. Citizens' State Bank v. Cowles, 89 App. Div. 281, 86 N. T. S. 38. 49. Lewis v. First Nat. Bank [Neb.] 96 N. W. 355. 50. Surety on replevin bond. Sturdevant Bros. & Co. V. Farmers' & Merchants' Bank [Neb.] 96 N. W. 819. 61. On Jan. 16, 1896, there was no law in Oklahoma authorizing two banks to con- solidate. Overstreet v. Citizens' Bank, 11 Okl. 383, 72 P. 379. 62. Overstreet v. Citizens' Bank, 18 Okl. 383, 72 P. 379. iOG BANKING AND PINANCE § 2. 3 Cur. Law. states, the bank through its officers is the agent of the stockholders in listing their stock for taxation/^ and, as such agent, the bank cannot, in a suit to tax such shares, raise the question that some of them may have changed hands,°* nor that the proceeding is unconstitutional.'"' Besei-ve fund. — The amount of the reserve fund being left to the discretion of the directors, the courts will not attempt to control them unless their proceedings are unfair, or the officers act wantonly and in bad faith, or with disregard of the rights of the stockholders in such fund.^° Personal liability of directors and officers.^'' — A director is only required to act in good faith and to exercise such a degree of care as a reasonably prudent man would exercise under the same circumstances,"' in some states, as such a man would exercise in his own affairs.'''' There is a marked difference between the duty which the directors owe to the bank, and that which they owe to strangers or cred- itors; in the absence of statute, they are not liable to the latter for mere nonfeas- anee.°° A stockholder may bring an action against them for losses occasioned by their negligence, in behalf of himself and all others in a like situation, either after demand made that the bank should bring the action, and its refusal, or without demand, where the persons committing the wrongful acts continue as directors ;'' but such plaintiff must be a stockholder both at the time of the commission of the acts complained of, and at the time of the commencement of the action ;°^ the plaintiff not being so qualified, a qualified stockliolder being permitted by the court to intervene, the complaint should not be dismissed."^ In most states, banks are prohibited from investing funds in trade or commerce, and the directors are liable for a loss sustained thereby ;°* they are also liable for money loaned to borrowers who were insolvent at the time, to the knowledge of the directors. °° An allegation that overdrafts were negligently permitted is sustained by proof of illegal over- drafts."" In some states, by statute, a director is required to examine into the af- fairs of the bank, and it is no excuse for failure to do so that the cashier's fraud was so skillfully done that such an examination would not have revealed the same,*" but this need not be done personally, for the custom of appointing discoimt and examining committees to attend to the details of the management of the business is a reasonable one."' A director may do business with a bank, and, so long as he does not act for the bank as well as for himself, his relation to the banlc is the same as any other patron."" A banker without compensation, investing and collecting the money of a de- positor, is bound to exercise ordinary care and diligence,'" and is responsible for 53. Under Ky. St. 1903, § 4241, as to notice In proceedings to tax omitted property. Com. V. Citizens' Nat. Bank, 25 Ky. L. R. 2100, 80 a. W. 158. 54. Com. V. Citizens' Nat. Banlc, 25 Ky. U R. 2100, 80 S. "W. 158. 55. As violating the 14th amendment to the United States Constitution. Com. v. Citi- zens' Nat. Bank, 25 Ky. L. R. 2100, 80 S. W. 168. 56. St. 1862, p. 200, c. 187, § 11, does not prevent a bank from creating a reserve fund in excess of $100,000. The accumulation of a reserved fund of $250,000 is not of Itself fraudulent. Muloahy v. Hlbernla Sav. & Loan Soc. [Cal.] 77 P. 910. 57. See 1 Curr. L. 291. B8. Stone v. Rottman [Mo.] 82 3. W. 76. note;. Liability and duties of directors: Directors are charged with the duties of trustees, and must use good faith in the care of the bank's property. For a violation of these duties they are liable to account In equity, the same as other trustees. Bos- worth V. Allen, 168 N. T. 157, 61 N. E. 163, 85 Am. St. Rep. 667. — Prom note in Winches- ter V. Howard [Cal.] 89 Am. St. Rep. 169. 59. Hanna v. Lyon [N. T.] 71 N. E. 778. 60. Stone v. Rottman [Mo.] 82 S. W. 76. 61. 62, 63. Hanna v. Lyon [N. T.] 71 N. B. 778. 64, 65, 66. Stone v. Rottman [Mo.] 82 S. W. 76. 67. Gen. St. 1901, §§ 471, 472. Forbes v. Mohr [ICan.] 76 P. 827. 68. Stone v. Rottman [Mo.] 82 S. "W. 76. 69. Representations by a director as to the financial conditions of the maker and In- dorser of a note he wished to discount. St. Johns Nat. Bank v. Steel [Mich.] 97 N. W. 704. 70. 71. Watson v. Fagner, 208 111. 136, 70 3 Cur. Law. BANKING AND FINANCE § 2. 407 any loss resulting from a failure to do so;^^ nor is lie relieved from such respon- sibility by the fact that the depositor made no attempt to collect the money in- vested.''^ As to what is admissible in evidence to show good faith and prudence, see notes.' ^ A cashier is not absolutely liable for overdrafts of a customer allowed by him according to the custom and usage of the bank, and upon the advice of the presi- dent and directors;''* neither is he negligent in relying upon an identification by one personally known to him, there being nothing in that person's reputation or the transactions that would excite the suspicions of an ordinarily prudent man.'" The cashier is not individually liable for the breach of a contract made in his offi- cial capacity.''" In an action against a cashier for conversion of the bailie's money, it is immaterial to whom he gave it, for what he spent it, or whether he loaned it to a solvent or insolvent corporation.'". An officer of a bank is liable for the natural and direct results of his acts, not- withstanding that some of his superiors may have been careless and some dishon- est;'* but when acting in good faith, he is not liable for the bank's own negli- genee.''' Officers of a bank who are concerned in a misappropriation of its funds are liable, although they do not profit thereby;^" and those who negligently fail to prevent it when they have knowledge of it are within that category.^^ In Iowa, a loan to an officer of a bank must be passed upon by the board of directors.*'' Stat- utes in some states render bank officials criminally liable for receiving deposits after knowledge of banlc's insolvency.*' A bank may ratify the acts of its officers and thus relieve them from liability.** An action against wrongdoing dvrectors.^^ Powers of officers and right to represent feawfc.*" — As between a bank and innocent third parties who have dealt with its agents, authority may sometimes be inferred from a course of dealing.*' It is without the general scope of a bank president's authority to agree to sell pledged property at a price bid therefor at a sale;** but the bank by buying the N. E. 23. If he loans It to persons largely indebted to the bank, who afterward become insolvent, the suspicion arises that it was loaned with a view to carrying the borrower along until the money due the bank could be collected. Id. 73. Watson v. Fagner, 20S 111. 136, 70 N. B. 23. 73. In an action against the president of a bank for loaning the money of the bank on worthless collateral, evidence that such col- lateral was received by other banks with other security in loans to the same party is admissible when it is shown what estimate was placed by them on the questionable se- curity. Seventeenth Ward Bank v. Smith, 83 App. Div. 64, 82 N. T. S. 529. The fact that other banks had made loans to the same party for which none of the collaterals in question appeared to have been accepted as security is irrelevant in such an action. Id. 74. Only required to exercise the care and judgment of an ordinarily prudent man. First Nat. Bank v. Reese, 25 Ky. L. R. 778, 76 S. W. 384. 75. King V. Exchange Bank [Mo. App.] 78 S. W. 1038. 76. Pease v. Francis [R. I.] 55 A. 686. 77. Allegations of these matters will be stricken from the pleadings. First Nat. Bank v. Gaddis, 31 Wash. 596, 72 P. 460. 78. Fiala v. Alnsworth [Neb.] 94 N. W. IBS. 79. A bank took notes for collection, the notes being indorsed by its president. The bank later delivered up the original notes and made further advances; these notes the president did not indorse. Held, he was not liable for falling to tell bank of debtor's pri- vate and secured debt to him, where the ad- vances were made without his knowledge and at the time of the maturity of the origi- nal debt, the debtor's property was sufficient to pay both. Bank of Newport v. Watson [Ark.] 74 S. W. 15. 80, 81. Flala v. Alnsworth [Neb.] 94 N. W. 153. 82. A blanket resolution affords no pro- tection [Acts 15th Gen. Assem. p. 52, c. 60, § 17]. German Sav. Bank v. Des Moines Nat. Bank, 122 Iowa, 737, 98 N. W. 606. 83. 2 Ball. Ann. Codes & St. § 7121 Is not unconstitutional as violating art. 12, § 12 of the Washington State Constitution. State v. Oleson [Wash.] 76 P. 686. 84. Acquiescing for five years In the loan- ing of money to a speculative corporation held to relieve cashier from liability. First Nat. Bank v. Gaddis, 31 Wash. 596, 72 P. 460. 85. 86. See 1 Curr. L. 292. 87. Contract entered into by president and treasurer without authority of board of di- rectors. Smith V. Bank of New England [N. H.] 54 A. 385. 88. Even though he owned a controlling interest in said bank. Agreed to sell to 408 BANKING AND FINANCE § 2. 3 Cnr. Law. property and keeping it with knowledge of the agreement and fraud becomes liable therefor, and cannot refuse to sell to the surety on the ground that the amount bid was insufficient to pay the debt.'° Acts of a cashier in the usual course of business and within the apparent scope of his authority are binding on the bank.*" He is the agent of the bank in transmitting funds for a depositor,*^ and being the collecting ofBcer of the bank, he has the power to enter into a contract looking towards the collection of debts due the bank,'^ and in doing so, may obligate the bank to pay one a reasonable commission for procuring a purchaser of real estate held by the bank, under a mortgage, as security for a debt."' He has no authority to knowingly accept a worthless check on another bank and charge his bank with the amount thereof,"* nor can he generally bind the bank by an issuance of drafts or certified checks when given for his private business,"^ nor has he any apparent or implied authority to make any representation on behalf of the bank as to the solvency of one of its debtors."" A bank may recover funds misappropriated by its cashier from one receiving them with knowledge of the misappropriation,®' and it is no defense to this action that the directors were negligent."' Fraud by the cashier when acting in his official capacity is fraud of the bank."" Authority to a cashier to buy and sell stocks covers purchases made for cash and on margins.^ Under a statute requiring claims • against a decedent's estate to be sworn to, the claim of a bank may be verified by the cashier where the president is the adminis- trator of the estate.* A teller may be authorized to enter into a transaction by custom and usage,' to discount notes.* Unauthorized acts.' — A bank is estopped to deny an officer's authority to do an ultra vires act not malum in se or malum prohibitum," and when within the apparent scope of his authority,' when to do so would injure an innocent person who has dealt with the officer on the faith of his apparent authority. Where un- authorized acts of an officer of a bank are done under circumstances raising no implication of authority, and are never ratified by the bank, the bank is not bound surety on debt. Memphis City Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065. The fact that the president and treasurer executed the contract in question can be con- sidered with other executive acts performed by them without special authorization, as bearing on the question of Implied author- ity to execute the contract. Smith v. Bank of New England [N. H.) 54 A. 385. 89. Memphis City Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065. 90. Agreement to hold securities deposited for collection for another. Mercantile Nat. Bank v. Peabody [Colo. App.] 72 P. 611. 91. Bank Is liable for misappropriation of funds. Goshorn v. People's Nat. Bank [Ind. App.] 69 N. B. 185. 92. 93. First Nat. Bank v. RatUft [Tex. Civ. App.] 76 S. W. 591. 94. Van Buren County Sav. Bank v. Stir- ling Woolen Mills [Iowa] 94 N. W. 945. 95. A debtor of a cashier taking a certiflecf check drawn by the latter upon his bank is bound to take notice of the latter's authority to make such particular certification. Ran- kin V. Bush, 87 N. T. S. 539. There Is no presumption that the wrongdoer has paid value or made restitution, and the burden Is upon those claiming that he did to prove It. Mendel v. Boyd [Neb.] 99 N. "W. 493. A bank cannot recover the amount collected on a cashier's draft Issued by its cashier to his individual creditor, the cash- ier having Implied authority through custom and usage to so do. Campbell v. National Broadway Bank [C. C. A.] 130 P. 699. 96. Taylor v. Commercial Bank. 174 N. Y. 181, 66 N. E. 726. 97. Draft by cashier, over his official title, on correspondent, to be used In speculation, held knowledge to commission company of abuse of authority on the part of the cash- ier. Kitchens v. Teasdale Comm. Co. [Mo. App.] 79 S. W. 1177. 98. Kitchens v. Teasdale Comm. Co. [Mo. App.] 79 S. W. 1177. 99. Fraud In obtaining collateral for debt of bank when bank was Insolvent. Hallett v. Fish, 120 F. 986. 1. Bank claimed to be exempt from lia- bility for purchases on margins. National Bank of Boyertown v. Frldenberg, 206 Pa. 243, 65 A. 960. 2. Cox V. Hlgglnbotham's Adm'r, 25 Ky. L. R. 1057, 76 S. W. 1079. 8, 4. lowa'Nat. Bank v. Sherman [S. D.] 97 N. "W. 12. 6. See 1 Curr. L. 293. 6. An executed ultra vires agreement. Tork v. Farmers' Bank [Mo. App.] 79 S. W. 968. 7. The act of a cashier In obligating the bank as an accommodation surety on a re- plevin bond, in a suit In which It has no In- terest, is not within his apparent authority. Sturdevant Bros. & Co. v. Farmers' & Mer- chants' Bank [Neb.] 95 N. W. 819. .3 Cur. Law, BANKING AND FINANCE § 2, 409 thereby." A third person is bound to know that a cashier cannot deal with him- self individually, and hence the bank is not bound by the acts of the cashier in such a transaction." Unauthorized acts may be ratified by accepting the benefits of the transaction/" or by subsequent knowledge and assent,^^ and knowing, the assent may be shown by silence and acquiescence, as well as by formal vote of rati- fication.^^ An unauthorized application of money by a bank may be ratified by the depositor.^' Official or individual capacity}* — One acting as a director and cashier of a bank is an implied trustee or agent for it.^° The fact that a cashier is personally interested in a transaction is sufficient to put the other party upon inquiry as to the actual extent of the cashier's power,^° he has no implied authority to dispose of the funds of the bank in satisfaction of his private debts," and the bank can re- cover from the party receiving the same the amount so paid.^* In making an agreement with a debtor that certain money shall be applied in a particular man- ner to his indebtedness a cashier acts in his official capacity.'" Notice to bank from hnowledge of officers."'' — Knowledge of the president of fraud in an agreement to sell pledged property of a bank is knowledge of the bank."' A bank is presumed to have knowledge of the fraud of its cashier."" An official's interest being hostile to the bank, his knowledge is not chargeable to the bank."^ A bank is not chargeable with notice of facts of which its president ac- quires knowledge while dealing, in his private capacity, and on his own behalf, with third persons,"* nor is knowledge on his part thus acquired imputable to the bank when dealing with him as an individual."" The fact that officers of a bank are stockholders in a corporation, which is the payee of a note, does not charge the bank with constructive notice of defenses of the maker of said note against the payee, where said officers had no actual notice thereof."" Knowledge of a director of a bank is not notice to the bank."' The holding of a public meeting in a city 8. President extended time of payment of debt. Arbogast v. American Exch. Nat. Bank [C.C.A.] 125 F. 618. See 1 Curr.L. 293. 9. Guaranteed his Individual notes. Ger- man Sav. Bank v. Des Moines Nat. Bank, 122 Iowa, 737, 98 N. W. 606. 10. Cashier procured security for note giv- en to debtor of bank, bank failed and debt was paid by persons owning the collateral, held could look to the receiver of the bank for reimbursement. Hallett v. Fish, 120 F. 986. Where a cashier gives his individual notes to a bank which sold them, receiving and retaining the proceeds, it ratifies the acts of the cashier. German Sav. Bank v. Des Moines Nat. Bank, 122 Iowa, 787^ »8 N. W. 606. See 1 Curr. U 294. 11. Actual knowledge is not necessary, if in the exercise of ordinary care they ought to have known It is in law as If they knew. Smith V. Bank of New England [N. H.] 64 A. 386. See 1 Curr. L. 294. 12. Smith V. Bank of New England [N. H.] 54 A. S86. 13. Money to be applied to secured debt and thus release collateral, money was ap- plied to unsecured debt, with knowledge of these facts a renewal note was given and interest paid for two years. Held ratified. Pease v. Francis [R. I.] 66 A. 686. 14. See 1 Curr. I* 894. IB. Statute of limitations runs against the fraud from the time of the commission of the offense, unless concealed. Central Bank of Kansas City v. Thayer [Mo.] 82 S. W. 142. 16. Paid Individual debts with funds of the bank. Hler v. Miller [Kan.] 75 P. 77; Rankin v. Bush, 87 N. T. S. 539. See 1 Curr. U 294. 17. Paid individual debts by entering amount thereof as a credit on depositor's bank book. Held, could recover of depositor. Hler V. Miller [Kan.] 76 P. 77; Rankin v. Bush, 87 N. Y. S. 539. See, however, Camp- bell V. National Broadway Bank [C. C. A.I 130 F. 699. 18. Hler v. Miller [Kan.] 76 P. 77. IV. Pease v. Francis [R. I.] 55 A. 686. 20. See 1 Curr. L. 295. 21. Memphis City Bank v. Smith, 110 Tenn. 337, 76 S. "W. 1065. 22. Embezzlement. Goshorn v. People's Nat. Bank [Ind. App.] 69 N. E. 185. 23. Attorney of bank was president of a corporation in whose favor note was drawn. Note was without consideration. Davis v. Boone County Deposit Bank, 25 Ky. L. R. 2078, 80 S. W. 161; Central Bank of Kansas City V. Thayer [Mo.] 82 S. W. 142. Knowl- edge of fraud. Camden Safe Deposit & Trust Co. V. Lord [N. J. Bq.] 58 A. 607. 24. 25. People's Bank of Talbotton v. Ex- change Bank, 116 Ga. 820, 43 S. E. 269. 20. Iowa Nat. Bank v. Sherman [S. D.] 97 N. W. 12. 27. That a grantee holds land as trustee. Homes Sav. & State Bank v. Peoria Agricul- tural & Trotting Soc, 206 111. 9, 69 N. E. 17. See 1 Curr. L,. 295. 410 BANKING AND FINANCE § 3. 3 Cur. Law. does not constitute notice to a bank in said city of the action taken therein, none of its officers being present.'" Winding up.^^ — Upon failure of the bank all general depositors stand on an equality;^" this rule is not changed by reason of the deposit being a trust fund to the knowledge of the bank.'' A deposit of money to purchase a letter of credit does not constitute a trust fund for the benefit of bankers honoring drafts drawn against the letter of credit, so as to give them priority over other creditors of the bank issuing the letter of credit. ^^ The equity rule allowing dividends to a se- cured creditor upon the full amount of his claim obtains.'' One who is induced by fraud of the cashier, when acting in his official capacity, to furnish securities for a loan to the bank, but is not told that the bank's capital is gone, is a preferred creditor to the amount of the loan paid by him to save his securities.'* A pre- ferred creditor is not entitled to be paid from a fund created by enforcing the double liability of stockholders to the exclusion of other creditors, "* but a part of thfi general assets being used to enforce the stockholder's double liability, such pre- ferred claim is entitled to a preference out of such double liability fund to the extent that the general assets were so used.'" In proceedings to wind up a bank, the debt of the bank to a creditor who holds its note, and, as collateral, notes in- dorsed by it, is as regards the creditor's right to dividends the bank's note only." In some states debts due the public are given priority over other claims." The xeceiver of an insolvent bank may enjoin the suit of a resident creditor brought in another state, which prevents the collection of the assets of the bank.'" A na- tional ianh being placed in the hands of a receiver as insolvent, the Federal law from that moment becomes the law of the distribution of its assets,*" and the bankruptcy law has no application where the proceedings are under a special stat- ute.*' The owner of a trust fund which comes into the hands of the receiver of an insolvent national bank is not entitled to interest thereon, when it has not actually earned any.*'' The stockholders' agent far winding up the affairs of a national bank may be sued in the Federal courts irrespective of citizenship.*' In determining whether the dissolution of a savings hanh is "advisable," the only in- terests which should influence the judgment of the directors are those of the people,** and a depositor therein may, as a depositor and also as a citizen of the ZS. Homes Sav. & State Bank v. Peoria Agricultural & Trotting Soc, 206 111. 9, 69 N. B. 17. 29. See 1 Curr. L. 296. SO. Officer v. Officer, 120 Iowa, 889, 94 N. W. 947. 31. Deposit by executor of funds of es- tate. Officer V. Officer, 120 Iowa, 389, 94 N. W. 947. S2. In this case there was a signature card on which was written "Guaranty for a letter of credit." Held, did not alter the above rule. Kuehne v. Union Trust Co. [Mich.] 95 N. W. 715. 33. In the winding up of a bank through a receiver, O L. 1896, 0. 178, § 42 et seq. governs, and does not change above rule. In re Burke [R. I.] 55 A. 825. 34. Collaterals advanced by financee of cashier. Hallett v. Fish, 120 F. 986; Id., 123 F. 201. 35. Liability of stockholders under Code, §5 1882, 1883. Sioux City Stockyards Co. v. Pribourg, 121 Iowa, 230, 96 N. W. 747. 36. Sioux City Stockyards Co. v. Fribourg, 121 Iowa, 230, 96 N. W. 747. 37. Proceedings were under Gen. Laws 1896, c. 178, S 42 et seq. In re Burke [R. I.] 55 A. 825. 38. Under Code 1902, 5 2538. Xilabillty to a county is a debt due the public. Lock- wood V. Lockwood [S. C] 47 S. E. 441. 80. Davis V. Butters Lumber Co., 132 N. C. 233, 43 S. B. 650. 40. To the exclusion of the law of any state. First Nat. Bank v. Selden [C. C. A.I 120 F. 212. 41. In re Burke [R. I.] 55 A. 826. 43. Hallett v. Fish, 123 F. 201. 43. Construing Act Aug. 13, 1888, c. 866, § 4, 25 Stat. 436 [U. S. Comp. St. 1901, p. 514]. Weeks v. International Trust Co. [C. C. A.] 125 F. 370. 44. Under P. L. 1902, p. 677, o. 224. Bar- rett V. Bloomfteld Sav. Inst. [N. J. Bq.] 54 A. 543. The fact that a trust company and a national bank have been organized in the same community with a savings bank does not show that the dissolution of the latter Is "advisable." Id. Under P. L. 1876, p. 346 [the savings bank act, and made applicable by § 52 to institutions already organized] de- claring that "all vacancies in such board by death, resignation or otherwise, shall be 3 Cur. Law. BANKING AND FINANCE § 2. 4rll community, maintain a bill to prevent the managers of said bank from dissolving itj*' and the fact that in the case of dissolution he will receive back his deposit and share in the surplus, does not prevent him from maintaining such a bill.** A savings bank being dissolved, the surplus should be divided among the bona fide depositors at the time of dissolution.*^ Reorganization.*^ — A bond being given, pending the application for the ap- pointment of a receiver for a bank, providing for the return of the assets to the officers or stockholders and a full settlement by them within a certain number of years, any creditor v/ho is a beneficiary of said bond may sue thereon after condi- tion broken to his damage,** and a delivery of the assets to one of the makers of such bond does not relieve the sureties thereon from liability, where by their acts they assent to such delivery and ratify it,"*" and an answer setting up such taking of the property by the stockholders as a defense to a suit by the bank should allege that the action was by a majority of the stockholders."^ Stockholders' individual lidbilityj'^ — A registered stockholder is prima facie liftble, and the burden of proof is upon him to show a sale in good faith,"' and a proper attempt to have the transfer made upon the books of the bank in accord- nnce with the statutes,"* though in some states the stockholder's liability continues for a limited time after the transfer of the stock." A corporation obtaining stock in a bank by reason of ultra vires acts does not assume the stockholders' liability. °° In some states in order that the holder of bank stock as collateral may be exempt from liability as to creditors, it must appfear on the corporation's books that he holds the stock only as pledgee."'' The liability of a stockholder is an obligation to the bank in trust for its creditors,"^ and the bank may not, as against creditors or other stockholders, relieve him from this liability."" It is created by statute,"" though the liability is contractual,"^ and hence laws thereon should be construed to operate prospectively only,"^ and statutes imposing a double liability being in derogation of the common law, are to be strictly construed.'^ This liability may be enforced, before the assets are completely exhausted, upon it appearing that they will be insufficient,"* unpaid subscriptions for stock should, however, first be resorted to."" In some states such liability is best enforced in the creditor's bill to have a receiver appointed,"" but an independent action being brought by the receiver the creditors are not necessary, though proper parties,"' and the complaint filled by the board of managers," the unwill- ingness of the present managers to continue in office is no ground for dissolving a sav- ings bank, where proper men can bo found to take their places. Id. 45, 46, 47. Barrett v. Bloomfleld Sav. Inst. [N. J. Bq.] 54 A. 543. 48. See 1 Curr. L. 298. 49. Bond given under Comp. St. 1901, o. 8, S 36. Rawson v. Taylor [Neb.) 95 N. W. 1033. 50. Taylor ▼. Weckerly [Neb.] »6 N. W. 618. 51. Savings bank. Omaha Sav. Bank v. Rosewater [Neb.] 96 N. W. 68. 52. See 1 Curr. L. 296. 53. Schofield V. Twining, 127 F. 486. 64. Purchaser promised to have stock transferred, failed to do so, held, registered stockholder liable. Sohofleld v. Twining, 127 F. 486. Where In the exercise of reasonable care he directs a proper officer of the bank to make the transfer on the books, he Is not liable for the neglect of the officers of the bank to obey his direction. Hunt v. Seeger [Minn.] 98 N. W. 91. 55. In Minnesota, one year. Findings of fact of trial court sustained. Hunt v. Doran [Minn.] 100 N. "W. 222; Hunt v. Seeger [Minn.] 98 N. W. 91. 66. White V. Commercial & Farmers' Bank [S. C] 45 S. B. 94. 57. Construing Civ. Code, §§ 321, 322, pro- viding that all banks shall keep a stock book and defining a stockholder. Hurlburt V. Arthur, 140 Cal. 103, 73 P. 734. 58, 50. Smathers v. Western Carolina Bank [N. C] 47 S. B. 893. 60. Hence under Code Civ. Proc. § 338, must be brought within three years after the cause of action accrues. Jones v. Gold- tree Bros. Co. [Cal.] 77 P. 939. 61. Smathers v. Western Carolina Bank [N. C] 47 S. E. 893. 68, 63. Construing Pub. Laws 1897, p. 473, 0. 298. Smathers v. Western Carolina Bank [N. C] 47 S. B. 893. 64, 65, 66, 67, 68. Smathers v. Western Carolina Bank [N. C] 47 S. B. 893. 412 BANKING AND FINANCE 8 3. 3 Cur. Law. slioTild state the time when the several defendants became stockholders, and the dates the debts were contracted.*' Upon the reorganization of an insolvent bank, the stockholders taking part theirein are primarily liable for the debts of the old bank,'' the stockholders not taking part in the reorganization being secondarily liable,'" and the latter are not discharged by the issuance and delivery by the re- organized bank of new certificates of deposit to the creditors of the old.'^ A stock- holder receiving stocks'^ and dividends"' from the reorganized bank is estopped to deny liability on the ground of irregularities or nonassent thereto. Under a stat- ute allowing the stock to be sold by the bank upon failure of the owner to pay as- sessments levied thereon, money derived from such sale belongs to the owner of the stock.'* § 3. National hanks; officers and examiners.''^ — In the absence of a by-law the president of a national bank has no power to bind the latter by a representation that a forged signature is genuine," nor are its directors empoweTed, without ac- tion of the stockholders, to levy an assessment ordered by the comptroller of the currency for the purpose of restoring its capital and enabling it to continue in business." Powers,''^ — The powers of a national bank under the national banking act are essentially matters for Federal construction and interpretation, and in con- struing said act state courts must yield to and follow the decisions of the United States supreme court." A national bank may take stock in another corporation as collateral and acquire title to it upon default of the debtor,'" it cannot become a member of a partnership, and cannot become liable as a partner,'^ but it may, in order to secure paytaent of a debt, become a part owner in severalty of the property then owned by the partnership, and as such, liable for its proportionate share of the debts and expenses incurred in managing and disposing of said prop- erty.'^ It may receive and hold a building contract as qpUateral security for the repayment of a pre-existing debt." A national bank has power to lease property for its occupancy in conducting its business for a term extending beyond the ex- piration ia its charter, even though the lease is only alienable upon a condition,'* and, when insolvent, it may transfer its bank building in consideration of release of ground rent, where the transaction is fair, public, and reasonable.'" A na- tional bank has no power to bind itself that a draft drawn on its customer will be paid," nor has it authority to procure a signature to a note for another bank in order that it may lend money to a third person, and represent the signature to be 69, 70, 71. In re Receivership of Germanla Bank [Minn.] 98 N. W. 341. 72. State V. Germanla Bank [Minn.] 96 N. W. 1116; Cronstadt v. Wlllius, 90 Minn. 150, 95 N. W. 1116. 73. Had transferred stock to his children 5 years old, held, made no difference. Ald- rioh V. Bingham, 131 F. 363. 74. Indiana statutes (4 Burns' Supp. 1897, § 13). Chicago Title & Trust Co. v. State Bank [C. C. A.] 121 F. 58. 75. See 1 Curr. L. 297. 76. Commercial Nat. Bank v. First Nat. Bank [Tex. Sup.] 80 S. W. 601. 77. Construing- U. S. Rev. St. 55 5136, 5145 (TJ. S. Comp. St. 1901, pp. 3455, 3463), and § 5205 (U. S. Comp. St. 1901, p. 3495). Commer- cial Nat. Bank v. Welnhard, 192 U. S. 243, 24 S. Ct. 253. 78. See 1 Curr. L. 297. 79. First Nat. Bank v. American Nat. Bank, 173 Mo. 153, 72 S. "W. 1059. But the application of such decisions to a case prop- erly brought In the state courts Is to be determined by state decisions. Security Nat. Bank v. St. Croix Power Co., 117 Wis. 211, 94 N. W. 74. 80. Union Nat. Bank v. Touzalln Imp. Co. [Neb.] 95 N. W. 489. 81, 82. Merchants' Nat. Bank v. Wehrmann [Ohio] 68 N. B. 1004. 83. As to whether or not It can complete said contract on the death of the owner, quaere? Security Nat. Bank v. St. Croix Power Co., 117 Wis. 211, 94 N. "W. 74. 84. Assignable only by consent of lessor. Weeks v. International Trust Co. [C. C. A.] 125 F. 370. See 1 Curr. L. 297. 85. Bank was in arrears for taxes, rent, etc. Held, lessor of ground could not be held to an accounting by receiver of bank. Brown v. Schleler, 194 U. S. 18, 24 S. Ct. 668. 86. Construing Rev. St. U. S. § 5136 [U. S. Comp. St. 1901, p. 3465]. First Nat. Bank v. American Nat. Bank, 173 Mo. 153, 72 S. W. 1059. 3 Cur. Law. BANKING AND FINANCE 413 genuine.*^ It cannot be estopped from pleading ultra vires by the performance of the contract by the other party,*' nor can it willfully commit a trespass, though its ofiBeers may do so, becoming personally liable therefor.*" Under the United States statutes a national bank is not subject to any visitorial powers except such as are authorized thereby.*" The stockholder's right of inspection is not a visi- torial power."^ No reduction of capital of a national bank can be made without the approval of the comptroller of the currency,"^ and it is fairly within his au- thority to condition his approval on the adoption of such measures as he might think proper to do justice to the holders of the original shares." Violation of banking act."* — The directors of a national bank enter into an implied contract with the depositors, this implied contract being inherent in the contract of deposit, that the bank will use such deposits and its other assets in con- formity with the safeguards provided by law."* The depositors may sue the di- rectors -upon this implied contract, though the bank be insolvent,"" and are en- titled to maintain a single suit in equity against such directors," such a bill not being multifarious,"" and the bill failing to allege the date the deposits were made may be amended."" This cause of action survives the death of the directors,* nor are the latter relieved from liability by the expiration of their term of office." Stock} — A national bank cannot forbid the transfer of shares of its stock by a stockholder who is indebted to the bank.* Receivership} — The legal existence of a national bank is not cut short by its insolvency and the appointment of a receiver therefor," nor by the expiration of its charter,^ but it still continues as an entity capable of suing and being sued." A Federal court sitting in equity has jurisdiction, except in those cases where the comptroller of the currency has the power, to appoint a receiver for a national bank to liquidate its obligations," and to authorize him to collect and to enforce by action the liability of the shareholders of the bank.*" The state courts have the power to appoint a receiver to wind up a national bank, at the instance of a stock- holder, in all cases except those designated by act of congress to be brought under the authority of the United States.** The complaint must show that plaintiff tried to get redress by an appeal to his fellow-stockholders or to the directors,** and there being a defect of parties, the objection cannot be raised for the first 87. Commercial Nat. Bank v. First Nat. Bank [Tex.] 80 S. W. 601. 88. First Nat. Bank v. American Nat. Bank, 173 Mo. 153, 72 S. W. 1059. 89. Meyer v. First Nat. Bank [Idaho] 77 P. 334. 90. Rev. St. U. S. 5 5241 [U. S. Comp. St. 1901, p. 3517]. Harkness v. Guthrie [Utah] 75 P. 624. 91. Right given by Rev. St. Utah, S 329, construed. Harkness v. Guthrie [Utah] 75 P. 624. 92. Rev. St. U. S. i 5143 [U. S. Comp. St. 1901, p. 3463]. Cogswell v. Second Nat. Bank [Conn.] 56 A. 674. 93. Create a trust fund. Question arose on objection to averment In complaint- for the appointment of a receiver. Cogswell v. Second Nat. Bank [Conn.] 56 A. 574. 94. See 1 Curr. L. 298. 95. 9«, 97, 98, 99, 1, 2. Boyd V. Schneider [C. C. A.] 131 F. 223. 3. See 1 Curr. L. 298. 4. Under a by-law while Indebted to the bank a stockholder could not transfer stock except with consent of board of directors. Third Nat. Bank v. Buffalo German Ins. Co., 193 U. S. 581, 24 S. Ct. 524. 8. See 1 Curr. L. 298. 6. Camp V. First Nat. Bank [Fla.] 33 So. 241. See 1 Curr. L. 298. 7. Cogswell V. Second Nat. Bank [Conn.] 66 A. 574. 8. Where the legal title to a note, not an asset of the bank, is In Its name, but the beneficial ownership In another, such bank may maintain a suit In its own name to re- cover the amount of the note. Camp v. First Nat. Bank [Fla.] 33 So. 241. May still be sued by a stockholder and ces- tui que trust of a special trust fund for the appointment of a receiver. Cogswell v. Sec- ond Nat. Bank [Conn.] 56 A. 574. 9. Act of Congress June 3, 1864, c. 106 (13 Stat. 99). King v. Pomeroy [C. C. A.] 121 F. 287. 10. Under Rev. St. 6151 [U. S. Comp. St. 1901, p. 3465]. King v. Pomeroy [C. C. A.] 121 F. 287. 11. Cogswell V. Second Nat. Bank [Conn. J 56 A. 674. 12. This question can only be raised by special demurrer. Cogswell v. Second Nat. Bank rConn.l 56 A. 574. 414 BANKING AND FINANCE § 3. 3 Cur. Law. time on appeal.^' One suing both as a cestui que trust and as a stockholder for the appointment of a receiver, on the ground that those who liad gained control of it were using their power for improper purposes is entitled to the protection of courts of equity.^* The receiver of a national bank has the legal title to the property covered by his appointment, and is entitled to maintain an action at law in his own name in the state courts,^" he is the proper party to sue, for the benefit of both creditors and stockholders, the directors of said bank for sums alleged to have been lost by neg- ligence or mismanagement of the latter, the fund recovered to be used for general distribution as assets of the bank,^" and in suing in a Federal court he is not bound to give a bond for costs.^^ Enforcement of stockholders' liability}^ — A national bank becoming insolv- ent, the comptroller of the currency must, within a reasonable time, make an ac- counting and determine the necessity for an assessment upon the stockholders;" the cause of action on the liability of a stockholder not accruing until an assess- ment has been: ordered by the comptro^r.'"' This action is governed by the stat- iite of limitations of the state where the action is brought,''^ and the comptroller is subject to the rule that where preliminary action is essential he cannot delay the operation of the statute of limitations by unnecessary delay in taking such action,^^ nor will failure to make the accounting within a reasonable time prevent the running of limitations."' Federal courts hold that this cause of action does not accrue until the court ascertains its necessity, and fixes the time of payment,"* no action of the comptroller being held necessary to empower a Federal court's receiver to enforce the liability of the shareholders."' The remedy of a creditor's suit to enforce the liability of shareholders of national banks in voluntary liqui- dation, is cumulative, not exclusive."" In order to render the pledgee of stock of a national bank liable as a shareholder, it must appear that he either became the owner of the shares in fact,"' or had held himself out to be the owner, and thereby estopped himself to deny his liability as such."* The liability of a trust estate, depending upon the power of the trustee to make the estate a shareholder, cannot be determined in an action at law by the bank receiver against the stoclcholder."" State interference and powers of state courts.'"' — An injunction will not issue from a state court against a national bank.'^ A state can tax the real estate of 1.3. Cogswell V. Second Nat. Bank [Conn.] 56 A. 574. 14. Objeotiori that he had an adequate remedy at law held untenable. Cogswell v. Second Nat. Bank [Conn.l 56 A. 574. 13. Fish V. Olin [Vt.] 56 A. 533. 10. Liability ot directors Imposed by Rev. St. § 5239 [U. S. Comp. St. 1901, p. 3515]. Boyd V. Schneider, 124 F. 239. Whether previous adjudication forfeiting bank's charter Is nec- essary, quaere? Whether It cannot be brought by others than the receiver, acting under the direction of the comptroller of the currency, quaere? But In no case can it be maintained by the creditors alone. Boyd V. Schneider. 124 F. 239. 17. Construing Rev. St. 5 1001 [U. S. Comp. St. 1901 p. 713]. Pepper v. Fidelity & Cas- ualty Co. [C. C. A.] 125 F. 822. 18. See 1 Curr. D. 298. 19. SO, 31, S». Rankin V. Barton [Kan.] 77 P. 531. 23. Facts disclosed in the pleading show- ing a lack of diligence In making such ac- counting are not overcome by an averment of diligence. Rankin v. Barton [Kan.] 77 P. 531. 24. When cause of action accrues and statute of limitation begins to run. King v. Pomeroy [C. C. A.] 121 F. 287. See 1 Curr. L. 29D. 25. King V. Pomeroy [C. C. A.] 121 F. 2S7. 26. Act June 30. 1S76, c. 156, § 2 (19 Stat. 63 [U. S. Comp. St. 1901, p. 3509]). King V. Pomeroy [C. C. A.] 121 F. 287. 27. Rankin v. Fidelity Ins., Trust & Sate Deposit Co., 189 U. S. 242, 23 S. Ct. 653, 47 Law. Ed. 792. 28. Memorandum- by assignee of pledgor. Pencil memorandum on stock ledger at bank, Inadmissible in evidence. Estoppel by let- ters question for the jury. Rankin v. Fidel- ity Ins., Trust & Safe Deposit Co., 189 U. S. 242, 23 S. Ct. 553, 47 Law. Ed. 792. 29. Even though he alleges that he holds the stock as trustee. Hampton v. Foster, 127 F. 468. 30. See 1 Curr. L. 299. 31. Rev. St. U. S. I 5242. Meyer v. First Nat. Bank [Idaho] 77 P. 334. 3 Cur. Law. BANKING AND FINANCE § 4. 415 national banks.'* As to whether or not a state may tax the stock of a national bank there is a conflict.'" In New Jersey a national bank cannot seek savings de- posits or attempt to compete with a savings' institution."* Usury by national hanks?^ — The right to recover twice the amount of usu- lious interest paid to a national bank is a right which survives,"' and is therefore in most states assignable/^ though the bank may relinquish the usurious part," and evade the penalty by a bona fide sale of the note."' A controversy respecting usurious interest paid to a national bank is governed by the Federal law, though the transaction violates the powers of such bank.*" The time the "usurious trans- action occurred," in contemplation of the statute, is the date of the payment of the usurious interest.*^ The bankruptcy of the person paying such usurious in- terest does not preclude him from recovering under the statute, after his dis- charge, where his trustee in bankruptcy did not reduce the claim to possession.''^ Usury is a defense to an action by the receiver,*" and it does not discharge the surety or guarantor on the debt.** § 4. Savings hanks.*^ — A savings bank is not a benevolent and charitable institution, within the meaning of taxation laws.*" 35. The jank having tendered taxes legal- ly due is not liable for the penalty for non- payment. First Nat. Bank v. Lampasas [Tex. Civ. App.] 78 S. W. 42. 33. A state cannot tax the stock of a na- tional bank, though the bank may render itself liable for taxes on its stock by offer- ing to pay it. First Nat. Bank v. Lampasas [Tex. Civ. App.] 78 S. W. 42. A state may levy a tax on the shares of stock of a na- tional bank. Construing Rev. St. 5 5210 (U. S. Comp. St. 1901, p. 3498). The national banking act and Kentucky Acts 1900, p. 65, o. 23. This tax may be levied by counties, cities, towns or taxing districts when au- thorized by the state. Commonwealth v. Citizens' Nat. Bank, 25 ICy. L. R. 2100, 80 S. W. 158. 34. P. L. 1876, p. 357. Barrett v. Bloom- field Sav. Inst.. 64 N. J. Bq. 425, 54 A. 543. .S."!. See 1 Curr. L. 300. 36. Lasater v. First Nat. Bank [Tex. Civ. App.] 72 S. W. 1054. 37. Action may be maintained by a part- ner who has purchased all Interest in a firm which has paid such usurious interest. Lasa- ter V. First Nat. Bank [Tex. Civ. App.] 72 S. W. 1054; Id., 96 Tex. 345, 72 S. W. 1057. WOTB. Assignability of claim for penalty! .\ cause of action against a national bank for ii.=;urious interest paid to it is not assignable. Lloyd V. First Nat. Bank, 6 Kan. App. 512, 47 P. 575; Pardee v. Iowa State Bank, 106 Iowa, 345, 76 N. "W. 800. — From note to Citi- zens' Nat. Bank v. Gentry [Ky.] 56 L. R. A. 673. 695. SS. NOTEj. Rigiit to relinqnisli iilegnl ex- cess. In Talbot v. First Nat. Bank, 185 U. S. 172, 22 S. Ct. 612, 46 Law. Ed. 857, the court says that although Interest greater than the legal rate may have been charged by a na- tional bank, such excess may be relinquished and recovery be had at the legal rate. — From note to Citizens' Nat. Bank v. Gentry [Ky.] 56 L. R. A. 673, 679. 39. NOTE}. B-raBion of penalty by banlc: A national bank may evade the penalty for taking usurious Interest by selling and dis- posing of the note In good faith, mere assign- ment nises nn presumption of an absolute sale. First Nat. Bank v. Mlltonberger, 33 Neb. 847, 51 N. W. 232. — From note to Citi- zens' Nat. Bank v. Gentry [Ky.] 66 L. R. A. 673, 681. 40. Interest paid on note, secured by a collateral note and mortgage, the latter exe- cuted in the name of the president but for the benefit of the bank, thus violating the law prohibiting a national bank from taking real estate security for a debt coincidently contracted. Schuyler Nat. Bank v. Gadsdon, 191 U. S. 451, 24 S. Ct. 129. 41. Rev. St. U. S. § 5198 [U. S. Comp. St. 1901, p. 3493], barring such actions after "two years from tlie time the usurious transaction occurred." Lasater v. First Nat. Bank [Tex. Civ. App.] 72 S. "W. 1054. 42. Lasater v. First Nat. Bank [Tex. Civ. App.] 72 S. W. 1054. 43. NOTJS. Availability of usury as a do- feuse: The defense of usury is available as a defense in an action by the receiver of the national bank. Hade v. McVay, 31 Ohio St. 231. But it should be kept in mind that the courts now generally hold that where the usurious interest has been actually paid it la not available as a defense, but only in a separate action to recover the penalty of twice the amount of interest paid. Childs v. Alexander, 22 S. C. 169, holds, that it is not available as a defense to a suit by the as- signee of the bank. — From note to Citizens' Nat. Bank v. Gentry [Ky.] 55 L. R. A. 673, 696. 44. NOTE. Does not AiBcllargc surety or Snarantori A surety or guarantor of a debt to a national bank is not discharged because the bank charged or received usury. Wiley V. Starbuck, 44 Ind. 298; First Nat. Bank v. McEntire, 112 Ga. 232, 37 S. E. 381: First Nat. Bank v. Garlinghouse, 22 Ohio St. 492, 10 Am. Rep. 751; Lazear v. Nat. Union Bank, 52 Md. 78, 36 Am. Rep. 355; Allen v. First Nat. Bank, 23 Ohio St. 97. — From note to Citi- zens' National Bank v. Gentry [Ky.] 60 L. R. A. 673, 679. 40. See 1 Curr. L. 300. 46. People V. Miller, 84 App. Div. lf.S, 82 N. Y. S. 621. 416 BANKING AND FINANCE § 4. 3 Cur. Law, Powers." — A savings bank may acquire title to shares of stock of another cor- poration, where they are taken in good faith in compromise or discharge of an insolvent debtor, and such action is for the best interest of the bank,*' and on thus becoming the owner of such stock, it is liable thereon as any other stockhold- er.** A savings bank is liable for breach of its contracts."" In some states other banks are not allowed to seek savings deposits."^ Savings banks are amenable to new laws.^^ Liabilities of directors.^' — The managers of a savings bank are holders of a public trust of a benevolent and charitable nature,"* as well as trustees for the depositors in their institution,"" and hence must act disinterestedly."" Rules." — By-laws and rules printed in the passbook of a savings bank deliv- ered to and accepted by the depositor, at the time he opens the account, constitute a contract between the parties."* Rules providing that the bank will endeavor to prevent fraud do not dispense with the exercise of ordinary care and diligence on the part of the bank ofBcials."" A by-law providing that the bank shall be dis- charged by payment to one haying the passbook is operative only during the life- time of the depositor."" A by-law providing that no depositor shall receive any part of his deposit without producing the original book, unless it be proved to the satisfaction of the trustees or treasurer that such book has been lost, cannot render the treasurer or trustees the final arbiter of the question of whether the book was lost, and thus oust the courts of their jurisdiction,"^ nor is the test the arbitrary decision of the treasurer or trustees, but the mind of a reasonable man.'^ Payments made to a person other than the rules designate axe made at the banFs peril. ^' A by-law of a savings bank restricting the transfer of stock is not bind- ing on a bona fide pledgee for value of the stock without notice thereof.** A sav- ings bank may become estopped to assert that a transaction was invalid under a by-law."" Reliance on passbooks.^" — The bank cannot rely exclusively upon the posses- 47. See 1 Curr. L. 300. 48, 49. HUl V. Shining [Neb.] 95 N. W. 24. 50. W^here a bank operates a savings de- partment In Its banking house, a claim for damages for breach of the bank's lease, on the bank's insolvency. Is chargeable pro rata against the assets of each department. Mc- Graw V. Union Trust Co. [Mich.] 98 N. W. 390. 51. P. L. 1899, p. 455, does not repeal P. L. 1876, p. 357. Barrett v. Bloomfleld Sav. Inst., 64 N. J. Bq. 425, 54 A. 543. 52. The Kansas banking law of 1891 su- perseded the savings bank act of 1868. West V. Topeka Sav. Bank, 66 Kan. 524, 72 P. 262. 53. See 1 Curr. L. 300. 54. 55. Barrett v. Bloomfleld Sav. Inst., 64 N. J. Eq. 425, 54 A. 543. 56. In dissolution proceedings they have no right to destroy the entity of the corpora- tion while transferring to themselves its good will. Barrett v. Bloomfleld Sav. Inst., 64 N. J. Bq. 425, 54 A. 543. 57. See 1 Curr. L. 301. 58. Ferguson v. Harlem Sav. Bank, 86 N. Y. S. 825. Rules as to payment of money. Kelley v. Buffalo Sav. Bank, 88 App. Div. 374, 84 N. Y. S. 642. 59. By-law that payment to persons hold- ing passbook would be payment to depositor, and that bank would endeavor to prevent fraud. Held, difference in signatures not easily discernible and bank not negligent. Kelley v. Buffalo Sav. Bank, 88 App. Div. 374, 84 N. Y. S. 642. Payment on forged sig- nature, held as all the rules of Identification •were exhausted, and as irregularities In sig- nature were slight, no negligence, and where this testimony was uncontradicted error to submit question of negligence to Jury. Fer- guson v. Harlem Sav. Bank, 86 N. Y. S. 825. 60. Payment after depositor's death to one having power of attorney from depositor and passbook from depositor, does not relieve bank. Hoffman v. Union Dime Sav. Inst., 41 Misc. 517, 85 N. Y. S. 16. 61, 62. Webber v. Cambrldgeport Sav. Bank [Mass.] 71 N. E. 567. 63. Rule declared that on death of depos- itor deposit should be paid to legal repre- sentatives. Bank paid It to one claiming as the donee of a gift causa mortis, bank held liable to the personal representative. Mahon V. South Brooklyn Sav. Inst., 175 N. Y. 69, 67 N. E. 118. Under a similar rule paid to one who held a power of attorney not knowing that depositor was dead, bank held liable. Hoffman v. Union Dime Sav. Inst., 41 Misc. 517, 85 N. Y. S. 16. 64. Just V. State Sav. Bank [Mich.] 94 N. W. 200. 65. Transfer of stock without consent of directors, new owner being elected to the board of directors and recognized as such officer. Just v. State Sav. Bank [Mich.] 94 N. W. 200. 66. See 1 Curr. L. 301. 3 Cur. Law, BANKING AND FINANCE § 6. 417 sion of the passbook, and even where a rule provides that payment to the holder of the passbook will discharge the bank, the officials of the bank are bound to ex- ercise ordinary care and diligence."' Deposits and repayment^^ — The depositors in a savings bank occupy a double relation to the corporation as such; in case of insolvency they are creditors of the corporation,'" in other cases they are partners or stockholders,"" in all they are the cestuis que trustent of the managers.'^ Where two persons jointly own a deposit in a savings bank the title to the whole fund vests in the survivor,^'' and it is im- material whether or not such survivor has ever had the passbook in his possession.''* § 5. Loan, investment, and trust companies.''* — The company must receive its charter under a constitutional act.'" The contract of a loan, trust, and guar- antee company is not ultra vires merely because failure to exercise the ordinary care required of every trustee may subject it to an indemnity payment wholly dis- proportionate to its compensation.'" And such a company holding as trustee, and rating securities at their actual worth, is not a guarantor of the actual worth of the securities.'' A suit against an insolvent debenture company may be in- stituted by one or more debenture holders in behalf of all holders, their interest being joint,'* and they may maintain a suit against it to prevent the wasting of its assets, though the debentures have not matured." § 6. Deposits and repayment thereof; checks, drafts, certificates, receipts, credits.^" Deposits may be received from a gambler with reason to believe that the money was won in gaming or by other questionable means; but the bank crosses the line of permissibility when, with a knowledge that such depositor is obtaining the money by fraud or theft, it does acts in aid of the vraongful means by which the money is obtained.*'^ It may rightfully receive deposits from an agent of an insolvent principal, the latter having committed an act of bankruptcy upon which he is subsequently adjudged a bankrupt.^^ Relation of hanker and depositor.^^ — The relation of banker and depositor is that of debtor and creditor,^* the banker's liability being discharged by payment.^" He cannot repudiate this obligation by showing that the name of the depositor was that of something having no legal existence." Money being deposited in a 67. Kelley v. Buffalo Sav. Bank, 88 App. Div. 374, 84 N. T. S. 642; Ferg-uson v. Harlem Sav-. Bank, 86 N. T. S. 825. See "Rules," supra. 68. See 1 Curr. L. 301. 69. One must here keep In mind the dla- tinotlon between the corporate entity of a savings bank and its managers. Barrett v. BlQotnfield Sav. Inst., 64 N. J. Eq. 425, 54 A. 54S. 70. 71. Barrett v. Bloomfield Sav. Inst., 64 N. J. Bq. 425, 54 A. 543. 72, 73. Farrelly v. Emigrant Industrial Sav. Bank, 92 App. Div. 529, 87 N. Y. S. 54. 74. See 1 Curr. L. 302. 75. Act 1898, p. 78, authorizing the secre- tary of state to grant charters to trust conl»- panles with banking privileges Is not uncon- stitutional. Mulherin v. Kennedy [Ga.} 48 S. B. 437. 76. Smith V. Bank of New England [N. H.] 54 A. 385. 77. Stocks, etc., held as security for cer- tificates of deposit issued by another trust company. Smith v. Bank of New England [N. H.] 54 A. S85. 78. To prevent oflloer of company from ob- taining possession of guaranty fund. Chrts- 3 Curr. Law — ^27 tlan V. Michigan Debenture Co. [Mich.] 96 N. W. 22. 79. Christian v. Michigan Debenture Co. [Mich.] 96 N. W. 22. 80. See 1 Curr. D. 302. 81. Wright V. Stewart, 130 P. 905. 82. Interstate Nat. Bank v. Claxton [Tex.1 80 S. W. 604. 83. See 1 Curr. D. 302. 84. First Nat. Bank v. City Nat. Bank, 102 Mo. App. 35T, T6 S. W. 489. Not a bailment. Arnold v. Sedalla Nat. Bank, 100 Mo. App. 474, 74 S. "W. 1038; Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. E. 215. Garnishment. IJeposit by principal for use of his agent. Principal a debtor of bank. Curtia v. Parker & Co., 136 Ala. 217, 33 So. 935. 85. By becoming dissatisfied with delay In returning signature card, and the fact that deposit was to be Immediately withdrawn, the nature of the contract is not changed, so as to discharge it from liability by return- ing it to person unauthorized to receive same. Heath V. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. E. 215. 86. That a partnership was Illegal being" formed between an individual and a corpora- _418 BANKING AND FINANCE § 6. 3 Cur. Law. bank for the benefit of another, who is notified thereof by the bank^ the relation between such person and the bank is that of depositor and banker.*^ A bank de- livering a check to the payee at the request of the drawer "all charges to be paid by the payee" is, as to the drawer, a gratuitous bailee.*' Under an agi-eement to collect upon collateralSj deposited with it as securit}', and hold the proceeds for the benefit of another, a bank may be compelled to turn over the excess over the amount necessary to protect it, its liability for which the collateral was deposited as security not having ended.°° In Oklahoma the remedy of an unsecured creditor against a bank which hypothecates his notes and credits •as collateral for a loan is an action under the Code, not a suit in equity. °'' Evidence of deposit.^^ — A passbook being sent to the bank to be written up and returned, it is in effect a demand on the part of the depositor to Imow what the bank claims to be a statement of his account, and a return of the book with the vouchers is an answer to that demand,^'' and, no objection being made by the de- positor, it becomes in effect an account stated,'^ which most courts hold must be ex- amined by the depositor within a reasonable time, and if incorrect, repudiated, fail- ure to do so working an estoppel,"* though this account stated may be questioned for fraud or mistake; the burden of proving such fraud or mistake clearly and satis- factorily resting upon the complainant.'" A depositor is not bound to examine his bank book to discover whether the cashier has made a mistake in counting the amount of the deposit,"" the contrary, however, being held, it seems that the de- positor is not estopped to controvert the entry unless the bank is shown to have been prejudiced by his neglect to make such examination."' Whether or not an account is the depositor's individual account depends upon the circumstances of each case."* Letters of credit. — One has no claim against the writer of a letter of credit imless he knew of its existence, and advanced his money on the faith of it."" The writer of a letter of credit cannot apply checks, cashed by one bank without any knowledge of the existence of the letter of credit, to the extinguishment of the amount named in the letter as against another bank subsequently cashing the bear- er's checks on the faith of it.^ Repayment of deposits.^ — A bank is bound to honor checks drawn on it by a depositor if it has sufficient funds belonging to the depositor when the check is presented, and the funds are not subject to any lien or claim,' or right of set-ofE in favor of the bank,* but the depositor being solvent the bank is liable, though tion. And this estoppel is not terminated by the individual partner's debt. VSrilley v. Grocker-Woolworth Nat. Bank [Cal.] 72 P. S32. 87. Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. E. 215. 88. King V. Exchange Bank [Mo. App.] 78 S. W. 1038. 80. Mercantile Nat. Bank v. Peabody [Colo. App.] 72 P. 611. 90. Code Civ. Proe. §§ 518-520, c. 66, St. 1893. Overstreet v. Citizens' Bank, 12 Okl. 383, 72 P. 379. 91. See 1 Curr. L,. 302. 93. Scanlon-Gipson Lumber Co. v. Ger- mania Bank, 90 Minn. 478. 97 N. W. 380. 93. Farry v. Farmers' & Mechanics' Bank [N. J. Bq.] 58 A. 305. »4. Scanlon-Gipson Lumber Co. v. Ger- manla Bank, 90 Minn. 478, 97 N. W. 380; Hennessy Bros. & Evans Co. v. Memphis Nat. Bank [C. C. A.] 129 F. 557. 95. Evidence held insufficient to show fraud. Parry v. Farmers' & Mechanics' Bank [N. J. Eq.] 68 A. 305. 96. Evidence held sufficient to show a de- mand. Kemble v. National Bank of Rondout, 88 N. T. S. 246. On the question as to whether a bill deposited with a bank was a $100 gold certificate or a $1,000 greenback, the fact that within li^ hours of the time of the deposit the depositor had received a $1,000 greenback and a $500 gold certificate is relevant. Id. 97. Kemble v. National Bank of Rondout, 88 N. Y. S. 246. 98. Whether deposits belonged to depos- itor or firm. Bank of Salem v. Shrimpton [Neb.] 96 N. W. 1002. 99. 1. Bank of Seneca v. First Nat. Bank [Mo. App.] 78 S. "Vf. 1092. a. See 1 Curr. L. 303. 3. Wiley v. Bunker Hill Nat. Bank. 183 Mass. 495, 67 N. E. 655; Brown v. Schintz, 202 111. 509, 67 N. E. 172. 4. Depositor was insolvent. Owen v. 3 Cur. Law. BANKING AND FINANCE § 6. 419 the funds have been set off by the bank against past due claims, no notice thereof having been given the depositor/ and the bank is obliged to honor the checks of its depositor even though he holds the money in a fiduciary capacity, it incurring no liability in so doing as long as it does not participate in any misapplication of funds or breach of trust,* though the conduct or course of dealing of the depositor may charge the bank with notice that he is violating his trust.'' For its refusal or neglect to honor the depositor's check the bank may be sued either for conver- sion or for money had and received.* The statute of limitations runs againist this right.' The check should be paid in money.^" The deposit should be repaid to the true owner, and where the bank has sufficient knowledge to put it on inquiry that the depositor is not the trxic owner, it is liable for permitting it to be applied otherwise.^^ As between the parties every legal presumption is in favor of the personal ovraership of the fund by the depositor,^'' hence the addition of the word "administrator" to the depositor's individual name has been held not to be notice to the bank that the fund was held in a fiduciary capacity.^^ A deposit of money in a bank by a third person to the credit of another does not show ownership in the latter in the absence of a showing of acceptance, or a presumption of accept- ' ^* Suit by an assignee of such third person for the benefit of his creditors is ance.' not an acceptance by the assignor of the benefit of such deposit,^^ nor is a letter by such an assignee to the banlc that his assignor had funds in the bank evidence, in an action against the bank by the assignee, that the assignor owned the funds.'? Such a deposit being for the benefit of the third party, it will be presumed to have been ac- cepted by him,'' but this is not true where the presumption would establish an un- lawful act, or participation in an unlawful act.'* When, in the absence of fraud, a genuine check is presented to a bank and received as a deposit, the legal effect is that the check is paid,'* and this effect does not depend upon there being cash enough in the bank the moment the check is pre- sented to pay it,^" nor on the financial condition of the bank as shown on a settle- ment of its affairs after insolvency.^' The check being so presented, the bank be- comes the owner thereof.^'' Where a bank accepts the check of a depositor, and puts it to the credit of another depositor, it is equivalent to a payment in cash to such second depositor of the amount of the check, ''^ and the bank cannot recover from him the amount thereof on discovering that it in reality had no funds of the drawer." A bank paying a cheek presented by a bona fide holder American Nat. Bank [Tex. Civ. App.] 81 S. W. 9-88. 5. Callahan v. Bank of Anderson [S. C] 48 S. B. 293. 8v 7. Intisrstate Nat. Bank v. Claxton [Tex.] 80 S. W. 604. S. York V. Farmers' Bank [Mo. App.] 79 S. W. 968. 9. It seems to have been held that the statute of limitations runs against the cause of action against stockholders for indebted- ness to a depositor from the time of deposit, and the transfer of such deposit by check to the savings department of the bank does not interrupt the running of such statute. Jones V. Goldtree Bros. Co. [Cal.] 77 P. 939. 10. It is not authorized to pay it in evi- dences of indebtedness held by it against the agent of the depositor. Goshorn v. People's Nat. Bank [Ind. App.] 69 N. B. 185. 11. Depositor was insolvent. Interstate Nat. Bank v. Claxton [Tex. Civ. App.] 77 S. W. 44. See 1 Curr. D. 303. 12. Sparrow v. State Bxoh. Bank [Mo. App.] 77 S. W. 168. 13. Sparrow v. State Bxch. 5ank [Mo. App.] 77 S. W. 168. The United States su- preme court and many state courts have held contra to above. See Bank v. Insurance Co., 104 U. S. 54, 26 Law. Ed. 693. 14, 15, le, 17, IS. Leach v. First Nat. Bank, 09 Mo. App. 681, 74 S. W. 416. 19. Check presented by payee as a de- posit. Montgoraei-y County v. Cocliran [C. C. A.] 126 F. 456. 20, 21. Montgomery County v. Cochran [C. C. A.] 126 F. 456. 22. It being forwarded for collection to the drawee the original payee cannot recover from the drawee who pays it by mistake aft- er it has been countermanded. National Bank of New Jersey v. Berrall [N. J. Err. & App.] 58 A. 189. 23. Bryan v. First Nat. Bank, 205 Pa. 7, 64 A. 480. 24. Bank had on its books funds of drawer to meet the checks, but in reality, owing to later dishonor of certain checks, had no mon- ey of his. Bryan v. First National Bank. 205 Pa. 7, 54 A. 480. 430 BANKING AND FINANCE § 6. 3 Cur. Law. in the usual course of business, it cannot afterward recover back the money as paid by mistake, on the ground that payment of the check had been countermanded by the drawer.^"^ A bank may rely on the solvency of the drawer of a draft de- posited on his account with it, and if not paid by the drawee may charge it back.^° Whether or not a note or check has been paid often depends upon the circum- stances surrounding the transaction."^ The drawing and delivery of a check on a bank deposit operates as an assignment of so much of the deposit as is called for by the check,^* but it must be drawn upon a particular fund and be accepted by the bank."^ Where, by a bond given by order of court, a bank agrees to pay the de- posit of a receiver upon demand, it is not relieved from liability to do so by an agreement with the receiver whereby the latter agrees to leave the deposit for a specified time.'" A depositor, on accounting with the bank, is entitled to the benefit of a deposit made by a bank official for the specific purpose of paying over- drafts occasioned by his misappropriation of the depositor's money.^^ Overdrafts. — ^An overdraft allowed by a bank is a note due on demand and may be sued on as such,'^ and the same is true of a note given, payable on demand,- to cover it, to the extent that the overdraft is thereby segregated from the ac- count." An overdraft draws interest from the date of demand or adjustment.'* Forged or altered checks and drafts.^^ — A bank paying a check to one pre- senting it under a forged indorsement may recover back the amount if it proceed with due diligence,"" and may recover of an indorsee upon proof that a prior in- iS5. National Bank of New Jersey v. Ber- rall [N. J. Err. & App.] 58 A. 189. 26. Hendley v. Globe Refinery Co. [Mo. App.: 79 S. W. 1163. 27. Where on the maturity of a note, of one of its depositors, sent to a bank for col- lection, the cashier drew his check In favor of the payee for the amount of the note, made a memorandum thereof on a block, wrote on the face of the note In the bank's name that It waa paid, and perforated It and put in the flies, and was then notified of the maker's insolvency, held, the note was already paid, nothing remaining besides en- tries of records on the books, but to remit the proceeds. Nineteenth Ward Bank v. First Nat. Bank, 184 Mass. 49, 67 N. Si. 670. as. Brown v. Schlntz, 202 111. 509, 67 N. B. 172. 29. Revlere v. Chambliss tGa.] 48 S. E 122. Where bank answered a telegram, asking if the drawer had money in the bank, in the afilrmative, held an assignment. New Tork Life Ins. Co. v. Patterson & Wallace [Tex. Civ. App.] 80 S. W. 1058. 30. Scott V. Whipple, 119 Ga. 486, 46 S. B. 663. 81. Van Buren County Sav. Bank v. Stir- ling Woolen Mills [Iowa] 94 N. W. 946. 32, 33, 34. Hennessy Bros. & Evans Co. v. Memphis Nat. Bank [C. C. A.] 129 P. 667. 35. See 1 Curr. Ij. 303. 36. In this case trust company guaranteed former Indorsements, one of which was forged, held bank could recover from trust company and the latter from the person to whom the money was paid. Second Nat. Bank v. Guarantee Trust & Safe Deposit Co., 206 Pa. 616, 66 A. 72. note:. Recovery by one paying a forged checki To entitle the payor to recover up- on a forged Instrument It must appear that he has sustained a loss, and if he being a banker, can charge the payment to the ac- count of the depositor, he has lost nothing. and has no cause of action. Land Title & Trust Co. V. Northwestern Nat. Bank, 196 Pa. 230, 46 A. 420, 79 Am. St. Rep. 717. The payor upon discovering the forgery must promptly give notice to the person to whom the check was paid in order to recover from him. U. S. V. Clinton Nat. Bank, 28 F. 367. Reasonable diligence only is required. Schroeder v. Harvey, 76 111. 63>; National Bank v. Bangs, 106 Mass. 441, 8 Am. Rep. 349. — From note to First Nat. Bank v. City Nat. Bank [Mass.] 94 Am. St. Rep. 637, 644. As between banks the same rules apply and the money paid may be recovered pro- vided that the bank paid is In no worse position than if payment had been refused. First Nat. Bank v. First Nat. Bank, 4 Ind. App. 355, 30 N. B. 808, 51 Am. St. Rep. 221. There is a line of cases In oonfiict with the above principles holding. In effect, that a banker or other payee upon whom a forged check has been drawn cannot upon the dis- covery of a forged indorsement thereon, re- cover the amount from an Innocent and bona fide holder for value to whom he has paid it. Price V. Neal, 3 Burr. 1354; First Nat Bank v. Marshalltown State Bank, 107 Iowa, 327, 77 N. "W. 1045; Deposit Bank v. Fayette Nat. Bank, 90 Ky. 10, 13 S. W. 339; Commercial Bank v. First Nat. Bank, 30 Md. 11, 96 Am. Dec. 654; Neal v. Coburn, 92 Me. 139, 42 A. 348, 69 Am. St. Rep. 495; Germania Bank v. Boutell, 60 Minn. 192, 62 N. W. 327, 61 Am. St. Rep. 619; National Bank v. Grocers' Nat. Bank, 2 Daly [N. T.] 289; Salt Springs Bank V. Syracuse Sav. Bank, 62 Barb. [N. T.] 101; Iron City Bank v. Peyton [Tex. Civ. App.] 39 S. W. 660; Bank of St. Albans v. Farmers' Bank, 10 Vt. 141, 33 Am. Deo. 188. The drawer of a check cannot maintain an action against one who collects it on a forged in- dorsement from the bank on which It was drawn, although the bank paying the check may. Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Pa. 230, 46 A. 420, 79 Am St 3 Cur. Law. BANKING AND FINANCE 8 6. 421 dorsement is forged,'^ the burden of proving the forged character of the instru- ment being on the bank.'* It is liable for money paid to an indorsee, where it has knowledge that such indorsement was procured by fraud.'' One depositing money in the name of another, representing himself to be such other person, the bank is not liable to him for money drawn out by such other person,*" nor can one indorsing to an impostor recover from the bank when compelled to pay the real claimant.*^ The fact that the malier of a check is mistaken as to the identity of the payee will not allow him to recover from a bank, paying the check on said payee's indorsement, on the ground that the indorsement was forged.*^ In Massa- chusetts a bank is not bound to know the signatures of its patrons.*' A bank is not liable for payments made upon a check altered by an agent within the ap- parent scope of his authority.** A depositor is not estopped to charge the bank with forged checks, if he has used ordinary care in the examination of his pass- book and returned checks, and failed to discover the forged checks and to give notice thereof,*^ and where the examination is entrusted to a clerk he is only bound to use ordinary care in the selection of the clerk.*" If the bank is negli- gent in paying the checks, the depositor is not estopped by his failure to make any examination.*^ What is a reasonable time in which a depositor should ex- amine his passbook, after it has been balanced and returned to him with the can- celed vouchers, is a question of law.*' A bank on which a check is drawn, on taking it up in the clearing house properly indorsed, is presumed to have acted in good faith.*' A bank taking a "raised" check for collection and indorsing it so as to convey no representation of ownership, the check being paid by the drawee, and by the collecting bank to the payee, the collecting bank is not liable to the drawee."" A bank falsely asserting that a signature is genuine is liable in an ac- tion for deceit."^ Bep. 717. — From note to First Nat. Bank v. City Nat. Bank [Mass.] 94 Am. St. Rep. 637, 644. 37. Egner v. Corn Exch. Bank, 86 N. T. S. 107. 38. Action by bank to recover from anotli- er bank the amount of checks paid by the former to the latter through the clearing house, on the ground that the indorsements thereon were fraudulent and unauthorized. National Park Bank v. American Exch. Nat. Bank, 88 N. T. S. 271. 39. Certificate of deposit. Currey v. Jop- lin Sav. Bank, 100 Mo. App. 532, 74 S. "W. 1036. 40. Arkofsky v. State Sav. Bank [Minn.] 98 N. W. 326. 41. Hoffman v. American Exch. Nat. Bank [Neb.] 96 N. W. 112. 42. Maker of check given as the purchase price for horses bought of one B. thinking that B. was a man well known in business oirolea, whereas he was another man bear- ing the same name. Sherman v. Corn Exch. Bank, 91 App. Div. 84, 86 N. T. S. 341. 43. A Massachusetts bank cashed a forged check on a Minnesota bank and sent it to the Minnesota bank for collection. The Min- nesota bank paid It and on learning of the forgery brought action to recover the money so paid. Held, they could recover. First Nat. Bank v. City Nat. Bank, 182 Mass. 130, 65 N. B. 24. 44. Bookkeeper required to fill out and cash, but not sign, plaintiff's checks, held, any alteration in amount of check within his apparent authority and bank not liable. Champion Ice Mfg. & Cold Storage Co. v. American Bonding & Trust Co., 25 Ky. L. R. 239, 75 S. W. 197. 45, 46. Kenneth Inv. Co. v. National Bank of the Republic [Mo. App.] 77 S. W. 1002. 47. Such negligence may be shown by the fact that at a prior time the bank had cashed a check of plaintiff's, not signed by any one in authority, but simply plaintiff's name stamped with a rubber stamp, and this is so, though the money realized from that check was properly used. Kenneth Inv. Co. V. National Bank of the Republic [Mo. App.] 77 S. W. 1002. 48. Kenneth Inv. Co. v. National Bank of the Republic [Mo. App.] 77 S. W. 1002. Ten days cannot be arbitrarily fixed as a reason- able time, but it is a reasonable time where the depositor resides in the same town or city in which the bank is located. Id. 49. Indorsement was by an unauthorized person. Wedge Mines Co. v. Denver Nat. Bank [Colo. App.] 73 P. 873. 50. Crooker-Woolworth Nat. Bank v. Ne- vada Bank, 139 Cal. 564, 73 P. 456. 51. Commercial Nat. Bank v. First Nat. Bank [Tex. Civ. App.] 77 S. W. 239. Evidence as to genuineness: Where a de- positor refused to pay a check on the ground that she never signed a check with her ini- tials, and an expert testified that the initials were not In her handwriting, and the cashier and another employe of the bank testified that they saw her sign It, and other experts testified the handwriting to be hers, a ver- dict finding that she did not sign the check' Is against the weight of the evidence. Peo- 433 BANKING AND FINANCE § 6. 3 Cur. Law. Checks drawn without authority. ^'^ — ^A bank is responsible to a depositor for payment of checks drawn on his fund without authority."' Several persons mak- ing a deposit to their joint credit, a cheek drawn thereon must be signed by all, or the bank pays it at its own risk."* A bank paying money on a check signed by one who claims to be the depositor's agent does so at its peril,^" and it is bound to take notice of the limitations of his authority,"* other than secret ones.°^ That the act was within the apparent scope of the agent's authority is no defense, where the bank had no knowledge of such agency nor acted upon the faith of it.°^ That one is agent for the purpose of depositing his principal's money, does not give him authority to check the deposit out."' Money being deposited by one in his own name with no notice express or implied to the bank of his being an agent, the bank is not liable to the owner for money paid out on the agent's individual cheek.*" A bank is liable for knowingly misappropriating the funds of a corporation de- positor to pay the individual debts of the latter's officers,*^ and when it knowingly allows the depositor of a trust fund to appropriate the same to the payment of his individual debt to the bank it can be compelled to refund the same.*^ Set-off of debts due banh against deposit.'^ — A bank has the right to apply so much of the funds of a depositor to the payment of his matured indebtedness to it as may be necessary to discharge the same."* The right of set-off does not exist until the maturity of the debt due the bank,"" unless the depositor be in- solvent."" Where the indebtedness to the bank does not mature until after the death of the depositor the right of set-off does not exist,"' though it has been held otherwise where the debt matured the day after the depositor's death."" A bank cannot, without the consent of the depositor, apply the latter's deposit to the pay- ment of a check or note upon which he is security or guarantor."" It is entitled pie's Sav. Bank & Trust Co. v. Keith, 136 Ala. 469, 34 So. 925. 52. See 1 Curr. L. 304. .">3. Husband drew checks on wife's depos- it, her separate property. Brown v. Daugh- erty, 120 F. 526. 64. Columbia Finance & Trust Co. v. First Nat. Bank, 25 Ky. L. R. 561. 76 S. W. 156. 55. Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. B. 215. Treas- urer of corporation. Van Buren County Sav. Bank v. Stirling Woolen Mills [Iowa] 94 N. W. 945; Jackson Paper Mfg. Co. v. Commer- cial Nat. Bank, 199 III. 151, 65 N. E. 136, 59 L.. R. A. 657. But where no damage results to the prin- cipal it is damnum absque injuria. New York Brick & Paving Co. v. Bronx Borough Bank, 42 Misc. 31, 85 N. T. S. 557. A clerk having no authority from custom or usage to Indorse his employer's checks, the latter may deny the validity of the Indorsement as against a bank paying the check. Rosenberg V. Germanla Bank, 88 N. T. S. 952. 56. Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 111. 151, 65 N. B. 136, 59 L. R. A. 657. A bank receiving deposits In the name of an individual "and Co.," is put upon inquiry as to whether It Is the deposit of the individual or of a partnership. Willey V. Crooker-Woolworth Nat. Bank [Cal.] 72 P. 832. 57. The fact that checks always bore the agent's indorsement is not notice that he could indorse for collection only. Wedge Mines Co. v. Denver Nat. Bank [Colo. App.] 73 P. S73. 58. Husband as agent for wife. Brown v. Daugherty, 120 P. 526. 50. Heath v. New Bedford Safe Deposit & Trust Co.. 1S4 Mass. 481, 69 N. E. 215. CO. Martin v. Kansas Nat. Bank, 66 Kan. 655, 72 P. 218. 61. Officers of corporation drew check, on corporation's funds in defendant's bank, payable to defendant, defendant credited amount of same on individual debts of ofB- cers. Kelsey v. Bank of Mansfield, 85 App. Div. 334, 83 N. Y. S. 281. ea. Columbia Finance & Trust Co. V. First Nat. Bank, 25 Ky. L. R. 561, 7« S. W. 156. 63. The right of set-ofC Is sometimes termed the 'TDanker's lien on deposits." Sharp V. Citizens' Bank of Stanton [Neb.] 98 N. W. 60. See 1 Curr. L. 305. 64. Sparrow v. State Bxch. Bank [Mo. App.] 77 S. W. 168. 65. Sharp v. Citizens' Bank of Stanton [Neb.] 98 N. W. 50. It is not entitled to an equitable set-off of unmatured notes of a depositor against its liability for damages for refusal to honor check, no bankruptcy or Insolvency proceedings having been insti- tuted against him at the time of the dishonor of his check. Wiley v. Bunker Hill Nat. Bank, 183 Mass. 495, 67 N. B. 655. 66. Owen v. American Nat. Bank [Tex. Civ. App.] 81 S. W. 988. 67. Sharp v. Citizens' Bank of Stanton [Neb.] 98 N. W. 50. 68. Little's Adm'r v. City Nat. Bank, 25 Ky. li. R. 8, 74 S. W. 699. 69. O'Grady v. Stotts City Bank [Mo. App.] 80 S. W. 696. 3 Cur. Law. BANKING AND FINANCE § 6. 423 to set off an insolvent corporation's deposit against the corporation's indebted- ness to it.'"' The fact that money is deposited in a firm name, the bank under- standing it to be the depositor's individual account,, does not destrpy the bank's right to set off the individual's note against such accounf^ A bapk receiving a check, with a general indorsement in blank, for collection, and forwarding it with a like indorsement to its correspondent for collection, the latter is entitled to set off the proceeds as against the debt of the forwarding bank.^* A bank cannot know- ingly set off a deposit held by the depositor in a fiduciary capacity against the individual debt of the depositor due it.''^ A bank having no notice that a deposit is a specific one is entitled to apply it to the depositor's overdrafts.'* A bank cannot be held to account to the owner of a fund which has been deposited by an agent in his own name and applied upon the agent's overdraft, the bank having no knowledge of the agency.'" The fact that a bank is a preferred creditor of an insolvent does not authorize it to set off deposits made by the insolvent's assignee, as assignee, against its preferred claim.'" A court has no power to summarily direct a bank to pay over to the receiver of a corporation the amount of the cor- poration's deposit in said bank, pending the determination of the right of the bank to set off such deposit against the corporation's indebtedness to it.'' The right of set-off passes to the bank's assignee of the debt and account.'" The right of a bank to a set-off will not be required by law, in the absence of express agree- ment or appropriation, so as to benefit -a surety.'* Deposits received after insolvency.^ — A bank discounting drafts when in- solvent, to the knowledge of its ofBcers, the drawer of the drafts may either de- mand and sue for them, or ratify the contract and prove his debt against the bank.'^ General deposits. — Where the money deposited is mingled with other money of the bank, and the entire amount forms a single fund, from which depositors are paid, it is a general deposit.^^ Every deposit is presumed to be general.'' Money deposited ia a bank to the credit of a pledgee of chattels in order to re- lease the goods is a general deposit though the facts were known to the bank offi- cials." Special deposits.^^ — A special deposit is created where the inoney is left for safe keeping and the identical money is returned to the depositor.'" A deposit of money paid into court, under a statute requiring the cashier of the bank to issue 70. Wheaton v. Dally Tel. Co. [C- C. A.] 1S4 F. 61. 71. Even though by secret agreement ho has a partner in the firm business. Wllley v. Crocker -Woolworth Nat. Bank, 141 Cal. 608, 75 P. 106. 72. Continental Nat. Bank v. First Nat. Bank [Miss.] 36 So. 189. 73. Sparrow v. State Bxch. Bank [Mo. App.] 77 S. W. 168; Interstate Nat. Bank v. Claxton [Tex.] 80 S. "W. 604. 74. First Nat. Bank v. City Nat. Bank, 102 Mo. App. 357, 76 S. W. 489. 75. Kimmel v. Bean [Kan.] 75 P. 1118. 76. Johnston v. Green [Va.] 46 S. B. 388. 77. Wheaton v. Daily Tel. Co. [C. C. A.] 124 F. 61. 78. Right to set off individual's note against account kept in firm name. Willey V. Crocker-Woolworth Nat. Bank, 141 Cal. 508, 75 P. 106. 79. Camp V. First Nat. Bank [Fla.] 83 So. 241. See 1 Curr. L. 305. 80. See 1 Curr. L. 306. 81. He cannot do both. Where he brought an action to recover the amount of the drafts and garnished the drawee who had accepted them, such action constituted an election to affirm the contract and he could not recover on the ground that they had been obtained by the bank by fraud. Davis v. Butters Lumber Co., 132 N. C. 233, 43 S. B. 650. 82. A general deposit differs from a loan in that the money is left with the bank for safe-keeping subject to order and payable, not in the specific money deposited, but in an equal sum. Ofllcer v. Officer, 120 Iowa 389, 94 N. W. 947. 83. Officer V. Officer, 120 Iowa, 389, 94 N W. 947. 84. No special instructions were given. Attempt to secure priority over general cred- itors. Schofleld Mfg. Co. v. Cochran [Ga 1 47 S. B. 208. 85. See 1 Curr. L. 305. 66. Officer v. Officer, 120 Iowa, 389 94 N W. 947. 424 BANKING AND FINANCE § 6. 3 Cur. Law. a statement that the money is actually deposited in the bank and not mingled with any other funds, does not create a special deposit.'^ Specific deposits.^^ — ^A specific deposit exists where money or property is given to the bank for some specific and particular purpose.^* The burden is on the depositor to show that a bank has notice that a deposit is a specific one.*" Trust funds.^'^ — A bank knowing that deposits are trust funds it cannot ap- propriate them to the payment of an individual debt due it from the depositor.'^ The deposit of money by a trustee in his own name, and without notice to the bank of the trust, does not render the deposit a trust fund in the hands of the bank.*' That funds collected by a bank on a note sent it for collection are used in its own business is insufScient, upon its insolvency, to impress a fund realized by its re- ceiver, by converting its assets into cash, with a trust for the pajrment of the money so collected and used.** The depositary of a trust fund is not entitled to retain the same where it has parted with no consideration and has acquired no rights,*" although such deposit was made by an agent or trustee and until demand by the owner the depositary had no notice of its real character.*" A principal has a right, as against the agent and bank, to his funds deposited by an agent in his name, though such funds are mingled with the agent's.*' The fact that the deposit is public money does not make the deposit a trust fund.*' Slander of credit or damages for failure to pay checks.^^ — Damages for re- fusal to pay a check when the drawer has sufficient funds on hand are the natural and reasonable consequences arising therefrom.^ Substantial' and special dam- ages if properly alleged,' may be recovered. Where the refusal is due to the mis- take of a clerk, in the absence of proof of special damages, nominal damages only can be recovered.* Actions to recover deposits. Parties." — In some states the holder of an unac- cepted check may sue thereon,^ and the fact that the bank claims not to have had the money on hand when a check was drawn on it does not take the case out of the rule.'' In others,* and in the Federal courts,* he cannot maintain such a suit. In 87. Comp. La-ws, §5 *20, 424. Eetan ▼. Union Trust Co. [Mich.] 95 N. W. 1006. 88. See 1 Curr. L. 305. 89. Note for coUeotlon, money to pay a particular note, etc. Officer v. Officer, 120 Iowa, 389, 94 N. -W. 947. 90. First Nat. Bank v. City Nat. Bank, 102 Mo. App. 357, 76 S. W. 489. »1. See 1 Curr. L. 305, n. 39-43. 92. State Bank of St. Johns v. McCabe [Mich.] 98 N. W. 20. See 1 Curr. L. 305. See, also, "Set-oft of debts due bank against deposit," supra. 93. Deposit by an attorney of client's money. Rhinehart v. New Madrid Banking Co., 99 Mo. App. 381, 73 S. W. 315. And the fact that when the cestui que trust withdrew a portion on the depositor's check, she told the bank that a part of the rest was hers, does not entitle her to a money Judgment In a suit at law against the bank. Id. 94. Ober & Sons v. Cochran, 118 Ga. 396, 45 S. E. 382. 95. 96. Union Stockyards Nat. Bank v. Campbell [Neb.} 96 N, W. 608. 97. Assignee of principal as against cred- itors of the agent. Packer v. Crary, 121 Iowa, 388, 96 N. W. 870. 98. Public money deposited, with the un- derstanding that it shall draw interest, by the treasurer of the public board in a bank of which he Is the cashier but not a stock- holder does not constitute a trust fund so as to entitle such depositor to preferred pay- ments on the insolvency of the bank, under Pub. Act 1875, pp. 158, 159, No. 131, prohibit- ing public officers from commingling public moneys with other funds. Board of Educa- tion of City of Detroit v. Union Trust Co. [Mich.] 99 N. "W. 373. 99. See 1 Curr. I* 306. 1. W^iley V. Bunker Hill Nat. Bank, 183 Mass. 495, 67 N. E. 655. 2. Depositor, studying In strange city, through failure to honor checks lost the confidence of her Instructor, was delayed for two months in opening an art shop and Spent $2.86 in telegraphing. Held, verdict for $500 not excessive. American Nat. Bank v. Morey, 25 Ky. L. R. 2151, 80 S. W. 157. See O'Grady v. Stotts City Bank [Mo. App.] 80 S. W. 696, where the authorities are collect- ed by the Hon. Judge Bland. 3. "Wiley v. Bunker Hill Nat. Bank, 183 Mass. 495, 67 N. E. 65S. 4. Clark Co. v. Mt. Morris Bank, 85 App. DIv. 362, 83 N. T. S. 447. 5. See 1 Curr. L. 306. 6. Columbia Finance & Trust Co. v. First Nat. Bank, 25 Ky. L. R. 561, 76 S. W. 156; Bloom V. Winthrop State Bank, 121 Iowa, 101, 96 N. W. 733. 7. Columbia Finance & Trust Co. v. First Nat. Bank, 25 Ky. D. R. 561, 76 S. "W. 156. 3 Cur. Law, BANKING AND FINANCE § 6. 425 some states statutes provide for making all claimants for a deposit, who are not par- ties plaintiff, parties defendant.^" In some cases an adverse claimant may inter- plead." Defenses.^' — A bank on being sued by one other than the depositor should protect itself by depositing the money in court and asking a decision as to the ownership.^* A bank charging off the credit given 'a depositor for checks pre- sented and accepted, for the reason that the drawer failed to pay, cannot, in a suit for the credit given, defend on the ground that the checks were given for a gambling transaction.^* The statute of limitations does not begin to run against a bank on paper payable on demand until demand has been made.^^ An action ' by the receiver, in a Federal court, against a stockholder is not a bar to an action by said stockholder, as a depositor, against said receiver for the amount of his de- posit.^' Money being deposited without an agreement for interest, the depositor withdrawing the deposit without interest cannot afterwards recover interest thereon.^' Notes payable at bank.^^ — ^A note payable at a bank where the maker keeps his account is equivalent to a check drawn by him upon that bank, so far as re- spects the power and duty of the bank to pay it,^° but the bank may only treat it as such when the maker of the note has funds on deposit at the date of maturity.^" Certifications.^^ — By the certification of a check a bank becomes primarily lia- ble for its payment to any bona fide holder thereof;^'' and must pay it to such a holder though notified by the maker that the check has been lost,^^ the drawer being released from liability." The amount of a certified check, in the absence of fraud, is as much, drawn from the depositor's account as if the money had been paid,^" but the holder of such cheek, being paid, repaying the amount on being 8. Bryan v. First Nat. Bank, 205 Pa. 7, 54 A. 480. Unaccepted check. New York Life Ins. Co. V. Patterson [Tex. Civ. App.] 80 S. W. 1058; National Bank of New Jersey v. Berrall [N. J. Err. & App.] 58 A. 189. 9. Can maintain neither an action at law nor a suit in equity, the check being held not to be an assignment pro tanto, even in equity, as between the maker and payee, of the indebtedness owing by the bank upon which the check has been drawn. First Nat. Bank v. Selden [C. C. A.] 120 F. 212. 10. New York: Under Laws 1892, p. 1896, c. 689, § 115, providing for the making of all claimants, for a deposit In a savings bank, who are not parties plaintiff, parties defendant. Where a deposit is claimed by one as a gift, the depositor's administrator should be made a party defendant. Answer- ing does not affect the bank's right to this relief. Quinn v. Bank for Sav. of New York, 86 N. Y. S. 285. 11. note:. Interpleading conflicting claims to moneys deposited: The right to interplead such adverse claimants exists in favor of a bank whether It be a savings bank or bank of exchange. The elements of a case for in- terpleader must be present, and hence if the bank denies any part of the demand of either claimant, Interpleader will not He. An ob- jection that the bank is a bailee, hence not entitled to interplead, has not been sus- tained. City Bank v. Skelton, 2 Blatchf. 14, Fed. Cas. 2,739. See cases collected In note to Connecticut Mut. Life Co. v. Tucker CR. !•] 91 Am. St. Rep. 590, 608. 12. See 1 Curr. L. 307. 13. Arnold V. Sedalia Nat. Bank, 100 Mo. App. 474, 74 S. W. 1038. 14. Bryan v. First Nat. Bank, 205 Pa. 7, 54 A. 480. 15. Certificate of deposit payable on de- mand. Sharp V. Citizens' Bank of Stanton [Neb.] 98 N. W. 50. 16. "Where the receiver defends such ac- tion on the ground that part of said deposit was used to pay plaintiff's subscription to the capital stock of said bank, the burden of proof is upon the receiver to show that the purchase of stock was actually made. Som- erset Nat. Banking Co.'s Receiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125. 17. Payment of money was refused on demand but subsequently allowed. Arnold V. Sedalia Nat. Bank, 100 Mo. App. 474, 74 S. W. 1038. 18. See 1 Curr. L. 307. 19. Nineteenth Ward Bank v. First Nat. Bank, 184 Mass. 49, 67 N. E. 670. 20. State Bank of St. Johns v. McCabe [Mich.] 98 N. W. 20. 21. See 1 Curr. L. 307. 22. Poess v. Twelfth Ward Bank, 86 N. Y. S. 857. Neg. Inst. Law, § 325. Meuer v. Phoenix Nat. Bank, 94 App. Dlv. 331, 88 N. Y. S. 83. 23. Poess V. Twelfth Ward Bank, 86 N. Y. S. 857; Hermann Furniture & Plumbers' Cab- inet Works V. German Exch. Bank, 87 N. Y. 3. 462. 24. Neg. Inst. Law, § 325. Meuer v. Phoe- nix Nat. Bank, 94 App. Dlv. 331, 88 N. Y. S. 83. 25. Central Guarantee Trust & Safe De- posit Co. V. White, 206 Pa. 611, 56 A. 76; Hermann Furniture & Plumbers' Cabinet Works V. German Exch. Bank, 87 N. Y. S. 462. 456 BANKING AND FINANCE 8 7. 3 Cur. Law. threatened with suit, cannot maintain an action against the bank on its certifica- tion.^" § 7. Loans and discounts. Advances against bills of lading." — ^A banlc agreeing to pay the check of a purchaser of goods for the purchase price thereof taking the bill of lading as security, upon so doing has a lien upon the goods for its advances.-' A bank agreeing to advance money to dealers to pay for goods purchased, taking the bills of lading as security, and the uniform course of busi- ness being for the dealers to sell the goods, and after the sales are made, receive the bills from the banlc, and on receiving payment to deposit the amount in the bank, upon a sale the bank cannot refuse to surrender the bills and recover the goods.-" Drafts with bills of lading attached. — A bank for value and without notice of fraud purchasing drafts with bills of lading attached from the consignor, said drafts being fully paid by the consignee, it is not liable to the latter for fraud per- petrated by the consignor in making out the bills of lading.^" A bank is liable for damages caused by failure to forward bill of lading with draft,'^ and for a failure to follow instructions.^^ § 8. Collections.^^ — rA collecting bank on drafts may make the drawee bank its agent for collection."'' A bank forwarding checks for collection under a gen- eral indorsement in blank, the title to such collection, as to third parties dealing without notice and not being put upon inquiry, passes to the bank to which they are forwarded, and the former becomes simply a general creditor of the latter bank.^° A bank forwarding drafts for collection under claim of ownership is pre- suined to be the owner/" though one receiving a draft endorsed, generally but ac- companied by an instruction that it is for "collection and credit" for the benefit of the drawer takes the draft in the capacity of a collecting agent,'' and has notice that the forwarding bank is not the owner thereof.'* A bank forwarding a draft to a bank who has a correspondent in the town where the draft is payable, the first bank not having an agent there, will be presumed to forward for collection.'" It is not presumed that a bank holding a local check drawn upon another- bank is the owner thereof except for collection.*" The forwarding bank making an as- signment and ceasing to do business before the draft is collected, the collecting Se. Poess V. Twelfth Ward Bank, 86 N. Y. S. 857. 37. See 1 Curr. L. 308. 2S, S». First Nat. Bank V. San Antonio & A. P. R. Co. [Tex. Civ. App.] 72 S. W. 1033. 30. Blalsdell, Jr., Co. v. Citizens' Nat. Bank [Tex.] 75 S. "W. 292. NOTE. I.Iablllty ot bank on drafts with bill of ladlns attaclied: A bank collecting a' araft drawn by the consignor of goods, with a bill of lading attached thereto, is not lia- ble to the consignee after his acceptance and payment of the draft, for a failure of title to the property described In the bill of lading, or for a breach of warranty as tO' the quality or quantity of the goods shipped, or for failure of consideration In whole or In part from any cause, between the con- signor and the consignee. Hall v. Keller, 64 Kan. 211, 67 P. 518, from note to this case in 91 Am. St. Rep. 209. 31. Carload of onions spoiled by delay. Stoner v. Zachary [Iowa] 97 N. W. 1098. 32. Instructions being to deliver the bill of lading only after payment of the draft, a delivery of the bill of lading before pay- ment of the draft renders the bank liable for the payment of the same. Gulf, etc., R. Co. V. North Tex. Grain Co. [Tex. Civ. App.] 74 S. W. 667. 33. See 1 Curr. L. 308. See post. Bank Collections of Forged Paper [Special Arti- cle]. 34. Drawee bank when acting as such agent must charge Indorsers. National Re- vere Bank v. National Bank of the Republic, 172 N. T. 102, 64 N. E. 799. 35. Continental Nat. Bank v. First Nat. Bank [Miss.] 36 So. 189. 36. National Revere Bank v. National Bank of the Republic, 172' N. T. 102, 64 N. E. 799. 37. Not as a purchaser. Josiah Morris & Co. V. Alabama Carbon Co. [Ala.] 36 So. 764. 38. Is not entitled to credit the proceeds against a debt of the forwarding bank upon the latter's failure. Josiah Morris & Co. v. Alabama Carbon Co. [Ala.] 36 So. 764. 30. Especially where the previous bU3lne."5S relations of the parties tends to support this conclusion. National Revere Bank v. Na- tional Bank of the Republic, 172 N. Y. 102, 64 N. B. 799. 40. "Raised" check. Crocker-Woolworth Nat. Bank v. Nevada Bank, 139 Cal. 564, 73 P. 456. 3 Cur. Law. BANKING AND FINANCE § 9. 427 bank's agency for the forwarding bank is terminated,*^ and the drawer may re- cover the amount stibsequently collected.*- A draft drawn in favor of the cashier of a bank, to enable the latter to collect the same and place the proceeds to the drawer's credit, does not divest the drawer's ownership of the debt for which the draft was drawn.*^ Duty to preserve' rights of parties.** — A collecting bank undertakes to collect and remit, or return draft.*" The measure of a collecting agent's duty is ordinary care and reasonable diligence.*" It must talce proper means to charge indorser if note not paid,*' and if this is not done it is liable if the drawer becomes insolvent,*' the amount depending upon the tatter's inability to collect from the maker,*' and in such an action the indorser will be presumed to have been solvent at the time of maturity of the note.'" It is liable to the drawer of a draft for damages sus- tained by the latter owing to the bank's failure to promptly return the draft after its nonpayment '^ A general custom will not excuse the exercise of this care,'^ and a particular custom in order to be binding on the one sending the draft for collection must have been actually known to him when he sent it.^' The collect- ing bank, in the absence of some special agreement, is liable for loss occasioned by a default of its agent for collection."* § 9. Offenses against hanhing laws; penalties. ^^ — A conspiracy to defraud a national bank by causing false entries to be made in the books thereof, by an officer of the bank, is an offense against the United States.^' The entry, by the cashier of a national bank on the books thereof, of a check which actually en- tered into a transaction of the bank as a "cash item" is not the making of a "false entry,""' although he knew the check to be worthless and fraudulent and made the entry with intent to deceive.^* Where a bank accepts checks not stamped as required by acts of congress it cannot later, in a suit in which they are involved, object to their being offered in evidence because they were unstamped."" Receipt of deposits when insolvent.^" — In Kansas directors are liable for de- posits received after insolvency, where they have failed to inquire into the affairs of the bank as required by statute, even though such an examination would not have revealed the insolvent conditioii of the bank.""^ 41, 42, 43. Joslah Morris & Co. v. Alabama Carbon Co. [Ala.] 36 So. 764. 44. See 1 Curr. L. 309. 45. National Revere Bank v. National Bank of the Republic, 172 N. T. 102, 64 N. B. 799. 46. Bank of Bay Bisoayne v. Monongahela Nat. Bank, 126 F. 436. 47. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. B. 799; Howard v. Bank of Metropolis, 88 N. T. S. 1070. 48. A bank received an Indorsed draft for collection which It forwarded to the drawee and received in payment drafts upon itself for which there was no money on deposit. It protested these drafts and forwarded them to the drawer of the original paper. In the meantime the drawee of the original draft became insolvent. National Revere Bank v. National Bank of the Republic, 172 N. T. 102, 64 N. E. 799. 49. Where maker died shortly after ma- turity of note his estate not having been administered on and there being evidence that the full amount of the note could not be collected therefrom, held payee need not prove insolvency. Howard v. Bank of Me- tropolis, 88 N. T. S. 1070. 50. National Revere Bank v. National Bank of the Republic, 172 N. T. 102, 64 N. E. 799. 51. Where at maturity and for a month thereafter, the drawee had property open to attachment to an amount larger than the draft, and before the draft was returned failed and made an assignment, held, dra"\v- er's daimages are not remote as a matter of law. Lord v. Hingham Nat. Bank [Mass.] 71 N. B. 312. It is evidently not the custom of banks to retain no protest Items after maturity. Id. 52, 53. Bank of Commerce v. Miller, 105 111. App. 224. 54. National Revere Bank v. National Bank of the Republic, 172 N. T. 102, 64 N. E. 799. 55. See 1 Curr. L. 310. 66. Indictable under Rev. St. § 5440. Scott V. U. S. [C. C. A.] 130 F. 429. 57. Within the meaning of Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497]. U. S. V. Young, 128 F. 111. 58. TJ. S. V. Young, 128 P. 111. 59. Bryan v. First Nat. Bank, 205 Pa. 7, 54 A. 480. 60. See Deposits received after Insolvency, supra. See 1 Curr. L. 310. 61. Gen. St. 1901, §§ 471, 472. Forbes v. Mohr rKan.1 76 P. 827. 488 BANK COLLECTIONS OF POEGED PAPBE. 3 Cur. Law. BANK COLLECTIONS OF FORGED OR ALTERED PAPER.* [Spbcial Akticlb.] What law governs. — The laws of the place of the performance of the imme- diate acts constituting the mistaken or wrongful payment of forged paper by a collecting bank govern its liability therefor to the true owner.^ Name of maker or drawee forged. — As a general rule, the drawee of a check or draft is charged with knowledge of the handwriting of its customer or correspond- ent, the drawer, and, if the drawee pays the paper, it must stand the loss if the paper was a forgery, and has passed into the hands of a bona fide purchaser.^ But this rule is not available to the payee, who took the check from a stranger without inquiry, though in good faith, and himself indorsed it, and thereby gave it cur- rency and credit; since the indorsement by the payee gives the paper the appear- ance of genuineness, and tends to divert the drawee from scrutiny and inquiry.' This modification of the general rule is of general application, and will relieve the drawee from liability to any party to the paper who has in any Way contributed to the success of the fraud, or to the mistake of fact under which the payment was made.* While it is true that the cashier is the general executive ofiieer of the bank 1. Reasoning by analogy from the rules determining what law governs the relation between the depositor and the collecting bank, see Selover, Bank Collections, § 6. In deciding the liability of a London bank which had a branch in Paris, where a forged instrument was paid, the court said: "Collec- tion' had to be obtained by acts done partly in Paris and partly in England, and as soon as the person carrying out these acts reached England, he came under English law, and anything done by him subsequently, if it amounted to a wrong, must be Justified, If at all, by English law. • • • If the in- dividual presented it for payment in Eng- land, and received payment there, he would by both those acts have committed what amounts to conversion in English law. Upon analysis it will be seen that those acts were done by the French bank, — it is immaterial whether by traveling to England or by means of third persons, — and the question is whether, according to English law, the trans- action amounts to a conversion." La Cave & Co. V. Credit Lyonnais, 66 Law J., Q. B. 226. See, also, Kleinwort v. Le Comptoir Nationale d'Escompte de Paris, 63 Law J., Q. B. 674 [1894] 2 Q. B. Div. 157. 2. Northwestern Nat. Bank of Chicago v. Bank of Commerce of Kansas City, 107 Mo. 402, 410, 17 S. W. 982, 15 L. R. A. 102; Stout V. Benoist, 39 Mo. 277, and cases cited; United States Nat. Bank v. National Park Bank, 59 Hun, 495, 13 N. T. S. 411, affirmed (on opinion of court below) in 129 N. T. 647, 29 N. E. 1028; Crawford v. West Side Bank, 100 N. T. 54, 2 N. E. 881; Oppenheim V. "West Side Bank, 22 Misc. 722, 50 N. T. S. 148; First Nat. Bank of Carthage v. Tost, 58 Hun, 606, 11 N. T. S. 86.2; 3 Am. & Eng. Bnc. Law, 222; Price v. Neal, 3 Burrows, 1354. The leading case on this question states that it was incumbent on the drawee to satisfy himself "that the bill drawn upon him 'was the drawer's hand' before he ac- cepted or paid It;" and that, having paid it to a bona fide indorser for value, he cannot recover back the money from him, though the signature of the drawer was forged. Price V. Neal, 3 Burro"ws, 1355. To same effect is Smith v. Mercer, 6 Taunt. 76. In a Massachusetts case, Holmes, C. J., in hold- ing that the drawee bank cannot recover back money paid through the clearing house to a collecting bank, on a forged check payable to cash and unindorsed, on the ground that it was charged with knowl- edge of the signature of the drawer, and that, under the evidence, it could not have been misled by the lack of indorsement, said: "The plaintiff's argument is directed to proving that we should not adopt the rule laid down In Price v. Neal, 3 Burrows, 1354, according to which a drawee paying a forged draft or check to a bona fide purchaser can- not recover back the money paid. We are aware that this rule has been questioned by some text writers; but it is of such universal, or nearly universal, acceptance, that we shall go into no extended discussion. • • • Probably the rule was adopted from an impression of convenience, rather than for any more academic reason; or perhaps Lord Mansfield took the case out of the doctrine as to payments under a mistake of fact, by the assumption that a holder who simply presents negotiable paper for payment makes no representation as to the signature, and that the drawee pays at his peril." Ded- ham Nat. Bank v. Everett Nat. Bank [Mass.] 59 N. E. 62. See, also, authorities cited in above ease. 3. National Bank of North America v. Bangs, 106 Mass. 441; Ellis v. Ohio Life In- surance & Trust Co., 4 Ohio St. 628; Birming- ham Nat. Bank V. Bradley, 103 Ala. 109, 15 So. 440, and cases cited. See, also. Green v. Purcell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50. 4. Gloucester Bank v. Salem Bank, 17 Mass. 33, 42; Ellis v. Ohio Life Insurance & Trust Co., 4 Ohio St. 628; National Bank of North America v. Bangs, 106 Mass. 441. Where a steamboat agent, after being in- formed by letter that a draft drawn on the captain of the boat had been deposited In a •Adapted from Selover on Bank Collections. 3 Cur, Law. BANK COLLECTIONS OF POEGED PAPEE. 429 for whose acts it must stand as sponsor, yet, to create an estoppel against the bank by reason of his acts and representations as to forged paper, his connection with the transaction must be definitely shown.° Under the rule, the drawee is only charged with knowledge of the signature of the drawer, and not with knowledge of the genuineness of the body of the instrument, as between himself and other parties having equal means of determining the existence of an alteration.' Indorsement of payee forged. — A bank which collects and pays to the deposit- ors thereof checks, payable to order, on which the indorsement of the payee had been forged before deposit in the bank, is liable to the payee for conversion of the checks, though it was ignorant of the forgery, and acted in good faith.'' But this rule cannot be invoked by one who has been impersonated,' though it seems this certain bank for collection, went to the bank on the day It was due, described and called for the draft, and voluntarily paid It with- out further inquiry, the bank, which received no compensation for the transaction, and made no entries of it on the books, is not liable to him for the amount thereof, both the letter and the draft having been forged, where It appeared that the draft was de- posited by a stranger with instructions that, if no one called to pay it before three o'clock, it was to be given to a notary for protest, and plaintiff called and paid it a few minutes later, and the amount was turned over to the depositor on the same day. Stephenson v. Mount, 19 La, Ann. 295. 5. A forged certificate of deposit was sent by plaintiff to defendant for collection, and by the latter sent to the bank purporting to have issued It. The cashier of the last- named bank passed it to the bookkeeper with other paper received from defendant, and a check was sent covering the aggregate amount of all the paper so received. The forgery was not discovered until after busi- ness hours of that day, when the bank im- mediately notified plaintiff and Its principal of the forgery. On the next day it returned the certificate to defendant, who recredlted such bank with the amount thereof under a general agreement to that effect respecting commercial paper found not good. It was held that defendant was justified in refund- ing the money to such bank as money paid by mistake, and that the passing of the forged certificate over to the bookkeeper did not amount to such a recognition of the gen- uineness of the certificate as would preclude the bank from setting up the subsequently discovered forgery, in the absence of a showing that the cashier actually passed on the genuineness of the certificate, or that it was his duty to do so, or that his acts were communicated to plaintiff or to de- fendant. Allen v. Fourth Nat. Bank of New York, 59 N. T. 12, affirming 6 Jones & S. 137, distinguishing Price v. Neal, 3 Burrows, 135*, and citing Goddard v. Merchants' Bank, 4 Comst. [N. T.] 149, and National Bank of Commerce v. National Mechanics' Banking Ass'n, 55 N. T. 211, note. 6. Crawford v. West Side Bank, 100 N. T. 54, 2 N. B. 881; United States Nat. Bank v.' National Park Bank, 59 Hun, 495, 13 N. T S. 411, affirmed (on opinion of court be- low) in 129 N. T. 647, 29 N. B. 1028; Nation- al Bank of Commerce v. National Mechanics' Banking Ass'n, 56 N. T. 211; White v. Con- tinental Nat. Bank, 64 N. T. 316; Oppenhelm V. West Side Bank, 22 Misc. 722, 60 N. T. S. 148; Metropolitan Nat. Bank v. Merchants' Nat. Bank, 182 111. 367, 55 N. B. '360, affirm- ing 77 111. App. 316; First Nat. Bank of Chi- cago v. Northwestern Nat. Bank, 162 111. 296, 38 N. B. 739. 7. Farmer v. People's Bank, 100 Tenn. 187, 47 S. W. 234; Pickle v. Muse, 88 Tenn. 381, 12 S. W. 919; Chism v. First Nat. Bank of New York, 96 Tenn. 641, 36 S. W. 887; Talbot v. Bank of Rochester, 1 Hill [N. T.] 295; Buckley v. Second Nat. Bank of Jersey City, 35 N. J. Law, 400; Shaffer v. McKee, 19 Ohio St. 526; Salomon v. State Bank, 28 Misc. 324, 59 N. T. S. 407. One whose prop- erty has been wrongfully converted Is not bound to take it back, but may abandon It from the moment of its conversion, and sue for its value. Id.; People v. Bank of North America, 75 N. Y. 564. Liability of bank on its indorsement of the paper, see Selover, Bank Collections, f 164. Where a bank has collected the amount of a check received on a forged indorsement of the name of the payee, to whom the Instrument had never been delivered, such payee, by a subsequent demand on the bank for the proceeds, rati- fies the indorsement, and makes the check his property to such an extent as to sus- tain an action by him for the proceeds. Farmer v. People's Bank, 100 Tenn. 187, 47 S. W. 234; Pickle v. Muse, 88 Tenn. 381, 12 S. W. 919; Talbot v. Bank of Rochester, 1 Hill [N. Y.] 295; Buckley v. Second Nat. Bank of Jersey City, 35 N. J. Law, 400. "The action against the wrongdoer does not rest upon privity, but upon the fact that he has in- termeddled with property not his own, and, asserting a hostile claim, he has inter- fered with the lawful use and dominion of the owner of the property." Farmer v. People's Bank, 100 Tenn. 187, 47 S. W. 234. 8. An indorsement of the payee's name is not forged when made by the person named and Intended to be named as payee, who received the paper from the drawer, and was the actual person w^ith whom the whole transaction was made, though he had fraudulently procured the draft by using as security a worthless note and mort- gage purporting to have been, but not hav- ing been, executed by a man and wife having the same surname as such payee. First Nat. Bank of Ft. Worth v. American Exchange Nat. Bank, 49 App. Div. 349, 63 N. Y. S. 58. Payee had fraudulently rep- resented himself to be the owner of land, and had obtained the paper by Impersonating the real owner, but was, nevertheless, the 430 BAXK COLLECTIONS OF POEGED PAPEE. 3 Cur. Law. modification of the rule has been done aAvay with by the section of the negotiable instrument act, declaring a signature which is forged or made without authority to be "wholly inoperative."" In England, the liability of the bank is governed by statute." The payee of a cheek, by suing the bank, which collected aaid paid over the amount tliereof on a forged indorsement of his name, for conversion of the check, affirms and ratifies the payment of the cheek by the malvcr.^^ An indorser subsequent to the forged indorsement is liable over to the bank for the amount re- funded.^^ Diligence in notifying parties. — The collecting bank must exercise reasonable diligence in notifying the holder or party from whom it received the paper of the forgery or alteration.^' But the bank is under no obligation to give notice of the person dealt with and intended as the payee of the paper. Emporia Nat. Bank v. Shot- well, 35 Kan. 360, 369; Crippen v. American Nat. Bank of Kansas City, 51 Mo. App. 609. and cases cited; Land Title & Trust Co. v. Northwestern Nat. Bank. 196 Pa. 230, 50 L. R. A. 75, and note collecting oases. 9. See Tolman v. American Nat. Bank, 22 R. I. 462, 52 L. R. A. 877, where the court holds that the rule at common law ia not clear and that the negotiable instruments law has abrogated it. 10. The English Bills of Exchange Act 1882, § S2, providing that "where a banker in good faith and without negligence re- ceives payment for a customer of a cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not Incur any liability to the true owner of the cheque by reason only of having received such payment," protects a bank collecting for a customer the amount of a crossed cheque, on a forged Indorsement of the payee's name, though at the time of receiving pay- ment, and crediting it to the customer, his account was overdrawn, and a part of the credit canceled the overdraft. Clarke v. London & County Banking Co., 66 Law J., Q. B. 354. This section of the act is applica- ble, however, only in case the bank is deal- ing with a "customer;" and a stranger to the bank, whose only transaction with the bank is the passage on it of the forged in- strument, is not a "customer," within the meaning of the act, and, in such case, the collecting bank, If it pays the amount of the paper to such stranger. Is liable to the true owner for conversion of the funds. La Cave & Co. v. Credit Lyonnals, 66 Law J., Q. B. 226; Matthews v. Brown & Co., 10 Times Law R. 386 [1894] 63 Law J., Q. B. 494; ICleinwort v. Le Comptoir Nationale d'Bs- compte de Paris, 63 Law J., Q. B. 674, [1894] 2 Q. B. Div. 197; Arnold v. Cheque Bank, 46 Law J., C. P. 562, 1 C. P. Div. 578. 11. Salomon v. State Bank, 28 Misc. 324, 59 N. T. S. 407; White v. Sweeny, 4 Daly [N. Y.] 223. la. Where plaintiff In good faith took a check on a forged indorsement of the payee, and indorsed it in blank and delivered it to defendant bank for collection, and re- ceived the proceeds from the bank, the lat- ter, on discovering the forgery and refund- ing the money to the drawee bank, may re- imburse Itself out of the first moneys of the plaintiff that come into its possession, though It had not notified plaintiff of the forgery; since plaintiff guarantied the genu- ineness of the payee's Indorsement, and hav- ing received the proceeds, was chargeable with notice of the forgery. Green v. Pur- cell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50. See, also, Mayer v. City of New York, 63 N. Y. 455, 457; Indig v. National Citv Bank, 80 N. Y. 100, 105. 13. Bank of Commerce v. Union Bank, 3 N. Y. 230; Oppenheim v. West Side Bank, 22 Misc. 722, 50 N. Y. S. 148. In case of an alteration, the bank exercises due diligence if it notifies the holder personally, on the day it is itself notified of the fraud, and also informs him of the same fact by letter three days later. Oppenheim v. West Side Bank, 22 Misc. 722, 50 N. Y. S. 148. The English rule is that "the holder of a bill is entitled to know, on the day when it becomes. due, whether It is an honored or dishonored bill," and hence, where a forged acceptance is delivered to the acceptor's bankers on the day it is due, and they pay it on that day, but discover, on the following day, that it Is a forgery, and give notice on that day to the holder, it cannot recover back the mon- ey paid. Cocks v. Masterman, 9 Barn. & C. 902. Aliter if notice was given on the day when payment was made. Wilkinson v. Johnson, 3 Barn. & C. 428. On the question of the difference between negligence in dis- covering a forgery or alteration and negli- gence in failing to giv notice after the dis- covery, the supreme court of New York, in a well-considered case, says: "A failure to discover, though resulting in a loss to an- other who might, if sooner apprised, have apprehended the forger, and recovered the money, gives no right of action, and for obvious reasons, one of which alone need be mentioned. There is no duty Imposed on one who receives a forged check from anoth- er to unearth the crime. He receives it pre- suming, as he has a right to do, that all the signatures and indorsements are genuine, which is impliedly warranted by the person from whom it is received. This presumption, and the right to rely on this implied war- ranty, are only destroyed when, by inspec- tion, the forgery could be detected because apparent on the face of the check or bill, or where, from the surrounding circum- stances, the suspicions of the person re- ceiving the note, check, or bill should be aroused, and his scrutiny challenged. Not so after discoA'ery, for then the duty is in- cumbent on the one detecting such imperfec- tion to act promptly in giving notice, and it he fails therein to the Injury and damage of the one entitled to notice, he will be pre- vented from recovering the damage or in- 3 Cur. Law. BANK COLLECTIONS OP FOEGED PAPEE, 431 forgery of an indorsement of the payee's name to one who had indorsed the forged paper in blank to the bank for collection, and had received the proceeds. ^^ Indorsement of forged paper by banh.—lt the bank indorses, without quali- fication or restriction, paper to which the signature of the maker or drawer was forged, it is liable to a bona fide holder on its implied warranty of the genuineness of the instrument,^" and the genuineness of the signature of the maker or drawer." The Federal courts, however, hold that the general indorsement of a collecting bank does not imply a warranty that a prior indorsement is genuine." It has been held that indorsing "for collection" relieves the indorsing bank from liability to the drawee bank which paid the draft." Presentment to the drawee through the clearing house is not equivalent to an indorsement.'" Charging bach amount. — A collecting bank which has credited the amoimt of a check, but has remitted no money on account thereof, may charg'^ back the amount thereof on discovering that it had been raised before it was delivered to the bank.-" Wliere the bank has not been guilty of negligence with respect to altered paper, and the holder had notice of facts putting him on inquiry, the bank will be protected." While it may be true that a bank would be estopped to claim a right to charge back the amount of raised paper, if its cashier had represented to the holder that it was good, and the holder had acted on this representation to his injury, a mere state- ment; by the discount and collection teller of the collecting banlc, that the checlv was "all right," has been held not to estop the bank.^^ jury shown to have been actually incurred." Third Nat. Bank of New York CltJ- v. Mer- chants' Nat. Bank, 76 Hun, 475, 27 N. T. S. 1070. 14. Green v. Purcell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50, and cases cited; Birmingham Nat. Bank v. Bradley, 103 Ala. 109, 15 So. 440, and oases cited. See, also. National Bank of North America v. Bangs, 106 Mass. 441. 15. Crosby v. Wright, 70 Minn. 251. IC. Brown v. Ames, 59 Minn. 476; Condon V. Pearce, 43 Md. 83; First Nat. Bank of Chi- cago V. Northwestern Nat. Bank, 40 111. App. 640; Turnbull v. Bowyer, 40 N. T. 456. Un- der the negotiable instruments laws these rules obtain, though the paper had been previously indorsed to the bank rcstriotively for collection. See Selover, Bank Collections, § 63. 17. A pension draft, to which the name of the payee had been forged after her death, was Indorsed "for collection" to defendant bank by the initial bank, and, after having been Indorsed generally by defendant, was paid to it by the United States, and the money remitted to the initial bank. It was held that defendant bank was not liable to the United States for the amount of the draft; the court stating that, "in such cases, the indorsement by the collecting agent, who has no proprietary interest, dots not import any guaranty of the genuineness of all prior indorsements, but only of the agent's rela- tion to the principal, as stated upon the face of the draft; and as this relation is evident upon the draft itself, the payor cannot claim to have been misled by the indorsement of the agent, or any right to rely on that in- dorsement as a guaranty of the genuineness of the payee's indorsement." United States V. American Exchange Nat. Bank, 70 F. 232, distingu'ishing Onondaga County Sav. Bank V. Unitei States [C. C. A.] 64 P. 703. 18. Indorser was a bona fide purchaser. Northwestern Nat. Bank of Chicago v. Bank of Commerce of Kansas City, 107 Mo 402 412, 17 S. "W. 982, 15 L. K. A. 103. 19. Since it is not made for the purpose of transfer; but is merely equivalent to a presentment by the bank in person. Dedham Nat. Bank v. Everett Nat. Bank [Mass. , 59 N. E. 62. 20. Birmingham Nat. Bank v. Bradley, 103 Ala. 109, 15 So. 440. This rule Is in harmony with • the general rules as to the right to charge back a credit given for worthless paper. See Selover, Bank Collections, § 15. 21. Defendant's cashier advised plaintiff, solely because of the suspicious nature of the transaction, to have nothing to do with a check, though it was apparently good and regular. The bank took the check for col- lection and gave plaintiff credit, and it was paid by the drawee bank. It had been al- tered so skillfully that It could not be de- tected by examination, and was discovered only when the drawer's account was bal- anced at the end of the month. It was held that defendant bank was not guilty of neg- ligence, and that, on the discovery of the alterations, it was Justified in refunding to the drawee' bank, and charging back the amount against the account of the plaintiff. Ranp v. National Security Bank, 136 Pa. 426, 20 A. 508. 22. Neither party suspected an alteration. The duties of such teller relate only to the discount and collection of commercial paper, and his statement must consequently be limited to the fact of its payment by the drawee, and cannot be extended to the gen- uineness of the body of the check. Oppen- heim v. West Side Bank, 22 Misc. 722. 50 N. T. S. 148. See, also. Espy v. Bank of Cin- cinnati, 18 Wall. [U. S.] 604; Marine Nat. Bank v. National City Bank, 59 N. Y. 67; 432 BAKK COLLECTIONS OF POEGED PAPBE. 3 Cur. Law. Recovery iach of payments. — The general rule is that money paid upon a raised check may be recovered back, providing the one seeking to recover has not, by his careless or negligent act, injured or prejudiced the rights of the person from whom recovery is sought,^' and since a collecting bank, to which the payee of a forged or raised check indorsed the same, and from which he received full face value therefor, is under no obligation to such payee to discover the fraud,** it may recover back the money so paid.*' Where the collecting bank has received money by mistake, as under forged or raised paper, and has paid it over to its principal before receiving notice of the forgery, or other fraud inducing the pay- ment, it cannot be compelled to repay.*' If the collecting bank has not paid over any money or made an actual remittance to its principal, but has merely credited to it the amount of the paper, which credit has never been drawn against, the col- lecting bank is liable as for money paid to it under mistake.*' Bach of several successive indorsers of a bill, who have successively paid money thereon by mistake, the name of the first indorser having been forged, may recover from his immediate indorser.^' Funds obtained by forgery cannot be followed into the hands of an innocent person who has received them from the forger in payment of a debt.*" A collecting bank may obligate itself to pay the difference between the original Security Bank of New York v. National Bank of Eepubllo, 67 N. T. 458. SS3. National Bank of Commerce v. Na- tional Mechanics' Banking Ass'n, 55 N. T. 211; Marine Nat. Bank v. National City Bank, 59 N. T. 67, 77; Clews v. Bank of New York National Banking Ass'n, 89 N. T. 419; Na- tional Park Bank of New York v. Eldred Bank, 90 Hun, 285, 35 N. Y. S. 762; Oppen- helm V. West Side Bank, 22 Misc. 722, 50 N. Y. S. 148. 24. See Selover, Bank Collections, 9 188. 25. Birmingham Nat. Bank v. Bradley, 103 Ala. 109, 15 So. 440; Green v. Purcell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50. See, also. Carpenter v. Northborough Nat. Bank, 123 Mass. 66; White v. Continental Nat. Bank, 64 N. Y. 316; Susquehanna Valley Bank v. Loomis, 85 N. Y. 207; National Park Bank v. Seaboard Bank, 114 N. T. 28, 20 N. E. 632. 26. National Park Bank v. Seaboard Bank, 114 N. Y. 28, 20 N. E. 632, 11 Am. St. Rep. 612, distinguishing Metropolitan Nat. Bank V. Loyd, 90 N. Y. 530; La Fargo v. Kneeland, 7 Cow. [N. Y.] 460; Mowatt V. McLelan, 1 Wend. [N. Y.] 173; Herriok v. Gallagher, «0 Barb. [N. Y.] 566; Story, Agency, § 300. In the case iirst cited in this note, there was evidence that the proceeds of the draft In- volved in suit, and also the entire amount that the principal bank had to Its credit with the collecting bank at the time the proceeds of the draft were turned over to the prin- cipal, had been drawn out at least two weeks before the alteration of the draft was dis- covered, and the court applied the familiar rule as to application of payments, — that where there is no speclflo direction, the pay- ment will be applied to the oldest items; citing Sheppard v. Steele, 43 N. Y. 52; Allen V. Culver, 3 Denlo [N. Y.] 284; Webb v. Dick- enson, 11 Wend. [N. Y.] 63. 27. United States Nat. Bank v. National Park Bank, 59 Hun, 495, 13 N. Y. S. 411, af- firmed (on the opinion of the court below) in 129 N. Y. 647. 29 N. E. 1028; Bank of Com- merce V. Union Bank, 3 N. Y. 236; National Park Bank v. Seaboard Bank, ir4 N. T. 28, 20 N. E. 632. 28. Canal Bank v. Bank of Albany, 1 Hill [N. Y.] 287, 294; Nassau Bank v. National Bank of Newburgh, 159 N. Y. 458, 64 N. B. 66, affirming 32 App. Dlv. 268, 62 N. T, S. 1118, and 34 App. Dlv. 623, 54 N. T. S. 1110; Rapp V. National Security Bank, 136 Pa. 426, 20 A. 508; Green v. Purcell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50. 29. The forger first cashed a check for $2,400 at the defendant bank by forging the name of one of its depositors. He thereafter deposited In plaintiff bank a forged draft on a third bank for $6,000, which plaintiff collected, but afterwards repaid to the drawee tiank on discovery of the forgery. Prior to the discovery of this second forgery, and while the $6,000 was still to his credit in plaintiff bank, the forger drew out sub- stantially all of that amount, and among his drafts on that fund was a check for $2,400 on plaintiff bank to the order of the person whose name he had forged to the check cashed at defendant bank. This check he deposited In defendant bank to the credli of such person, and defendant collected It from plaintiff before It had any knowledge of the forgeries. It was held that defendant bank was not liable to plaintiff bank for the amount of the $2,400 check on plaintiff. Nas- sau Bank v. National Bank of Newburgh, 169 N. Y. 456, 64 N. E. 66, affirming 32 App. Div. 268, 62 N. Y. S. 1118, and 34 App. Dlv. 623, 54 N. Y. S. 1110. Citing Justh v. National Bank of Commonwealth, 56 N. Y. 478; Ste- phens V. Brooklyn Board of Education, 79 N. Y. 183; Hatch v. Fourth Nat. Bank, 147 N. Y. 184, 41 N. E. 403. It is of no conceivable importance that the existence of the fact of indebtedness was not known at the time when the forger sought to make reparation by repaying the moneys feloniously taken. Having made the payment, he could not re- claim It, and no Interest In the money re- mained in him. It satisfied the claim which the bank undoubtedly possessed against him, and the discovery or knowledge of such a claim was not necessary to Its existence. 3 Cur. Law. BANK COLLECTIOlsrS OP FOEGED PAPER. 433 amount of a draft and the amount as fraudulenbly altered and raised, by an offer to the drawer bank, accepted by it, to pay such difference if the draft was returned with an affidavit of the true amount, and the matter not made public, which condi- tions were all complied with by the drawer,"" but an agreement of this kind is re- scinded by a direction from the drawer to either pay the difference as agreed, or return the draft and affidavit, followed by a return thereof, together with a re- fusal to pay." .Where the drawee paid, by mistake, a fraudulently raised draft, to a bank holding it for collection, it may sue such bank for the overpayment, after a demand and a refusal to refund, without tendering back the paper itself.'^ The certiiication by the drawee bank of a draft merely vouches for the genuineness of the signature of the drawer, and the existence of sufficient funds of his at the bank to pay the draft. It does not warrant the genuineness of the body of the instrument, and, in case the draft was raised before certification, will not prevent the drawee bank from recovering the difference between the original and altered amount from a bank to which it paid the amount without knowledge of the altera- tion.'' Where the money is received on forged or raised paper by a collecting bank ostensibly as owner, vsdthout disclosing its true relation to the paper as bailee or so-called agent for collection, it is uniformly held accountable as for money re- ceived by mistake.'* Ratification or waiver may relieve the bank of liability." 30. National Bank of Commerce v. Man- ufacturers' & Traders' Bank, 122 N. T. 367, 25 N. E. 365. 31. National Bank of Commerce v. Manu- facturers' & Traders' Bank, 122 N. T. 367, 25 N. E. 355. On this state of facts, an action for money had and received could not be maintained by the drawer bank against the collecting bank. Id. 32. Metropolitan Nat. Bank v. Merchants' Nat. Bank, 182 111. 367, 77 111. App. 316, af- firmed. See, also, Brewster v. Burnett, 125 Mass. 68, where It was held that a purchaser ■ of counterfeit United States bonds need not return them before suing for the amount paid therefor. To same effect Is Kent v. Bornstein, 12 Allen [Mass.] 342, with regard to the return of a counterfeit bank bill. 33. Metropolitan Nat. Bank v. Merchants' Nat. Bank, 182 111. 367, 65 N. B. 360, aflirm- Ing 77 111. App. 316. On effect of certifica- tion of check, in general, see Merchants' Bank V. State Bank, 10 Wall. [U. S.] 604, 647. As to liability of bank after certifica- tion of raised check and subsequent state- ment to a purchaser that the certification was good, see Clews v. Bank of New Tork National Banking Ass'n, 114 N. T. 70. Re- covery in such cases is based on the double ground of mistake and want of considera- tion. Metropolitan Nat. Bank v. Merchants' Nat. Bank, 182 111. 367, 65 N. B. 360, affirm- ing 77 111. App. 316. 34. A collecting bank, which was the last of several indorsers of a draft payable to order, the first of whom was ostensibly the payee whose name had been forged, having received payment from the drawee on pre- sentment without disclosing its agency, must repay the amount as money received by mis- take on an Instrument to which it had no title, though it was not notified of the for- gery for two months after It had turned over the money to its principal. Canal Banlc V. Bank of Albany, 1 Hill [N. T.] 287. "No doubt the parties were equally Innocent in a moral point of view. The conduct of both 3 Curr. Law — 28. was bona fide, and the negligence, or rather misfortune, of both, the same. It was the duty, or, more properly, a measure of pru- dence, in each to have inquired Into the for- gery, which both omitted. But this raises no preference at law or In equity In favor of the defendants, but against them. They have ob- tained plaintiff's money without considera- tion; not as a gift, but under a mistake." Id. Proof of a eustom of collecting banks not to disclose their agency on the paper is not ad- missible to charge the drawee of a forged draft, who paid the same to the collecting bank, with notice of the fact that such bank was merely an agent, though the agency was not disclosed, in the absence of proof of a further custom of banks not to collect paper as principals. Id. The indorsements on a raised draft, following an Indorsement by the payee, for deposit, to the American Trust & Savings Bank, were as follows: "Ameri- can Trust & Savings Bank. Paid Feb. 14, 1894. Paid through the Chicago Clearing House to Metropolitan National Bank." Held to pass title to the draft to the Metropolitan, and not to make it merely agent for collec- tion. Metropolitan Nat. Bank v. Merchants'. Nat. Bank, 182 111. 367, 56 N. B. 360, affirming 77 111. App. 316. 85. Greenfield Bank v. Crafts, 4 AllOA [Mass.] 447; Wellington v. Jackson, 121 Mass. 157; Howard v. Duncan, 3 Lans. [N. T.] 174. Proceeds used with knowledge. Ballston Spa Bank v. Marine Bank, 16 Wis. 120; Hughes v. Neal Loan & Banking Co., 97 Ga. 383, 23 S. B. 823. Indemnity accepted against forgery. Pltzpatrick v. School Commission- ers, 7 Humph. [Tenn.] 224; Jones v. Hamlet, 2 Sneed [Tenn.] 256; Bell v. Waudby, 4 Wash. 743. Mere silence is not a ratification. Cali- fornia Bank v. Sayre, 85 Cal. 102; De Land v. Dixon Nat. Bank, 111 111. 323; Walters v. Munroe, 17 Md. 160. Failure of husband to notify l)ank of forgery by wife held to re- lieve bank of liability on checks forged thereafter. Neal v. First Nat. Bank, 26 Ind. App. 503. 434 BANKRUPTCY § 1. 3 Cur. Law. BANKBTIPTCT. ( 1. AmendatorT Acts and Cieneral Ordera (434). § a. Snperrlston of State I^a-nrs (434). S 3. Oocasion for Proceeding and Acts of Bankruptcy (435). A. In General (435). B. Disposition of Property with Intent to Hinder, Delay, or Defraud Cred- itors (436). C. A Preferential Transfer of Property While Insolvent (436). D. Suffered or Permitted, "While Insol- vent, the Obtaining of a Preference Through Legal Proceedings (437). E. General Assignment (437). F. Admitted In Writing Insolvency and Willingness to be Adjudged a Bank- rupt (438). 9 4. Persons ^Vho May Be Adjndged Bankrupt and Who May Petition (438). i G. Procedure for Adjudication (440). A. In General (440). B. Voluntary (441). C. Involuntary (441). S 6. Protection and Possession of the Property Pending the Appointment of Trus- tee; Receivers (444). S 7. Creditors' Meetings; Appointment of Trustee; Removals (445). § S. Compositions (445). S 0. Property and Rights Passing: to Trus- tee (44S). A. Particular Kinds of Property or Rights (446). B. Nature of Trustee's Title In General (449). C. The Trustee Takes Title Free Prom Liens (450). D. Whether Chattel Mortgages (462). B. Preferential Transfers (453). P. Preferential Payments (457). § 10. Collection, Reduction to Possession, and Protection of Property (458). A. Discovery (458). B. Compelling Surrender by Bankrupt (459). C Property in Possession of Officer Ap- pointed by State Courts (460). D. Summary Proceedings Against Third Persons; Jurisdiction (461). E. Actions to Collect or Reduce the Property to the Trustee's Posses- sion (462). F. Claims Not Reduced to Possession by the Trustee (467). { 11. Protection of Trustee's Title and Possession (467). A. Restraining Interference (467). B. Actions Affecting the Trustee's Title (467). § 12. Rights of Trustee in Fending Ac- tions hy and Against Bankrupt; Jurisdic- tion of State Courts (468). § 13. Management of the Property and Reduction to Money (469). § 14. Claims Against tlie Slstate and Proof and AlloTpance (471). A. Claims Provable (471). B. Proof of Claims (473). C. Contest of Claims (474). D. Surrender of Preferences and Effect Thereof (476). < E. Priorities (477). P. Expenses of the Proceeding (479). G. Expenses of Receivers and Assignees ■ Appointed Prior to Bankruptcy Proceedings (480). e 15. Distribution of Assets (481). i 16. Exemption (481). S 17. Death of Bankrupt Pending; Pro- ceedings (483). § IS. Referees, Proceedings Before Them and Revievr Thereof (484). § 19. Modification and Vacation of Orders of Bankruptcy Court (485). i 20. Appeal and Review in Bankruptcy Cases (485). § 21. Trustee's Bonds; Actions Thereon (487). § 22. Discharge of Bankrupt; Its Effect and HoTC Availed of (488). A. Procedure to Obtain Discharge and Vacation Thereof (488). B. Grounds for Refusal (489). C. Liabilities Released (491). D. Pleading and Evidence (494). I 23. Reopening, Grounds and Effect (496). § 1. Amendatory acts and general orders.^" — The amendatory act of 1903°' does not apply to banki-uptey cases proper pending at the time of its passage ;°* it covers acts committed prior to the date of its passage, the action not being pend- ing at that date,"' and its application is not confined to rights of action subse- quently arising, but is available to enforce existing rights of action.'* The general orders in bankruptcy have the same force as a provision of the bankruptcy act,'' and are made under an express constitutional delegation of power."* § 2. Supersession of state laws."^ — The national bankruptcy act does not ap- ply to any act of bankruptcy occurring before July 1, 1898,'° and on its passage at m. See 1 Curr. L. SH. 63. Act Cong. Feb. 5, 1903 t32 Stat. »01]. 64. In re Docker-Foster Co., 123 F. 190; In re Scott, 126 F. 981. Does not apply to a suit brought by a trustee. Pond v. New Tork Nat. Exch. Bank, 124 F. 992. 65. Obtaining property on credit on a ma- terially false statement in writing made more than four months prior to the date of the amendatory act, and about six months prior to the filing of the petition in bank- ruptcy bars a discharge. In re Scott, 126 F. 981. 66. Pond V. New Tork Nat. Exch. Bank, 124 F. 992. 67, 68. In re Hoyt & Mitchell, 127 F. 968. 6». See 1 Curr. U 312. 70. Grunsfeld Bros. v. Brownel! IN. M.] 76 P. 310. 3 Cur. Law. BANKEUPTCY § 3A. 435 onee suspended and superseded all state insolvency laws except as to cases and per- sons not within its purview/^ hence a state insolvency law permitting a corporation to become a voluntary banlcrupt is not suspended." The state courts have the right to take charge of and distribute a debtor's property assigned for the benefit of credit- ors, until the assignment has been impeached as an act of bankruptcy,'" but bank- ruptcy proceedings being instituted, the right of any claim against the bankrupt's estate to the preference given by such deed of assignment is defeated.'* § 3. Occasion for proceeding and acts of bankruptcy.''' A. In general. — Upon a debtor committing an act of bankruptcy a right immediately arises in the creditors to have his affairs wound up and his estate administered pursuant to the bankruptcy law.'* Insolvency. — Under the present bankruptcy law a debtor is not insolvent unless his property, at a fair valuation, is insufficient to pay his debts." A bankrupt who denies his insolvency must produce his books or the burden is upon him to prove his solvency.'^ An adjudication of the insolvency of a part- nership is an adjudication of the insolvency of each member thereof.'" Property being transferred in payment of, or security for a just debt, the mere fact that it may involve a preference in bankruptcy, should bankruptcy proceedings be instituted, does not exclude it from consideration in determining the debtor's solvene3^"' An admission of insolvency under a state law is not an admission of insolvency sufficient to base involuntary proceedings on, insolvency as defined by Tl. In re F. A. Hall Co., 121 P. 992. Act of 1898 provides a system of bankruptcy for particular cases only. Singer v. National Bedstead Mfg. Co. [N. J. Bq.] 55 A. 868. Kentucky St. 1899, § 84, providing that title to property fraudulently. conveyed by an as- signor for the benefit of creditors shall vest in the assignee, and §§ 1910, 1911, making a preferential transfer In contemplation of in- solvency operate as an assignment for the benefit of creditors and subjecting such transfer to the control of equity upon the pe- tition of any one interested does not consti- tute, an Insolvency act and is not superseded by the bankruptcy law. Downer v. Porter, 25 Ky. L. R. 671, 76 S. W. 135. Chapter 67, Sess. Laws 1889 of New Mexico, is not a bankruptcy law. Grunsfeld Bros. v. Brown- ell [N. M.] 76 P. 310. NOTE. Effect of bankruptcy Istv on state Insolvencr lawsi By the great weight of authority such act suspends the operation of the state law and proceedings cannot be in- ' stltuted under the latter. Foley-Bean Lum- ber Co. V. Sawyer, 76 Minn. 118, 78 N. "W. 1038; In re Btheridge Furniture Co., 92 P. 329. Some cases hold that proceedings under state laws concerning voluntary assignments are suspended. In re Smith, 92 P. 135; In re Btheridge Furniture Co., 82 F. 329. — From note to State v. Superior Court for King County [Wash.] 45 L. R. A. 177. See 1 Curr. L. 312. T2. Keystone Driller Co. v. Superior Court of San Francisco, 138 Cal. 738, 72 P. 398. 73. Assignee in state court may sue on a note given for goods bought of the insolvent, no proceedings having been Instituted by the trustee in bankruptcy to recover the goods or the note as part of the bankrupt estate. Lucas v. Lucas' Assignee, 25 Ky. L. R. 822, 76 S. W. 371; Jensen-King-Byrd Co. V Williams [Wash.] 76 P. 934; Duryea v. Muse, 117 Wis. 399, 94 N. W. 365; Randolph & Randolph v, Scruggs, 190 U. S. 533, 23 S. Ct. 710, 47 Law. Ed. 1165. The operation of the Vermont state assignment act Is not sus- pended by the national bankruptcy act. Hil- llard v. Burlington Shoe Co. [Vt.] 56 A. 283. See 1 Curr. L. 312. 74. Claim of attorneys for services. Ran- dolph v. Scruggs, 190 XJ. S. 533, 23 S. Ct. 710, 47 Law. Ed. 1165. 75. See 1 Curr. L. 312. 70. In re Knight, 125 P. 35. 77. Insolvency need not occur by mere failure of the debtor to meet his obligations as they become due. Summerville v. Stock- ton Mill. Co. [Cal.] 76 P. 243. An instruc- tion that notice of fact sufficient to lead a prudent man to the conclusion that a debtor "could not meet his obligations as they ma- tured in the ordinary course of business" is notice of insolvency of the debtor, within the meaning of the Federal bankruptcy act, is erroneous. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. niiistratlons I One whose assets amount to $29,630, and his liabilities to $32,500 Is in- solvent. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. W. 121. A com- pany owning buildings appraised at $100,000, and which could not be replaced for $250,000, also property, goods on hand and real estate worth $40,000, and being Indebted in the sum of $81,200 is not insolvent within the mean- ing of the bankruptcy law (Act 1898, 5 1, par. 16) so as to render a mortgage given to secure a creditor void as a preference, though a month after giving the mortgage it was adjudged a bankrupt and the plant could only be sold for $75,000. Empire State Trust Co. V. Wm. P. Fisher [N. J. Eq.] 57 A. 502. 78. Bogen v. Protter [C. C. A.] 129 F. 533. 79. Gray v. Brunold, 140 Cal. 615, 74 P. 303. SO. Section 1, subd. 16, as regards the property to be excluded, refers only to prop- erty conveyed, etc., with Intent to defraud, hinder, or delay the creditors. In re Doseh- er, 120 P. 408. 436 BANKEUPTCT § 3B. 3 Cur. Law. the state law being different from insolvency under the bankruptcy act.*^ An alleged bankrupt's stock being partially destroyed, it is competent on the issue of insolvency to show the value of his stock before, and after the partial destruction.*' (§3) B. Disposition of property with intent to hinder, delay, or defraud creditors.^^ — The intent to hinder, delay, or defraud creditors must exist in order to render the transfer, concealment, or removal of the property an act of bank- ruptcy,** but the intent may be inferred from the natural and necessary result of the transfer,*^ as where the property is conveyed without consideration.'" (§3) C. A preferential transfer of property while insolvent." — ^In order that a preferential transfer of property may amount to an act of bankruptcy the debtor must have been insolvent at the time,*' a preference must have been in- tended,** and the transfer must have been to a creditor.*" The transfer amount- ing to a preference, the law presumes that it was done with the intent to prefer such creditor,*^ and in determining whether or not a preference was given, the whole transaction must be considered.'* A conditional transfer of property as by mortgage** is a transfer within the meaning of this section. Conveyance of property by a debtor to his only creditors is not an act of bankruptcy,** nor can one not a creditor at the time of the conveyance attach the same.°° Payments of comparatively small sums of money by an insolvent corporation to each of a number of its creditors, being made in the usual course of business, do not raise a presumption of an intent to prefer such creditors over other creditors.*' Ee- 81. In re Dosoher, 120 F. 408. 82. An alleged bankrupt's stock being par- tlaUy destroyed by Are It is competent on the Issue of insolvency to show, In the absence of his boolis and the insurance not being adjust- ed, the value of the goods before the fire and after, and to contradict or impeach his own estimates or appraisals. Bogen & Trum- mel V. Protter [C. C. A.] 129 P. 533. 83. See 1 Curr. L,. 312. 84. This Intent to defraud must be dis- tinguished from the intent to prefer neces- sary under the next subdivision of the act. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. Selling goods, under a threat by a creditor to institute criminal proceedings if the debt- or did not pay up, to realize money to pay the debt, which money the creditor refused to receive and started criminal proceedings. Is not a sale with Intent to defraud. In re Belknap, 129 F. 646. A conveyance made by a debtor In good faith whether for an ante- cedent or present consideration does not con- stitute an act of bankruptcy, though Its effect may be to hinder or delay creditors by re- moving from their reach assets of the debtor. Lansing Boiler & Engine Works v. Ryerson [C. C. A.] 128 F. 701. See 1 Curr. L. 312. 85. Insolvent corporation transferred busi- ness and property to another corporation in exchange for stock in the latter. Bean- Chamrerlain Mfg. Co. v. Standard Spoke & Nipple Co. [C. C. A.] 131 F. 215. 86. Gray v. Chase, 184 Mass. 444, 68 N. B. 676. See 1 Curr. L. 312. 87. See 1 Curr. D. 313. 88. Troy Wagon Works v. Vastbinder, 130 F. 232. 89. Thompson v. First Nat. Bank [Miss.] 86 So. 65. Evidence that an insolvent debtor within four months of the filing of the peti- tion in bankruptcy paid several bills matur- ing is insufficient to establish an act of bank- ruptcy, there being no evidence that he thereby Intended to give preferences, or contemplated bankruptcy, nor that the cred- itors receiving such payments did not there- after extend credit to him for larjger amounts. Clark V. Henne & Meyer [C. C. A.] 127 F. 288. 90. An accommodation indorser is such a creditor. In re O'Donnell, 131 F. 150. The uncorroborated testimony of a single wit- ness to a declaration made by an alleged bankrupt that the vendee of property con- veyed by him was a creditor Is insufficient to prove an act of bankruptcy, where the bankrupt testified that he was not Indebted to the vendee, and received full payment for the land, and two other witnesses testi- fied they saw the money paid. In re Fo'ster, 126 F. 1014. 91. An answer In Involuntary proceedings admitting that the bankrupt was Insolvent and had sold property within four -months prior to the filing of the petition and with the proceeds thereof paid certain debtors is an admission of a preference constituting an act of bankruptcy. Brinkley v. Smlth- wick, 126 F. 686. 92. Whole contract must be construed as to whether or not the bankrupt was the owner of the goods or the agent of the sell- er. Troy Wagon Works v. Vastbinder, 130 F. 232. 93. On real estate. In re Bdelman [C. C. A.] 130 F. 700. A mortgage made by a debtor upon his entire property does not constitute an act of bankruptcy in a state where such mortgage creates a lien only and does not transfer the title where the mortgagor's re- maining estate is greater In value than his unsecured debts. [Michigan]. Lansing Boiler & Engine Works v. Joseph T. Ryerson & Son [C. C. A.] 128 F. 701. Chattel mortgage. In re Riggs Restaurant Co. [C. C. A.] 130 F. 691. 94. 95. Brake V. Callison [C. C. A.] 129 P. 201. 96. In re Douglas Coal & Coke Co., 131 P. 769, 3 Cur. Law. BANKEUPTCY § 3E, 437 cording being essential to the validity of an assignment of future earnings, such an assignment, by a debtor to secure a creditor, being recorded within four months of the filing of the petition constitutes an act of bankruptcy."^ (§ 3) D. Suffered or permitted, while insolvent, the obtaining of a prefer- ence through legal proceedings.^^ — In order to adjudge one a bankrupt on the ground of his suffering or permitting a creditor to obtain a preference through legal proceedings, without discharging the same, a preference must have actually resulted,"' legal proceedings must have been instituted,^ and a judgment must have been rendered therein,^ and unsuccessful resistance by the debtor is unavail- able as a defense to the bankruptcy proceedings." A debtor allowing his creditor to levy upon his property, "suffers and permits" the obtaining of a preference through legal proceedings,* though allowing one to obtain a statutory lien enforce- able without legal proceedings is not an act of bankruptcy,* nor is the due enforce- ment of liens acquired more than four months before the filing of the petition in bankruptcy.' It is not the mere obtaining of a preference through legal proceed- ings while insolvent that makes the debtor liable as a bankrupt, but it is the fail- ure on his part to have the same vacated or discharged within five days before a sale or final disposition of the property.' (§3) E. General assignment.^ — ^Making a general assignment for the bene- fit of creditors is an act of bankruptcy, regardless of the debtor's solvency." A direct transfer to creditors, without the intervention of a trustee duly appointed, is not an assignment for the benefit of creditors.^* Prior to the amendment of 1903 application for a receiver did not constitute an act of bankruptcy ,*'■ and this provision is not retroactive.^^ It is immaterial whether the receiver is temporary or permanent,^' but he must have been ap- pointed because of insolvency.^* The filing of a bill in a collusive suit for the appointment of receivers, the proceedings being then discontinued, does not pre- vent the appointment of receivers in a subsequent suit for the same purpose, constituting an act of bankruptcy.^" A corporation against whom creditors have filed a bill in a state court asking for the appointment of receivers, admitting in its answer the facts alleged and consenting to the relief prayed, the receivers being appointed, has committed an act of bankruptcy.^* The record of the court ap- 97. In re O'Donnell, 131 P. 150. 98. See 1 Curr. L. 313, n. 28. 99. A distraint of goods under a land- lord's warrant held not to operate as a pref- erence. In re Belknap, 129 F. 646. 1. Failure by a debtor to take legal pro- ceedings to retake goods taken and retained by a creditor Is not an act of bankruptcy. In re Belknap, 129 F. 646. 2. Mere suing out of an attachment and levying the same is not sufficient. Seaboard Steel Casting Co. v. William R. Trigg Co., 124 F. 75. 3. Bradley Timber Co. v. White [C. C. A.] 121 F. 779. 4. Bogen v. Protter [C. C. A.] 129 F. 533. 5. Livery stable keeper's lien. In re Mero, 128 F. 630. 6. Owen v. Brown [C. C. A.] 120 F. 812. 7. In re Vastbinder, 126 F. 417; Bradley Timber Co. v. White [C. C. A.] 121 F. 779. 8. See 1 Curr. L. 312, n. 11. 9. Couts V. Townsend, 126 F. 249. See 1 Curr. L. 312. 10. Anniston Iron & Supply Co. v. Annis- ton Rolling Mill Co., 125 F. 974. 11. In re Burrell fC. C. A.l 123 P. 414. 12. Such an appointment made prior to the passage of the amendatory act will not sup- port a petition in involuntary bankruptcy filed after that date, although the receiver- ship still continues. Seaboard Steel Casting Co. V. William R. Trigg Co., 124 F. 75. 18. Blue Mountain Iron & Steel Co. v. Portner [C. C. A.] 131 F. 57. 14. Receiver appointed for property of a corporation in a suit to foreclose a mort- gage, the bill not alleging insolvency, held insufficient to constitute an act of bank- ruptcy. In re Douglas Coal & Coke Co., 131 F. 769. Submission of questions, whether at the date of appointing the receivers, and at the date of the. filing of the bankruptcy petition the property of the alleged bank- rupt was at a fair valuation sufficient to pay his debts, and whether the appointment of the receivers was because of the debtor's insolvency, and if they had taken charge of the property, held proper. Blue Mountain Iron & Steel Co. v. Portner [C. C. A.] 131 F. 67. 15. Blue Mountain Iron & Steel Co. v. Portner [C. C. A.] 131 F. 57. 16. Lowenstein v. Henry McShane Mfg. Co.. 130 F. 1007. 433 BANKRUPTCY 8 3F. 3 Cur. Law. pointing the receivers is the best evidence of their appointment, and the reason therefor.^' (§ 3) F. Admitted in writing insolvency and wUlin-gness to be adjudged a ianhrupt}^ — The writing need not be made for the sole and express purpose of being adjudged a bankrupt, an admission in an answer to an involuntary pro- ceeding is sufficient.^" The admission for a corporation may be made by its board of directors/" and the appointment of receivers for the corporation does not deprive them of this power. -^ Solvency is no defense to proceedings based upon this ground.^^ § 4. Persons who may he adjudged banhrupt and who may petition."^ — A natural person engaged chiefly in farming or the tillage of the soil cannot be adjudged an involuntary bankrupt,''* but a corporation so engaged is not exempt.'''' A corporation cannot be adjudged an involuntary banlcrupt by reason of its having a principal business which is beyond the authority given by its charter and within the scope of the bankruptcy act.°° A corporation not of the excepted class is liable to be adjudged an involuntary bankrupt before actually engaging in business,^^ or after it has ceased to do business."' A corporation engaged prin- cipally in manufacturing or trading may be adjudged an involuntary bankrupt,'"' as where it is engaged in building ships,*" buildings and bridges,'^ or in raising a 17. Blue Mountain Iron & Steel Co. Y. Portner [C. C. A.] 131 F. 57. 18. See 1 Curr. L. 312, n. 17. 19. An admission In an answer to an In- voluntary proceeding by the bankrupt that he is Insolvent, and that he Intends to pay the debts In full, and is willing- to answer fully at any time the court may designate, is sufficient. Brinkley v. Smlthwiok, 126 F. 686. ao. The board of directors of a corpora- tion having power under tlie state laws to make a general assignment of the property of the corporation for the benefit of cred- itors, they may make an admission in writ- ing on behalf of the corporation of its in- ability to pay Its debts and willingness to be adjudged a bankrupt on that ground. In re C. Moench & Sons Co. [C. C. A.] 130 F. 685. 21. Temporary receivers. In re C. Moenoh & Sons Co. [C. C. A.] 130 F. 685. Appoint- ment of receivers by a state court and sub- sequently by a bankruptcy court. In re C. Moenoh & Sons Co., 123 F. 965. 22. Directors of a corporation on the re- quest of certain creditors passed such a resolution, held such creditors were entitled to have the corporation adjudged a bank- rupt without regard to Its solvency. In re C. Moench & Sons Co., 123 F. 965. Such a de- fense cannot be interposed by a creditor of a manufacturing corporation. In re C. Moenoh & Sons Co. [C. C. A.] 130 F. 685. 23. See 1 Curr. D. 313. 34. Even though he be at the same time a private banker. Couts v. Townsend, 126 P. 249. One managing and controlling planta- tions Is engaged chiefly in farming or tilling the soil, and the fact that he maintains a store or commissary thereon does not affect his status as one chiefly engaged In farming. Wulbern v. Drake [C. C. A.] 120 P. 493. The owner of a farm upon which he resides, but who has leased the same for the current year Is not engaged chiefly In farming and may be adjudged an involuntary bankrupt. Tt, r« Matson. 123 P. 743. 25. In re Lake Jackson Sugar Co., 129 F. 640. 26. A corporation whose only authorized business is that of a carrier is not suscepti- ble to bankruptcy on the ground that its principal business is in fact that of a trader. In re Qulmby Freight Forwarding Co., 121 P. 139. 27. A corporation organized for the pur- pose of manufacturing paper from wood pulp had purchased woodland and other property, but had never in fact started its factory. Held, could be adjudged an involun- tary bankrupt. In re White Mountain Paper Co., 127 P. 180; affirmed in White Mountain Paper Co. v. Morse & Co. [C. C. A.} 127 F. 643. See 1 Curr. L. 313, n. 35. 28. Receivers were appointed by a state court for a manufacturing corporation be- fore the filing of the petition; held subject to the bankruptcy act. In re C. Moench & Sons Co. [C. C. A.] 130 P. 685. Bankruptcy proceedings having been begun against a corporation, a decree entered in another state dissolving the corporation does not affect the bankruptcy proceeding. In re White Mountain Paper Co., 127 P. 180; affirmed in White Mountain Paper Co. v. Morse & Co. [C. C. A.] 127 P. 643. 29. Finding of a referee that a corporation was "extensively" engaged in trading falls short of the statutory word "principally" and will not justify an adjudication in bank- ruptcy. Philpot v. O'Brion [C. C. A.] 126 F. 167. 30. Columbia Ironworks v. National Lead Co. [C. C. A.] 127 P. 99. The corporation constructed boats, and parts and furniture for vessels, such as boilers, masts, tanks, paint, chairs, desks, tables, etc. Held, "prin- cipally engaged in manufacturing pursuits." In re Marine Const. & Dry Dock Co. [C. C. A.] 130 F. 446. 31. As a manufacturing corporation. In this case it simply furnished the labor, other parties furnlshliig the material. In re Niag- ara Contracting Co., 127 P. 782. 3 Cur. Law. BANKEUPTCY § 4. 439 crop and manufacturing it into an article of merchandise.'' A wage earner," a building and loan association/* a corporation conducting a public warehouse,"* a circulating library/* a private bank," a brokerage business/^ or that of a com- mon carrier/" cannot be adjudged an involuntary banlcrupt. That the bankrupt is a married woman does not exempt her from involuntary proceedings.*" A part- nership cannot be adjudged a bankrupt without all its members being adjudged bankrupts," but the firm is not necessarily bankrupt because all of its partners are/* and the insanity of one partner does not defeat the proceedings.*' The debtor being prima facie incapable of being adjudged an involuntary bankrupt, the burden of proof is upon the petitioning creditors.** Voluntary p-oceedings." — It is not obligatory on debtors to voluntarily go into banlaruptcy.*" A voluntary subsequent proceeding for the sole purpose of obtaining a discharge to which a prior proceeding has conclusively determined the bankrupt is not entitled, cannot lawfully be maintained,*' and the bankruptcy court has power to dismiss such proceeding, even after adjudication.*' Involuntary proceedings.*" — ^A creditor in order to maintain a petition must have been a creditor at the time of the commission of the alleged act of bank- ruptcy,^" and must still own his claim against the estate.^^ The number of cred- itors necessary to the petition should be reckoned as of the date of the petition,'* a number of claims becoming merged in one person, such person counts only as one sa. One raising: sugar cane and manu- facturing it Into sugar, ayrup, etc., Is en- gaged chiefly in manufacturing, not farming. This distinction, however, is immaterial, as a farming corporation may be adjudged an involuntary bankrupt. In re Lake Jackson Sugar Co., 129 F. 640. 33. One who owns a team, wagons and a plow with which he worked by the day for different employers as he could obtain work, earning usually from $9 to J15 per week, and working alone when not able to find work for his team Is not an Independent con- tractor, but a wage earner. In re Toder, 127 F. 894. 34. In this case organized to accumulate a fund from contributions of its members, from which loans were to be made to assist mem- bers in purchasing real estate, the profits of which business were divided among Its members. In re New York Building-Loan Banking Co., 127 F. 471. 35. In re Pacific Coast Warehouse Co., 123 F. 749. 36. In re Parmelee Library [C. C. A.] 120 F. 235. 37. Incorporated under the laws of a state. In re Surety Guarantee & Trust Co. tC. C. A.] 121 F. 73. 38. Neither as a trader nor as engaged in mercantile pursuits. In re Surety Guarantee & Trust Co. [C. C. A.] 121 F. 73. 39. The purchase by a common carrier of horses, hay, wagons, harnesses, etc., neces- sary to carry on its business, and the oc- casional incidental sale of horses and wagons and the occasional boarding of horses, does not make it a trading or mercantile com- pany. In re H. J. Quimby Freight Forward- ing Co., 121 F. 139. 40. A married woman engaged in business on her own account, and owing business ob- ligations of the amount required by the bankruptcy law, for which her separate prop- erty IB liable In equity, may be adjudged an involuntary bankrupt. MacDonald v. Tefft-Weller Co. [C. C. A.] 128 F. 381. 41. If the members are able to pay their own and firm debts, whether out of joint or separate estates, the firm is not insolvent and cannot be adjudged a bankrupt. In re Forbes, 128 F. 137. 42. In re Mercur [C. C. A.] 122 F. 384. 43. In re L. Stein & Co. [C. C. A.] 127 F. 547. 44. The burden of proof rests upon the petitioning creditors to show that a corpora- tion chartered for the purpose of transacting the business of a common carrier is a trading corporation. Philpot v. O'Brlon [C. C. A.] 126 F. 167. 45. See 1 Curr. L. 313. 46. Summers v. Abbott [C. C. A.] 122 F. 36. 47. Bankrupt had failed to apply for a discharge in the former proceeding until too late. Kuntz v. Young [C. C. A.] 131 F. 719. 48. Kuntz v. Young [C. C. A.] 131 F. 719. 49. See 1 Curr. L. 313. 50. In re Calllson, 130 F. 987. 51. A creditor contracting to sell his claim, but agreeing to first join in a petition against the debtor, which he does immediate- ly thereafter, transferring and receiving payment for his claim, the claim must be considered as having been owned by the purchaser when tlie petition was filed. Low- enstein v. Henry McShane Mfg. Co., 130 F. 1007. 52. As to whether a single creditor is en- titled to file an involuntary petition. In re Coburn, 126 F. 218; afiirmed in Moulton v. Coburn [C. C. A.] 131 F. 201. Where the number of creditors exceeds twelve, and three join in the filing of the petition, whether payment of the debt of one of the petitioning creditors after the petition Is filed will defeat the proceeding for a lack of a sufficient number of creditors joining in the petition, quaere? Gage ft Co. V. Bell, 124 F. 371. MO BANKEUPTCY § 5A. 3 Cur. Law. creditor/" and creditors not joining in the petition should be counted."* A cred- itor misled into signing an involuntary petition in bankruptcy may withdraw.'" Creditors joining in an involuntary petition must have provable claims/' though the claims need not be allowable,"^ nor liquidated." While there is a conilict as to whether or not a creditor who has obtained a preference can file an involuntary petition," still it is conceded by all authorities that a preferred creditor may sur- render his preference and thus qualify/" and, as there is no one, prior to the ap- pointment of a trustee, to whom he can surrender it, it is sufficient if he offers to do so in the petition,*^ or in the course of the proceedings.'^ One may become estopped to join in the petition by inducing," or receiving benefits and assenting to the commission of the act of bankruptcy.'* § 5. Procedure for adjudication.^" A. In general. — Jurisdiction of the sub- ject-matter in bankruptcy proceedings is conferred by law, jurisdiction of the person in involuntary proceedings is acquired by filing a petition and serving a copy of it, wi£h a subpoena upon the alleged bankrupt." The jurisdiction of the bankruptcy court depends upon alleged bankrupt having a bona fide residence within the dis- trict," the whereabouts of his property is immaterial," and it having jurisdiction of 58. An asslgrnee for the benefit of ored- Itora purchasing claims with the funds of a debtor, such claims become either merged in the assignee as a single claim In equity or are to be regarded as extinguished, and hence though split up by the assignee and assigned to various parties, ^rhloh assign- ment Is ratified by the original assignor, are to be treated as one claim In determining the number of creditors necessary to an in- voluntary petition. Lelghton v. Kennedy [C. C. A.] 129 F. 737. 54. Creditors Induced not to Join In the petition by the voluntary assignee of the alleged bankrupt, acting in behalf of cred- itors and not as an agent of the creditor signing the petition, should be counted. In re Coburn, 126 F. 218. 55. The proper oflJcers of a corporation authorized its agent to assent to an as- signment by the debtor for the benefit of creditors. The agent assented, but not under ■eal, having no authority to execute any in- strument under seal. The corporation, for- getting the assent, Joined in the petition, then It ratified the act of its agent under seal and sought to withdraw from the petition. Held, as It joined under a misunderstanding of fact, it should be allowed to withdraw. In re Coburn, 126 F. 218; affirmed In Moulton V. Coburn [C. C. A.] 131 F. 201. 56. Creditor receiving a preference which has not been surrendered cannot join. In re Flshblate Clothing Co., 125 F. 986. 57. Creditor having received a preference can nevertheless Join In a petition for Invol- untary bankruptcy, though his claim cannot be allowed until he surrenders the prefer- ence. In re Hornsteln, 122 F. 266. 68. Claim is for damages arising out of a breach of warranty upon a sale of personal property, and Is disputed by bankrupt. In re Frederic L.. Grant Shoe Co., 125 F. 576; affirmed In In re Frederic L. Grant Shoe Co., rC. C. A.1 ISO F. 881. SO. In re Vastbinder, 126 F. 417. (See this case for a partial list of authorities pro and con). That he must surrender such preference where he in good faith had ob- tained an attachment lien within four months of the filing of the petition. In re Hornsteln, 122 F. 266. 60, 61, 62. In re Vastbinder, 126 F. 417. 63. Creditors made debtor a proposal that he convey to them all his stock of goods and they would accept the same in full pay- ment of their claims; held, creditors partici- pating therein and assenting thereto could not use the conveyance as a ground for hav- ing the debtor adjudged an Involuntary bankrupt. Clarke v. Henne & Meyer [C. C. A.] 127 F. 288. ' 84. A creditor participating In, receiving a benefit under, and assenting to, a general assignment under the laws of a state, Is estopped. Durham Paper Co. v. Seaboard Knitting Mills, 121 F. 179; Moulton v. Coburn [C. C. A.] 131 F. 201. Creditors of a corpora- tion Intervening and assisting In a suit in a state court to have receivers appointed are estopped to subsequently file a petition in bankruptcy, based on the appointment of the receivers as the act of bankruptcy. Lowen- steln V. Henry McShana Mfg. Co., 130 F. 1007. Obtaining a debtor to commit an act of bankruptcy In order that all creditors might share equally does not estop such creditors from urging such act as against a creditor, who, if the bankruptcy proceedings were dismissed, would obtain a preference by his attachment. In re Moench & Sons Co., 123 F. 965. A corporation is not estopped, by reason of one of its officers becoming, as an individual, the assignee of the bankrupt, from Joining In a petition for Involuntary bankruptcy. In re Winston, 122 F. 187. 65. See 1 Curr. L. 314. 66. In re Brett, 130 F. 981. 67. Removal of a person from one district to another for the express purpose of filing a petition in bankruptcy therein, and with the Intention of leaving the district as soon as a discharge was obtained, is not a bona fide residence therein. In re Garneau [C. C A.] 127 F. 677. 68. That the property of a corporation is in tlie possession of receivers appointed by the state court does not affect the Jurisdic- tion of the bankruptcy court. In re O Moench & Sons Co. [C. C. A.] ISO F. 685. 3 Cur. Law. BANKEUPTCY 8 5C. 441 one member oi the partnership, it has jurisdiction of all the partners and of the partnership property."' The court making the first adjudication of bank- ruptcy has exclusive jurisdiction of the proceeding.^" The fact that one cred- itor's name was omitted from the list and that such creditor had no notice of the proceeding does not affect the court's jurisdiction in respect to the adjudi- cation.'^ The simple forms of bankruptcy practice found in the general orders and forms prescribed by the supreme court should be followed/^ and the petition and schedule should contain no abbreviation or interlineation except for the pur- pose of reference," though amendments may be made at any stage of the pro- ceedings regardless of the time which has elapsed.'* The bankrupt's exemption from arrest continues until the final adjudication on his application for a dis- charge, unless suspended or vacated by order of the court,'"' and the court may require security of the bankrupt that during its continuance he will obey all or- ders of the court and not meanwhile depart from its jurisdiction.'' (§ 5) B. Voluntary.'''' — ^An adjudication of bankruptcy made ex parte on a voluntary petition is not conclusive on creditors." (§ 5) 0. Involuntary.'"' — The bankruptcy court has jurisdiction to deter- mine whether or not the alleged bankrupt is a proper subject of involuntary pro- ceedings.*" The good faith of the petitioners, being open to question, the court is justified in resolving all doubtful questions both of law and fact against them.*^ The petition should show by express language or inference that the al- leged bankrupt is not of the excepted classes,'^ that tiie claims of the petitioners amount in the aggregate to $500 or over,*' and where it does not, the court has no power to permit an amendment joining other creditors having claims sufficient to make up the requisite amount.** The petition being insufficient by reason of one of the petitioners being disqualified, it may be cured by the intervention of others.*" The petition in involuntary proceedings must set out the business in which the defendant is engaged,*' or state specifically that he was not engaged in one of the excluded classes of business or occupation, but a defect in this re- gard may be cured by amendment.*' An allegation, in the petition, of the com- mission of an act of bankruptcy, should state the specific fact relied upon,** with 6». That one partner for a long period antedating the commencement of the bank- ruptcy proceedings had been a resident of another state from that in which such pro- ceedings were instituted, and was not served, does not divest the court of jurisdiction. Whltson V. Farber Bank [Mo. App.] 80 S. W. 327. 70. General order No. 6. Where pending an appeal from an order dismissing a peti- tion In Involuntary bankruptcy, the defend- ants were adjudged bankrupts In another district, the appeal will be dismissed. In re Sears, Humbert & Co. [C. C. A.] 128 F. 275; In re Knight, 126 F. 35. 71. Roberts v. Fernald [N. H.) 65 A. 942. 72. W. A. Gage & Co. V. Bell, 124 F. 371. 73. General Orders In Bankruptcy No. 6. It seems that "Residence 136, Bway." is In- sufficient as designating 136 Broadway. Sutherland v. Lasher, 41 Misc. 249, 84 N. T. a 66. 74. In re Mercur [C. C. A.] 122 F. 384. 75. It Is not restricted to the particular occasions when his physical attendance is required in court. In re Dresser, 124 F. 916. 76. In re Dresser, 124 F. 916. 77. See 1 Curr. li. 316. 78. May ask for a dismissal of the pro- ceedings on the ground that court was with- out Jurisdiction. In re Garneau [C. C. A.] 127 F. 677. 79, See 1 Curr. L. 314. 80, Columbia Iron Works v. National Lead Co. [C. C. A.] 127 F. 99. 81, One not a creditor purchased claims against the debtor. Dowenstein v. Henry McShane Mfg. Co., 130 F. 1007. 82, In re Brett, 130 F. 981; In re Calllson, 130 F. 987. 83, 84, In re Stein, 130 F. 377. 8B, In re Vastbinder, 126 F. 417. 86, In re Mero, 128 F. 630. 87, Contained averments consistent with his being a merchant. Beach v. Macon Gro- cery Co. [C. C. A.] 120 F. 736. 88, An allegation that a debtor commit- ted various and sundry acts of bankruptcy by paying several of his creditors various sums of money while Insolvent with intent to give preferences, without stating the names of the creditors or the sums so paid. Is wholly insufficient. Clark v. Henne & Meyer [C. C. A.] 127 F. 288. Where the ground for filing the petition Is removing property with Intent to hinder, delay or de- fraud creditors, the facts should be as spe- cific as possible, but greater detail than it is 443 BANKEUPTCY § 50. 3 Cur. Law. time," place, and eircTimstanee.°* The consideration of the claim need not be set forth and sworn to in the petition.*^ An involuntary petition need not allege in 80 many words that the preferred transferee is a creditor,'" nor is it necessary to indicate in what manner the bankrupt indicated his intent, it being inferable from the facts alleged."^ Several acts of banlcruptey may be set forth in one petition.'* An attorney in fact for a petitioning creditor, can make the necessary oath to the petition, where the facts are within his own knowledge,'" and a defect- ive verification may be cured by amendment.'" Petitions may be consolidated by order of the court, and when done before reference to the referee precludes the latter from determining the necessity of the petitions.'^ In proceedings against a part- nership, the petition must be specifically directed against it,'* alleging an act of bankruptcy in which it is expressly involved, and the proceeding must result in an adjudication of the partnership itself,'" but the petition of one partner to put his firm and copartners into bankruptcy need not allege an act of bankruptcy,^ nor can the nonassentiiig partners set up the want of an act of bankruptcy as a defense to such a petition,^ though they may set up the defense of solvency.' To maintain the action a partnership in fact must be shown,* and the existence of an alleged partner- ship being denied, it must be proven before an adjudication is made.° The peti- tion being defective it should not be dismissed without first giving the petitioners an opportunity to apply for leave to amend.' Valid service of the petition can be made by leaving the subpoena and copy of the petition at the bankrupt's last and usual place of abode,^ with some adult member or resident in the family.^ ■ probable creditors can furnish Is not re- quired. In re Mere, 128 F. 630. 89. Clark v. Henne & Meyer [C. C. A.] 127 P. 288. Need only allege that the preferential transfer was made within four months of the filing of the petition. Speoiflo date need not be given. In re Vastblnder, 1 26 F. 417. Where the jurats to the oaths of creditors verifying the same bear different dates from that upon which the petition was filed, the petition must show on its face that the acts of bankruptcy complained of were committed within four months of the date of filing the petition. Bradley Timber Co. V. White [C. C. A.] 121 F. 779. 90. Clark V. Henne & Meyer [C. C. A.] 127 F. 288. 91. Construing § 57. In re Brett, 130 P. 981. An averment in the petition that the petitioner is the owner and holder of a cer- tain promissory note for a stated amount, dated more than three months before the fil- ing of the petition, and due three months after date, held suflScient. Id. 92. Alleged that the debtor transferred property to C. H. Chjlds & Co. with intent to prefer them over his other creditors. In re Vastbinder, 126 F. 417. 93. In re Mero, 128 P. 630. 1»4. Bradley Timber Co. v. White [C. C. A.] 121 F. 779. 05. It will be assumed that they are with- in his own knowledge where the oath is positive In its terms. An oath on the af- fiant's knowledge, information, and belief Is not positive and is insufficient. In re Vast- binder, 126 F. 417. 96. In re Vastbinder, 126 P. 417. 97. In re MoCracken. 129 P. 621. 98. Simultaneous proceedings by the same creditor against all the partners does not bring the partnership into court, nor can this be remedied by amendment. In re Mer- our [C. C. A.] 122 F. 384. 99. In re Mercur [C. C. A.] 122 F. 384. 1, 2. In re Forbes, 128 P. 137. 8. In this case Judge Lowell discusses the o.uestion as to whether or not a partnership is an entity within the meaning of the bank- ruptcy law. reaching the conclusion that it is not and hence cannot bo adjudged a bank- rupt without all the partners being ad- judged bankrupts. In re Forbes, 128 F. 137. 4. To maintain involuntary proceedings against a person as a partner a partnership in fact must be shown, and not a mere holding out upon which he may become lia- ble to creditors. In re C. F. Beckwith & Co., 130 F. 475. 5. It appeared that both of the original partners, had died, leaving their interests to others, some of whom Tvere minors, the firm was continued but by whom did not appear, except that tTvo of the persons con- ducting the business and who committed the act of bankruptcy admitted they were part- ners and were willing to have the firm ad- Judged a bankrupt, the continuance of the partnership after the death of the original partners was denied by the minors. In re McLaren, 125 P. 835. 6. In re Brett, 130 P. 981. T. Left copy of petition with subpoena with the clerk of the hotel of which the bankrupt was the proprietor and where he usually resided, held sufficient, though the bankrupt was at the time In another town, sick and unconscious and died two days later without regaining consciousness. In re Ris- teen, 122 F. 732. S. The clerk of a hotel of which the bank- rupt Is the owner and where he usually re- sides is a proper person. In re Risteen, 122 P. 732. S Cur. Law. BANKEUPTCY § 5C. 443 Anyone showing by his answer an actual interest in the matter may contest the petition;' he need not have a provable claim.^" The answer must conform to the United States supreme court orders/^ it must not contain grounds of demurrer to the original petition which have already been disposed of by the court,^^ it must be properly verified,^' and admit or unevasively deny, upon the oath of a competent person, the material facts alleged in the petition.^* The authority of the attorney appearing for the petitioning creditors cannot be challenged by the answer.^' The "list of creditors" required of a defendant debtor, when he sets up as a defense to a petition by a single creditor that the number of his creditors is more than twelve, must contain the names and addresses of such creditors,^" a statement of the amount due each creditor,^'' the date of the debt,^* when due,^° whether due by note or ac- count or by some other form of contract,^" the consideration therefor,''^ whether owned jointly with another,^' and such other full particulars as will enable the pe- titioning creditor to negotiate with others to join with him in the petition.^' If the particulars are not sufficiently definite a reference will be ordered to ascertain them.** There being no reply in the bankruptcy proceedings new matter set up in the answer must be taken as true.^° The bankrupt must schedule all his property and debts and has no right to determine what property is valuable and what is not." The alleged bankrupt is only entitled of right to a jury trial on the question of his insolvency,^'' and the acts of bankruptcy with which he is charged,^' and this right is limited to the bankrupt." Proceedings will not be revised on grounds fully disposed of in former pro- ceedings by the same petitioner.'" A petition for the dismissal of involuntary bank- ruptcy proceedings must state a ground justifying a dismissal,'^ and where a dis- 9. In re C. Moench & Sons Co., 123 F. 977. 10. An attaching creditor may resist an involuntary petition witliout surrendering his attachment. In re C. Moench & Sons Co., 123 F. 977. 11. 12, 13, 14. Bradley Timber Co. v. White [C. C. A.] 121 F. 779. An involuntary peti- tion alleging- the giving of a preference while insolvent, a denial of the commission of such act of bankruptcy is a denial of in- solvency. Troy TVagon Works v. Vastbind- or, 130 F. 232. 15. This can only be done by a rule upon the attorney to show by what authority he appears for the party, supported by affidavit show'ing the facts relied on to question the authority. Gage c& Co. v. Bell, 124 F. 371. 16. Act 1898, § B9d. Gage & Co. v. Bell, 124 F. 371. J7. IS, 19, 20, 21. Gage & Co. v. Bell, 124 F. 371. 82. As a partner or otherwise. Gage & Co. V. Bell, 124 F. 371. 23. Thus saving the necessity and cost of a reference to ascertain the facts. Gage & Co. v. Bell, 124 F. 371. 24. Gage & Co. v. Bell, 124 F. 371. 25. Brinkley v. Smithwick, 126 F. 686. The case being argued upon the petition and answer, the averments of the latter stand as true. Answer dented commission of act of bankruptcy. In re Doddy Jourdan & Co., 127 F. 771. 26. Bankrupt received a deed purporting to convey an Interest in land, which inter- est he mortgaged. Held he could not omit the property nor the mortgage from his schedule on the ground that the conveyance vested no Interest to the land in him. In re Galley [C. C. A.] 127 F. 538. A beneficiary of a trust -fund conveyed her interest in the property so held in trust for her benefit to the bankrupt, held, conveyed an equitable interest in the land subject to the trust which the bankrupt was required to schedule. Id. A statement in a bankrupt's schedule that a life insurance policy was payable to his wife, whereas it was an endowment policy payable to his wife in case of his death, but to himself if he lived less than two years after the filing of the petition, together with the fact that he omitted a debt from his schedule for which he had pledged the pol- icy for security, held to show bad faith for the purpose of misleading creditors. In re Towne, 122 F. 313. 27. Objecting partners to petition filed by one of the firm to have a partnership ad- judged a bankrupt are entitled to a Jury trial on the question of insolvency. In re Forbes, 128 F. 137. 28. He is not entitled to one with respect to whether the petitioners are In fact cred- itors. Morss V. Franklin Coal Co., 125 F. 998. 29. Cannot be extended to intervening creditors contesting such issues. In re Her- zikoff [C. C. A.] 121 F. 544. .10. Beach v. Macon Grocery Co. [C. C. A.] 120 F. 736. 31. Ah involuntary petition by three cred- itors will not be dismissed by two of them upon the application of the third, on the sole ground that the two "desire and consent that the said petition and proceedings be 444 BANKEUPTCY § 6. 3 Cur. Law. missal is awarded on tte ground that the defendant is not subject to bankruptcy proceedings, the court can make no order awarding costs.'^ The adjudication can be made by the referee only when the judge is absent." Objection to the jurisdiction of the court may be taken after adjudication by an application to set it aside, where the want of jurisdiction did not appear from the pleadings, but it should be done promptly upon the facts appearing from the evi- dence introduced.'* § 6. Protection and possession of the property pending the appointment of trustee; receivers.^^ — T^he bankruptcy court has the power when necessary for the preservation of the estate, to have the bankrupt's property seized by a marshal or special master immediately upon the iiling of the petition ia bankruptcy," to have such officer retain the same until the petition is dismissed or the trustee qual- ifies," and after reasonable notice to the claimant to determine the right of own- ership,'* but it has no ancillary jurisdiction to appoint receivers for the property of a debtor against whom a petition in involuntary bankruptcy has been filed in another district." While a bankrupt cannot convey his property after fiUng his petition in bankruptcy,*" the commencement of bankruptcy proceedings does not terminate his contract with the government, nor affect the latter's rights there- nnder.*'^ A receiver in bankruptcy is a mere custodian of the property,*^ he cannot transfer title to any of the bankrupt's property,*' nor determine any question of ownership or title,** without an order of the court. His possession being that of the court, the latter has jurisdiction to determine the ownership of the prop- erty.*' As he takes the title of the bankrupt as of the date of the filing of the petition,*' valid liens may be enforced against him.*^ One receiving goods from a receiver submits himself to the jurisdiction of the court for all purposes properly connected with proceedings to compel him to restore the property or its value,*' and' if he claims to be the owner the court has jurisdiction to determine the ques- tion of ownership and settle the whole matter.*" The powers of a receiver pendente lite, appointed before adjudication, to protect the estate, are the same as that given ordinary receivers;'* he is not the "legal representative" of the bankrupt,'^ and dismissed." The court states that such a petition would be Insufficient even though no objection were Interposed. In re Lewis, 129 F. 147. An alleged Involuntary bank- rupt, admitting his Insolvency In his answer, reserving In his answer the right "to move to dismiss for irregularities and want of no- tice," is too Indefinite to be considered by the court. Brinkley v. Smlthwlck, 126 F. 686. 32. In re Philadelphia & L. Transp. Co., 127 F. 896. 33. Where the adjudication was by the referee, In an action by the trustee In a state court there must be affirmative proof that the judge was absent. Page v. Roberts, Johnson & Rand Shoe Co. [Mo. App.] 78 S. W. 52. 34. In re Niagara Contracting Co., 127 F. 782 35. See 1 Curr. L. S16. 36. American Trust Co. v. "Wallls [C. C. A.] 126 F. 464; In re Moody, 131 F. 525. 37. Act 1898, § 2, subd. 8. McNulty v. Feingold, 129 F. 1001. 38. This being a proceeding In bank- ruptcy as distinguished from a controversy at law or equity. In re Moody, 131 F. 525. 39. Ross-Meeham Foundry Co. v. Southern Car St Foundry Co., 124 F. 403; In re Wil- liams, 123 F. 321. 40. Muschel V. Austern, 87 N. T. S. 235. 41. The government is entitled to recov- er damages for the nonfulfillment of the contract and it makes no difference that such breach occurred before or after the com- mencement of the bankruptcy proceedings. In re Stoever, 127 F. 394. 42. 43. Muschel v. Austern, 87 N. T. S. 235. 44, 45. In re Leeds Woolen Mills. 129 F. 922. 46. First Nat. Bank v. Pennsylvania Trust Co. [C. C. A.] 124 F. 968. 47. Bank loaned money to steel company taking as security a quantity of steel bil- lets which were left on the steel company's land marked as the bank's property, bank having bill of sale. Part of loan was paid and four months later the same amount was re- loaned. Held, lien valid as against receiver or general creditors. First Nat. Bank v Pennsylvania Trust Co. [C. C. A.] 124 F. 968. 45, 49. In re Leeds Woolen Mills 129 F. 922. 60. To obtain possession of property claimed adversely. Ross-Meeham Foundry Co. V. Southern Car & Foundry Co., 124 F 403. 51. Cannot take the place of the bankrupt and as such be examined under oath as to 3 Cur. Law. BANKEUPTCY § 8. 445 only when expressly authorized may make proof of loss, under a fire insurance policy, for the bankrupt."^ Suits by and against receivers. — A receiver in bankruptcy has only such au- thority to sue as the court appointing him chooses to give, and unless authorized, he cannot leave the court of original jurisdiction and sue elsewhere."' § 7. Creditors' meetings; appointment of trustee; removals.^* — A creditor's proof of claim must be adequate in all particulars in order to allow him to par- ticipate in the creditors' meeting."" An attorney must have express authority from a creditor,"' and if the latter is a partnership the person making the letter of at- torney must make oath that he is a member of the firm,"' in order to vote on the latter's behalf at the creditors' meeting. In order to participate, the power of at- torney must be produced,"' and accident does not constitute an excuse."' The creditors' selection of a trustee is not to be interfered with unless it clearly imperils the fair and efficient administration of the estate."" The fact that some of the votes cast were for a candidate who could not be approved by the court does not render those votes void so that the opposing candidate must be declared elected."^ Creditors failing to elect a trustee at the first meeting are entitled to a reasonable adjournment,"" and upon their failure to elect according to the provisions of the act the referee may make a selection," or the court may appoint the trustee, and lapse of time does not affect this right."* If at the first meeting all claims offered for proof are in dispute and it is impracticable at that time to settle the same the referee may, in his discretion, appoint a trustee."" § 8. Compositions.^^ — The holders of contingent claims are not necessary nor proper parties to the composition."' There must be a strict compliance with the law as to the mode of coniposition and procedure;"" promises to pay money or merchandise at a future day cannot be substituted for money;"" the money cannot loss by fire of the bankrupt's property. Sims V. Union Assur. Soo., 129 F. 804. 52. Slma v. Union Assur. Soo., 129 F. 804. 53. In re National Mercantile Agency, 128 F. 639. This rule is not peculiar to receivers in bankruptcy proceedings but applies to all receivers. Id. 64. See 1 Curr. L. 316. 55. In re Blue Ridge Packing Co., 126 P. 619. See post, § 15B. Proof of Claims. 50. Voted at election of trustee without a proxy or special power for that purpose. In re Lazoris, 120 P. 716. 57. Such statement being sworn to In the proof of debt accompanying the letter, though not in the letter Itself is sufficient. In re Blue Ridge Packing Co., 125 F. 619. 58. In re Blue Ridge Packing Co., 125 F. 619. 59. Was mislaid and not produced until the 'meeting was over, held the attorney was properly refused the right to partici- pate. In re Blue Ridge Packing Co., 125 P. 619, 60. The fact that the one who was chosen as trustee advised the voluntary assignment under the state law and was the assignee thereunder does not render him incompetent as trustee. In re Blue Ridge Packing Co., 125 F. 619. Nor does the fact that he had a law office with an attorney who represent- ed certain alleged creditors whose claims were to be contested, and that these alleged creditors were former clients of his and put their claims Into his associate's hands at his suggestion, and that he was elected trustee with their aid " ' ' ' ' render him incompetent. Id. A stockholder in a corporate creditor Is not Ineligible to act as trustee in bankruptcy. In re Lazoris, 120 F. 716. Where the trustee chosen was not only a stockholder In the bankrupt corporation, but was closely associated, as attorney and legal advisor, with those who had been previously in control, and whose management was not only subject to criticism but might call for action upon the part of the trustee to hold them personally responsible, he should not be permitted to act over the objections of a minority. In re Gordon Supply & Mfg. Co., 129 F. 622. 61. In re Machln, 128 F. 315. 62. A request that the referee adjourn the meeting for 24 hours held reasonable. In re Nice, 123 P. 987. 63. In re Machin, 128 F. 315. 64. No assets appearing, no trustee was appointed, and referee reported estate closed. Over a year thereafter a creditor applied for the appointment of a trustee claiming that the bankrupt had died leaving assets fraud- ulently transferred, held, the court had juris- diction to open the proceedings and appoint a trustee. Clark v. Pldcock [C. C. A.] 129 F. 745, 66. In re Cohen, 131 F. 391. 66. See 1 Curr. Li, 316. 67. Mortgagees of tinforeclosed mortgages on bankrupt's property. Their absence is no objection to the confirmation of the com- position. In re Kahn, 121 F, 41i8. 68. In re Prear, 120 F. 978. 69. Act 1898, § 12b, In re Frear, 120 P. 978. 446 BANKKUPTCY § 9A. 3 Cur. Law. be deposited by a referee in a place selected by himseli,'"' subject to his o\vii order/* nor distributed by him."' A court has no power to confirm an irregular composi- tion.'' A composition cannot be confirmed if the bankrupt has been guilty of any of the acts, or failed to perform any of the duties which would be a bar to his discharge/* and this is true without regard to whether or not the creditors would be benefited thereby/'' or that a majority of the creditors are in favor of accept- ing the same.'" A composition will be set aside for fraud/' but fraud known to the petitioner before the confirmation cannot be so used/' and the creditor is not bound by statements as to the nonexistence of fraud in the order of confirmation." The burden is upon the petitioner to show the fraud/" and while it is not abso- lutely necessary, it is desirable that the petition set forth all the details thereof.** The verification of a petition, being in the usual form for a bill in equity, is suffi- cient/'' but the allegations of the petition being made on information and belief, the verification must be made by one having personal knowledge of the facts.'' A creditor is not precluded from maintaining the petition by commencing an action against the bankrupt.'* Assenting creditors are necessary parties to an appeal from an order confirming a composition." The setting aside of a coinposition v/ill not or- dinarily have the effect of invalidating pro rata payments made in pursuance of such composition." A creditor failing to claim his share of a composition, the amount thereof inures to the benefit of the bankrupt." An order confirming a composition serves as a discharge." An action cannot be maintained upon a new promise made after composition.'^ One holding composition notes as collateral security cannot sue thereon until default by his principal debtor.*" § 9. Property and rights passing to trustee. A. Particular hinds of proper- TO. Place of deposit must be designated by the judge. Act 1898, § 12b. Judge does not include referee. Id. § 1. In re Frear, 120 F. 978. 71. Must be subject to order of judge. Act 1898, § 12b. In re Frear. 120 F. 978. 72. Must be distributed upon confirma- tion, as the judge directs. Act 1898, 5 12e. In re Frear, 120 F. 978. 73. Although tlie motion for an order confirming the oomposition is unopposed. In re Frear, 120 F. 978. 74. Failed to keep books of account or records from ■which his true financial con- dition might be ascertained. In re Godwin, 122 F. 111. 75. In re Godwin, 122 F. 111. 76. Only one actively objected. In re Godwin, 122 F. 111. 77. A false statement by a bankrupt as to the condition of his estate made in a sworn schedule, if relied upon by a creditor in agreeing to a composition, is fraud in pro- curing the composition and sufficient to set it aside. In re Boukous, 128 F. 645. 78. In re Roukous, 128 F. 645. 79. Recitals in the order confirming a composition that it appears that the bank- rupt has not been guilty of any acts, or failed to perform any of the duties, which would be a bar to his discharge, and that the offer and its acceptance were made in good faith and have not been procured by any means, promises or acts contrary to the acts of congress relating to bankruptcy. In re Roukous, 128 P. 645. 80. In re Roukous, 128 F. 645. 81. A petition held to state a case for relief, though in some respects too general In its allegations of fraudulent acts on the part of the bankrupt. In re Roukous, 128 F. 646. A petitioner alleging that he had no knowledge of the fraud prior to the date of confirmation need not allege the time or manner in which his knowledge was ac- quired. Id. 82. In re Roukous, 128 F. 646. 88. Verification made by an agent held Insufficient. In re Roukous, 128 F. 648. 84. In re Roukous, 128 F. 648. 85. Majority had received amounts to wliich they were entitled. A representative number is sufBcIent. Marshall Field & Co. V. Wolf & Bro. Dry Goods Co. tC. C. A.] 120 F. 815. 86. The petition is not demurrable for failure to aver that the petitioner restored, or offered to restore, the consideration Im- mediately on discovery of the fraud, and be- cause it does not tender the sam.e into court. In re Roukous, 128 F. 645. 87. Not to the other creditors. Hence bankrupt may object to the allowance from such surplus of claims offered for proof more than one year after adjudication. In re Lane, 125 F. 772. 88. Taylor' V. Skiles [Tenn.] 81 3. W. 1258. 89. No consideration. Taylor v. Skiles [Tenn.] 81 S. W. 1258. 90. Composition notes executed by a bank- rupt under an agreement that all should become due if one note should be in de- fault, a creditor assigning his claim, but re- taining the composition notes as collateral security for the payment of his assignee's notes, cannot sue thereon until default in his assignee's notes. "Willey v. Browne, 20S Pa. 322. 56 A. 1029. 3 Cur. Law. BANKEUPTCY § 9A. 447 ty or rights.'^ — ^A liquor license,*^ membership in a chamber of commerce," policies of insurance which are assignable,'* iacluding a semi-tontine insurance policy pay- able to the bankrupt, his assigns or legal representatives,'' special deposits,** the good will of the bankrupt's business,'' and the right to call for unpaid stock eub- seriptions,"* all pass to the trustee. A vested remainder interest passes to the trustee of the remainderman." The interest of the bankrupt as a tenant by the curtesy,^ and alienable, beneficial interests in trust funds^ pass to the trustee, and he may enforce an insurer's liability for goods destroyed.^ The legal title to property ob- tained by crime having passed to the bankrupt, the property is assets of his estate,* and the creditors are not estopped by the representations of one not a bona fide purchaser." The trustee takes only the rights of the bankrupt under a contract of the latter." Property held by the bankrupt under a conditional sale, which is void for want of record, passes to the trustee.' The trustee in bankruptcy has the option to abandon or accept a lease held by the bankrupt;^ if he accepts it, he is bound by its conditions to the same extent as the bankrupt was." Partnership as- sets do not pass to the trustee of one of the members of the firm." A bankrupt's incorporeal interest in an alleged invention for which a patent has been applied for does not pass to the trustee,^^ nor does a claim for alimony, made by a married 91, Section 70a of the act of 1898 la an enumeration of those properties, the title to ■which passes to the trustee by operation of law. Section 67f provides for such rights as shall vest In the trustee by order of court. In re Baird, 126 F. 845. See 1 Curr. L. 317. tta. Though transferable only with the approval of the body that granted It, and not subject to seizure on execution. In re Olewine, 125 F. 840. SS. In re Nelmann, 124 F. 738. evidence as to whether or not certain seats in a stock exchange belonged to a part- ner or to the partnership, some of them being mentioned In the partnership articles and some not, held Insufficient to warrant a flnding that they belonged to the partner- ship. Burleigh v. Foreman [C. C. A.] 130 F. 13. See 1 Curr. L. 317, n. 10. 94. Fuller v. New York Fire Ins. Co., 184 Mass. 12, 87 N. B. 879. See 1 Curr. L. 317, n. 11, 12. 95. Does not have a cash surrender value. In re Mortens, 131 F. 972. 96. Lynam v. Belfast Nat. Bank [Me.] 67 A. 799. A bankrupt having a bank account In his own name as manager, but from which he paid after filing the petition a sum for his private purposes. It will be presumed that the amount so expended was his per- sonal money, and he will be required to pay over such sum to his trustee. In re Kurtz, 125 F. 992. 97. Sale of all the assets of a firm's estate, Including stock, fixtures, etc., the intent being to sell whatever interest the bankrupts had In the property, confers on the purchas- ers the right to advertise as the successors of the firm. Freeman v. Freeman, 86 App. Div. 110, 83 N. Y. S. 478. 98. Hence, directors by refusing to Issue a call, cannot relieve the stockholders from liability. Rathbone v. Ayer, 84 App. Dlv. 185, 82 N. Y. S. 235. The right of action of a corporation for unpaid stock subscriptions passes to the corporation's trustee In bank- ruptcy. Commercial Bank of Augusta v. Warthen, 119 Qa. 990, 47 S. E. 536. 99. Lioomer v. Loomer tConn.] 67 A. 167. See 1 Curr. L. 317, n. 14. I. Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314. a. Beneficial interests in a trust created by will, which are left wholly unrestrained and under the control of the beneficiaries, pass to the trustee In bankruptcy of such beneficiaries. Loomer v. Isomer [Conn.] 57 A. 167. In states where the surplus Income of a trust fund is inalienable by the bene- ficiary, title thereto does not vest in the lat- ter's trustee in bankruptcy. Butler v. Bau- doulne, S4 App. Div. 215, 13 N. Y. Ann. Cas. 188, 82 N. Y. S. 773. 3. Goods were destroyed after adjudica- tion and before appointment of receiver. Fuller V. New York Fire Ins. Co., 184 Mass. 13. <7 N. E. 879. 4a Obtained under circumstances amount- ing to larceny. Lord v. Seymour, 86 App. DlT. (17, <3 N. T. S. 88. 5. Money was loaned to a firm who falsely represented that It was money a special partner had contributed to the firm. Lord v. Seymour. 85 App. Dlv. 617, 83 It Y. S. 88. 6. Pattern contract provided tKat old pat- terns would be exchanged for new ones; held, trustee was not entitled to return patterns on hand to be credited to the bankrupt's account. In re Nichols, 122 F. 299. 7. In re Tweed, 131 F. 355; In re Butter- wlok, 131 F. 371. 8. Summervllle v. Kelllher [Cal.] 77 P. 889. 9. At least so far as the payment of rent Is concerned. Summerville v. Kelllher [Cal.] 77 P. 889. 10. Where one trustee was appointed for all individual partners as a result of simul- taneous cases instituted by the same creditor against all the partners. In re Mercur [C. C. A.] 122 F. S84. See 1 Curr. L. 317, n. 16, 17. II. The words "Interests in patents, patent rights," etc., as used In the Act of 1898, § 70a, cl. 2, should be construed as referring to rights acquired under a patent to a third party. And such a right does not pass to 4:4:8 BANKEUPTCY § 9A. 3 Cur. Law. woman in a suit for divorce, which was pending at the time of her bankruptcy.^^ The trustee may recover usurious interest paid a national bank by the bankrupt.^' There is a conflict as to whether or not a trustee can maintain an action for a tort committed against the bankrupt.^* In Michigan, the right of a father to recover for the wrongful death of his child constitutes an asset belonging to his estate in bankruptcy.^" The beneficiary of trust funds may follow the same into the hands of a trustee in bankruptcy and can recover such as can be identified,^' though it has been held that such beneficiary is only entitled to share with other creditors in the estate.^' The time and place for claiming a misappropriated trust fund in the hands of a trustee in bankruptcy is at the audit where the fund into which such trust fund entered is being distributed,^' and the right to recover trust funds may be lost by laches.^' One voluntarily paying money to a bankrupt upon condition is entitled to have the money refunded by the trustee upon the nonfulfillment of the condi- tion;*" but where such funds are not demanded before the filing of the petition, interest cannot be recovered.^^ Property fraudulently conveyed." — Property fraudulently conveyed by the bankrupt passes to the trustee.^' The latter or the creditors, where no trustee is ap- pointed," may maintain an action to set it aside, though the transfer was made more the trustee as a transferable right under the same clause, although Rev. St. § 4895 [IT. S. Comp. St. 1901, p. 3385] permits the in- ventor to transfer the same. In re Dann, 129 F. 495. la. In re LeClaire, 124 F. 654. Is not a property right. Id. 13. Lasater v. First Nat. Bank [Tex. Civ. App.] 72 S. "W. 1054; Id., 96 Tex. 345, 72 S. "W. 1057. 14. That he may mie! Can sue on claim of bankrupt for conversion where the bank- rupt had assigned the claim and the as- signee thereof had reassigned the claim to the bankrupt. Brunnemer v. Cook & Bern- heimer Co., 89 App. Div. 406, 85 N. T. S. 954. The trustee of a bankrupt corporation can maintain an action against the directors of a corporation for money wrongfully con- verted to their own use. Rathbone v. Ayer, 84 App. Div. 184, 82 N. T. S. 239. That he cannoti Cannot maintain an ac- tion for conspiracy for driving the bankrupt out of business, even though the action was pending at the time. Cleland v. Anderson FNeb.] 98 N. W. 1075; reversing Cleland V. Anderson [Neb.] 96 N. "W. 212. 15. In re Burnstlne, 131 F. 828. 16. Money received by the trustee in com- promise of a judgment obtained by him, de- claring a conveyance of trust funds by the bankrupt fraudulent, may be recovered by the beneficiary. Welch v. Polley, 177 N. Y 117, 69 N. E. 279; reversing Welch v. Policy,' 86 App. Div. 260, 83 N. T. S. 819. Where, under Laws of Washington, 1901, p. 222, c. 109, 5 1, a seller of goods in bulk gives a list of his creditors, held, the latter are entitled to priority of payment out of the buyer's bankrupt estate for the amount of the unpaid purchase price, after paying pro rata the expenses of the bankruptcy pro- ceeding, in so far as such estate represent- ed the stock remaining at the time of bank- ruptcy, or was capable of being segregated from the other assets of the bankrupt. In re Gaskill, 130 F. 235. Where goods are by mistake shipped to the wrong party, who sells the same and upon his becoming bank- rupt the proceeds of said sale are placed in the bankrupt estate, the owner of the goods Is entitled to the value thereof. In re Woods, 121 F. 599. 17. Father advanced sum of money to daughter and her husband for purchase of a lot, lot to be deeded to daughter; latter died before this was done, and it was agreed between her father and husband to sell the premises and treat the fund so realized as an advancement for the latter's Infant daughter. This was done. Held, a valid trust and beneficiary could share with other creditors in her father's bankrupt estate. In re Upson, 123 F. 807. 18. In re Wilkesbarre Furniture Mfg. Co.. 130 F. 796. 10. Creditors of a bankrupt firm, a mem- ber of w^hich misappropriated firm money while acting as trustee for a bankrupt cor- poration, taking no steps to stay the dis- tribution of the funds of the corporation pending the bankruptcy proceedings against the firm, nor to follow the firm's funds so misappropriated, are not entitled to claim that such funds awarded to a lien creditor of the corporation constituted a preference which the firm's trustee was entitled to re- cover. In re Wilkesbarre Furniture Mfg. Co., 130 F. 796. 20. Stockholders of a bankrupt corpora- tion subscribed for additional stock upon the condition that every stockholder should so subscribe or the money would be returned, thus hoping to pay off outstanding claims. In re North Carolina Car Co., 127 F. 178. iSl. In re North Carolina Car Co., 127 F. 178. 22. See 1 Curr. L. 317. See, also. Fraudu- lent Conveyances, 2 Curr. L. 116, for what constitutes. 23. The equitable title to property fraud- ulently conveyed passes to the trustee as part of the estate. Hlllyer v. Le Roy, 84 App. Div. 129, 82 N. T. S. 80. There must be fraud. In re Brumbaugh, 128 F. 971. See 1 Curr. L,. S17. n. 21. 3 Cur. Law. BANKRUPTCY § 9B. 449 than four months prior to the filing of the petition,^' except where the fraudulent transferee has transferred it to a bona fide purchaser.^' The action may be main- tained, though no claim against the bankrupt has been reduced to judgment,^' nor is this rule changed by the fact that such deed is recorded prior to the appoint- ment of the trustee.^* Whether or not fraudulent in fact, a deed of general assign- ment is constructively fraudulent, and property so conveyed within four months prior to the filing of the petition belongs to the trustee. ^° The trustee need not tender the amount paid to the bankrupt in order to recover the property,"" but the money paid the bankrupt having been distributed to the creditors, the property cannot be recovered.'^ Whether concerned in the fraud or not, the grantee is liable to the trustee for the property and the profits thereof,'" and, the conveyance being fraudulent in fact and made within four months prior to the filing of the petition, the grantee is not entitled to have his account against the insolvent,"' nor the cash paid by him at an inadequate valuation,"* credited thereon. (§9) B. Nature of trustee's title in general. ^'^ — The trustee takes the same but no better title than the bankrupt had," to all property not exempt which the bankrupt could by any means have transferred, or which might have been levied upon and sold under judicial process against him,"' whether mentioned in the bankrupt's schedules or not."* He takes the legal title,"" and while he takes sub- ject to all valid liens existing at the date of adjudication,*" there is a conflict as to 24. In re Toothaker, 128 F. 187. A trus- tee being appointed, he cannot. Act 1898, §§ 23a, 23b, do not authorize such a suit. VI- quesney v. Allen [C. C. A.] 131 P. 21. 25. Friedman v. Verohofsky, 105 111. App. 414; Carton v. Booze [N. J. Bq.] 57 A. 1029; Cox V. Wall, 132 N. C. 730, 44 S. B. 635; Joseph V. Raff, 82 App. Div. 47, 81 N. T. S. 646. May take advantage of it the same as a judgment creditor. In re Carpenter, 125 F. 831. See 1 Curr. L. 317, n. 23. 26. Friedman v. Verchofsky, 105 111. App. 414. A debtor fraudulently conveying property to a firm creditor, a corporation composed of the firm only and who took the goods of the Arm without consideration and with full notice, is liable therefor. Nor in such a suit are the members of the firm necessary parties. Holloway v. Brame [Miss.] 36 So. 1. See 1 Curr. L. 317, n. 24. 27. Bill considered and held not demurra- ble. Beasley v. Coggins [Fla.] 37 So. 213. 28. Beasley v. Coggins [Fla.] 37 So. 213. 29. In re Knight, 125 F. 35. 30. Johnson v. Forsyth Mercantile Co., 127 F. 845. 31. A creditor electing to sue for the pro- ceeds of property fraudulently conveyed by the bankrupt, and the proceeds of such sale being recovered and disbursed by the trus- tee, the creditor receiving a dividend, he is estopped from subsequently suing to recover the property. McWilliams v. Thomas [Tex. Civ App.] 74 S. W. 596; Sharood v. Jordan, 90 Minn. 249, 95 N. "W. 1108. 32. A voluntary grantee under a fraudu- lent conveyance though he has no knowledge of the fraud, is. liable to the trustee in bank- ruptcy of the grantor, not only for the property but also for the amount that he should have received for rents and profits. Gray v. Chase, 184 Mass. 444, 68 N. B. 676. The transferee being concerned In the fraud, is regarded as a trustee ex maleflcio for the creditors defrauded. Hilly er V. La Roy, 84 App. Div. 129, 82 N. T. S. 80. 3 Curr. Law — 29 33^ 34. Holloway v. Brame [Miss.] 36 So. 1. 35. See 1 Curr. L. 317. 36. In re Beede, 126 F. 853; Bradley, Clark & Co. V. Benson [Minn.] 100 N. W. 670. Where bankrupt could not have canceled an assignment of an insurance policy on his life, made in good faith, his trustee in bank- ruptcy cannot have It canceled. King v. Grain [Mass.] 69 N. B. 1049. The creditors having notice that the bankrupt holds as an agent, the trustee does not take title to the property. Bills v. Schliep [C. C. A.] 127 F. 103. Bankrupt treated money paid him by his mother as advances, trustee, years after, claims that by will they were not to be so treated, held, could not recover. Hunt v. Osborn, 86 App. Div. 464, 83 N. T. S. 879. "Evidence held insuflicient to sustain a claim of ownership, by sheriff's sale, in property taken by trustee, the claimant having exer- cised few if any acts of dominion, and hav- ing for many years allowed the bankrupt to have possession and take all the rents and profits. In re Howard, 123 F. 991. See 1 Curr. L. 317, n. 26. 37. In re Gait, 120 F. 443. An agreement to bid in property of a bankrupt and sell the same, turning the profits over a specified amount, if any, over to the bankrupt, the bankrupt agreeing not to bid at the sale, is without consideration, except as to the agreement not to bid which is void, in that the bankrupt had parted with all title to the property and had no further interest therein. Fisher v. Hampton Transp. Co. [Mich.] 98 N. W. 1012. 38. Fleming v. Courtenay [Me.] 57 A. 592. 39. If equities are equal he therefore pre- vails. Elmore v. Symonds, 183 Mass. 321, 67 N. B. 314. T,o property scheduled by the bankrupt as his own. Buckingham v. Estes [C. C. A.] 128 F. 584. 40. In re Beede, 126 F. 853. A^ to what liens are valid, see next subdivision. See 1 Curr. L. 318, n. 28. 450 BANKEUPTCY 8 9C. 3 Cur. Law. whether or not he takes as a bona fide purchaser for value,*^ most courts holding that he occupies a position similar to that of a judgment creditor,*^ his rights being determined by the local law.** A purchaser from the trustee takes the title of the banki'upt.** The title vests in the trustee as of the date of the adjudication,*' no matter where the property is situated,*® but it has been held that there was no "transfer" contrary to the terms .of an insurance policy, where loss occurred after adjudication, but while custody was still in a receiver.*' He does not take prop- erty acquired after adjudication,** though he may recover back payments made by the bankrupt after adjudication with funds belonging to the estate at the date of adjudication.*' The trustee may demand claims owing the bankrupt,'" and recover any of the latter's property which a creditor might,'^ the creditor's right being thus transferred to the trustee, the former is prevented from exercising it."^ He represents only creditors who were such at the time of filing .the petition.*' Prop- erty in his hands is liable to state taxation."* (§9) C. The trustee takes title free from, Uens'^^ acquired by legal proceed- ings," in a state or Federal court," within four months prior to the filing of the petition," in voluntary or involuntary proceedings,'" by levy,'" attachment,*^ judg- 41. Tliat he does not: Omission to file conditional sale under which goods were sold to the bankrupt is immaterial under New York Laws 1897, c. 418, 5 112, providing such unrecorded sales shall be void as to subsequent purchasers, etc.. In good faith. Hewit V. Berlin Mach. "Works, 194 U. S. 296, 24 S. Ct. 690. That he does: Unrecorded deed of trust ineffectual as against him. In re Thorp, ISO F. 371. 43. May set aside fraudulent conveyances. Beasley v. Coggins [Fla.] 37 So. 213; In re Butterwlck, 131 P. 371. 43. In re Butterwlck, 131 P. 371. 44. A purchase of the bankrupt's Inter- est in a contract for the conveyance of land. Harriman v. Tyndale, 184 Mass. 534, 69 N. E. 353. 45. The clause in § 70a, Act of 1898, read- ing "property which, prior to the petition, he could by any means have transferred" refers to the class of property that passes. Gray v. Chase, 184 Mass. 444, 68 N. E. 676; In re Beede, 126 P. 853. 46. In re Wilka, 131 P. 1004. 47. Puller V. New York Fire Ins. Co., 184 Mass. 12, 67 N. E. 879. 48. In re Parish, 122 P. 553. 49. May maintain an action for money had and received for this purpose. Elmore V. Symonds, 183 Mass. 321, 67 N. E. 314. 60. Where right to paid up policy must have been demanded within a reasonable time, fact that assured was adjudged a bankrupt within that time Is no excuse as trustee could have demanded It. Equitable Life Assur. Soc. v. Warren Deposit Bank, 25 Ky. L. R. 839, 76 S. W. 391. 51. Brunnemer v. Cook & Bernheimer Co., 89 App. Dlv. 406, 85 N. T. S. 954. May assert the right of creditors to property as against the bankrupt's mortgagee. In re Antigo Screen Door Co. [C. C. A.] 123 P. 249; Hlb- bard v. Henderson [Or.] 75 P. 889. 52. A judgment creditor of the bankrupt, after the latter's discharge, cannot levy on and sell the bankrupt's property because of fraud in securing the discharge, a trustee should be appointed to maintain a suit to re- cover such property. Hlbbard v. Henderson [Or.] 75 P. 889. 53: Cannot represent creditors who made a prior composition which they have not sought to avoid. Batchelder & Lincoln Co. V. Whltmore [C. C. A.] 122 P. 355. Under the laws of New York, an unfiled mortgage is void as to creditors who have reduced their claims to judgment and had execution Issued thereon; but one who was a creditor during the time the mortgage remained unfiled may assert Its invalidity on obtaining judgment and execution although the mortgage lias been filed In the meantime, such judgment and execution being only essential to the enforcement of the right. Held, that where a mortgage was given prior to the four months' period, but was not recorded until within that period, the trustee of the vendor cannot claim such Invalidity for one who was a creditor at the time of the giving of the mortgage, but who reduced his claim to judgment and issued execution thereon with- in the four months' period. In re Beede, 126 F. 863. 54. Swarts v. Hammer, 194 U. S. 441, 24 S. Ct. 695; In re Prince, 131 P. 54fi. 55. See 1 Curr. L. 318. 56. Taking possession of mortgaged prop- erty through a public ofiScer is the obtaining of a Hen through legal proceedings. In re Haynes, 123 P. 1001. 57. Applies to attachments sued out in state as well as Federal courts. Wood v. Carr, 24 Ky. L. R. 2144, 73 S. W. 762; Thomp- son V. Ragan, 25 Ky. L. R. 1684, 78 S. W. 485. 68. Crane Co. v. Pneumatic Signal Co., 43 Misc. 838, 86 N. Y. S. 711. Liens created by assignment executed for benefit of creditors within four months prior to the filing of the petition are void. In re Slomka [C. C. A.] 122 P. 630. Liens obtained more tlian tour months prior to the filing of the petition are valid. Where a receiver for a judgment debtor was appointed more than four month.s prior to the filing of the petition in bank- ruptcy against a judgment debtor and thus under the New York Code obtained as of the date of his appointment a lien as against the latter Judgment debtor, the latter's discharge 3 Cur. Law. BANKEUPTCY § 9C. 451 ment," by execution issued on judgment/" also the levy and sale thereunder." Some courts hold that the judgment is not annulled, the lien only being destroyed/' others that the judgment becomes null and void, its invalidity relating back to the time of its entry. ^^ Also a lien obtained by garnishment,'" or by writ of replevin," also statutory liens, enforceable only by legal proceedings,^" are rendered null and void as against the trustee, such as mechanic's liens.'^" There being a valid attach- ment of land standing in the bankrupt's name, but claimed by his wife, the trustee will be subrogated to the attaching creditor, both consenting.'^ It is the time of the creation of the lien that is the controlling date,''' not the date of its enforce- in bankruptcy did not Impair this lien. Pickert v. Baton, 81 App. Div. 423, 81 N. T. S. 50. Where property of a bankrupt is sub- ject to two liens one attached thereto prior and the other subsequent to four months before the filing of the petition, the first lien being valid the property is properly held tliereunder, and does not pass to the trus- tee. Thompson v. Fairbanlcs, 75 Vt. 361, 56 -v.. 11. 59. McKenney v. Cheney, 118 Ga. 387, 46 S. E. 433; Mohr & Sons v. Mattox [Ga.] 48 S. B. 410. See 1 Curr. L,. 318, n. 31. 60. Covers a seizure on a writ of replevin in a suit to recover property sold and de- livered on credit under a contract which the plaintiff claims the right to rescind on the ground of fraud. In re Weinger, Berg- man & Co., 126 F. 875. See 1 Curr. L. 318, n. 33. 61. Thompson v. Fairbanks, 75 Vt. 361, 56 .\. 11. The bankruptcy court has juj-isdic- tion to order a sheriff holding property of a bankrupt under attachment levied within four months before the filing of the petition in bankruptcy to deliver the same, or where the property has been sold, to turn the pro- ceeds over to the trustee in bankruptcy. Alexander v. "Wilson [Cal.] 77 P. 706. See 1 Curr. L. 318, n. 38. 62. In re Breslauer, 121 F. 910; Mohr & Sons V. Mattox [Ga.] 48 S. E. 410. The ob- taining of the Judgment being the act of bankruptcy complained of, the adjudication is not conclusive against the creditor's right to property acquired by said judgment. Pep- perdine v. Bank of Seymour, 100 Mo. App. 387, 73 S. W. 890. A court may restrain a creditor from obtaining a judgment against a bankrupt until after the adjudication. In re Eastern Commission & Importing Co., 129 F. 847. Where property is sold under execu- tion and the judgment satisfied prior to the filing of the petition, there is no judgment lien to be released and the trustee is not entitled to recover from the creditor the proceeds of the property so sold. Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751. See 1 Curr. t. 318, n. 32. 63. In re Breslauer, 121 P. 910. 64. In re Breslauer, 121 P. 910; Cox v. State Bank of Chicago, 125 P. 654. Pro- ceeds realized from a sale under execution are released from the claim of the execu- tion creditor by the filing of a petition in bankruptcy against the debtor within four months after the judgment is rendered. Clarke v. Larremore, 188 U. S. 486, 23 S. Ct. 363, 47 L. Ed. 555. 63. In South Dakota, where a judgment is not a lien upon land unless filed in the county where the land is situated, the filing Df the petition simply destroys the lien if one exists, and hence the assignee of such judgment creditor having had execution Is- sued on said judgment and goods levied and sold thereunder, the proceeds being applied to satisfying the judgment, the judgment creditor is not liable on account thereof to the trustee in bankruptcy thereafter ap- pointed. Davis V. Jewett Bros. [S. D.] 97 N. W. 16. 66. Judgment creditor is not entitled to a rule absolute against a sheriff for a failure to make the money issued on such a judg- ment. Mohr & Sons v. Mattox [Ga.] 48 S. B. 410. 67. Though the judgment upon which the garnishment proceedings were instituted was rendered several years before. Armour Packing Co. v. Wynn, 119 Ga. 683, 46 S. E. 865. See Curr. L. 318, n. 37. 68. In re Haynes, 123 F. 1001; In re HymSs Buggy & Implement Co., 130 P. 977. 69. A statutory lien enforceable without legal proceedings Is not dissolved by adju- dication. Livery stable keeper's lien. In re Mero, 128 F. 630. Lien given keeper of liv- ery stable by 17 Delaware Laws, c. 620, p. 020. In re Pratesi, 126 P. 588. 70. Where the notice is not given until within the four month period the lien is void. In re Roeber [C. "C. A.I 121 P. 449; reversing In re Roeber, 121 P. 444; Garret- son v. Clark, [N. J. Bq.] 57 A. 414. Where petition and adjudication were made on the same day, what the effect of a notice given between the two would be, quaere. Gar- retaon v. Clark [N. J. Bq.] 57 A. 414. A complaint to enforce a mechanic's lien which latter was not filed until after the adjudica- tion, will be dismissed. Crane Co. v. Pneu- matic Signal Co., 42 Misc. 338, 86 N. T. S. 711. The right a claimant acquires by serv- ing a stop notice under the mechanic's lien law of New Jersey (P. L. 1898, p. 538, § 3) is not invalidated by the bankruptcy law, though such service be made within four months of the filing of the petition in bank- ruptcy. Fehling v. Goings [N. J. Eq.] 58 A. 642. See 1 Curr. L. 318, n. 42. 71. In re Merrow, 131 F. 993. 72. An attachment lien being created by the levy, the lien is valid as against the trustee where the levy is made more than four months prior to the filing of the peti- tion, though judgment is entered within that period. Pepperdine v. Bank of Seymour, 100 Mo. App. 387, 73 S. W. 890; Grandln v. First Nat. Bank [Neb.] 98 N. W. 70. An equitable lien upon partnershiy assets being created by a transfer of an interest In the partnership estate 18 months prior to the filing of the petition, it is superior to the title of the trustee, though the judgment of the state court establishing- the validity of the lien 452. BAISTKEUPTCY § 9D. 3 Cur. Law. ment.^' The filing of the petition is notice to all the world of the pendency of the proceeding, and in effect an attachment of the bankrupt's property, and an in- junction against all persons prohibiting them from intermeddling with it.'* This section does not apply to cases where the property or its proceeds are no longer held under the writs.'° This provision of the national bankruptcy act does not impair the obligation of a contract,^' nor divest the attaching creditor of a vested right,'' and applies only as to liens sought to be asserted against the trustee or those claiming under him.'* The trustee takes title free from secret liens,'° such as un- recorded conditional sales,"* or imrecorded contracts to sell,*^ and from liens con- trary to public policy.*^ The bankruptcy court has jurisdiction to determine the validity of the lien asserted,*^ but may in its discretion allow it to be determined in the state court,** but in so doing it may reserve the right to have the property sold in the bankruptcy proceedings, the proceeds to remain in the trustee's hands to await the decision of the state court.*' The petition must show upon its face that the petitioner is entitled to a lien,*' and the petitioner not being able to maintain the suit on account of the bankruptcy proceedings, he may abandon it and sue in tort if he has such a cause of action.*' (§9) D. Whether chattel mortgaged' executed by the bankrupt are valid was rendered within the four months period. In re English, 122 F. 113. Where under the statutes of Massachusetts (Rev. Laws, o. 159, i 8, cl. 7 [Pub. St. 1892, c. 151, § 2, cl. 11]) a Bult brought more than four months prior to adjudication to reach certain assets of the debtor, though judgment is not rendered until within two months of the adjudica- tion, creates a valid equitable lien on the property in question. Snyder v. Smith [Mass.] 69 N, E. 1089. 78. Owen v. Brown [C. C. A.] 120 P. 812. Attachment. In re Snell, 125 F. 154; Hurl- butt v. Brown [N. H.] 55 A. 1046. Chattel mortgage. Thompson v. Fairbanks, 76 Vt. S61, 56 A. 11. 74. In re Mertens, 131 F. 507. 75. Does not apply when a writ of at- tachment has been fully executed and the proceeds paid over to the creditor, the latter not having reasonable cause to believe the debtor insolvent and that a preference was thereby intended. Johnson v. Anderson [Neb.] 97 N. W. 339. 76. Attachment lien sued out of state court [Act 1898, § 67, subd. f]. "Wood v. Carr, 24 Ky. L. R. 2144, 73 S. W. 762. 77. Wood v. Carr, 24 Ky. L. R. 2144, 73 S. W. 762. 78. McKenney v. Cheney, 118 Ga. 387, 45 S. B. 433. Bankrupt filed a voluntary peti- tion and forcibly took property from sheriff who held it under an attachment issued ilve days before the filing of the petition in bank- ruptcy, trustee did not take possession of property, held attachment was valid as against bankrupt after discharge. Roches- ter Lumber Co. v. Locke [N. H.] 54 A. 705. 79. Conveyance of partnership property by dormant partner void as against trustee of visible partner. White v. Farnham [Me.] 58 Atl. 425. A secret lien for improvements placed upon the premises is void as against the trustee. Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314. 80. Under the Virginia Code o. 109. Chesapeake Shoe Co. v. Seldner [C. C. A.] 122 P 593- Where bankrupt redelivered possession to seller a few days before the filing of the petition, held, title passed to trustee. McFarlan Carriage Co. v. Wells, 99 Mo. App. 641, 74 S. W. 878. An agreement by which title to goods sold to be resold in the due course of business, title to the pro- ceeds of such resales to remain in the seller until the original vendor is paid. Is invalid as a mortgage as against the vendee's trus- tee in bankruptcy. In re Carpenter, 125 P. 831; In re Gall, 120 P. 443. Also un- der Code Va. 1887, § 2877. Chesapeake Shoe Co. V. Seldner [C. C. A.] 122 P. 593. Evi- dence considered and held that the sale of a machine to the bankrupt was uncondi- tional and that objections to it offered by the bankrupt were made in bad faith and hence did not affect delivery. In re Simpson Mfg. Co. [C. C. A.] ISO P. 307. The seller upon a conditional sale must show the utmost good faith in the transaction, and the burden is upon him to establish the fact that he remains the owner by a preponderance of the testimony, and that he did not become a seller and creditor. In re Leeds Woolen Mills, 129 P. 922. 81. Under the statutes of Virginia, unre- corded contracts of sale and conveyances are void as to lien creditors. In re Baird, 126 P. 845. 82. The bankruptcy court will not en- force a claim on a liquor license contrary to the policy of the board issuing It. In re McArdle, 126 P. 442. 83. Creditor claimed an equitable Hen on money bankrupt claimed exempt. In re Lucius, 124 P. 455. 84. Validity of the lien of a chattel mort- gage. In re Johnson, 127 P. 618. 85. In re Johnson, 127 P. 618. 86. One furnishing material to a saw- mill is entitled to a lien under the laws of Georgia. A sash and door factory Is not a sawmill, petition alleged that the sawmill was engaged in manufacturing sashes, etc., held demurrable. In re Gosch, 121 P. 604. 87. Vendor may sue on the ground that the goods were obtained by fraud. Standard Sewing Maoh. Co. v. Alexander [S. C] 47 S. E. 711. 88. See 1 Curr. L. 318. 3 Cur. Law. BANKEUPTCY § 9E. 453 liens must be determined by the law of the state where they were executed." Chat- tel mortgages being valid as against all lien creditors and bona fide purchasers or mortgagees, they are valid as against the trustee/" but beiag void as against tha trustee unless followed by possession, the mortgagee must take possession without knowledge of the mortgagor's insolvency.*^ A chattel mortgage given more than four months prior to the filing of the petition is valid as against the trustee, though not recorded until within siich four-month period."^ (§9) E. Preferential transfers.^^ — In order to render a transfer of property voidable by the trustee as a preference, it must have been made by the bankrupt"* while insolvent,"^ within four months prior to the filing of the petition"" to a cred- itor,"' or some one in his behalf,"' the party so receiving it,"" or the one to be bene- fited thereby,^ having reasonable cause to believe that a preference was thereby in- tended." He need not have actual knowledge of the debtor's insolvency," though 89. In re Antlgo Screen Door Co. [C. C. A.] 123 F. 249. See 1 Curr. L. 318, n. 46. 90. Hall V. Keating Implement & Mach. Co. [Tex. Civ. App.] 77 S. "W. 1054. Void as to a judgment creditor is void as to trustee. Gove V. Morton Trust Co., 89 N. Y. S. 247. Where tiie mortgage is void as against at- taching creditors and valid as between the parties, the trustee will not be subrogated to the rights of an attaching mortgage In order to enable him to defeat the mortgage. In re Sentenne & Green Co., 120 F. 436. 91. In re Ball, 123 F. 164. See 1 Curr. L. 318, n. 47. 92. First Nat. Bank v. Johnson [Neb.] 94 N. W. 837; Davis v. Turner [C. C. A.] 120 F. 605. See 1 Curr. L.. 319, n. 50, 52-54. 93. See 1 Curr. L. 319. 94. Payment by a volunteer is not a preference. "Wife paid out of her separate property what the bankrupt owed as treas- urer of a lodge; held not a preference. Goode V. Elwood Lodge, No. 166, K. P., 160 Ind. 251, 66 N. B. 742. The fact that directors of a corporation borrow money which' is used by the corporation, and later when the corpora- tion is insolvent pay the debt with their in- dividual notes, secured by a mortgage on their Individual property, does not consti- tute a preference on the part of the cor- poration. Keegan v. Hamilton Nat. Bank [Ind.] 71 N. B. 647. 95. The debtor must have been Insolvent at the date of the transfer. Schilling v. Cur- ran [Mont.] 76 P. 998; In re Mandel, 127 P. 863; Kimball v. Dresser [Me.] 57 A. 787; Bm- pire State Trust Co. v. William P. Fisher Co. [N. J. Bq.] 57 A. 502. See 1 Curr. L. 319, n. 59. 96. In re Mandel, 127 P. 863; Gamble v. Blkin, 205 Pa. 226, 54 A. 782; Joseph v. Raff, 82 App. Div. 47, 81 N. T. S. 546; Allen v. Hol- lander, 128 F. 159. Real estate of the sub- sequent bankrupt was sold on foreclosure and bid in for mortgagor; bidder conveyed to defendant in this case to secure a debt of the mortgagor's, recorded more than four months before the filing of the petition; held not a preference and valid as against the trustee. Pratt v. Christie, 88 N. T. S. 585. It being undisputed that the transfer was within the prohibited period, a finding of fact that the property was sold within four months of the filing of the petition is un- necessary. Schilling V. Curran [Mont.] 76 P. 998. See 1 Curr. D. 319, n. 57. 07. A surety is a creditor. Goldberg v. Harlan [Ind. App.] 67 N. E. 707. An Indorser on the obligation of a bankrupt Is a creditor. In re Lyon [C. C. A.] 121 P. 723. 98. In re Levin, 127 P. 886. Agent. Gam- ble V. Blkin, 205 Pa. 226, 54 A. 782. Bankrupt owed firm; latter arranged with a purchaser of the stock of the bankrupt, whereby such purchaser assumed the indebtedness of the firm, paying part in cash and part by giv- ing individual obligations therefor; held a preference. Hackney v. Hargreaves Bros. [Neb.] 99 N. W. 675. A creditor will not be permitted to obtain a preference indirectly by a transfer of his account, procuring a third party to loan money to the debtor for payment of such creditor. Hackney v. Ray- mond Bros. Clarke Co. [Neb.] 94 N. W. 822. 99, 1. Gamble v. Elkln, 205 Pa. 226, 54 A. 782. 2. In re Mandel, 127 F. 863; Gamble v. El- kin, 205 Pa. 226, 54 A. 782; Crawford v. Rumpf, 205 Pa. 154, 54 A. 709. Must be an express finding in this regard. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11; Summerville v. Stockton Mill. Co., 142 Cal. 529, 76 P. 243; Whitson V. Farber Bank [Mo. App.] 80 S. W. 327; Thompson v. First Nat. Bank [Miss] 36 So. 65; CuUinane v. State Bank [Iowa] 98 N. W. 887. To recover property trans- ferred by bankrupt to wife. Hackney v. First Nat. Bank [Neb.] 94 N. W. 805. Pay- ment of money. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. What constitutes reasonable cause to be- lieve that a preference was Intended: This is a question of fact (Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822), and the facts and circumstances with reference to the debtor's financial condition, which are brought home to the creditor, being such as would put an ordinarily prudent man upon Inquiry, are sufficient to consti- tute reasonable cause to believe a debtor insolvent (Bardes v. First Nat. Bank, 122 Iowa, 443, 98 N. W. 284). He is chargeable Tvlth notice of such facts as a reasonable inquiry, in view of the facts with respect to the debtor's condition, which were brought home to him, might reasonably be expected to disclose. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. IlInBtrattonsi One may rely upon the de- cisions of the highest court of the state wherein he resides (Jacobs v. Van SIckel, 123 P. 340), and also upon the fact that the in- dividual estate of each partner is primarily liable for the payment In full of his Individ- 454 BANKRUPTCY § 9E. 3 Cur. Law. having reasonable ground to believe a debtor insolvent, he is chargeable with notice of intent to prefer/ and a preference must have actually resulted/ the effect of the preference must be to prefer one creditor over others of the same class/ and to do this, actual value must have passed.' Whether an intent to prefer on the part of the bankrupt is essential is the subject of conflicting decisions.' The trustee ual debts (Id.). A creditor having reasona- ble ground to believe a debtor insolvent and the obvious effect of the receipt of money or property is to give him a preference, he is chargeable with notice of intent to prefer. Hackney v. Hargreaves Bros. [Neb.] 99 N. W. 675. Mere knowledge that the debtor had other liabilities, or of circumstances which might create a suspicion of possible Insolv- ency, will not necessarily suffice. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. Knowledge that a debtor's liabilities were slightly less than $30,000 and his as- sets more than $40,000, but that he was in need of money, does not show that the creditor knew or had reasonable cause to believe a debtor insolvent. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. W. 121. Chattel mortgagee, under a mortgage executed more than seven years prior to the enactment of the bankruptcy law, took pos- session of property within four months from the time of filing the petition; held, in the absence of an express finding of reasonable cause to believe a preference given, there was no preference. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. Creditor procured se- curities of insolvent debtor at considerable expense; held, had reasonable cause to be- lieve a preference intended. Crawford v. Blumpf, 205 Pa. 154, 54 A. 709. A trust com- pany through its agent and attorney loaned a merchant a sum of money, taking a chattel mortgage upon his goods; the money was paid by said agent and attorney directly to the merchant's creditors, some of whom were clients of the agent; the next day the com- pany tried to sell defendant out; held, mort- gage was void. In re Pease, 129 F. 446. Debtor had notes for about $6,000 in bank, all over- due; cashier found out that debtor had forged indorsements on notes, went to debtor who paid the forged notes; cashier did not know that it took all debtor's property to do so; held, bank did not have "reasonable cause to believe" debtor insolvent. Gnlchtel v. First Nat. Bank [N. J. Eg.] 57 A. 508. Where a bank did hot advance, in the particular transaction alleged to be a preference, the usual percentage upon the accounts given by the bankrupt as security, evidence consid- ered and held that the bank had reasonable cause to believe that a preference was in- tended. In re Mandel, 127 P. 863. That the bankrupt passively allowed a creditor to in- stitute an attachment suit against him, ob- tain judgment by default, and sell the prop- erty, does not constitute reasonable cause to believe a preference was intended. John- son V. Anderson [Neb.] 97 N. W. 339. Where a banker went 30 miles with a debtor on a Sunday night for the purpose of enabling Mm to make a sale of his property at a great discount in order that the proceeds might be appropriated to the payment of the bank's Indebtedness, held sufficient to cause the banker to have "reasonable" cause to believe that a preference was thereby in- tended. Bardes v. First Nat. Bank, 122 Iowa, 443 98 N. W. 284. -The cashier of a bank knew that a debtor owed other debts and that the money paid the bank upon Its debt was her only assets. Held, the bank had reasonable ground to believe a preference intended. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. The fact that a creditor receives payment upon a debt past due and which he has been urging the debtor to pay is not sufficient to charge him with reasonable cause to believe the debtor in- solvent, and that a preference was intended. In re Goodhile, 130 F. 471. See 1 Curr. L. 319, n. 60, 61. 3. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822; Farmers' & Mechanics' Bank v. Wilson [Neb.] 95 N. W. 609. Debtor had no knowledge of insolvency; held prefer- ence could not be recovered back. Townes V. Alexander [S. C] 48 S. B. 214. He must have reasonable cause to believe the debtor insolvent, but this proposition is Involved in the one that he must have reasonable cause to believe that a preference was in- tended. Summerville v. Stockton Mill. Co.. 142 Cal. 529, 76 P. 243. An affidavit of de- fense denying knowledge of insolvency and reasonable cause to believe transaction a preference is sufficient. Gamble v. Elkin, 205 Pa. 226, 64 A. 782. Knowledge of a clerk of a bankrupt firm of its insolvency is not binding upon a preferred creditor who sub- sequently hires said clerk to take charge of goods transferred to said creditor as a preference. Whitson v. Parber Bank [Mo. App.] 80 S. W. 327. 4. Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. 5. In re Mandel, 127 P. 863; Kimball v. Dresser [Me.] 57 A. 787; Brlttain Dry Goods Co. V. Bertenshaw [Kan.] 75 P. 1027. 6. This is done where, after such pay- ment, there is not sufficient property remain- ing in the hands of the insolvent to pay an equal percentage to other creditors of the same class. Baden v. Bertenshaw [Kan.] 74 P. 639. Where the bankrupt transferred insurance policies to a bank, for a part cash consideration, and partly in payment of a debt, held not a preference where through the failure of one of the insurance companies, the bank only collected the amount actually paid by it to the bankrupt at the time of the transfer. Bngel v. Union Square Bank, 87 N. T. S. 1070. Company hired laborers, insolvent operated stores and supplied the men; company deducted cost of supplies giv- en each man and sent check for total to in- solvent within four months of filing the pe- tition in bankruptcy, and while the defend- ant owed them $20,000, the company with- held $2,210.73, owing to the insolvent. Held, a preference. Western Tie & Timber Co. v. Brown [C. C. A.] 129 F. 728. 7. Mere fictitious book entries are not sufficient. In re Steam Vehicle Co., 121 P. 939. 8. That he musts Summerville v. Stock- ton Mill. Co., 142 Cal. 529, 76 P. 243; Whit- son V. Farber Bank [Mo. App.] 80 S. W. 327j 3 Cur. Law. BANKEUPTCY § 9E. 465 cannot avoid a sale to a bona fide purchaser' for a present, fair consideration/" but the burden is on the purchaser to show that he purchased in good faith for a present fair consideration.^^ The filing of a petition in bankruptcy, being a caveat to all the world and in efEect an attachment and injunction,^^ one acquiring title there- after is not a bona fide purchaser.^' An exchange of securities of equal value is not a preference,^* and the value being unequal, the transfer is void only to the extent of the excess given by the bankrupt over that received by him.^" Security given in good faith for a present loan is valid,^' but a transfer to secure the pay- ment ai an old obligation is void,^' though there seems to be a conflict upon this Thompson v. First Nat. Bank [Miss.] 3t So. GB. That lie need nott Western Tie & Timber Co. V. Brown [C. C. A.] 129 F. 728; Benedict V. Deshel, 177 N. T. 1, 68 N. E. 999. If the effect of a transaction Is Inevitably a prefer- ence, then it is conclusively presumed that a preference was Intended. Hackney v. Har- greaves Bros. [Neb.] 99 N. W. 675. See 1 Curr. L. 319, n. 58. 9. A purchaser in good faith Is one who did not participate in the fraudulent Intent or act of the bankrupt In making the sale, or have knowledge of such Intent. Schil- ling v. Curran [Mont.] 76 P. 998; Bonnie & Co. V. Perry's Trustee, 25 Ky. L. R. 1560, 78 S. W. 208; Friedman v. Verchofsky, 105 111. App. 414; Unmack v. Douglass, 75 Conn. 633, 55 A. 12; Coolidge v. Ayers [Vt.] 57 A. 970. An absolute transfer of an account against the insolvent debtor In good faith, without any agreement or understanding that the purchaser of the account is to be protected by the creditor in any way, does not consti- tute a preference to the extent of the money he received on sale of his claim. Hackney V. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. Where plaintiff claimed land under a purchase at an execution sale, and de- fendant claimed under a deed from the exe- cution debtor, the rights of the respective parties becoming fixed by the delivery of their respective deeds, and the recording of defendant's deed, they are unaffected by sub- sequent bankruptcy proceedings In which the debtor is discharged. Mason v. Perkins [Mo.] 79 S. W. 683. A claim being trans- ferred in good faith by the bankrupt prior to the adjudication, the trustee can only re- cover the same by returning the amount paid therefor. In re Burnstine, 131 F. 828. 10. Friedman v. Verchofsky, 106 111. App, 414; Hall v. Keating Implement & Maoh. Co. [Tex. Civ. App.] 77 S. W. 1054; Unmack V. Douglass, 75 Conn. 633, 55 A. 12; Coolidge v. Ayers [Vt.] 57 A. 970. A fair consideration is one that is honest and free from suspi- cion; mere inadequacy is insufficient. Myers V. Fultz [Iowa] 100 N. W. 351. Illustrations: Where a stock of goods In- voiced at one time at $1,775, but were not worth more than fifty cents on the ,dollar at the time of the transfer, and the property given therefor was worth about $800, held a fair consideration. Myers v. Fultz [Iowa] 100 N. W. 351. Rents paid by bankrupt to another, on account of improvements put on premises, after adjudication can be recovered by the trustee. Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314. A mortgage for $1,500 given by the bank within four months of filing the petition, the consideration being $1,310 in cash, the remainder being for additional Interest and bonus, Is for a "present, fair consideration" and the transaction being in good faith, the mortgage is valid. In re Sawyer, 130 F. 384. Where a creditor upon her claim becoming due advanced more mon- ey and took a mortgage upon the debtor's property for the whole siim In good faith and without notice of the debtor's Insolvency, which mortgage was recorded the next day, held a valid lien for a present considera- tion, though given within four months of filing the petition. Phillips v. Kahn, 89 N. T. S. 250. Where property of a bankrupt of the value of $500 which had been attached before the petition was filed was sold sub- sequent to the filing of the petition to a son of the attachment plaintiff for $50, held, the son was not a bona fide purchaser for value without notice. In re Goldberg, 121 F. 578. A court finding that the property was purchased in good faith without intent to hinder, delay or defraud creditors, and for a certain cash sum, and that, as a con- clusion of law, the purchase was bona fide and for a present fair consideration, a fur- ther finding of fact as to whether the con- sideration was a "present fair" one is un- necessary. Schilling v. Curran [Mont.] 76 P. 998. 11. Answer alleging such facts is not im- pertinent or scandalous. McNulty v. Wiesen, 130 F. 1012. 12. In re Breslauer, 121 F. 910; Chesa- peake Shoe Co. V. Seldner [C. C. A.] 122 F. 593; In re Antlgo Screen Door Co. [C. C. A.] 123 F. 249; In re Rodgers [C. C. A.] 125 F. 169; In re Beede, 126 F. 853; Logan v. Ne- braska Mollne Plow Co. [Neb.] 93 N. W. 1128. 13. In re Goldberg, 121 F. 578. 14. Annlston Iron & Supply Co. v. Annls- ton Rolling Mill Co., 125 F. 974; In re Man- ning, 123 F. 181. 15. In re Mandel, 127 F. 863; In re Man- ning, 123 F. 181. 10. Farmers' Bank v. Carr & fco. fC. C. A.] 127 F. 690. Chattel mortgage. Davis v. Tur- ner [C. C. A.] 120 F. 605. At the Inception of a loan a life insurance policy was assigned as security; held, creditor was only required to account for and credit Its value. In re Busby, 124 F. 469; Kennedy v. Pierce's Loan Co., 100 Mo. App. 269, 73 S. W. 357. A firm purchased stoclc and held the same as securi- ty for the money advanced in so purchasing; they sold the stock ■within four months of their principal's bankruptcy; held, such sale did not create a preference requiring them to surrender the same in order to prove their claim. In re Filer, 125 F. 261. See 1 Curr. L. 321, n. 77. 17. Stewart v. Hoffman [Mont.] 77 P. 689; In re Busby, 124 F. 469. Chattel mortgage. Pollock V. Jones [C. C. A.l 124 F. 162. 456 BANKEUPTCY § 9B. 3 Cur. Law, pomt m that ihe courts differ in their construction of the words "present eonsid- eration * ^ g^le to a bona fide purchaser is not rendered void because it is upon credit,*" though made within four months prior to the filing of the petition. Whether or not one is a bona fide purchaser is a question for the jury."" The tak- ing of security by a creditor is not evidence that the creditor believes the debtor insolvent."* A conveyance operating to hinder, delay or defraud creditors, made within, four months prior to filing the petition in bankruptcy, may be avoided by the trustee,"" and under the laws of some states, a transfer made within such period of four months without consideration, being void as to creditors, may be avoided by the trustee."' An assignment of exempt property is not fraudulent as to cred- itors."* Neither depositing money, while insolvent, in a creditor bank upon open ac- count subject to check,"' nor retaking of property sold under a conditional sale not filed until within four months of the filing of the petition, constitute a preference,"' nor does the payment of interest upon a lien on realty of the bankrupt."' Giving a deed within the four-month period, to complete a valid, bona fide contract therefor, executed before such four-month period, does not constitute a preferential trans- fer."* An assignment for the benefit of creditors,"' executing a written release,*" and identifying the chattels to which the lien of a mortgage is to attach,'* when done within four months prior to the filing of the petition, constitute preferential transfers. With respect to the date of the transfer of property, it is when the in- strument conveying the property is recorded,'" or when possession is taken," or 18. A. mortgage given to seciire a pre- existing a&bt is not rendered Invalid by the ■wo-rda "for a present consideration" In S 67, smbsee. d. Empire State Trust Co. v. Fisher Co.. [N. J. Bq.] 57 A. 502; Farmers' Bank v. Carr & Gov [a C. A.] 127 F. 690. 19. A transfer of property by a bank- rupt a few weeks before the commencement of the bankruptcy proceedings, whereby the transferee agrees to pay the balance of the pwrohase price due the original vendor, Is as valid as though the am:ount thus assumed by the transferee had been paid by him to the bankrupt in cash. Unmack. v. Douglass, 75 Conn. 63S, 55 A. 12. SO. Coolidge v. Ayers [Vt.J 57 A. 970. 21.. Empire State Trust Co. v. Fisher Co. [N. J. Eq.l 57 A. 502. 22. Sherman v. Luckhardt, S7 Kan. 682, 74 P. 277; In re Rpdgers [G. C. A.J 125 F. 1S9. An allegation that a transfer "was for the purpose of preventing" the "creditors from collecting an|y indebtedness due them by" the bankrupt Is equivalent to an allega- tion that It was with intent to "hinder or delay his creditors." Gray v. Brunold, 140 Cal. 615, T4 P. SOS. Where, In a suit to re- cover a preferential payment on the ground that it was made with Intent to Itinder, delay or defraud creditors, there is evidence that the payment was made bona fide in the satis- faction of a Just debt secured by an unrecord- ed mortgage, and that there were no other lien creditors, and that It did not appear that any of the creditors extended credit after the date of the mortgage; held suffi- cient evidence to support a verdict for de- fendant. IMekenson v. Stults [Ga.J 48 S. E. 173. A contract by a. bankrupt commission firm, some years before its bankruptcy, by which it agreed to do all Its business through another firm, obtaining the benefit of the latter's credit, held not invalid as a scheme to hinder, delay or defraud creditors- Ryt- tenberg v. Sohefer. 131 F. 313. 28. In California, It is not necessary for a trustee to prove In an action to set aside a transfer by an insolvent debtor without consideration, that it was done with Intent to delay or defraud the bankrupt's creditors. Gray v. Brunold, 140 Cal. 615, 74 P. SOS. 24. Assigned to daughter, without con- sideration, right to fund payable on insurance policy on life of assignor. If the latter died before expiration of endowment period. Fulslfer v. Hussey, 97 Me. 434, 54 A. 1076. 25. Though the bank may set off Its debt against such deposit. New York County Nat. Bank v. KTassey, 192 TJ. S. 13S, 24 S. Ct. 199; In re George M. Hill Co. [C. C. A.] 130 F. 315; In re Scherzer, 130 F. 631. 2«. As no title passes. Bradley v. Benson [Minn.] lOO N. W. 670. 27. The lien for statutory dower and In- terest having attached to realty years be- fore the bankruptcy, payment by the bank- rupt of accrued interest within four months of bankruptcy Is not a preference. In re Riddle's Sons, 122 F. 559. 28. Mercer's Trustee v. Mercer, 24 Ky. L. R. 2469, 74 S. "W. 285. 29. In re Slomka CC. C. A.1 122 F. 630. SO. Coolidge v. Ayers [Vt.l 57 A. 970. ai. First Nat. Bank v. Johnson [Neb.J 94 N. W. 837. 32. In re Mandel, 127 F. 863. This pro- vision refers to transactions originally In- tended as preferences, or which at their In- ception constituted such as a matter of law^. Bradley, Clark & Co. v. Benson [Minn.] 100 N. W. 670. 83. A bankrupt from time to time as- signed accounts due to a bank, receiving ad- vances thereon under an agreement that any surplus collected on such accounts should be applied to any other Indebtedness which might at the time be due the bank; held that such agreement related to the time when It became effective as to any particu- lar accounts by their delivery thereunder. 3 Cur. Law. BAFKEUPTCY § 9F. 457 notice is otherwise brought home to the creditors of the bankrupt,'* that is control- ling. The question of delivery being raised by the trustee in bankruptcy, it does not require as positive a change of possession as where the question is raised by a subse- quent bona fide purchaser for value, or a subsequently attaching creditor in good faith.'" Only existing creditors at the time of the transfer can object thereto,'* and a creditor's right to property acquired from the bankrupt is not concluded by his resistance of the involuntary proceedings instituted against his debtor." Though preferences are void under the bankruptcy act, yet the trustee cannot treat them as such for all purposes; he must first establish their invalidity in proceedings insti- tuted to have them set aside;'* nor does the former dismissal of involuntary pro- ceedings based on said transfer bind a trustee in this regard.'^ The action by the trustee to recover a preference is against the transferee,*" and he cannot pursue the property into the hands of a bona fide purchaser for value from such creditor.*^ He must sue suflBciently long before the expiration of one year from the adjudication to give the preferred creditor a reasonable time within which to surrender the prefer- ence and exhibit his claim against the estate.*^ The preferred creditor must return to the trustee the property,*' or its full value,** even though he has paid part to other creditors,*' and is not entitled to recover the amount actually turned over by him to the debtor.** (§9) F. Preferential payments." — A payment of money is a transfer of property,*' and hence the rules as to what constitutes a preference are the same.** The payment of reasonable fees," or giving security therefor"^ to an attorney for services then and thereafter to be rendered to the bankrupt, is not a preference, but such payments are valid only in so far as subsequently approved by the court ;'^ nor is the giving of post-dated checks,"' or a secret advantage to one creditor in a composition."* Payment by an insolvent, within four months prior to the filing and accounts assigned and delivered by the debtor when Insolvent, and within four months of the filing of the petition, the ap- plication of the surplus realized therefrom over the amount advanced to a prior indebt- edness constituted a preference. In re Man- del, 127 F. 863. In the case of a preference by way of an unrecorded chattel mortgage, the transfer dates from the acquisition of possession under the mortgage. Tatman v. Humphrey, 184 Mass. 361, 68 N. B. 844; In re Ball, 123 F. 164. 34. In re Mandel, 127 F. 863. 35. Marking and setting aside is sufficient. Allen V. Hollander, 128 F. 159. 36. Partnership used firm assets to pay individual debts of one of the partners. Mer- chants' Bank v. Thomas [C. C. A.] 121 F. 306. 37. Pepperdine v. Bank of Seymour, 100 Mo. App. 387, 73 S. W. 890. 38. Where a policy of fire Insurance is as- signed after a fire fn order to prefer a creditor, the bankrupt cannot sue thereon unless reassigned, though it is surrendered to him by the creditor. Traders' Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 426. 39. A judgment dismissing a petition in involuntary bankruptcy on the ground that an alleged preferential transfer of property is not sustained is not an adjudication which could bind a trustee subsequently appointed on an adjudication made by another court, in a suit brought by him against the alleged preferred creditor to recover the property. In re Sears, Humbert & Co. [C. C. A.] 128 F. 276. 40. Not aealnst the bankrupt. Gray v. Brunold, 140 Cal. 615, 74 P. 303; Hackney v. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. 41. Property fraudulently transferred by bankrupt to his wife, held could not be re- covered from a bona fide vendee of the wife. Hackney v. First Nat. Bank [Neb.] 98 N. W. 412. 42. Swartz V. Frank [Mo.] 82 S. W. 60. 43. 44. Hackney v. First Nat. Bank [Neb.] 98 N. "W. 412. 45. Whitson v. Farber Bank [Mo. App. I 80 S. W. 327. 46. Bonnie & Co. v. Perry's Trustee, 26 Ky. L. R. 1560, 78 S. W. 208. 47. See 1 Curr. L. 321. 48. Dickenson v. Stults [Ga.] 48 S. B. 173. 49. See ante, "Preferential transfers," for elements. 60. Swartz v. Frank [Mo.] 82 S. W. 60; Pratt v. Bothe [C. C. A.] 130 F. 670. Bl. Mortgage. Furth v. Stahl, 205 Pa. 439, 66 A. 29. 52. In re Morris, 125 F. 841. 53. Transfer takes place at the time of actual payment. In re Lyon [C. C. A.] 121 F. 723. But see 1 Curr. L. 321, n. 81. 64. Note was given by debtor to creditor besides allowing latter to share with other creditors. Transaction took place several years before debtor's bankruptcy and be- fore the passage of the bankruptcy act of 1898, but the court holds this makes no difference. Batchelder & Lincoln Co. v. Whitmore [C. C. A.] 122 F. 355. See 1 Curr. L. 321, n. 82. 458 BANKEUPTCY § lOA. 3 Cur. Law. of the petition in bankruptcy, of notes, is a preference,"' and the trustee may re- cover such payments from the payee, though there were solvent indorsers on the note.'* Such a preference must be considered as having been given at the date of the payment of the note, not at the date of its delivery.^^ Payments upon loans made previous to the first of such payments are also preferences.'* A payment made by a third party to a creditor of a bankrupt is not a preference to such cred- itor,^' and the trustee cannot recover as a preference sums collected within four months prior to the filing of the petition by a' creditor from third persons, under a contract which had b^en in force between the bankrupt and the creditor for a number of years."" Payments by a bankrupt, within four months prior to the filing of the petition, upon a running account, and extension of new credits to him in good faith and the usual course of business by the vendor, the net result being a gain to the estate, do not constitute preferences,"^ but the result not so being, only the sum which is the direct loss to the estate constitutes the amount of the prefer- ence."^ A suit in equity by a bankrupt's trustee to recover a preferential payment cannot be objected to on the ground of the existence of an adequate remedy at law."' § 10. Collection, reducUon to possession, and protection of property. A. Dis- covery.^^ — The examination of third persons concerning the bankrupt's estate lies in the discretion of the court."' A court of bankruptcy cannot make an order on the application of the trustee of a bankrupt, whose estate is being administered in another district, requiring persons residing in the district to appear before the referee for examination concerning the acts, conduct, or property of the bankrupt,"" though the contrary has been held."' The court having charge of the administra- 55. Notes were In the hands of indorsee. In re George M. Hill Co. [C. C. A.] 130 F. 315. See 1 Curr. L. 322, n. 91. 5«. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. See 1 Curr. L. 322, n. 92. 57. In re Wolf, 122 F. 127. 38. It is Immaterial that all the loans were made during insolvency, and -within the four-month period. In re Colton Export & Import Co. [C. C. A.l 121 F. 663. 59. See ante, "Preferential transfers." Keegan v. Hamilton Nat. Bank [Ind.] 71 N. E. 647; Goode v. Elwood Lodge, No. 166, K. P., 160 Ind. 251. C6 N. E. 742. See 1 Curr. L,. 319, n. 86. 60. Ryttenherg v. Schefer, 131 F. 313. 6X. "The law does not demand the seg- regation of the purchases into independent Items so as to create distinct pre-existing debts." Jaquith v. Alden, 189 IT. S. 78, 23 S. Ct. 649, 47 Law. Ed. 717; Taple v. Dahl- Millikan Grocery Co., 193 U. S. 526, 24 S. Ct. 562; In re Sagor [C. C. A.] 121 F. 658. But where notes are given by a debtor to pay for goods purchased, and while still unpaid the creditor sells other goods to the debtor, who thereafter pays the notes when insolvent and within four months of filing the petition In bankruptcy, such payment constitutes a preference, which must be surrendered be- fore the last account can be proved. In re Jones, 123 F. 128. Prior to the amendment of 1903, all indebtedness of a bankrupt to a particular creditor existing four months before the filing of the petition was to bo treated as one claim, and any payment made and received even in good faith by both par- ties during the four-month period and while the debtor was Insolvent was a preference; this rule has now been changed. In re Del- ling, 124 F. 852. See 1 Curr. L. 321, n. 88, 89. 62. Bankrupt borrowed money of bank and also obtained a discount of customers' notes, the bank also discounted notes given by the bankrupt to third parties, the net result of the transactions within four months of filing the petition being to decrease the bankrupt's direct indebtedness on its own notes given to the bank and to third parties, and to increase Its contingent indebtedness on indorsements of customers' notes. Held, the latter should not be considered in de- termining the amount of preferences received by the bank, but that the excess of payments over new credits on both the other Items of direct indebtedness, taken together, consti- tuted a preference, which must be surren- dered In order to prove a claim against the estate. In re George M. Hill Co. [C. C. A.] 130 F. 315. Under a pattern contract pro- viding for the exchange of old patterns for new ones, patterns returned for exchange by the bankrupt within four months preceding the bankruptcy cannot be deemed a prefer- ence, the creditor being required to surrender as a preference only the excess of cash payments received during that time over the value of the patterns shipped during the same time. In re Nicholas, 122 F. 799. 63. Such suit is analogous to a suit by a judgment creditor to set aside a fraudulent; conveyance. Pond v. New York Nat. Exoh. Bank, 124 F. 992. 64. See 1 Curr. L. 322.. 65. Creditor has not an unqualified right to such an examination. In this case third party was bankrupt's common-law assignee. In re Andrews, 130 F. 383. 66. In re Williams, 123 F. 321. 67. In re Sutter Bros., 131 F. 654. 3 Cur. Law. BANKEUPTCY § lOB. 459 lion of the bankrupt estate has the power to order the taking of the deposition of any person having knowledge concerning the acts, conduct, or property of the banki-upt, but who resides beyond the district or state, and more than 100 miles from the court,'* and to compel, by proper process, the persons, so ordered to be examined, to testify fully in regard thereto.*" When necessary the bankrupt's wife may be examined."" (§10) B. Compelling surrender by banhrupt.''^ — The bankruptcy court, in the absence of fraud or concealment, can only order the bankrupt to deliver to the trustee such property as he. has in his possession, or under his control,'^ and that he has such property in his possession or under his control must appear by almost incontestable ju'oof.''' Denial by the bankrupt under oath is not conclusive,^* it appearing that the banlirupt had property shortly before the adjudication, of which no account nor credible explanation is given, the court may consider the property or its proceeds as being still in the possession or under the control of the bankrupt,^" and the court can enforce obedience to such order by imprisonment for contempt,'^'' but before committing the bankrupt the court should give him an opportunity to prove his inability to comply with the order.^' The commitment of the bankrupt for refusal to surrender property is not imprisonment for debt,'* and the bankrupt may be imprisoned for knowingly and fraudulently concealing from his trustee property belonging to his bankrupt estate.'" The obtaining of an order requiring a bankrupt to pay over or surrender certain property should ordinarily be by a mo- 6S, 89. In re wnilams, 123 F. 321. 70. There being reasonable ground there- for a bankrupt's wife may be examined to determine whether a business conducted in her name is in fact hers or the bankrupt's, and may be asked such questions as are per- tinent to that inquiry. In re Worrell, 125 F. 159. 71. See 1 Curr. L. 322. 72. In re Gerstel, 123 F. 166. In re Kane, 12.5 F. 984. 73. Proof that defendant had not been seen gambling-, at which he claimed to have lost part of the money, and that if a state- ment made to a commercial agency was true he should have more on hand, the bankrupt denying the truth of this statement is not sufficient to warrant such an order. In re Adler. 129 F. 502; In re Felson, 124 F. 288. Cannot order him to turn over money col- lected from his debtor after he had received notice or knowledge of the filing of the pe- tition by creditors to have him adjudged a bankrupt, which money has since passed Into the possession of others and is not under the control of the bankrupt, there being no fraud whatsoever. American Trust Co. v. Walll.s [C. C. A.] 126 P. 464. 74. If the court from the evidence finds that he has the property in his possession or under his control it may require him to surrender it or commit him for contempt in spite of such denial. Schweer v. Brown [C. C. A.] 130 F. 328. On answer of a bank- rupt to a rule to show cause. In re Gerstel, 123 F. 166. 75. In pe Gerstel, 123 F. 166. See 1 Curr. Li. 323, n. 6. It is not a sufficient accounting of money traced into a bankrupt's hands for him to say that he gave it to hia wife, who spent It for the benefit of himself and family, it not appearing that such sum was necessary to their maintenance. In re Kane, 125 F. 984. Bankrupt's testimony In explanation of disposition of funds being uncorroborated, al- though if true it apparently could easily have been corroborated, held sufficient to justify order requiring him to turn over the money. In re Henderson, 130 F. 385. A bankrupt claimed to have paid the assets in question to certain creditors but, though given every op- portunity, failed to corroborate his statement as to such payments by producing such cred- itors, held an order directing him to pay to his trustee the amount so alleged to have been paid to the creditors not produced was proper. In re Leinweber, 128 F. 641. Where the bankrupt, a merchant In a town of 100 inhabitants, at the beginning of the four months' period, had a stock of goods worth $5,000 and $1,000 In money and accounts, "within that time he bought goods of the value of over $27,000, these latter goods he sold immediately and failed to account for the proceeds except to say that he had gam- bled it away, held sufficient to justify court to find that he had the proceeds under his control or In his possession. Schweer v. Brown [C. C. A.] 130 F. 328. 76. In re Gerstel, 123 F. 166. This is the sole purpose of a contempt proceeding against a bankrupt. In re Kane, 125 F. 984; In re Goldfarb Bros., 131 F. 643. See 1 Curr, L. 3"22, n. 4. 77. In re Hausman [C. C. A.] 121 F. 984 See 1 Curr. L. 322, n. 5. 78. Schweer v. Brown [C. C. A.] 130 F. 328. 79. Evidence that a bankrupt had received from three or four persons, who owed him money at the time his voluntary petition was filed, several small sums on account of their debt, and that he applied the money so re- ceived to the payment of two of his own creditors held Insufficient to establish a fraudulent concealment of assets. U. S. v. I.owenstein, 126 F. 884. 460 BANKEUPTCY § IOC. 3 Cur. Law. tion for a rule' upon him to show cause,'" sometimes by a mere affidavit,'^ and never by a formal petition and pleadings, as in a suit in equity, unless the purpose is to bring to the notice of the court some outside party who is not bound or ready to take notice of the proceedings in bankruptcy, or some outside matter that does not appear by the ordinary record.*'' (§ 10) C. Property in possession of officers appointed by state courts.*^ — A state court acquiring jurisdiction over a bankrupt's property more than four months before the filing of the petition in bankruptcy, its right to control and administer the property for the purposes for which it acquired jurisdiction, is superior to the bankruptcy court,'* but if the suit in the state court was begun and seizure made within such four month period,'" or after the filing of the petition,'' the right of the bankruptcy court over the property is superior to, and after adjudication'^ ex- clusive of the state court, and, after the adjudication, the. bankruptcy court will not permit any person, even though he be an officer of a state court acting under its process," to interfere with the property in its custody or in the possession of its officers. Actions in the state court, if not stayed, continue, and the debtor, even though a bankrupt, may be compelled to observe and obey all lawful orders of the state court,'* and an application to restrain a state court from punishing a bank- rupt for contempt may be treated as an application for a stay of the proceedings in the state court."" A court of bankruptcy has no power to enjoin the plaintifEs, in suits against the bankrupt in the state courts, from collecting their judgments from the surety upon the bankrupt's bail bond.°^' A court of bankruptcy has juris- diction to compel an assignee for the benefit of creditors of the bankrupt, under an assignment constituting an act of bankriiptcy, to turn over to the trustee or ac- count for the property which came into his hands under the assignment,'* and the trustee is bound to bring an action to recover property so held," which action may be brought in a court of bankruptcy,'* and a purchaser at a sale by an assignee for the benefit of creditors, having made no payment, acquires no title to the property purchased as against the trustee in bankruptcy of the assignor subsequently ap- pointed on an adjudication based on the assignment." A bankruptcy court will not summarily dispossess the receiver or other officers of a state court," but only by formal proceedings taken by its own receiver or trustee for that purpose," and 80, 81, 82. In re Adler, 129 F. 502. 83. See 1 Curr. L. 323. 84. General assignment for the benefit of creditors. In re Knight, 125 P. 35; Blooh v. Bloch, 42 Mlso. 278, 86 N. T. S. 1047. 85. It Is Immaterial that the suit in the state court was for the enforcement of a valid lien created before the four month period. In re Knight, 125 P. 35. A state court can- not by the appointment of a receiver because of insolvency obtain priority of jurisdiction to administer the property of a debtor to the exclusion of a court of banlcruptcy. Id., 86. In re Weinger, Bergman & Co., 126 P 875. Action to foreclose a mortgage. In re Kellogg [C. C. A.] 121 P. 833. A creditor recovering property under a writ of replevin In a state court before the adjudication in bankruptcy the state court has jurisdiction to continue the replevin action. McParlan Carriage Co. v. Wells, 99 Mo. App. 641, 74 S. W. 878. 87. In re Knight, 126 P. 36. State court Is without Jurisdiction to determine the right to the possession of the property In a suit instituted after the adjudication (In re Reyn- olds, 127 P. 760); or to determine conflicting claims as to the title and right of possession (Mlshawaka Woolen Mfg. Co. v. Powell, 98 Mo. App. 530, 72 S. W. 723). An action of replevin cannot be commenced and main- tained against the trustee to recover prop- erty in the possession of and claimed by the bankrupt at the time of the adjudication and in the possession of the referee at the time the action is commenced. Crosby v. Spear [Me.] 67 A. 881. 88. Cannot be taken by a sheriff under a writ of replevin issuing out of a state court. Mlshawaka Woolen Mfg. Co. v. Powell, 98 Mo. App. 630, 72 3. W. 723; In re Reynolds, 127 P. 760. 89. Proceedings supplementary to execu- tion are proceedings In the action. In re William B. De Lany & Co., 124 P. 280. 90. No fine having been imposed, and it being evident that no actual contempt was .Intended. In re William B. De Lany & Co. 124 P. 280. 91. Jaqulth V. Rowley, 188 IT. S. 620, 21 S. Ct. 369, 47 Law. Bd. 620. 92. In re Thompson, 122 P. 174. 93. 94, 95. In re Knight, 125 P. 36. 96. Ross-Meeham Foundry Co. v. South- ern Car & Foundry Co., 124 P. 403. 97. Will not interfere with the possession 3 Cur. Law. BANKEUPTCY § lOD. 461 the state court, upon proper application being made pursuant to an order of the bankruptcy court, will order its receiver to turn over the assets of the bankrupt to the bankruptcy receiver or trustee,"' and the state receiver must apply to the bank- ruptcy court for the allowance of his commissions and expenses."" The bankruptcy court can only compel the state court's receiver to turn over such assets of the bank- rupt as the latter's creditors are entitled to share in,^ a state court having juris- diction to complete pending mortgage foreclosure proceedings, its receiver is en- titled to the possession of the property covered by the mortgage,* but as to the surplus arising from the mortgage sale,' or a sale upon execution,* the trustee in bankruptcy is entitled to possession. (§10) D. Summary proceedings against third persons; jurisdiction.^ — A court of bankruptcy has no jurisdiction to summarily require a third person to pay over money or surrender property in his possession, and to which he claims an ad- verse right as against the bankrupt's estate," except where such court finds it ab- solutely necessary for the preservation of the estate to take the possession of the property from the adverse claimant by means of its ofScers.' The court, or a ref- eree, has jurisdiction to summarily determine the question of the validity of the claim of a third party to a lien upon, or an interest in, property, or the proceeds of property, lawfully in the custody of a trustee in bankruptcy,' but the court has no jurisdiction of a plenary suit in equity for that purpose, brought by the trustee against the creditor, where the latter is a foreign corporation, and does not con- sent nor appear," but it has jurisdiction if the property is in the hands of the bank- rupt at the time of filing the petition.^" The court may determine whether a real or pretended adverse claim exists,'-^ the claim being adverse the issues are only determinable by a plenary suit,*^ but if it finds such claim to be colora- ble it has power to summarily place its receiver or trustee in bankruptcy in pos- of the state court until after an application to the state court by the receiver or trustee of the bankruptcy court for the surrender of the possession to him and the unwarranted refusal of the state court to recognize the Jurisdiction and authority of the bankruptcy court. Ross-Meeham Foundry Co. v. South- ern Car & Foundry Co., 124 F. 403. 98, 99. Bloch V. Blooh, 42 Misc. 278, 86 N. Y. S. 1047. 1. Cannot compel him to turn over the share of a solvent tenant in common in the proceeds of the sale of common property. In re English [C. C. A.] 127 F. 940. a. Merry v. Jones, 119 Ga. 643, 46 S. E. 861. This is true though the mortgagee also pays for relief usually incident to state insolvency proceedings, though this is not true of the converse of this statement. Merry v. Jones, 119 Ga. 643, 46 S. E. 861. See 1 Curr. L. 323, n. 12. 3. Merry v. Jones, 119 Ga. 643, 46 S. B. 861. See 1 Curr. L. 323, n. 13. 4. A constable is liable to a debtor's trus- tee in bankruptcy for any surplus received, or which he failed to collect, from a sale of the debtor's property upon execution. In re Geiser, 129 F. 237. 5. See 1 Curr. L. 323. 6. In re Flynn & Co., 126 F. 422; In re Knickerbocker, 121 F. 1004; In re Teschmaoh- er & Mrazay, 127 F. 728; In re Rochford [C. C. A.] 124 F. 182. Has jurisdiction where not held under an adverse claim. In re Bres- lauer, 121 F. 910. See 1 Curr. L. 323, n. 15. 7. Such a seizure and the determination of the issue thus raised between the trustee and the adverse claimant is a proceeding in bankruptcy as distinguished from a contro- versy at law or in equity and hence within § 23 of the act of 1898. In re Rochford [C. C. A.] 124 F. 182. 8. In re Rochford [C. C. A.] 124 F. 182. May try and determine the title to property found in the possession of the bankrupt, which had been purchased and delivered to him. In re Mertens, 131 F. 507. An agree- ment between a creditor and a trustee In bankruptcy, whereby a creditor turns over a fund claimed by him to the trustee to be held by him for the creditor's benefit, subject to the bankruptcy court's order, gives that court authority to determine by a summary proceeding the right to the fund. Havens & Geddes Co. v. Pierek [C. C. A.] 120 F. 244. 9. Havens & Geddes Co. v. Pierek [C. C. A.] 120 F. 244. 10. In re Leeds Woolen Mills, 129 F. 922. 11. In re Breslauer, 121 F. 910. The ref- eree may so do. In re Knickerbocker, 121 F. 1004; In re Teschmacher, 127 F. 728. Claim of seizure or process from a "state court. In re Weinger, Bergman & Co., 126 F. 875; In re Kane, 131 F. 386. See 1 Curr. L. 323, n. 16-18. la. Pleadings verified. In re Kane, 131 F. 386. The petition not alleging that the re- spondent's claim Is colorable only, and re- spondent promptly objecting to the form of the proceeding, the bankruptcy court has no jurisdiction to determine the matter except by plenary suit. In re Scherber, 131 F. 121. 462 BANKEUPTCY § lOE. 3 Cur. Law. session of the property.*' As to whether or not the court may acquire juris- diction to summarily determine an adverse claim upon its merits by consent, there is a conflict in the decisions.'* An adverse claim, to defeat these proceed- ings, must be a holding of the property at the time the petition was filed under a bona fide claim of ownership,'" a mere lien,'° or a claim by bailors," are not such adverse claims, but a creditor's title to the proceeds of a sale upon execution," the right of a surety on the bankrupt's bail bond to property left with him by the bankrupt to indemnify him for his liability,'* and that of a buyer claiming under an executed sale from the bankrupt,'"' are such adverse claims, as is the claim of a party to whom it is alleged the bankrupt has fraudulently conveyed propert;-'," and that of one claiming to have received a preference without reasonable cause to be- lieve that a preference was thereby intended. ^^ Where property is claimed ad- versely to a trustee the latter must proceed to obtain possession like any other owner,"' and by regular proceedings in courts having jurisdiction,"* the state and Federal courts having concurrent Jurisdiction in this regard."' (§ 10) E. Actions to collect or reduce the property to the trustee's posses- sion."^ — The trustee may bring an action in the state"^ or Federal"* courts, at any time within two years of the date when the estate was properly closed,"* with- out first obtaining an order to do so from the court of his appointment.'" Denial of the trustee's appointment and qualification raises a- material issue which must be determined before he is entitled to judgment." The trustee in bankruptcy IS. Where property was taken after the filing of the petition In bankruptcy on a writ of replevin which described other property than that seized, the court has the power to order its surrender by the person in posses- sion to the receiver or trustee in bankruptcy. In re Weinger, Bergman & Co., 126 F. 875; In re Kane, 131 F. 386. 14. That it may. In re Adams, 130 F. 788. That it cannot. In re Teschmacher & Mrazay, 127 P. 728. Of course if such claim- ant went on with the summary proceedings to the very end and only objected to the ju- risdiction after a decision against him, the objection is not likely to receive much con- sideration, but a seasonable exercise of his right to object is entitled to protection. Id. See 1 Curr. L. 323, n. 17. 15, 16. In re Breslauer, 121 F. 910. Has jurisdiction to determine, in summary pro- ceedings before the referee, the validity of a mortgage on property of the bankrupt of which the trustee has obtained the posses- sion and legal title. In re Kellogg [C. C. A.] 121 F. 333. 17. Bailors permitting their goods, in the hands of an insolvent bailee becoming bank- rupt to pass Into the custody of the receiv- ers or trustees in bankruptcy cannot occupy the attitude of adverse claimants in deter- mining the jurisdiction of the court. In re Leeds Woolen Mills, 129 F. 922. 18. A creditor's title to the proceeds of an execution, fssued against the bankrupt within four months of filing the petition, which have been actually paid to the credit- or by the sheriff. In re Knickerbocker, 121 F. 1004. 19. It is not necessary that the surety should claim to be the absolute owner of the property in his possession, it is sufficient If his liability has not been determined o^ satisfied. Jaqulth v. Rowley, 188 U. S. 620, 23 S. Ct. 369, 47 Law. Bd. 620. ao. In re Flynn & Co., 126 F. 422. 21. McNulty V. Peingold, 129 F. 1001; In re Hartman, 121 F. 940. 22. In re Adams, 130 F. 788. 23. Ross-Meeham Foundry Co. V. South- ern Car & Foundry Co., 124 F. 403. 24. Must make necessary persons parties, serve proper process, and file proper plead- ings. Ross-Meeham Foundry Co. v. South- ern Car & Foundry Co., 124 F. 403; In re Knickerbocker, 121 F. 1004; In re Tesch- macher & Mrazay, 127 F. 728. 23. An adverse claimant may bring suft in the state court, and try title to the prop- erty, but after the Jurisdiction of the bank- ruptcy court has attached he cannot take the property in specie out of the possession of the court or any of Its agents. Crosby v. Spear tMe.] 57 A. 881. Receiver cannot en- join trover brought In the state court. If the action was replevin, quaere. In re Kan- ter [C. C. A.] 121 F. 984. 26. See 1 Curr. L. 324. 27. See next subdivision, Jurisdiction of Courts. Clevenger v. Moore [N. J. Law] 5S A. 88. 28. See next subdivision, "Jurisdiction of Courts." 29. Estate had been improperly closed and then re-opened, held action could be brought at any time within two years of final closing. Bilafsky v. Abraham, 183 Mass. 401, 67 N. E. 318. 30. Traders' Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 426. Need not have written author- ity. McLanahan v. Blackwell, 119 Ga. 64, 45 S. E. 785. 31. Prevents judgment on the pleadings. Denial that alleged trustee is or ever was "tlje duly elected, appointed, qualified or act- ing trustee" of said bankrupt estate held sufficient. Summerville v. Stockton Mill. Co., 14S Cal. 529, 76 P. 243. 3 Cur. Law. BANKEUPTCY § lOE. 463 may maintain an action against a creditor whose name did not appear in the list of creditors, and who had no notice of the baniruptcy proceeding, to recoyer money collected in fraud of creditors,'^ and he need make no demand in order to recover property unlawfully transferred by the bankrupt." An action to recover a prefer- ence is one at law not in equity,'* but the trustee's action to recover the value of a preference should be one in equity for an accounting,"" and he should also use a bill in equity to have a fraudulent conveyance set aside."" An action by the trustee to set aside a conveyance by the bankrupt, made with the intent to hinder, delay, or defraud creditors, is an action for relief on the ground of fraud,"^ and hence is governed by the statute of limitations as to such actions,'^ but an action to recover a preferential payment is not an action for fraud."" In a suit to set aside a transfer by the bankrupt as fraudulent, and as a preference, the case should not be referred to a jury until it appears on trial that it is necessary or desirable that the issues be so determined.*" The defense of usury is available to the trustee in bankruptcy against a mortgage given by the banlirupt, the trustee having title to the property.*^ A judgment for defendant in an action by the trustee to determine the ownership of property is a bar to a subsequent action by the trustee to recover the proceeds thereof on the same grounds,** and this is true though the judgment in the first case was not given upon the merits.*' Jurisdiction of courts.^* — The trustee taking actual possession of property, al- though it be in another state, it is in the custody of the bankruptcy court admin- istering the estate.*'* In a suit by a trustee to recover a fund for the estate, de- fendant appearing generally and answering to the merits, the bankruptcy court has jurisdiction by consent.** As to whether or not a Federal court has jurisdic- tion, in the absence of consent, of an action by the trustee to set aside an alleged fraudulent transfer of property there is a conflict in the decisions.*' Since the amendatory act of 1903 tlie bankruptcy court has jurisdiction of suits for the re- covery of preferences.*' The trustee may bring an action against a foreign cor- poration to collect a demand due the bankrupt, in the district where the bankrupt's family resides, though the bankrupt has absconded.** A state court has jurisdic- tion of an action by a trustee to collect an assessment levied upon the stockholders of a bankrupt corporation.^" Parties.^^ — In an action by a trustee in bankruptcy to set aside an alleged fraudulent chattel mortgage, subsequent mortgagees of the same property are not 33. Roberts v. Fernald [N. H.] 55 A. 942. 33. Goldberg V. Harlan [Ind. App.] 67 N. B. 707. 34. Hodges V. Kohn [S. C] 45 3. E. 102. 35. Houghton V. Stiner, 92 App. Dlv. 171, 87 N. T. S. 10. 38. Thompson V. First Nat. Bank [Miss.] 36 So. 65. 37, 38. Harrod v. Parrar [Kan.) 74 P. 624. 39. Baden v. Bertenshaw [Kan.] 74 P. 639. 40. Bare statement that a jury of business men Is better qualified to pass on the ques- tions to be presented is insufficient. Evans V. National Broadway Bank, 88 App. Dlv. 549, 85 N. Y. S. 101. 41. In re KeHogg [C. C. A.] 121 F. 333. 4a. First action was to determine owner- ship of insurance policies, alleged to have been fraudulently transferred by the bank- rupt, second action to recover fund realized therefrom. Bngel v. Union Square Bank, 87 N. T. S. 1070. 43. Entered upon a dismissal of the com- plaint for failure of proof. Engel v. Union .Square Bank, 87 N. T. S. 1070. 44. See 1 Curr. L. 324. 45. Referee has Jurisdiction to order Its sale free from Hens. In re Wllka, 131 P. 1004. 46. Ryttenberg v. Schefer, 131 F. 313. 47. See 1 Curr. L. 324, n. 41. That it has. McNulty v. Feingold, 129 F. 1001. Has concurrent jurisdiction with the state court. Johnston v. Forsyth Mercantile Co., 137 P. 845. That it has not. Gregory v. Atkinson, 127 F. 183. 48. Section 8 of the Ray bill (Act Feb. 5, 1903) amending § 23b of the bankruptcy act of 1898, 30 as to give the bankruptcy court Jurisdiction of suits for the recovery of cer- tain preferences, is qualified by § 19 of the amendment of 1903, which provides that the provisions of the act shall not apply to pend- ing cases. In re Hartman, 121 F. 940. 40. Sims V. Union Assur. Soc, 129 P. 804. 50. In such an action the validity of the assessment cannot be questioned. Clevenger V. Moore [N. J. Law] 58 A. 88. !5l. See 1 Curr. L.. 324, n. 39, 40. 464 BANKEUPTCY § lOE. 3 Cur. Law. necessary parties, "" and a so-called separate answer of the bankrupt alleging such facts, and that such persons had not been made parties to the action, is properly considered as a demurrer for a defect of parties."*' In an action to set aside an alleged fraudulent conveyance, all who were parties to the fraud, or who have ac- quired part of the property claimiag title thereto are proper defendants.'* A trustee in bankruptcy of a judgment debtor in a creditor's bill in a state court may not be substituted as complainant in the absence of an order of the Federal court that the lien be preserved by the trustee for the benefit of the estate,^^ and the petition of a trustee in bankruptcy asking to be substituted as party plaintiff ia a creditor's bill filed by a creditor of the bankrupt, who has filed his claim before the referee in bankruptcy, must allege that such creditor has waived his security.'* Pleading.^'' — The pleadings are governed by the equity rules as to pleadings." The complaint in an action to recover a preference must allege insolvency at the date of the transfer,"" that the preference was given within the four months im- mediately preceding the filing of the petition,"" and that the creditor had reasonable cause to believe that a preference was thereby intended."^ In a suit to recover prop- erty fraudulently transferred, the general rule that where fraud is relied upon the facts and circumstances upon which reliance is had must be clearly and concisely set out applies."^ A bill in equity to recover property alleged to have been fraud- ulently conveyed will not be dismissed though it alleges that the property was ob- tained by fraud, through a conspiracy, and that an accounting is necessary."' The complaint in an action by a trustee to recover money belonging to the bankrupt must allege nonpayment.'* An allegation of conspiracy on the part of the bank- rupt and defendants is sustained by proof that any two of the defendants so con- spired." Evidence.*' — The competency of a witness before the bankruptcy court must be determined by the laws of the state in which the proceediags are pending."' Copies of the proceedings in bankruptcy in order to be admissible in evidence in another court must be certified according to the provisions of the national bank- ruptcy law,*' and where introduced at the trial of a suit by a trustee in the state court to prove a fact collateral to the main issue, it is unnecessary to support ihem 52. In this case subsequent mortgagees had not filed their mortgages as required by law. Shanks v. National Casket Co., 88 N. T. S. 839. 63. Shanks T. National Casket Co., 88 N. T. S. 839. 84. Sexton v. Sebrlng, 89 N. Y. S. 372. 5.5. Kinmouth v. Braeutigam [N. J. Eq.] 67 A. 1013. 56. Mere allegation of the filing of the creditor's claim and its allowance Is insuffi- cient. Kohout V. Chaloupka [Neb.] 96 N. W. 173. 57. See 1 Curr. L. 324. 58. The petition alleging that the property was not assigned for a present fair consider- ation, an answer denying this allegation need not set forth in detail all the circumstances connected with the facts alleged in the an- swer. McNulty V. "Wiesen, 130 F. 1012. 50. It will not be presumed In the appel- late court. Schilling v. Curran [Mont.] 76 P. 998. 60. Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751. 61. Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751. See 1 Curr. L. 324, n. 43. ea. A bill by a bankrupt's trustee to set aside a conveyance as fraudulent to creditors alleging that the goods were sold at a gross- ly Inadequate price (stating the figures) and that the sale was conducted at night, and be- fore business hours, and with great secrecy, and that the purchaser knew of the bank- rupt's condition and, paying for the goods before an Inventory could be taken, paid too large an amount, part of which was refund- ed, held sufficient to withstand demurrer for Indefiniteness. Johnson v. Forsyth Mercan- tile Co., 127 F. 845. 63. Lyon v. Clark [Mich.] 100 N. "W. 611. 64. Where the bankrupt had make an as- signment for the benefit of creditors prior to bankruptcy, it must allege nonpayment to the trustee, assignee, or bankrupt. Cohen V. Wagar, 87 App. Div. 255, 84 N. T. S. 377. «5. Saxton v. Sebring, 89 N. Y. S. 372. 66. See 1 Curr L. 324. 67. In re Josephine, 121 F. 142. In those states where a husband cannot testify against his wife w^ithout her consent, the petition and schedule thereto attached are Inadmissible In evidence against the wife of the bank- rupt without her consent. Action by trustee to recover property fraudulently conveyed. Halbert v. Pranke [Minn.] 97 N. W. 976. 68. A. Lehmann & Co. v. Elvers, 110 La- 1079, 35 So. 296. 3 Cur. Lav. BANKEUPTCY § lOB. 465 by establishing the jurisdiction of the Federal court over the bankrupts." A copy of the testimony given by the bankrupt before the referee, and which he states to be true, is inadmissible in a suit by his trustee to set aside an alleged preference.^" The testimony of officers of a bankrupt corporation taken under either section 7, cl. 9, or section 21a, being reduced to writing, is admissible in a subsequent pro- ceeding against them to recover property alleged to be in their possession or under their control,^^ but the testimony of one other than the bankrupt, or if a corpora- tion, other than an officer or stockholder thereof, not being directed to any defined issue is inadmissible in such proceeding.'^ In an action to recover an alleged pref- erence, the burden of proof is upon the trustee to prove all the essentials of a pref- erential transfer j'' he must prove the payment or transfer by the debtor to the creditor,'* that the debtor was insolvent at the time of the transfer,'" that the preference was given within the four months immediately preceding the filing of the petition,'' that the creditor had reasonable cause to believe a preference was thereby intended," that a preference actually resulted," and in those courts where it is held that the bankrupt must intend a preference, that fact must be proven by the trustee.'" In an action to set aside a fraudulent conveyance the burden of proof is upon the trustee to prove the fraud,^° and where he seeks to recover the value of property reconveyed by a vendee under a fraudulent conveyance from the grantor, the value of the goods so reconveyed.^"^ The uncontradicted testimony of the creditor receiving the alleged preference that he did not know of the debtor's insolvency is sufficient to defeat a recovery.'^ Evidence that defendant's attorney was present at the bankruptcy proceedings is admissible to show defendant's knowl- edge thei-eof.^' Acts of the bankrupt, in which the purchaser did not participate, occurring after the sale and payment are not competent evidence on the question of the purchaser's intent or knowledge.'* Fraud may be proved by circumstantial evidence.'" It has been held that the adjudication in bankruptcy conclusively es- tablishes that a preference was intended." Though evidence showing the due ap- pointment of a trustee be admitted without objection, its sufficiency may be after- wards questioned." Facts determined in the bankruptcy proceedings are not ad- 69. Properly certified copies of the adjudi- cation and of the order of the referee approv- ing the bond of the trustee are admissible in an action by the latter to recover a fraudulent preference, -without showing the bankrupt had been served with a subpoena or had appeared before adjudication. Whlt- son V. Farber Bank [Mo. App.] 80 S. W. 327. 70. Bankrupt embodied it as part of a dep- osition. Bonnie & Co. v. Perry's Trustee, 25 Ky. L,. R. 1560, 78 S. W. 208. 71. 72. In re Alphin & Lake Cotton Co., 131 F. 824. 73. Dickenson v. Stults [Ga.] 48 S. E. 173. 74. Kimball v. Dresser [Me.] 57 A. 787. 75. In re Mandel, 127 F. 863; Kimball v. Dresser [Me.] 67 A. 787. See 1 Curr. L. 324, n. 46. 76. Baden v. Bertenshaw [Kan.] 74 P. 639; Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751; In re Mandel, 127 F. 863. 77. Greene v. Montana Brewing Co., 28 Mont. 380, 72 P. 751; Thompson v. First Nat. Bank [Miss.] 36 So. 65; Baden v. Bertenshaw [Kan.] 74 P. 639. 78. Baden v. Bertenshaw [Kan.] 74 P. 639; Kimball v. Dresser [Me.] 57 A. 787; In re Mandel, 127 F. 863. 79. Baden V. Bertenshaw [Kan.] 74 P. 639. 80. Halbert v. Pranke [Minn.] 97 N. W. 976. Under the laws of North Carolina the 3 Curr. Law — 30 grantee under a fraudulent conveyance,, claiming as a bona fide holder, must show^ that ho Is a purchaser for a valuable consid- eration and without notice of the grantor's fraud. Cox v. Wall, 132 N. C. 730, 44 S. B. 635. Action by trustee to recover certain stocks alleged to have been fraudulently car- ried by the bankrupt in his own name as trustee, evidence held sufficient to show that the bankrupt was the true owner, and insuffi- cient to show that other stockholders or the company were parties to the fraud. Fowler V. Jenks, 90 Minn. 74, 95 N. W. 887. 81. Wallace v. Boggan, 137 Ala. 535, 34 So. 824. 82. Wife testified she did not know of husband's Insolvency when he made payment to her, held sufficient. Townes v.' Alexander [S. C] 48 S. B. 214. 83. Calkins v. Farmers' & Mechanics' Bank, 99 Mo. App. 509, 73 S. W. 1098. 84. That the bankrupt secreted the money received for the purpose of defrauding his creditors. Schilling v. Curran [Mont.] 78 P. 998. 85. Sexton v. Sebrlng, 89 N. T. S. 372. 86. Calkins v. Farmers' & Mechanics' Bank, 99 Mo. App. 509, 73 S. W. 1098. 87. Page v. Roberts, J. & R. Shoe Co. [Mo. App.] 78 S. W. 52. 466 BANKEUPTCY § lOE. 3 Cur. Law. missible in an action by the trustee against one not a paxty to tte bankruptcy pro- ceedings nor bound thereby.** Insolvency.^" — The adjudication of bankruptcy,'" the books of the bankrupt," the inventory,"^ the schedules,"' and the appraisement,"* are all admissible to prove insolvency though as to their value as proof there is a conflict. That a debtor made an assignment upon which he was declared a bankrupt is not proof of insolvency prior thereto."' Judgments existing against a debtor do not necessarily prove in- solvency."* Trial and judgment.^'' — Where a trustee is suing for the value of an alleged preference, an instruction that the verdict, if for the plaintiff, should be for the value of the "property, money or both" given the creditor, is too broad."* The trustee obtaining a judgment upon a theory not urged by him is upon reversal en- titled to have the trial court pass upon the theories urged by him."" Costs} — It is competent for a state court, in a suit by a trustee, to set aside a fraudulent conveyance to allow the innocent vendee, under such conveyance, ex- penditures made in preserving the property,^ but it is otherwise after the vendee has voluntarily surrendered the property to the trustee.* Trustees in bankruptcy are liable for the costs of a suit instituted by them to recover assets rejected by them as valueless.* Damages and costs are properly included in a judgment awarded against a receiver in bankruptcy, so as to render the sureties on the receiver's recog- nizance personally liable therefor." 88. Testimony of the referee as to the fact of the debtor's Insolvency as determined In the bankruptcy proceedings Is inadmissible, in a suit by the trustee, to recover a prefer- ence from a creditor who was not a party to the bankruptcy proceedings, and was not bound thereby. Cullinane v. State Bank [Iowa] 98 N. W. 887. 89. See ante. | 3. 90. Hackney v. Hargreaves Bros. [Neb.] 99 N. W. 675. An adjudication of bankruptcy adjudging one insolvent as of the date of the filing of his schedule of liabilities is proof of his insolvency a short time prior thereto. One month. Sexton v. Sebring, 89 N. T. S. 372. That 17 days after the transfer the debtor was adjudged a bankrupt does not establish his insolvency at the date of trans- fer. Kimball v. Dresser [Me.] 57 A. 787. The adjudication conclusively establishes the bankrupt's insolvency. Calkins v. Farmers' &. Mechanics' Bank, 99 Mo. App. 509, 73 S. W. 1098. The adjudication in a bankruptcy pro- ceeding that the bankrupt was Insolvent at the time a Judgment was obtained against her, less than four months before the filing of the petition in bankruptcy, held conclu- sive in an action by the trustee to recover the proceeds of a sale of the bankrupt's prop- erty under execution. DeGraff v. Lang, 92 App. Div. 564, 87 N. T. S. 78. Tho adjudica- tion in bankruptcy Is a Judicial finding of the fact of Insolvency. In re Jones, 123 P. 128. 91. Ore not conclusive. In re Docker-Fos- ter Co.. 123 F. 190. 92. 93. In re Docker-Foster Co., 123 F. 190. Are admissible as evidence of the same class or character as the books of the bank- rupt. Hackney v. Hargreaves Bros. [Neb.] 99 N. "W. 675. The verified schedules of a bankrupt are competent evidence on the question of in- solvency, not only at the date of filing but within a reasonable time prior thereto, they are competent evidence in a suit to set aside a preferential transfer of property, of Insol- vency three Tveeks prior to filing of petition. In re Mandel, 127 F. 863. Contra: They are not competent evi- dence of Insolvency two weeks prior to the filing of the petition. Halbert v. Pranke [Minn.] 97 N. W. 976. Three months before such proceedings were Instituted. Hackney V. Raymond Bros. Clarke Co. [Neb.] 94 N. W. 822. Schedules filed In bankruptcy proceed- ings showing an indebtedness of nearly $10,- 000, while they might justify an Inference of insolvency six weeks prior thereto, are not suflUcient to require a finding of insolvency. Summervllle v. Stockton Mill Co., 142 Cal. 529, 76 P. 243. 94. In re Docker-Foster Co., 123 F. 190. 95. Swartz v. Frank [Mo.] 82 S. W. 60. 96. Summervllle v. Stockton Mill Co., 142 Cal. 529, 76 P. 243. 97. See 1 Curr. L. 325. »8. Page V. Roberts, J. & R. Shoe Co. [Mo. App.] 78 S. W. 52. 99. The trustee suing to recover a prefer- ence, and obtaining jvidgment on the theory that the transfer was in fraud of creditors, a theory not urged by the trustee; on re- versal the trustee Is entitled to have the trial court pass on the question of preference and the appellate court will not order judg- ment for defendant. Cullinane v. State Bank [Iowa] 98 N. W. 887. 1. See 1 Curr. L. 325. 2. Paid Hens on property bought. Arnold V. Eastin's Trustees, 26 Ky. L. R. 895, 76 S. W. 855. 3. Arnold v. Eastin's Trustees, 25 Ky. L,. R. 895, 76 S. W. 855. 4. Rejected life Insurance policy, wife kept it up, bankrupt died before discharge, held trustees could not recover amount paid on policy and were liable for the costs of the suit. In re Josephson, 121 F. 146. 5. Action of replevin brought by receiver 3 Cur. Law. BANKEUPTCY § IIB. 467 . (§ 10) F. Claims not reduced to possession by the ti-ustee.* — The trustee may, subject to the control of the bankruptcy court, refuse to take possession of properties that will be burdensome rather than profitable to the estate;^ he must elect, within a reasonable time, whether or not he will take any particular property of the estate,' and if he does not do so it is deemed an election to reject,* and the action of the district court, many years after the assignee's discharge, in allowing him to sell the assets does not change this, no reference being made to this claim.^" When he elects to reject, the title to the asset remains in the bankrupt ;^^ thus the latter may recover usurious interest paid a national bank, his trustee in bankruptcy not redvicing the claim to possession,^" and the property being abandoned as value- less to the estate, the trustee is generally precluded from using the same upon its becoming valuable.^' Trustees turning over property to the bankrupt as valueless, without an order of the court, the court, when that is made to appear, will approve such action nunc pro tvnc.^* While the legal title to property not scheduled remains in the bankrupt after discharge, yet he holds it in trust for the creditors to be administered by a trustee.'" Failure by a bankrupt to schedule a claim and notify the trustee of its existence \5-ill preclude him from suing thereon.^' § 11. Protection of trustee's title and possession. A. Restraining interfer- ence." — Courts of bankruptcy have power to enjoin all persons within their re- spective jurisdictions,'* although strangers to the proceeding,'" from doing any act that will interfere with or prevent the due administration of the bankrupt estate, it cannot enjoin proceedings in a state court in an action against the banlcrupt for fraud, ^° and the proceedings being in a state court, no rule of comity requires the United States court to compel persons whose rights are seriously jeopardized by the proceedings in the state court to resort thereto for protection.^' (§ 11) B. Actions affecting the trustee's title.''' — A state court has jurisdic- tion of an action of trover brought against a trustee or receiver in banlcruptcy to recover the value of the property alleged to have been converted by him as a part of the assets of the estate.^^ No leave is necessary to sue a trustee in bankruptcy.** A bankrupt is not an indispensable party to a suit against his trustee by one claim- in bankruptcy with permission of Federal court. TJnmack v. Douglass, 75 Conn. 633, 55 A. 12. 6. See 1 Curr. L. 324. 7, S. Fleming v. Courtenay tMe.] 57 A. 592. 9. Forbearance to claim an asset ■while acting as assignee and for 22 years there- after held to show an Intent to reject it. Fleming v. Courtenay [Me.] 57 A. 592. 10. His petition to the court for license to sell set forth that no assets of any value had come into his possession, and that he had an offer of $100 for all assets of whatsoever their nature belonging to the estate. The particular asset in question was an unliqui- dated claim. Petition was made 22 years aft- er discharge. Fleming v. Courtenay [Me.] 57 A. 592. 11. Fleming v. Courtenay [Me.] 57 A. 592. 12. Lasater v. First Nat. Bank [Tex. Civ. App.] 72 S. W. 1054; Id., 96 Tex. 345, 72 S. W. 1057. 13. Where an ordinary life Insurance pol- icy of a bankrupt, having no cash surren- der value, is turned over to him as valueless by the trustees without an order of the court, and he, keeping it up, dies before his discharge, the court will not require that the proceeds be turned over to the trustees. The rule is probably otherwise with endow- ment, tontine, or other in\'estment policies having a, determinable value [Act 1898, § 70. cl. 6]. In re Josephson, 121 F. 142; aflirmed in Meyers v. Josephson [C. C. A.] 124 F. 734. 14. Turned over life insurance policy hav- ing no cash surrender value. In re Joseph- son, 121 F. 142. 15. Though omitted from the schedules in good faith and by advice of counsel. Rand V. Iowa Cent. R. Co., 89 N. T. S. 212. 1«. Atwood V. Bailey, 184 Mass. 13S, 68 N. E. 13; Rand v. Iowa Cent. R. Co., 89 N. T. S. 212. 17. See 1 Curr. L. 325. 18, 19. In re Hornstein, 122 F. 266. Re- straining a claimant from prosecuting a suit for conversion against the trustee. In re Mertens, 131 F. 507. ao. In re Wollock, 120 F. 516. 21. In re Hornstein, 122 F. 266. 22. See 1 Curr. L. 326. 23. In re Spltzer [C. C. A.] 130 F. 879. 24. Motion for leave to sue, petitioner pro- posing to bring an action to foreclose a me- chanic's lien on the property of the bankrupt denied. In re Smith, 121 F. 1014. 468 BANKEUPTCY § 12. 3 Cur. Law. ing an interest in property scheduled by the bankrupt as his own.'° A lienor hav- ing intervened in a bankruptcy proceeding is bound by the questions adjudicated there.^' The decree of adjudication being regular on the face of the records, it cannot be collaterally attacked.^' The filing of a suggestion of the bankrupt's death, without any further action, is insufficient to entitle his widow to dower as against the trustee.^' A reclaiming creditor is entitled to an inspection of the bankrupt's accounts and papers in the hands of the trustee."" § 12. Rights of trustee in pending actions by and against banhruptj jurisdic- tion of state courts.^" — The adjudication in bankruptcy does not abate an action pending against the bankrupt,'^ or take away the right of the state court to decree and enforce a specific lien upon the property.'" A trustee in bankruptcy may in- tervene in a suit brought by the bankrupt before the adjudication in bankruptcy,'' and he may appeal from the order denying his petition of intervention,'* but he is not bound to intervene," the suit does not abate upon his failure to have himself substituted as plaintiff," nor is the bankrupt's debtor thereby discharged from lia- bility," but the suit may still be prosecuted by the bankrupt," and this is so though no trustee is appointed.'" In case the bankrupt ultimately recovers m such suit, and any question arises as to the right of the trustee or creditors to the money, or as to defendant's being protected in paying it to the proper party, both may be secured by subsequent steps taken for that purpose.*" A bankrupt continuing to prosecute or defend a suit after adjudication, he cannot subsequently object to a judgment obtained therein on the ground that the trustee should have been substi- tuted for him.*^ The trustee in bankruptcy voluntarily appearing in a proceeding against the bankrupt, without being made a party, has no standing in court, where he fails to prove either the fact or the date of the bankruptcy,*" but being made a party he stands in the same position as the defendants with respect to the litiga- tion.*' A conditional discharge in bankruptcy providing that it should not affect 25. Suit by bankrupt's wife against his trustee In bankruptcy to enforce a resulting trust of real estate scheduled by the bank- rupt as a part of his assets. Buckingham v. Estes [C. C. A.] 128 F. 584. 26. Is bound by finding of debtor's In- solvency, and cannot claim otherwise in suit by trustee to recover an alleged preference. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. W. 121. 27. Roberts v. Fernald [N. H.] 55 A. 942. 28. Suit by trustee in bankruptcy to have a deed by the bankrupt to his wife set aside as fraudulent. Gray v. Chase, 184 Mass. 444, 68 N. E. 676. 29. In re Saur, 122 F. 101. 30. See 1 Curr. D. 326. 31. Suit to foreclose a chattel mortgage given by the bankrupt. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. "W. 121. In states having statutes providing that no action shall abate by the transfer of any interest therein during Its pendency, bankruptcy proceedings by the plaintiff do not operate to abate an action [Code, 5 3476]. VVf^Usey v. Jewett Bros. & Co., 122 Iowa, 315, 98 N. W. 114. 32. May foreclose a chattel mortgage giv- en by the bankrupt. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. W. 121. 33. Griffin v. Mut. L. Ins. Co., 119 Ga. 664, 46 S. B. 870. May intervene and contest the validity or existence of the lien sought to be enforced and In case the validity of the lien be denied he may be awarded the property. Des Moines Sav. Bank v. Morgan Jewelry Co. [Iowa] 99 N. W. 121. May Intervene In a suit to enforce an equitable Hen against the bankrupt's property. Snyder v. Smith [Mass.] 69 N. B. 1089. Sections lib and lie simply provide for the taking care of suits already begun prior to the adjudication, and is not a limitation upon the right of a trustee to appear in any suit, but rather provides the manner of procedure with ref- erence to suits already begun, and which may affect the estate of the bankrupt. Friedman v. Verohofsky, 105 111. App. 414. 34. Snyder v. Smith [Mass.] 69 N. B. 1089. 35, 36, 37. Griffin v. Mut. D. Ins. Co., 119 Ga. 664, 46 S. B. 870. ."18. Griffin v. Mut. L. Ins. Co., 119 Ga. 664, 46 S. B. 870; Wilsey v. Jewett Bros. & Co., 122 Iowa, 315, 98 N. W. 114. 39, 40. Griffin v. Mut. L. Ins. Co., 119 Ga. 664, 46 S. B. 870. 41. Where pending a suit to set aside an alleged fraudulent conveyance of land the judgment debtors were adjudged bankrupts, and they were permitted to set up such fact In such suit by supplemental answer, but failed to urge therein that the action should have been prosecuted In the name of the trustee, such objection cannot be sub- sequently considered. Hillyer v. Le Hoy, 84 App. Div. 129, 82 N. T. S. 80. 42. Cannot question the validity of an at- tachment issued against such defendant. A. Lehmann & Co. v. Rivers, 110 La, 1079, 35 So. 296. 43. It Is not necessary that the pleadings state a cause of action as against him. 3 Cur. Law. BANKEUPTCY § 13. 469 a certain pending suit until final judgment therein, and that as to such judgment the discharge should have the same force that it would have if the judgment had been recovered after the application for the discharge, and before the granting of the same, permits the prosecution of such suit.*^ § 13. Management of the property and reduction to money." — The courts of bankruptcy have the power to collect, reduce to money, and distribute all property in the possession of the debtor when the proceedings are instituted,*' and they are not limited to the resultant interest of the bankrupt therein.*' A bankruptcy court having in its possession a fund touching which there is a dispute may, by virtue of its inherent powers, determine the right to the fund thus in its possession;*' it may marshal assets in the hands of a trustee,** compel the assignee under a void state assignment to render an account,°° and the court may, in its discretion, turn over the property of a bankrupt to a lienor whose lien is equal to the value thereof.'* An insurer is entitled to have the property talcen care of and proof of loss made."'' Being an officer of the court, and as such subject to its direction in all matters concerning money or property which may have come into his possession by virtue of his office,'* the trustee may, under the direction of the court, make the necessary pay- ments to mature a tontine life insurance policy payable to the bankrupt, his assigns or legal representatives, it being clearly for the benefit of the estate to so do.°* A bankrupt's receiver and trustee talring possession of property in the hands of the bankrupt at the time of filing the petition are not liable in conversion to the seller to the bankrupt by selling the same under order of the court, such seller not elect- ing to rescind for fraud until after the institution of the bankruptcy proceedings."* A trustee in bankruptcy is liable upon a reversal of a judgment recovered by him for a fund paid him under such judgment, and that his attorney retained a part thereof for fees and disbursements is no defense,"' but the court of bankruptcy can- not summarily require him to pay a judgment for costs rendered against him in another jurisdiction, there being no funds of the estate in his hands." A state court has jurisdiction to appoint an auditor to distribute the fund arising on fore- closure of the real estate of a bankrupt."* Latimer v. McKlnnon, 85 App. Dlv. 224, 83 N. T. S. 315. He can raise no issue the bank- rupt could not raise, and is bound by the is- sues tendered by the latter In his answer. The trustee cannot admit away by his an- swer any defense the banlcrupt had. Id. In New York, the supplemental complaint bringing in as a party defendant's trustee in bankruptcy may demand the "same judg- ment as the original complaint" there being no answer in the case [Code Civ. Proc. § 1207]. Id. 44. Standard Sewing Mach. Co. v. Alex- ander [S. C] 47 S. E. 711. 45. See 1 Curr. L. 326. 46. In re Union Trust Co. [C. C. A.] 122 F. 937. 47. May sell the property free from In- cumbrances. In re Union Trust Co. [C. C. A.] 122 P. 937. 48. This rule is not peculiar to bankruptcy courts. In re Antigo Screen Door Co. [C. C. A.] 123 P. 249. Receiver obtained peace- able possession of property of the bankrupt, though a warehouseman claimed to be in actual possession thereof and had issued re- ceipts therefor to the bankrupt who had transferred the same, such property was sold by order of the court, the holders of the warehouse receipts agreeing thereto by stip- ulation, held, court had Jurisdiction to de- termine the ownership of the fund. In re Rodgers [C. C. A.] 12B F. 169. i 49. As between a partnership and indi- vidual creditors. Burleigh v. Foreman [C. C. A.] 125 F. 217. 50. Where he appears and submits his ac- count and enters upon a hearing without ob- jection, the court does not lose jurisdiction to require him to turn over the property to the trustee because he asserts title to a part of such property in himself. In re Thomp- son [C. C. A.] 128 F. 675. Bl. The entire assets of a bankrupt being mortgaged for more than their value, the bankruptcy court will permit them to be turned over to the mortgagee, without preju- dice to the right of the trustee, or the cred- itors of the bankrupt, to contest the valid- ity of the mortgage by suit or otherwise in any court having jurisdiction. Equitable Loan & Security Co. v. Moss & Co. [C. C. A.] 125 F. 609. 52. Puller V. N. T. Fire Ins. Co., 184 Mass. 12, 67 N. E. 879. 53. In re Howard, 130 F. 1004. 54. In re Mertens, 131 P. 972. 55. In re Mertens, 131 P. 507. 56. 57. In re Howard, 130 P. 1004. 58. In this case the attorneys consented. 470 BANKEUPTCY § 13. 3 Cur. Law. Sale by trustee.''^ — The sale by a trustee is a judicial one.'" A court of bank- ruptcy has jurisdiction to order the sale of the nonexempt property of the bank- rupt, free from incumbrances/^ the lienor should be notified,"^ though he may waive such requirement. °' In the absence of some special direction in the order of sale of real estate of a bankrupt, the trustee sells only the interest of the bankrupt therein,'* one claiming an adverse interest to the bankrupt, and who is a stranger to the proceedings, is not affected by the sale,'^ and has no interest in the proceeds,"" nor has the bankruptcy court, after the property has been sold and conveyed, juris- diction to adjudicate the rights of such claimant therein,'^ nor are such facts grounds for setting aside the sale."' The referee has discretionary power to direct a private sale of the bankrupt's estate,"' without notice to the creditors,"* and such action of the referee ought not to be disturbed unless it clearly appears that his discretion was improvidently exercised.^^ An agreement to refrain from bidding at the sale, profits to be divided, is void.'^ A proper sale by a trustee in bankruptcy is a condition precedent to a valid conveyance.^' Whenever practicable the property must be sold subject to the court's approval,'* in such cases no title passes until the sale is confirmed,''^ and the purchaser has the burden of proving that it was impracticable to make the sale subject to the court's approval.'" This approval need not always be formal," acquiescence,'^ or use of the proceeds,'" may meet the requirements of the statute. Confirmation of a sale by a trustee is equivalent to a prior order.'" The disapproval of a sale by a referee where no attempt is made to review it is equivalent to disapproval by the court.'^ A court of bankruptcy has the power to set aside, in its discretion a sale of the bankrupt's property,*^ as- where more can be obtained therefor,*' or where parties are prevented from bidding with- out fault upon their part,'* and- this is so though the order of the referee to sell held that while this would estop them still it made no difference. Furth v. Stahl, 205 Pa. 439. 55 A. 29. .-.9. See 1 Curr. K 327. 80. As to payment of taxes realized by a "judicial sale" of the property. In re Har- vey,, 122 P. 745. eil Where a mortgage thereon is of such an amount as to render it doubtful whether the equity of redemption Is of any value. The questions between the trustee and mort- gagee being such as could not be settled for a long time, and the expense of keeping the property large, a sale of the entire property without prejudice to the conflicting claims of the mortgagee and the trustee to the pro- ceeds is justifiable. In re Union Trust Co. [C. C. A.] 122 P. 937. Even though a mortgage has been given on such assets to secure its bonds. In re Shoe & Leather Reporter [C. C. A.] 129 P. 588. Where by a prompt sale, accruing in- terest and taxes would be saved, and the sale could be made by the trustee for leas expense than by the sheriff, and the estate could be settled more promptly, and the wife of the bankrupt had deeded to the trustee her dower interest in the land, held such sale properly ordered. In re Keet, 128 F. 651; In re Prince, 131 F. 546. See 1 Curr. L. 327, n. 84. 62. Lienor resided In another state. In re Wilka, 131 P. 1004. 63. By making no objection to the sale on the hearing of the petition for confirma- tion. Keyser v. Wessel [C. C. A.] 128 P. 281. 64. 65, 66, 67, 68. In re Muhlhauser tC. C. A.] 121 F. 669. 69, 70, 71. In re Hawkins, 125 F. 633. 72. Agreement was entered Into after some bids had been made and sale was still open. Fisher v. Hampton Transp. Co. [Mich.] 98 N. W. 1012. 73. Proper sale of equity of redemption is necessary before suit to redeem can be main- tained. Davis V. Ives, 75 Conn. 611, 54 A. 922. 74. Even though it brings more than 75 per cent of the appraised value. In re Shea [C. C. A.] 126 P. 153. The express prohibi- tion In § 70 against selling for less than 75 per cent without such approval does not by implication qualify the preceding words so that on a sale for more than that approval need not be sought. Davis v. Ives, 76 Conn. 611, 54 A. 922. 75. In re Shea [C. C. A.] 126 F. 153. 76. Davis V. Ives, 75 Conn. 611, 54 A. 922. 78, 79. In re Shea [C. C. A.] 126 F. T7, 153. 80. 81. 82. 83. In re Harvey, 122 P. 745. Davis V. Ives, 75 Conn. 611, 54 A. 922. In re Shea [C. C. A.] 120 P. 153. Where would-be bidders were pre- vented, without fault on their part, from bidding at the sale, the court may set the sale aside upon their agreeing to bid three times the amount realized, though the sale was for the full appraised value, and in such a case it Is not necessary that the court find that the property was worth more than the sum realized. In re Shea [C. C. A.] 126 P. 153. Will not be set aside at the instance of one who has no other interest than the de- sire to become the purchaser at a resale and who offers to make a higher bid. In re Bel- den, 120 P. 524. 84. Seasonably advised officer of their in- 3 Cur. Law. BANKEUPTCY § 14A, 471 did not require the sale to be made subject to the approval of the court,*' and such action of the court is not reviewable unless there is a clear abuse of power." A decree of the bankruptcy court cannot be attacked in a collateral proceeding." § 14. Claims against the estate and proof and allowance. A. Claims prov- able.'" — Claims may be provable, but not allowable.*' A debt in order to be prov- able must be a fixed liability, absolutely owing at the time of the filing of the petition against the bankrupt."" Contingent liabilities are not provable."^ An an- nuity dependent upon life may be proven in bankruptcy,'^ but not where dependent upon a contingency which may or may not happen."' Attorneys' fees provided for in a bankrupt's note which is placed in the hands of an attorney for collection be- fore the filing of the petition against the bankrupt are provable claims,** as is a stockholder's liability after being established by a decree.'" Claims arising in tort, but which may also be treated as arising upon an implied contract,'" those arising from transactions in which the bankrupt is the undisclosed principal," and rent due upon a lease, are provable claims." In states allowing a wife to contract with her husband for compensation for her services rendered in her husband's busi- ness outside the family relation, the wife of a bankrupt may prove a claim for services rendered under such a contract against his estate in bankruptcy." ISTotes signed by a bankrupt firm which include claims on which one of the partner* is not primarily liable are prima facie debts, provable against the firm's estate.^ Dam- ages for breach of a contract, the breach occurring at or before the filing of the petition in bankruptcy, may be proven,* but no damage being sustained, stipulated tentlon, but he faHed to notify them of time of sale. In re Shea [C. C. A.] 126 P. 153. Upon their giving security to make a sub- stantially higher bid for the property at a resale. In re Shea, 122 F. 742. 85. In re Shea, 122 F. 742. 86. In re Shea [C. C. A.] 126 F. 153. 87. Courts will not partition land con- trary to the bankruptcy court's decree. Trumbo v. Fulk [Va.] 48 S. E. 525. 88. See 1 Curr. L. 327. 89. In re Hornstein, 122 F. 266. That a debt may be defeated by the plea of limita- tions does not render it nonprovable. Har- gadine-McKittrick Dry Goods Co. v. Hudson [C. C. A.] 122 F. 232. 90. In re Keeton, Stell & Co.. 126 F. 426, 429. XOTB. Fixed liabilities — Jadgrments otber ttaun for allmojiy: There are very few deci- sions on this point, there being a direct con- flict between them. In re Alderson, 98 F. 588, held that a judgment Imposing a fine for unlawful retailing was a provable debt, while in In re Moore, 111 F. 145, the court expressly refused to follow the preceding case. See, also. In re Baker, 96 F. 954; In re Hubbard, 98 F. 710, and In re Lipman, 94 F. 353. — ^From note to Cobb v. Overman [U. S.] 54 L. R. A. 369. See 1 Curr. L.. 327, n. 97. 91. Contingent liability on bond. Leader V. Mattingly [Ala.] 37 So. 270. 92. Dunbar V. Dunbar. 190 U. S. 340, 23 S. Ct. 757, 47 Law. Ed. 1085. 93. Annuity to divorced wife "during her life or until she remarries," held nonprov- able. Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 Law. Ed. 1085. 94. Merchants' Bank v. Thomas [C. C. A.] 121 F. 306. Note not placed In the hands of a lawyer for collection until after the filing of the petition, though due at the time of such filing, held, attorney's fees not prov- able. In re Keeton, Stell & Co., 126 F. 426, 429. 95. Where, by suit, the Indebtedness of an insolvent corporation was fixed at about 2-3 of its stock and a judgment was ren- dered against it for that sum and against the stockholders severally for an amount equal to the par value of the stock held by each, held that, as against a nonresident stockholder not a party to nor appearing in the suit, the decree being rendered prior to his being adjudged a bankrupt, made the claim against him on account of such stock- holder's liability a provable debt. Dlght v. Chapman [Or.] 75 P. 585. 90. In re Filer, 125 F. 261. 97. Bankrupt who was in the employ of a firm of brokers caused them to purchase stock on fictitious orders purporting to have been given by customers, such purchases being in fact intended for his own beneflt. In re Filer, 125 Fed. 261. 98. In re Hinckel Brewing Co,, 123 P. 942. TfOTB. Leases, renti Excepting Pennsyl- vania, the courts all hold that rent which has not accrued at the time of the adjudi- cation is not provable. In re Arnsteln, 101 F. 706; In re Mahler, 105 F. 428; Atkins v Wilcox [C. C. A.] 105 P, 596, 53 L. R. A. 118. But see In re Gerson, 2 Am. Bankr. R. 170 8 Pa. Dlst. R. 277; In re Goldstein, 2 Am! Bankr. R. 603. — From note to-Cobb v Over- man [U. S.] 54 L. R. A. 369. 99. Pennsylvania P. L. 1893, 344. In re Domenig, 128 F. 146. 1. Merchants' Bank v. Thomas fC. C AT 121 P. 306. '' 2. In re Adams, 130 P. 381; In re Fred- erick L. Grant Shoe Co. [C. C A ] 130 F 881, See 1 Curr. L. 327, n. 98. 473 BANKEUPTCY § 14A. 3 Cur. Law. damages cannot be proven/ nor damages contingent upon a lessor's re-entry, or re- letting premises leased by the bankrupt.* The liability of a surety is not provable until the principal's liability is fixed/ nor is the contingent liability of a bankrupt to his surety provable.® An annual license fee imposed by a state on corporations is not provable against the estate of a bankrupt corporation before the fee for the year is assessed or collectible,' nor is the unliquidated liability of the bankrupt on a deficiency judgment provable.' A creditor vrhose claim is secured or partly paid by an accommodation indorser may prove his claim to the full amount, and exclude from the bankrupt estate the avails of such security or part payment.' In states where the separate property of a married woman is liable in equity for obligations incurred in business in which she is engaged on her own account, such obligations are provable against her estate in bankruptcy." A partner's individual debt can- not become an obligation of the firm unless the creditor assents thereto, so as to pre- clude the latter from proving it against the individual's bankrupt estate.^^ It may be shown that a note signed and sealed by the individual members of a bankrupt partnership was given for money lent to the firm and used in the firm business, and, as such, provable against the partnership estate in bankruptcy/^ also parol evi- dence is admissible to show that partner's joint notes are in fact firm debts.^' A elaimalht for goods fraudulently obtained by a bankrupt cannot file a claim for goods sold and delivered under the contract and at the same time file a claim for a return of the goods sold remaining in the bankrupt's possession at the time of the filing of the petition.'^* A surety for a bankrupt who has discharged the debt either before or after the bankruptcy of his principal is subrogated to the rights of the cred- itor.*" A loan made by a wife to her husband from her separate estate is provable as a debt against his bankrupt estate, without regard to its enforceability under the law of the state, the contract being valid in equity.'-' Unliquidated claims arising upon a contractual obligation or promise of the bankrupt may be liquidated and then proven /' this does not include statutory liabilities,*' and refers only to claims whose 3. Northwest Fixture Co. v. Kllbourne & Clark Co. [C. C. A.] 128 F. 256. 4. A lessor Is not entitled to prove a claim for damages against the lessee's bankrupt estate for breach of a covenant in the lease, that in case of the latter's bankruptcy the lessor might re-enter and the lessee would be liable for damages sustained by the lessor on account of the premises being unleased or being let for the remainder of the term for less rent. In re Shaffer, 124 F. 111. 6. Bankrupt as surety. In re Wiseman, 123 F. 185. An orphan's court in Pennsyl- vania entering a decree nisi and later con- firming it absolute, adjudicating the account of an administrator and ordering a distri- bution, which latter part was later suspend- ed and the administrator ordered to hold the balance, fixes the liability of the adminis- trator and his sureties so that a subsequent administrator may prove the same against a surety's bankrupt estate. Hibberd v. Bai- ley [C. C. A.] i29 F. 575. 6. Under Act 1898, § 571, it Is the creditor's claim only that is provable. Insley v. Gar- aide [C. C. A.] 121 F. 699. 7. Is not a contractual obligation attach- ing by implication from the inception of the company, and hence is not provable under .A.ct 1898, § 64, cl. 4, including debts founded on contracts express or implied. In re Dan- ville Rolling, Mill Co., 121 F. 432. 8. In re Kahn, 121 F. 412. 9. In re Noyes Bros. [C. C. A.] 127 F. 286. 10. Florida. MacDonald V. Tefft-Weller Co. [C. C. A.] 128 F. 381. 11. The debt was entered on the books of the firm as a firm debt and payments made thereon by firm checks. In re VS^iseman, 123 F. 187. See 1 Curr. L. 328, n. 13-16. 12. Davis V. Turner [C. C. A.] 120 F. 605. See 1 Curr. L. 328, n. 13-16. 13. In re Li. B. Weisenberg & Co., 131 F. 517. Evidence that though the notes were signed by all the partners, the money was divided among them individually, held sufli- cient to show the debt not a firm debt, also that the testimony of the cashier of the bank making the loan was not admissible on the question. Id. 14. Bankrupt made false representations as to solvency. The seller by filing for goods sold and delivered under the contract and not for the possession of the goods obtained by fraud or for their value as damages, where possession could not be obtained, elected to affirm the contract and thereafter could not split his demand. In re Hilde- brant, 120 F. 992. 15. Livingstone v. Heineman tC C. A.] 120 F. 786. 16. James v. Gray [C. C. A.] 131 F. 401. But this is not true where the property transferred was received from the husband as a gift. In re Tucker, 131 F. 647. 17. Old Colony Boot & Shoe Co. v. Parker- 3 Cur. Law. BANKEUPTCY § 14B. 473 amount is uncertain.^* A creditor having a provable debt, though the amount is un- liquidated, having filed a petition against his debtor, and a jury trial being demanded thereon, the petitioner's claim may be determined and liquidated upon the same trial.'"' Claims for an indebtedness arising between the filing of an involuntary petition and adjudication cannot be proven. ^^ (§ 14) B. Proof of claims.'^'' — The proof of claims is not an "action" or "suit" against the bankrupt.^' No proof of debt can be made after the expiration of one year after the adjudication, except in those cases where the period is ex- tended by the act to not exceeding one year and six months^* and this is true, though the debt is unscheduled, the creditor having no notice of the bankruptcy pro- ceedings, aad the estate being stiU undistributed,"" nor is this time extended by the fact that a composition is effected."" This provision, is a statute of limitations,-^ and hence is not blading upon the United States."' The claim of an assignee under an assignment for the benefit of creditors for his expenditures need not be proved within one year after adjudication in order to be allowed."' Taxes accruing after adjudication need not be proved like ordinary debts.'" Holders of notes of a bank- rupt partnership, also indorsed by" the individual partners, may at their election prove' the same as individual debts of one of the partners.'^ Taking a new prom- ise after proof of debt does not preclude the creditor from maintaining his proof, while at the same time proeeediag against the bankrupt personally on the new promise, so long as he receives but one satisfaction for the debt,'" nor is the seller of goods estopped to bring an action for fraud by proving the notes given for the purchase price." The separate proof of an unsecured claim does not debar a cred- itor from subsequently proving a balance due on a secured claim after the security has been exhausted.'* Choses in action which have been assigned before a petition is filed should be proved by the assignee as the real party in interest.'" A creditor may in good faith sell and dispose of an account or other obligation held against a bankrupt debtor, regardless of the question of insolvency or notice thereof." A claim may be proven by filing a petition in the bankruptcy proceedings.'^ Sampson-Adams Co., 183 Mass. 557, 67 N. B. 870. 18. Liability of a director of a corpora- tion. Old Colony Boot & Shoe Co. v. Par- ker-Sampson-Adams Co., 183 Mass. 557, 67 N. B. 870. 19. Tlie claim of a surety for a bankrupt is not "liquidated by litigation" where the litigation Is between the principal creditor and the surety to determine the latter's lia- bility, the amount not being in controversy. In re B. O. Thompson's Sons, 123 F. 174. A claim against the estate of a bankrupt for sums obtained from his employers by for- ging Indorsements on checks and cashing same, by taking cash from the drawer, and by inducing them to purchase stocks on false and fictitious orders, is not unliqui- dated where the amounts taken from and paid out by the claimants are certain. In re Filer, 125 F. 261. 20. In re Frederic Ij. Grant Shoe Co., 125 F. 576. 21. Claims for labor and materials fur- nished between such dates in pursuance of a contract entered into before filing the pe- tition, but being executory at that date, held could not be proved. In re Adams, 130 F. 381 22. See 1 Curr. L. 328. 23. In states where a wife cannot sue her husband except for divorce or to recover her separate property after his desertion, she may nevertheless prove a claim against his bankrupt estate [Pennsylvania statute of 1893 (P. L. 345, § 3)]. In re Domenig, 128 F. 146. Statutes forbidding a husband and wife from testifying against each other do not render the testimony of a wife incom- petent in support of a claim filed by her against her husband's bankrupt estate. Id. 24. In re Paine, 127 F. 246. 25. His remedy is an action at law to re- cover upon the debt. Santa Rosa Bank v. White, 139 Cal. 703, 73 P. 577; In re Muskoka Lumber Co., 127 F. 886. ae. In re Brown, 123 F. 336. 27, 28. In re Stoever, 127 F. 394. 29. It is a controversy arising out of the settlement of the estate of the bankrupt. In re Levitt, 126 F. 889. 30. In re Prince, 131 F. 546. 81. Buckingham v. First Nat. Bank [C. C. A.] 131 F. 192. 32. Dowse V. Hammond [C. C. A.] 130 F. 103. 33. Standard Sew. Mach. Co. v. Alexander [S. C] 47 S. E. 711. 34. In re Ball, 123 F. 164. 85. Leighton v. Kennedy [C. C. A.] 129 F. 737. 36. Hackney v. Hargreaves Bros. [Neb.] 99 N. "W. 675. 37. Petition filed by bankrupt's wife 474 BANKEUPTCY § 14C. 3 Cur. Law. In the proof of a claim, absence of a date is a fatal defect," but failure to have the title of the court at the head thereof is not fatal.'" Items of the account con- stituting the consideration should be specified/" and sworn to in the proof,*^ and if the creditor's claim is based on notes, they should be produced and filed.*' A notary public may administer the oath to a proof of claim,*' and the signature and seal of the notary are prima facie sufficient authentication, whether he be a notary of the state where the bankruptcy proceedings are pending or not.** The proof of claims may be amended subsequent to one year after the adjudication,*" and such amendments may be substituted, with the trustee's consent, for the defective orig- inal proof, although an appeal has been taken by the trustee from a decree of the bankruptcy court permitting the owners of the claim to prove as creditors.** One cannot by the amendment of prior proofs introduce proof of an entirely new claim upon a separate contract,*^ nor will a claim unconditionally withdrawn prior to the expiration of the year serve as a basis for filing a claim as an amendment thereof.*" 'The petition of the trustee for an order for a re-examination of a claim need only allege facts which if true are a sufficient cause for the re-examination of the claim.*" A referee may, in an order for the examination of a nonresident creditor, permit him to appear before the referee in the district in which he resides.'" ' (§ 14) C. Contest of claims." — One having submitted himself and his claim to property in the possession of the bankrupt to the jurisdiction of the bankruptcy court, he is bound to prosecute his claim in such court.°^ Disputes as to the validity of certain claims arising at the first meeting of creditors, the right to continue the hearing of such contests is within the discretion of the referee.^' The bankrupt may object to the allowance in composition of claims offered for proof more than one year after the adjudication,^* but he cannot prevent the allowance of a claim against the bankrupt and his trustee to en- force a resulting trust claimed by the peti- tioner in property which the trustee was about to sell, Buckingham v. Estes [C. C. A.] 128 F. 584. 38. Will prevent such creditors from par- ticipation in tlie creditors' meeting. In re Blue Ridge Packing Co., 125 P. 619. 39. So as to prevent the creditor's par- ticipation In the creditors' meeting. In re Blue Ridge Packing Co., 125 F. 619. 40. Statement that claim Is for "printing done for said bankrupt at his request here- tofore, to wit, in September, 1903, as per bill rendered," Is insufficient. In re Blue Ridge Packing Co., 125 F. 619. That claim is for "goods, wares and merchandise sold and de- livered by claimant to bankrupt at its re- quest, consisting of green truck and vege- tables, amounting to said sum of $140, with interest from • = », being the balance now due on said claim on book account," Is insufficient. Id. That claim is for "2,500 jar tops at $2.00 per 1,000=$50," tso in opin- ion] "1-3 blue, 1-3 white, 1-3 red," Is suf- ficient. Id. Statement that claim is for "goods and merchandise sold," as evidenced by two notes, is Insufficient. If the creditor intended to stand on the account he should have given the Items; If on the notes, they should be produced and filed. Id. 41. Construing § 57. In re Brett, 130 F. 981. 42. In re Blue Ridge Packing Co., 125 F. 619. 43. In re Panooast, 129 P. 643. 44. Claim sworn to in New Jersey and presented In Pennsylvania. In re Pancoast, 129 P. 643. 45. Hutchinson v. Otis, "Wilcox & Co., 190 U. S. 652, 23 S. Ct. 778, 47 Law. Ed. 1179: Buckingham v. Estes tC. C. A.] 128 P. 684. Proof of claim was unverified. In re Roeber [C. C. A.] 127 F. 122. See 1 Curr. L,. 329, n. 18. 4C. Hutchinson v. Otis, Wilcox & Co., 190 U. S. 552, 23 S. Ct. 778, 47 Law. Ed. 1179. 47. A creditor who proved a claim based upon a promissory note against the bank- rupt estate of a partnership cannot after the expiration of the year from adjudication add a claim against the estate of one of the part- ners based upon his Indorsement on the note. In re McCallum & McCallum, 127 F. 768. See 1 Curr. L. 329, n. 19. 48. In re E. O. Thompson's Sons 123 F. 174. 49. Need not aver facts which if proved would defeat the claim. In re George Wat- kinson & Co., 130 P. 218. 50. Reconsideration of a claim. In re George Watkinson & Co., ISO P. 218. Con- flicting evidence as to whether goods were purchased and paid for examined and held to establish the debt of an alleged bank- rupt to the petitioning creditor as claimed. In re Ferguson, 127 F. 407. 61. See 1 Curr. L. 329. 52. In re Mertens, 131 F. 507. 63. In re Cohen, 131 P. 391. 54. Some creditors did not claim their share of composition, preferred creditor tried to prove his claim in the surplus thus created. Claim was unavoidably and in good faith omitted from the bankrupt's schedule, In re Lane, 125 P. 772. 3 Cur. Law. BANKEUPTCY § 14D. 475 offered for proof after the expiration of such time where the delay was caused by his own fraud." Any creditor of a bankrupt may interpose the defense of. limita- tions to a claim presei;it*ed for allowance against the estate."" In Iowa, creditors of a bankrupt cannot set up the defense of usury against another creditor's claim." The creditor of a bankrupt cannot institute, without the concurrence of the trustee, a proceeding to re-examine the allowed claims of other creditors," and if the trustee should without sufficient reason refuse to examine such claims, the court by its order can compel him to do so or remove him for disobedience."^" Fo formal writ- ing is required to assign a claim proved and allowed."" Under the act of 1867, the assignee purchasing a claim in good faith, it would be given effect."^ Failure to file an answer to a petition seeking to expunge a claim justifies a decree pro eonfesso, carrying with it the ordinary incidents and consequences of such a de- cree.°^ The trustee may be precluded by reason of laches from having an allow- ance reviewed.*" The disallowaAce of a claim by a court of bankruptcy consti- tutes a bar to a subsequent suit against the bankrupt on the same cause of action in another jurisdiction."* (§ 14) D. Suirender of preferences and effect thereof.^^ — A creditor must surrender all preferences received"" within the four months prior to the filing of the petition,"^ in order to prove his claim, and this disability inheres in the claim and operates against the holder into whose hands it may come, whether by assign- ment or subrogation,"' but a bona fide holder of negotiable paper of the bank- rupt is permitted to prove the same free from the taint of preferences received by the payee."" As to whether or not the creditor must have reasonable cause to be- lieve that a preference was thereby intended in order to compel its surrender there is a confiict.'" Prefefre(3 creditors are entitled to have proof of their claims al- lowed where the agreement to surrender their preferences is reached within one year after the adjudication, though the actual surrender of the property to the trustee does not occur until a short time thereafter.'^ A secured creditor, whose 55, Fraud in misstating facts in his sched- ule so as to make it appear that there was no estate for distribution. No objection be- ing made by any other creditor of the trus- tee, it being conceded that tlie creditors wlio had proved their claims were to be paid in full before the petitioner received anything. In re Towne, 122 F. 313. ."Se. In re John J. Lafferty & Bro., 122 P. .T58. 57. In re Worth, 130 F. 927. .•J8, 50. In re Lewensohn [C. C. A.] 121 F. 538. 60. Indorsement on notes held sufficient. Case was decided under Act 1867. Court stating rules to be the same under Act 1898. In re Sweetser, 131 F. 567. 61. In re Sweetser, 131 F. 567. 62. In re Docker-Foster Co., 123 F. 190. 63. Claim of lessor for rent of premises occupied by receiver down to date of adjudi- cation was filed against the estate and al- lowed without objection, and so stood until after the discharge of the receiver; held could not be reviewed. In re Hinckel Brew- ing Co., 123 F. 942. 64. If the judgment was erroneous, the remedy was by appeal. Hargadlne-MoKltt- rick Dry Goods Co. v. Hudson [C. C. A.] 122 65. See 1 Curr. L. 329. 66. Creditor received preferences on sepa- rate and distinct debts, held, could not prove other claims until such preferences were surrendered. Act 1898, § 57g, deals with the creditors not with their claims. Dunn v. Gans [C. C. A.] 129 F. 750; Livingstone v. Heineman [C. C. A.] 120 F. 786; In re Plynn & Co., 126 F. 422; In re Busby, 124 F. 469. 07. Prior to the amendment of 1903, It was immaterial when the preference was given, provided the debtor was Insolvent. In re Busby, 124 F. 469. A payment received more than four raoilths before filing the pe- tition need not be surrendered. In re Girard Glazed Kid Co., 129 P. 841. 68. Surety of bankrupt succeeding to rights of creditor whom he has paid. Liv- ingstone V. Heineman [C. C. A.] 120 F. 786. 69. Bank discounting note, by crediting the payee with the amount of the discount, in the usual course of business and without knowledge of the insolvency of the maker is such a bona fide holder. In re Levi, 121 F. 198. 70. That he must. In re Goodhile, 130 F 471. That he need not. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. 71. Creditors of a bankrupt who had col- lected their claims in suits begun within four months of the filing of the petition are entitled to have the proof of their claims allowed, upon paying the amount collected, to the trustee, though payment for the con- venience of counsel, was delayed for a day or two beyond one year after the adjudioa- 476 BANEaiUPTCY § 14D. 3 Cur. Law. security is insufficient, disclosing his security in proving Ms claim before the referee may retain his security and share in the dividends as to the overplus/^ but one holding a mortgage upon exempt property is not entitled to receive a dividend on his entire claim and resort to the security only to satisfy an unpaid balance.^* A sale creating a new and separate debt may be proved by the debtor without surrendering a preferential payment of a previous debt.'* A preferential payment afEects the en- tire iadebtedness due the creditor at the time of payment, though parts of the in- debtedness accrued at different periods, and hence must be surrendered to entitle the creditor to prove his account. ''^ A creditor holding two notes given by the bankrupt at the same time cannot prove and be allowed his claim upon one upon which no preference was received, without surrendering a preference received upon the other.'" A note being given partly for a valid consideration and partly as a preference the amoimt of the preference should be deducted before the note is al- lowed.^' Mutual debts and credits accruing more than four months before filing the petition in bankruptcy may be set ofE against each other ;'^ credits to the insolvent accruing subsequent to that time, which constitute voidable preferences, cannot be set off against debts which accrue prior to that date,'" but mutual debts and credits accruing within four months prior to the filing of the petition, and which do not constitute voidable preferences, may be set off against each other,'" as well as against the respective debts and credits accruing more than four months before the petition is filed,'^ but the debts or credits must be provable claims,*^ and it must be shown that the estate was benefited in some way by the payment.*' A debt upon which a preferential payment is made cannot be set off against such payment.'* The allowance of set off of new credits against a preference applies only to prefer- ences recoverable by the trustee.'^ A bank may set ofE money deposited by an insolvent upon an open account subject to check,'" but a bank having notice that a deposit is specific, it cannot set it off against the bankrupt depositor's account.'' A bank, not having received a preference, is entitled to apply the amount of the tion. Hutchinson v. Otis, 190 U. S. 552, 23 S. Ct. 778, 47 Law. Ed. 1179. 72. Kohout T. Chaloupka [Neb.] 96 N. W. 173. 73. In re Dantzenhelmer, 124 F. 716. 74. A creditor receiving payment in full from his debtor within four months prior to the latter's bankruptcy and without knowl- edge of his Insolvency, and afterwards sell- ing him other goods, which are not paid for at the time of bankruptcy may prove the latter debt without surrender of the money received In payment of the previous debt. In re Wolf, 122 F. 127. See 1 Curr. L. 329, n. 37-40. 75. In re L,yon [C. C. A.] 121 F. 723. See 1 Curr. L. 329, n. 37-40. 76. Note first maturing was paid within four months prior to bankruptcy and during insolvency. In re B. O. Thompson's Sons, 121 F. 607. See 1 Curr. L,. 329, n. 38. 77. Batchelder & Lincoln Co. v. Whitmore [C. C. A.] 122 F. 355. 78. Western Tie & Timber Co. v. Brown [C. C. A.] 129 F. 728. See 1 Curr. L. 330, n. 44." 79. 80, 81. Western Tie & Timber Co. v. Brown [C. C. A.] 129 F. 728. 82. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. NOTE. Set-offs: One of the requirements of a set-off Is that It must be provable against the bankrupt estate. Act 1898, § 68b, and this requirement refers to the na- ture of the claim at the moment when it Is sought to be set off, and not to its nature at the beginning of the bankruptcy pro- ceedings. Morgan v. Wordell, 178 Mass. 350, 59 N. B. 1037, 55 L. R. A. 33. To allow a set-off in bankruptcy the debts must be mu- tual and be in the same right. Sawyer v. Hoag, 17 Wall. [U. S.] 610, 21 Law. Ed. 731.— Prom note to Morgan v. Wordell, 55 L. R. A. 33. 83. Tredway v. Kaufman, 21 Pa. Super. Ct. 256. 84. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. 85. In re Jones, 123 F. 128. se. New York County Nat. Bank v. Mas- sey, 192 U. S. 138, 24 S. Ct. 199. See Bank- ing and Finance, 1 Curr. L. 289. 87. Where a company was insolvent and had ceased to be a going concern and all Its efforts and those of its creditors being to obtain an equal distribution of its assets, pending the result of these efforts it deposit- ed a fund in a creditor bank with the inten- tion that it should/ be held for its trustee in bankruptcy when appointed, though no no- tice of this was given the bank, held from all the circumstances it had notice of the char- acter of the deposit. Lynam v. Belfast Nat. Bank [Me.] 57 A. 799. 3 Cur. Law. BANKEUPTCY 8 14E. 477 general account of a depositpr on a note of the latter held by the bank." An order of the referee permitting the defendant to retain certain alleged preferences, and allowing the creditor's claim for the balance is an adjudication that the items so permitted to be retained by the creditor are proper set-offs. *° A trustee may appeal from an order denying his motion to expunge a claim allowed, unless fur- ther preferences were surrendered and directing a return of a preference previously surrendered by the creditor.'" (§ 14) E. Priorities."'^ — Claims of the United States are entitled to priority whether proved in the bankruptcy proceeding or not."" Taxes legally due and owing by the bankrupt to the United States, the state, county, district, or munici- pality are given priority over the payment of dividends to creditors,"' where the bankrupt is personally liable for the taxes."* The liability of the bankrupt for taxes being merely contractual, a claim therefor is not entitled to priority of pay- ment as taxes legally owing by the bankrupt."' A trustee should not pay taxes which are secured where such payment would operate to the advantage of one third party against another."* One paying taxes legally due from a bankrupt is not thereby subrogated to the rights of the taxing power so as to be entitled to priority of payment."' The highest court of a state having declared that an annual charge imposed upon corporations is not a tax, the state is estopped to claim in the bank- ruptcy court that nevertheless it is included within the term "tax" as used in the bankruptcy act."* Costs of administering the estate rank third in the list of pri- orities."" Wages due workmen, clerks, or servants, which have been earned within three months before the date of the commencement of bankruptcy proceedings, not to exceed three hundred dollars to each claimant, are by the terms of the act given priority.^ This includes wages owing at the date of bankruptcy, even though, by 88. In re Scherzer, 130 F. 631. 89. Clendening v. Red River Val. Nat. Bank [N. D.] 94 N. "W. 901. 00. Livingstone v. Heineman [C. C. A.] 120 P. 786. 91. See 1 Curr. L. 330. 92. In re Stoever, 127 P. 394. 93. A city's claim against a bankrupt for taxes assessed against him, and legally due and owing, Is entitled to priority of payment by the trustee, though the property on which the taxes were levied never came Into the hands of the trustee. City of Waco v. Bryan [C. C« A.] 127 P. 79. Taxes as a class are given priority over everything. In re Prince, 131 F. 646. 94. There being a personal liability for assessments levied for local improvements they are entitled to preferred payment. In re Stalker, 123 P. 961. Value of property ex- ceeded the amount of the taxes but was of less value than the mortgage debt and the taxes, property was sold under foreclosure decree subject to such taxes, held not en- titled to priority of payment. Id. A tax being a charge upon the property alone It is not enforceable as a preferential claim against the bankrupt estate. In re Broom, 123 P. 639. Real property of a bankrupt being sold, delinquent municipal taxes must be paid from the fund realized from the sale, before any dividends are allowed In favor of the general creditors. In re Harvey, 122 P. 745. A city having a lien for an un- paid municipal tax on property of a bank is not, with reference to such taxes, a secured creditor within the meaning of the bank- ruptcy law. Id. 95. Claim for taxes assessed by a munici- pality against property of which the bank- rupt was the lessee and which by his lease he contracted to pay. In re Broom, 123 P. 639. 96. In re Brlnker, 128 P. 634. 97. Firm property was sold, about 10 years before the bankruptcy proceedings, taxes thereon were unpaid, of which fact the gran- tee had no knowledge and upon being forced to pay them obtained a judgment over against the firm and members thereof one of whom Is the bankrupt. The grantee now claims to be subrogated to the rights of the city and hence entitled to priority of pay- ment. Held a general creditor of bankrupt and not entitled to priority. Cooper Grocery Co. V. Bryan [C. C. A.] 127 P. 815. The pur- chaser at a foreclosure sale, having full knowledge of tax liens, is not entitled to de- mand relief by payment of the taxes, osten- sibly to the municipality, but which in real- ity Inures solely to his benefit, and when it may fairly be assumed that he bid in the In- cumbered property subject to existing liens for unpaid taxes and assessments. In re Brlnker, 128 P. 634. 98. In re Danville Rolling Mill Co., 121 P. 432. 99. Cost of running hotel, maintaining good win, etc. In re Prince, 131 P. 546. 1. Act 1898, S 64b (4). In re B. H. Glad- ding Co., 120 P. 709; In re Harmon, 128 P. 170. Priority allowed wages is governed ex- clusively by § 64, cl. 4, of the Act of 1898, S 64, cl. 5, does not apply to wages. In re Slomka [C. G. A.] 122 F. 630. Laws N. T. 1897, p. 772, c. 624, § 29, allowing wages, 478 BANKRUPTCY § UE. 3 Cur. Law. contract between the wage earner and bankrupt, payment is to be deferred to a date later than the date of bankruptcy.^ This clause merely limits the priority to wages owing and which have accrued within the three months' period/ and hence in- cludes vacation pay.* "Piece-workers" are entitled to this priority.'' In order to give a claim for wages priority it must be due the wage earner/ if such wage earner assign his claim after proving it, the assignee will be subrogated to this priority,' but not if the claim is assigned before proof.' One cannot schedule his claim as an unsecured debt and then claim it as a priority." One having a valid lien on land of the bankrupt need not prove his claim ia order to preserve the lien,^" and a creditor mistakenly waiving his lien is entitled to have such lien al- lowed, where no one has changed his position on the faith of such waiver.^^ Prop- erty being sold free from liens, money realized therefrom, undiminished by any- thing except the costs of the sale, gees to satisfy valid liens on such property ac- cording to their priority.^^ The proceeds of a sale of the bankrupt's property cov- ered by an unrecorded mortgage being insufficient to pay the claims of creditors, who became such after the execution of the mortgage, the fund should be dis- tributed exclusively among such subsequent creditors.^' A materialman's inchoate interest or lien is superior to, and not cut off by, voluntary bankruptcy proceedings occurring after the materials were furnished, but before notice of the lien is filed.^* A partnership being declared a bankrupt the net proceeds of the partnership prop- erty are appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts," but joint debts of the partners cannot be proved against the partnership estate so as to share on an equality with firm creditors.^' AVhere there are no partnership assets, and no solvent partner, firm creditors share pari passu with the individual creditors in the separate estate of a bankrupt partner,^' and the creditors have the right, after applying the firm assets to the payment of their debts, to look to the earned within one year, priority, applies only where the assets are distributed under a general assignment. Id. Rev. St. Ohio 1890, §§ 3206a and 6355, are not inconsistent,, the latter section dealing only with the funds in the hands of an assignee or trustee, and applies only to such laborers as are op- eratives. In re City Trust Co. [C. C. A.] 121 F. 706. Under Rev. St. Ohio, § 6355, the claims of operatives of a bankrupt are not entitled to priority in the distribution of its estate as against a mortgage executed in good faith to secure bonds Issued for money loaned, and a bona flde assignment of the bankrupt's equity in the bonds, executed more than six months before bankruptcy to secure a valid debt. Id. a. Vacation payments withheld until the following January. In re B. H. Gladding Co., 120 F. 709. 8, 4. In re B. H. Gladding Co.. 120 F. 709. 6. In re Gurewitz [C. C. A.] 121 F. 982. 6. One advancing money to an insolvent for the payment of pay rolls of the latter is not entitled to a priority. In re N. C. Car Co., 127 F. 178. 7. In re N. C. Car Co., 127 F. 178. A large number of laborers assigned their claims to two of their number in order to save costs in prosecuting suits against the bankrupt to recover such wages, the as- .'5ignees agreeing to account to their as- signors for the amount due each when col- lected. In re Harmon. 128 F. 170. 8. In re North Carolina Car Co., 127 F. 173. 9. Attorney representing bankrupt sched- uled his claim for fees as an unsecured debt having priority by agreement, held, could not be allowed as a priority, though Act 1898, § 64, enacts that an attorney's fee provided for is a priority to be paid in full. In re Morris, 125 F. 841. 10. Lien of a city for municipal taxes. In re Harvey, 122 F. 745. 11. Creditors mistakenly supposed they had collected their claims by valid attach- ments. Hutchinson v. Otis. Wilcox & Co., 190 U. S. 552, 23 S. Ct. 778, 47 Law. Ed. 1179. la. In re Prince, 131 F. 546. 13. In re Cannon, 121 F. 582. 14. Voluntary bankruptcy proceedings on the part of building contractors do not af- fect the right of materialmen to thereafter file and enforce their liens. Crane Co. v. Smythe, 87 N. T. S. 917. 15. W^here one partner a short time be- fore bankruptcy of the partnership assumed all the debts of the partners and took the firm property, creditors cannot claim that firm creditors assenting thereto became in- dividual creditors of such partner, and at the same time repudiate the transaction so far as relates to a transfer of Arm property. In re Worth', 130 F. 927. Firm property goes primarily to pay firm debts. In re Groet- zinger CC. C. A.] 127 F. 814. 16. In re L. B. Weisenberg & Co., 131 P. 517. 17. Conrader v. Cohen [C. C. A.] 121 F. SOI; In re Janes, 128 F. 527. 3 Cur. Law, BANKRUPTCY S 14P. 47V surplus of the assets of the individual partners." The mortgagee of a homestead is a secured creditor.." A surety discharging his obligations as surety to a bank- rupt becomes an unsecured creditor. =° Under the bankruptcy law creditors for the purchase price of goods stand on the same footing and share pro rata with other creditors.^^ One having a secret lien must, in order to retain priority, establish his claim by proof under the banliruptcy act the same as other creditors.-- A lienor permitting, without objection, the property upon which he has a lien to be sold with other property of the bankrupt for a lump sum, he cannot assert a lien upon the proceeds where it is impossible to determine what part of the proceeds was produced by the property upon which he had a ]ien.^' (§ 14) F. Expenses of the proceeding."''' — A receiver for an involuntary bankrupt continuing in the occupation of leased premises until the time of adju- dication, the lessor is entitled to an allowance of his claim for rent until that time.-^ If, however, on the filing of a voluntary petition in bankruptcy, the banlv- rupt abandons leased premises, the lessor may tal:e possession, and is limited in his recovery of rent to the date of the filing of tlie petition.^' The allowance of an attorney's fee is in the discretion of the judge,-' and whether it is reasonable or not is within the exclusive jurisdiction of the Federal court,^^ the reasonableness of the amount to be determined upon evidence of the service performed and of its value,^° or, in the absence of evidence of its value, by the court from knowledge of its worth.^" A voluntary bankrupt's attorney can recover only the reasonable value of the services actually required, irrespective of the services rendered,"^ he cannot recover for clerical work.'- The attorney for petitioning creditors is entitled to a reasonable fee as of right.'* The attorneys for unsecured creditors are not en- 18. Gray v. Brunold, 140 Cal. 615, 74 P. 303. 19. Within the definition of the act mak- ing the term include a creditor who has se- curity on property of a nature to be assign- able' thereunder. Fenley v. Poor [C. C. A.J 121 F. 739. 20. Livingstone v. Helneman [C. C. A.] 120 F. 7S6. ai. In re Campbell, 124 F. 417. 23. Lien of a landlord, for rent due him, on property of the tenant, the amount be- ing, at the time of the tenant's banitruptcy, unadjudicated. In re Hayward, 130 F. 720. 23. Landlord had right to distrain stock ./nd fixtures of a saloon for rent, allowed the stock and fixtures to be sold witli the li- cense, the latter a valuable asset, and was Ijresent in court when the sale was confirmed making no objection. In re Smitli, 123 F. 188. 24. See 1 Curr. L. 331. 25. In re Hinckel Brewing Co., 123 F. 942. On the bankruptcy of a tenant of a farm on shares his trustee occupied the farm buildings until the crops were sold, held the landlord was entitled to compensation for the trustee's use and occupation thereof. In re Luckenbill, 127 F. 984. 28. In re Hinckel Brewing Co., 123 F. 942. 27. In re Morris, 125 F. 841. See I Curr. L. 331, n. 71. 28. Swartz v. Frank [Mo.] 82 S. W. 60. 29. Elements of value are these, "The na- ture of the service, time necessarily em- ployed therein, the amount involved, the re- sponsibility assumed, and the result obtain- ed." Quoted from In re Curtis [C. C. A.] 100 F. 785, 786, and approved and concurred in in Smith v. Cooper [C. C. A.] 120 F. 230. Illnstriitloua: A fee of $1,000 allowed to attorneys, who obtained an order adjud.?- ing a debtor a bankrupt in involuntary jiro- ceedings. and brought proceedings to have the/ property of the debtor in the hands of a receiver in insolvency appointed by a stale court turned over to the trustee in bank- ruptcy which proceeding was carried to the United States supreme court. Fin.illy a com- promise was effected whereby 52,500 was turned over to the trustee. Held not exces- sive. Smith V. Cooper (C. C. A.] 120 F. 230, An allowance of $75 is sufficient to attorneys for a voluntary bankrupt for services, con- sisting principally in preparing and filing the petition and schedules, the estate being worth $7,500. In re Lang, 127 F. 755. Where the bankrupt estate exclusive of exemptions did not exceed $5,500. payment by assignee for benefit of creditors and trustee in bank- ruptcy of $125 attorney's fees and S21.75 for serving notices and mileage fs sufficient. Further payments properly disallowed by referee. In re Byerly, 128 F. 637. 30. Smith v. Cooper [C. C. A.] 120 F. 230. 31. In re Connell & Sons, 120 F. S4C; In re GoldvlUe Mfg. Co., 123 F. 579. May be allowed for services actually rendered in good faith for the real purpose of impar- tially administering the estate. Represent- ed bankrupts at examination. In re Rosen- thal, 120 F. 848. [The opinion by what is apparently a typographical error refers to the proceeding as an involuntary one.] 33. Posting bankrupt's books, writing ex- tra copies of the schedules. In re Connell & Sons, 120 F. 846. 33. Smith V. Cooper [C. C. A.] 120 F. 230. See 1 Curr. L. 331, n. 73 ,480 BANKRUPTCY § 14G. 3 Cur. Law. 'titled to compensation, for services rendered in unsuccessfully contesting the valid- ity of security given other creditors, from a fund realized by the sale of such se- /curity.'* Where two involuntary petitions, filed by attorneys representing differ- ent creditors, are consolidated by order of the court, a single attorney's fee should be divided between such attorneys according to the relative value and amount of |work done by each."* A creditor being re-examined as to his claim, he is entitled to reasonable traveling expenses if his claim is finally allowed, but not his counsel ,fees.'° Property subject to liens being sold by consent of the lienors, the referee and trustee are entitled to commissions on the purchase price in full,'' and the same is true where it is sold free from incumbrances.'* A referee is not entitled to commissions on a fund belonging to secured creditors.'" Under the act of 1898 the bankruptcy court had power to allow extra compensation to referees in cases 'where matters in litigation were referred to them as special masters.*" A referee Tefusing to allow expenditures made by a trustee, the latter is the only one that 'can except thereto.*^ Where the methods of creditors cause a confusion of the claims the trustee should not be charged with the costs of a proceeding to deter- (mine issues arising out of such confusion.*'' Costs arising from the contest of a claim waged for the purpose of controlling the election of the trustee will not be allowed from the estate.*' (§ 14) G. Expenses of receivers and assignees appointed prior to lankruptcy iproceedmgs.** — The court making the first adjudication in bankruptcy is the proper court to compensate a receiver appointed in another district pending action upon an involuntary petition therein.*" The appointment of a receiver being erroneous or void, and being successfully contested, the receiver's compensation and the ex- penses of administration should be taxed to the parties who applied for the ap- rpointment,*' if, however, the appointment is sustained, the items of expenses grow- ing out of the receivership are proper charges against the unsuccessful contestant, land are chargeable and payable from his property in the possession of the court.*' The referee is entitled to commissions on all moneys which are disbursed to credit- ors by the trustee,*' this includes all sums which would have been paid through the trustee but for an outside agreement between the parties and their attorneys,*' but prior to the amendment of 1903 this included only such sums as were paid to creditors having provable and allowed claims."" The only extra allowances allow- able to a referee are for expenses necessarily incurred, a detailed account thereof being kept and returned to the court, verified by the oath of the referee that they were necessarily and actually incurred, with proper vouchers when procurable."^ Heferees cannot be allowed postage for notices sent in penalty envelopes."" A re- in re Goldvine Mfg. Co., 123 F. 579. In re McCraoken & Mcljeod, 129 F. In re George Watkinson & Co., 130 F. In re Sanford Furniture Mfg. Co., 126 34. 35. 621. 36. 218. 37. F. 888. S8. Even though purchased by the party- holding the Incumbrance. In re Sanford Furniture Mfg. Co., 126 F. 888. .39. Mortgage. In re Goldville Mfg. Co., 123 F. 579. 40. It seems that by the amendment of 1903 to § 40a this rule has been abrogated. In re Goldville Mfg. Co., 123 F. 579. 41. Expenditures for counsel fees par- tially rejected. Held counsel could not ex- cept thereto. In re Byerly, 128 F. 637. 42. Dowse V. Hammond [C. C. A.] 130 F. ins 43. In re Worth, 130 F. 927. 44. See 1 Curr. L. 332. 45. In re Sears, Humbert & Co. [C. C. A.] 128 F. 275. 46. Expenses for feed and care of stock are "expenses of the receivership." Beach V. Macon Grocery Co. [C. C. A.] 125 F. 513. 47. Beach v. Macon Grocery Co. [C. C. A.] 125 F. 513. 48. In re Sanford Furniture Mfg. Co., 126 F. 888. 49. Agreement to sell the property free from a deed of trust. In re Sanford Furni- ture Mfg. Co., 126 F. 888. 50. Did not include money paid to satisfy fixed liens on realty sold by him though property was sold free from incumbrances and the liens satisfied from the proceeds. In re Hinckel Brewing Co., 124 F. 702. 51. .";a. In re Daniels, 130 F. 597. 3 Cut. Law. BANKEUPTCY § 16. 481 ceiver having charge of an involuntary bankrupt's estate before adjudication may be awarded the full maximum fixed for the compensation of a trustee, without reference to the compensation afterwards awarded to the latter."* The assignee under a bona fide"* assignment for the benefit of creditors made prior to the filing of the petition in bankruptcy has a lien on the assets of the estate for his neces- sary disbursements and reasonable compensation for such services as were benefi- cial to the estate,"" and the surrender by him of all the assets to the trustee in bankruptcy does not deprive him of the right to apply to the bankruptcy court for the payment of the amount of such lien."* That the assignee is appointed the trustee makes no difference."^ Claims for services rendered to the assignee may be allowed to the same extent as if the assignee had paid them."' An attorney is only entitled to compensation for such services, rendered a state receiver, as are beneficial to the estate,"' but he will not be allowed for such services as were bene- ficial, where as a whole, his services cost the estate and general creditors several times that amount in increased expenses of administration."" A charge for the preparation of the deed of assignment constituting the act of bankruptcy may be proved as an unpreferred claim."^ An attachment being dissolved by subsequent proceedings in bankruptcy the sheriff is nevertheless entitled to his fees and outlay in preserving the property up to the time title passed to the trustee.'* § 15. Distnbwtion of assets.'" — The administration and distribution of the property of a bankrupt is a proceeding in equity.'* The statute of limitations of the state of a bankrupt's residence, and in which he is adjudged a bankrupt, gov- erns and determines the rights of creditors in the administration of the bankrupt's estate.'" One receiving money as the result of an audit after hearing will be pro- tected by the order of the referee until it is set aside by proceedings taken directly for that purpose." The distribution of the proceeds of a sale of real estate made by a trustee in bankruptcy is reviewable by the circuit court of appeals by a petition for review.'^ § 16. Exemptions'' — Under the national bankruptcy act, bankrupts are al- lowed the exemptions prescribed by the laws of the state in which the petition is filed, they having been domiciled in said state for the six months immedi- 53. Is not limited to an amount to be de- ducted from the trustee's maximum In pro- portion to the relative services rendered. In re Richards, 127 F. 772. 54. An assignment containing no secret trust and being without fraud In fact, and made in an honest attempt to have the prop- erty administered for the benefit of the cred- itors, and the assignee acting honestly and carefully, though constituting an act of bankruptcy is not fraudulent in law. Sum- mers v. Abbott [C. C. A.] 122 P. 36. 55. In re Chase [C. C. A.] 124 F. 753; Ran- dolph v. Scruggs, 190 U. S. 533, 23 S. Ct. 710, 47 Law. Ed. 1165; In re Levitt, 126 F. 889; In re Congdon, 129 F. 478. 56. In re Chase [C. C. A.] 124 F. 753. 57. In re Byerly, 128 F. 637. 58. Compensation for legal services ren- dered in unsuccessfully resisting an adjudi- cation in bankruptcy are not allowable. Randolph v. Scruggs, 190 U. S. 533, 23 S. Ct. 710, 47 Law. Ed. 1165. 59. Is not entitled to compensation for services rendered the effect of which was to aid certain creditors in retaining preferences in violation of the bankruptcy law. In re M. Zier & Co., 127 F. 399. An attorney pro- J Curr Law — 31. curing a general assignment resulting In a detriment to the estate, and which was not only in law but In fact a fraud upon the bankruptcy law, is not entitled to compen- sation for services rendered therein. In rB Congdon, 129 F. 478. 60. In re M. Zier & Co., 127 F. 399. 61. The deed being avoided by an adju- dication in bankruptcy of the assignor. Randolph v. Scruggs, 190 U. S. 533, 23 S. Ct. 710, 47 Law. Ed. 1165. 62. Sheriff given a lien for such fees and expenditures by Code Civ. Proc. §§ 709, 3307, 3343, Bubd. 12. In this case the trustee came into the action pending in the state court. Wilkinson v. Raymond, 80 App. Dlv. 378, 81 N. T. S. 82. 63. See 1 Curr. L. 327. 64. When authorized by act of Congress, it becomes a branch of equity Jurisprudence. In re Rochford [C. C. A.] 124 F. 182. 65. Hargadlne-McKittrIck Dry Goods Go. V. Hudson [C. C. X] 122 P. 232. 66. In re Wilkesbarre Furniture Mfg. Co., 130 P. 796. 67. In re Groetzlnger & Sons [C. C. A.] 127 P. 124. 68. See 1 Curr. L. 332. 483 BANKEUPTCY § 16. 3 Cur. Law. ately preceding the filing of the petition,** the emimeration of exemptions in § 70 applying only to property not exempt by the state laws.'^" The bankruptcy court has exclusive jurisdiction to determine claims of bankrupts to their exemp- tions/^ though the trustee can set apart the exemption and pass upon such objec- tions as may be made by creditors to his so doing/* and in setting aside, after appraisal, property claimed by the bankrupt as exempt, the trustee acts minis- terially.''' The court of bankruptcy, being a court of equity, will construe exemp- tion laws liberally.^* In states where life insurance policies are not exempt, only the surrender value at the date of bankruptcy goes to the creditors, and the bank- rupt by securing the payment of an equal sum may hold the policy free from claims of creditors.''"' The surrender value referred to in § 70 refers only to the con- tract right of surrender;'* nor does § 70 include policies payable to a wife or kindred of the assured." An exemption in bankruptcy is of no avail as against the holder of a purchase-money mortgage or judgment therefor, when the holder of such mortgage or judgment does not prove his debt in bankruptcy.'* A bank- rupt cannot claim an exemption out of a preference that has been recovered back by the trustee." A bankrupt occupying land as a homestead under a contract of purchase, the trustee is entitled to redeem the land and subject such portion thereof as does not constitute the bankrupt's homestead to the payment of his debts.'" The time and manner of claiming such exemptions, and of setting apart and awarding them, are regulated by the bankruptcy act.'^ It is therein provided that the bankrupt shall claim his exemptions in his schedules,'^ and the trustee must set off such property to him and report the items, with their estimated value, to the court for approval;'' the assent of the creditors cannot dispense with these formalities.'* A bankrupt's schedules containing a waiver of his exemptions may be amended so as to allow him to claim them where he shows the waiver to have been the subject of accident or mistake, "* and the application for leave to amend is made seasonably.'' A bankrupt having properly claimed his exemption, it can- «9, See title Exemptions, 1 Curr. I* 1192, for ■wha.t constitutes. Act of 1898, § 6. Pulsifer v. Hussey, 97 Me. 434, 64 A. 1076; In re Le Vay, 125 F. 990; In re Kane [C. C. A.] 127 F. 552. The Bnly question to be determined by the bank- ruptcy court upon an application by a bank- rupt for his exemptions is whether or not he Is entitled to the same as against gen- eral creditors. In re Brumbaugh, 128 F. 971. See 1 Curr. L. 332, n. 80, 81. 70. Pulsifer v. Hussey, 97 Me. 434, 54 A. 1076. 71. Has jurisdiction of a claim of a cred- itor asserting an equitable lien on property, the bankrupt claims exempt. In re Lucius, 124 P. 455; Thompson v. Ragan, 25 Ky. L. K. 1684, 78 S. W. 485. 72. Bell V. Dawson Grocery Co. [Ga.] 48 a B. 150. 73. No presumption arises that property so set aside has been paid for. In re Camp- bell, 124 P. 417. 74. In re Kane [C. C. A.] 127 F. 552. 76. This construction harmonizes |§ 6 and 70. Pulsifer v. Hussey, 97 Me. 434, 54 A. 1076. 76. By terms of policy, cash surrender value was determined, and if desired, allowed only at the termination of five-year periods; held not to refer to a custom of the company of allowing this to be done at the expiration of yearly periods. Pulsifer v. Hussey, 97 Me. 434, 54 A. 1076. 77. Pulsifer v. Hussey, 97 Me. 434, 54 A. 1076. 78. Camp V. Young, 119 Ga. 981, 47 S. E. 560. 79. In re Coddington, 126 P. 891. 80. Duflleld V. Dosh [Iowa] 99 N. "W. 1074. 81. In re Kane [C. C. A.J 127 F. 552; In re Le Vay, 125 P. 990. Though a state law may require a bankrupt to claim his exemp- tloij out of the property before the sale, the bankruptcy court may allow him to take i it from the proceeds after sale. In re Stein. 130 P. 629. A state statute required a debtor to select the specific personal property he claims as exempt; a court of bankruptcy is not bound to require such selection where it is for the best interest of all concerned, and where specific property being mortgaged cannot be selected and set apart as exempt, it may properly permit such property to be sold as an entirety, and award the bankrupt his exemption from the proceeds. In re Kane [C. C. A.] 127 P. 552. 82. In re Le Vay, 125 P. 990; In re Lu- cius, 124 P. 455; In re Coddington, 126 F. 891; In re Prince, 131 P. 546. See 1 Curr. L. 332, n. 82. S3, 84. In re Prince, 131 P. 546. 85. Parol evidence is admissible to show this. In re "White, 128 P. 513. 86. Where eleven months elapsed, he must show a sufficient excuse for the delay, parol evidence being admissible to prove the cause of the delay. In re White, 128 P. 513. 3 Cur. Law.' BANKEUPTCY § 17. 483 not be diminished by, or put aside in favor of, the costs and expenses made in the proceedings,*'' even where the latter have been taken to preserve the prop- erty.** The burden of proof is upon the bankrupt to show that he is entitled to the exemptions.** Any party having an interest in the result may object to the allowance of an exemption.'"' No issue as to the bankrupt's right to exemptions arises until exceptions are filed to the trustee's report."^ Lack of verification to an exception to the report of a trustee setting apart the bankrupt's exemptions is not jurisdictional.'^ The bankruptcy court in some cases will direct that a re- ceiver set aside and preserve specific property which a bankrupt wishes to claim as exempt, and which otherwise would be sold,*' and may, upon his giving a bond for its return, authorize its delivery to such bankrupt pending the determination of his right thereto.** A discharge will be withheld so as to enable a debtor to test his right to the bankrupt's exemption in the state courts.*" A bankruptcy court acquires no right to administer upon or distribute exempt property, even though its aid may be required to set it aside,*' and this is true, though the creditor has agTced to waive the exemption as to a particular cred- itor,*' and any attempt to do so is made in the course of a banlcruptcy proceeding and is reviewable on petition to revise.** The bankrupt may become estopped to deny thi§ power in the bankruptcy court.** The trustee in bankruptcy acquires no title to exempt property duly claimed.* § 17. Death of bankrupt pending proceedings.^- — The allowance to the widow and children of a bankrupt dying during the proceedings is governed by the laws of the state of the bankrupt's residence," and may be made by the bankruptcy S7. In re Le Vay, 125 P. 990. See 1 Curr. U 333, n. 95. 88. As where it is perishable, a sale is ordered and made by a receiver. In re Le Vay, 125 P. 990. 89. Under the "Virginia statute, must prove that such property has been paid for. In re Campbell, 124 P. 417. 90. Under the Virginia statute, not allow- ing a bankrupt to claim unpaid property as an exemption, any creditor may object to the allowance of such property as an ex- emption, without showing that his claim is for the purchase price of any of such prop- erty. In re Campbell, 124 P. 417. Creditors having claims for the unpaid purchase price of exempt property, and claiming the right to have it sold and the proceeds applied to Kuch claims, are the proper persons to pre- sent such question. In re Boyd, 120 P. 999. 91. In re Campbell, 124 P. 417. 92. Where objection is not made on hear- ing before the referee, objection cannot be made on a review of his decision before the court. It is doubtful if such exception comes within the term "pleadings" as used in the act of 1898, § 18c, requiring all pleadings to be verified. In re Campbell, 124 P. 417. 93. In re N. Shaffer & Son, 128 P. 986; In re Joyce, 128. F. 985. His exemption being properly made, a sale by a receiver before adjudication made because of the perishable character of the goods will not deprive the bankrupt of his right to the proceeds. In re Le Vay, 125 P. 990. 94. In re N. Shaffer & Son, 128 P. 986. 95. Judgment obtained in a tort action against which exemptions were nonava liable. In re Brumbaugh, 128 P. 971. Where the ex- emption is waived, the creditor's remedy is In a court of equity. In Georgia, the prop- erty being of a perishable nature, the court will appoint a receiver to take charge of it until the judgment in rem is obtained. Bell V. Dawson Grocery Co. [Ga.] 48 S. B. 150. 9«. In re Le Vay, 125 P. 990; MeKenney v. Cheney, 118 Ga. 387, 45 S. B. 433; Lockwood V. Exch. Bank, 190 U. S. 294, 23 S. Ct. 751, 47 Law. Bd. 1061. Trustee cannot administer the property exempt. Bell v. Dawson Gro- cery Co. [Ga.] 48 S. B. 150. 97. Lockwood V. Exch. Bank, 190 U. S. 294, 23 S. Ct. 751, 47 Law. Ed. 1061. Has no power to order sale of homestead, exempt under the state laws, because a particular creditor may have the right under such laws to subject it to the payment of his debt. In- gram V. Wilson [C. C. A.] 125 P. 913. Trus- tee cannot determine the rights of creditors asserting waivers against it. Bell v. Daw- son Grocery Co. [Ga.] 48 S. E. 150. 98. Under Act 1898, § 24, It is not a case where an appeal is expressly authorized by § 25 of that act. In this ease bankruptcy court directed sale of exempt property. In- gram V. Wilson [C. C. A.] 125 P. 913. 0*. A bankrupt invoking the benefits of the bankruptcy law and thereby precluding the seller of exempt property from obtain- ing a Judgment and levying execution there- on is estopped to object that the court of bankruptcy has no jurisdiction to order such property sold, and the proceeds applied to the unpaid purchase price, on the ground that no judgment had been recovered or ex- ecution levied as required by the Iowa stat- ute. In re Boyd, 120 P. 999. 1. MeKenney v. Cheney, 118 Ga. 387, 45 S. B. 433. 2. See 1 Curr. L. 333. 8. Act 1898, 5 8. In re Newton, 133 F. 103. See 1 Curr. L. 333. n. 7. 484 BANKRUPTCY § 18. 3 Cur. Law. coTirt from the bankrupt's estate in accordance ■with the state statutes.* The widow of a bankrupt is entitled to dower out of land conveyed by her husband to his "assignee" in bankruptcy, she not having joined in the deed nor received anything in lieu thereof." § 18. Referees, proceedings before them and review thereof.* — ^Referees in bankruptcy are judicial ofBcers,'' and their orders made in the course of bank- ruptcy proceedings are entitled to the respect and credit due to ofBcers who act judicially.' A proceeding before a referee in bankruptcy to recover a debt is analogous to an action brought for the same purpose.* In proceedings for con- tempts before a referee, the latter must certify the facts to the judge." A wit- ness is not subject to attachment for failing to appear and testify before a referee in obedience to a subpoena, unless his mileage and one day's attendance fees are paid or tendered to him.^^ A bankrupt is not exempt from prosecution for an offense growing out of a transaction concerning which he testified before the ref- eree,^" and may refuse to answer criminating questions.^' The jurisdiction with which a referee is invested is made expressly subject to review by the judge of a court of bankruptcy,** and this power of review in the latter is exclusive.*' TTpon a proper petition for a review of any order, the referee should forthwith certify to the judge the question presented, a summary of the evidence relating- thereto, and his finding or order thereon.*' A referee in bankruptcy has power to rule on the admissibility of evidence offered before him,*' and is bound to personally hear the evidence unless his presence is waived by the parties.** Evidence taken before him to be available on appeal must be included in the record certified to the district court, and the certificate of the referee must show that it is the evi- dence so taken before him.*' A referee's findings of fact will not be reversed upon appeal unless they are flagrantly against the weight of the evidence,^" and the burden of proof is upon the objectors to show the facts to be as they insist.''* Docket entries of a referee are the best evidence of matters therein stated,"" and the record of a referee, in so far as it shows what was adjudicated, is conclusive 4. In Connecticut, they are entitled to such an amount as Is necessary for their support. In re Newton, 122 V. 103. 8. That husband was paid his homestead exemption which he applied to wife's use makes no difference. It seems as though the court used the term "assignee" In place of "trustee." Cravens v. Shippen, 25 Ky. L. R. 1322, 77 S. W. 929. 6. See 1 Curr. L. 333. See, also, ante, § 14 B, Sale by trustee. 7. Clendenlng v. Red River Val. Nat. Bank [N. D.] 94 N. W. 901. 8. Adjudications upon the allowance or rejection of the claims of creditors. Clen- denlng V. Red River Val. Nat. Bank [N. D.] 94 N. W. 901. 9. Legislature by an act cannot effect the reversal of a judgment already rendered. In re Stalker, 123 F. 961. 10. A witness failing to attend an appli- cation for an attachment In the first Instance, without such eertiflcate from the referee, is irregular. In re Kerber, 125 F. 653. 11. In re Kerber, 125 P. 653. See 1 Curr. L. 334, n. 12. 12. Burrell v. Mont., 194 TJ. S. 572, 24 S. Gt. 787. 13. Questions as to accuracy of a credit- or's proof and the identifying of his signa- ture to notes and his checkbook, held must be answered. In re Levin. 131 F. 388. 14. Brown v. Persons [C. C. A.] 122 F. 212. 15. State courts are without authority to review, revise or reverse adjudications of the referee. Clendenlng v. Red River Val. Nat. Bank [N. D.] 94 N. W. 901. 16. Transmitting to the clerk the notes o( the testimony, his own opinion and the cred- itors' petition for a review Is not a com- pliance with Bankr. Rule 27. In re Kurtz, 125 P. 992. 17. 18. In re Wilde's Sons, 131 F. 142. 19. Where the certificate of the referee is silent as regards any evidence, and a sub- sequent certificate attached 'to certain evi- dence sought to be made a part of the rec- ord was not certified to the district court until six days after it had affirmed the find- ings and Judgment of the referee, held, such evidence not properly In record and not be- fore appellate court. In re French, 13 Okl. 549, 75 P. 278; In re Cohen, 131 F. 391. 20. A finding that a private banker was engaged chiefly in farming. Couts v. Town- send, 126 F. 249. Finding of referee refus- ing discharge. In re Shriver, 125 P. 511; In re Williams, 120 P. 542. See 1 Curr. L. 334, n. 22-25. 21. Finding of a referee that certain mon- eys are the proceeds of property pledged to a lienholder. In re Williams, 120 P. 542. 22. Davis V. Ives, 75 Conn. 611, 54 A. 922, 3 Cur. Law. BANKEUPTCY § 20. 485 and cannot be contradicted by parol evidence.*' Papers used in a proceeding before a referee in bankruptcy may be certified either by the referee or clerk.** § 19. Modification and vacation of orders of banhruptcy court." — In the ab- sence of statutory prohibition, a court of bankruptcy has, generally, power to amend its decrees in its discretion,** and hence a judge of a court of bankruptcy has the power to vacate an order discharging a trustee.*' § 30. Appeal and review in bankruptcy cases. — ^An appeal must be taken with- in ten days after the rendition of judgment,*" which fact must appear in the rec- ord,*' the record on appeal must be filed within the time allowed by law,'" or an application for an extension must be made before the expiration of that time,'^ and the record must be complete,'* or the appeal will be dismissed. Neither the bankruptcy act nor any rule of court limits the time within which a petition for review in bankruptcy may be filed," but it has been held that no appeal or peti- tion for review being taken from a final decree for over a year it becomes final and cannot be set aside or modified on motion.'* A rehearing will not be granted upon the pretense of reconsidering the merits of the case, where the real purpose is to revive the petitioner's right of appeal," but the district court cannot entertain a motion for a rehearing so long as an appeal is pending.'* The circuit courts of appeal have power to summarily revise territorial district courts within their re- spective circuits as to matters of law arising in bankruptcy proceedings." An inter- vening petition to reach a fund in the bankruptcy court, being incident to the claim, is a bankruptcy proceeding," but a decree thereon is not an independent ground of appeal, where it is not "a judgment allowing or rejecting a debt or claim of $500 or over."" Whenever, in a suit in which a bankruptcy court is marshal- ing and distributing assets, any intervening party raises a distinct and separable 23. Testimony of a referee that he did not undertake to adjudicate a creditor's claim is Inadmissible, it being directly con- tradictory to the necessary legal efCeot of his written order allowing said claim. Clen- dening v. Red River Val. Nat. Bank [N. D.] 94 N. W. 901. 24. Is not error to admit such papers In evidence when certified by the referee. Mc- Lanahan v. Blackwell, 119 Ga. 64, 46 S. E. 785. 25. See 1 Curr. L.. 334. 26. In re Bimberg, 121 F. 942. 27. Where an order of a district court sustaining a claim of privilege of a witness is reversed by the circuit court of appeals and remanded for further proceedings, the district court properly vacated an order pre- viously made by the referee discharging the trustee. Brown v. Persons [C. C. A.] 122 P. 2 12-. 28. Act 1898, § 25a. From a decree grant- ing a discharge. Williams Bros. v. Savage [C. C. A.] 120 F. 497. Where a district court disapproved a finding of fact by a referee on the disallowance of a claim, but entered no order In the matter, afterwards the ref- eree entered an order aUowlng the claim, which was approved and confirmed by the court, held that an appeal taken within 10 days of the confirmation of the order aUow- lng the claim was proper. Rush v. Lake [C. C. A.] 122 P. 561. 29. Williams Bros. v. Savage [C. C. A.] 120 P. 497. 30. Appeal from an order allowing a claim. In re Alden Eleo. Co. [C. C. A.] 123 P. 415. 31. In re Alden Eleo. Co. [C. C. A.] 123 P. 415. 32. Must contain all the papers, exhibits, depositions, and other proceedings necessary to the hearing in the appellate court. Wil- liams Bros. V. Savage [C. C. A.] 120 P. 497. 33. Ordinarily by analogy such petition ought to be filed within six months, but that It is not is not conclusive ground for dismissal. Where owing to the unavoidable disappearance of important evidence, the judge below made two orders extending the time for filing the record in the appellate court, a reasonable excuse is afforded. In re Groetzlnger & Sons [C. C. A.] 127 P. 124. 34. In re Hoyt & Mitchell, 127 F. 968. 35. If entitled to relief for that purpose the facts must be shown in the petition. In re Glrard Glazed Kid Co., 129 F. 841. 36. First Nat. Bank v. State Nat. Bank [C. C. A.] 131 P. 430. 37. The summary revisory power of the circuit court of appeals for the eighth cir- cuit extends to questions of law arising in, the progress of bankruptcy proceedings in a district court of Oklahoma territory, which is assigned to the eighth circuit, although jurisdiction by appeal or writ of error is vested In the territorial supreme court. Plymouth Cordage Co. v. Smith, 194 U. S. 311, 24 S. Ct. 725. 38. Petition filed by creditors asserting a lien upon proceeds of a seat In a stock ex- change which had not been insisted upon because they mistakenly supposed they had collected their claims by valid attachments. Hutchinson v. Otis, Wilcox & Co., 190 U. S. 552, 23 S. Ct. 778, 47 Law. Ed. 1179. 39. Act of 1898, § 25a, 8. Hutchinson v. Otis, Wilcox & Co., 190 TJ. S. 552, 23 S. Ct. 778. 47 Law. Ed. 1179. 486 BANKEUPTCY § 20. 3 Cur. Law. issue or controversy involving substantial pecuniary rights, an appeal lies from an order entered thereon." An appeal cannot be taken from a decision of a circuit court of appeals, allowing or rejecting a claim, to the United States supreme court, except upon a certificate of a justice of the supreme court," or where the amount involved exceeds $2,000, and the questions are such as might have been taken up from the highest court of a state.*' An appeal lies to the United States supreme court from a judgment of a circuit court of appeals entered upon an appeal from a judgment of a court of bankruptcy, sustaining a title to property in the posses- sion of a trustee in banlcruptey, asserted by intervention raising a distinct and sep- arable issue.*' A judgment creditor may become a "party aggrieved" and therefore entitled to prosecute a petition for review of an order of the bankruptcy court.** Orders and decrees in a bankruptcy proceeding cannot be reviewed by writs of error.*" The power of the appellate court to review, by original petition, the ruling of the banlcruptey court extends only to an order made in the bankruptcy proceed- ings proper, and does not embrace proceedings in suits by the trustee in bank- ruptcy,*" and the appellate court cannot entertain a petition to revise in matter of law, where questions of fact are involved therein.*' An appeal duly taken from an order in bankruptcy may be treated as a petition for revision, where the latter is the proper mode of review and only a question of law is presented.*' Certiorari is the proper method of obtaining a review, in the supreme court of the United States, of a decision of the circuit court of appeals upon a petition for revision of an order of the district court allowing an exemption.*® An assignment of error must be filed in the court below before an appeal is allowed,^" and such assignment operates as a limitation upon such appeal."^ On an appeal from an order dismissing an involuntary petition, an appeal bond must be given, approved, and filed in the trial court," and such fact must appear upon the record,^' but the appeal being taken within the time prescribed by the bankruptcy act, failure to file a bond and serve the citation until a few days after the expiration of that time does not invalidate the appeal."* The record on an appeal in bankruptcy not clearly set- ting forth facts necessary to a determination of the questions involved, it will be remanded to the district court, with directions to have the facts fully reported to 40. The case then presenting a contro- versy within the meaning of § 24a of the Act 1898. Issue was as to whether a part- nership or an individual partner owned the property. Burleigh v. Foreman [C. C. A.] 125 F. 217. 41. Construing Act 1898, §§ Ma., 25b. and § 6, Act March 3, 1891, 26 Stat. 828, o. 617 [U. S. Comp. St. 1901, p. B49], creating the circuit court of appeals. Hutchinson v. Otis, Wilcox & Co. [C. C. A.] 123 F. 14. 43. Hutchinson v. Otis, Wilcox & Co. [C. C. A.] 123 F. 14. 43. Hewit V. Berlin Maoh. Works, 194 U. S. 296, 24 S. Ct. 690. 44. Assignee of a judgment creditor who alone proved his claim against the bankrupt estate applied to have the estate reopened, on the ground that assets had been fraudu- lently conveyed, the court below discharged a restraining order and refused an injunc- tion to restrain a further transfer, but ap- pointed a trustee, none having been pre- viously appointed, held could prosecute a petition for review. Clark v. Pidcock [C. C. A.] 129 F. 745. 45. A bankruptcy proceeding is a pro- ceeding in equity. Lookman v. Lang [C. C. A.l 128 P. 279. 46. Mortgagee In possession of property of the bankrupt turned the same over to the trustee to sell, the proceeds to be turned into the registry of the bankruptcy court, the right of property to follow the fund, held, action of bankruptcy court in deter- mining mortgagee's rights reviewable by ap- pellate court. In re Antigo Screen Door Co. [C. C. A.] 123 F. 249. 47. Whether a court of bankruptcy erred In ordering a sale of property free from in- cumbrances. In re Union Trust Co. [0. C. A.] 122 F. 937. 48. Chesapeake Shoe Co. v. Seldner tC. C. A.] 122 F. 593. 48. The revising order is not a final deci- sion allowing or rejecting a claim within the meaning of § 25b, of the Act of 1898. Holden V. Stratton, 191 U. S. 115, 24 S. Ct. 45. 50. Buckingham v. Bstes [C. C. A.] 128 F. 584; Lockman v. Lang [C. C. A.] 128 F. 279. 51. Points not covered by assignment of error cannot be reviewed. Buckingham v. Bstes [C. C. A.] 128 F. 584. 53, 53. In re Miller, 13 Okl. 557, 75 P. 1128. 64. No material prejudice was shown. Co- lumbia Ironworks v. National Lead Co. [C. C A.] 127 F. 99. 3 Cur. Law. BANKKUPTCY § 21. 487 it and to pass on same."" An appeal lying under the bankruptcy act, the dissatis- fied litigant may appeal both as to law and facts,"' or may, where a question of law is concerned, raise that alone by a revisory petition. On a petition to revise a court of bankruptcy in a matter of law, findings which involve a distinct propo- sition of law or a substitute therefor are necessary."' A petition for review being filed, the proceeding must be prosecuted to a hearing and determination with rea- sonable diligence."* In order to maintain on appeal an objection that a claim was not allowed within one year, and therefore its allowance was erroneous, the transcript must show the date of the adjudication."' The circuit court of appeals may on appeal review a question of fact,"" but it will not reverse a finding of fact by a referee and affirmed by the district court, unless manifestly against the weight of the evidence.*^ The appellate court upon a petition to review cannot challenge the facts, or an inference of fact, found by the court below,'^ it can only consider and rule upon questions of law.'" Objections to the jurat on the specifications of objection to a bankrupt's discharge,'* or that the goods of the bankrupt have not been properly inventoried,'" cannot be made for the first time upon a petition to review. Appellate courts will not interfere in administrative matters where no substantial interests are concerned." An order of dismissal wUl not be reversed upon appeal because of an immaterial departure from the technical rules of pro- cedure." Sufficient facts being alleged and proved to warrant the adjudication, the latter wiU not be set aside upon appeal because other acts alleged were neither properly pleaded nor sufficiently proved." § 31. Trustee's bonds; actions thereon.^^ — An action upon a trustee's bond must be brought in the name of the United States," it may be. brought without first obtaining leave,'^ in a state court /^ and the defaulting trustee being a fugitive from justice he is not a necessary party.''" Payments made by a trustee in bank- ruptcy in violation of the rules, and without an order therefor, being disallowed, ."5. Devries v. Shanahan [C. C. A.] 122 F. C29. 56. Burleigh V. Foreman [C. C. A.] 125 F. 217. 57. Cannot be supplied by the opinion of the court. In some cases involving issues of a substantial character justice might re- quire the relaxation of the above rule. In re Boston Dry Goods Co. [C. C. A.] 125 F. 226. 5S. Allowing two years and nine months to pass from the time of the filing of the petition before any real effort to prosecute the proceeding is made is such laches that the petition will be dismissed. In re Koenlg, 127 F. 891. 39. Buckingham v. Estes [C. C. A.] 128 F. 584. 60. As to whether or not a claim should have been allowed. Rush v. Lake [C. C. A.] 122 F. 561. 61. In re Noyes Bros. [C. C. A.] 127 F. 286. Action to recover a preference. Hodges v. Kolm [S. C] 45 S. B. 102. Findings on an accounting of rent. Buckingham v. Estes [C. C. A.] 128 F. 584. There being no dis- tinct findings upon a question of fact by either the referee or the bankruptcy court, the appellate court is not aided in Its con- sideration of the case by the weight which ordinarily attaches to findings of courts of the first instance. Burleigh v. Foreman [C. C. A.] ISO F. 13. aa, 63. In re Antigo Screen Door Co. [C. C. A.] 123 F. 249. ©4. Godshalk Co. v. Sterling [C. C. A.] 129 F. B80. 65. In re Shoe & Leather Reporter [C. C. A.] 129 F. 588. 66. Will not interfere with an order of the district court fixing the minimum bid for the sale of assets of the bankrupt, and that a certain proportion of such price might be paid in bonds secured by a mortgage upon said assets. In re Shoe & Leather Reporter [C. C. A.] 129 F. 688. 67. Verdict of jury being advisory only, and the case being tried upon its merits, that Immaterial Issues were submitted to the jury is not sufficient for reversal. Oil Well Sup- ply Co. V. Hall CC. C. A.] 128 F. 876. 68. In re Lynan [C. C. A.] 127 F. 123. 60. See 1 Curr. L. 334. 70. Cannot be brought In the name of the succeeding trustee, though in a state where cctions must be brought in the name of the real party in Interest. Alexander v. Union Surety & Guaranty Co., 89 App. Div. 3, 85 N. T. S. 282. 71. Alexander v. Union Surety & Guaranty Co., 89 App. Div. 3, 85 N. T. S. 282. 72. The supreme court of New York, hav- ing general jurisdiction, has jurisdiction of such an action. Alexander v. Union Surety & Guaranty Co.. 89 App. Div. 3, 85 N. Y. S. 282. 73. Though a proper one. Alexander v. Union Surety & Guaranty Co,, 89 App. Div. 3. 85 N. Y. S. 282. 488 BANKKUPTCY § 23A. 3 Cur. Law. the trustee and his bondsmen are liable therefor, though the court might have authorized such payments had the trustee applied for authority to make them.'* § 23. Discharge of bankrupt j its effect and how availed of. A. Procedure to obtain discharge and vacation thereof.""^ — The failure of a bankrupt to apply for a discharge within the time allowed by law renders the question of his right to a discharge from those debts in a proceeding under a subsequent petition res adjudi- cata." A bankrupt being allowed to file his petition for a discharge more than a year after adjudication, the only question open is whether or not he is entitled to a discharge,'' creditors seeking to oppose it being confined to statutory objec- tions,'* and the court entertaining such a petition upon an insufficient showing, the remedy is a motion to vacate." A bankrupt filing a petition for his discharge and taking no further steps in the matter for over a year is chargeable with an abuse of the bankruptcy proceedings for the purpose of delaying creditors, and on petition by a creditor his application for discharge will be dismissed." Notice of petition for discharge must be sent to creditors at their respective addresses.'^ An objecting creditor has no right to enter an appearance after the return day, and should not be allowed to do so, except for good cause shown in excuse of the delay.'^ The burden of proof is upon the opposing creditor to estab- lish the ground for refusing the discharge by satisfactory and sufficient evidence.*' Upon the hearing of the petition for a discharge and specifications in opposition thereto, the testimony of the bankrupt given at the first meeting of creditors is admissible,** but not the testimony of other witnesses taken at that time,*^ and the taking of the testimony by the referee of witnesses other than the bankrupt, upon petition for discharge and specifications in opposition thereto, before returning the same to the court is an irregularity,*' but the bankrupt appearing and cross- examining the witness the testimony so taken will not be stricken out.*' By making an order of discharge it will be presumed that the court investi- •gated the objections made thereto, and overruled the same on their merits.** An order of a bankruptcy court dismissing an application for discharge for want of prosecution is, in substance and effect, one denying a discharge.*' A bankrupt having been refused a discharge cannot, a few months thereafter, prosecute a new application for a discharge upon the same facts."" An order denying a discharge is reviewable by appeal.'^ A discharge is not subject to collateral attack."^ 74. In ro Hoyt, 127 F. 96S. 75. See 1 Curr. L. 335. 76. Kuntz V. Young [C. C. A.] 131 F. 719. 77. In re Haynes & Sons, 122 F. 560. See 1 Curr. L. 335, n. 34. 78. In re Haynes & Sons, 122 F. 560. 79. It is too late to contest the matter on the hearing of the petition. In re Haynes & Sons, 122 P. 560. 80. In this case the banlcrupt also ob- tained an Injunction staying proceedings by the creditor for the collection of a debt, held, injunction would be vacated. In re Lederer, 125 F. 96. 81. Where judgment creditor died before the filing of the petition for a discharge by the bankrupt, and her executrix and sole legatee had not proved her will, held proper to send the notices addressed to the creditor at her last place of residence. Such notice held sufficient to sustain motion by dischar- ged bankr.upt for cancellation of judgment under Code Civ. Proe. § 1268. ^ '-^ " " worth, 87 N. T. S. 1112. 82. In re Ginsburg, 130 F. 627 Lent v. Parns- 83. In re Chamberlain, 125 F. 629. See 1 Curr. L. 335. n. 51. 84. In re Goodhile, 130 F. 782. See 1 Curr. L. 335, n. 63. 85. 86, 87. In re Goodhile, 130 P. 782. 88. Affirmed the referee's report. Ken- tucky Nat. Bank v. Carley [C. C. A.] 127 P. 686. 89. In re Kuffler [C. C. A.] 127 P. 125. 90. Refused because of fraudulent con- cealment of assets from the trustee. In re Piegenbaum [C. C. A.] 121 P. 69. 91. In re Kuffier [C. C. A.] 127 P. 125. 9B. That the plaintiff, a discharged bank- rupt, did not schedule the pending action as IJart of his assets is no defense thereto. Wilsey V. Jewett Bros. & Co.. 122 Iowa, 315. 98 N. W. 114. Claiming that a discharge does not bar a particular claim is not a col- lateral attack. Sutherland v. Lasher, 41 Misc. 249, 84 N. T. S. 56. A plea of dis- charge can be met by showing that the debt was excepted from the operation thereof, without the reply amounting to a collaterai attack on the bankruptcy decree. Santa Rosa Bank v. White, 139 Cal. 703, 73 p. 577. 3 Cur. Law. BANKEUPTCY § 22B. 489 A court of bankruptcy may on its own motion vacate a discharge, in the fur- therance of justice, before the expiration of a year after it was granted."" A cred- itor of a bankrupt who has failed to file or prove his claim within a year after adjudication may nevertheless move, as a party in interest, to vacate the discharge.** A creditor petitioning for a revocation of a bankrupt's discharge must not have been guilty of undue laches.'" A petition for the revocation of a discharge in bank- ruptcy, setting out the facts, need not allege the legal conclusion that the facts did not warrant a discharge.'" (§22) B. Grounds for refusal.^'' — ^Provisions regulating the conditions on which bankrupts may be discharged are remedial in their nature, with respect to the bankrupts or to their creditors, or to both, and the strict rules of construction or interpretation appropriate to retroactive or retrospective laws are inapplicable to them.®* A judgment denying a debtor a discharge from a debt, under a state in- solvency law, is not an adjudication of his right to a discharge from such debt in bankruptcy, where it does not appear upon what grounds such judgment was based." The provision of the bankruptcy act forbidding a discharge if the bankrupt has, in voluntary proceedings, been granted a discharge within six years is not retro- active as applied to cases where the first proceedings were had prior to its enact- ment, but merely adds a new condition of discharge in cases instituted after the amendment.^ A discharge granted to a bankrupt in partnership proceedings insti- tuted by himself is granted in voluntary proceedings, and prevents his obtaining a discharge within six years upon an individual voluntary petition.* A court un- doubtedly has power to refuse a discharge, the entire proceeding being a palpable fraud upon the creditors.' Commission of an offense.* — A false oath, to be available as a bar to a dis- charge, must have been knowingly and fraudulently false.' Omission of property from his schedules is sufiicient to warrant the refusal of a discharge on the ground of his making a false oath,' and the bankrupt's right to a discharge is not restored by listing the property concealed after the making of the false oath is discovered.'' Destruction of or failure to keep boohs of account.^ — Destruction of books of account prior to the contracting of indebtedness does not warrant the refusal of a discharge.' Prior to the amendatory act of 1903 it had to be satisfactorily shown that the failure to keep books was with fraudulent intent to thereby conceal his financial condition, and in contemplation of bankruptcy." Failure to keep a com- plete set of books will not of itself bar a discharge.^^ 93, 94. In re BimlDerg, 121 F. 942. 95. Creditor vrho had opportunities to ex- amine bankrupt, appeared in opposition to discharge, and was given time to file specifi- cations -of objection, but failed to do so, and permitted the discharge to be granted with- out further objection, is guilty of undue laches. In re Upson, 124 F. 980. 96. In re Toothaker Bros., 128 F. 187. 97. See 1 Curr. L. 336. 98. In re Scott, 126 F. 981. 99. In re Bybee, 124 F. 1011. 1. Act 1898, § 14b, as amended by Act 1903, c. 487, § 4. In re Carleton, 131 F. 146. 2. In re Carleton, 131 F. 146. 3. That creditors opposing the discharge discontinue their opposition, and the referee in a supplemental report refuses a certifi- cate of conformity, are sufficient to create a presumption or suspicion that some act has been done by or on behalf of the bank- rupt to secure the discontinuance of the opposition, justifying a refusal of the bank- rupt's discharge pending a further report by the referee. In re Sanborn, 131 F. 397. 4. See 1 Curr. L. 336. B. Kentucky Nat. Bank v. Carley [C. C. A.] 127 F. 686; In re Breiner, 129 F. 155. 6. In re Garley [C. C. A.] 127 F. 538; In re Toothaker Bros., 128 F. 187. Effect of omission of creditors, see 1 Curr. L. 336, n. 61. 7. In re Breiner, 129 F. 155. 8. See 1 Curr. L. 336. 9. Bankrupt Inherited $155,000 from his father and lost the same in gambling and speculation, in the latter part of the year 1901 he destroyed his checkbook and pass- book; having no account in the bank. Of the $9,304.54 total liabilities over $7,600 was for money borrowed, and of this only one item $11 seems to have been bor- rowed in 1901, the rest In 1902. Held, de- struction of books not with fraudulent in- tent to conceal true financial condition, and not in contemplation of bankruptcy. In re Studebaker [C. C. A.] 127 F. 951. 10. Bankrupt kept no complete set of books, but used contracts of sale to aid those 490 BANKRUPTCY 8 32B. 3 Cur. Law. Obtaining property upon false statements}^ — A bankrupt obtaining property on credit upon a materially false statement in writing cannot be discharged/* such statement having been made for the purpose of obtaining such property.^^ Concealment or transfer of proper.ty?-^ — The right to a discharge is forfeited if the bankrupt knowingly conceals his property.^' In order to bar a discharge, a transfer of property to hinder, delay,- or defraud his creditors need not be know- ingly and fraudulently made,^' though it must have been made within four nionths prior to the filing of the petition in bankruptcy.^^ His right to a discharge is not restored by listing the property concealed after the attempt to conceal the same has been discovered.'^" A bankrupt who does not surrender his estate to the trustee is not entitled to a discharge, even though he may have scheduled it and otherwise complied with the statute.^" Where he, as beneficiary of a trust fund, is entitled to the interest and income thereof, he must assign his interest in the income and interest to his trustee in bankruptcy,'^ but where his right to the principal rests in the option of the trustee this right need not be so assigned.^^ In order to pre- vent a discharge on the ground of concealment of property it must appear that the property still belongs to the bankrupt estate.^^ Failure to schedule a pending claim for alimony,^* or refusal to convey property claimed as an exemption, do not con- stitute a concealment of property preventing a discharge.^' he kept, no fraud being- shown, held, no ground for refusing a discharge. In re Cham- berlain, 125 P. 629; In re Allendorf, 129 F. 981. Failure to enter certain loans on the books Induced by the fear that If a certain creditor knew that he was borrowing money he might "close him (the bankrupt) up," and that, as business was improving, he fully thought that he would be able to pay, does not justify a presumption that such failure to keep proper books was in contemplation of bankruptcy. Van Ingen v. Schophofen [C. C. A.] 129 F. 352. One who three years before bankruptcy inherited $150,000, which he testified he had lost in gambling, who at the time of the application for his dis- charge received a salary of $3,600, lived on a liberal scale, paying $2,000 a year for rent of apartment, and who during the year be- fore the adjudication destroyed his bank book and check book, which action was never explained, held, that the Inference was justified that the bankrupt destroyed such books with fraudulent Intent to conceal his true financial condition and In contemplation of bankruptcy. In re Studebaker, 124 F. 945. H. In re Allendorf, 129 F. 981. 12. See 1 Curr. L. 336. IS. Act of 1898, § 14b, as amended by t,he act of 1903. So held In a case where ihe statement was made more than four months prior to the date of the amendatory act, and about six months prior to the filing of the petition in bankrviptcy. In re Scott, 126 P. 981. Section 14, subd. b., cl. 3, deals solely with a condition precedent to the discharge of bankrupts in future cases, it does not undertake to provide for the recovery of any property, or to set aside or otherwise affect any transaction. Id. A bankrupt ob- taining property upon a written statement to a wholesale house, for the purpose of get- ting credit, in which was listed an asset valued at $1,400 which she did not possess, is not entitled to a discharge. In re Good- hlle, 130 F. 782. 14. Statement made, property obtained and paid for, 8 months later other property bought on credit, held did not defeat dis- charge. In re Allendorf, 129 F. 981. 15. See 1 Curr. L. 336. 16. Knowingly concealed an Interest In the estate of his grandfather. In re Breiner. 129 F. 155. In the absence of a clear mis- statement by the bankrupt with regard to the ownership of property upon which he resided, the title to which stood In the name of his father, and to which the bank- rupt was the prospective heir, there is no concealment of assets or a false oath so as to bar a discharge. In re Brumbaugh, 128 F. 971. The fact that a merchant's stock did not amount to the balance left after de- ducting the amount of the sales from the amount purchased Is not sufBclent of itself to bar a discharge on the ground of con- cealed property, It being shown that the bankrupt's methods of business were care- less, and that he kept no complete set of books. In re Allendorf, 129 F. 981. 17. In re Gift, 130 P. 230. Where prior to the amendment (Act 1903, § 4) of Act 1898, § 14, subd. b., a bankrupt transferred proper- ty by a deed absolute on its face but without consideration, and not limited by any agree- ment retaining an interest in the grantor held there was as to such property no con- cealment of property by the bankrupt from the trustee. In re Dauohy, 122 P. 688, 18. In re Brumbaugh, 128 F. 97. 19. In re Breiner, 129 F. 155. 20. 21, 22. In re Fleishman, 120 P. 960. 23. Where it was alleged that property was fraudulently conveyed more than 2 years prior to bankruptcy, In order to constitute a fraudulent concealment, held, it must be shown that a secret lien exists in favor of the grantor. In re Dauchy [C. C. A.] 130 P. 532. 24. In re Le Claire, 124 P. 654. 215. Property awarded as alimony subse- quent to bankruptcy claimed as a home- stead. In re Le Claire, 124 F. 654. See 1 Curr. I.. 336. n. 68. 3 Cur. Law. BANKRUPTCY § 23C. 491 (§32) C. Liaiilities released.^' — A state court is bound to take notice of a discharge in bankruptcy -when properly pleaded as a defense.^'' A person seeking to avail himself of a discharge in bankruptcy as a defense must plead the discharge,"' must show in which one of the United States district courts the petition was filed,^° and allege facts showing that. the court in which the proceedings were taken had jurisdiction of the parties or subject-matter/" though this has been held unneces- sary/^ but he must show that the debts sued on were scheduled in time for proof and allowance/^ and that he received his certificate/^ failing in any of these regards ■ the answer is amendable.'"* He is not required to show that the claims sued on were provable/'^ nor that the debt is not within any of the classes excepted from the operation of the bankruptcy law/" though there is conflict on this latter point. "'' The state courts have jurisdiction to determine the effect of a discharge.^^ The discharge of a bankrupt is but a personal release/" it does not release the property of the debtor from a valid lien attaching thereto, such lien not being ex- pressly annulled by the provisions of the bankruptcy act.*" Nonprovable debts are not released.*^ State acts allowing discharged bankrupts to obtain a cancellation of judgments against themselves are not generally intended to enlarge the scope of the Federal bankruptcy act,*^ and generally entitle the bankrupt to such can- cellation as a matter of right.*' Debts created by fraud, embezzlement, or misappropriation in whatever capacity or relation the bankrupt was acting, are not released by the bankrupt's discharge,** the words "whUe acting as an ofiQcer or in any fiduciary capacity," as used in sec- tion 17, subd. 4, apply only to a defalcation.*' "Debts created in any fiduciary 36. See 1 Curr. L. 337. 27. Wood V. Carr, 24 Ky. L. K. 2144, 73 S. W. 762. The petition of an Intervenor in attachment claiming the property under a conveyance from the debtor, and aUeging that since- the judgment in the lower court the debtor has been declared a bankrupt and discharged from bankruptcy, and that plain- tiff has proved his claim and participated in the distribution of the estate must allege the date of the filing of the petition in bank- ruptcy. House V. Johnson [Colo. App.] 76 P. 743. as. Action on an account. Bailey v. ICraus, 39 Misc. 845, SI N. T. S. 492; Fowler V. Michael [Tex. Civ. App.] 81 S. W. 321. 29. Bailey r. Kraus, 39 Misc. 845, 81 N. T. S. 492. 30. Otherwise answer is InsuflBcient to ad- mit proof. Bailey v. Kraus, 39 Misc. 845, 81 N. T. S. 492; Fowler v. Michael [Tex. Civ. App.] 81 S. W. 321. 31. Bailey v. Gleason [Vt.] 56 A. 537. 32. Since there is no discharge as to a creditor not connected with the proceedings by the schedule. Bailey v. Gleason [Vt.] 56 A. 537. 33. Fowler V. Michael [Tex. Civ. App.] 81 S. W. 321. 34. Bailey v. Kraus, 39 Misc. 845, 81 N. T. S. 492. 35 36. Bailey v. Gleason [Vt.] 56 A. 537. 37.' Fowler v. Michael [Tex. Civ. App.] 81 S. W. S21. 38. The Colorado court of appeals has ju- risdiction to determine the effect of a dis- charge In bankruptcy pending an appeal or writ of error set up by a supplemental pe- tition. Boyd V. Agricultural Ins. Co. [Colo. App.] 76 P. 986. 39. Mallin v. Wenham, 209 111. 252, 70 N. E. 564. 40. Mallin v. Wenham, 209 111. 252, 70 N. E. 564. See 1 Curr. L. 337, n. 83-92. 41. Contingent liability of the principal on a bond given to indemnify a constable against such damage as might result from levying an execution. Leader v. Mattingly [Ala.] 37 So. 270. 42. New York Code Civ. Proc. J 1268, does not render void a lien acquired in good faith more than four months prior to the commencement of the bankruptcy proceed- ings. Pickert v. Eaton, 81 App. Div. 423, 81 N. Y. S. 50. 43. Action On contract, defendant after issue joined discharged from bankruptcy, then obtained leave to set up such discharge in his answer on certain conditions but de- clined to avail himself of the privilege, held entitled to cancellation of judgment. Hussey V. Judson, 87 N. Y. S. 499. 44. In re Butts, 120 B^ 966; Hyde & Sons V. Lesser, 87 N. Y. S. 878. Fraud. Crawford V. Burke, 201 111. 581, 66 N. E. 833. See 1 Curr. L. 337, n- 93; Id. 338, n. 8. 4B. In re Butts, 120 F. 966; Hyde & Sons V. Lesser, 87 N. Y. S. 878; Crawford v. Burke, 201 111. 581, 66 N. E. 833. A complaint al- leging that defendant did "wrongfully and fraudulently embezzle and misappropriate the plaintiff's money" the legal import of these words being that he became possessed of the money in a fiduciary capacity, his answer setting up a discharge In bankruptcy is demurrable. Watertown Carriage Co. v. Hall, 176 N. T. 313, 68 N. E. 629. The court holds that under the circumstances ot the case, it is unnecessary to decide the propo- sition stated in the text. Id. Contra, by Inference It would seem as though Field v. Howry [Mich.] 94 N. W. 213, took the opposite view. 493 BANKEUPTCY 8 23C. 3 Cur. Law. capacity" include only technical trusts, and not trusts implied by law from con- tracts of agency/' or bailment.*' Conditions as to settlement do not convert a contract of sale into one creating a trust and establishing a fiduciary relation be- tween the parties,** nor render the debt from the bankrupt on account of goods sold and not paid for one created by fraud, embezzlement, misappropriation, or defalcation, while acting in a fiduciary capacity,*" so as to prevent its release by a discharge in bankruptcy. Both a trustee for creditors*" and a receiver appointed by the court*"^ hold the funds in a fiduciary capacity. ' The relation between a bro- ker and his patrons is not such a fiduciary one.'"' Obligations incurred by one selling goods on commission and retaining the proceeds constitute debts created while acting in a fiduciary relation within the meaning of the bankruptcy act.°^ Failure by a debtor to turn over wages collected by him in pursuance to an assign- ment of his future earnings is a defalcation while acting in a fiduciary capacity.'** Since the amendment of 1903 a bankrupt is not released by his discharge from claims based on fraud though not reduced to judgment.'"' A discharge in bankruptcy does not release the debtor from judgments ob- tained in actions for wilful and malicious injuries to the person or property of another.'' Judgments for malicious prosecution,'^ slander,'* or criminal conversa- tion,'" are not released. Judgments in a suit of trespass to try title,'* in an action of trover and conversion,'^ or for breach of promise to marry,'" are released by the discharge of the judgment debtor. A final money judgment being obtained upon an order requiring a putative father to support his child, the debt evidenced thereby is not released by a discharge of the judgment debtor," nor is an order upon a father to support his child of tender years,'* but the obligation to reimburse a 46. Agent owing his principal money Is not a fiduciary debtor. Boyd v. Agricultural Ins. Co. [Colo. App.] 76 P. 986. See 1 Curr. L. 338, n. 99. 47. Boyd V. Agricultural Ins. Co. [Colo. App.] 76 f. 986. 48. Conditions on back of contract pro- vided that buyer should hold in trust and separate for the settlement of the seller's account all goods unsold and everything re- ceived for goods sold. , In re Butts, 120 F. 966. 49. In re Butts, 120 F. 966. 50. Loaning the money to a Arm of which he was a member is such misappropriation, though he expected the loan would be re- paid. Field V. Howry [Mich.] 94 N. W. 213. 51. The successor in office of the receiv- er did not by proving the claim for misap- propriation of the debtor's funds against the receiver's estate in bankruptcy elect to treat it as an ordinary debt, rather than as a fiduciary obligation, and thereby waive his right to question the discharge In bank- ruptcy. Field v. Howry [Mich.] 94 N. W. 213. 52. A bankrupt broker is released by his discharge from liability upon a debt In- curred by his failure to return to a cus- tomer securities deposited with him as col- lateral against loss. Crosby v. Miller, Vaughn & Co., 25 R. I. 172, 55 A. 328. 53. Laundry agent in country town so- licited and sent laundry to laundry in city, on the latter's returning it the agent would deliver the packages, collecting therefor and sending the total collected, less his com- mission, to his principal, held, discharge In bankruptcy will not avail him as against his principal's claim for money not turned over. Shipley v. Platts [S. D.] 97 N. W. 1. 64. Mott Iron Works v. Toumey, 87 N. T. S. 1020. 55. Construing together clauses 2 and 4 of § 17, Act 1898. In re WoUook, 120 F. 516. Prior to the amendment the contrary rule prevailed. Smith & W. Co. v. Lambert, 69 N. J. Law, 487, 66 A. 88; Hargadlne-McKltt- rick Dry Goods Co. v. Hudson [C. C. A.] 122 F. 232; Quaker City Watch Co. v. Lam- oreaux, 21 Pa. Super. Ct. 493. "Fraud" as used in § 17, cl. 2, prior to the amendment, meant positive fraud, or fraud in fact, in- volving moral turpitude or intentional wrong. Crosby v. Miller, Vaughn & Co., 25 R. I. 172, 55 A. 328. 56. Stefanini v. Sroka, 88 N. T. S. 167. Malice as here used means a wrongful act done Intentionally without just cause or excuse. Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 506. 67. Mason v. Perkins [Mo.] 79 S. W. 683. 58. Sanderson v. Hunt, 25 Ky. L. R. 626, 76 S. W. 179. 69. A Judgment for damages arising from the criminal conversation of the bankrupt with the Judgment creditor's wife is not released. Tinker v. Colwell, 193 U. S. 473, 24 S. Ct. 506. 60. Imhoft V. Whittle [Tex. Civ. App.] 81 S. "VV. 814. 61. Is not an action for fraud within the meaning of § 17, cl. 2. Crosby v. Miller, Vaughn & Co., 26 R. I. 172, 65 A. 328. See 1 Curr. L. 338, n. 13, for contra case. 62. In re Brumbaugh, 128 P. 971. 63. Whether the same rule would apply since the amendment to § 17, subd. 2, by the act of 1903, quaere. McKittrick v. Cahoon, 89 Minn. 383, 95 N. W. 223. 64. Rush v. Flood, 105 111. App. 182. An 3 Cur. haw. BANKEUPTCY § 320. 493 Btranger for past support of the child is released by such a discharge." The stay of a suit, as to the personal liability of the bankrupt, in. a state court, ordered pend- ing discharge, will not be continued after the discharge has been granted, but the temporary stay should be vacated without prejudice to the rights of the bankrupt under the discharge."' A discharge in bankruptcy does not terminate a lease nor change the legal rela- tion of landlord and tenant unless the landlord re-enters or the trustee assumes the lease.'' The maker of a note is released from liability thereon by a discharge in bankruptcy.'* As to whether or not a debt can escape the operation of the dis- charge by being secured by an assignment of future earnings there is a conflict." The lien of a judgment rendered more than four months prior to the filing of the petition is not released by a discharge of the judgment debtor in bankruptcy, when the holder of such judgment does not prove his debt in the bankruptcy proceed- ings."* A discharge in bankruptcy does not release a lien upon exempt property, though obtained within four months prior to the filing of the petition in bank- ruptcy.''^ An unscheduled provable debt is not released by the discharge unless, the cred- itor,''^ or his agent,'* had notice or actual knowledge of the bankruptcy proceed- ings, and the burden is upon the bankrupt to show that the creditor had such notice or knowledge.'* An incorrectly described claim is equivalent for this pur- pose to an unscheduled one.'" Failure to schedule a. claim through ignorance of its existence does not render the discharge a bar thereto." The assignee of a claim of a bankrupt is not bound by a settlement, of which he has no knowledge, in the bankruptcy court." A provable claim not being proved, the creditor hav- obligatlon of a bankrupt to his divorced wife for the support of their minor children Is not released. Dunbar v. Dunbar, 190 U. S. 340, 23 S. Ct. 757, 47 Law. Ed. 1084. Alimony: See 1 Curr. L. 338, n. 9. . 65. Obligation to recompense divorced wife for expenditures made after remarry- ing. Rush V. Flood, 105 111. App. 182. 66. In re Flanders, 121 F. 936. 67. Witthaus v. Zimmerman, 91 App. Dlv. 202, 86 N. T. S. 315. 68. Blaokwell v. Farmers' & Merchants' Nat. Bank [Tex. Civ. App.] 76 S. W. 454. 69. That they cannot. In re West, 128 F. 205. That such a debt is not superseded. Mal- lin V. Wenham, 209 111. 252, 70 N. E. 564. 70. Mortgage. Camp v. Young, 119 Ga. 981, 47 S. B. 560. Where but for a fraudulent transfer a Judgment would have been a lien upon the real property of the debtor the discharge of the judgment debtor In bankruptcy does not affect the lien of the judgment as against such real property. Hillyer v. Le Roy, 84 App. Div. 129, 82 N. T. S. 80. 71. Does not discharge the lien of a judg- ment obtained within four months prior to the adjudication of bankruptcy, upon a note waiving the homestead exemption allowed by the laws of Georgia upon lands set aside by the bankrupt court as exempt. McKenney V. Cheney, 118 Ga. 387, 45 S. E. 433. 72. Reynolds v. Whittemore [Me.] 58 A. 415; Colurnbia Bank v. Birkett, 174 N. T. 112, 66 N. B. 652. Constructive notice Is in- sufHclent. Santa Rosa Bank v. White, 139 Cal. 703, 73 P. 677. Stockholder's liability for a corporate debt. Wlneman v. Fisher [Mich.] 98 N. T. 404. A petition by a dis- charged bankrupt to restrain the collection of an unscheduled provable debt alleging that the creditor had notice or actual knowl- edge of the bankruptcy proceedings is suffi- cient. Jones V. Walter, 24 Ky. L. R. 2459, 74 S. W. 249; Karter v. Fields [Ala.] 37 So. 204. 73., Atkinson v. Elmore [Mo. App.] 77 S. W. 492. Knowledge of bankruptcy proceed- ings acquired by the cashier of a bank which is a creditor of the bankrupt will be Im- puted to the creditors of an insolvent cor- poration of which the bankrupt is a stock- holder, the cashier, having no personal in- terest, being appointed the receiver to en- force and collect the amount of the liability of the stockholders. Dight v. Chapman [Or.] 75 P. 585. 74. Wlneman v. Fisher [Mich.] 98 N. W. 404. 75. The scheduling of a bond and mort- gage by a bankrupt as having been given by his wife alone excepts the claim from the discharge, where the bond and mort- gage were given by the bankrupt and his wife. Fifth Ave. Bldg. & L. Ass'n v. Gold- berg, 22 Pa. Super. Ct. 197. A voluntary bankrupt inserting an erroneous street num- ber as the residence of a judgment creditor, when he did not know such residence, his motion to vacate the Judgment and an exe- cution Issued thereon will be denied, where the creditor had no notice of the bankruptcy proceedings until such motion. Sutherland V. Lasher, 41 Misc. 249, 84 N. T. S. 56. 76. Santa Rosa Bank v. White, 139 Cal. 70S, 73 P. 677. 77. Bankrupt, a building contractor, as- signed a claim against a property owner to pay the assignee for services, materials, etc.. 494 BANKRUPTCY § 32D. 3 Cur. Law. ing knowledge of the bankruptcy proceedings is absolutely barred by the discharge/' and though the creditor holds a waiver of exemption, it cannot be collected from the property set aside to the bankrupt as exempt." In order to entitle a partner, filing a voluntary petition in bankruptcy, to a discharge from firm debts his petition must show the partnership assets and liabilities,'" and the firm creditors must be notified,^^ but the petition failing in this regard it may be amended.'" The discharge of a bankrupt does not affect the liability of a co-debtor," or guarantor.'* An unequivocal promise given after bankruptcy to pay a debt barred thereby is valid."* The promise to pay a debt discharged in bankruptcy must be clear, distinct, and unequivocal.*' In most states an agreement to revive a debt dis- charged in bankruptcy, in order to be valid, must be in writing,"' and where such promise is given the creditor may sue on the debt and need not sue on the new promise." The discharge being proved, the burden is upon the plaintiff to show that the new promise was made both after the discharge was granted, and before the suit on the account was brought,^' though it has been held that such a promise made after adjudication but before the discharge is binding."* A conditional prom- ise to pay a debt discharged by bankruptcy must be accepted.*^ A trustee failing to dispose of property previous to the bankrupt's discharge, the bankrupt's title remains unaffected by the bankruptcy proceedings,"- and is sub- ject to valid, undischarged liens acquired before the bankruptcy proceedings." Bankruptcy proceedings do not affect debts owing the bankrupt, except to make the trustee the payee.'* (§ 33) D. Pleading and evidence.^^ — Two or more creditors seeing fit to adopt the same specifications of objection may do so by signing the same paper." Speci- fications of objection are amendable in matters of substance, after the time within which objections are required to be filed, only where the amendment is simply an held, assignee could recover though property owner had settled with contractor's trustee in bankruptcy, assignee having no notice or knowledge of such proceedings. Rudner v. Bath [Mich.] 97 N. W. 6S5. 78, 79. Claster v. Soble, 22 Pa. Super. Ct. 631. 80. Schedule disclosed individual and partnership debts, held not entitled to a dis- charge from firm debts, though the firm had been dissolved and was without assets, and the Arm debts were barred by limitation. In re Morrison, 127 F. 1S6. 81, 82. In re Morrison, 127 P. 186. S3. Witthaus v. Zimmerman, 91 App. Div. 202, 86 N. Y. S. 315. Surety. Boyd v. Agri- cultural Ins. Co. [Colo. App.] 76 P. 986; Leader v. Mattingly [Ala.] 37 So. 270. See 1 Curr. L. 338, n. 15. 84. Guarantor of the payment of the rent reserved in a lease was not discharged from liability on the guaranty by the tenant's discharge in bankruptcy before the end of the term. Witthaus v. Zimmerman, 91 App. Div. 202, 86 N. Y. S. 315. 85. In re Sweetser, 128 F. 165; Black- well V. Farmers' & Merchants' Nat. Bank [Tex. Civ. App.] 76 S. W. 454. 86. Where two persons testified that bankrupt promised to pay the debt, which bankrupt denied, and another that the debt- or had told him he intended to pay. and had promised to do so, held to show an un- conditional promise to pay the debt. Brooks V. Paine. 25 Ky. L. R. 1125. 77 S. W. 190. 87. Laws 1897, p. 507, c. 417. Bair v. Hil- bert, 84 App. Div. 621, 82 N. Y. S. 1010. In- dorsed on bill for goods sold: "This account is O. K. * • • I will pay it. Owen Trea- nor" held sufficient. Gruenberg v. Treanor, 10 Misc. 232, 81 N. Y. S. 675. SS. New promise was not pleaded. Gruenberg v. Treanor, 40 Misc. 232, 81 N. Y. S. 675. 89. Thornton v. Nichols & Lemon, 119 Ga. 50, 45 S. B. 785. 90. Gruenberg v. Treanor, 40 Misc. 232, 81 N. Y. S. 675. 91. Debtor oftered to pay the original debt In installments, creditor refused to ac- cept payment in that manner, held the debt was not revived. Court says that if creditor had not answered to the proposition, an ac- ceptance would probably be implied. Inter- national Harvester Co. v. Lyman [Minn.] 96 N. W. 87. 92. Rochester Lumber Co. v. Locke [N. H.] 64 A. 705. 93. Attachment lien and mortgage. Rochester Lumber Co. v. Locke [N. H.] 54 A. 705. 94. Kudner v. Bath [Mich.] 97 N. W. 685. OS, See 1 Curr. L. 338. 96. There is nothing joint about the pa- per, it is simply a device to avoid the mul- tiplication of copies. In re Milgraum & Ost, 129 F. 827. See 1 Curr. L. 335, for this sub- ject. 3 Cur. Law. BANKEUPTCY § 22D. 495 amplification of the charges which are stated in the original.'^ Leave to amend can only be granted by the judge,"' and the privilege may be lost by laches." There seems to be a conflict as to whether or not the specification of objection needs to be verified,* but in courts holding it necessary, the right to object to the specifications for lack thereof may be lost by allowing the cause to proceed,* and in those courts the verification may be made by the creditor's attorney,' and the verification being sworn to "to the best of the affiant's knowledge, information, and belief," it is sufficient.* The verification being held necessary it may be supplied by amendment." A specification of objection on the ground that the bankrupt failed to keep books knowingly and fraudulently concealing property should state the nature of the ground relied on,* a description of the property concealed from the trustee,^ the names of the parties holding the title,* the time of the transfer,* and any other facts necessary to identify the transaction," and that the bankrupt "knowingly and fraudulently" disposed of or concealed the property.** Specifications of objection on the ground of the bankrupt's making of a false oath must set out the facts re- lied on,*^ and must allege that such oath was "knowingly and fraudulently made."*" A specification of an objection on the ground that the banfaupt failed to keep books of account, and thus fraudulently concealed his true financial condition, is sufficient if alleged in the language of the act,** though the contrary has been held,*° such courts holding that a specification of objection, for any cause, in the language of 97. Supplying the details of alleged fraud- ulent transfers. In re Gift, 130 F. 230. See 1 Curr. L. 335, n. 44. 98. Not by a referee. In re Peck, 120 F. 972. 99. Leave to amend objections to a bank- rupt's discharge, by Incorporating therein objections urged by another creditor, 19 months after the objections ■were filed, and IB months after its case was closed. Is prop- erly refused on the ground of laches. Ken- tucky Nat. Bank v. Carley [C. C. A.] 121 F. 822. 1. Tbat it ne«d not: Is not a. pleading ■within the meaning of Act 1898, § 18c. In re Jamieson, 120 F. 697. Contra, see In re Peck, 120 F. 972; In re Mllgraum, 129 F. 827; In re Gift, 130 F. 230. 2. After submission of the case to the court upon evidence which fully supports and verifies certain of the specifications, an objection to the specifications for lack of verification Is too late, and cannot be con- sidered as a sufficient ground for dismissing the specifications and granting the discharge. In re Robinson, 123 F. 844. 3. In re Peck, 120 F. 972. Specifications of objection to the bankrupt's discharge should not ordinarily be signed and sworn to by attorneys In fact or In law, though they may be under exceptional circumstances. In re Milgraum. 129 F. 827. 4. In re Peck, 120 F. 972; In re Mllgraum, 129 F. 827. 5. In re (Sift. 130 F. 230. 6. An objection to the effect "that the bankrupt In consideration of bankruptcy, had conveyed his real property by written as- signment to strangers, for an Inadequate consideration, for the purpose of defraud- ing his creditors; that said pretended con- veyance is' merely in trust, to be reconveyed as soon as his petition for discharge is granted" is insufllolent. In re Parish, 122 F. 553. A specification of objection that with- in- four months of filing the petition the bankrupts transferred, removed, destroyed, or concealed their property with intent to hinder, delay, or defraud creditors. In that at certain stated times they did transfer to and conceal In certain stated places their property with such intent, is sufllolent. In re Mllgraum, 129 F. 827. 7. In re Parish, 122 F. 558. Specification of objection that defendant transferred "some of his property" Is too vague; must specify what property. Godshalk Co. v. Sterling [C. C. A.] 129 F. 580. 8, 9, 10. In re Parish, 122 P. 553. 11. In re Patterson, 121 P. 921. 12. In re Ginsburg, 130 F. 627. Specifica- tions of objection that the bankrupt made a materially false statement must set forth such statement. Godshalk Co. v. Sterling [C. C. A.] 129 F. 580. IS. In re Patterson, 121 P. 921. 14. In re Ginsburg, 130 F. 627; In re Pat- terson, 121 F. 921. That the bankrupt with intent to conceal his financial condition failed to keep books of account or records from which sucli condition might be ascer- tained Is sulflcient. Godshalk Co. v. Ster- ling [C. C. A.] 129 P. 580. That the bank- rupt destroyed canceled checks and the stubs thereof, from which his financial condition might have been ascertained, is sufiloient. Need not set forth the dates of the cheeks and other particulars. Id. 15. In re Peck, 120 F. 972. A specification of objection "that said bankrupts have, with intent to conceal their financial condition, destroyed, concealed, or failed to keep books of account, or records from which such con- dition might be ascertained" is insuflicient. In re Milgraum, 129 F. 827. 496 BASTAEDS § 1. 3 Cur. Law. the statute, is wholly insufficient, no evidence being receivable thereunder,^* nor do they afford any basis for amendment.^^ The proceeding to obtain a discharge is not a criminal one in any sense,^' and hence a fair preponderance of satisfactory evidence is sufficient." § 23. Reopening, grounds and effect.'^'' — The discharge is not conclusive evi- dence that the bankrupt has accounted for all his property,^^ and a court of bank- ruptcy has power, in its discretion, to reopen the estate of a bankrupt to permit a trustee to maintain an action for concealed assets.^^ A referee has jurisdiction of a petition to reopen an estate.''* No time is fixed within which the discharge of a bankrupt may be reopened,"* laches will authorize the court to refuse to reopen the estate,"' hence the rule is that a reasonable time, under aU the circumstances of each case, should be allowed."' A former trustee cannot seek to have the case reopened,"' and as to whether or not creditors who have not proved their debts can file such a petition there is a conflict."* The right to have the case reopened may be lost by allowing the. hearing of objections to a bankrupt's discharge to proceed without offering evidence therein."' The appointment of a trustee by the court upon the reopening of a bankrupt estate, without prior action on the part of the creditors, will not be con- sidered void in a collateral action.'" Where a bankrupt estate is reopened, the effect, so far as the bankrupt and his creditors are concerned, is to place the parties in the same relation before the court as they were before the estate was closed and the bankrupt discharged.'^ A creditor who failed to file or prove his claim within a year after adjudication, upon obtaining a vacation of the discharge, is entitled to collect his claim from any property acquired by the bankrupt after bankruptcy." BASTABBS. § 1. I^e^al Blementu and Evidences of Illesttlmaey (490). 3 2. Bisbts and Dntles of and In Respect to Bastards (497). § 3. Procedare to Ascertain Paternity and Compel Support (498). i 4. Iiegltlmatlon, Recognition, Adoption (499). § 1. Legal elements and evidences of illegitimacy." — ^The civil law denomi- 1«, ir. In re Peck, 120 F. 972. 18, 19. In re Dauchy, 122 F. 688. 20. See 1 Curr. Li. 336, n. 58-60. 21. Rand v. Iowa Cent. R. Co., 89 N. T. S 212 22. In re Goldman [C. C. A.] 129 F. 212. A bankrupt inherited from his father the Income of a trust' fund valued at $7,600, with- in one Tureek he tuansferred liis Interest therein, receiving a loan of tl.OOO, within a month of his father's death he filed a vol- untary petition and was adjudged a bank- rupt, three months later he was discharged, two months and a half later the transferee of the income of the trust fund transferred It to the bankrupt's wife, who paid him $300, the balance due on the loan. Held such facts warranted setting aside the discharge on the ground that failure to disclose such trust fund In his schedules amounted to a fraud- ulent concealment of assets. In re Paine, 127 F. 246. 23. Bilafsky V. Abraham, 183 Mass. 401, 67 N. B. 318. 24. A petition to reopen Is not a "suit" within the meaning of 5 lid, of the act of 1898, providing that "suits shall not be brought by or against a trustee of a bank- rupt estate subsequent to two years after the estate has been closed. In re Paine, 127 P. 246. 25, 26, 27. In re Paine, 127 F. 246. 28. That they cannot. In re Paine, 127 F. 246. Proof of the debt of a creditor being tendered and filed with the clerk of the bankruptcy court, after the case was closed In the referee's oflice, but prior to the dis- charge, and was never formally allowed, there being no assets, held, such proof was prima facie sufficient to entitle the creditor to apply to have the estate reopened on the ground that the bankrupt had fraudulently concealed assets applicable to creditors. Id. That they can. In re Bimberg, 121 P. 942. 29. Where the referee proceeds with the taking of evidence on objections to a bank- rupt's discharge, notwithstanding the ob- jection of a creditor, the latter having had full opportunity to offer any evidence de- sired cannot subsequently be heard on a petition to reopen the case for the purpose of offering additional evidence. Kentucky Nat Bank v. Carley [C. C. A.] 127 P. 686. 30. Fowler v. Jenks, 90 Minn. 74, 96 N. W. 887. SI. Title to concealed and ndnscheduled 3 Cur. Law. BASTAEDS § 2. 497' nates as "natural children" illegitimate children who have been aclmowledged by their father ; those not acknowledged or whose parents were incapable of contracting marriage at the time of the conception, are bastards.'* The presumption of legiti- macy of a child born during matrimonial cohabitation is sometimes held to be con- clusive/^ except where the husband is shown to be impotent,^' but in some states, proof of nonaccess is admitted.'' The legitimacy of children is presumed, and one claiming the contrary has the burden of proof,*' which is not met by slight evidence.'" The issue of Indians who cohabit as husband and wife aqcording to the custom of Indian life is deemed legitimate.*" § 3. Rights and duties of and in respect to bastards.*'^ — At common law, a bastard or his issue cannot inherit from his mother's collateral kindred,*^ and they have no greater capacity to take under dispositions causa mortis.*' The mother's legal duty is only to support the child until he becomes self supporting, and in case she is able to do so.** An agreement by the mother of an illegitimate child to care for and support him until a certain date is sufficient consideration to sup- port a promise by the putative father to settle a sum of money on him on that date.*^ A legitimated bastard has all the rights of a child bom in lawful wed- lock,*' but this does not affect his relation to his mother.*' The illegitimate sister property does not revest In the bankrupt after his discharge so as to deprive the court of Jurisdiction upon the reopening of the estate. Fowler v. Jenks, 90 Minn. 74, 95 N. "W. 887. 32. In re Bimberg, 121 F. 942. 33. See 1 Curr. L. 339. 34. Mother a colored person. Succession of Vance, 110 La. 760, 34 So. 767. 35. Town of Canaan v. Avery [N. H.] 68 A. 509. 36. Bunel v. O'Day, 125 F. 303. 37. Kennington v. Catoe [S. C] 47 S. E. 719; State v. Liles, 134 N. C. 735, 47 S. B. 750. Note: The rule formerly was that the pre- sumption of legitiipacy of a child born in wedlock was conclusive, but the modern de- cisions make it a question of fact to be de- termined on evidence of impotence or non- access. "Woodward v. Blue, 107 N. C. 407, 12 S. B. 453; Shuman v. Shuman, 83 Wis. 250, 53 N. W. 455. If the parents cohabited and the husband was not impotent, neither parent is a competent witness, however, to show illegitimacy (Shuman v. Shuman, 83 Wis. 250, 53 N. W. 455; Inhabitants of Abington V. Duxbury, 105 Mass. 290; Scanlon v. Walshe, 81 Md. 118, 31 A. 498), and statutes making interested parties competent to testify do not change this rule (In re Mills' Estate, 137 Cal. 298, 70 P. 91; Egbert v. Green- wait, 44 Mich. 245, 6 N. B. 654; Tioga County V. South Creek Tp., 75 Pa. 436). 38. Lewis v. Sizemore, 25 Ky. L. R. 1354, 78 S. W. 122. 30. Child born in 1821, few living wit- nesses who knew the facts of his birth or parentage. Testimony vague. Lewis v. Size- more, 25 Ky. L. R. 1354, 78 S. W. 122. Dec- larations that a child was declarant's daugh- ter, together with the fact that he was never married until several years' after the child's birth, warrant an inference of illegitimacy. In re Heaton's Estate, 139 Cal. 237, 73 P. 186. Evidence of legitimacy held sufficient on prosecution of father for incest. People V. Koller, 142 Cal. 621. 76 P. 500. In a bill for partition, the legitimacy of the petitioner 3 Curr. Law — 32. was denied and evidence of a marriage cer- tificate claimed to have been her father's, though the name was different, and the ac- knowledgment by her father and his treat- ment of her since her birth, held sufficient to establish petitioner's legitimacy. Dailey^ V. Prey, 206 Pa. 227, 55 A. 962. Bvidence- held to show that child was born in wed- lock, though its parents had previously co-- habited Illicitly. Tracy v. Frey, 88 N. Y. S.. 874. Father died "few days" after the New Tear. The child born when the "leaves be- gan to fall." At the trial, it was "four snows" old; held legitimate. Kalyton v. Kalyton [Dr.] 74 P. 491. Proof of unchastity of wife after birth of child is not admissible. Kennington v. Catoe [S. C] 47 S. B. 719. 40. To determine descent of land. Kaly- ton V. Kalyton [Or.] 74 P. 491. Evidence held td show marriage of an Indian couple according to the custom of their tribe. Id. Evidence held to show that an Indian wo- man had been divorced from her husband according to the custom of her tribe, before the marriage resulting in the birth of this child. Id. ! 41. See 1 Curr. L. 339. ; 42. This is not changed by statute pro- viding that "the heirs of a bastard, in the ascending and collateral lines, shall be the mother and her lieirs, and the bastards and their heirs shall be heirs of the mother." Reynolds v. Hitchcock [N. H.] 56 A. 745. 43. Succession of Vance, 110 La. 760, 34 So. 767. 44. 45. Rosseau v. Rouss, 91 App. Div. 230, 86 N. T. S. 497. 46. Inherits realty as an heir and re- ceives personalty as next of kin, both lineal- ly and collaterally. Scott v. Wilson,. 110 Tenn. 175, 75 S. W. 1091. 47. Property inherited by him from his father descends to his mother and not to heirs at law of his father. Scott v. Wilson, 110 Tenn. 175, 75 S. W. 1091. Under Texas statute, the entire estate of a bastard passes to his mother to the exclusion of his puta- tive father. Ford v. Boone [Tex. Civ. App.] 75 S. W. 353. 498 BASTAEDS § 3. 3 Cur. Law. of a bastard takes as his heir in the right of their mother to the exclusion of the next of kin of the father.*' The mother is not "a party interested in the event" of an action brought by the child against the estate of the putative father to enforce a contract. *° The putative father is entitled to the custody of the child after the mother's death."" A bastard child, being entitled to support from its father, may sue under the civil damage act for injury to support."^ § 3. Procedure to ascertain paternity and compel support.^^ — At common law, there was no legal obligation on the part of a putative father to support his illegiti- mate child."' Bastardy proceedings to compel a putative father to support the child now generally provided by statute are usually held to be civil proceedings." The proceeding will lie, though the child was born outside the state."" A proceed- ing under the bastardy act is not barred for six years in South Dakota."' A com- plaint in the words of the statute is sufficient."' Evidence.^^ — Intercourse at the time of conception must be shown."" Evidence of intercourse with others at about the time of conception will be considered accord- ing to its probable effect.^" The chastity of the mother cannot be questioned." The child must be brought into court."- By statute in several states, declarations of paternity by the mother are admissible if she remains constant therein,'' and testimony of the mother to paternity is admissible to show constancy in accusa- tions made in travail.'* Declarations of paternity by the mother to her physician are not privileged communications.'" OfEer by defendant to have an abortion per- 48. In re Lutz's Kstate, 43 Misc. 230, 88 N. T. S. 556. 49. Rosseau v. Rouss, 91 App. Dlv. 230, 86 N. T. S. 497. 50. Aycoclc V. Hampton [Miss.] 36 So. 245. Notci The mother of an illegitimate child Is prima facie entitled to Its custody. Wright V. Bennett, 7 111. 687; Copeland v. State, 60 Ind. 394; State v. Stlgall, 22 N. J. Law, 286; Marshall v. Reams. 32 Fla. 499, 14 So. 95. The putative father is ordinarily entitled to the custody as against third persons. Pote's Appeal, 106 Pa. 574. But the claims of both will . be disregarded by the courts in establisliing custody if the best interests of the child demand it. Sheers v. Stein, 75 Wis. 44, 43 N. W. 728; State T. Noble, 70 Iowa, 174, 30 N. W. 396; Marshall v. Reams, 32 Fla. 499, 14 So. 95. HI. Gouldlng V. Phillips [Iowa] 100 N. W. 516. 52. See 1 Curr. L. 339. SS. Bastard being nuUlus Alius. State' v. Tieman, 32 Wash. 294, 73 P. 375. 54. Proceedings under a criminal statute reversed. State v. Tieman, 32 Wash. 294. 73 P. 375; State v. Liles, 134 N. C. 735, 47 S. E. 750. 65. State v. Patterson [S. D.] 100 N. W. 162. 86. It is "an action on a liability created by statute other than a penalty or forfeit- ure." State V. Patterson [S. D.] 100 N. W. 162. 57. A complaint by a person that she was unmarried, that she had been delivered of a child, and that a certain person was its father, held sufficient to sustain a verdict of guilty. Campion v. Lattimer [Neb.] 97 N. W 290. Habeas corpus proceeding in which 97 N. W. 290 is affirmed. In re Campion [Neb.] 97 N. W. 443. 58. See 1 Curr. L. 340. 69. A complaint alleged that the child was begotten from June 24 to .July 9. Evi- dence and date of birth showed that child must have been begotten in May. The con- viction was reversed. People v. Wilson [Mich.] 99 N. W. 6. Evidence of the state showed that a child was begotten In October while prosecutrix was working for the ac- cused. Evidence established the fact that prosecutrix worked for him only from Au- gust 25 to September 14. A finding of guilty was reversed. State v. Lowell [Iowa] 99 N. W. 125. Evidence of intercourse in Sep- tember, and birth of fully developed child the third of June following, held sufficient to establish paternity. Ankeny v. Raw- houser [Neb.] 95 N. W. 1053. 60. Where intercourse with another than accused took place the night following the date of conception, evidence of the precau- tions to prevent conception was explained to the Jury. Evidence held sufficient to es- tablish the paternity. Guthrie v. State [Neb.] 96 N. W. 243. Evidence that prosecu- trix was unduly intimate with another some 9 years prior to the conception of the child held inadmissible. Stahl v. State, 67 Kan. 864, 74 P. 238. 61. Testimony that about the time the child was begotten the reputation of the mother for chastity was bad is inadmissible on the question of paternity. People v. Wilson [Mich.] 99 N. W. 6. 6a. Error in refusing to require the child to be brought into court is cured by its subsequent exhibition to the jury. Stahl v. State, 67 Kan. 864, 74 P. 238. 03. Evidence that tiie mother had accused a certain person of being the father of a child "from the first," and that her mother had not heard her accuse any other person, held admissible under statute to show the constancy of the accusation. Burns v. Donoghue [Mass.] 69 N. E. 1060. 64. Admitted over an objection that it was a mere conclusion. Baxter v. Gormley [Mass.] 71 N. E. 575. Cur. Law. BETTING AND GAMING. 499 ormed is admissible as an admission.'" Prosecutrix is not an accomplice within he rule requiring corroboration."'' Instructions.^^ — Instructions as to the purpose of the statute,"' and that false issertions by the mother that the intercourse was forcible, are not necessarily fatal o the prosecution/" have been held not prejudicial. Argument. — It is not error to allow counsel to call attention to the appearance tf the child, where defendant introduced a photograph.^^ Judgment.''^ — The award will not be disturbed unless manifestly excessive.^" in undertaking given in justice court will not prevent an order after judgment in ;he circuit court on appeal that defendant be committed till he give security for ;ompliance with the judgment.^* § 4. Legitimation, recognition, adoption.''^ — The law of the father's domicile it the time of the legitimating act will determine the status." A bastard is legiti- nized by the subsequent marriage of his parents.^' Statutes providing how a bas- ;ard may be legitimized must be literally complied with.'* The criterion of treat- ment accorded an illegitimate child received into the family is the treatment usu- ally accorded legitimate children.''" 5 1. The Offense und Criminal Prosecu- tions (500). A. The Offense (500). B. Indictment or Information and Trial Procedure (502). BETTING AND GAMIWG.so Penalties and Seizure of Implements Recovery Back of Money Lost (SOS). § 2. (SOS). S 3. The validity of wagering contracts is specifically treated elsewhere.'^ 65. People v. Abrahams, 88 N. T. S. 924. 66. Gatzmeyer v. Peterson [Neb.] 94 N. W. 974. 67. Her interest in the event of the suit only may be considered. Gatzmeyer v. Pe- terson [Neb.] 94 N. W. 974. 68. Instruction that character of prosecu- trix was not material held not misleading, other instructions indicating that her char- acter in respect to chastity, not in respect to veracity, was referred to. Suokow v. State [Wis.] 99 N. "W. 440. 69. An instruction that the proceeding Is to compel the father to assist In supporting the fruits of his immoral act and indem- nify the public against such burden is not objectionable as inviting a conviction. Stahl V. State, 67 Kan. 864, 74 P. 238. 70. A court instructed that it was a com- mon thing for a woman to cling to the story that the connection by which the child was begotten was rape, that the fact that this was untrue did not necessarily show that the accusation that a certain person was the father was untrue. Held no error. Burns V. Donoghue [Mass.] 69 N. E. 1060. 71. State V. Patterson [S. D.] 100 N. W. 162. 72. See 1 Curr. L. 340. 73. Gatzmeyer v. Peterson [Neb.] 94 N. W. 974. Judgment for ?2,250.00 is not excessive, the father being worth $9,000.00 to $12,- 000.00. Stahl V. State, 67 Kan. 864, 74 P. 238. 74. State v. Patterson [S. D.] 100 N. "W. 75. See 1 Curr. L. 340. 76. Petitioner and respondent were chil- dren of a common father, a slave. The fa- ther lived in Massachusetts, where inter- marriage and acknowledgment were neces- sary. The petitioner in Virginia, where ac- knowledgment was sufficient. Father and mother had ceased to cohabit before the passage of the Virginia act legitimating children born of slave parents. Irving v. Ford, 183 Mass. 448, 67 N. E. 366. 77. A child of a common-law marriage, illegitimate because born while the first wife of his father was alive, is legitimized by the fact that the relation continued after the death of the first wife, and is entitled to a distributii'e share of his mother's es- tate with tlie children of the first mar- riage. In re Schmidt, 42 Misc. 463, 87 N. T. S. 428. 78. Under Code providing that the father by publicly acknowledging a child as his own and receiving it into his home, etc., thereby adopts it, a will recognizing a child which remained in possession of testator's brother was not an acknoTvledgment within the statute. In re De Laveaga's Estate, 142 Cal. 158, 75 P. 790. Nor was a witnessed in- strument declaring the one executing it to be the father of a certain child, "living as the foster son of another." Id. Nor the fact that the father paid for his support where the child never lived with him at his home. Id. Mere reference in casual conversation to a child as his Is not proof of acknowledg- ment. Succession of Vance, 110 La. 760, 34 So. 767. 79. The fact that the father has no legiti- mate child, the treatment of which may be compared, is immaterial. In re Heaton's Es- tate, 139 Cal. 237, 73 P. 186. 80. See 1 Curr. L. 340. 81. See GambMng Contracts, 2 Curr. L. 129. 500 BETTING AND GAMING § lA. 3 Cur. Law. § 1. The offense and criminal prosecutions. A. The offense.^'^ — Every act of exhibiting a device for the purpose of gaming is an offense,*' and a single bet or wager may be a violation of a statute against bets and wagers.'* By statute an ac- cessory before the fact in gaming may be punished as the principal.'" One who acts as agent for parties out of the state, and who receives a commission on each transac- tion, is not guilty of buying and selling futures,'* and receiving money in one state to be wagered by telegraph in another is not carrying on a gambling busi- ness in the former state." Validity of regulations}^ — Legislation has been held valid which made it illegal to knowingly have in possession papers or property used in policy playing,'" or to bet upon a horse race,*" or to engage in pool selling outside of a race track authorized by law," or to lease premises to be used for pool room purposes,'^ or to transmit messages to pool rooms for betting purposes," or to play specified games of chance,** or to deal in futures,"" or to keep a place where the pretended sale of stocks and provisions is indulged in," or to bet upon an election,'^ likewise of leg- islation providing for the destruction of gaming implements;"' but the giving of trading stamps is not a lottery which may be prohibited by the legislature.'" In New York it is illegal to offer property for distribution, the title to which is to be determined by chance or lottery.* In the absence of express authority, a town cannot regulate gaming,^ and a municipal ordinance against the conducting of a 'Tjunco business" and in conflict with the statute upon gambling, is invalid.' An 82. See 1 Curr. L. 340. 83. Dalton v. State [Tex. Cr. App.] 74 S. W. 25. 84. Rev. St. 1899, § 4157, declares that words Importing plural number shall Include single transactions. State v. ViUines [Mo. App.] 81 S. W. 212. 85. Rev. St. 1899, 5 2364. State v. Edgen [Mo.] 80 S. W. 942. 86. Held, that defendant merely received offers for purchases or sales. Scales v. State [Tex. Cr. App.] 81 S. "W. 947. 87. McQuesten v. Steinmetz [N. H.] 58 A. 876. 88. See 1 Curr. L. 340. 89. Such a statute is not class legislation. Pen. Code, § 344A, Laws 1901, p. 431. People V. Adams. 176 N. T. 351, 68 N. E. 636; Peo- ple V. Adams, 85 App. Dlv. 390, 83 N. T. S. 481; Adams V. New York, 192 U. S. 585, 24 S. Ct. 372. 90. Ex parte Hernan [Tex. Cr. App.] 77 S. W. 225. 91. People V. Shannon, 87 App. Div. 32, 83 N. T. S. 1061. 92. Ex parte Hernan [Tex. Cr. App.] 77 S. "W. 225. 93. City of Louisville v. Wehmhoff, 25 Ky. L. R. 1924, 79 S. W. 201. 94. Slot machines, faro, roulette, monte, or any other game played with cards, dice, or other devices of whatever nature, for money, checks, credits, or other representa- tives of value [Laws 1901, c. 65]. State v. Cahill [Wyo.] 75 P. 433. A "sitting" may Include many hands. All that transpires In playing the game of draw poker from the time certain players begin playing together on any one occ'asion until they cease play- ing together on that occasion is one trans- action, and players are winners or losers according to final results. Zellers v. White, 208 111. 518, 70 N. E. 669. 95. Art. 377, Pen. Code. Pullerton v. State [Tex. Cr. App.] 75 S. W. 534. 96. Defendant convicted though the busi- ness Was done through an agent in another town than where defendant lived [Rev. St. 1899, § 2339]. State v. Kentner [Mo.] 77 S. "W. 522. Art. 377, Pen. Code. Pullerton v. State [Tex. Cr. App.] 75 S. "W. 534. 97. Com. V. Leak, 25 Ky. L. R. 761, 76 S. W. 368. An election guessing contest is a wager. Hence violates Rev. St. § 4269. Ho- bing V. Enquirer Co., 2 Ohio N. P. (N. S.) 205. 98. State v. Klondike Machine [Vt.] 57 A. 994; Kite V. People [Colo.] 74 P. 886; Furth V. State [Ark.] 78 S. W. 759; Woods v. Cottrell [W. Va.] 47 S. B. 275. 99. Such a scheme is but a species of ad- vertising, and a statute forbidding it is un- constitutional. State V. Dodge [Vt.] 56 A. 983. NOTE. Trading stamps: The decision above cited is in line with the great weight of authority. To the same effect see City of Winston v. Beeson [N. C] 47 N. E. 457, cit- ing State V. Dalton, 22 R. I. 77, 46 A. 234; Young V. Com., 101 Va. 853, 45 S. E. 327; Ex parte McKenna, 126 Cal. 429, 58 P. 916; State V. Shugart, 138 Ala. 86, 35 So. 28; People V. Dycker, 72 App. Div. 308, 76 N. Y. S. Ill; Com. v. Emerson, 165 Mass. 146, 42 N. E. 559; Com. v. Sisson, 178 Mass. 578, 60 N. B. 385; People v. Gillson, 109 N. Y. 389, 17 N. B. 343; Long v. State, 74 Md. 565, 22 A. 4. In Lansburgh v. District of Co- lumbia, 11 App. D. C. 512, a trading stamp scheme was held to be a gift enterprise with- in a statutory definition of the term. See, also. Lotteries, 2 Curr. L. 764. 1. Pen. Code, § 328. Such an offense be- ing a misdemeanor the supreme court had no jurisdiction. People v. Pickert, 89 N. Y. S. 183. 2. State V. Godfrey [W. Va.] 46 S. E. 185. 3. Clark V. State [Tex. Cr. App.] 81 S. W. 722. 3 Cur; Law. BETTING AND GAMING § lA. 501 ordinance requiring a license fee of $350.00 for each pool table is not an unreason- able regulation.* The Arkansas gambling law of 1901 was not constitutionally enacted in that the acts which passed the respective houses of the legislature did not correspond.^ The New York statute making the possession of policy slips pre- sumptive evidence of guilt against all except officers of the law is valid." Cards and other table games.'' — It is not essential that a "table" be used to bring a gambling device vrithin a statute prohibiting games of a like kind to cer- tain table games/ or that there should be the principle of the one against the many." A turkey raffle may constitute a table or bank game where the exhibitor is certain of a profit.^" Craps is a table or bank game where one person sits be- hind a table and takes the bets of all others,^^ and is not within a statutory excep- tion allowing certain dice games at a private residence.^^ The change of name of any of the games forbidden will not prevent conviction for playing them.^* In Texas the mere exhibiting of a table or bank for gaming purposes is illegal/* and it is immaterial whether money or anything of value was bet.^^ Racing and race trachs.^^ — The general rule is that betting on a horse race is gaming, and it is immaterial that the race is conducted elsewhere;*'' but betting on a horse race is not "gaming" in Kentucky.** Pool selling and book making out- side the race course authorized by law are illegal in New York/" and the principal is liable for the acts of his agent in conducting a forbidden business/" but one who makes a bet, as agent for the bettor, is not guilty of "taking or accepting a bet" on a horse race.^* The business of conducting a pool room or turf exchange may lawfully be discriminated against, though the business is thereby rendered unprofitable.^^ Eecording of bets by "mechanical or other means" will include the registering of bets upon cards by use of initials."' Slot machines.^^ — The keeping or exhibiting of any slot machine for gaming purposes is illegal in Texas.'^ A slot machine on which a cigar is guaranteed for each play is illegal as a table or bank game.*' Where the statute enumerates cer- 4. Under Burns' Ann. St. 1901, 5 3541, the city had power to regulate, restrain, license, or prohibit pool tables. Wysong v. Lebanon [Ind.] 71 N. B. 194. 5. Acts 1901, p. 114. Rogers v. State [Ark.] 82 S. W. 169. 6. Adams v. New Tork, 192 U. S. 585, 24 S. Ct. 372. 7. See 1 Curr. L. 341. 8. A slot machine is w^lthin this statute [Code 1899, | 151]. State v. Gaughan [W. Va.] 48 S. B. 210. 9. Dalton v. State [Tex. Cr. App.] 74 S. W. 25. 10. The exhibitor made from 30 to 50 cents on each raffle and the turkey was sel- dom taken by the winner, being sold to a confederate of the exhibitor. Dalton v. State [Tex. Cr. App.] 74 S. W. 25. See, also, Lot- teries, 2 Curr. L. 764. 11. Pen. Code 1895, art. 388. Faucett v. State [Tex. Cr. App.] 79 S. W. 548. The playing of craps is illegal in Florida. Park- hill V. State [Fla,] 36 So. 170. See 1 Curr. L. 341, n. 8. 12. Faucett v. State [Tex. Cr. App.] 79 S. V7. 548. 13. Ky. St. 1899, § 1961. Miller V. Com., 25 Ky. L. R. 1236, 77 S. "W. 682. 14. Code Cr. Proc. 1895, arts. 682, 683. The state need not show that any betting was done. Brogden v. State [Tex. Cr. App.] 80 S. W. 378. J,-;. Carroll v. State [Tex. Cr. App.] 81 S. W. 294. 16. See 1 Curr. L. 341. 17. Thrower v. State, 117 Ga. 753, 46 S. B. 126. The selling of pools upon horse races is gambling. Moores v. State [Neb.] 99 N. W. 249. 18. Though punishable under a statute against wagering. City of Louisville v. WehmhofC, 25 Ky. L. R. 1924, 79 S. W. 201. 19. Const, art. 1, § 9; Pen. Code. § 351. People V. Corbalis, 86 App. Dlv. 531, 83 N. Y. S. 782; People v. Shannon, 87 App. Div. 32, 83 N. Y. S. 1061; People v. McCue, 87 App. Div. 72, 83 N. Y. S. 1088. 20. People V. Canepi, 87 N. Y. S. 773. 21. Acts Leg. 1903, p. 68, c. 60, p. 1. Windsor v. State [Tex. Cr. App.] 79 S. "W. 312. 22. Act No. 206, p. 397 of 1902, confers on municipalities power to regulate or sup- press poolrooms. City of Shreveport v. Schulslnger [La.] 36 So. 870. 23. "Mechanical" comprehends all of that class, and "other means" is meaningless un- less it comprehends some means other than mechanical. State v. Villines [Mo. App.] ,81 S. W. 212. 24. See 1 Curr. L. 341. 25. Clark V. State [Tex. Cr. App.] 80 S. W. 617. 26. A player was entitled to five cents in trade for every nickel he lost, though a loser seldom called for such reward. Meeks v. State [Tex. Cr. App.] 74 S. "W. 910. In West Virginia a slot machine is a banking game like A. B. C. tables, faro, etc., if it 5U2 BETTING AND GAMING § IB. 3 Cur. Law. tain devices, a device not enumerated must be shown to be ordinarily used in gam- bling to bring it within a general clause of the statute."' Gaming at 'public place."^ — The playing a game of cards or dice in a public place is forbidden in Alabama.^' Under a Statute forbidding gaming except at a private residence occupied by a family, a tent may constitute such an exception,'" and a game within 10 feet thereof was held to be "at the residence."'^ A private residence commonly resorted to for gaming is not within the exception,'" nor a dug-out adjacent to a residence and occasionally used by the family,'" but a room securely locked and accessible only to those engaged in the play is not a public place or place of public resort,"* nor are an officer's living rooms in a county jail." The testimony of one witness is sufficient for a jury to find that it was a "public place."'" Keeping a gaining place. — Keeping and maintaining a gaming house was a nuisance and punishable at common law"' even before any sort of game was pro- hibited."' One may be guilty of keeping a gaming house, who maintains a place for people to congregate for betting purposes," or who maintains a place where the public is invited to buy pools,*" or who keeps a room^ where gaming is conducted, though such fact be unknown to him.*^ That the bets were consummated in an- other state is not a good defense in a prosecution for keeping a gaming house.*- Each person participating in the keeping of a gaming house may be guilty of the offense though each performed but one of the subdivided duties.*" (§ 1) B. Indictment or information and trial procedure.** — Gaming and allied offenses being statutory, an indictment charging any of them is sufficient if it follows the statute and the latter sets forth all the facts which constitute the offense ;*° it need not allege the intent of the defendant,*" nor state with particu- gives unequal chances, in favor of the ex- hibitor. State V. Gaughan [W. Va.] 48 S. E. 210. 27. Com. V. Sohatzman TKy.] 82 S. W. 238. 28. See 1 Curr. L. 341. 29. Code 1896, § 4792. Dennis v. State [Ala.] 35 So. 651. 30. Arts. 379b, 381, Acts 1901, p. 26. The owner, who had been divorced, lived with one son in a tent which constituted their only home. Hipp v. State [Tex. Cr. App.] 75 S. W. 28. 31. Hipp V. State [Tex. Cr. App.l 75 S. W. 28. 32. Art. 379, Pen. Code 1895, as amended by Acts 1901, p. 26, c. 22. Evidence that parties went there six or eight times in six months held sufficient to sustain a finding that it was commonly resorted to. Floeck- inger v. State [Tex. Cr. App.] 75 S. W. 303. 33. Such a place Is an outhouse and not a private residence. Huse v. State [Tex. Cr. App.] 80 S. W. 618. 34. So held where the play was in the room of an hotel. State v. Kyer [W. Va,] 46 S. E. 694. 35. Though the building be owned by the public, it Is not a public house within the statute. A public house is one which is cpmmonly open to the public, either for business, pleasure, religious worship, the gratification of curiosity, or the like. Lewis v. State [Ala.] 37 So. 99. 36. Testimony of one witness that he had played craps in this same fence corner, off and on for four or five years, and the place was known as "The Old Crap Ground." Den- nis V. State [Ala.] 35 So. 651. 37. State V. Morgan, 133 N. C. 743, 45 S. E. 1033. 38. Thrower v. State, 117 Ga. 753, 45 S. B. 126. sa. Though the betting be not unlawful. Jones V. State [Ga.] 47 S. E. 561. One who conducts gambling in a house wliich he had rented out would be in possession of the place and guilty of keeping a gaming house. Bryan v. State [Ga.] 47 S. E. 574. 40. Moores V. State [Neb.] 99 N. W. 249. 41. Burns' Rev. St. 1901, § 2173. Christ v. State [Ind. App.] 69 N. E. 269. 42. The decisive point is that the money was hazarded in the house kept by the ac- cused, thougli supposedly subject to accept- ance or rejection by one in another state. Jones V. State [Ga.] 47 S. E. 561. 48. Bryan v. State [Ga.] 47 S. E. 574. 44. See 1 Curr. D. 341. 45. State v. Kentner [Mo.] 77 S. W. 622; Com. V. Schatzman [Ky.] 82 S. W. 238. Code Cr. Proc. §§ 284, 285. People v. Adams, 85 App. Div. 390, 83 N. T. S. 481; People v. Corbalis, 86 App. Div. 531, 83 N. Y. S. 782. It is not sufficient to follow the wording of the statute where the latter so far fails to individualize the offense as to properly notify defendant of the crime he is tried for; an Information for conducting a place for the pretended sale of stocks must al- lege who permitted such acts and knowledge thereof by the defendants. State v. Runzl [Mo. App.] 80 S. W. 36. An indictment for playing a game prohibited by statute need not aver the manner in which the game was played, or who participated therein, or that money or property was bet or won or lost thereon. State v. Edgen [Mo.] 80 S. W. 942. 3 Cur. Law. BETTING AND GAMING § IB. 503 larity the place where the offense was committed.*^ In the absence of statute the information or indictment must name the parties who were permitted to play or allege that they were unlmown.** An indictment is fatally defective which fails to allege that defendant had charge of a "place" where gaming was conducted/' or that some one played upon the slot machine complained of and won or lost something of value,'" or that does not charge both the crime and the act constitut- ing it/^ or where the charge is of being a common gambler, that does not specify the kind of gaming indulged in.'^ An indictment for selling , futures need not allege the specific sales relied upon,^' nor one for keeping a gaming house, that games of chance were there played."* That one did feloniously engage in "pool selling and selling pools" is sufficient,^" but a defective indictment for playing in an hotel or tavern cannot be held good for playing in a public place."" Where an offense may be committed by doing one or more of several things, the indictment may in a single count allege them together,"' and conviction may be had on proof of commission of any one of the things, without proof of the commission of the others."* Under a statute making each day of conducting the business of dealing in futures a separate offense, such different occasions should be set out in distinct counts."' Counts imder the statute against gaming, and counts for the common- An indictment following the statute, nam- ing one of the bettors, and the time and place where the race in question was run, Is sufficient. State v. Villines [Mo. App.] 81 S. 'W. 212. 46. The intent is not an ingredient of the offense. State v. Kentner [Mo.] 77 S. W. 522. 47. It Is sufficient to locate it in a cer- tain county. Parkhill v. State [Pla.] 36 So. 170; State v. Runzi [Mo. App.] 80 S. W. 36. Designation as "The Loveland House" held sufficient. Com. v. Coleman, 184 Mass. 198, 68 N. E. 220; Com. v. Wood, 184 Mass. 198, 68 N. E. 220; People v. Corbalis, 86 App. Div. 531, 83 N. T. S. 782. 48. Code Cr. Proc. 1901. | 217. Moore v. State [Neb.] 96 N. W. 196; Christ v. State [Ind. App.] 69 N. B. 269. Under the statute Involved, parties need n6t be named. Com. V. Wood, 184 Mass. 198, 68 N. B. 220; Com. V. Coleman, 184 Mass. 198, 68 N. B. 220. In Kentucky, the indictment must be direct and certain as to the party charged, the offense charged, the county in which the offense was committed, the particular cir- cumstances of the offense charged, If ihey be necessary to constitute a complete of- fense [Cr. Code Prac. § 124]. Miller v. Com., 25 Ky. L. R. 1236, 77 S. W. 682. Contra, the exhibition was made to be seen by the public and it was wholly Immaterial who saw it or who was induced to deal thereby. State v. Runzl [Mo. App.] 80 S. W. 36. 49. The indictment alleged that defendant had charge and control of a gaming table but not of a "place" under Rev. St. 1892, § 2644. Bravo v. StUte [Fla.] 36 So. 161. If defendants' ownership of the premises is al- leged in the accusative part, it need not be repeated In the descriptive part of the in- dictment. Com. V. Sohatzman [Ky.] 82 S. W. 238. 50. Com. V. McCarty, 25 Ky. L. R. 294, 74 S. W. 1046. 51. Code Or. Proc. § 275, requiring a plain and concise statement of threats constituting the crime is not complied with by a substan- tial repetition, purporting to be the facts of the acts alleged as the crime. People v. Corbalis [N. T.] 71 N. B. 106. 52. Burns' Ann. St. 1901, § 218. Bickell v. State [Ind. App.] 70 N. B. 548. 63. Pen. Code, art. 377, makes such sell- ing a misdemeanor .and declares each day of the business to be a separate offense. Ful- lerton v. State [Tex. Cr. App.] 75 S. W. 534. An indictment for dealing in futures need not allege an actual sale. Scales v. State [Tex. Cr. App.] 81 S. W. 947. 54. An allegation that defendant kept a common gaming house is sufficient, the word gaming having a definite meaning in law 1. e. gambling, the playing of games for stakes or wagers. State v. Morgan, 133 N. C. 743, 45 S. B. 1033. There is a difference be- tween gambling and, gaming. Gaming re- fers to contests in which money has been wagered, although there may be no sport, no skill, no element of contest, between those betting. Thrower v. State, 117 Ga. 753, 45 S. B. 126. 55. People v. Corbalis, 86 App. Div. 531, 83 N. T. S. 782. 58. The words "in the hotel of Lahen Nutteo," are descriptive merely and not of the essence of the offense. State v. Kyer, [W. Va.] 46 S. B. 694. 57. Bickell v. State [Ind. App.] 70 N. B. 648; People v. Corbalis, 86 App. Div. 531, 83 N. Y. S. 782. The different parts or stage.s of the same offense may be joined in one count. One who knowingly suffers money or other property to be raffled for in such house, shop, or building, and to be won there by thowing or using dice or any oth- er game of chance, is guilty of but one of- fense. Com. V. Coleman, 184 Mass. 198, 68 N. E. 220. 58. People v. Corbalis, 86 App. Div. 531, 83 N. T. S. 782. One may be convicted for keeping' a place prohibited by law though he was in control of only a part of the build- ing. Com. V. Wood, 184 Mass. 198, 68 N. E. 220; Com. v. Coleman, 184 Mass. 198, 68 N. B. 220. 59. Failure to set out as above Is not 304 BETTING AND GAMING § IB. 3 Cur. Law. law offense of keeping a gaming house, may be joined in the same indictment.'" The accusation may charge any offense included in the affidavit.®^ At common law gambling was a nuisance for which a right of trial by jury did not exist.'^ In Mississippi one indicted for a violation of the gaming laws may be tried thereunder for any antecedent violation not barred by the statute of limitations."' In New York the possession of policy slips is presumptive evidence against all but public officers,"* and the admission of defendant's private papers, wrongfully seized, is not equivalent to compelling him to be a witness against himself."' Cases involving the admissibility"" and sufficiency of evidence in gambling cases are dis- cussed below."'' It is error to say to the jury that although evidence as to defendant's good character is admissible it does pot amount to much in a gaming case."^ One charged with playing and betting on a card game on Sunday is entitled to an instruction that there must be proof beyond a reasonable doubt of the betting as well as the playing,"" and as to whether defendant bet is a question for the jury.'" The recognizance on appeal must be in strict compliance with the statute.''^ cured by confining the prosecution to one day. Pen. Code, art. 377. Scales v. State [Tex. Cr. App.] 81 S. W. 947. 60. The offenses are of the same nature and a similar judgment might be passed in each case. State v. Morgan, 133 N. C. 743, 45 S. E. 1033. The information should be verified or supported by affidavit of a person competent to testify. But such a defect will not be considered when raised for the first time on appeal after conviction. State v. Runzl [Mo. App.] 80 S. W. 36. 61. The accusation cannot be broader than the affidavit, but as the greater includes the lesser, if the affidavit is general, the ac- cusation can be specific. Glass v. State, 119 Ga. 299, 46 S. E. 435. 62. Purth V. State [Ark.] 78 S. W. 759. 63. Code 1892, § 1431. But an indictment charging a number of defendants with Indi- vidual offenses was bad. Howard v. State [Miss.] 35 So. 654. 64. Such a statute is not unconstitutional as allowing any public official to hold policy slips, for it relates only to cases where slips are seized and are in the custody of the officers of the law. Adams v. New York, 192 U. S. 585, 24 S. Ct. 372. 65. Adams v. New York, 192 U. S. 585, 24 S. Ct. 372. 66. That a house was knowingly rented for gaming purposes may be shown only by facts and inferences therefrom. Evidence admissible that the renter was generally known as a gambler, and as to the past use of the house. Rivers v. State, 118 Ga. 42, 44 S. E. 859. Evidence that defendant's name was on a building in which gaming was being conducted is admissible to show his control of the premises. Evidence that defendant was reputed to be the owner of the place and business is Inadmissible. Crip- pen V. State [Tex. Cr. App.] 80 S. W. 372. It is reversible error to admit evidence of another offense than that charged in the in- formation. Defendant was charged with al- lowing a minor to play pool upon defend- ant's premises, and the court aplmitted evi- dence of such conduct at another time than as charged. State v. Meadows [Mo. App.] 81 S. W. 463. The husband of a woman indicted Jointly with another defendant is not incom- petent to testify on the separate trial of such other defendant, though his testi- mony may tend to incriminate his wife. In case of a joint trial, his testimony would be incompetent. Rivers v. State, 118 Ga. 42, 44 S. E. 859. In a prosecution for dealing in futures, defendant should be allowed to put in evidence the charter of the corporation he represented. The charter permitted a sale of cotton, etc., unless actual delivery was contemplated. Scales v. State [Tex. Cr. App.] 81 S. W. 947. 67. Evidence that defendant and others each had cards in his hands, and money In front of him, and upon discovery attempt- ed to escape, held sufficient to sustain ver- dict of guilty of playing and betting at a game played with cards for money. Harmon V. State [Ga.] 47 S. E. 547. Need not show the character of the game nor which of the players won or lost. Arnold v. State, 117 Ga. 706, 45 S. E. 59. That defendant and others were arranged in a circle with mon- ey In the center, and one of the party shuf- fling a deck of cards, is sufficient to sustain conviction for playing and betting at cards. Frost V. State [Ga.] 47 S. E. 901. A charge of keeping and maintaining a gaming house is sustained by evidence of guilt of either keep- ing or maintaining. Bryan v. State [Ga.] 47 S. B. 574. The Jury must believe beyond a reasonable doubt that defendant was pres- ent or permitted a minor to play pool upon defendant's tables to convict under Rev. St. 1899, § 439. State v. Meadows [Mo. App.] 81 S. W. 463. In a prosecution for dealing In futures the state must show an agreement not to have an actual delivery. Scales v. State [Tex. Cr. App.] 81 S. W. 947. CS. Civ. Code 4334. Turner v. State, 118 Ga. 756, 45 S. E. 598. 69. Russ v. State, 138 Ala. 1, 35 So. 107. 70. That one of the witnesses testified that the game being played could not be played without betting on it did not conclude the Jury in that particular. Russ v. State 138 Ala. 1, 35 So. 107. 71. Recognizance would be fatally defect- ive which omitted "In this case," and "of the 3 Cur. Law. BETTING AND GAMING 8 3. 505 The court will not reverse a conviction for gaming where the finding of the jury was fully supported by the evidence." § 2. Penalties and seizure of implements.''^ — Laws punishing gaming are remedial and are to be construed liberally, not liberally for the culprit, but for the suppression of evil.''* Gaming instruments may be seized and destroyed upon sum- mary proceedings, without a jury trial,'° and it is no defense that the instrument might have been used for lawful purposes, if in fact it was used for gambling." § 3. Recovery hack of money lost.'''' — At common law, one wagering money could recover it at any time before a determination of the wager ;^' but by statute one may recover his wager from a stakeholder before or after the funds leave the latter's hands,'* and such a claim is assignable by parol.'" Eecovery may be had of one for money lost to his agents or servants.*^ In Kentucky one who induces another to enter or play in a gaming place is liable to penalty and responsible to such other's creditors for the sum lost,'^ but this does not permit a part owner of the resort to recover of his partners.^' In New York one may recover money lost on a wager on a horse race.'* It is no defense that the game was played for chips,'' or that defendant received part of plaintiffs stakes from others to whom they had been lost." That the money secured on a mortgage was used to support a gaming place wiU not invalidate the mortgage in the hands of an ianocent third party,'' and a bona fide purchaser before maturity may recover on a note given in transfer for other notes executed in consideration of gambling debts." Plaintiff cannot recover on checks given to pay a gaming debt contracted in his hotel and with his same" court. Meeks v. State [Tex. Cr. App.] 74 S. W. 910. T2. Prothro v. State, 118 Ga. 73, 44 B. B. 802. 73. See 1 Curr. L. 342. 74. Puller v. State [Miss.] 35 So. 214. A Florida statute prescribing a penalty for maintaining gaming apparatus held not re- pealed by a later statute prescribing a pen- alty for setting up or promoting games of chance and an information under the former was good. Dardem v. State [Fla.] 32 So. 924. 75. The right of trial by Jury does not exist in such cases. Kite v. People [Colo.] 74 P. 886. Sand. & H. Dig. § 1618; Acts 1901, p. 114. Furth V. State [Ark.] 78 S. W. 759. Statute authorizing seizure and destruction of gaming table is not unconstitutional. Code 1899, § 1, c. 151. Such property may be destroyed only after conviction in the cir- cuit court. Woods v. Cottrell [W. Va.] 47 S. E. 275. In Vermont a justice of the peace may order the destruction of a Klondike ma- chine and no appeal lies from such an order [Acts 1898, p. 92, No. 121, § 2]. State v. Klondike Machine [Vt.] 57 A. 994. 76. Improper use without the knowledge of mortgagee. Kite v. People [Colo.] 74 P. 886. 77. See 1 Curr. L. 342. 78. When the losing party to an illegal contract remains silent until the contract is executed by the determination of the result upon which the wager was made, he cannot recover his part of the stake. Dooley v. Jackson [Mo. App.] 78 S. W. 330. As to re- covery back of money obtained by fraud in procuring wager on pretended foot race, see Wright V. Stewart, 130 P. 90S. 79. 1 Rev. St. (1st Ed.) p. 662, pt. 1, c. 20, tit. 8, § 8; 1 Blrdseye's Rev. St. (3d Ed.) pp. 299, 300. Bernstein v. Horth, 85 N. Y. S. 263. 1 Rev. St. p. 662, §§ 8, 9. This right is In no way affected by section 17 of Laws 1895, p. 377, c. 670. Mendoza v. Rose, 88 N. T. S. 938; Dooley v. Jackson [Mo. App.] 78 S. W. 330. But after determination of the result demand must be made previous to ex- piration of time agreed upon for determina- tion of act, and action must be brought in three months of the accruing of the right [Rev. St. 1899, §§ 3430-3432]. White v. Gille- land, 93 Mo. App. 310. 80. Bernstein v. Horth, 85 N. T. S. 263. 81. Kurd's Rev. St. 1901, c. 38, § 132. Zel- lers V. White, 208 111. 518, 70 N. E. 669. 82. Ky. St. § 1969. Stapp v. Mason, 24 Ky. li R. 1680, 72 S. W. 11. 83. The statute was enacted for the pro- tection of the community against gamblers and not for their protection. Wife of one partner not permitted to recover of other partners, money held by her husband be- longing to her and lost in the business. Stapp v. Mason, 24 Ky. D. R. 1680, 72 S. W. 11. 84. Laws 1895, p. 377, c. 570, § 17. Though he went to the race course with the inten- tion of suing if he lost. Moulton v. West- chester Racing Ass'n, 42 Misc. 487, 84 N. T. S. 871. 85. The chips were merely markers, the money being actually deposited with the gaming house keeper. Zellers v. White 208 111. 518, 70 N. E. 669. 86. Defendant won from all and was held liable for plaintiff's entire loss. Zellers v. White, 208 III. 518, 70 N. B. 669. 87. Birdsall v. Wheeler, 173 N. T. 590, 65 N. B. 1114. 88. Higginbotham v. McGready [Mo.] 81 S. W. 883. 506 BIGAMY. 3 Cur. Law. knowledge," and in Colorado an assignment of note or other evidence of debt is void where any part of the consideration is a gambling debt.°° A statute permit- ting a defense that an obligation was based on a gambling transaction, though such obligation shall have been transferred, is not unconstitutional.^^ BIGAMT. The offense."- — One may be guilty of bigamy, though he believes his first wife to be dead, or is ignorant of her being alive for less than seven years."' It is a complete defense that the first marriage alleged in the indictment is void by reason of a prior lawful marriage, still existing;"* but restraint of marriage for a limited time because of divorce does not so invalidate a marriage during that time, subse- quently ratified by cohabitation, that a third marriage does not constitute polyg- amy."'^ In Missouri, the statute of limitations does not run against the offense of bigamy during the pendency of an indictment subsequently quashed."' Indictment"^ may be based on a voidable marriage,"' and need not allege the legality of the former nor the illegality of the second marriage, nor the time and place of the celebration of the former marriage."" Evidence and instructions.^ — The burden is on the prosecution to prove both marriages and that the first wife was living at the time of the second marriage, but it falls upon defendant to prove that for seven years prior to his second marriage he did not know his first wife was living.^ The previous marriage may be proven by circumstantial evidence,' or the uncorroborated admissions of the defendant,'' and proof of the celebration of a marriage raises a presumption of the existence of every fact necessary to the validity thereof.^ The testimony of the second wife, as to the second marriage, is admissible, but the incompetency of a lawful wife as a witness cannot be waived." The introduction in evidence of a contract for 8». Jones v. Akin [Tex. Civ. App.] 80 S. W. 3S5. 90. Bank not compelled to lionor a cer- tificate of deposit which had been assigned in gambling; such an assignment is of nf) great- er force than a" forgery [Mills' Ann. St. 5 1344]. Western Nat. Bank v. State Bank [Colo. App.] 70 P. 439. 91. Rev. St. 1899, § 3427. Higginbotham V. McGready [Mo.] 81 S. W. 883. 92. See 1 Curr. L,. 342. Com. v. Josselyn [Mass.] 71 N. E. 313. 93. Absence of a "wife driven away by the husband will not excuse him from inquiry even after seven years. State v. Goulden, 134 N. C. 743, 47 S. E. 450. 94. Lane v. State [Miss.] 34 So. 353. 95. By statute, defendant, upon divorce proceedings, was forbidden to marry for two years; St. 1895, p. 476, c. 427, providing a marriage improper because of a former spouse living, shall become valid upon ter- mination of the impediment. Such' a statute is not unconstitutional as retrospective. Commonwealth v. Josselyn [Mass.] 71 N. B. 313. 96. Rev. St. 1899, § 2422. State v. Ha.ns- brough [Mo.] SO S. "W. 900. 9T. See 1 Curr. L. 342. 98. Intoxication at the time of marriage will not render it void, but only voidable. Barber v. People, 203 111. 543, 68 N. B. 93. 99. Ferrill v. State [Fla.] 34 So. 220. 1. See 1 Curr. L. 343. 2. State V. Goulden, 134 N. C. 743, 47 S. E. 450. 3. State V. Pendleton, 67 Kan. 180, 72 P. 527. A valid marriage will be deemed prov- en, in the absence of rebutting testimony, from proof of marriage in fact followed by cohabitation and birth of children. Ferrell V. State [Pla.] 34 So. 220. Circumstances are admissible as tending to prove the marriage, though not sufHcient to constitute a mar- riage. 'While a common-law marriage re- quired no particular form or ceremony, enough had to be said and done to make a contract; proof of cohabitation and the pub- lic recognition of each other as husband and wife for twenty years held not sufficient to show a contract. State v. Hansbrough [Mo.] 80 S. "W. 900. 4. MoSein V. State [Ga.] 47 S. B. 544. Evidence was properly received that about two weeks previous to his second marriage, defendant was challenged with the existence of his first wife and replied that he wished he would hear of her death so that he would be free. State v. Goulden, 134 N. C. 743, 47 S. E. 450. 5. But such presumption is not conclu- sive. Barber v. People, 203 111. 543, 68 N, B. 93. But statutory provisions of New York, prohibiting marriage within three years after divorce in certain cases, is in- admissible as evidence, where divorce pro- cured elsewhere. State v. Bentley, 76 'Vt 163 53 A. 1068. 6. Barber v. People, 203 111. 543, 68 N. B, 93. 3 Cur. Law. BONDS 507 marriage because of seduction was not error where evidence tending to prove the same had been admitted without objection.' An instruction is not improper which charges the jury that a mistake aa to whether the first spouse was living is not a good defense unless proper care to ascertain the facts be shown.* BLACKMAIL. Blackmail consists in extorting or attempting to extort money by threats, as of violence,' or of arrest.^" An indictment in the language of the statute without stating the words of the threat is sufficient.^^ The use of "maliciously instead of the statutory word "will- fully"' is not fatal.^- An averment that defendant threatened a certain person with intent to extort money from him sufficiently imports that the threat was made in the hearing of such person.^^ Evidence of the previous relations of the parties is admissible to characterize the language used in the transaction in question.^* B017DS. § 1. Tlie Inslraxncnt; E^ssentials and Va- lldltT (507^. § 2. Risbts of Parties and Transferees (510). § 3. The Terms and Conditions in Gen- eral; Interpretation, Legal Effect, Breach (511). § 4. Remedies and Procedure (514). Scope of title. — Questions relating to negotiable bonds,^' to indemnity/" and to suretyship, are treated elsewhere,^' as are matters peculiar to various bonds given in the course of legal proceedings.^* § 1. The instrument; essentials and validity}^ — A statutory bond running to the wrong party,^" or containing provisions not required by the statute,^^ while not good as such, may be enforced as a voluntarj' or common-law obligation, if not repugnant to the letter or policy of the law." A bond not required by statute, 7. Welch V. state [Tex. Cr. App.] 81 S. W. 50. 8. The court need not specify the sources of information which led to the alleged mistake. Welch v. State [Tex. Cr. App.] 81 S. W. 50. ». Any form of expression causing a fear of death Is sufficient to constitute a "threat to kill," and it is not material that defend- ant -n-as not in fact armed, if the person threatened thought he was. Glover v. Peo- ple, 204 111. 170, 68 N. E. 464. 10. Extortion by impersonating an officer and threatening arrest held blackmail, not false pretenses. Jackson v. State, 118 Ga. 125. 44 S. E. 833. 11, 13, 13. Glover v. People, 204 111. 170, 68 N. B. 464. 14. Though it tends to prove an indepen- dent crime by defendant. Glover v. People, 204 111. 170, 68 N. E. 464. 15. See Municipal Bonds, 2 Curr. L. 931; Railroads, 2 Curr. L. 1382; Corporations, 1 Curr. L. 710. 16. See Indemnity, 2 Curr. L. 198. 17. See Suretyship, 2 Curr. L. 1776. 18. See Attachment, 1 Curr. L. 239; Ap- peal and Review, 1 Curr. L. 85; Injunction, 2 Curr. L. 307, and like titles. " 18. See 1 Curr. L. 343. 20. Dudley v. Rice, 119 Wis. 97, 95 N. W. 936. A contractor's bond running to the city instead of to the state, as required by stat- ute, is a good common-law obligation. Pa- cific Bridge Co. v. U. S. Fidelity & Guaranty Co., 33 Wash. 47, 73 P. 772. An official bond running to a named person, described as mayor, and to his successors in office, in- stead of to the mayor and council of the municipality as required by law, is not a good statutory bond, but may be enforced as a voluntary or common-law obligation. Anderson v. Blair, 118 Ga. 211, 45 S. E. 28. In such case, the obligee named therein, or his personal representatives, are the only persons who can maintain an action thereon. Neither the person to whom the law requires the bond to be given nor his personal repre- sentatives can do so. Id. To county treas- urer for county instead of to county. Buhrer V. Baldwin [Mich.] 100 N. W. 46S. Constable's bond running to county judge Instead of the governor. Hines v. Norris [Tex. Civ. App.] 81 S. W. 791. ai. Dudley v. Rice, 119 Wis. 97, 95 N. W. 936. A bond given to the United States by a collector of Internal revenue, conditioned for the faithful performance of their duties by all deputies, is valid and enforceable, al- though the statute only requires one for the performance of the collector's own duties [U. S. Rev. St. § 3143, U. S. Comp. St. 1901, p. 2041], Laffan v. U. S. [C. C. A.] 122 F. 333. 22. Dudley v. Rice, 119 Wis, 97, 95 N. W. 936. Even if an administrator's bond, which 508 BONDS § 1. 3 Cur. Law. if given voluntarily for a valid consideration, is binding at common law, unless repugnant to the letter or policy of the law;^^ but one unlawfully exacted by a court or officer,^* or given pursuant to an unconstitutional statute,^^ unless sup- ported by a consideration independent thereof,^' is void and cannot be enforced for any purpose. To render a bond void for want of conformity to a statute, it must be made so by express enactment, or must be intended as a fraud on the obligors, by color of law, by an evasion of the statute. ^^ Mere irregularities^' or clerical errors do not affect the validity of the instrument.^* A security for costs on appeal, which does not set out the amount for which the makers agree to become responsible, is invalid.'" The formal approval of bonds required ia certain legal proceedings may be waived,'^ and where the bond was voluntarily given to procure an advantage to the principal obligor, neither he nor his surely can object that it was not entered does not state that It Is payable for the benefit of all concerned, and which -was nev- er approved by the ordinary, has no sureties, and the conditions of which are not in the exact terms of the statute. Is not a valid statutory bond; it is good as a voluntary obligation. Awtrey v. Campbell 118 Ga. 464, 45 S. E. 301. 23. Dudley v. Rice, 119 Wis. 97, 95 N. W. 936. A bond of the guardian of a lunatic, conditioned that such guardian would pay over the amount found due on a settlement, either with the court or with the ward If found of sound mind. Is enforceable as a common-law obligation, though the court had no Jurisdiction of the guardianship pro- ceedings, so that it was Invalid as a stat- utory bond. The statute limiting the time within which an action can be brought against the sureties thereon (Wis. Rev. St. 1898, § 3968) became a part of the contract, though It does not apply as a statute. Id. A court of equity has power to accept from defendant, as a condition of the discharge of a receiver for its property, a bond condi- tioned for the performance of the final de- cree, and to render judgment thereon against both principal and surety for the amount of complainant's ultimate recovery. Such bond is good as a common-law obligation, and the obligor, after receiving the benefits result- ing from its execution, is estopped from de- nying its validity. Twin City Power Co. v. Barrett '[C. C. A.} 126 P. 302. 34. In such cases there is no considera- tion, the obligor being entitled to every right claimed without bond, and hence securing nothing by giving it. Dudley v. Rice, 119 Wis. 97. 95 N. \V. 936. 23. Bond given by a contractor under Cal. Code Civ. Proo. § 1203. San Francisco Lum- ber Co. V. Bibb, 139 Cal. 192, 72 P. 964. 26. As bond given on appeal in action of forcible entry and detention, conditioned on payment of rent, where obligor has retained possession of premises thereunder, and stat- ute allowing appeal has afterwards been de- clared unconstitutional. U. S. Fidelity & Guaranty Co. v. Bttenheimer [Neb.] 99 N. W. 652. 37. Meador v. Adams [Tex. Civ. App.] 76 S. W. 238. 2S. Bond running to treasurer for use of county instead of to county. Buhrer v. Bald- win [Mich.] 100 N. W. 468. If the penalty of a statutory bond, voluntarily given, be great- er than that prescribed by said statute, the bond is valid and enforceable to the amount of the statutory penalty, and void only as to the excess. Bond for sale of malt liquors under Tex. Rev. St. 1895, art. 5060g, as amended by Laws 1901, c. 136. Meador v. Adams [Tex. Civ. App.] 76 S. W. 238. The fact that an official bond is Joint instead of joint and several as required by statute can- not be availed of by the obligors as a de- fense In an action thereon, but the bond is good to the extent it complies with the stat- ute in that regard. Wilcox v. Perkins Coun- ty [Neb.] 97 N. W. 236. An action on an administrator's bond, from which the amount of the penalty has been omitted, may be maintained ■without a reformation of the instrument. McManus v. Harrigan, 41 Misc. 615, 85 N. T. S. 220. The omission from a receiver's bond of a certificate to the effect that the ofilcer who took the acknowledg- ment of the surety was a notary public is a mere irregularity. Such a bond is properly received In evidence In an action by the re- ceiver. Livingston v. Baton, 90 App. Div. 251, 85 N. T. S. 500. The validity of an at- tachment bond Is not affected by the fact that the names of two of the sureties, who signed it at the bottom, do not appear In Its body, nor by defects in the aflidavit for at- tachment. McLean v. Wright, 137 Ala. 644, 35 So. 45. A redelivery bond in attachment, providing that, In case plaintilf recovered judgment in the action, defendant would, on demand, pay to plaintiffs the amount of said judgment, with the costs and disbursements of the action, is a substantial compliance with a statute requiring a bond "to the ef- fect that the sureties will pay to plaintiff the amount of the judgment that may be re- covered against the defendant in the action," and is enforceable as a statutory bond [Hill's Ann. .Laws Or. 1892, § 159]. Ebner v. Held rC. C. A.] 125 F. 680. 29. Where an appeal bond states that the sureties are worth "$200, not subject to exe- cution over and above all liabilities," the word "not" will be regarded as a clerical error. Jones v. Herrick, 33 Wash. 197, 74 P. 332. 30. The afildavlt of the sureties thereon that each is worth a specified sum does not cure the defect. Under S. C. circuit court rule, No. 10. Taylor v. Dempsey, 66 S. C. 513, 45 S. B. 78. 31. Plaintiff may waive formal approval of statutory bond to discharge attachment [approval required under Iowa Code 1897, § 3907]. Fidelity & Deposit Co. v. Bowen [Iowa] 98 N. W. S97. 3 Cur. Law. BONDS 509 into before the proper officer.'^ A bond partially conditioned for the performance of a contract farming out a portion of the fees of a paid office is inyalid as to such portion.** The validity of a receiver's bond, or its execution, cannot be raised collaterally in defense of an action brought by him to foreclose a mort- gage." Consideration.^'^ — A bond under seal imports a consideration."' If the guar- anty and the contract guarantied are a part of the same transaction, the consid- eration for the latter supports the former;*'' but if they are not one transaction, the bond must be supported by an independent consideration.** There is suffi- cient consideration to support a contractor's bond, where, prior to the execution of a building contract, the obligee demanded a bond from the contractor, and signed the contract in consideration of his promise to furnish one, even though one was not required by such contract.*' The dissolution of an attachment is sufficient consideration to support a bond given to secure the release of the at- tached property.*" Where, on appeal, an undertaking is given beyond that re- quired by statute, it cannot be enforced as to such excess imless a consideration aliunde exists therefor." A statutory obligation has its consideration in the at- tainment of the object allowed by the statute.*^ One who executes a bond under circumstances which would estop him to assert its invalidity for want of consid- eration cannot, in an action thereon, avoid liability on the ground that plaintiff is estopped to assert that there was any consideration.** Execution.** — ^A stipulation in a bond that it shall not be valid unless coun- tersigned is binding, and absence of the countersignature renders it invalid;*" but this stipulation may be waived,** as may provisions requiring fidelity bonds to be signed by the employe whose fidelity is thereby insured.*' 32. Where •writ Issued on replevin bond and property taken under It, fact that It was not entered Into before magistrate Issuing writ, as required by statute (Conn. Gen. St. 1902, § 1057), no defense. Douglass v. Un- mack [Conn.] 58 A. 710. 33. Bond of a deputy sheriff for the faith- ful performance of his duties, embodying a reference to a contract with the sheriff for the portion of the fees, cannot be enforced as to the sum specified in the contract to be paid by the deputy to the sheriff, but Is valid as to public funds collected by him by virtue of his oflBce and the sheriff can main- tain an action against him thereon, even though such contract rendered the appoint- ment invalid. "White V. Cook, 51 W. Va. 201, 41 S. E. 410, 57 L. K. A. 417. 34. Livingston v. Eaton, 90 App. Dlv. 251, 85 N. Y. S. 500. 35. See 1 Curr. L. 343. 36. Graham v. Middleby [Mass.] 70 N. E. 416; Considine v. Gallagher, 31 "Wash. 669, 72 P. 469. Appeal bond. Gein v. Little, 89 N. T. S. 488. 37. 38. Considine V. Gallagher, 31 "Wash. 669, 72 P. 469. 39. Sweeney v. Aetna Indemnity Co. ["Wash.] 74 P. 1057. 40. The fact that the property was not in the name of the defendant when the bond was executed does not render it without con- sideration. Fidelity & Deposit Co. v. Bowen [Iowa] 98 N. W. 897. A bond to release an attachment, which Is under seal, and recites as a consideration the release of all the property attached and the discharge of the attachment, Is based on a sufficient consid- eration to render It enforceable as a com- mon-law obligation. Ebner v. Held [C. C. A.] 125 F. 680. 41. Agreement to pay notes, if unsuccess- ful, held supported by sufficient considera- tion. Geln V. Little, 89 N. T. S. 488. 4a. No consideration need be expressed to avoid statute of frauds. Appeal bond. Geln V. Little, 89 N. T. S. 488. 43. Bond on appeal In action of forcible entry and detainer given under void statute. U. S. Fidelity & Guaranty Co. v. Bttenheimer [Neb.] «9 N. W. 652. 44. See 1 Curr. L. 343. 45. Pacific Nat. Bank v. Aetna Indemnity Co., 33 "Wash. 428, 74 P. 590. 46. "Where the general agent of the bond- ing company personally induced the guar- antee to incur the obligation, gave the bond as indemnity and signed and delivered it himself, having secured the signature of his subordinate agent thereto as a mere matter of form, held, that the bond was executed by such general agent, and the signature of such subordinate was not necessary to give it validity, though it contained a stipulation, inserted by such general agent and not by the company, that such signature was nec- essary to give It validity. Pacific Nat. Bank V. Aetna Indemnity Co., 33 "Wash. 428, 74 P. 590. The countersigning of a bond by an agent of the bonding company, who also act- ed as agent of the principal, held to have been with the consent of the company, and not to have rendered the bond invalid on the theory that such agent acted for both par- ties. Id. 47. Receipt of premiums therefor and for two renewals, with knowledge that such signature was lacking, works estoppel. 510 BONDS § 2. 3 Cur. Law. Delivery.^^ — An order of the court diS'cliarging an attacliment, reciting that it was made upon all the records filed in the case and upon the execution of a good and sufficient undertakings is conclusive evidence of the delivery of such undertaking to the court and its acceptance by him as a delivery bond for the release of the property, where the bond has been approved by the court and filed with the clerk.*" Notice of acceptance of a guaranty bond is not necessary."" The beneficiary of a bond guaranteeing the acts of another may assume that the pre- mium therefor has been paid."^ Changes in the contract to secure the performance of which the bond is given, made at the instance of one of the obligors without the knowledge or consent of the obligee, do not afEeet the validity of the bond.°- § 2. Rights of parties and transferees.^^ — One who has the obligation of two different bonds for the performance of the same contract may enforce either at his election."* A surety bond for the faithful performance of a contract passes under an assignment of such contract, and the assignee may maintain an action thereon in his own name.^" The assignment of a liquor tax certificate does not release the parties to the bond given to secure it, unless the certificate was presented to the proper authorities for cancellation, or the assignment was consented to by them, as required by statute."* A substitution of bonds may be ratified by the obligee therein named."'' A redelivery bond in attachment is not merged in a superse- deas bond given on appeal, where it is subsequently determined that the appellate court has no jurisdiction in the matter."' A bond to secure the faithful per- formance of his duties by an agent and conditioned to be void if he pays all obligations existing or to arise to his principal may be revoked as to future trans- actions, at the will of the obligor."" A demand by the obligor for his release, and Proctor Coal Co. v. U. S. Fidelity & Guaranty Co., 124 P. 424. • 48. See 1 Curr. L. 343. 49. Bbner v. Held [C. C. A.] 125 F. 680. 50. "W^here the signers of a bond, guaran- teeing the faithful performance of his duties by an employe, delivered it to such employe for delivery to the obligee, v/ith knowledge that the obligee had agreed to accept it, the obligee was not required to give them no- tice of its acceptance, but it became binding and enforceable on delivery to him. Singer Mfg. Co. V. Freerks [N. D.) 98 N. "W. 705. 51. The guarantor is estopped to deny such payment as against the beneficiary who has, in good faith, parted with value, relying thereon, especially where there is no re- cital therein that such payment is a neces- sary prerequisite to its validity. Pacific Nat. Bank v. Aetna Indemnity Co., 33 Wash. 428, 74 P. 590. 52. The fact that a bonding company fur- nished a contractor's bond only because of a change in the contract, consented to by an architect acting without authority, and hence not binding on the obligee, did not render the bond void, it having been fur- nished by the contractor as a consideration for the contract, and delivered to the obligee without notice of the change. Sweeney v. Aetna Indemnity Co, [Wash.] 74 P. 1057. 53. See 1 Curr. L. 343. 54. National Surety Co. v. XT. S. [C. C. A.] 123 F. 294. A proposal bond securing the performance of a mail route contract, and a bond afterwards taken from the contractor for the same purpose, are independent un- dertakings, and the dismissal of a suit brought on the first bond is no defense to an action on the second. Id. 55. Contract and bond assigned by re- ceivers of a railroad on reorganization there- of. American Bonding & Trust Co. v. Bal- timore & O. S. W. R. Co. [C. C. A.] 124 F. 866. The fact that such bond was executed, by a bonding company and that sucli con- tracts are held. In a sense, to be insurance contracts, does not render it nonassignable by the obligee. Id. The fact that the con- tract provided that it might be canceled for a breach of its terms and provided for liquidated damages therefor would not pre- vent a recovery on a bond given to secure its faithful performance. Id. The fact that the contract to secure the performance of which a bond is given has been assigned is no defense to an action on the bond brought by the obligee. Graham v. Middleby [Mass.] 70 N, E. 416. .^e. Cullinan v. Kuch, 177 N. T. 303, "69 N. B. 597. 57. The action of a sheriff in substituting a new delivery bond in attachment for one previously given, and releasing the sureties on the first one, is ratified by the obligee bringing suit on the second one, with full knowledge of the facts and such obligee is thereby estopped to sue on the first bond, though the sheriff had no authority to take the original bond, and release the property attached. Hpsser v. Rowley, 138 Cal. 410, 73 P. 156. 58. Ebner v. Held [C. C. A.] 125 P. 680. 59. Under California Code (sec. 2814), de- fining a continuing guaranty as one relat- ing to a future liability of the principal un- 3 Cur. Law. BONDS § 3. 511 consent thereto by the obligee's agent, are sufficient, no formal release being nec- essary."" Suit can be maintained on an official bond only for such wrongful acts of the of5cial as occur during the term of office for which he is chosen.^^ The fact that money received by a public officer by virtue of his office, was collected without authority is no defense to an action on his bond."^ The obligee in a bond, it seems, gains no rights in a sum deposited to protect the surety."" A fund de- posited to indemnify a surety does not fall under an equitable lien to the obligee, when the condition of the bond has been fulfilled.'* § 3. The terms and conditions in general; interpretation, legal effect, hreach.^^ — A bond will be most strongly construed against the person preparing it;"" and when given pursuant to an order of court, in the light of and in con- nection with such order." A recital in a bond that it was given by virtue of a certain statute is not con- clusive, but is simply prima facie evidence of the fact,''* and when the fact that it is given by virtue of a particular statute is apparent otherwise than b)- recital, it is as available for all purposes as if recited."' A bond will generally be con- strued as penal in character, even when it expressly recites that the sum named therein is stipulated damages, unless such a construction would tend to defeat its essential object."* This import, however, may be overcome by other parts of the instrument.'^ Legislative acts imposing additional duties on a public officer, and expressly making him liable on his bond for a breach thereof, become a part of the bonds thereafter entered into by such officers.'^ der successive transactions; (sec. 2844), pro- viding tliat a surety has all the rights of a guarantor; (sec. 2815) and that a continu- ing guaranty may be revoked at any time by the guarantor, as to future transactions. Such a contract is technically one of surety- ship. White Sewing Mach. Co. v. Courtney, 141 Cal. 674, 75 P. 296. Where an agent, whose liability to his principal was se- cured by a bond, had goods of the princi- pal in his possession for sale "when the bond was revoked, and the principal thereafter sold the goods to the agent, taking his note therefor, the obligation on the note was a new one, for which the surety was not liable. Id. 80. W^hite Sew. Mach. Co. v. Courtney, 141 Cal. 074, 75 P. 296. 61. State V. Greer. 101 Mo. App. 669, 74 S. W. 881. Where there was no evidence to prove that a public administrator's defalca- tion occurred during his first term of office, but his annual settlements showed that the balance sued for was still in his hands dur- ing his second term, the sureties on his sec- ond bond were the parties liable therefor. Id. 62. Money collected from gambling houses and brothels and turned over to city treas- urer. City of Philipsburg v. Degenhart [Mont.] 76 P. 694. 63. Malicki v. Bulkley. 206 111. 249, 69 -N. H. 87. 64. It makes no difference that the lia- bility secured has finally and in another way become fixed and that the principal is insolvent. Malicki v. Bulkley, 206 111. 249, 69 N. E. 87. The facts were that an appeal bond was given, that appellant was succeiss- tul but was defeated on the second trial. Id. 65. See 1 Curr. ly. 344. «e. City Trust, S.-D. & S. Co. v. Leo. 204 111. 69. 68 N. E. 485. Under a bond guarantee- ing an employer against loss sustair.oJ through "the dishonesty or any act of fraud" of a collector "amounting to larceny or em- bezzlement" the bonding company was lia- ble for a conversion of rent collected by him, though this did not amount to larceny or embezzlement, since the words "amounting to embezzlement" did not qualify the word "dishonesty." Id. 67. A bond conditioned to pay damages in the event that a certain cause should be de- cided in favor of the defendant is not breach- ed because many of the issues were decided in his favor, when the decree of the court was against him and he recovered little or nothing. Baer v. Fidelity & Deposit Co. LC. C. A.] 130 P. 94. A bond conditioned to pay such damages "as the court might deter- mine" had been sustained by reason of a deposit in court, held to refer to the court then having jurisdiction of the case. Id. 68. San Francisco Lumber Co. v. Bibb, 139 Cal. 192, 73 P. 964. 69. Contractor's bond held to have been given under Cal. Code Civ. Proc. § 1203, al- though it did not so recite, and hence to be void. San Francisco Lumber Co. v. Bibb. 139 Cal. 192, 72 P. 964. 70. The fact that the amount was intend- ed as liquidated damages and its reason-,, ableness must be affirmatively shown. Di- sosway v. Edwards. 134 N. C. 254. 46 S. E. 501; Ellis V. Ft. Bond County, 31 Tex. Civ. App. 596, 74 S. W. 43. .4 bond conditioned for the observance of the liquor law is in the nature of a contract for the observance of such law, and the sum named therein is not a penalty, but liquidated damage's (un- der New York liquor tax law). Cullinan v. Burkhard, 86 N. Y. S. 1003. 71. City of Madison v. American Sanitary Engineering Co.. 118 Wis. 480. 95 K. W. 1097. 72. Ga. Acts 1S73. p. 57, relating to sales of state lands by ordinary. State v. Hender- son [Ga.] 48 S. E. 334. 512 BONDS § 3. 3 Cur. Law. The official bond of a public officer covers all acts of his assistants and depu- ties within the scope of their authority, the same as if performed by himself per- sonally, though he may be ignorant of their conduct.''' A bond conditioned that the obligor will observe a liquor license law renders him liable for acts of his clerk while in the performance of his business.''* The ordinary rules for the construc- tion of written instruments apply.^° A trust deed given to save harmless the sureties on an official bond inures to the benefit of persons having valid claims against the county on default of such officer.'" Eenewal bonds take the place of the original bond, and the liability of the maker is not increased thereby, unless it appears that the parties so intended.'" 73. Bond of a city clerk covering the en- tire administrative duties of his office cov- ers the acts of his second assistant, the lat- ter being a bonded officer and exempt from the operation of the civil service law of Mil- waukee [Laws 1895, c. 313, § 6, p. 633]. But- ler V. Milwaukee, 119 Wis. B26, 97 N. W. 185. 74. N. T. liquor license law. Cullinan v. Burkhard, 86 N. T. S. 1003. 75. Bonds conjstTned: In a suit on a liquor dealer's bond conditioned that he would not allow minors to "enter and re- main" in his place- of business, there could be no recovery for entry "or" remaining, but the two must concur [Rev. St. Tex. 1895, art. 5060g, as amended by Laws 1901, p. 314, c. 136, construed]. Minter v. State [Tex. Civ. App.] 76 S. W. 312. Where the entry and remaining was only for a time suificient to purchase and drink a glass of beer, and the sale was made in good faith and on reason- able grounds of belief that the person was an adult, there could be no recovery for per- mitting such entering and remaining. Id. An administrator's bond construed and held to render him liable thereunder to the or- dinary, for the benefit of those Interested, for whatever damages they might have sus- tained by his failure to administer the es- tate according to law. Awtrey v. Campbell, 118 Ga. 464, 45 S. B. 301. A bond running to persons about to reorganize a railroad company, which bound the obligors to pay all indebtedness of the company in excess of a certain sum, held to have been made sole- ly for the benefit of the reorganized com- pany which, after an assignment thereof to it, was entitled to recover the damages suf- fered by it by reason of a breach of the conditions thereof. Moundsville, B. & W. R. Co. v. Wilson, 52 W. Va. 647, 44 S. B. 169. Surety bond construed and held to contain an unequivocal promise to indemnify the obligee for all loss arising out of any in- debtedness then due it from its agent. Union .Cent. Life Ins. Co. v. Prigge, 90 Minn. 370, 96 N. W. 917. The operation of a sewage plant by the city held not to have affected its right to recover on a bond given by the construction company for the faithful per- formance of its contract, taking into con- sideration the terms of the contract and the necessity of the use. City of Madison v. American Sanitary Engineering Co., 118 Wis. 480, 95 N. W. 1097. A bond was given to se- cure the performance, without delay, of a contract to sell certain property and de- posit the proceeds in bank in two install- ments of equal amount and on specified dates. Held that a failure to deposit either of the installments on the dates named was a breach of the contract, though there was no evidence that the property had been sold. Carpenter v. Fulmer, 118 Wis. 454, 95 N. W. 403. A provision in a bond, given to secure the performance of a contract that any ac- tion thereon must be brought within six months after a breach of the contract is a reasonable one. Is a complete defense by the surety to an action brought against It more than six months after such breach, but is not available to the contractor as a de- fense. Marshalltown Stone Co. v. Louis Drach Const. Co., 123 F. 746. The filing of an amended and substituted petition, merely to supply omissions in the original petition, and to state a cause of action with more certainty, does not constitute the commence- ment of a new action for the purpose of a defense of such limitation. Id. 76. Jennings v. Taylor [Va.] 45 S. B. 913. 77. A fidelity bond recited that the in- surer would make good to the employer, to the extent of $7,000, all loss occasioned by the dishonesty of the employe occurring dur- ing the continuance of the bond or any re- newal thereof. The liability of the bond was limited to default occurring during one year. A renewal for the following year was given, which recited that it Tvas a renewal bond subject to the conditions of the original bond. Held that the renewal bond was a new contract only so far as it extended the in- demnity of the original contract to another year, but there "was in effect one bond, with one penalty, viz. $7,000, and the guarantor was liable for that amount only. First Nat. Bank v. U. S. Fidelity & Guaranty Co., 110 Tenn. 10, 75 S. W. 1076. A fidelity bond bound the guarantor to make good any loss sustained by the guarantor occurring dur- ing the continuance of the bond or any re- ne^wal thereof, and discovered dtiring such continuance or within six months there- after, and provided that on the issue of any subsequent bond or renewal, liabili- ty on bonds previously issued should cease, and that it was the intention of the par- ties that only the last bond should be in force at any one time. Held that the bond and ■ rene"wals did not constitute a contin- uous contract of suretyship, but that each renewal was a separate and distinct con- tract, and that the original contract and each renewal stood for the malfeasance of the employe during the continuance of each, and discovered within six months after the termination of each, the purpose being to avoid double liability on the part of the company. Proctor Coal Co. v. U. S. Fidelity & Guaranty Co., 124 F. 424. 3 Cur. Law. BONDS § 3. 513 The official bond of a tax collector conditioned that his sureties wiU make good all moneys that may come into his hands, that he does not faithfully account for, embraces all such moneys previously received and on hand when the bond was executed, and all moneys subsequently collected, but not prior defalcations, unless the money had then been or was subsequently restored.''* County warrants issued against funds in the hands of the treasurer, and duly registered as required by law, constitute an equitable assignment of so much of the funds as is necessary to meet their payment, and the treasurer and his sureties become liable therefor.^' A bond given by a contractor for a public improvement, conditioned on his pay- ment for labor and material furnished, is made for the benefit of laborers and material men, and they may maintain actions thereon.'" A statutory bond for the hire of convicts furnishes security for the payment of the amount of hire agreed on only, and recovery cannot be had thereon for inhuman treatment of the convicts, or for the breach of any other condition thereof.'^ Eequirement that a bond shall be given to secure performance of the contract does not require the owner to accept a bond requiring him to perform additional acts for the protection of his sureties.'^ A replevin bond is breached by allowing the action to abate." Where bonds are given during the course of legal proceedings to indemnify parties thereto, the judgment in such proceedings is conclusive as to their breach and the amount of damage resulting therefrom.** One who gives an undertaking 78. Lake County v. Nellon [Or.] 74 P. 212. 79. Code Va. 1887, § 2920, relating to Ura- Itation of actions on contracts does not ap- ply. No limitation as to principal, and only the ten year limitation as to sureties. Jen- nings V. Taylor [Va.] 45 S. B. 913. 80. A provision in such bond authorizing its assignment to laborers and material men, and stipulating that in such case it shall inure to the benefit of all of them, does not prevent a material man from suing thereon as a contract for his benefit and without such assignment, "where he is the only cred- itor of the contractor. BufEalo Forge Co. v. Cullen & S. Mfg. Co. [Mo. App.] 79 S. W. 1024. May be joined as coplaintlffs in ac- tion brought by city. Town of Gastonla v. McEnlee-Peterson Engineering Co., 131 N. C. 363, 42 S. B. 858. Under a contract for the building of a school house which required the contractor to provide all the materials and perform all the work necessary, and a bond running to the school district alone conditioned that the contractor should pro- vide the materials and all labor necessary and for the delivery to the district of the school house "free and clear from any liens or claims of any kind" and that he should pay any sum of money that the district might be compelled to pay to remove any liens. Incumbrances, or claims against the building w^hich might be claimed against the district, the bondsmen were not liable to materialmen for labor and material furnish- ed, the bond being for the benefit of the dis- trict alone. Green Bay Dumber Co. v. Inde- pendent School Dist., 121 Iowa, 663, 97 N. W. 72. A bond exacted from a city contractor for the protection of subcontractors and per- sons furnishing material for city work Is taken for the protection of the city's own interests as well. City of Philadelphia v. Neill, 206 Pa. 333, 55 A. 1032. The statute of California (Cal. Code Civ. Proc. § 1203), requiring building contractors to secure their 3 Curr. Law — 33. contracts by bonds inuring to the benefit of all persons furnishing materials to be used in the building, is unconstitutional as being an unreasonable restriction on the power to make contracts. San Francisco Lumber Co. V. Bibb, 139 Cal. 192, 72 P. 964. 81. Under Rev. St. Tex. 1895, art. 3745, providing that hirers of convicts shall exe- cute a bond in the amount of hire agreed upon, conditioned that he will pay the amount mentioned in the bond when due, that he will treat the convicts humanely, etc. Bills v. Ft. Bend County, 31 Tex. Civ. App. 596, 74 S. W. 43. 82. The owner need not accept a bond re- quiring him to give immediate notice in writing to the surety of default by the prin- cipal and to institute any suit on the bond within six months after the work Is com- pleted. Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255. 83. Ah action may be maintained on a re- plevin bond without the return of an execu- tion, where plaintiff suffers the action to abate after the property has been seized. Laws N. T. 1902, c. 580, p. 1531 and Code Civ. Proc. § 1731, do not apply to such cases. Not necessary to have case marked dis- missed. Verra v. Costantino, 84 N. T. S. 222. The parties to a replevin bond conditioned for the return of the property if the action Is discontinued are liable thereon, if plain- tiff falls to appear in the replevin action and retains the property, though no judg- ment is entered requiring a return of the property, or for its value in case no return is made. No Judgment at all having been entered, a statute (Laws N. T. 1902, c. 580, § 126; Code Civ. Proc. § 1733) providing that after final judgment has been rendered, no action can be maintained until after the re- turn of an execution, does not apply. Rogers V. U. S. Fidelity & Guarantee Co., 84 N. T. S. 203. 84. Recovery of judgment In action of 514 BONDS § 4. 3 Cur. Law. to procure the discharge of gamishmerit proceedings cannot, in an action thereon, question whether the garnishee held anj^thing belonging to defendant,'^ nor can one who gives a supersedeas bond to hold in force, pending an appeal, an attach- ment and garnishment discharged by the trial court be heard, in an action on such bond, to say that the person to whom such bond was given had no interest in the attached property, or that the attachment proceedings were invalid because ©f ir- regularity.^* But one who successfully attacks such appellate proceedings upon the ground that they are unauthorized by law and wholly void is estopped from afterwards asserting that they are in any respect valid, and therefore cannot main- tain an action on the appeal undertaking by which they were begun.*' Eecovery cannot be had on a bond given on the issuance of a temporary in- junction, where such injunction is rightfully awarded, but is afterwards prop- erly dissolved because of matters done or arising subsequent to its issuance.*' The principal and sureties upon an undertaking in an appeal, prosecuted under a void statute, to a court to which in fact no appeal lies are liable thereon if the court, without objection, entertains the appeal and renders judgment ad- verse to appellant which is acquiesced in by him.*' An indemnity bond given a constable, after an illegal levy under an execu- tion, to induce him not to return the property is enforceable against the sureties."" The fact that county funds are deposited with a partnership in the banking business instead of with a corporation, as required by statute, is no defense to an action thereon."^ § 4. Remedies and procedure.'^ — At common law an action on a bond could only be brought by the obligee named therein, but this rule has been generally modified by .statute so as to allow an action to be maintained by the person for whose benefit it \vas given, he being the real party in interest.'^ Hence it has been held that a person belonging to a class for whose benefit an ofiicial bond has been given, and who has been injured by such official's negligence or misconduct, may sue upon the same in his own name.°* Indemnitors cannot be impleaded by the sureties.""* claim and delivery conclusive proof of breach of redelivery bond and amount of resulting damage under S. C. Code, §§ 232, 238. Parish v. Smith, 66 S. C. 424, 45 S. E. 16. A judg- ment in favor of defendant in an attachment suit la conclusive of the liability of the ob- ligors upon an attachment bond for the pay- ment of all costs and damages defendant may sustain by reason thereof, If the same be wrongful or without sufficient cause. The good faith of plaintiff and the sureties on the bond is immaterial. Defendant is not estopped to maintain an action thereon by giving a bond to release the attachment. Anvil Gold Min. Co. v. Hoxsie [C. C. A.] 125 P. 724. In a suit on a bond given on th« issuance of a temporary injunction, the final decree in the injunction suit is res adjudl- cata as to all matters therein decided. Scott V. Frank, 121 Iowa, 218, 96 N. W. 764. See, also, titles Former Adjudication, 2 Curr. L. 60; Estoppel, 1 Curr. L. 1130. 86. Wilkinson v. U. B. Fidelity & Guar- anty Co., 119 Wis. 226, 96 N. W. 560. 86. Whether he is estopped to assert that the proceedings are void for want of juris- diction not decided. Metcalf v. Bockoven [Neb.] 96 N. W. 406. 87. Void as statutory obligation. U. S. Fidelity & Guaranty Co. v. Ettenheimer [Neb.] 97 N. W. 227. 88. Where a temporary Injunction was is- sued restraining the taking of certain land under void condemnation proceedings, and was dissolved after a recondemnation no ac- tion on the bond will lie. Scott v. Frank, 121 Iowa, 218, 96 N. W. 764. 89. McVey v. Peddle [Neb.] 96 N. W. 166. See, also. Estoppel, 1 Curr. L. 1130; Surety- ship, 2 Curr. L. 1776. 90. Hlnes v. Norrls [Tex. Civ. App.] 81 S. W. 791. 91. Mich. Local Acts 1879, p. 217, No. 393. Buhrer v. Baldwin [Mich.] 100 N. W. 468. 92. See 1 Curr. L. 344. 93. Barker v. Glendore [Neb.] 99 N. W. 648. Under Burns' Rev. St. 1894, § 253, the county Is the party interested so that the board of commissioners of the county Is the proper relator in an action by the state on the bond of a county auditor to recover money alleged to be due the county. Nowlin v. State, 30 Ind. App. 277, 66 N. E. 54. 94. Under Neb. Code Civ. Proc. §§ 29, 643. providing for official bonds, and that they must be joint and several. Suit by heirs on bond of county judge who appropriated money belonging to estate. Barker v. Glen- dore [Neb.] 99 N. W. 548. note:. Right of third person to sue on bond: In New York, the tendency is not to hold obligors liable to third parties, the 3 Cur. Law. BONDS § 4. 515 An action on an administrator's bond will lie at any time after breach.*" The authorities are in conflict as to whether an action at law can be maintained on the bond of an officer or fiduciary before settlement of his accounts.®^ Equity has no jurisdiction of a suit by a single creditor of a decedent on the bond of the ad- ministrator of his estate, on a legal demand, where such administrator has made the settlements required by law, unless the bill seeks to surcharge or falsify such accounts."* ^Vhere an act provides that suit on an officer's bond shall be brought in the name of the state, an action so brought is not demurrable, though the bond is made payable to the governor."" The fraudulent concealment by a notary of a false acknowledgment certified by him postpones the running of the statute of limitations against an action on his official bond.^ An action on a bond given to secure the performance of a contract, and conditioned to be void if it was per- formed, is not an action on a contract for the direct payment of money, within a statute authorizing attachment." In order to make a parol promise that a bond third parties not being the principal ones to be benefited. So where, upon tlie dissolu,.- tion of a Arm, one partner executes to an- other a bond with a surety, conditioned for the payment by the partner executing it of all the firm debts, the liability of the obli- gors is to the obligee only, not to the firm creditors, and an action cannot be main- tained thereon by a firm creditor to recover his indebtedness of the obligors. Merrill v. Green, 55 N. T. 270; Hurd v. Johnson Park Xnv. Co., 13 Misc. 643. 34 N. T. S. 915. And in Buffalo Cement Co. V. MoNaughton, 90 Hun. 74, 35 N. T. S. 453, where a contractor gave a bond to a city, the sureties on which covenant that the contractor shall pay for all materials which he shall purchase and use about the work, and that, in case he fail so to do, the materialmen may bring an action on the bond in their own names to recover for their materials. It was held that materialmen could not sue, in the absence of proof that they knew of the bond and its provisions and furnished the material, rely- ing on the bond; and that the doctrine of Lawrence v. Fox, 20 N. T. 268, could not apply because the city (the promisee) was under no obligation to the materialmen. The rule in Pennsylvania Is strict, since the general doctrine Is confined within narrow limits. Morrison V. Beckey, 6 Watts. 349. In Minnesota, it would seem that a third party might sue sureties If the promisee were under some obligation to such third party. Jefferson v. Asch, 53 Minn. 446. 55 N. W. 604, 39 Am. St. Rep. 618. As holding the same rule, see Montgomery v. Rief, 15 Utah, 495, 50 P. 623. The Kansas courts are liberal In permitting a third party to sue sureties. Hardesty v. Cox, 53 Kan. 618, 36 P. 985. The Nebraska courts are even more liberal, and in Lyman v. Lincoln, 38 Neb. 794, 57 N. W. 531, materialmen were allowed to sue sureties on a bond given by a con- tractor to a city, even though tlie city (the promisee) seems to have been under no ob- ligation to the materialmen (third parties). See Kaufmann v. Cooper, 46 Neb. 644, 65 N. W. 796; Fitzgerald v. McClay, 47 Neb. 816, 66 N. "W. 828, which hold the same doctrine. Missouri courts, on the other hand, and especially as distinguished from New York, hold that a city is under such an obligation to laborers and materialmen who furnish work and materials on public buildings that they can sustain an action against sureties on a bond given to the city. Devers v. How- ard, 144 Mo. 671, 46 S. W. 625; School Dist. v. Livers, 147 Mo. 580. 49 S. W. 507; City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. "W. 843, 54 Am. St. Rep. 695. The Oregon courts, which Insist that some fund must be placed In the hands of the promisor to which the third party has some equitable claim In or- der to sustain an action by a third party, would naturally deny a third party a right of action against a surety. Parker v. Jeffery, 26 Or. 186, 37 P. 712; Brower Lumbei Co. v. Miller, 28 Or. 565, 43 P. 659, 52 Am. St. Rep. 807. — From exhaustive note on right of per- sons benefited by contract to sue thereon. 71 Am. St. Rep. 169. 05. In an action on a sheriff's bond for failure to turn over taxes collected by him, where no theft or embezzlement was char- ged, the sureties could not bring in as party defendant and file a petition against a guar- anty company which had given them a bond indemnifying them against embezzlement on the part of the sheriff. U. S. Fidelity & Guaranty Co. v. Fossati [Tex.] 80 S. W. 74. 96. The fact that the claims of the in- terested parties have not been perfected be- fore suit or judgment is immaterial. Judge of Probate v. Lee [N. H.] 56 A. 188. S>7. A county may maintain a common- law action against the sureties on the bond of a county treasurer who fails to pay over to his successor a balance shown by his books to be due the county, though the coun- ty auditor may not as yet have settled and adjusted the treasurer's accounts. The Pennsylvania Act (P. L. 545, § 48) provid- ing for the auditing of such accounts and a statement of the balance due from county officers is for the protection of the public and not of the officer or his sureties. Lan- caster County V. Hershey, 205 Pa. 343, 54 A. 1038. ~ An action at law cannot be maintained on a guardian's bond until there has been an account or settlement, as provided by law, showing a balance in Ills hands. Pln- nell V. Hinkle [W. Va.] 46 S. B. 171. 98. Thompson v. Mann, 53 W. Va. 432, 44 B. E. 246. »». State V. Henderson [Ga.] 48 S. B. 334. 1. Under Rev. St. Mo. 1899, § 8836, such' action must be brought within three years after the cause of action accrues. State v. Hawkins [Mo. App.] 77 S. W. 98. 3. Neither the default nor the amount to be paid Is certain [Mont. Code Civ. Proo. § 516 BONDS § 4. 3 Cur. Law. given to secure deferred payments for land was not to be paid until an outside interest in such land had been released a defense to an action thereon, it must appear that the purchaser was induced to buy the land and give the bond on the faith of such promise, and would not have done so without it.' Pleading.^ — A breach of the bond," and resultant damage must be pleaded.' A general averment of nonpayment of the penalty is sufficient.^ Averments of notice to defendant of facts constituting a breach of the conditions of the bond are not necessary where it appears that they are actually or presumptively known to him.^ A complaint which sets out the bond in full, showing that it is an in- strument under seal, is not demurrable for failure to allege that the bond was based on a sufficient consideration.' In an action on a forthcoming bond in at- tachment, an order of court directing the sale of the attached property must be alleged and proved.^" Evidence.^^ — To entitle the obligee to recover more than nominal damages he must show the actual damage suffered by him through a breach of the conditions of the bond.^' Where it is diE&eult or impossible to show such actual damage, he must show that he has sustained some actual loss, and that the amount of the bond is not unreasonable.^' A statement of the account of a public officer from the books of the treasury department, properly certified and showing a balance due the United States, is sufficient prima facie evidence of a breach of his bond in failing to account for public money or property.^* Evidence that plaintiff sold 890]. Ancient Order of Hibernians v. Spar- row [Mont.] 74 P. 197. 3. Stewart v. New York & C. Gas Coal Co., 207 Pa. 220, 56 A. 435. 4. See 1 Curr. L. 345. 5. A complaint on a contractor's bond, set- ting out the bond in full, including the con- tract the performance of which it was given to secure, and averring that such contract was unperformed in certain particulars from which the damages claimed resulted, and that settlement had been demanded and re- fused, sufficiently alleges a breach of the bond, and states a cause of action. Fidelity & Deposit Co. V. Robertson, 136 Ala. 379, 34 So. 933. 6. An allegation. In an action on a penal bond, that plaintiff is "endamaged in the sum of one thousand dollars," is not such a specific allegation of fact as to be admitted on demurrer, but it is sufficient to entitle him to an inquiry as to his actual damages, where his cause of action has been admitted by demurrer. Disosway v. Edwards, 134 N. C. 254, 46 S. E. 501. In an action on an at- tachment bond, allegations in the answer that the property was released shortly after it was seized are relevant and material on the question of damages and good on demur- rer. Anvil Gold Mln. Co. v. Hoxsie [C. C. A.] 125 P. 724. 7. The words in a declaration on a penal bond that defendants "the same to pay hath hitherto wholly neglected and refused, and still do neglect and refuse," held a sufficient allegation of nonpayment of the penalty on general demurrer. Moundsville, B. & W. R. Co. V Wilson, 52 W. Va. 647, 44 S. B. 169. 8. Moundsville, B. & "W. R. Co. v. Wilson, 52 W. Va. 64T, 44 S. B. 169. Sufficiency of pleadings In general: Peti- tion In action on administrator's bond held to state a cause of action, treating the in- strument as a voluntary obligation. Awtrey V. Campbell. 118 Ga. 464, 45 S. B. 301. Com- plaint in action on official bond of clerk of council held sufficient on demurrer. Ander- spn V. Blair, 118 Ga. 211, 45 S. E. 28. Peti- tion in action by heir, to recover on bond of county judge "who wrongfully appropriated money belonging to estate and paid into court, held to state cause of action. Barker V. Glendore [Neb.] 99 N. W. 548. 9. The bond imports a consideration, and a want of it, if available at all, is a matter of defense. Considine v. Gallagher, 31 Wash. 669, 72 P. 469. 10. Given under Neb. Code Civ. Proc. i 206. Young v. Joseph' Bros. & Davidson [Neb.] 99 N. W. 522. 11. See 1 Curr. L.. 345. ISS. Disosway v. Edwards, 134 N. C. 254, 46 S. E. 501; Ellis v. Ft. Bend County, 31 Tex. Civ. App. 596, 74 S. W. 43. The words "penal sum" in that part of a bond provid- ing for the consequences of a breach thereof are ordinarily to be construed strictly, and as meaning a penalty, requiring actual dam- age to be shown in order to recover there- under. City of Madison v. American Sani- tary Engineering Co., 118 Wis. 480, 95 N. W. 1097. No recovery can be had on a volun- tary bond given to cover damages arising out of certain orders of court issued in an equity suit, which would otherwise have been damnum absque Injuria, since.no dam- ages can be proved. Baer v. Fidelity & De- posit Go. [C. C. A.] 130 F. 94. 13. Disosway v. Edwards, 134 N. C. 264, 46 S. B. 501. In an action on a bond, con- ditioned for the performance of an agree- ment not to engage in a certain business at a certain place and for a specified period, held error to enter Judgment for the full amount thereof, on overruling a demurrer to the complaint, in the absence of specific allegations of damage, or showing that the amount of the bond was reasonable, no proof having been taken on the subject. Id. 14. Laffan v. U. S. [C. C. A.] 122 F. 333. 3 Cur. Law. BONDS § 4. 517 and furnished brick to a city contractor, and that the latter used them in carrying out his contract, brings him within the terms of a bond exacted by the city from such contractor for the purpose of protecting subcontractors and persons furnish- ing material for city works.^" A statement of an officer of a corporation which sold material to a city contractor, that he did not think the transaction was within the terms of a bond exacted by the city from such contractor for the protection of subcontractors and persons furnishing materials for the work, does not amount to a waiver of the benefit of such bond.^' Schedules of property attached to a bond ajid signed by sureties and pleaded as exhibits to plaintiff's petition are admissible as tending to show that the sureties signed the bond.^^ Eeports of an oflBcer which are required by law are admissible in evidence against the sureties on his ofiScial bond and are prima facie true.^' The pleadings and judgment in a former action against the obligor of a bond for acts amounting to a breach of its conditions are admissible in an action on the bond against his sureties.'* Under a com- plaint against sureties alleging that the obligee had recovered judgment against the principal for moneys advanced to him during the life of the bond, and that it had not been paid, recovery can be had only on proof of such judgment and not on proof of independent liability under the bond.^° The defense of want of consid- eration may be raised by sureties though not pleaded, where the complaint does not allege that the bond was under seal.^' The burden is on the defendant to rebut the presumption of consideration raised by the fact that the instrument is under seal.''* 15, 16. city of Phlla. v. Neill, 206 Pa. SS3, 55 A. 1032. 17. U. S. Fidelity & Guaranty Co. v. Fos- satl [Tex. Civ. App.] 81 S. W. 1038. IS. City of Philipsburg v. Degenhart [Mont.] 76 P. 694. 19. Inadmissible In action on bond of U. S. marshal for failure to pay over money, where it does not appear In the judgment that the former action had anything to do with such failure or the subject-matter of the bond, and there Is nothing in the plead- ings tending to show that the items on which the judgment was based were chargeable against him during the life of the bond. U. S. v. Meade [Ariz.] 76 P. 467. 20. U. S. V. Meade [Ariz.] 76 P. 467. 21. Geln V. I>ittle, 89 N. T. S. 488. 22. Appeal bond. Evidence insufflolent. Geln V. Little, 89 N. T. S. 488. Sufficiency of evidence: City of Madison V. American Sanitary Engineering Co., 118 Wis. 480, 95 N. W. 1097. Evidence In an ac- tion on an official bond held sufficient to au- thorize the court to direct a verdict for plaintiff. Wilcox v. Perkins County [Neb.]. 97 N. W. 236. Bond to secure payment of alimony. Crew v. Hutcheson, 119 Ga. 142, 45 S. B. 971. Where, In an action on a re- delivery bond In attachment after judgment for plaintiff, it appeared that all defendant's property had been sold by execution under the judgment and bought by plaintiff, and that defendant was Insolvent and had no property within the jurisdiction of the court, and that he had resisted plaintiff's collec- tion of the judgment, such proceedings amounted to a demand for the payment of the judgment on which the action on the bond would be based, and defendant's Insolv- ency rendered a further demand unneces- sary. Ebner v. Held [C. C. A.] 125 F. 680. AdmlssibllltT- of evlflenoe In erenerali In an action on a bond securing performance of a mall route contract, a single letter of the auditor of the postoffioe department to the effect that on a similar contract defend- ant would only be liable in case the sure- ties on the proposal bond, given to secure the performance of the same contract, should fall to pay the damage caused by a breach thereof, was irrelevant and inadmissible. National Surety Co. v. TJ. S. [C. C. A.] 123 F. 294. A copy of a bond certified to by the acting secretary of the treasury Is admis- sible In evidence in a suit on such bond by the United States, under a statute (U. S. Comp. St. 1901, pp. 670, 671) providing that such copies are admissible when certified to by the "secretary or assistant secretary." Laffan v. U. S. [C. C. A.] 122 F. 333. In an action by a surety against a state officer for breach of a contract to repay to the surety money paid on the bond of the chief clerk of such officer in lieu of a liability which has been discovered by the examiner of public accounts, evidence that the examination had been made was relevant, though not the ex- aminer's official report, if there was nothing in the statutes providing for such report giving it effect as evidence. Culver v. Caldwell, 137 Ala. 125, 34 So. 13. Evidence as to false en- tries made by the commissioner may be ad- missible as showing whether there was an Indebtedness of the chief clerk. Id. Where defendant, sued as principal on a bond. Is allowed to withdraw an answer to the effect that he signed as surety only, and to file one pleading non est factum, the original an- swer. If signed or sworn to by him, jnay be proved against him as an admission. Wyles V. Berry, 25 Ky. L. R. 606, 76 S. W. 126. In an action against the principal on a bond for money loaned by order of court, plaintiff may show the financial condition at the time of the loan of a third person for whom the money was actually borrowed. Id. 518 BOUjSTDAEIES § 1. 3 Cur. Law. Rulings and instrtictions.^' Judgment and damages.^* — ^For a breach of an administrator's bond there can be only one judgment, and that must be for the whole penalty and stand as secu- rity for all parties interested, whether they are parties to the suit or not.^'* Only the actual loss sustained by the breach of the bond may be recovered.^" It is no objection to the recovery, at least as against the principal debtor, that the verdict which is less than the penal sum with interest exceeds the sum named on the face of the bond.^^ There can be no recovery on a penal bond with collateral condition in excess of the penalty of the bond."* Statutes in some states provide that interest on the amount recovered cannot be allowed, where the bond is con- ditioned for the performance of an act, and not for the payment of money.^° BOtrWDABIES. § 4. Establishment by Acquiescence or Estovpel (523). § S. Kstabllsbment by Arbitration, Action, or Statutory Mode. Risbt of Action (6S3). § 1. ICiiIes for Locating; or Identifying (518). § 2. Riparian or Liittoral Boundaries (521). § 3. Establisliinent by Agreement of Ad- joiuers (522). § 1. Rules for locating or identifying.'" — A line described in clear and un- ambiguous terms is the controlling call in the title.^^ When reliable indications fail, the rule is to reach the objective point by the line of shortest distance.'^ The location of a block of surveys may be established by a single undoubted mon- ument found on the ground.^^ The marks of a block of land consist of the marks of every tract of the block, and if originally intended as corners, become marks for establishing the entire block.'* If marks for interior corners be found they establish the lines for interior tracts.'^ Processioners must respect possession ex- isting at the time lines are marked.^' A call "to" a strip of land does not carry the line over or into the strip.'^ 23, 24. See 1 Curr. L. 345. 25. Judge of Probate v. Lee [N. H.] 56 A. 188. 26. A contractor purchased premises from plaintiff giving liim a purchase money mort- gage, and also executed to Mm a building loan mortgage, to secure the payment of money advanced for the erection of a build- ing thereon, and a bond to secure the erec- tion of such building. The building was not finished, and plaintiff foreclosed the build- ing-loan mortgage, bid in the property, and entered a deficiency judgment against the contractor. He then completed the building. In an action to recover the penalty of the bond, held that, as the property was worth the amount of the purchase money mortgage and the amount of plaintiff's bid at the sale, the purchase operated as a payment to that extent, and he could recover only the amount of the deficiency judgment. In such cases the bond indemnifies only from loss and dam- age which' flows from a breach of the prin- cipal contract. Westcott v. Fidelity & De- posit Co., 87 App. Div. 497, 84 N. Y. S. 731. 27. U. S. V. Walker, 128 P. 1012. 28. Mo. Rev. St. 1899, § 471. Bond to se- cure performance of contract to Install heat- ing apparatus in school-house. Board of Education of St. Louis v. National Surety Co. [Mo.] 82 S. W. 70. 2». N. T. Code Civ. Proc. i 1916. West- cott v. Fidelity & Deposit Co., 87 App. Div. 497, 84 N. T. S. 731. 30. See 1 Curr. L. 346. SI. A strip immediately west of and ad- joining another definite tract. Kellog v. McPatter, 111 La. 1037, 36 So. 112. 32. In establishing a line never Indicated otherwise than on paper. Leonard v. Smith, 111 La. 1008, 36 So. 101. 33. Knupp V. Barnard, 206 Pa. 280, 55 A. 981. 34. A block consists of a quantity of land entered by one for several. Knupp v. Barn- ard, 206 Pa. 280, 55 A. 981. 35. Though it may change exterior line. Knupp v. Barnard, 206 Pa. 280, 55 A. 981. 86. Civ. Code 1895, § 3248. But not mere naked possession. Riddle v. Sheppard, 119 Ga. 930, 47 S. B. 201. 37. Whether it be shore line or upland. Dunton v. Parker, 97 Me. 461, 54 A. 1116. Where a survey and warrant offered in evi- dence show a beginning at the S. W. point on a lake and a final call for a stake on the edge of the lake at the N. W. corner, as there Is no evidence of any marks or monu- ments on the ground, showing a west line other than the bank of the lake, the line is to be run on the bank. Wilcox v. Snyder, 22 Pa. Super. Ct. 451. Where a call is thence to a point on the shore "20 feet above low water mark, thence along the said shore about 20 feet above low water mark to a point" the grantee at most is only entitled to a line parallel with low water mark and twenty feet distant therefrom. Lynch v. Troxell, 207 Pa. 162, 56 A. 413. 3 Cur. Law. BOUNDAEIES § 1, 519 The true location is a question of fact/' resting in the intention of the par- ties/' to be established by a preponderance of evidence.*" Surveyors.*^ — The duty of a surveyor is to go upon the land with a copy of the field notes, search for and survey its lines and corners and report the result of his work.*^ A survey establishes a line but does not determine title.*' Monuments control courses^ distances** and quantity*^ but they must have been officially established/" and be so described that they can be found with ab- solute certainty/' so a location by monument will control the distance/^ and where a natural boundary is called for, it should be reached by extending the line according to the course.*" Where monuments have been lost or removed their 38. That It had become fixed by acqui- escence cannot be declared as a matter of law. Broil v. Wishert [Tex. Civ. App.] 79 S. W. 1089. Between partitioned estates where the indenture of partition was so am- biguous as to require pai-ol evidence to ex- plain it. Graves v. Broughton [Mass.] 69 N. B. 10S3. Where the location of two ad- joining tracts of a block depends upon the position of the interior line of the block, and the evidence is conflicting. Knupp v. Barnard, 206 Pa. 280, 55 A. 981. Where a call terminates at a swamp, the question virhether the edge or run of the swamp is meant is for the Jury. Rowe v. Cape Fear Lumber Co., 133 N. C. 433, 45 S. B. 830. Where one took government land betTreen two surveys evidence held for the jury as to the location of the boundaries. Taylor v. Lewis [Tex. Civ. App.] 81 S. W. 534. 39. By description In a patent a patentee got more land than he entered. He conveyed a part by course and distance to another. Held, a question for the jury whether the grantee took the entire tract. Marcy v. Brock. 207 Pa. 95, 56 A. 335. 40. Bvidence held to show that parties to a conveyance understood one of the bound- .-iries to be a certain fence. Dows Real Es- tate & Trust Co. v. Emerson [Iowa] 99 N. W. 724. Evidence sufficient to sustain find- ings locating boundary. Asher v. Howard, 24 Ky. L. R. 2118, 72 S. W. 1105. Finding that timber was not cut on the wrong side nt a boundary line sustained. Garred v. Blackburn [Ky.] 82 S. W. 234. Sufficiency of evidence to show that a call beginning at a tree on the top of a cliff, and following the cliff with its meanders, should be taken literally, and not follow a precipice between the cliff and the river, especially as It was impossible to run the calls upon the preci- pice. Cincinnati Southern R. Co.'s Trustee V. Society of Shakers' Trustees 25 Ky. L. R. 1339, 78 S. W. 130. 41. See 1 Curr. L. 350, n. 69-71; Id. 347, n. 21-27. 43. Report held sufficient though contain- ing statements outside his instructions. Broil V. Wishert [Tex. Civ. App.] 79 S. W. 1089. 43. After title acquired by adverse pos- session. Helton V. Pastnow [Ind. App.] 71 N. B. 230. 44. Tarvin v. Walkers Creek Coal & Coke Co., 25 Ky. L. E. 2246, 80 S. W. 504. Deed conveying a certain frontage also stated that It began at a certain corner and ran to the corner of another lot. Bird v. Noon [Ariz.] 76 P. 692. The actual monuments with ref- erence to which a conveyance is made. Dows Real Estate & Trust Go. v. Emerson [Iowa] 99 N. W. 724. Marks made by sur- veyors. Kaiser v. Dalto, 140 Cal. 167, 73 P. 828. Monuments fixed by an original gov- ernment survey. Schmidtke v. Keller [Or.] 74 P. 222. A call for a stake near Cumber- land Gap does not mean in Cumberland Gap; within five miles might be reasonably spoken of as near. Creech v. Johnson, 25 Ky. L. R. 656, 76 S. W. 185. Boundaries In the general description fixed by government monuments and a natural object prevail over an erroneous description by metes and bounds. Patton v. Fox [Mo.] 78 S. W. 804. A way referred to as a boundary is a mon- ument. McKenzie v. Gleason, 184 Mass. 452. 69 N. E. 1076. Evidence held to show that a monTiment had not been moved. Dowling v. Linburg [N. J. Bq.] 57 A. 1035. A line as shown by monuments and as platted by city authorities acquiesced in for many years cannot be overthrown by measurements. Kaiser v. Dalto, 140 Cal. 167, 73 P. 828. See 1 Curr. L. 346. 45. "East halt" and "West half" control- led by a blazed line. People v. Hall, 43 Misc. 117, 88 N. Y. S. 276. 40. Warehouse built on the assumption that a line was in a certain place. Ander- son v. Wirth [Mich.] 96 N. W. 926. 47. Description of a corner held insuffi- cient. Summerfield v. White [W. Va.] 46 S. E. 154. Lines and boundaries cannot be con- trolled by objects found on the ground where there are no calls for such objects. Missouri, K. & T. R. Co. v. Anderson [Tex. Civ. App.] 81 S. W. 781. 48. Where the call is thence 110 feet to an alley, the line of the alley governs, though only 105 feet from the last corner. Alley Is a monument. McCutcheon's Heirs v. Raw- leigh, 25 Ky. L. R. 549, 76 S. W. 60. Where a grant from the Commonwealth described a boundary as "314 perches to a corner; thence by parts of lots Nos. 12 and 11 North 67 V4 deg. East 54 perches to a corner" etc., and to reach the latter corner the line would have to be extended 66% perches, the gran- tee was entitled to the excess as against the commonwealth. Marcy v. Brock, 207 Pa. 95, 56 A. 335. When the corners as actually located are established, the calls of the deed must give way to the marked objects found on the ground, and the lines must be run to the established corners. McCormlck v. Applegate, 25 Ky. L. R. 914, 76 S. W. 511. 49. Extended to run of a swamp, though the call was to Its edge. Rowe v. Cape Fear Lumber Co., 133 N. C. 433, 46 S. B. 830. 520 BOUNDAEIES § 1. 3 Ciir. Law. location may be established by parol,"" but parol evidence cannot establish another monument in the place of the call for the original monument there contained."^ If they cannot be established, courses and distances control the description,"^ and where there are no original monuments or other evidence, the field notes of the original survey must be resorted to.°^ The line as actually run on the ground in making the original survey controls the distance given in the surveyor's notes,"* unless the contrary appears to be the intention of the parties."" Where a line has been recognized for a long period and old marks are found thereon, it has prefer- ence to another line on which no marks are found."" Conflicts between plats and maps and monuments." — In some states it is provided by statute that maps referred to control when inconsistent with other particulars,"' and a plat referred to in a deed makes it a part thereof,"^ but a reference to a map merely to designate a block in which a lot is located,"" or a boundary indicated by marginal words on a plat with reference to which lots are sold cannot control the express terms of the deed." Government surveys.'^ — Established government corners control courses and distances,*^ and the beginning corner of a survey is of no higher importance than any other,'* but where a corner is not found or its location satisfactorily proven, the field notes of the government survey control, and are prima facie evidence of the true line."" Corners in surrounding surveys do not control conflicting calls."" Lost meander corners may be restored by running the line from the nearest cor- ner the direction and distance called for by the notes of the original survey."'' Contiguous lands set apart as distinct bodies on the maps of the United States may serve as boundaries, though their limits have never been marked and they belong to the vendor."' A mistake of a surveyor in recording a survey could not change a boundary."" 50. By preponderance of evidence. Res- urrection Gold Min. Co. v. Fortune Gold Min. Co. [C. C. A.] 129 F. 668. When the marks or monuments are gone, proof of their for- mer location may be supplied. Rock v. Greenewald, 22 Pa. Super. Ct. 641. 61. Round stake with figures written thereon with lead pencil does not fill de- scription of a post four inches square with figures cut into It. Resurrection Gold Min. Co. V. Fortune Gold Min. Co. [C. G. A.] 129 F. 668. B2. Resurrection Gold Min. Co. v. Fortune Gold Min. Co. [C. C. A.] 129 F. 668. 53. Where re-establishment of township line In courses and distances agreed with field notes of original survey, it would con- trol over another claimed line which men- tioned certain monuments not mentioned in the field notes. U. S. v. McKee, 128 F. 1002. 54. Killgore v. Carmlchael, 42 Or. 618, 72 P. 637. 55. But lines marked on a survey do not control the calls in a deed, In case of a vari- ance. In the absence of a mistake. Elliott v. Jefferson, 133 N. G. 207, 45 S. B. 558. 56. Tarvin v. Walkers Creek Coal & Coke Co., 26 Ky. L. R. 2246, 80 S. W. 604. 57. See 1 Curr. L. 347. 58. Under Code Civ. Proc. § 2077, where a patent referred to a certain state survey. Miller v. Grunsky, 141 Cal. 441, 75 P. 48. Under Code Civ. Proc. § 2077, it was not prejudicial error to admit state surveys, in- consistent with a United States plat Under which one claimed. Surveys made prior to his application to purchase. Id. 59. Establishes the boundaries of the land thereby conveyed. Snooks v. Wingfleld, 52 W. Va. 441, 44 S. B. 277. 60. Width of street had been changed leaving a strip in front of the lot. Donahue V. Keystone Gas Co., 90 App. Div. 386, 85 N. T. S. 478. 61. Flsk V. Ley [Conn.] 56 A. 559. 62. See 1 Curr. L.. 347. es. Creech v. Johnson, 25 Ky. L. R. 656. 76 S. W. 185. Where beginning corner was admitted the survey should be located by beginning there and following calls, and courses called for in the patent should yield to marked boundaries, made at time of sur- vey. Whitehouse Cannel Coal Co. v. Wells, 25 Ky. L. R. 60, 74 S. W. 736. 64. Courses may be reversed. Creech v. Johnson, 25 Ky. L. R. 656, 76 S. W. 185. 66. Knoll v. Randolph [Neb.] 94 N. W. 964. United States survey field notes when applied to disputed line by a surveyor held sufiiclent to take case to the jury, though former owner testified to another location of the line. Baty v. Elrod [Neb.] 97 N. W. 343. 66. They are to be considered In connec- tion with other evidence. Masterson v. Rib- ble [Tex. Civ. App.] 78 S. W. 358. 67. Entire controversy turned upon loca- tion of this corner. Simmons v. Jamleson, 32 Wash. 619, 73 P. 700. 68. In a sale per aversionem. Randolph v. SentlUes, 110 La, 419, 34 So. 587. 69. Will not vest in one land not patented to him. Bryant v. Kendall, 25 Ky. L. R. 1869, 79 S. W. 186. 3 Cur. Law. BOUJSTDAEIES § 2. 521 Conflicts between surveys or descriptions of different date.'"' — A junior sur- vey is subservient to a senior.'* It being necessary to disregard one of two sets of calls in the field notes of ofQce surveys, calls made under a mistake as to the relative position of the surveys may be disregarded and effect may be given to the intention of the person who made the field notes.'^ Highways, streets, or ways as boundaries.''^ — A boundary on a way includes the soil to the center thereof/* with an easement over the other half/" unless an intention to the contrary appears.^' In this respect there is no distinction be- tween country highways and city streets.''^ § 2, Riparian or littoral boundaries.''^ — Where the boundary line between two states is the center line of the main channel, the line is a changing one and follows the usual course of navigation.''" The owner of upland adjoining tide water prima facie owns to low water mark,*" unless this jiresumption is rebutted by proof,*^ and a riparian proprietor on a navigable stream owns to the center- thereof subject to public rights,'^ but whether a patentee of the United States to land bounding on a non-navigable lake belonging to the United States takes title to the adjoining submerged land is determined by the law of the state where the land lies.*' A deed conveying a bank of a stream is presumed to carry title to the thread thereof,** and it will include land subsequently added by artificial causes,*' but where a river by avulsion changes its channel the boundary is not changed.*' 70. See 1 Curr. L,. 347. 71. Liands conveyed simultaneously by a common grantor overlapped in description. Adams v. Wilson, 137 Ala. 632, 34 So. 831. 72. Sellman v. Sellman [Tex. Civ. App.] 73 S. W. 48. 73. See 1 Curr. L. 348. 74. Description "to a stake near an old road, thence by said road." McKenzie v. Gleason, 184 Mass. 452, 69 N. B. 1076. Evi- dence held insufficient to show a contrary intention. Pittsburg, V. & C. R. Co. v. Fischer Foundry & Mach. Co., 208 Pa. 73, 57 A. 191. Under Comp. Laws, 3252, unless the fee is expressly reserved. Sweatman v. Bathriek [S. D.] 95 N. W. 422. Description "along said street" does not show an inten- tion to reserve. Id. Since there is a strong presumption that a grantor In conveying land with reference to a way intended to Include the way. McKenzie v. Gleason, 184 Mass. 452, 69 N. B. 1076. A state grant of land bordering on a highway is presumed to con- vey title to the center thereof. Paige v. Schenectady R. Co. [N. T.] 70 N. B. 213. 75. An owner blocked up one-half the street. Healey v. Kelly, 25 R. I. 681, 54 A. 588. 76. Bounded by northerly side of said road shows contrary intention. McKenzie v. Gleason, 184 Mass. 452, 69 N. B. 1076. 77. Paige v. Schenectady R. Co. [N. T.] 70 N. B. 213. And it is immaterial whether the street was used under common law or stat- utory dedication. Sweatman v. Bathriek [S. D.] 95 N. W. 422. V7here proprietor of land and maker of a plat sells lots fronting on a street dedicated to the public by common law dedication. Owen v. "Village of Brook- port, 208 111. 35, 69 N. B. 952. 78. See 1 Curr. L. 348. 79. Mississippi River between Minnesota and Wisconsin. Franzinl v. Layland [Wis.] 97 N. W. 499. 80. Colonial ordinance of 1641-47. Dunton v. Parker, 97 Me. 461, 64 A. 1115. IVote: Where a boundary is the "bank of a stream," a grantee will not take to the thread (Bradford v. Cressey, 46 Me. 9; Rook- well v. Baldwin, 53 111. 19); but to low water mark (Yates v. Van De Bogert, 56 N. T. 526; Lamb v. Rickets, 11 Ohio, 311; Murphy V. Copeland, 58 Iowa, 409, 10 N. W. 786); but It has been held to carry to the 'thread (Ex parte Jennings, 6 Cow. [N. T.] 518). There is a diversity of opinion whether lines running "along the shore" extend to the thread, Starr v. Child, 20 Wend. [N. T.] 149, and Sleeper v. Loconia, 60 N. H. 201, hold- ing that it does; and Child v. Starr, 4 Hill [N. T.] 369; Stevens v. King, 76 Me. 197; Storer v Freeman, 6 Mass. 435, and Handly's Lessee v. Anthony, 5 Wheat. [U. S.] 384, hold- ing the contrary. — Note to Allen v. Weber [Wis.] 27 Am. St. Rep. 51. 81. Description "to the shore" "thence by the shore" may be considered in determining whether the grant Included the strip be- tween high and low water mark. Evidence held to show that it was the intention that grantee should take riparian rights. Dunton v. Parker, 97 Me. 461, 64 A. 1115. 82. An unsurveyed island passes with the land to which it Is appurtenant. Franzini V. Layland [Wis.] 97 N. W. 499. See Nav- igable Waters, 2 Curr. L. 989; Waters and Water Supply, 2 Curr. L. 2034. 83. By Illinois law he does not. Hardin V. Shedd, 190 U. S. 508, 23 S. Ct. 685, 47 Law. Ed. 1156. 84. Including a dam. Roberts v. Decker [Wis.] 97 N. W. 619. And this is not re- butted by a covenant that the grantee should help defray the expenses of keeping the dam In repair. Id. A street located along a river front extends to the middle of the river. Owen v. Village of Brockport, 208 111. 35, 69 N. B. 952. 85. Filling in. Block v. Diver [Kan.] 74 P. 1123. 86. Remains thread of original channel. 523 BOUNDARIES S 3. 3 Cur. Law. Meander lines." — The stream and not the meander line is the boundary of a riparian owner/^ where the government issues a patent for fractional subdivi- sions abutting on a meander line.'" § 3. Establishment by agreement of adjoiners.^" — Adjoining owners may by parol agreement establish a boundary which, when followed by possession, will be binding upon them,"^ both in law and equity,'" and upon their successors,^' even though they be innocent purchasers,"^ and the period of acquiescence falls short of the time required for gaining title by adverse possession."' But the terms of the agreement must be sfettled between them,"" and be entered into before lim- itations have run in favor of one of the parties."^ It is the policy of the law to give stability to such an agreement,"' and rights thereunder are not affected by a subsequent agreement to modify it."* Such adjustment may be shown as well by circumstances and recognition as by direct evidence of a formal agreement.^ .Such an agTcement does not preclude the admission of evidence to establish the real boundaries." § 4. Establishment by acquiescen-ce or estoppel.^ — A boundary may be es- tablished by acquiescence,* or by a holding under a mistake as to the true line,^ if it is between contiguous lands of the parties," especially where it is recognized for the period necessary to acquire title by adverse possession.'' As so established it will control over a plat.' Rodriguez v. Hernandez [Tex. Civ. App.] 79 S. W. 343. 87. See 1 Curr. L. 349. 88. Evidence held to show that a survey- or's line was a meander line and not an In- dependent boundary. Leonard v. Wood [Ind. App.] 70 N. E. 827. Lands between the meander line of navigable lakes and the line of ordinary high water belong to the upland owner. Johnson v. Brown, 33 Wash. 588, 74 P. 677. 89. Legal subdivisions under sec. 2395, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1471). Johnson v. Hurst [Idaho] 77 P. 784. S>0. See 1 Curr. L. 349. 91. Not an agreement passing title. Steinhilber v. Holmes [Kan.] 75 P. 1019. Note: Where boundary is fixed by mutual agreement it is binding though not acqui- esced in for the statutory period (Jones v. Pashby, 67 Mich. 459, 35 N. W. 152; Biden v. Eiden, 76 Wis. 435, 45 N. W. 322; Lagow v. Glover, 77 Tex. 448, 14 S. W. 141; Glover v. Wright, 82 Ga. 115, 8 S. B. 452), and acts and admissions are evidence of its location (Da- vidson V. Arledge, 97 N. C. 172, 2 S. E. 378, and note to Johnson v. Archibald [Tex.] 22 Am. St. Rep. 27). Line of an old fence agreed upon by the parties. Rook v. Greenewald, 22 Pa. Super. Ct. 641. Agreement in writing to abide by a line to be established by a surveyor. Surveyor placed no monuments and abandoned the survey before its com- pletion. MoCormick v. Applegate, 25 Ky. L. R. 914, 76 S. W. 511. Where by deed poll one released to another a strip of land un- der a brick wall, the boundary was estab- lished by such deed. Fleming v. Cohen [Mass.] 71 N, E. 563. Original boundary In- definite and unascertained. Sherman v. King, 71 Ark. 248, 72 S. W. 571. The dis- puted question is a sufficient consideration for the agreement. Gardner v. White, 24 Ky. L. R. 2444, 74 S. W. 206. T'ol. Code, 0. 13, §§ 3250-3259, amended by Sess. Laws 1901, p. 139, providing what are legal fences, dp not prevent an adjoining owner from build- ing a division fence partly on the land of his neighbor. Hoar v. Hennessy [Mont.] 74 P. 452. A stone -wall is not an unreasonable fence. Id. See Fences, 1 Curr. L. 1206. 92. Evidence held to show that parties agreed to a survey and acquiesced therein. Brown v. Bowerman [Mich.] 97 N. W. 352. 93. Acquiescence for 25 or 30 years in a boundary agreed upon by parol is bind- ing on the successors of the parties making the agreement. Campbell v. Combs, 26 Ky. L. Jl. 1643, 77 S. W. 923. Evidence held to show that a boundary was established by agreement between the grantors of the par- ties to this action. Sloan v. King [Tex. Civ. App.] 77 S. W. 48. 94. Without notice of such agreement. Sloan V. King [Tex. Civ. App.] 77 S. W. 48. 95. Steinhilber v. Holmes [Kan.] 75 P. 1019. Such an agreement is not within the Statute of Frauds; it may be parol. Farr v. Woolfolk, 118 Ga. 277, 45 S. B. 230. 96. Parties never came to any definite agreement. Geoghegan v. Turner [Ky.] 82 S. W. 244. 97. Batly v. Elrod [Neb.] 97 N. W. 343. 98. Most satisfactory way of determin- ing the true boundary and prevents litiga- tion. Hoar v. Hennessy [Mont.] 74 P. 452. 99. One of the parties refused to execute the modification. Masterson v. Bockel [Tex. Civ. App.] 75 S. W. 42. 1. Evidence held to show an agreement. Ploar V. Hennessy [Mont.] 74 P. 452. a. Sloan V. King [Tex. Civ. App.] 77 S. W. 48. 8. See 1 Curr. L. 349, n. 59-71. 4. A practical location of boundaries as acquiesced in for a number of years will not be disturbed. People v. Hall, 43 Misc. 117. 88 N. T. S. 276. 5. Continued for statutory period. See Adverse Possession, S Curr. L. 51. Williams V. Shepherdson [Neb.] 95 N. W. 827. «. Cavanaugh v. Wholey [Cal.] 76 P. 979. 7. Occupancy for the statutory period is such acquiescence in a boundary line as es- 3 Cur. Law. BOUNDAEIES 623 Estoppel.^ — A boundary may result from an estoppel.^" Such estoppel may be established by parol and it is not necessary to show an intent to mislead.^^ § 5. Esiahlishmeiit by arbitration, action, or statutory mode. Right of ac- tion}'' — A court of equity has no jurisdiction to settle a disputed boundary/' im- less objection to the jurisdiction be waived.^* In Minnesota only persons owning land adjoining the plaintiff need be made parties.^" A complaint alleging posses- sion only and not a right thereto, and praying that an existing boundary be main- tained, states an action in boundary.^" In adjudicating title to land of a foreign state, the same rules should be applied as are applied elsewhere in the state.^^ Burden of proof }^ — In a boundary suit the burden is not on either party to establish the location of his land.^" Where the description is vague and uncer- tain the burden rests upon those claiming under it to show to what it applies. ^^ The onus lies on a party appealing from a survey made by the county surveyor to show that the survey is incorrect. ^^ Admissibility of evidence.-- — A latent ambiguity in the calls of a deed may be dispelled by parol evidence^' in an action to establish the boundary.^* Evi- dence aliunde is admissible where there is doubt as to the true location of a sur- tablishes a practical location. Kennedy v, Niles [Iowa] 96 N. W. 772. Division fence jointly built by coterpiinous owners and ac- quiesced in for 10 years. Nance County v. Russell [Neb.] 97 N. W. 320. Acauiescenco by adjoining o^wners for 7 years by acts or declarations, under Civ. Code § 3247. Farr v. "Woolfolk, 118 Ga. 277. 45 S. B. 230. Cannot be affected by a subsequent survey. Helton V. Fastnow [Ind. App.] 71 N, E. 230. Gran- tor and grantee recognized a certain fence as the line for 10 years. Dows Real Estate & Trust Co. V. Emerson [Iowa] 99 N. W. 724. Where a line was recognized and ac- quiesced in for 10 years. Rattray v. Talcott [Iowa] 100 N. W. 36. The existence of a fence for 15 years is better evidence of a boundary betv/een lots than the computation f)f surveyors, on the supposition that the lots were of like proportions. Kennedy v. Niles [Iowa] 96 N. W. 772. The fact that the area of one's land falls short of amount called for by the original .survey is no sround for changing a line when he has ac- quiesced in it for 15 years. Klinkefus v. Vanmeter. 122 Iowa, 412, 98 N. W. 286. S. Plat referred to in a deed conveying land to a city. Dows Real Estate & Trust Co. v. Emerson [Iowa] 99 N. W. 724. 9. See 1 Curr. L. 350. n. 65-69. 10. Where vendee improved land accord- ing to what he and vendor supposed the true boundary. Parrish v. Williams [Tex. Civ. App.] 79 S. W. 1097. By conveying by a different description than that by which one acquired title the later deeds cannot be used as evidence of the location of the disputed line. Summerfield v. White [W. Va.] 46 S. E. 154. By inducing a purchase by representations as to the line. Thompson V. Borg, 90 Minn. 209, 95 N. W. 896. Where monuments have been lost and parties liv- ing In the vicinity improved with reference to a corner established by a surveyor ap- pointed by a court commissioner. Brutsche v. Bowers [Iowa] 97 N. W. 1076. Occupancy in accordance with a fence recognized as a division line between plaintiff's land and a highway for more than fifteen years, and acquiescence in such line by the defendant. who built a fence on his side of the high- way, estops one from questioning the bound- aries of the highway. Klinkefus v. Van- i-neter, 122 Iowa, 412, 98 N. W. 286. Charged with notice of inconsistent surveys. Bryant V. Main, 25 Ky. L. R. 1742, 77 S. W. 680. 11. Thompson v. Borg, 90 Minn. 209. 95 N. W. 896. IS. See 1 Curr. L. 350. 13. Eakin v. Taylor [W. Va.] 47 S. E. 992. 14. By prayer in answer that line be es- tablished. Killgore v. Carmichael, 42 Or. 618, 72 P. 637. 15. Proceedings under Gen. St. §§ 5823- 5829, complaint making all persons interest- ed in adjoining land parties, held to state a cause of action. Rook v. Donora Min. Co. [Minn.] 97 N. W. 889. It is discretionary with the court to stay proceedings when persons not interested in the land originally involved are not made parties [Gen. St. 1894. § 5825]. Id. 16. Not a possessory action. Heidman v. Sequin. 110 La. 449, 34 So. 599. Where the answer sets up title and both parties in- troduce evidence thereof, the action ceased to be possessory, even if it "was such orig- inally. Id. 17. River changed its channel by avul- sion. Rodriguez v. Hernandez [Tex. Civ. App.] 79 S. W. 343. 18. See 1 Curr. L. 351, 19. Charge to this effect was improper. Masterson v. Ribble [Tex. Civ. App.] 78 S. W. 358. 20. Peery's Adm'r v. Elliott. 101 Va. 701). 44 S. E. 919. 21. Evidence held insufficient to shoiv that a survey was incorrect. Watklns v. Havighorst. 13 Okl, 128, 74 P. 318. 22. See 1 Curr. L. 351. 23. Arising when an effort is made to ap- ply them to the land. Sloan v. King [Te.N. Civ. App.] 77 S. W. 48. To ascertain the meaning of terms In a deed of partition. Graves v. Broughton [Mass.] 69 N. E. 1083. 24. Resort to equity unnecessary. Sloan V. King [Tex. Civ. App.] 77 S. W. 48. 524 BOUNTIES. 3 Cur. Law. vey/° but not to change lines and corners, where the field notes are not am- biguous. "" Evidence that a certain point is generally reputed to be a corner is admissible,''^ if it appear to have been of such interest in the neighborhood as to have provoked diseussion.^^ Instructions.^^ — Where boundaries of land conveyed by patent are in question the court should instruct as to the effect of marked lines as called.'" It is no error to refuse to instruct against the weight of evidence/^ or on a point which there is no evidence to support.'^ Verdict and finding.^^ — A decree in statutory proceedings to determine a boundary is conclusive, if not appealed from, or the issue of title raised.'* So a finding that a boundary has been acquiesced in for ten years will not be disturbed on appeal,'^ but a verdict which establishes a boundary against the weight of the evidence will be set aside." One not a party to a suit is not bound therein as to any determination made therein as to the boundary.'^ BOTTNTIES. The Minnesota sugar bounty act is unconstitutional,'* and no obligation rests on the state to pay bounties on sugar whose culture was induced by the act." 25. Trust deed did not describe tlie land by courses and distances. Nothing to sliow that it was intended to embrace a mill tract. Peery's Adm'r v. Elliott, 101 Va. 709, 44 S. B. 919. Where the calls when applied to the land, disclose a latent ambigruity. Sloan v. King [Tex. Civ. App.] 77 S. W. 48. Surveys and opinions of suirveyors : Where a survey begins and ends on a river with other corners in a prairie, adjoining surveys made subsequently by different surveyors, in which the prairie corners are identified upon the ground by artificial objects called for in the subsequent field notes, but not in the original field notes, are inadmissible. Matthews v. Thatcher [Tex. Civ. App.] 76 S. W. 61. But where the beginning corner on a river cannot be identified on the ground because of changes in the river, subsequent adjoining surveys identifying the prairie corners are admissible to Identify the be- ginning corner. Id. Declarations of a per- son not shown to be in a position to know the location of a boundary inadmissible. Id. A surveyor who made experimental surveys may by way of Introduction state that cor- ners were pointed out to him as beginning corners and may detail conditions disclosed by his survey. Id. Where a survey must be construed on Its calls for courses and dis- tances, evidence that surveys made about the same time contained excessive acreage is In- admissible. Id. 26. Jamison v. New York & T. Land Co. [Tex. Civ. App.] 77 S. W. 969. Where dis- pute was as to location of a north and south line a question as to a quarter line was immaterial. Pugh v. Schindler [Mich.] 94 N. W. 1056. 27. Witness may state that a spot was pointed out to him as, and was generally re- puted to be, the corner. Matthews v. Thatch- er [Tex. Civ. App.] 76 S. W. 61. That a corner was referred to In subsequent adjoin- ing surveys and its east line made a county boundary by legislative act is admissible on the issue of local public interest. Id. 28. A surveyor, who has made a survey after suit, based on corners pointed out by defendant, cannot state that other surveys would be affected by changes proposed by the plaintiff, though he may detail the con- ditions and distances disclosed by his sur- vey. Matthews v. Thatcher [Tex. Civ. App.] 76 S. W. 61. Evidence of a county surveyor that his office records recognized a corner as claimed by defendant is inadmissible. Id. 29. See 1 Curr. L. 352. 80. Whitehouse Cannel Coal Co. v. Wells, 26 Ky. L. R. 60, 74 S. W. 736. 81. A refusal to charge that a crooked fence is better evidence than a recent sur- vey is proper, especially where there were traditions and alleged agreements' on the as- sumption that it was not the true line. Pugh V. Schindler [Mich.] 94 N. W. 1056. An in- struction authorizing the location of a cor- ner of a subsequent survey by reference to the corner of a prior survey was improper under the evidence. Matthews v. Tha1;cher [Tex. Civ. App.] 76 S. W. 61. An Instruction that "It will not do to permit boundaries tc be disturbed and moved, upon a survey made from an assumed starting point, without some proof, as I have said, of its being a true line located and fixed by the govern- ment survey" is not objectionable If the jury have previously been instructed that the plaintiff's case must be established by a preponderance of evidence. Pugh v. Schind- ler [Mich.] 94 N. W. 1056. 32. An instruction that the location of a stake as a corner was the controlling In- quiry, and if the jury found where the orig- inal surveyor placed it, It would end the controversy, is error, as the call for the stake could not control the distance from the beginning corner. Matthews v. Thatch- er [Tex. Civ. App.] 76 S. W. 61. 83. See 1 Curr. L. 352. 84. Laws 1893, p. 44, c. 22, providing for establishment of boundaries by special pro- ceedings. Parker v. Taylor, 133 N. C. 103, 45 S. E. 473. 35. Being a question of fact. Oster v. Devereaux [Iowa] 98 N. W. 579. 36. Where the jury did not regard the 3 Cur. Law. BKEACH OF MAEEIAGB PROMISE. 525 The action of a state auditor refusing to issue bounty warrants is quasi judicial and may be reviewed by certiorari.*" The statute governing grant of new trials generally applies to suits against the state for coyote scalp bounties." BBEACH OF MABSIAGE FBOHISE. The promise.*^ — A proposal by one party and an acceptance by the other, both being free to marry, shows a promise.** A promise can be shown from the character of correspondence,** or oral declarations,*" but the language must be clear.** An oral contract to marry is within the statute of frauds, unless ex- cepted by the terms of the statute.*^ The promise is binding according to all its terms.*^ A promise of marriage in consideration of illicit sexual intercourse is void.*' A law prohibiting marriage within one year after divorce does not pro- hibit a contract to marry."" Breach and defenses.^''- — After a distinct refusal, the woman is not obliged to again offer herself in order to maintain an action."'' Where one of the parties without excuse fails to perform his agreement at the time fixed for the ceremony, the other party may rescind and maintain an action for damages."' Where one of the parties to a marriage contract discovers that the other is of immoral char- acter, he may sever the relation with impunity;"* but if he enters into the con- tract with knowledge of all the facts, he may not do so,"" and illicit relations induced by a promise to marry will not justify a breach of promise"* nor the fact that the woman was guilty of apparently unseemly conduct."' That a woman evidence of an ancient boundary fence. Saunders v. Sutton [N. J. Law] 55 A. 652. 37. A city. Dows Real Estate & Trust Co. V. Emerson [Iowa] 99 N. W. 724. 38. It infringes § 5, art. 9, prohibiting the state from contracting debts except as there- in allowed, and § 10, art. 9, prohibiting the state from lending aid to any private indi- vidual. Minnesota Sugar Co. v. Iverson [Minn.] 97 N. W. 454. Note: Similar acts have been declared un- constitutional in Michigan (Mich. Sugar Co. V. Dix, 124 Mich. 674, 83 N. W. 625), and the District of Columbia (U. S. V. Carlisle, 5 App. D. C. 138). 39. 40. Minnesota Sugar Co. v. Iverson [Minn.] 97 N. W. 454. 41. The act makes the general rules of civil procedure applicable. San Francisco Law C& Collection Co. v. State, 141 Cal. 354, 74 P. 104V. 43. See 1 Curr. L. 353. 43. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. 44. Evidence, letters and conduct, pres- entation of ring, etc., held sufficient to show a promise of marriage. Poehlmann v. Kertz, 105 111. App. 249; Id., 204 111. 418, 68 N. B. 467. 45. In February, 1901, the parties had agreed to marry In March, 1902. In June, 1901, the man said, "I intend to marry you as I promised. In March we will go to the farm and live right." Held to constitute a new promise, and not a mere rehearsal of the terms of a contract void under the statute of frauds. Parrish v. Parrish, 67 Kan. 323, 72 P. 844. 46. Evidence of correspondence held not sufficient to sustain a promise of marriage. Johansen v. Modahl [Neb.] 94 N. W. 532. 47. By the terms of the contract, the marriage viras not to take place for three years. Haslam v. Barge [Neb.] 96 N. W. 246. Evidence of correspondence, etc., held not to establish a written contract to marry. Id. 48. Ceremony to be performed according to rules and customs of a particular church. Waneck v. Kratky [Neb.] 96 N. W. 651. 49. No recovery can be had for breach. Edmonds v. Hughes, 24 Ky. L. R. 2467, 74 S. W. 283. 60. Buelna v. Ryan, 139 Cal. 630, 73 P. 466. 51. See 1 Curr. L. 253, n. 2, 3. NOTE. PreviouH engajireinent or marriage: That defendant was at the time of making the promise affianced to another (Roper v. Clay, 18 Mo. 383; Albertz v. Albertz, 78 Wis. 72, 47 N. W. 95), or was then married to an- other is no defense, if plaintiff was ignorant of such fact at the time of accepting the promise (Kelley v. Riley, 106 Mass. 339; Pol- lock V. Sullivan, 53 Vt. B07). 52. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. 53. It was agreed that marriage was to be performed at a certain date and hour. The groom failed to appear. Waneck v. Kratky [Neb.] 96 N. W. 651. 54. Williams v. Fahn, 119 Iowa, 746, 94 N. W. 252; Welker v. Metcalf [Pa.] 58 A. 687; Edmonds v. Hughes, 24 Ky. L. R. 2467. 74 S. W. 283. No proof of speclflo acts ol immoral nature is necessary. Williams v. Fahn, 119 Iowa, 746, 94 N. W. 252. 55. A gentleman 74 years old contracted to marry a deaf and dumb woman aged 45, of shady character. She was allowed to recover $1,500.00. Williams v. Fahn, 119 Iowa, 746, 94 N. W. 252. 56. Broyhill V. Norton, 175 Mo. 190, 74 S. W. 1024. 57. That the woman visited houses of 536 BEBACH OF MAREIAGB PEOMISE. 3 Cur. Law. subsequent to the contract became incapable of procreation is a defense.^' A. petition^' which states that plaintiff was at the place designated during the month the ceremony was to be performed and was ready to carry out her part of the agreement is sufficient.'"' A complaint need not allege that plaintifE was willing to marry defendant up to the time of the filing thereof."^ Limitations run against the action from the time of breach and not from the time of making the contract."^ Damages; aggravation and mitigation.^^ — Evidence of seduction is admis- sible, though not charged in the declaration."* In computing damages, the jury are entitled to consider the entire course of conduct of the parties/' a subsequent ofEer to marry, made in good faith, together with the circumstances under which the breach occurred,"" where, in the trial of the case, the man seeks to blacken the character of the woman,"^ and it need not be shown that he was actuated by malice in making the charge."' The general reputation for wealth as distin- guished from the actual circumstances is not a proper matter to be taken into consideration in estimating damages."" The measure of damages to be recovered is a sum sufficient to compensate for the breach of contract and for any mortifica- tion of feelings suffered.'" assignation is no defense If she visited tliem for a moral purpose. Broyhlll v. Norton, 175 Mo. 190, 74 S. W. 1024. 58. Edmonds v. Hughes, 24 Ky. Li. R. 2467. 74 S. W. 283. NOTEl. fi^raudalent concealment of facts as defense: In the case of Van Houten v. Morse. 162 Mass. 414, 38 N. B. 705, 44 Am. St. Rep. 37S, it was held that although a woman is under no obligation on accepting an offer of marriage to voluntarily disclose the cir- cumstances of her past life, if she assumes to do so, any concealment operates as a fraud, justifying the man in refusing to per- form. Citing Short v. Currier, 153 Mass. 182, 26 N. B. 444; Burns v. Dockray, 156 Mass. 136, 30 N. B. 651; Atwood v. Chapman, 68 Me. 38; Devoe v. Brandt, 53 N. T. 462. Apply- ing this rule, it was held that failure to fully disclose the circumstances of a pre- vious divorce and the fact that her fam- ily had some negro blood justified a breach, though in the absence of such concealment, such facts would not be a justification. 59. See 1 Curr. L. 354, n. 8, 9. 60. The ceremony was to take place at Mlddlesborough, in July, date not mentioned. PlaintifE remained there the entire month. Grubbs v. Pence, 24 Ky. L. R. 2183. 73 S. W. 785. The fact that an order in favor of plaintiff had been paid at a different place was inadmissible to show that she was not at Mlddlesborough. Id. 61. Alleging that defendant refused to marry up to that time is sufficient. Buelna V. Ryan, 139 Cal. 630, 73 P. 466. ea. Buelna v. Ryan, 139 Cal. 630, 73 P. 466. 63. See 1 Curr. L,. 354, n. 10-14. 64. Poehlmann v. Kertz. 105 111. App. 249, It is not error to admit evidence of a pre- vious contract, void as being within the statute of frauds, to corroborate testimony of a new promise. Parrish v. Parrish. 67 Kan. 323, 72 P. 844. But it is discretion- ary with the court as to how much of this previous Intercourse Is to be admitted. Id. See 1 Curr. L. 364, n. 9. 65. That the man had her announce the fngagement, and after assurance of marriage seduced her. His disregard for the virtue "f a woman who trusted him. Poehlmann V. Kertz, 105 111. App. 249. 66. After tlie complaint was served, de- fendant renewed his offer .to marry and stated as his reason for not keeping the promise that his son had gone blind and that he could not give plaintifE the attention she deserved as his wife. MoCarty v. Heryford, 126 F. 46. 67. By charges of unchastlty. Broyhlll v. Norton, 176 Mo. 190, 74 S. W. 1024. Note: To the same effect see Kelley V. Highfleld, 15 Or. 277, 14 P. 744; Reed v. Clark, 47 Cal. 203; Davis v. Slagle, 27 Mo. 603; Thorn v. Knapp, 42 N. T. 476. 68. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. 69. Johansen v. Modahl [Neb.] 94 N. W. 532. Where evidence of settlement and the benefits claimed by defendant was conflict- ing, a verdict for plaintiff was not dis- turbed. Williams v. Pahn, 119 Iowa, 746, 94 N. W. 2G2. ro. Grubbs v. Pence, 24 Ky. D. R. 2183. 73 S. W. 785. Man 74 years old promised to marry a deaf and dumb woman of 45. Verdict of .fl^500.00 not disturbed. Williams V. Pahn, 119 Iowa, 746, 94 N. W. 252. Ver- dict for $22,500.00 held excessive where de- fendant was worth only $50,000.00, especial- ly where offer of marriage was renewed after commencement of the action, and where the only matter in aggravation of damages was seduction, which was not made until after the renewal offer, and this was not sustained by the evidence. McCarty v. Hery- ford. 126 F. 46. Defendant was a railway mail clerk and his only property was a house, not paid for. Verdict for $25,000.00 was ex- cessive. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. NOTE. Kxemplary damas'ca: Actions for breach of promise of marriage form an ex- ception to the rule that exemplary damages lire recoverable only in case of tort. Chellis V. Chapman, 125 N. T. 214. 26 N. B. 308; Mc- pherson v. Ryan, 59 Mich. 33, 26 N. E. 321. The breach must have been wanton or ma- licious or accompanied by circumstances of 3 Cur. Law. BEIBEEY. 527 Liability of third person inducing breach. — A parent is not liable to his son s fiance for inducing him to break his contract to marry her." Her remedy against the parent is an action for slander.'"' BRIBERY. Nature and elements of offense.''^ — Bribery is the giving, offering, or receiving of anything of value, or any valuable service, intended to influence a public officer or agent, de facto," or de jure, in the discharge of his legal duty;'"* the true test being whether the matter is before the officer in his official capacity, or is one that may be brought before him in such capacity." An analogous offense is created by the Federal statute prohibiting Federal officers from receiving private compensation for services in respect to any matter in which the United States is interested." Bribery was an indictable offense at cominon law,'* and there was no difference in liability between the giver and the receiver." Under the Mis- souri statute, an offer to give a bribe is as illegal as the giving of one,^" and one may be guilty as an accessory who Imowingly assists in the escape of one guilty of bribery.*^ The Indiana constitutional provision rendering ineligible for office one who gives or offers an election bribe does not refer to a primary election.*^ The Federal statute on bribery for a valuable consideration covers only some val- uable thing like money, property, or notes.'^ Indictment.^* — The indictment must be direct and definite,*" and must, on aggravation. Dupont v. McAdow, 8 Mont. 220, 9 P. 925. 71. Leonard v. Whetstone [Ind. App.] 68 N. E. 197. 73. The parents made false and slander- ous charges against her. Leonard v. "Whet- stone [Ind. App.1 68 N. B. 197. 73. See 1 Curr. L. 354. 74. A de facto officer may be bribed. State V. Butler [Mo.] 77 S. W. 560. 75. Pen. Code, 5 72. People v. "Van Do Carr, 87 App. DIv. 386, 84 N. T. S. 461. A justice of the peace who receives money in consideration of not instituting a prosecu- tion is guilty of bribery, where a legal duty existed to begin such prosecution. Mora- wietz V. State [Tex. Cr. App.] 80 S. W. 997. 76. People v. McGarry [Mich.] 99 N. W. 147; State v. Lehman [Mo.] 81 S. W. 1118. The test of one's being an ofBcer is that the incumbent in his independent capacity is clothed with some part of the sovereign- ty of the state, to be exercised in the in- terest of the public and required by law. Barker v. State [Ohio] 68 N. E. 575. An attempt to influence one's vote on a ques- tion which could not lawfully come before him does not constitute bribery. The St. Louis board of health has no authority to let a contract of the disposal of garbage [Rev. St. 1899, § 2089]. State v. Butler [Mo] 77 S. W. 560. One is not guilty of bribery as a "member of Congress," before he has been accepted as a member thereof and as- sumed his duties. Where the prosecution's opening statement admits a fact which must prevent a conviction, the court may on its own motion direct a verdict for the accused. U. S. V. Dietrich, 126 F. 676. A Federal In- dian agent may be guilty of bribery as an officer of the United States [U. S. Comp. St. 1901, p. 3709]. Sharp v. U. S., 13 Okl. 522, 76 P. 177. An accountant employed by a board of revision is a city employe and may be guilty of bribery as such [Rev. St. 1892, § 6900]. Barker v. State [Ohio] 68 N. E. 575. A city attorney is punishable under a statute on bribery of judicial and executive officers [Comp. Laws, § 11,312]. People v. Salsbury [Mich.] 96 N. W. 936. 77. Rev. St. § 5480. An inquiry by the postoffice department as to the propriety of issuing a "fraud order" is within the stat- ute. U. S. V. Burton, 131 P. 552. 78. In the early days it was limited to judicial officers or those engaged in the administration of justice, but was later ex- tended to all public officers. People v. Van De Carr, 87 App. Div. 386, 84 N. T. S. 461. Bribery at election of members of parliament was a common-law offense and so probably at municipal elections. Doyle v. Kirby, 184 Mass. 409, 68 N. E. 843. 79. Pub. St. 1881, c. 7, §§ 60, 61; Gen. St. c. 7, § 31. Doyle v. Kirby, 184 Mass. 409, 68 N. E. 843. 80. There need be no actual tender nor an offer to give any definite amount [Rev. St. 1899, § 2043]. State v. Woodward [Mo.] 81 S. W. 857. 81. One charged as an accessory has the burden of proving himself within the class of persons exempt under Rev. St. 1899, § 2365. State V. Miller [Mo.] 81 S. W. 867. 82. Const, art. 2, § 6. Under section 2327 Burns' Rev. St. 1901, on bribery at a primary election, a conviction is necessary before one is Ineligible for office. Gray v. Seitz [Ind.] 69 N. B. 456. 83. A non-negotiable Instrument, made invalid by statute, is, not "property" nor "valuable consideration" [U. S. Comp. St. 1901. p. 1212]. U. S. V. Miller, 125 F. 520; U. S. V. Driggs, 125 P. 520. 84. See 1 Curr. L. 364. 85. Const, art. 1, § 6; Gen. St. 1894, § 7241; Gen. St. 1894, 5 7247. State v. Ames [Minn.] 98 N. W. 190. 528 BKIBERY. 3 Cur. Law. its face, by plain allegations, not by inference merely, charge some act consti- tuting bribery,*" but if it substantially follows the language of the statute it is sufficient.'^ It will not be uncertain because it states that part of the money was paid by persons unknown to the grand jury,*' nor bad, for duplicity because it alleges that several persons contributed to the fund used as a bribe,** nor defect- ive in charging bribery of a city attorney in a matter which might properly come before him.*" An indictment for corruptly agreeing with others to vote in a specified manner need not charge the defendants separately,*^ and an allegation that defendant had not been a resident of or usually resident within the state since the com mission of an offense, properly raises an avoidance of the bar of limitations, and is not defective as pleading in the alternative.*" Evidence.^" — All testimony tending to show the receiving of the bribe is ad- missible as bearing on the corpus delicti,** likewise evidence that defendant at- tempted to suppress testimony or induce perjury,*^ and evidence of other crimes by the accused is admissible where there is a logical connection with the offense charged." The voluntary admissions of defendant may be received,*' and con- versations in furtherance of a bribery conspiracy are admissible though held in defendant's absence,** or though in defendant's presence and a conspiracy be not .proven.** On a charge of corruptly forming a voting agreement with others, the state need not show the guilt of each of the alleged conspirators.^ Trial and instructions.^ — The accused is not entitled to a separate trial on the issue of limitations.' The court may charge the jury to consider defendant's interest, in weighing his testimony,* and it is sufficient that the court charged' a consideration of all the evidence and that certain testimony as to defendant's good character was 86. It should charge with certainty and precision all the facts necessary to consti- tute the offense and must conform to the language or state all the facts which bring it within the terms of the statute. State v. Schnettler [Mo.] 79 S. "W. 1123. The indict- ment should possess sufficient certainty to apprise the defendant of the offense with which he is charged. Sharp v. tl. S., 13 Okl. 522, 76 P. 177. The indictment for bribery on election must express the exact legal status of the position the person seeks. Held fatal that the indictment charged brib- ery on an election "for the office of con- gress," there being no such office. Allison V. State [Tex. Cr. App.] 78 S. W. 1065. In- dictment of United States senator for re- ceiving compensation for services for client in inquiry before postal department held sufficient. U. S. v. Burton, 131 P. 552. 87. An Indictment charging bribery in connection with leases need not describe the land, give the number of the lease, name of the lessee, quantity of each nor condition of contract. Sharp v. U. S., 13 Okl. 522, 76 P. 177. 88. 89. State v. Ames [Minn.] 98 N. W. 190. 90. It was the duty of the city attorney to advise properly regarding the contract, and It Is Immaterial that the council could not lawfully have entered upon such a con- tract. People V. McGarry [Mich.] 99 N. "W. 147. 91, Rev. St. 1899, 5 2531, provides that an indictment shall not be Invalid for defects therein unless tending to substantially prej- udice defendant's rights. State v. Lehman [Mo.] 81 S. W. 1118. 92. Rev. St. 1899, § 2421. State V. Snyder [Mo.] 82 S. W. 12. 93. See 1 Curr. L. 355. 94. People v. McGarry [Mich.] 99 N. W. 147. 95. People v. Salisbury [Mich.] 96 N. W. 936. 96. State V. Schnettler [Mo.] 79 S. W. 1123. Evidence of other crimes is admis- sible when it tends directly or indirectly to establish the defendant's guilt of the crime charged in the indictment on trial or some essential ingredient of such offense. State V. Ames, 90 Minn. 183, 96 N. W. 330. 97. A valuable discussion on vpluntary admissions. State v. Woodward [Mo.] 81 S. "W. 857. 98. There being abundant evidence of the conspiracy of bribery and defendant's con- nection with it, the court properly admitted evidence of the actions of the other con- spirators before defendant's complicity was shown. People v. McGarry [Mich.] 99 N. W. 147; State v. Ames, 90 Minn. 183, 96 N. W 330. 99. State v. Lehman [Mo.] 81 S. W. 1118. 1. Hence it is immaterial whether one of those accused was a de Jure or a de facto officer. State v. Lehman [Mo.] 81 S. W. 1118. 2. See 1 Curr. L. 355. 3. Bribery is within the three-year lim- itation Imposed by Rev. St. 1899, ; 2419. State V. Snyder [Mo.] 82 S. W. 12. 4. State V. Ames, 90 Minn. 183. 96 N. W. 330 3 Cur. Law. BRIDGES § 2. 529 competent." The issues should be clearly presented,* but an instruction that one may commit bribery in the interests of a company only if employed by its direct- ors was properly refused.' BBIBGES. § S. Establishment, Construction, and Maintenance by Private Enterprise (E^Sl). § 6. Injuries from Defective Bridges (531). i 7, Injuries to Bridges (535), I 1. R«gruIatlon and Control (529). i 2. Elstabllshment and Ijocatlon by Pub- lic Agencies (529). § 3. Contracts and Construction (530). i 4. Public Liability for Cost and main- tenance (530). § 1. Regulation and control. — ^Until congress acts, the power of the state over bridges over its navigable streams is plenary,* and congress did not intend by the river and harbor act of 1899 to deprive the states of their right to say what structures should be built in navigable streams wholly within their limits," nor deprive the owner of a bridge, previously erected, of the right to make re- pairs.^" A railroad by the mere fact of its incorporation is not empowered to bridge a navigable stream without consent of the legislature.^^ A bridge cannot be construed to be a ferry, but it may well be a substitute for a ferry when it was manifestly so intended.^^ A statute providing for the setting aside of the tolls of a bridge connecting two towns for the purpose of building a free bridge is in- valid where it mentions only one of the towns, they being joint owners of the tolls.^* § 3. Establishment and location by public agencies.^* — A petition of resi- dent tax payers is the usual means of setting in motion the procedure for build- ing bridges by public authority,^" and a limit on the amount that may be ex- pended without the authority of the electors interested, expressed by vote, is fre- quently set.^' Statutes often require that plans and specifications be adopted in advance of the letting of the contract,^'^ and the advertisement and contract must be based upon such plans.^' The approval of the general plan of a bridge by the proper boards or bodies does not prevent changes in detail thereafter.^* 5. The court need not specifically say that the Jury must consider the evidence as to defendant's good character. State v. Ames, 90 Minn. 183, 96 N. "W. 330. 6. Instructions that the jury need not consider whether defendant was an inhabi- tant of the state, and that the fact of his being an Inhabitant thereof and having a home therein had no bearing as to whether he was usually a resident thereof, are mis- leading where an Issue Is made as to the exception to the limitation. Rev. St. 1899, § 2421, provides that the statute of limita- tions shall not run while the defendant Is not an inhabitant of or usually resident within the state. State v. Snyder [Mo.] 82 S. "W. 12. 7. The evidence was clear that he was a criminal agent of the company under or- ders of its president. State v. Faulkner, 176 Mo. 546, 75 S. W. 116. 8. Power of congress over bridges over navigable waters. Cummlngs v. Chicago, 188 U. S. 410, 23 S. Ct. 472. In the absence of congressional legislation, a state may au- thorize the building of a bridge over a nav- igable Interstate stream. Kansas City, etc., R. Co. V. Wiygul [Miss.] 33 So. 965. See Navigable Waters, 2 Curr. L. 994. 9. Under existing legislation, the right to erect a bridge or other structure in a nav- igable water of the United States, wholly within the limits of a state, depends upon 3 Curr. Law — 34. the concurrent or Joint assent of the state and national governments. Elver & Harbor act of 1899. Cummlngs v. Chicago, 188 U. S. 410, 23 S. Ct. 472, 47 Law. Ed. 525; Calu- met G. & E. Co. V. Chicago, 188 U. S. 431, 23 S. Ct. 477, 47 Law. Ed. 632. 10. Kansas City, etc., E. Co. v. Wiygul IMlss.} 33 So. 966. 11. Dundalk, etc., E. Co. v. Smith 97 Md. 177, E4 A. 628. 12. Where so substituted. It will be char- ged with a license or privilege of free pas- sage resting on the ferry. Du Pont v. Char- leston Bridge Co., 65 S. C. 524, 44 S. B. 86. 13. City of Shreveport v. Tldwell [La.] 36 So. 312. 14. See 1 Curr. L. 355. 15. Where a petition for the construction of a bridge Is presented to a board of super- visors at a regular session and denied, a new petition may be presented and granted at an adjourned session without reconsidering the former action. Ionia County Sup'rs v. Ionia Circuit Judge [Mich.] 96 N. W. 497. 10. A statutory provision that when it is necessary to raise a sum in excess of $2,000 for building any bridge in a township, the question shall be submitted to a vote of electors, does not apply to the construction of bridges partly within two townships. Ionia County Sup'rs v. Ionia Circuit Judge [Mich.] 96 N. W. 497. 17, 18. Clark v. Lancaster County [Neb.] 96 N. W. 593. 530 BKIDGES § 3. 3 Ciir. Law. § 3. Contracts and construction.^" — As in tlie case of other public con- tracts, it is usually prescribed by statutes that contracts for bridges shall be let only upon competitive bids;''^ where, however, express authority to so build a bridge is given, competitive bidding is not necessary.^^ A board of supervisors having contracted for the erection of a bridge, it could contract without advertis- ing for new bids for extra work found necessary during its construction, where it pertained to a necessary part of the bridge."' In Nebraska, no authority exists for repairing by annual contract, and where a repair job amounts to more than $100, it must be done by advertising for bids, based upon plans and specifications previously adopted.^* Since the presumption is that public oflBcials observe and obey the law, a .complaint need not allege that the bridges, to recover compensation for which suit is brought, were such as could be lawfully erected by the defendant board,^° but an instruction that if the plaintiffs built the bridge on a public road, they were entitled to recover its reasonable value, though the county had not entered into any contract for its construction, is erroneous.^' § 4. Public liability for cost and maintenance." — The question which of two municipalities or in what proportion they shall bear the expense of main- taining a bridge most frequently arises with relation to bridges over streams form- ing the boundary between counties,"* towns,"' or cities,'" and bridges on highways forming the boundary line.''^ This joint liability is statutory, and proceedings to enforce it must follow the statute;'" but where the liability exists, it is imma- 19. Sanborn v. Llndenthal, 41 Misc. 564, S5 N. Y. S. 206. ao. See 1 Curr. L. 355. 21. Clark V. Lancaster County [Neb.] 96 N. W. 593. County commissioners can exer- cise no powers not expressly given by stat- ute, and statutory requirements relative to advertising for bids must be complied with. State V. Snyder, 2 Ohio N. P. (N. S.) 261. The cost of the substructure must be esti- mated In determining the cost of the bridge. Under Rev. St. § 796. When cost of bridge was less than $1,000.00 county commission- ers could let contract without advertising for bids. Cost of substructure was not figured In. Id. See Public Contracts, 2 Curr. L. 1285, n. 87. 22. Knowles V. New York, 176 N. T. 430, 68 N. B. 860. 23. Fenders, or clusters of piles above and below the bridge, but totally discon- nected therefrom are not such a necessary part of the bridge. Marlon County v. Fox- worth [Miss.] 36 So. 36. 24. Clark v. Lancaster County [Neb] 96 N. W. 593. 25. Bayne v. Wright County Com'rs, 90 Minn. 1, 96 N. W. 456. 26. Howard County v. Lambright [Ark.] 80 S. W. 148. 27. See 1 Curr. L. 355. 28. State V. Thomas [Mo.] 82 S. W. 106; Queen Anne's County Com'rs v. Talbot Coun- ty Com'rs [Md.] 57 A. 1; In re Newark Plank Road and Bridges, 63 N. J. Bq. 710, 53 A. 5. When the legislature refers to streams which divide counties, it must be under- stood as meaning streams in which are situated the boundary lines which divide the counties. Dodge County v. Saunders County [Neb.] 97 N. W. 617. Where a bridge over a stream which divides two counties is a charge upon each, it Is the duty of the county board of either county, when notified in writing by the other, to join in a con- tract for the repairs of the bridge, to either comply with the notice by joining In the contract or unequivocally refuse to do so. Iske V. State [Neb.] 100 N. W. 315. See 1 Curr. L. 356, n. 20 et seq. 29. Town of Bast Pishkill v. Wappinger, 89 N. Y. S. 699. 30. A toll bridge between two cities di- vided by a river, being converted into a highway, must be maintained by the two cities. State v. Bangor, 98 Me. 114, 56 A. 589. 31. A county can become obligated to contribute towards the expenses of building a bridge over a stream upon a boundary line between Itpelf and another county, either by entering in the first Instance Into a joint contract for the construction of such bridge in the manner prescribed by statute, or by subsequently ratifying a con- tract for that purpose. Saline County v. Gage County [Neb.] 97 N. W. 583. When the county boards of adjoining counties have attempted to enter into a joint contract for the purpose of building a bridge, but by reason of the neglect of requisite formal- ities one of such counties falls of becoming obligated thereby, and the other In good faith and pursuant to the contract builds and pays for the bridge, the former may ratify and confirm the contract by allow- ance In behalf of the latter of a claim for one-half the contract price of the structure, and a taxpayer cannot defeat or annul such ratification by appealing from the order of allowance. Id. See 1 Curr. L. 366. 32. Iske V. State [Neb.] 100 N. W. 315; Saline County v. Gage County [Neb.] 97 N. W. 583. The fact that a resolution passed by the board of one of two adjoining coun- ties calling upon the other to join in mak- 3 Cur. Law, BRIDGES § 6. 531 terial whether the boundary stream lies half in each county or wholly in one county, the boundary line being one bank of the stream.'" The duty of adjoin- ing municipalities to repair, when clear, may be enforced by mandamus;'* but the rule as to original construction is otherwise, and where statutes provide that a bridge between two counties shall be built upon the determination of both coun- ties, such determination once made is the exercise of a discretion which man- damus will not lie to review," and generally speaking, courts will not substitute their judgment for that of the township authorities in relation to how the bridges of- the township shall be maintained, nor decide the cost of repairs where there is an honest dispute as to what expenditure will be required.^® In Iowa, the duty of keeping in repair a bridge within the corporate limits of a city rests upon the city and not upon the county,"'' but in Kentuclcy, though a bridge may be wholly within the limits of a city, yet if in fact it is a county bridge, that is, part of a county highway, it becomes the duty of the county to replace it on its destruction.'^ Provisions in a statute for the levy of taxes for repairing bridges must be strictly complied with."* § 5. Establishment, construction, and maintenance by private enterprise, is more fully treated elsewhere.*" A municipality may grant to a corporation the right to build bridges across its basins to the extent that the municipality is concerned,** and the legislature of Missouri has power to confer on foreign corporations the Tight of eminent domain, to be exercised in the construction of a toll bridge for public use.*^ The incorporation of a railroad does not of itself confer on it the right to cross navigable waters of the state without the consent of the legislature.*' The approach to a bridge is a part thereof, so that an attempted conveyance of such approach by a company chartered to build and operate the bridge is ultra vires.** The dedication of a bridge by a railroad company to a town for the public use, and the complete and formal acceptance thereof by the tovm, releases the railway company from all responsibility to the public in the premises.*" The fact that the upper portion of a bridge is used as a railroad bridge does not prevent a toll bridge license being required.*' § 6. Injuries from defective bridges." — The right of navigation being para- mount, it is iacumbent on the owner of a bridge to so construct it that it may be readily opened to permit the passage of vessels, to place it in charge of persons competent to operate it, to equip it with lights and signals giving warning of its Ing bridge repairs designates two brlds»s, while, after the latter's refusal, a contract is let and recovery sought as to one only is not fatal. Dodge County v. Saunders Coun- ty [Neb.] 97 N. W. 617. 33. Dodge County v. Saunders County [Neb] 97 N. W. 617; In re Newark Plank Road & Bridges, 63 N. J. Bq. 710, 53 A. 5. Where a stream between two towns does not form the boundary line between them, being almost wholly within the limits of the one town, and yet might properly be said to be upon the boundary in such a manner that the construction of bridges would in- volve the soil or territory of both towns, the- towns were not liable by force of the statute alone to share equally the expense, though they might be equitably liable to do so. Town of East Fishkill v. Wappinger, 89 N T. S. 599. 34. Iske V. State [Neb.] 100 N. W. 315. 35. State v. Thomas [Mo.] 82 S. W. 106. 36. Kingsley v. Nylan [Mich.] 99 N. W. 744. ST. Freeman v. Independence [Iowa] 97 N. W. 1083. .18. Leslie County v. Wooten, 25 Ky. L. H. 317, 75 S. W. 208. 39. People v. Chicago & A. R. Co.. 205 111. 594. 69 N. B. 51; Cincinnati, I. & W. R. Co. V. People. 206 111. 565, 69 N. B. G28. 40. See Railroads, 2 Curr. L. 1382; Toll Roads and Bridges, 2 Curr. L. 1S72. 41. Capdevielle v. New Orleans & S. F. R. Co., 110 La. 904, 34 So. 868. 42. Southern 111. & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. "W. 453. 43. Dundalk, S. P. & N. P. R. Co. v. Smith, 97 Md. 177, 54 A. 628. 44. Pittsburg, C, C. & St. L. R. Co. v. Dodd, 24 Ky. L. R. 205, 73 S. W. 822. 45. Hicks V. Chesapeake & O. R. Co. [Va.] J er S TT' R 9 S 46. Southern R. Co. v. Mitchell, 139 Ala. 629, 37 So. 85. 47. See 1 Curr. L. 357. 532 BKIDGES § 6. 3 Cur. Law. position in opening and closing, and to give timely warning to approaching vessels if it cannot be opened, and for a failure of duty in this respect if injury result the owner is liable.*' Where the owner of a private bridge knowingly leaves open his property under circumstances calculated to lead others to think that they are invited to use it, he assumes an obligation to see that it is kept in reasonable repair,** but where there is no invitation, express or implied, to use it, he is not liable to one injured because of its defective condition.'" By the common law of some states municipalities are required to keep bridges in a reasonably safe condition for travel, and are liable for injuries resulting from failure so to do;°^ the general rule, however, is that the liability is entirely stat- utory,"^ but whatever its source, the liability is not that of an insurer,"' and there can be no recovery where officials having in charge the care and maintenance of a bridge had no notice of its defective condition, and had used due diligence in its care and maintenance."* But where the defect is of a nature that proper inspection would have discovered it, and has existed so long that the authorities must be pre- sumed to have known of it, the municipality cannot defend on the ground of lack of notice." A township which elects to maintain its highways and bridges by the labor of its inhabitants instead of a system of general taxation, cannot escape lia- bility for personal injuries for its negligence in failing to repair a bridge."* Officers are not liable for injuries unless willfully and grossly negligent."' Defective construction.^^ — The builder of a bridge must use reasonable care to avoid the flowage of lands by reason of his abutments and embankments,"' but he is not required to anticipate and use precautions against extraordinary or unprece- 48. Clement v. Metropolitan West Side El. R. Co. [C. C. A.] 123 P. 271. 49. Lawson v. Shreveport Waterworks Co., Ill La. 73, 35 So. 390, BO. Carson Lime Co. v. Butherford's Adm'r [Va,] 46 S. H. 304. 51. City of ConnersvUle v. Snider, 31 Ind. App. 218, 67 N. E. 555; Buechner v. New Or- leans [La.] 36 So, 603. 52. Hackney V. Coweta County, 117 Ga. 327, 43 S. E. 725. A county Is not liable, unless made so by statute, though the law requires It to keep the highway In repair, and gives it power to provide means with which to do so. Schroeder v. Multnomah County [Or.] 76 P. 772. In Georgia no rem- edy, statutory or common law, exists for injuries caused by a defective bridge built across a stream between two counties. Pax- ton V, Berrien County, 117 Ga. 891, 45 S. B. 266. 53. Warren County v. Evans, 118 Ga. 200, 44 S. E. 986; Comstook V, Georgetown Tp. [Mich,] 100 N. W. 788. 54. Robe V, Snohomish County [Wash.] 77 P, 810. No recovery can be had where It does not appear that the board was aware of the defect, or that it had existed for so long a time that reasonable Inspections would have caused It to have been disclosed. Crelghton v. Board of Chosen Freeholders [N. J. Law] 57 A. 870, If the defect in a bridge Is a latent defect, not discernible from the ordinary tests and examinations usually made to ascertain its condition, and if those charged With such examination have not been negligent in their duty in that regard, no liability results for damage caused by such latent and undiscovered defect. John- son County V. Carmen [Neb.] 99 N. W. 502. 55. Where a defeot- In a bridge In a popu- lous part of the city consisted of a hole two or three feet long and six Inches wide, which had existed three or four months, the city was chargeable with notice. City of ConnersvUle v. Snider, 31 Ind. App. 318, 67 N. E. 555. If a bridge becomes weakened to the point of danger from natural decay, and the exercise of reasonable care and In- spection would have revealed the condition the county cannot rely on a want of notice. Perry v. Clarke County, 120 Iowa, 96, 94 N. W. 454, See, also. Walker v. Ontario, 118 Wis. 564, 96 N. W. 1086. It is negligence for the supervisors of a county to fail to inspect a bridge under their control, knowing the use of traction engines to be general, whers its floor timbers have not been renewed for fifty-flve years. Smith v. Muncy Creek Tp., 206 Pa. 7, 55 A. 767. 56. Pearl v. Benton Tp. [Mich.] 100 N. W. 188. 57. Schooler v. Arrlngton [Mo. App.] 81 3. W. 468, 58. See 1 Curr. L. 357. 59. KIpp V. New York Cent. & H. R. R. Co., 89 App. Div. 392, 85 N. Y. S. 855. Who- ever proposes to build a bridge over a stream, before placing his piers or other erection tending In any degree to dam the water or divert It from Its natural flOw, must study the country through which it flows, Its usual freshets, and occasional great floods, which are not usual but which ex- perience teaches may occur at any time, and use reasonable care and skill to avoid producing or increasing damage from these sources. Jones v. Seaboard A. L. R. Co. [S. C] 45 S. B. 188. 3 Cur. Law. BRIDGES § 6. 633 dented floods,** and a landowner, in giving a deed to a railway company for a right of way over his lands adjacent to a proposed bridge, must be held to have had in view aU damage coming to his property from a reasonably skillful and proper construction of the bridge.'^ The builder is liable for injuries resulting from his negligence during the process of construction.'* Proximate cause of injury. ^^ — A municipality cannot be held liable, as for de- fective construction, for an injury that does not occur on the bridge itself and is not chargeable to any defect therein."* Delinquency in complying with a statute requiring that a bridge be spanned with plank before a traction engine is driven over it is no defense, unless there is some direct causal relation between the failure and the accident.*" Contributory negligence."' — One who puts a bridge to a use for which it was not intended,*' or uses it with knowledge of its defective condition,*' or is otherwise negligent in his use of a bridge, cannot recover;*" and a boy, partially blind, who after being warned goes on a bridge, and while the draw is open walks ofE, is guilty of contributory negligence." 60. Whether a flood falls within one or the other of these classes Is a question of fact for the jury. Jones v. Seaboard A. L. R. Co. [S. C] 45 S. B. 188. In an action for the negligent construction of a bridge ■whereby water Is backed upon plaintiff's premises it is error for the court to charge that if the bridge was carefully constructed plaintiff would still have a remedy for ob- structing the stream. Kipp v. New York Cent. & H. R. R. Co., 89 App. DlV. 392, 85 N. T. S. 855. 61. But this does not authorize the com- pany to locate piers at such an oblique angle to the natural flow of the stream as to present a much greater surface and ob- struction to the current, diverting the wa- ter to the damage of the adjacent soil. Jones V. Seaboard A. I,. R. Co. [S. C] 45 S. E. 188. Nor may it allow large cribs or pens filled with stone and used In building a temporary bridge to remain after the com- pletion of the permanent structure, to the injury of the adjacent owner. Id. 63. It Is not negligence per se for a coun- ty, while repairing a bridge, to regularly pile plank on the bridge, leaving room for teams to pass opposite the pile, which re- mained from May 29 over Decoration Day to morning of May 31, and from which Injury resulted. Karl v. Juniata County, 206 Pa. 633, 66 A. 78. A person who has contracted with a county to build a new bridge, and during the course of construction to provide and main- tain a temporary foot bridge, assuming all risks pertaining thereto, is not liable to a person Injured under circumstances from which it might be inferred that the injuries were caused by a failure to light the tem- porary footbridge. Styles v. P. R. Long Co. [N. J. Err. & App.] 57 A. 448. 63. See 1 Curr. L. 358. 64. It being plain that the plank bridge off one end of which the plaintiff's wheel fell, causing the injury, was not a part of the traveled path, but outside of it, and con- structed solely for the purpose of facilitating access to and from the traveled path to a private way, which opened Into the high- way, and from which the plaintiff was driving, he could not recover. Peloh v. West Brookfleld. 184 Mass. 309, 68 N. E. 227. The mere fact that a person traveling upon the highway after dark mistakes the wing wall of a bridge for a footpath, and after getting upon it falls off and Is injured, affords no ground for concluding that the bridge was Improperly constructed. Weeks V. Board of Chosen Freeholders, 68 N. J. Law, 622, 64 A. 826. 66. Walker v. Ontario, 118 Wis. 664, 96 N. W. 1086; Tackett v. Taylor County [Iowa] 98 N. W. 730. For further cases where trac- tion engines have broken through bridges, see Schooler v. Arrlngton [Mo. App.] 81 S. W. 468; Smith v. Muncy Creek Tp., 208 Pa. 7, 55 A. 767; Perry v. Clarke County, 120 Iowa, 96, 94 N. W. 454'; Johnson County V. Carmen [Neb.] 99 N. W. 502; Cpmstook V. Georgetown Tp. [Mich.] 100 N. W. 788. See, also, 1 Curr. L. 358, n. 40; Id., 360, n. 74. A complaint for injuries to a traction engine by the breaking of a bridge Is In- sufllclent, where it appears that the engine weighed more than seven tons, and It Is not alleged that plaintiff took the precautions prescribed by Rev. St. 1898, § 1347b, requir- ing persons crossing bridges with such en- gines to span the bridge with planks. Stone V. Tllden [Wis.] 99 N. W. 1026. 66. See 1 Curr. L. 358. 67. Plaintiff sat down and leaned against railing to rest. Knowles v. Central of Ga. R. Co., 118 Ga. 796, 45 S. E. 605. 68. A bridge being found unsafe was barricaded by the supervisors, but after some repairs, was thrown open and was in constant use. The supervisors had a notice posted on It that It was unsafe for travel. Plaintiff's knowledge of the notice was held not conclusive that he was negligent in using the bridge, he having been personally advised by the supervisors that It had been repaired and was safe. Jones v, Shelby County [Iowa] 100 N. W. 520. 69. A charge that it was the duty of a person In crossing a bridge with a traction engine to use ordinary care, and that or- dinary care under these circumstances was such as should be suitable to or commen- surate with the hazard or risk which would naturally attend the crossing, sustained. Walker v. Ontario, 118 Wis. 564, 95 N. W. 1086. See, also, Perry v. Clarke County, 120 Iowa. 96. 94 N. W. 454. 534 BRIDGES § 6. 3 Cur. Law. Remedies." — ^A statute which requires the filing of a statement of claim as a condition precedent to a right of action should receive a reasonable construction, and requires but a substantial compliance.''^ Though highway commissioners of certain towns were given control and direc- tion of a bridge between the towns, an action far injuries thereto must be brought in the names of the towns, and not in the names of their highway commissioners." Pleading and evidenced* — It is not necessary to use the term "proximate cause" in the complaint. An averment that the defect complained of caused the injury is sufficient,''" but a complaint against a bridge commissioner which does not charge that his action, in reporting a bridge as properly constructed and safe for travel, was instigated by willfulness is insufficient.''* Where in an action against a railroad company to recover for obstructing the flow of a navigable stream, during a freshet, causing damage to plaintiffs land, it was claimed that the damage resulted from an iTnprecedented flood, the bulrden of proof of such fact was on the defendant.^^ It is competent for the plaintiff to show that while the bridge was in the same condition, accidents of a similar nature had occurred at the same place a short time prior thereto,^' and that there were other defects in the bridge than the de- fects that caused the accident, also to prove its general defective condition.'" The fact that the town board settled with the owner of the engine cannot affect the case of one suing for personal injuries, and testimony to that effect is not admissible.'" While the weight of the testimony is entirely for the jury, yet mere speculation and conjecture must not be confused with legitimate testimony.'* Interrogatories. — A special interrogatory in an action for injury from a defect- ive bridge, as to whether plaintiff saw the notice of its unsafe condition posted on it, is objectionable as not limiting the jury to the time of the accident.^' Questions for jury.^^ — The qitestion of negligence in taking a tank full of 70. Desure v. New York Cent. & H. R. E. Co., 87 N. T. S. 988. ri. See 1 Curr. L. 359. 72. Eggleston v. Chautauqua, 90 App. Dlv. 314, 86 N. Y. S. 279; Bayne v. Board of Coun- ty Com'rs, 90 Minn. 1, 95 N. W. 456. The fact that a statement of claim was called a "petition" Instead of a "notice" does not render it insufBcient. Perry v. Clarke Coun- ty, 120 Iowa, 96, 94 N. W. 454. Verification by an agent is sufficient. Id. See 1 Curr. L. 359, n. 63. T3. Town of Palatine v. Canajoharie Wa- ter Supply Co., 90 App. Div. 548, 86 N. T. S. 412. 74. See 1 Curr. L. 359. 75. City of Franklin v. Davenport, 31 Ind. App. 648, 68 N. B. 907. 76. Schooler v. Arrington [Mo. App.] 81 S. W. 468. 77. Jones v. Seaboard A. L. R. Co. [8. C] 45 S. E. 188. 78. City of Kingfisher v. Altizer, 13 Okl. 121, 74 P. 10'7- See 1 Curr. L. 360, n. 71. 79. This class of testimony is competent for the purpose of showing that the author- ities had knowledge of the defective condi- tion or that the defects had existed for such a length of time that by the exercise of reasonable care they could have been repair- ed. City of Kingfisher v. Altizer, 13 Okl. 121, 74 P. 107. 80. Comstock V. Georgetown Tp. [Mich.] 100 N. W. 7S8. 81. In an action against a town for neg- ligent death alleged to have been caused by the absence of any railing on a bridge, whereby plaintiff's intestate, when intoxi- cated, in attempting to cross the bridge in the dark fell into the water, evidence that deceased was found dead in the water a short distance from the bridge, that some articles belonging to him were found on the other side of the bridge about 75 feet from his body, and that an overcoat which he had on when last seen was also found a few feet away from the body, was insufficient to justify submission to the jury of the issue as to whether deceased fell off the bridge. Armstrong v. Cosmopolls, 32 Wash. 110, 72 P. 1038. In an action against a county for death alleged to have been negligently caused by the absence of a guard railing on a bridge, evidence held not sufficient to sus- tain a verdict against the county. Reidhead V. Skagit County, 33 Wash. 174, 73 P. 1118. Evidence held sufficient to show that boy fell through hole in bridge. Buechner v. New Orleans [La.] 36 So. 603. Evidence, in an action by a railroad for damage to its bridge trestle by defendant's barges break- ing loose from their moorings and drifting against the trestle, examined and held suffi- cient to sustain finding that the barges were not left In charge of a watchman. Astoria & C. R. R. Co. V. Kern [Or.] 76 P. 14. 82. Jones v. Shelby County [Iowa] 100 N. W. 520. 83. See 1 Curr. L. 360. 3 Cur. Law. BEOKERS § 1. 535 water upon a bridge with an engine,'* whether it was negligent for the driver of a threshing engine to remain on the engine while crossing a bridge,'" and of the suffi- ciency of barricades as a warning of dangerous conditions, are questions of fact and for the jury." Whether a pedestrian crossing a bridge on a dark night was negligent in turning to cross the street, where he tripped over a chain,'' and whether a flood by which plaintiff's lands were damaged was one which the builder of a bridge should have foreseen and provided against is a question of fact." § 7. Injuries to bridges.^* — If a bridge is unfavorably affected by a dam beloM' only in extraordinary and unusual freshets, which occur but seldom in a long series of years, the dam is not of unlawful height as to the bridge."" On trial of an indictment for maliciously destroying a bridge, malice is for the jury.*^ BBOKEBS.92 S 1. ISmployment and Relation In General (535). § 2. Mutual Rights, Duties, and Liabili- ties (53S). Scope of Authority (539). Rati- fication (540). Revocation of Authority (540). Damages (540). Remedies and Pro- cedure (541). § 8. RlBhtB and I.labillties as to Tliird Persons (541). § 4. Compensation and Iiien (542). Sale Agent (545). Good Faith (546). Complaint (547). Evidence (548). Instructions (549). § 1. Employment and relation in general.^^ — The agreement must contain all essential elements of a contract,"* and may be established by correspondence be- tween the parties ;°° but the fact that one accepts the benefits of the endeavors of a broker does not establish the relation," because a mere volunteer acquires no 84. Comstook v. Georgetown Tp. [Mich.] 100 N. W. 788. See 1 Curr. L.. 360, n. 74. 85. Perry v. Clarke County, 120 Iowa, 96, 94 N. W. 454. 86. Feldkamp v. Kansas City [Kan.] 75 P. 464. 87. Milliken v. St. Clair [Mich.] 99 N. W. 7. 88. Jones v. Seaboard A. L. R. Co. [S. C] 45 S. E. 188. 89. See 1 Curr. L. 360. 90. It is not necessary that a freshet be unprecedented or higher than any preceding freshet within memory to constitute it an extraordinary and unusual freshet within the above rule. Inhabitants of Palmyra v. Waverly Woolen Co. [Me.] 58 A. 674. 91. Evidence of malice held sufficient as against contention that defendant believed bridge was on private grounds. People v. Myring [Cal.] 77 P. 975. 92. See, also. Agency, 3 Curr. L. 68; Factors, 1 Curr. L. 1200, and as to brokers engaged in dealings in futures, Gambling Contracts, 2 Curr. L. 129. 93. See 1 Curr. L. 360. 94. Agreement to sell town lots at such terms as might be deemed advantageous, to receive 10 per cent, etc. was valid. Albany Land Co. v. Rickel [Ind.] 70 N. E. 158. Where broker was to receive his commis- sions from vendor, evidence held to show he was the vendor's agent. Gough v. Loomis [Iowa] 99 N. W. 295. A contract giving one the exclusive privilege of selling land Is a contract of agency, not an option. Faraday Coal & Coke Co. v. Owens [Ky.] 80 S. W. 1171. Where a daughter of a principal gave a broker a sole agency, evidence held to show he was such. Sylvester v. Johnson, 110 Tenn. 392, 75 S. W. 923. Contract agreeing to pay an agent a certain amount on sale of land to himself or anyone else was an agree- ment to pay commission. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. Contract con- strued that brokers were to have commis- sions on all fish sold out of an entire catch except 15 per cent thereof. Emerson v. Pa- cific Coast & Norway Packing Co. [Minn.] 100 N. W. 365. Where evidence held to sus- tain verdict that relation of principal and broker existed. Camp v. Minnesota Canning Co., 89 Minn. 252, 94 N. W. 687. Evidence held to show authority from owner for bro- ker to sell land. Steldl v. McClymonds, 90 Minn. 205, 95 N. W. 906. Evidence examined and held to sustain finding of the trial court. Gallagher v. Bell, 89 Minn. 291, 94 N. W. 867. 95. In reply to broker's letter asking if principal would sell, the latter wrote that he would accept $250, and this with the cor- respondence following held to amount to the giving of authority to broker. West v. Mills, 83 App. Dlv. 629, 82 N. T. S. 473. Employment held to be shown by corre- spondence. Steidl v. McClymonda, 90 Minn. 205, 95 N. W. 906. An owner employed a broker to procure a purchaser within 30 days; at the expiration he wrote making en- quiry and directing him to sell within the next 30 days. Held, the contract was ex- tended. Johnson Bros. v. Wright [Iowa] 99 N. W. 103. Correspondence leading up to employment admissible to show it. Veale v. Green [Mo. App.] 79 S. W. 731. Letter writ- ten by broker to an owner Inquiring price, and a reply stating it, is not on its face authority. Johnson v. Whalen, 13 Okl. 320, 74 P. 503. 06. Circumstances indicated that broker was working for purchaser. Downing v. Buck [Mich.] 98 N. W. 388. Held that where plaintiff acted for third person In making a sale of the latter's property to defendant. 536 BEOKEES § 1. 3 Cur. Law. rights." Authority will be presumed from long acquiescence in the acts of a broker.^' Whether the relation exists is a mixed question of law and fact.'" It can- not be proved by declarations of the agent/ nor by proof of general reputation.^ Acceptance of offer of employment may be shown by evidence of attempts to effect the transaction.' A statement to a broker that if he or any one else would procure a purchaser by a certain date, the land might go, constituted an ordinary revocable authority.* Assent by the principal to an assignment is an agreement to substitute the assignee as agent, "* or an assignment of the contract may be ratified.* Penal provisions in the contract are strictly construed.'' Authority to contract relative to real estate must be in writing;' but an agency to purchase real estate may be established by parol,' and a contract with reference to the sale of lands may be constituted of an employment to sell land for another." In Nebraska, the contract must be in writing subscribed by both parties, describing the land and setting forth the amount of compensation.^^ Correspondence is sufficient,^* whose promise was only to pay the price of the property sold no Inference could be drawn that there was an express or implied agreement on defendant's part to pay com- mission. Moses V. Beverly, 137 Ala. 473, 34 So. 825. Nothing in their dealings from which an owner could infer that a broker was acting for him. Downing v. Buck [Mich.] 98 N. W. 388. Evidence held insuffi- cient to show that a broker was employed to make a lease. Brady v. American Mach. & Foundry Co., 86 App. Div. 267, 83 N. T. S. «63. Where written contract read for the sale of mining property in Ures district and the actual sale of such property was in Arispe district, held, that agent was not en- titled to commissions. Wulff v. Lindsay [Ariz.]. 71 P. 963. Broker had authority to sell one of two named tugs. Purchaser se- cured by broker took neither, but without bad faith purchased a third tug from prin- cipal. Held, that broker was not entitled to compensation. Samuels v. Luckenbach, 205 Pa, 428, 54 A. 1091. 97. A mere volunteer acting without au- thority, who brings parties together, is not entitled to compensation for his services. Samuels v. Luckenbach, 205 Pa. 428, 54 A. 1091. Where broker offered reward to have borrowers brought to him, the fact that some third party sends a borrower to him, but fails to state that he is relying on re- ward, cannot authorize such person's recov- ering any commission. Van Vlissingen v. Manning, 105 111. App. 255. Where a prin- cipal denies the employment of a broker, evidence of the employment of other brokers is admissible. Hunn v. Ashton, 121 Iowa, 265, 96 N. W. 745. 98. After 60 years without repudiation of a deed made by an agent. Tarvin v. Walk- ers Creek Coal & Coke Co., 25 Ky. L. R. 2246, 80 S. W. 504. 99. Gough V. Loomls [Iowa] 99 N. W. 295. Where terms of employment and nature of services rendered were in dispute, error to direct verdict for commissions. Ryan v. Page [Iowa] 92 N. W. 768. It is error to dismiss case on ground that the relation of principal and broker did not exist, when the evidence tends to show that the principal had reasonable cause to believe that the broker was instrumental in bringing about the sale. lienninger v. Burch, 90 Minn. 43, 95 N. W. 678. Evidence held for the Jury as to whether a broker was authorized to sell. Father and son had an interest In the land; authority given by father. Phillips v. Ha- zen, 122 Iowa, 475, 98 N. W. 305. Evidence held for the Jury as to whether an attorney In fact of the owner executed and delivered to a broker a writing with the intention of authorizing him to sell land. Cody v. Dempsey, 86 App. Div. 336, 13 Ann. Cas. 322, 83 N. Y. S. 899. I. Eastland v. Maney [Tex. Civ. App.] 81 S. W. 674. Declarations thereof inadmissi- ble. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. a. Reputed to be the agent. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. 8. To sell the land. Veale v. Green [Mo. App.] 79 S. W. 731. Where a broker had been requested to list property and did noth- ing further until he notified the customer that he had found a purchaser, evidence held to show an employment. Sandefur v. Hlnes [Kan.] 76 P. 444. 4. Could be revoked before such date. Milligan V. Owen [Iowa] 98 N. W. 792. 5. Broker partnership dissolved. Albany Land Co. v. Rickel [Ind.] 70 N. B. 158. e. Accepting reports, proceeds of sales and executing papers to the assignee in his name. Albany Land Co. v. Rickel [Ind.] 70 N. E. 158 7. That owner could withdraw the land or raise the price on paying the broker two per cent on stipulated price. Tracy v. Ab- ney, 122 Iowa, 306, 98 N. W. 121. 8. Verbal promise by owner to carry out contract made by broker not so authorized is not binding. Kesner v. Miesch, 204 111. 320, 68 N. B. 406; Covey v. Henry [Neb.] 98 N. W. 434. Civ. Code, § 1624. Jamison v. Hyde, 141 Cal. 109, 74 P. 695. 9. Rathbun v. McLay [Conn.] 56 A. 611. 10. This would not be a contract for the sale of land. Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 So. 722. II. Comp. St. 1901, § 74, c. 73. Correspond- ence held insufficient, where letter accept- ing was not written until after the sale. Danielson v. Goebel [Neb.] 98 N. W. 819. 12. Comp. St. 1903, § 74, c. 73. Setting forth terms. David Bradlev v. Bower [Neb.] 99 N, W. 490. 3 Cur. Law. BEOKERS § 1. 537 and such a contract may be modified by parol as to such provisions as are not re- quired to be in writing.^* A writing signed by an attorney in fact is sufficient to relicTe the broker from the provisions of a statute making it a misdemeanor to ofiEer real estate for sale without written authority,^* but a memorandum was held insufficient/" and where such a statute applies to particular localities, it is uncpn- stitutional.^° That the sales are conducted by one partner of a firm of brokers is not a breach,^^ nor is the fact that an owner offers to sell to another during the continu- ance of an option/' or sells after appointing an exclusive agent.^' Brokers may be regulated by means of an annual tax and be required to make a sworn statement that all their orders were executed on their respective ex- changes.'"' Where a statute requires a broker to be licensed and imposes a penalty for a violation, a contract in violation thereof is not void.^^ An executor has power to employ a broker,"" or ratify an agreement by one assuming to act for him;"' but he cannot delegate discretion as to terms of the sale,"* and a president of a corporation who owns nearly all the stock and in whom is confided the general management of the business has no authority to contract to pay commissions for the sale of his own stock."" Double agency.^^ — If both parties are aware of the circumstances, there is no impropriety in a double agency;"^ but if not, the contract arranged thereby is void,"' 13. Terms of sale. David Bradley v. Bower [Neb.] 99 N. W. 491. 14. Pen. Code, § 640d (Laws 1901, o. 128). Cody V. Dempsey, 86 App. Dlv. 336, 13 Ann. Cas. 322, 83 N. T. S. 899. 15. Pencil memorandum, 'Troperty 76 Mangln Street; $9,000, no less," Insufficient compliance with Laws 1901, c. 128, § 640d, to authorize a sale at any price. Cohen v. Boccuzzi, 8fi N. T. S. 187. 18. Pen. Code, § 640 (Laws 1901, c. 128), applying to cities of first and second classes. Cody V. Dempsey, 86 App. Dlv. 335, 13 Ann. Cas. 322, 83 N. T. S. 899. Constitutional in first department. Charles V. Arthur, 84 N. T. S. 284. A criminal stat- ute, making it a misdemeanor for real estate broker to sell property without writ- ten authority, is a reasonable exercise of the police power of the state and does not In- fringe any property rights. Whiteley v. Terry, 83 App. Div. 197, 82 N. T. S. 89. 17. Selling town lots at a different town. Albany Land Co. v. Rlckel [Ind.] 70 N. B. 1B8. 18. Contingently on the failure of the option holder to comply with Its terms. Smith V. Lawrence, 98 Me. 92, 56 A. 455. 10. Not negativing the right of the prin- cipal to sell. Ingold v. Symonds [Iowa] 99 N. W. 713. Authority to sell land "until sold" does not create an exclusive agency. Revoked by sale by principal or another broker. Kidman v. Howard [S. D.] 99 N. W. 1104. Notification that if sale was made by a certain date, a reduced price would be accepted did not operate to give exclusive agency until such date. The property had been listed with several brokers. White v. Benton, 121 Iowa, 354, 96 N. W. 876. 20. Broker applying for license refused to make the sworn statement. Belding v. Rec- tor, 71 Ark. 463, 76 S. "W. 1056. Comp. Laws, S 11572, providing that when an agent mis- appropriates money delivered to him with written Instructions as to its use, he shall be guilty of a felony, includes brokers. Peo- ple V. Karate [Mich.] 93 N. W. 1081. 21. Penalty Is all that is required. Ober V. Stephens [W. Va.] 46 S. B. 195. 22. To find purchaser for land of the estate, also to contract to pay him a speci- fied commission. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. 23. Dyer v. Winston [Tex. Civ. App.] 77 S. W. 227. 24. As to commission of subagent. Dyer V. Winston [Tex. Civ. App.] 77 S. W. 227. 25. Demarest v. Spiral Riveted Tube Co. [N. J. Law] 58 A. 161. 26. See 1 Curr. L. 362. 27. Brokers had regular customers for whom they bought and others for whom they sold. Lincoln v. Levi Cotton Mills Co. [C. C. A.] 128 P. 865. A broker acting In a double capacity without the knowledge of the parties cannot recover commissions (Col- lins V. MoClurg, 1 Colo. App. 348; Cottom v. Holliday, 59 111. 176; Rice v. Wood. 113 Mass. 133; Murray v. Beard, 102 N. T. 508, 7 N. B. 553; Hall v. Gambril, 92 F. 32), unless the party negotiating the transaction is not in the occupation of an agent (Lyle v. Univer- sity Land & Inv. Co. [Tex. Civ. App.] 30 S. W, 723), or his only business is to bring the parties together (Atkinson v. Pack, 114 N. C. 597, 19 N. B. 628; Pape v. Wright, 116 Ind. 502, 19 N. B. 459; Barry v. Schmidt, 57 Wis. 172, 15 N. W. 24, and note to Leathers v. Can- fleld [Mich.] 45 L. R. A. 33; Brackenridge v. Payne [Tex.] 43 L. R. A. 593, and Lunney V. Healey [Neb.] 44 L. R. A. 593, where the cases on the rights to compensation are collected and discussed; Red Cypress Lum- ber Co. V. Perry, 118 Ga. 876, 45 S. B. 674, citing other cases). Uncontradicted evidence showed that a seller had knowledge of the fact. Darrow Inv. Co. v. Breyman, 32 Wash. 234, 73 P. 363. 28. Seller had no knowledge of his agency for purchaser. McClure v. UUman, 102 Mo. App. 697, 77 S. W. 325. 538 BEOKEKS § 2. 3 Cur. Law. and the broker cannot recover his commissions." That a broker advanced money to the purchaser does not make him his agent.*" The burden is on the principal to show that there was a double agency, and such fact was not known to him." A contract made thereunder is not ratified by a retention of the money paid, when its source is unknown.'^ § 2. Mutual rights, duties, and liabilities.^^ — The broker may be discharged at will,** unless done for the sole purpose of defeating his right to commissions," and in the absence of custom the rights of the broker end with his discharge.'* Where stocks are actually bought and sold there is no wagering contract.*' It is the duty of a stock broker when so ordered to act promptly.** Mere silence cannot be construed as an order to brokers to sell stock held on a margin.*" Where brokers sell stock on margin the legal title is in the vendee.*" All demands by a stock broker on his customer for margins must be specific, definite, and cer- tain, and the customer is entitled to a reasonable time within which to comply,*^ and if he does not comply the broker may take steps to protect himself.*" The failure of a purchaser to put up further margins where notified to do so does not relieve from the duty of giving notice of time and place of sale by a pledgee.** Where a broker, after breach of the contract between the customers, refuses to dis- close to the one who the other is he is personally liable.** In the absence of eus- ao. Rutledge & K. Realty Co. v. Neely, 97 Mo. 384, 73 S. W. 359. 30. Agent for seller advanoea money so purchaser could buy. Goodson v. Embleton [Mo. App.] 80 S. W. 22. 31. Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674. 32. Several purchasers. McClure v. UU- man, 102 Mo. App. 697, 77 S. "W. 325. 33. See 1 Curr. L.. 362. 34. Employment does not give broker aily reasonable time to procure tenant or pur- chaser. Cadigan v. Crabtree [Mass.] 70 N. E. 1033. The principal has a right to with- draw land from the market at any time be- fore acceptance of offer. Flynn v. Jordal [Iowa] 100 N. W. 326. 35. Camp v. Minnesota Canning Co., 89 Minn. 252, 94 N. W. 687. "Where principal sold land to purchaser at a price in violation of his agreement with broker. Baker v. Murphy, 105 111. App. 151. Revoked after owner had been put in communication ^vith the purchaser. Gibson v. Hunt [Iowa] 94 N. W. 277. 36. Two months after authority was re- voked, broker effected a lease. Cadigan v. Crabtree [Mass.] 70 N. B. 1033. A notice of sale sent by the broker by telegraph must be received prior to the signing of another contract. Owner had listed with other brokers and reserved right to sell. Johnson Bros. v. Wright [Iowa] 99 N. W. 103. 37. Stat. 1890, p. 479, though certificates were not delivered to the purchaser. Post v. Leland, 184 Mass. 601, 69 N. B. 361. On the question whether or not a certain con- tract is void as a wager, the burden of proof Is on him who alleges it. Boyle v. Henning. 121 F. 376. 38. Note: A broker may be directed to sell at any time and he must obey or he Is personally liable for any resulting loss. Al- len V. McConlhe, 124 N. Y. 342, 26 N. B, 812; Johnston v. Miller, 67 Ark. 172, 53 S. W. 1052. What Is a reasonable time within which to sell Is a question of law (Davis v. Gwynne, 57 N. T. 676), and if he has a.greed not to sell until a certain time he may not, though margins held have run out (Morgan v. Jau- don, 40 How. Pr. [N. T.] 366; Rogers v. Wiley, 131 N. T. 527, 30 N. E. 582), and in any event lie has no right to sell until he has made a demand for more margins (Gruman v. Smith, 81 N. T. 25; Stenton v. Jerome, 54 N. Y. 480, and note to Van Dusen-Harrington Co. v. Jungeblut, 74 Am. St. R. 463). Purchase; re- port the transaction; receive the stock and have the certificates ready for delivery whenever the purchaser shall pay for them. Tuell V. Paine, 39 Misc. 712, 80 N. Y. S. 956. Question whether certain telegrams passing between principal and broker amounted to authority to buy certain stock held question for the Jury. Boyle v. Henning, 121 F. 376. 39. Brokers v/rote to a customer asking him to put up margins; he did not reply and some days thereafter they sold. He brings action to recover for the highest price ob- tainable the day after the letter requesting margins. Lynch v. SImmonds, 87 N. Y. S. 420. No error for court to read from a prior opinion a statement of law relative to right to recover margins under Stat. 1890, p. 479. Post V. Leland, 184 Mass. 601, 69 N. E. 361. 40. Brokers are pledgees for the repay- ment of advances made by them. Rothschild V. Allen, 90 App. Dlv. 233, 86 N. Y. S. 42. A broker is not relieved from his duty to deliver stock sold on margin by the fact that one to whom he pledged it sold it on the broker's suspension of business. Id. Failure of a broker to deliver to a customer stock sold on margin is a conversion. Id. 41. No demand is specific uriless It men- tions a particular amount of money, or states facts from which a particular amount of money can be ascertained. Boyle v. Hen- ning, 121 P. 376. 42. Purchase stock to replace that bor- rowed to cover a short sale for his prin- cipal. Boyle V. Henning, 121 P. 376. 43. Rothschild V. Allen, 90 App. Div. 233, 86 N. Y. S. 42. 44. Brokers sold certain yarn for a cus- 3 Cur. Law. BEOKERS § 2. 539 torn, brokers are not liable if they fail to require a lender to put up margins to se- cure the borrower against a decline.*" Acting in good faith and with full knowledge of the principal the broker may purchase.*' The fact that a broker made a sale to himself of a certain block of stock does not invalidate sales by him in good faith to other parties,*^ and where prop- erty is to be sold at a fixed price it is no defense that the broker was interested as a purchaser.*' General customs of brokers,*" or rules of a stock exchange can- not be received against a client of a broker who is ignorant of them/" on the ground that they constitute a custom of the business. "^ A broker is entitled to a deed running to himself when it is shown that it is for his security in advancing money to make the purchase."^ His bondsmen are liable for a breach of his contract." Where brokers purchase stock on false orders of an employee they may treat bim as principal."* The admissibility of evidence to show rights is treated in the note."^ Instruci'jons.^'^ — A charge that if the broker had cause to believe that a cus- tomer did not intend that he should purchase stocks was proper."^ Scope of authority.^^ — Authority to make a loan is not authority to collect either principal or interest,"' nor is authority to collect rents authority to procure a purchaser,"" nor authority to sell at a certain price authority to agree to deferred payments."^ A broker cannot accept a check in payment."^ If he is authorized to accept earnest money he cannot accept foreign coin."* Authority to sell oil is au- thority to stipulate how much shall be put ia the buyer's tanks."* Where a broker does not reside where the land to be sold ia situated he is presumed to have authority to appoint a subagent."° Depositing money subject to the check of a broker after tomer which the purchaser refused to ac- cept. Lincoln v. Levi Cotton Mills Co. [C. C. A.] 128 F. 865. "Where a broker notifies his customer that the purchaser has refused to carry out the contract there is an uncon- ditional breach. Id. The measure of dam- ages is the profit he would have received if the buyer had fulfilled his contract, less the profit received from a sale to others. Id. 45. Borrowed to cover a short sale. Mor- ris V. Jamieson. 205 111. 87, 68 N. B. 742. Evidence held insufficient to establish such a custom. Id. 4S. After purchase tract, of land was found to be larger than principal believed. He could not rescind. Teal v. McKnight, 110 La. 256, 34 So. 434. 47. Evans v. Wrenn, 93 App. Dlv. 346, 88 N. T. S. 617. 4S. Selover v. Isle Harbor Land Co. [Minn.] 98 N. W. 344. 49. Employ subagents In sale of mining property. Chilberg v. Lyng [C. C. A.] 128 F. 899. 50. In an action to recover money de- posited as margins. Newman v. Lee, 87 App. Div. 116, 84 N. T. S. 106. 51. Newman v. Lee, 87 App. Div. 116, 84 N. T. S. 106. 52. Goodson v. Bmbleton [Mo. App.] 80 S. W. 22. 53. Where a broker failed to remit pro- ceeds of sales to his principals. Merkley & Son V. U. S. Fidelity & Guaranty Co., 24 Ky. L. R. 2308, 73 S. W. 1126. 54. Collect the amount from his estate in bankruptcy. In re Filer, 125 F. 261. 65. Under Stat. 1890, p. 479, providing for a recovery of money paid for margins, evi- dence that a customer did not understand what a notice that stock had been bought on his account meant was Inadmissible. Post V. Leland, 184 Mass. 601, 69 N. B. 361. Letters written by brokers to customer's wife also Inadmissible. Refusal to allow cross-examination as to other transactions no error. Not referred to on direct exami- nation. Bertelson v. Hoffman [Wash.] 77 P. 801. 56. See 1 Curr. L. 362. 57. No error to refuse to give a requested instruction in the language submitted [Stat. 1890, p. 479]. Post V. Lelapd, 184 Mass. 601, 68 N. E. 361. 58. See 1 Curr. L. 362. 69. Where principal requested the broker to notify the debtor when interest was due, evidence held insuflScient to show authority to collect. Ortmeier v. Ivory, 208 111. 577, 70 N. E. 665. 60. Action brought for commissions. Hunn V. Ashton, 121 Iowa, 265, 96 N. W. 745. 61. Staten v. Hammer, 121 Iowa, 499, 96 N. W. 964; Edwards v. Davidson [Tex. Civ. App.] 79 S. W. 48. In answer to a request for margins a customer telegraphed, "I will have to let my stock go." Held an author- ization to sell, not inconsistent, however, until notice of Its execution, with other or- ders to a subagent who executed the orders. Evans v. Wrenn, 93 App. Dlv. 346, 88 N. Y. S. 617. 62. Purchase price of land. Ormsby v. Gra- ham [Iowa] 98 N. W. 724. 63. Mexican money. Edwards v. David- son [Tex. Civ. App.] 79 S. W. 48. 64. Sherman OH & Cotton Co. v. Dallas O. & R. Co. [Tex. Civ. App.] 77 S. W. 961. 05. Eastland v. Maney [Tex. Civ. App.] 81 S. W. 574. 540 BEOKERS § a. 3 Cur. Law. the principal has approved the application for a loan does not give a broker au- thority t(5 make a loan.'" Ratification.'^'' — An agency is ratified by adopting the contract made by the agent/* and an execution of a contract of exchange by a wife is a ratification by her of the broker's acts of procuring an exchange authorized by her husband." One joint owner may ratify the contract between his co-owner and the broker by assisting at the sale to the custdmer procured.'" There can be no ratification with- out full knowledge of the facts,'^ and an owner's execution of a deed in ignorance of the terms made by an agent is not a ratification.'" Advancement in value is ground for refusal to ratify an unauthorized contract." Where a purchaser from a broker asserts ratification he must prove it.'* Revocation of authority'"^ to collect rents is a revocation of the authority to procure a purchaser.'" Authority to sell is revoked by a sale by the owner," es- pecially where he reserves the right to sell," or if the contract does not negative such right," and the manner in which it is accomplished is immaterial.'" Author- ity to sell is not revoked by his giving an option,^^ but is by notice of the exercise of an option.'* A contract limited to a definite period terminates at the expiration thereof." Damages.^* — An agency coupled with an interest is revoked subject to liability for damages suffered by reason of its termination contrary to the terms of the con- tract creating it.'" If the principal refuses to carry out his contract the broker may rescind and recover on a quantum meruit." On breach of contract between principal and broker the measure of damages is the loss of profits as shown by the evidence excluding uncertain and conjectural profits," and such damages may be 66. Brokers exacted commission making note usurious. Barksdale v. Security Inv. Co. [Ga.] 47 S. B. 943. 67. See 1 Curr. L. 363. 68. An owner Intrusted land to her brother to sell; he employed a broker. Hurt V. Jones [Mo, App.] 79 S. "W. 486. Where a principal completed a sale after he knew It was procured by brokers and was notified that they would claim their commission, evidence held to show a ratification. Decker V. ■Wlddlcomb [Mich.] 100 N. "W. 573. 69. Charles V. Cook, 88 App. Dlv. 81, 84 N. T. S. 867. 70. Assisting In getting title papers In order, etc. MoKInnon v. Hope, 118 Ga. 462, 45 S. B. 413. 71. Judgment against a principal com- pelling him to repay the amount of a first payment under an unauthorized contract to the agent Insufllcient to show a ratification, Fleming v. Burke, 122 Iowa, 433, 98 N. "W. 288 72. Broker had agreed to deferred pay- ments. Edwards v. Davidson [Tex. Civ. App.] 79 S. W. 48. 73. Staten v. Hammer, 121 Iowa, 499, 96 N. W. 964. 74. Edwards v. Davidson [Tex. Civ. App.] 79 S. W. 48. 75. See 1 Curr. L. 367. 76. Even If the first authorized the sec- ond. Hunn V. Ashton, 121 Iowa, 265, 96 N. W. 745. 77. Notice unnecessary. Wallace v. Fl- eone [Mo. App.] 81 S. W. 492. 78. White V. Benton, 121 Iowa, 354, 96 N W 876; Johnson Bros. v. Wright [Iowa] 99 N. W. 103. After listing property the owner withdrew it from the market, but stated that he would offer It for sale after he made some changes. Held, broker's au- thority was revoked. George B. Loving Co. V. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. Principal had a right to revoke it. Id. 79. Broker had exclusive agency to pro- cure loan. Mott v. Ferguson [Minn.] 99 N. W. 804. Where one notified the brokers that if a sale was consummated by a certain date a reduced price would be accepted, it did not suspend his right to sell, though the brokers notified him that they would make a sale by that date. White v. Benton, 121 Iowa, 354, 96 N. W. 876. 80. After giving agency to procure a loan to cancel a mortgage the principal secured a renewal. Mott v. Ferguson [Minn.] 99 N. W. 804. 81. Wallace v. Plgone [Mo. App.] 81 S. W. 492. 82. Faraday Coal & Coke Co. v. Owens [Ky.] 80 S. W. 1171. 83. For sale made after that time no com- mission can be recovered. La Force v. Wash. University [Mo. App.] 81 S. W. 209. Evidence held not to show an Implied re- newal. Id. 84. See 1 Curr. L. 363. 85. Mllllgan v. Owen [Iowa] 98 N. W. 792. 86. To pay a share of profits for obtaining a partner. Boyd v. Vale, 84 App. Dlv. 414, 82 N. T. S. 932. 87. Not a matter for the discretion of the jury. Emerson v. Pac. Coast & N. Packing Co. [Minn.] 100 N. W. 365. Award for breach of contract to sell flsh not sustained by evi- dence. Id. That a broker could have pro- cured a purchaser after the revocation of hia 3 Cut. Law. BEOKEES § 3. 541 recovered by an accounting in equity.*' Where an agent fails to show that he could have made a sale, nominal damages only can be recovered for a revocation of his authority." Eefusal to enter judgment for nominal damages is not re- versible error."" Bemedies and procedure.*^ — An action on the common counts cannot be main- tained for a breach of duty."* The defendant may be entitled to a biU of particu- lars."" § 3. Bights and liabilities as to third persons.** — ^Where brokers, at the in- stance of a customer, purchase stock which they hold as security, its sale within four months prior to his bankruptcy did not create a preference."" Broker's liability to third persons. — A broker is individually liable for unau- thorized acts,'" or for false representations without regard to the liability of his principal."'' It is immaterial whether his representations were intentionally false."' When sued by a third person he may show that it was customary to use a different form of words when contracting in his own name than when contracting subject to confirmation."" A real estate broker cannot charge a prospective pur- chaser with the expenses of a trip and his services in showing him the property.* A principal is liable to third persons for acts of the broker within the apparent scope of his authority," or for his negligence,' but not for acts beyond it,* unless authority is admissible on an Issue of dam- ages for revocation. Milligan v. Owen [Iowa] 98 N. "W. 792. 88. Tuell V. Paine, 39 Misc. 712, 80 N. T. S. 966. 89. Milllgan v. Owen [Iowa] 98 N. "W. 792. 90. For revocation of authority. Mllllgan V. Owen [Iowa] 98 N. W. 792. 01. See 1 Curr. L. 364. 99. Failure to require a lender of stock to put up margins. Morris v. Jamieson, 205 111. 87, 68 N. B. 742. If it amounts, to a breach of contract and not a tort. Id. 93. As to nature of agreements, whether oral or written, date, and whether made directly or through an agent. Treadwell v. Greene, 87 App. Div. 289, 84 N. T. S. 354. 94. See 1 Curr. L. 364. 95. In re FUer, 125 F. 261. 96. Absolute sale of tomatoes. McKown V. Gettys, 25 Ky. L. R. 2070, 80 S. "W. 169. President of corporation employing a broker. Groeltz v. Armstrong [Iowa] 99 N. W. 128. It was a Question for the jury whether a president of a corporation Induced a broker to believe that he had authority to bind the corporation. Id. A broker la liable to a corporation for selling its bonds on forged authority. Treasurer of a corporation, on forged authority, had bonds held by the com- pany transferred to his name and he took them to a broker to sell. Jennie Cia.rkson Home for Children v. Chesapeake & O. R. Co., 41 Misc. 214, 83 N. T. S. 913. And the buyer may sue on the contract. McKown v. Gettys, 25 Ky. L. R. 2070, 80 S. W. 169. 97. A. acting as agent for B. to sell 120 acres of land Induced C. to enter into a con- tract for sale of such land, on representa- tions that title was clear. Held that A. was liable in damages. Riley v. Bell, 120 Iowa, 618, 95 N. "W. 170. 98. If the other party is not chargeable with knowledge of his want of authority. Groeltz v. Armstrong [Iowa] 99 N. W. 128. 99. McKown v. Gettys, 25 Ky. L. R. 2070, 80 S. W. 169. 1. Hale V. Knapp [Mich.] 96 N. W. 1060. Where one item in an account against a prospective purchaser was illegal, the fact may be considered in determining the status of the other items. Id. 2. Broker had authority to sell oil and plaintiff bought it. Set up that broker did not have authority to sell that grade of oil. Southern Cotton OH Co. v. Shreveport Cot- ton Oil Co., Ill La. 387, 35 So. 610. In a contract for the sale of tanks of oil to con- tain "about" 136 barrels, the word "about" would not excuse the seller from filling them to their capacity. Sherman Oil & Cotton Co. v. Dallas O. & R. Co. [Tex. Civ. App.] 77 S. W. 961. Actual value of the property may not be shown where the disparity between it and the price received is not so great as to show improbability of the contract being made. Bertelson v. Hoffman [Wash.] 77 P. 801. Specific performance will lie against principal for transfer of real estate where authorized broker sells land to a third party. West v. Mills, 83 App. Div. 629, 82 N. T. S. 473. A purchaser has acquired the property with regard to the seller as soon as there exists an agreement for the object, and the price thereof, although the object has not yet been delivered nor the price paid. Teal V. McKnight, 110 La. 256, 34 So. 434. 3. Broker employed to obtain tenants and authorized to conduct them through the premises. Customers sustained an injury while examining premises. Boyd v. U. S. Mortg. & Trust Co., 94 App. Div. 413, 88 N. T. S. 289. 4. In an action on the common counts to recover money paid by a purchaser to an agent, evidence -held not to show authority In him to collect, therefore principal was not liable. Rohde v. Marquis [Mich.] 97 N. W. 53. Broker had authority to sell for 60 days. Time of payment was extended beyond such time. Contract could not be enforced. Smith V. McCann. 205 Pa. 57, 54 A. 498. Where a purchaser buys on terms which he knows are beyond the scope of the authority of the broker to make, he cannot enforce the con- 34:2 BEOKBES § 4. 3 Cur. Law. ratified by Hm/ nor by a contract for a sale of real estate made by an agent indi- vidually and under his own seal.* If the acceptance is subject to confirmation by the seller no contract is created until confirmation/ and a demand for security by the intending purchaser is not a waiver of the requirement of confirmation.' The principal need not set up excess of authority in an action for specific per- formance.' Knowledge of a broker is not knowledge of his principal.^" Where a broker's contract was silent as to the capacity of tank cars in which oil was to be delivered, an oral agreement to this effect may be shown.^^ § 4. Compensation and lien}^ — If he procures a customer ready and able to carry out the transaction according to the terms submitted to him by his principal,^^ and the burden is on him to prove his readiness and ability/* he is entitled to his commissions/' though the transaction is never consummated/® and especially so where a binding contract is entered into/^ but where a contract was not entered into he must have procured a valid obligation and tendered it, or have brought the par- ties together so that a contract might have been entered into had his principal so desired.^* tract. Fleming v. Burke [Iowa] 98 N. W. 288. Sale after term of employment ex- pired. Smith V. McCann, 205 Pa. 57, 54 A. 49$. 5. Where a contract to purchase, signed by the proposed purchaser, is presented to the vendor to decide whether the purchaser is acceptable, and he then executes the con- tract or ratifies the unauthorized act of his agent, It Is binding upon him. Plynn v. Jordal [Iowa] 100 N. W. 326. Unauthorized contract held ratified by correspondence. Sleeper v. Murphy, 120 Iowa, 132, 94 N. W. 275. 9. Blanchard v. Archer, 87 N. Y. S. 665. 7. By local custom both buyer and seller confirmed each other in writing. Johnston V. Fairmont IMills [C. C. A.] 129 F. 74. 8. Before confirmation the seller became insolvent. Johnston v. Fairmont Mills [C. C. A.] 129 F. 74. O. Staten v. Hammer, 121 Iowa, 499, 96 N. W. 964. 10. Insurance broker had knowledge of facta which would render the policy void when made. Held the conditions were not not waived. McGrath v. Home Ins. Co., 88 App. Div. 163, 84 N. T. S. 374. 11 Sherman Oil & Cotton Co. v. Dallas O. & R. Co. [Tex. Civ. App.] 77 S. W. 961. Letters written between broker and seller were admissible to show agreement as to capacity of tanks. Id. An answer by a broker that he had an understanding with the seller that cars of oil sold should con- tain 135 barrels is a conclusion. Id. An .answer as to custom of filling oil tanks is not responsive to a Question as to the capacity of the tanks. Id. 12. See 1 Curr. L. 365. 13 VS^here an owner represented to the broker that a let was 76 feet deep, and pur- chaser refused to .nke It because it proved to be but 66 feet, no commissions could be recovered. Hausman V. Herdtfelder, 81 App, Div 46 80 N. T. S. 1039. Where sale was completed by an executor on dilferent terms than proposed by testator to tl-e broker. Triokey v. Crowe [Ariz.] 71 P. 96o. Where deal was declared off simply because the owner insisted that purchaser should pay taxes accruing during the time necessary for the latter to look up title, broker is not entitled to his commissions. Sheinhouse v. Klueppel, 80 App. Div. 445, 81 N. Y. S. 116. Facts properly submitted on this proposition. Brockenbrow v. Stafford [Tex. Civ. App.] 76 S. W. 576. Would not as to payment in sale of mining property. Brown v. Keegan [Colo.] 76 P. 1056. Where after considerable bickering between seller and purchaser the seller had to purchase an adjoining lot and throw it in, no commission could be recov- ered. Tooker v. liuckworth [Mo. App.] 80 S. W. 963. Purchaser rejected a deed because description of property was type written. Park V. Hogle [Iowa] 99 N. W. 185. The same rule applies to the holder of an option. Smith V. Lawrence, 98 Me. 92, 66 A. 455. If a principal is doubtful of the proposed purchaser's ability to carry out the con- tract he may accept conditionally. That he proves able. Flynn v. Jordal [Iowa] 100 N. W. 326. 14. Instruction presuming that purchaser was able was erroneous. Colburn v. Sey- mour [Colo.] 76 P. 1058. A contract signed by the purcliaser is prima facie evidence of his willingness to buy, but no evidence of his ability to perform its conditions. Flynn V. Jordal [Iowa] 100 N. W. 326. 15. Error in the contract, if the owner does not refuse to sell on account thereof and the purchaser stands ready to correct it, is no ground for thereafter refusing to sell. Johnson Bros. v. Wright [Iowa] 99 N. W. 103. It is immaterial whether there was a consideration to support the option when the intending purchaser is willing to accept the offer. W^ilson v. Clark [Tex. Civ. App.] 79 S. W. 649. 10. Lewis V. Simpson [Iowa] 98 N. W. 508; Collins V. Padden, 120 Iowa, 381, 94 N. W. 905. And that the purchaser afterwards fails to carry out Iiis agreement makes no difference. Seabury v. Fidelity Ins., T. & S. D. Co., 205 Pa. 234, 54 A. 898. Broker found a party able and willing to exchange after first agreeing to make tlie deal. His cus- tomer backed out. He was entitled to com- missions. Suydam v. Healy, 87 N. Y. S. 669. 17. Though the contract is never carried 3 Cur. Law. BEOKEES § 4. 543 A slight modification of the terms will not defeat his right." All his expendi- tures are at his own risk, to be recouped only in case of success.^" If his endeavors have been the procuring cause of the transaction,^^ the bur- den of which is on him to show,"'' he is entitled to his commissions,"' even though out Flynn v. Jordal [Iowa] 100 N. W. 326. Though the third party subsequently refuses to carry It out. Charles v. Cook, 88 App. Div. 81, 84 N. T. S. 867. 18. Flynn \. Jordal [Iowa] 100 N. W. 326. If a principal accepts a proposed purchaser conditionally, or If the purchaser withdraws his offer before acceptance, the broker is not entitled to commissions, unless it is shown that the purchaser was able, ready and willing to purchase at the time of tender to the principal. Id. A broker, who in ac- cordance with his contract, brings the pur- chaser and principal together, is entitled to his compensation when these latter parties arrive at a definite understanding, in rela- tion to such contract, acceptable to both. Seabury v. Fidelity I., T. & S. D. Co., 205 Pa. 234, 54 A. 898. 19. Where broker was authorized to sell for $4,500, and the owner sold to the pur- chaser procured for $4,300; broker was en- titled to commission. Smith v. Truitt [Mo. App.] 80 S. W. 686. Broker procured pur- chaser, for the sale of an automobile, who was ready and willing to carry out his con- tract with exception of first payment. This being waived by principal, held that broker was entitled to his commission. Veeder v. Seaton, 85 App. Div. 196, 83 N. T. S. 159. Where a broker was employed to rent one floor of a building and the Owner .availed himself of his services in renting another, he was entitled to commission. Snydam v. Vogel, 84 N. T. S. 915. Broker was authorized to sell tract of land for $70,000 cash. Purchaser finally refused to pay all cash, but did make deal whereby he paid part cash and secured the rest up to $70,000. Court left it for jury to say wheth- er principal had waived his right to insist on provision for cash as against broker. f?. B. Crowley Co. v. Myers. 69 N. J. Law, 24 5. 55 A. 305. Broker acting for principal secured a loan of $20,000, his commission to be a cert.iin per cent of amount, at certain times, remaining unpaid. Principal borrow- ed $5,000 more and then cancelled both these notes and gave a new note for $25,000. Held rhat broker could still recover his commis- sion. Clay V. Lakenan, 101 Mo. App. 563, 74 S. W. 391. Where price finally agreed upon is less than that at which the broker was instructed to sell, he Is entitled to commis- sion. Martin v. Fegan. 88 N. T. S. 472. Mod- ified and carried out. Broker had waived his right to commissions if the sale was not consummated. Cody v. Dempsey, 86 App. Div. 335, 13 Ann. Cas. 322, 83 N. T. S. 899. His right to commission is not alfectod by a change in an agreement relative to the pur- chase of other interests. Good v. Smith [Or.] 76 P. 354. 20. Smith V. Lawrence. 98 Me. 92, 56 A. 455. Procuring an abstract to be extended to date. Sale never consummated. Park v. Ho^e [Iowa] 99 N. W. 185. 21. That a broker did not inform his prin- cipal before the sale that a purchaser was his customer was not controlling as to whether he was the procuring cause. Met- calfe v. Gordon, 86 App. Div. 368, 83 N. Y. S. 808. A broker who mentions parties to prin- cipal saying that they are his customers, but who does not see the one who buys the property until after the sale, is not entitled to commission. Wliiteley v. Terry, 83 App. Div. 197, 82 N. T. S. 89. Purchaser was not able to buy on the terms of owner, Har- mon V. Enrlght [Mo. App.] 81 S. W. 1180. Evidence Iield insufficient to show that the owner agreed to find a lessee for the pur- chaser and guarantee payment of rent. Brokers recommended a customer with whom they, the brokers, could not deal. Transac- tion was arranged with this party subse- quently, by another broker. The first bro- Icer was not entitled to commissions. Samp- son v. Ottinger. 87 N. Y. S. 796. Where a customer asked a- broker about a certain farm, and the broker saw the owner, but his authority was subsequently revoked and a sale made by owner the broker was not the procuring cause. McCrory v. Kellogg [Mo. App.] 81 S. W. 465. Evidence of correspond- ence held insufilcient to show that a sale was effected through the broker's agency. Hunn V. Ashton, 121 Iowa, 266, 96 N. W. 745. Evidence held to sho^v an intervening cause. Studer v. Byson [Minn.] 100 N. W. 90. An instruction that principal would be liable for commissions where he sold the land him- self, and there was nothing in the contract igainst such right, held error. Evans v. Gay [Tex. Civ. App.] 74 S. W. 575. 22. Client asserted that deal was carried through by another broker. Schatzberg v. Groswirth, 84 N. Y. S. 259. On conflictftig evidence as to whether a broker was the procuring cause, the question was for the jury. Von Tobel v. Stetson & Post Mill Co.. 32 Wash. 683, 73 P. 788. As to whether cor- respondence of broker was the procuring cause of a sale of land, evidence held for jury. Donovan v. Weed, 86 App. Div. 630, 83 N. Y. S. 682. 23. Where a broker introduced a probable customer who subsequently became a pur- chaser, he was the procuring cause. Mar- tin V. Fegan, 88 N. Y. S. 472. Though at the time the agent solicited the purchaser to buy he was not able. Marlatt v. Elliott [Kan.] 77 P. 104. Proper to so instruct. .Taeger v. Glover, 89 Minn, 490, 95 N. W. 311. A verdict for plaintiff in an action for com- missions as a broker involving the ques- tion of his employment by defendants and his being the procuring cause of the sale held not against the weight of evidence. Abraham v. Burstein, 8? App. Div. 631, 81 N. Y. S. 937, Where broker toolt party of landseekers to view the premises and one bought. White v, Collins, 90 Minn. 165, 95 N. W. 765, Broker procured purchaser to buy land but the price being too high, pur- chaser .sent Ills own agent to principal and succeeded in buying the land for $1,000 less. Held, that broker v.'as entitled to his com- mission. McCormack v. Henderson, 100 Mo. App. 647, 75 S. W. 171. Though he procures 544 BROKERS § 4. 3 Cur. Law. the transaction was not completed until after the termination of his authority;^* but he is not entitled to commissions for a sale made to his customer after his dis- charge,'* nor for a sale under a revoked contract of agency.'" He must do some- thing more than get authority to sell,*' though he need not conduct the transac- tion to a final conclusion,'' and he is not entitled to commissions for imsuccessful efforts.'* The performance of the contract is a prerequisite to the right to commis- sions,'" but negotiating a conditional sale is sufBcient,'^ and he may be entitled to recover on the quantum meruit for part performance.*' hla purchasers through the assistance of other ag'ents. Henninger v. Burch, 90 Minn. 43, 96 N. W. 578. Correspondence held to show that broker was procuring cause. Steldl V, McClynionds, 90 Minn. 205, 95 N. W. 906. Where brokers advertised the property and prepared for Us sale at auction, but the owner sold It at private sale the day before the auction. Donald v. Lawson, 87 N. Y. S. 485. Evidence held to show that one had by correspondence, etc., procured a pur- chaser. Sandefur v. Hlnes [Kan.] 76 P. 444. Evidence held to show that a broker had procured a purchaser and was entitled to a five per cent commission, though there had been another settlement. Summers v. Sum- mers [Ky.] 80 S. W. 1154. Where a prin- cipal stated to a broker after the sale that he was entitled to his commissions, evidence held to show that he was the procuring cause of the sale and was not limited to pro- curing a purchaser at a certain price. Jlet- calfe V. Gordon, 86 App. Div. 368, 83 N. T. S. 808. Where one purchased directly from owner, evidence held to show that broker was procuring cause. Veale v. Green [Mo. App.] 79 S. W. 731. Evidence held to show a broker entitled to commissions for sale of leasehold. Steer v. Dwyer [Mo. App.] 79 S. W. 738. Where a buyer's attention was called to the property by an advertisement of a broker. Kiernan v. Bloom, 86 N. T. S. 899. "If the property sold is brought to the attention of the purchaser by the broker, and the principal carries on the negotiations himself or agrees to an exchange Instead of sale, or allows the purchaser a certain time to agree to his terms, and before the expiration of the time allowed, sells to an- other, the broker Is entitled to his commis- sions." Showaker v. Kelly, 21 Pa. Super. Ct. 390. Evidence held to show that an agreed compensation was $650 Instead of $150. Cuperman v. Stern, 88 N. T. S. 147. 24. Jaeger v. Glover, 89 Minn. 490, 95 N. W. 311; Crowley Co. v. Myers, 69 N. J. Daw, 245, 55 A. 305. 25. Sale made to a customer with whom the broker unsuccessfully negotiated. Leonard v. Bldredge, 184 Mass. 594, 69 N. B. 337. A sale by the owner to one with whom a broker ha» negotiated without au- thority does not entitle him to commission. Negotiated after his authority had been re^ voked George B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330. 75 S. W. 1095. Con- versation between broker and purchaser sub- seqvent to revocation inadmissible. Id. 26. Evidence held to show a written con- tract had been superseded by a new oral contract. Kidman v. Garrison [Iowa] 97 N. W. 1078. 27. Sale was negotiated by the owner. Scherer v. Colwell, 87 N. Y. S. 490. 28. Marlatt v. Elliott [Kan.] 77 P. 104. 29. Where a sale was consummated by the principal two months after negotiations by the broker with the purchaser, evidence held to show^ that the broker was not the procuring cause. Phinney v. Chesebro, 87 App. Dlv. 409, 84 N. Y. S. 449. 30. Not error to so instruct where there was no proof from which value of services outside the special contract could be found chargeable. Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 So. 722. Instructions to a real estate broker to list lands for sale at $40 per acre, $1,500 to $2,000 cash and the balance in annual payments of $600, with in- terest payable annually, the crop of the cur- rent year to be reserved to the vendor, are not fulfilled by carrying out agreement with exceptions of interest — postponed 9% months, notes payable on or before date and no crop reservation. Sleeper v. Murphy, 120 Iowa, 132, 94 N. W. 275. Purchaser default- ed. Lassen v. Bayllss [C. C. A.] 125 P. 744. One brought the parties together but no terms were agreed upon, subsequently an- other broker effected an agreement between them on different terms. De Zavala v. Royaliner, 84 N. Y. S. 969. One employed to procure a loan is entitled to compensation only in case he procures it. Demarest v. Spiral Riveted Tube Co. [N. J. Law] 58 A. 161. Lender backed out after he had agreed to make it. Ashfleld v. Case, 87 N. Y. S. 649. Procurement of option not sufficient where he was to effect a sale. Lawrence v. Pederson [Wash.] 74 P. 1011. Where contract called for the sale of an entire tract, sale of part of it Is insufficient. Shinn v. Boyd [Tex. Civ. App.] 77 S. W. 1027. Where the contract is for a sale, no commission can be recovered until a sale is effected, unless the principal acts In bad faith. Parker v. National Mut. Bldg. & L. Ass'n [W. Va.] 46 a B. 811. Where commission is to be paid on sale, producing purchaser is not sufficient. Orms- by v. Graham [Iowa] 98 N. W. 724. Con- tract construed and held not to entitle broker to commissions for trying In good faith to sell the land without success. Sher- burne Land Co. v. Eells [Minn.] 99 N. W. 419. 31. Receipt for part of purchase price $1,000 of $30,000, signed by owner, indicates conditional sale. Merriman v. Wickersham, 141 Cal. 567, 75 P. 180. 32. The owner sold to a purchaser found by the broker, a portion of the land listed. Delta & Pine Land Co. v. Wallace [Miss.] 36 So. 263. 3 Cur. Law. BEOKEES § 4. 545 Where a condition is annexed to the transaction, it must be performed before commissions can be recovered," and where right to commissions was limited to the time the vendor received payment, no recovery thereof could be had mitil such time;'* but where payment of commissions does not depend on the payment of the entire purchase price, he is entitled to receive them as installments are paid." A. sale agent is entitled to commission on all sales,'" except those made by the owner," especially where he reserves a right to sell.'* Arbitrary refusal of the principal to consummate the transaction does not de- feat the right to commissions," nor does his inability to give a clear title*" or im- mediate possession," nor a mistake in listing as to the description,** nor notice to the broker of a defect in the title acquired after he has procured a purchaser,** nor the sale by the principal to one with whom the broker has negotiated,** and that he has a cause of action against his customer for fraud is no defense.*" He may recover, though he knew that the principal did not have the amount of stock he employed him to sell.*' 3S. Was to acquire property free from taxes which he did not, though he procured a warranty deed. Klee v. Omberg, 25 Ky. L. R. 531, 76 S. W. 15. Agreement to take loan on condition that he got title to the prop- erty. Frye v. Sohwarz, 87 App. Dlv. 611, 83 N. T. S. 1070. 34. Payment was reserved until It was shown a certain amount could be realized on the business sold. Hart v. Garrett Co., 87 N. T. S. 574. 35. Frank v. Bonnevle [Colo. App. 3 77 P. 363. 86. W^hlsky broker. Brown & Bro. v. Lapp, 25 Ky. L. R. 1134, 77 S. W. 194. Sold to one with whom he had negotiated. Syl- vester V. Johnson, 110 Tenn. 392, 76 S. W. 923. 37. Where owner sold, though the broker had the exclusive agency under a contract which did not negative the owner's right to sell. Ingold v. Symonds [Iowa] 99 N. W. 713. Contract did not negative principal's right, and he procured a loan before the broker did. Mott v. Ferguson [Minn.] 99 N. W. 804. 38. Tracy v. Abney, 122 Iowa, 306, 98 N. W. 121. Nor does the fact that the con- tract provides for a penalty to be paid the broker in case the price Is raised or the land taken out of the market entitle him to the penalty on a sale by the owner. Id. 39. By falling to furnish an abstract after the broker procured one to make a loan. Rundle v. Staats [Colo. App.] 73 P. 1091. When broker produces purchaser able and willing to purchase. Merrlman v. Wlck- ersham, 141 Cal. 567, 7B P. 180. Where he has found a purchaser. Gwinnup v. Sibert [Mo. App.] 80 S. W. 589. Where the prin- cipal refused to make a deed as to a certain fractional section. Heaton v. Clarke, 122 Iowa, 716, 98 N. W. 697; Ward v. McQueen [N. D.] 100 N. W. 253. He must accede to reasonable terms under the contract. Al- lowance of six months in which to pay $1,000.00. Wendle v. Palmer [Conn.] 58 A. 12. Whether during the continuance of an option the owner offered to sell to another at a less price, the statement of his proposed purchaser is hearsay. Smith v. Lawrence, 98 Me. 92, 66 A. 455. It is error to instruct that the commission was not to be paid un- less the sale were consummated and that 3 Curr. Law — 35. the risk of failure was wholly on the broker. Bruce v. Hurlbut, 81 App. Dlv. 311, 81 N. T. S. 64. Evidence of interviews be- tween an owner and a customer of a broker who held an option held Insufficient to show that the owner dissuaded the customer from purchasing. Smith v. Lawrence, 98 Me. 92, 56 A. 455. 40. Part of land In adverse possession. Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723. Lien on property. Smye v. Groesbeok [Tex. Civ. App.] 73 S. W. 972; Finck v. Bauer, 40 Misc. 218, 81 N. T. S. 625. Contention that he vias entitled to a reasonable time to per- fect his title Is no avail. Nor Is fact that owner offered to perfect his title. Vendee not obliged to accept. Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723. Implied condi- tion that title should be perfect. Wilson v. Clark [Tex. Civ. App.] 79 a W. 649. If a sale falls through because of a defect in the vendor's title. Cusack v. Aikman, 87 N. T. S. 940. A receipt by the owner, reciting that he has received earnest money on pur- chase of certain land which is to be re- turned if title fails. Is not varied by parol evidence of the purchaser's willingness to take it when title Is shown to be satisfac- tory. Wilson V. Clark [Tex. Civ. App.] 7» S. W. 649. Nor does such a receipt re- quire the purchaser to have the land sur- veyed. Id. 41. Putter v. Berger, 88 N. T. S. 462. 42. Tyler v. Justice [Ga.] 48 S. E. 328. 43. McKinnon & Eve v. Hope, 132 Ga. 1149, 45 S. E. 413. 44. Though this terminates the agency. Sylvester v. Johnson, 110 Tenn. 392, 75 S. W. 923. Broker, in a sale of land, was to receive all above a certain price per acre as his commission. After securing purchas- er, the principal connived with such pur- chaser to sell him the land at the marginal price. Held, that broker could recover what his services were worth. Baker v. Murphy, 105 111. App. 151. 45. By collusion between customer and vendee, the deed was made to a third party. Martin v. Fegan, 88 N. T. S. 472. 46. Error to make his recovery depend on guaranty that the other members of the firm would authorize the sale. Enrlght v. Ford [Mo. App.] 80 S. W. 291. 546 BEOKEES § 4. 3 Cur. La^T- Where a principal sold his entire tract to one who agreed to pay commissions on applications sent in by his agents, the agent could collect at tiie rate fixed by his contract/^ though the question of his fair dealing and the consequent validity of the contract for commissions may be for the jury.*' Where a broker gave his receipt for commissions to the lessee to be used by her as payment of rent he could not recover from his principal.** A broker may be precluded from recovering his commissions by becoming an officer of a pur- chasing corporation,""* because of the fiduciary relation he sustains."^ Failure of a broker to comply with an ordinance requiring a license will not preclude him from recovering a commission,"' especially where such ordinance is not enforced.'^ Good faiths* — ^If he fails to make a ftdl disclosure of the facts,"" or makes misrepresentations to his principal, he cannot recover commissions, though the con- tract becomes binding."' A local custom to pay brokers who negotiate a deal cannot fasten upon a prop- erty owner any liability."^ Whether the broker has complied with his contract is a question of law."* In some states an authorization to sell real estate must be in writing in order that the broker may recover his compensation,"' and in such case the broker cannot i-eeover on a quantum meruit,*" while in others an agent's authority to procure a purchaser need not be.°^ The statute of frauds cannot be invoked for the protection oi a broker to secure commissions.''* A part of the iNew York courts hold that 47. The fact that It had been represented to the purchaser that the rate had been reduced Is immaterial. Heaton v. Clarke, ■>22 Iowa. 716, 98 N. W. 597. 48. Goldshear v. Barron, 42 Misc. 198, 85 ^. T. S. 395. 49. Irrespective of novation, any private agreement between broker and lessee as to use of the receipt would not affect rights of lessor. Davis v. True, 89 App. Dlv. 319, 85 N. T. S. 843. 80. Corporation to which sale was made was not in existence when contract was made, but when sale was effected lie was a dlTeotor. Goldshear v. Barron, 42 Misc. 198, 85 N. T. S. 396. 51. A. was authorized to sell land. F. made an agreement with him whereby he was to sell land and receive half the profits. F. formed a corporation and sold to them at a greatly advanced price. Held, that brokers were in a fiduciary relation to cor- poration and hence could not recover ex- cess In price. Tegarden Bros. v. Big Star Zinc Co., 71 Ark. 277, 72 S. W. 989. 52. Where it is not shown that both par- ties agreed to violate the ordinance. Tooker V. Duckworth [Mo. App.] 80 S. W. 963. 53. Ordinance, City of Guthrie. Where city refused to accept the tax, failure to pay it could not be set up as a defense In an action for commissions. Wicks v. Carlisle, 12 Okl. 337, 72 P. 377. 54. See 1 Curr. L. 370. 65. Making changes in a contract with- out authority, even though the principal was not prejudiced thereby. Humphrey v. Rob- inson, 134 N. C. 432, 46 & E. 953; Jeffries v. Robbins, 66 Kan. 427, 71 P. 852. 56. As to purpose for which lots sold were to be used. Whaples v. Fahys, 87 App. Dlv. 518, 84 N. Y. S. 793. ."57. For effecting a lease. Brady v. Amer- ican M. & P. Co.. 86 App. Dlv. 267, S3 N. T. S. 663. Proof of custom to pay commis- sions Is insufllcient to warrant a recovery. King V. Hammond, 84 N. T. S. 121. Cir- cumstances indicated that the broker was working in the Interests of the purchaser. Downing v. Buck [Mich.] 98 N. W. 38S. 5S. Error to submit it to the jury. Good- son v. Embleton [Mo. App.] 80 S. W. 22. 59. Gen. St. p. 1604, 5 10. Leimbach v. Regner [N. J. Law] 57 A. 138. A subse- quent promise to pay is without considera- tion. Stout V. Humphrey, 69 N. J. Law, 436, 55 A. 281. Gen. St. p. 1604, § 10. Kent v. Phenlx Art Metal Co., 69 N. J. Law, 532, 55 A. 266; Wulffi v. Lindsay [Ariz.] 71 P. 963. Gen. St. p. 1604, § 10. Indivisible contract for sale of both real and personal property. Kent V. Phenlx Art Metal Co., 69 N. J. Law, 532, 65 A. 256. 60. Leimbach v. Regner [N. J. Law] 57 A. 138. Burns' Rev. St. 1901, § 6629a. Beahler V. Clark [Ind. App.] 68 N. E. 613. Civ. Code, S 1624. Jamison v. Hyde, 141 Cal. 109, 74 P. 695. Comp. St. 1903, § 74, c. 73. Blair v. Austin [Neb.] 98 N. W. 1040. 61. Under Rev. St. 1899, 5 3418. Gwinnup v. Sibert [Mo. App.] 80 S. W. 589. After they accept purchase money, they are estopped to assert that there was no sale, and that bro- ker's services consisted merely in procuring a purchaser, where the sale was subsequent- ly rescinded. Id. If he produces a pur- chaser, he is entitled to recover. Wilson v. Clark [Tex. Civ. App.] 79 S. W. 649. Broker at customer's request bought real estate, taking title in his own name and afterwards conveying it to the customer when the cus- tomer agreed to pay him a certain commis- sion. Huff V. Hardwlok [Colo. App.] 75 P. 593. Between purchaser and seller. Good- son V. Embleton [Mo. App.] 80 S. W. 22. 62. Broker had agency to procure a loan to cancel a mortgage. The principal pro- 3 Cur. Law. BEOKBRS § 4. 547 commission for sale of laud cannot be reeovered imless made under written au- thority/' while the contra is maintained in other courts of the same state.** Amount of commission depends upon the agreement of the parties, '"' or, where there is no controlling agreement, upon what the services are reasonably worth."' A principal is liable for the compensation of a subagent."^ Agreement for commissions for a sale or a lease furnishes a cause of action for both.«« A principal cannot refuse to accept services on one ground and payment of commissions on another."" The complaint'"' must allege what the broker was employed to do and that it had been accomplished,^^ but the acts constituting the efforts to effect the, trans- action need not be set forth.''^ It may set forth a single claim in several counts,'" and does not fail to state a cause of action because not alleging that the broker communicated to the owner the name of a proposed purchaser.^* In a real estate cured an oral promise of renewal. Mott v. Ferguson [Minn.] 99 N. W. 804. 63. Pen. Code, § 640d. Adler v. Sohaum- berger, 84 N. T. S. 235. Pencil memoran- dum held insufflolent. Cohen v. Boccuzzi, 86 N. T. S. 187. Question of waiver of written authority cannot he raised. Kronenberger V. Quinn, 86 N. T. S. 139. No written author- ity is a valid defense to an action for commission. Davis v. Kidansky, 86 N. T. S. 6. No written authority from v/ife who owned land, though there was from her husband. Charles v. Arthur, 84 N. T. S. 284. He must prove written authority. Borgio v. Gauge, 87 N. T. S. 538; Peck v. Antes, 84 N. Y. S. 252. 64. The right to recover commissions for a sale of land without written authority is not prevented by a statute making such a sale a misdemeanor [Pen. Code, § 640d (Laws 1901, c. 128)]. Cody v. Dempsey, 86 App. Div. 335, 13 Ann. Cas. 322, 83 N. T. S. 899. 65. VV^here amount of commission was fixed by a tacit understanding between the parties. Armstrong v. Cleveland [Tex. Civ. App.] 74 S. W. 789. 66. Boyd v. Vale, 84 App. Div. 414, 82 N. T. S. 932. An employment to procure an option, which principal did not take ad- vantage of. Boardman v. Hanks [Mass.] 70 N. E. 1012. 67. Where broker has authority to em- ploy him. Eastland v. Maney [Tex. Civ. App.] 81 S. W. 574. Petition by a subagent for compensation, alleging that agent was nonresident and that subagent was a resi- dent of county where land was located, per- mits proof of agent's authority to employ a subagent. Id. Where an agent agreed with a subagent to sell at a certain price if the owner would take it, the subagent took the risk of getting his commissions in making a sale at that price. Id. 68. Goldshear v. Barron, 42 Misc. 198, 85 N. T. S. 395. Where a broker procured op- tions on a number of lots of different owners and they agreed to. pay him a commission for selling them, and a formal contract was signed by them severally, the price being fixed at a gross sum, there was not a joint liability tor commissions. Whaples v. Fahys, 87 App. Div. 518, 84 N. Y. S. 793. 69. Refusal to accept loan because com- mission asked was excessive, and demand for corhrnission defended on ground that lender had incorporated a new condition in the application. Hotchkiss v. Kuohler, 86 App. Div. 265, S3 N. Y. S. 710. Refused sale because lie did not need the money, defended on ground that he never employed the bro- ker. Sandefur v. Hlnes [Kan.] 76 P. 444. 70. See 1 Curr. L. 372. 71. Complaint held insufficient. Fenwick V. Watkins, 25 Ky. L. R. 1962, 79 S. W. 214. A complaint states a cause of action if it alleges an agreement whereby a purchaser was to be procured for defendant's land at a certain price per acre for which services the plaintiffs were to receive a certain speci- fied sum of money from defendant as com- mission; that they procured and sent such a purchaser, and (that he bought the land at tlie price fixed. Lemon v. De Wolf, 89 Minn. 465, 95 N. W. 316. Complaint held to allege contract to pay commissions where brokers authorized purchaser to offer a sum less than demanded by the owner. Blake v. Austin [Tex. Civ. App.] 76 S. W. 571. Complaint alleging authority to sell for a fixed price and on request of the owner, the broker gave him the name of a party who would pur- chase at a less price and who bought the property, held to state a cause of action on a quantum meruit. Von Tobel v. Stetson cfe Post Mill Co., 32 Wash. 683, 73 P. 788. A petition alleging that a broker procured a purchaser with whom his principal entered into negotiations and consummated a sale is good against general demurrer. Brocken- brow v. Stafford [Tex. Civ. App.] 76 S. W. 576. Statement held sufficient in justice court. Smith v. Truitt [Mo. .4.pp.] 80 S. W. 686. Petition by subagent for commission insufficient, as it did , not show that the agent had authority to agree to pay a stipu- lated commission. Dyer v, Winston [Tex. Civ. App,] 77 S. W. 227. Modification of an oral agreement made on discovery of a mu- tual mistake becomes part of the contract. Properly pleaded as such. Good v. Smith [Or.] 76 P. 354. 72. Alleging employment and sale held sufficient. Yarborough v. Creager [Tex. Civ. App.] 77 S. W. 645. 73. So as to meet all pqssible proofs which YfiU appear at the trial. Spotswood v. Mor- ris [Idaho] 77 P. 216. 74. It not appearing that It was demand- ed or refused or that injury was suffered 548 BEOKEES § 4. 3 Cur. Law. transaction that the contract has been signed must be alleged." An allegation of willingness, readiness, and ability, to purchase is an allegation of fact,^' and must be set forth where the transaction is not consummated.'' Where the petition counts on a contract there can be no recovery on a quantum meruit,'* nor as for a breach thereof,'" nor can one declare on a written contract and recover on proof of a sale under an oral one," but under an allegation for a commission for two and one half per cent, eleven and one half per cent may be proved and recovered,*^ and a cause should not be dismissed because. the broker fails to prove that he was the procuring cause of the sale.'^ Where the petition alleged that the contract bound the defendant individually, recovery could not be had on proof that the corpo- ration of which he was president was bound.'* An actual cause of action must exist at the time of bringing the suit, and no cause of action subsequently arising can be introduced by amended or supplemental complaint,** but it is not error to allow an amendment where it does not change the cause of action." Where a petition sought interest, a filing thereof was a demand, and it was properly al- lowed from date of such filing.*' An allegation for sums expended in procuring an abstract was proper.*' Petition for commissions properly alleged agreement between owner and purchaser settling the failure to sell." Evidence^^ which goes to show the amount due,°" and acts which one would naturally do in the usual course of business are admissible,*^ and the broker may testify that he advertised in a certain newspaper,*" and where action is on a quan- because of It. Bertelaon t. HotTman [Wash.] 77 P. 801. 76. Petition set out copies of letters oon- Btltutlng contract, no signatures shown. David Bradley v. Bower [Neb.] 99 N. W. 490. 76. Not a conclusion. Wilson v. Clark [Tex. Civ. App.] 79 S. W. 649. 77. Purchaser did not buy the land. Arm- strong V. Cleveland [Tex. Civ. App.] 74 S. W. 789. 78. ■ No proof of employment, though there was proof that a buyer was procured. Mc- Donnell V. Stephenson [Mo. App.] 77 S. W. 766. Evidence held to show express con- tract. Armstrong v. Cleveland [Tex. Civ. App.] 74 S. W. 789. MThere action for com- mission Is on an express contract, the rea- sonable value of the broker's services can- not be shown. Where contract fixed right to compensation, it was held error to submit Issue as to reasonable value of broker's services. Evans v. Gay [Tex. Civ. App.] 74 S. W. 675. 79. Evidence thereof not admissible. Cos- grove V. Leonard M. & E. Co., 17B Mo. 100, 74 S. W 986. 80. Written contract had been revoked. Braly v. Barnett [Tex. Civ. App.] 78 S. W. 966. 81. Not a variance. Hlghtower v. Kitch- ens, 118 Ga. 277, 45 S. B. 267. 82. Under Municipal Court Act (Laws 1902, §§ 248, 249). Wakefield v. Street, 86 App. Div. 630, 83 N. T. S. 765. 83. Groeltz v. Armstrong [Iowa] 99 N. W. 128 84. Nonsuit had been granted because op- tion had not matured, pending motion for new trial purchaser complied with option, error to grant new trial to permit plaintiff to allege \ completion of sale. Lawrence v. Pederson [Wash.] 74 P. 1011. 85. Inserting name of person having an Interest, Title not in Issue. Good v. Smith [Or.) 76 P. 354. Where plaintiff's evidence failed to show a written authority, it was not error to permit defendant to amend his answer, making It a denial instead of an ad- mission of the contract [Civ. Code, § 1624]. Jamison v. Hyde, 141 Cal. 109, 74 P. 695. 86. Brown & Bro. v. Lapp, 26 Ky. L. R. 1134, 77 S. W. 194. 87. Error to strlke.lt out when there was nothing to show that it was not included In his obligation to procure a purchaser. Wil- son V. Clark [Tex. Civ. App.] 79 S. W. 649. 88. Showing purchaser had been procured. Wilson v. Clark [Tex. Civ. App.] 79 S. W. 649. 89. See 1 Curr. L. 373. 90. In a sale of mining claims for a cus- tomer, other interests were sold and each was not separately valued; evidence that all were of equal value, and what the total acreage was, was admissible. Huff v. Hard- wick [Colo. App.] 75 P. 593. Broker was en- titled to recover if it could be shown what proportion should be credited to claims in which he was interested. Id. Value of serv- ices may be proved by evidence of customary real estate commissions. No compensation agreed upon, owner had ratified and ac- cepted benefit of his services. Hurt v. Jones [Mo. App.] 79 S. W. 486. Evidence held not to sustain a judgment for commissioners where a sale was effected under a substi- tuted agreement. Jones v. Pendleton [Mich.] 96 N. W. 574. 91. Sending bill 20 days after discharge. Bradley v. Gorham [Conn.] 58 A. 698. 92. No effort being made to prove the contents of the advertisement. Tarborough v. Creager [Tex. Civ. App.] 77 S. W. 645. A newspaper advertisement is admissible as showing what a broker did in an endeavor to sell. Decker v. Widdicomb [Mich.] 100 N. W. 573. 3 Cur. Law. BEOKERS § 4. 549 turn meruit it is proper to show the reasonable value of his services.*' Conversa- tions between broker and agent relative to the subject-matter,'* or between the prin- cipal and a third party are admissible,'" but statements made by a principal's hus- band to a broker's agent,°° or statements of the broker that he had the land in his hands for sale are inadmissible, when they do not specify the time and place."^ Evidence which will reveal an undisclosed principal is properly excluded.'' Where a broker had the sole agency contracts made by the owner with other agents are immaterial." Evidence of an express contract is inadmissible under a general denial.^ Instructions.^ — On an allegation that the broker sold the land it is error to instruct that he is entitled to recover if he was trying to sell.' An instruction requiring proof of matters not in issue is error.* Where the ultimate facts en- titling to recovery have been instructed upon it is error to refuse to instruct the negative." It is not error to refuse to restrict a right to recover to a finding of an express promise to pay, where it is alleged that the broker became entitled to his commission and the principal promised to pay." A charge that if the pur- chasers were accepted by the owner as satisfactory the broker is entitled to his commission, but if not it must appear that they were able and willing to purchase, is inconsistent with a charge that the contract had been ratified by the owner.' An instruction, "you will have to determine from the testimony whether Mr. Showaker was the man who consummated and carried through that deal between Kelly and the others," held proper.' An instruction, seeming to assume a sole agency where there was not one, was not prejudicial to a principal where it was plainly an at- tempt to charge on his theory of an abandonment.' A clause in an instruction "If you believe that his own efforts to procure a purchaser had been abandoned" is not objectionable as making the right to recover dependent on two states of facts, the jury having also been charged as to the effect of his inability to procure a pur- chaser." 83. Evidence of reasonable value of bro- ker's services In a suit on a quantum meruit for commissions held admissible. Boyd v. ■Vale, 84 App. Div. 414, 82 N. T. S. 932. 94. As to purchases made by a certain party. Elcliardson v. Babcock, 119 Wis. 141, 96 N. W. 554. It is not error to admit testi- mony as to what took place at a public sale of land, at -which' time It was alleged that the parties made the oral agreement sued on. Borden v. Isherwood, 120 Iowa, 677, 94 N. W. 1128. 95. To show that broker had procured a purchaser. Good v. Smith [Or.] 76 P. 364. 96. Statements made by a principal's hus- band to a broker's agent that he was en- titled to commissions, inadmissible. Wlnans V. Demarest, 84 N. T. S. 504. 97. Bradley v. Gorman [Conn.] 58 A. 698. 98. Downing v. Buck [Mich.] 98 N. W. 388. 99. Error to submit their existence to the Jury. Tarborough v. Creager [Tex. Civ. App.] 77 S. W. 645. 1. Broker brought quantum meruit for services. Beishus-Remer Land Co. v. Ben- ner [Minn.] 98 N. "W. 186. a. See 1 Curr. U 373. S. Tarborough v. Creager [Tex. Civ. App.] 77 3. W. 645. 4. Employment of broker not In issue, but only whether he was the procuring cause. Anderson v. Bradford, 102 Mo. App. 433, 76 S. W. 726. Error in charging that several defendants owned land in certain propor- tions, there being no evidence to that effect, was not prejudicial where it was not con- sidered. Eastland v. Maney [Tex. Civ. App.] 81 S. W. 574. 5. Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723. No error to refuse an instruction that if broker had not requested an abstract of title, he could not recover, where the evi- dence showed that an abstract had been re- quested and the sale fell through because it was refused. Id. 6. Bertelson v. Hoffman [Wash.] 77 P. 801. Remark by the court that if a broker had no more business honesty than that he ought not to recover, held not prejudicial under the circumstances. Metcalfe v. Gor- don, 86 App. Div. 368, 83 N. T. S. 808. In- struction of evidence as to whether pur- chaser was procured by a broker held proper. Donovan v. Weed, 86 App. Div. 630, 83 N. T. S. 682. 7. Flynn v. Jordal [Iowa] 100 N. W. 326. 8. Showaker v. Kelly, 21 Pa. Super. Ct 390. 10. Von Tobel v. Stetson & Post Mill. Co., 32 Wash. 683, 73 P. 788. 550 BUILDING CONTEACTS § 1. 3 Cur. Law. BT7ILDI1TG AWD COBTSTEUCTION CONTRACTS. S 1. The Contract, Sufficiency and Inter- pretation (S50). § 2. Performance of Contract (5ni>. 5 3. Modification of Contract (553). 3 4. Changes In Plans and Specifications (553). 3 5. Extra 'Work (553). § e. Delay in Performance (354). 3 7. Terminntlon or Cancellation of Con- tract (555). { 8. Completion by Onner or Third Per- son (556). § 9. Architect's and Other Certificates of Performance (556). § 10. Arbitration of Disputes (556), § 1]. Acceptance (557). § 12. Payment (557). § 13. Subcontracts (558). § 14. Bonds (558). S 16. Remedies and Procedure (559). § 1. The contract, sufficiency and interpretation}^ — Matters common to all contracts/* or peculiar to contracts for public works,^^ are elsewhere treated. A contract to erect a building in violation of a city ordinance is void;^* but failure to sign plans and specifications, as required by statute, is not fatal.^"* Interpretation}^ — The ordinary rules for the construction of contracts apply. Particular terms and provisions construed will be found in the notes.^'' Plans, specifications and detail drawings}^ — An annexed drawing^' or one 11. See 1 Curr. I* 374. 12. See Contracts, 1 Curr. L. 626. 13. See Public Contracts, 2 Curr. L. 1280. 14. Contractor cannot recover on cause of action arising: out of contract to erect a building of combustible materials within the fire limits of the city, In violation of a city ordinance. Finding that building was to be constructed of fireproof materials, erro- neous. Chlmene v. Pennington [Tex. Civ. App.] 79 S. "W. 63. 15. Cal. Code Civ. Proe. § 1183%, provid- ing that contract shall otherwise be void, intended to protect subcontractors, material- men and laborers. Sullivan v. Cal. Realty Co., 142 Cal. 201, 75 P. 767. 16. See 1 Curr. L. 375, n. 5-7. 17. In a contract whereby plaintiff agreed to pay a third person a certain price per yard for the removal of gravel "as desig- nated by the city engineer," the latter words held to refer to the amount to be removed and not to its location. Normlle v. Ballard, 33 Wash. 369, 74 P. 566. ^'Payments to be made as Iron Is used as per my contract," held to require payment only for such iron as was actually used in the worli, including temporary work. Bur- den on plaintiff to show delivery and prog- ress of work to point where payment be- came due. Weber v. Farrell, 84 N. T. S. 272. Estimates of a resident engineer In immediate charge of construction under di- rection of engineer in charge held to have been made by the "engineer in charge of construction." American B. & T. Co. v. Bal- timore & O. S. W. R. Co. [C. C. A.] 124 F. 866. Agreement to transport njaterlals held to mean transportation to station nearest to the place where they were to be used. American B. & T. Co. v. Baltimore & O. S. W. R. Co. [C. C. A.] 124 F. 866. A contract providing for lathing and plastering at a specified rate per square yard requires com- pensation to be fixed in accordance with the measured area, and it is error to allow the jury to fix it in accordance with the num- ber of lath used, under a local custom. Smith V. Colloty, 69 N. J. Law, 365, 55 A. 805. "Price for excavated material" held to mean material excavated, loaded and carted to n certain road, and not material used on premises. Duncan v. Jacobs, 184 Mass. 123, 68 N. B. 38. Contract between defendant and a construction company that the con- struction company would protect adjacent walls, held an adjacent landowner who is no party to the contract could not compel the defendants to take measures to protect his walls from damage. Carpenter v. Reliance Realty Co. [Mo. App.] 77 S. W. 1004. Pro- vision for a claim In writing by the con- tractor to the architect for any delay caused by any "act" of the owner or architect, does not apply to extra work required of the con- tractor. Reardon v. Cushing, 90 Minn. 360. 96 N. W. 1126. A contract which provided "I to furnish all foundations and common labor" does not preclude the idea that the same party was to direct the construction. Masterson v. Heitmann & Co. [Tex. Civ. App.] 77 S. W. 983. Calling an architect to inspect work held within provision that owner may terminate contract if evident to architect that builder is not complying with its terms, there being no regular architect employed. Hay v. Bush, 110 La. 575, 34 So. 692. Under an agreement to complete a building by September 1, and to pay dam- ages for eacli day's delay after September 15, the former date is the time fixed for its completion. National Surety Co. v. Long [C. G. A.] 125 F. 887. Where a party builds a house on the lot of another at cost, the agreement being that the property should then be sold and the net profits divided equally, but no purchaser can be found, the builder held to be entitled to half the dif- ference between the value of the lot as un- improved, plus the cost of improvements, and the market value of the property. Da- vis V. KeUar, 25 Ky. L. B. 279. 74 S. W. 1100. Parties held to have entered into separate contracts for construction of two houses, though subcontracts were let for work on both jointly. Separate agreements with the purchasers of two lots on which they were to be built. Smith v. Wilcox [Or.] 74 P. 708. Provision giving company right to make changes in dimensions of tunnel, construed. Daly V. Busk Tunnel R. Co. [C. C. A.] 129 F. 513. 18. See 1 Curr. L. 375. 19. Where there Is a drawing annexed to specifications for construction of a sewer. 3 Ciir. Law. BUILDING CCNTKACTS § 2. 551 referred to^ is part of the contract, and it is for jury to say in case of doubt which, of two plans is the one referred to.^* Fravd, misrepresentation, or mistake." — A contractor knowing the contents of a contract, but misled as to its meaning, cannot avoid for fraud.*' If it is shown that part of the agreement was omitted because of mistake of the parties or fraud on the part of the plaintiff, then the jury should assess damages at what the work is reasonably worth.'* § 2. Performance of contract?^ — The defective performance of a contract constitutes a breach,*' but in the absence of a guaranty, the contractor is only required to do the work in a workmanlike manner, and is not responsible for results.*' He will be held to have contemplated natural obstructions which may arise, and will not be excused from performance in a good and workmanlike man- ner by reason thereof.** Where a notice to commence work is received after the date fixed therein, the contractor is required to begin work within a reasonable time thereafter.*' The question of proper, performance concerns only the parties thereto, and a collateral incumbrancer cannot complain of incomplete performance, for the owner is entitled to waive such if he choose.'" Deviation from specifications.''^ — Substantial performance may warrant a re- covery on the contract, with deductions for unfinished work;'* but in such ease, the contractor must show both that the defects and omissions were unsubstantial and unintentional, and must also show the amount necessary to make them good.'' If the architect or owner is given power to reject defective material, his failure to do so constitutes a waiver of such defects.'* If part of the rejected showing probable line of rock and the speci- fications state that bidders must satisfy themselves as to the location of rock, there Is no warranty as to the location of rock. Kelly V. New York, 87 App. Dlv. 299, 84 N. T. S. 349. S!0. Where It clearly appears that speci- fications under which work was done were the ones Intended by the contract, the par- ties are bound by them, though they are not identified as the contract seems to require. Signed by architect alone. Snoqualmi Real- ty Co. V. Moynihan [Mo.] 78 S. W. 1014. ai. Cook V. Littlefleld, 98 Me. 299, 56 A. 899. 22. These subjects are fully treated In separate topics. See Fraud and Undue In- fluence, 2 Curr. L. 104; Mistake and Accident, 2 Curr. L. 903. See, also, 1 Curr. L. 376. 23. Nesbit V. Jencks, 81 App. Div. 140, 80 N. T. S. 1085. 24. Contract to construct stairway did not contain what defendant claimed was the agreement as to dimensions. Voss v. Sche- beck, 25 Ky. L. R. 481, 76 S. "W. 21. 25. See 1 Curr. L. 376. 26. Machinery called for by contract not delivered until after the stipulated time, and then in a defective condition. Payne v. Amos Kent B. & L. Co., 110 La. 760, 34 So. 763. 27. Under a contract for drilling a, well, there is no implied undertaking to obtain water or as to quantity or quality to be ob- tained. Butler V. Davis, 119 Wis. 166, 96 N. W. 561. 28. Contract to build a church in a cem- etery where soil was soft because of use for Interment. Zimmerman v. Conrad [Mo. App.] 74 a. W. 139. 29, Where work was to commerce upon a day to be designated, a notice to commence work upon May 9th, which Is received May 10th, is sufllcient to require contractor to commence within a reasonable time. Mas- terson v. New York, 87 App. Dlv. 622, 84 N. T. S. 312. 30. Nolt V. Crow, 22 Pa. Super. Ct. 113. 81. See 1 Curr. L. 377. 32. Woods V. Robertson, 85 N. T. S. 338. The fact, that a small sum will be required to complete the building will not prevent a recovery on the contract, where it has been substantially performed, and the contractors have offered to complete any work that might be incomplete, and to make such slight repairs or corrections as might be necessary. Windham v. Independent Tel. Co. [Wash.] 76 P. 936. 33. Cannot do so If neglect is willful. Norton v. U. S. Wood Preserving Co., 39 App. Div. 237, 85 N. Y. S. 886. General noncom- pliance sufficient to prove intentional devia- tion aiid preclude recovery. Braseth v. State Bank of Bdinburg [N. D.] 98 N. W. 79. Where the contractor abandons the work, he Is not entitled to recover on the ground of substantial compliance, unless he has com- pleted the building without any omissions so substantial as to call for damages, except in subordination to the part of the contract permitting the owner to complete the build- ing at his expense. Rowe v. Gerry, 86 App. Dlv. 349, 83 N. Y. S. 740. 34. Provision that contractor should sub- mit to judgment of architect all work and materials and architect frequently saw his work. Siebert v. Roth, 118 Wis. 250, 95 N. W. lis. Not entitled to make deductions for alleged unsatisfactory material and work 653 BUILDING CONTEACTS § 3. 3 Cur. Law. material is good, but, there is no data to determine the respective amounts, the builder is not entitled to credit for any of the material furnished,'* nor can the owner recover for additional expense incurred partly through his fault Mid partly through that of the builder, when it is impossible to separate it." Whether the contract has been executed in accordance with the plans and specifications,*' and whether such requirements have been waived, are questions for the jury.'' Liability for failure to perform.^' — If the contract is without reservation, the contractor cannot excuse nonperformance on account of storms,*" but if the owner, by his conduct, induces the contractor not to erect the building, he cannot recover damages for failure to perform." Damage to finished worh.*^ — The general rule is that if the premises are •destroyed without fault on either side, both parties are excused from further performance of the contract, and neither has a right of action against the other, unless a contrary intention appears;** but this is not the case where one has bound himself to erect a building of a specified description.** AbaMdonment.*^ — The innocent party may treat a contract as abandoned for failure to perform, when he is thereby deprived of the benefit that would have famished by a subcontractor, where the architects had authority to compel the re- moval thereof during the progress of the •work. G. A. Fuller Co. v. Young Co. tC. C. A.] 126 F. 343. 35. Snoqualml Kealty Co. v. Mo3mthan tMo.] 78 S. "W. 1014. 36. Owner did over most of the wood- work, but was not justified in so doing as to most of It. This necessitated a further expense for heating and watchmen. Held, owner could recover no damages. Snoqual- ml Realty Co. v. Moynihan [Mo.] 78 S. "W. 1014. 37. As to meaning of "Blanco P. Carrara" marble. G. A. Fuller Co. v. Young Co. [C. C. A.] 126 F. 343. 38. Woarms v. Becker, 84 App. Dlv. 491, S2 N. Y. S. 1086. 3». See 1 Curr. K 377. 40. Contract to supply materials to own- er of lot with which to construct house. Payment to be made when roof on. Shin- gles not furnished on account of storms. Woolf V. Shaefer, 41 Misc. 640, 85 N. Y. S. 205. 41. Agreement to rescind. Carter & Co. V. Kaufman [S. C.] 45 S. E. 1017. 42. See 1 Curr. L. 377. 43. Building destroyed by Are before completion of contract to build annex. Krause v. Crothersville School Trustees [Ind.] 70 N. B. 264. Owner could not impose obligation on contractor to complete the work by offering to restore the old building. Id. Where contractor has expended more than he has received under the contracts, the payments made will be treated as an ex- ecution pro tanto and the loss left where It falls- Id- NOTB3. Completion prevented by destme- tlom of bniiaing. A contTactor to do a work wliicli depends on the owner's co-operating work or on the continued existence or In- tegrity of an existing structure Is discharged if performance of Ills undertaking Is made Impossible by destruction of the existing ■trncture: So held where a main building was destroyed, preventing completion of an addition. Krause v. Crothersville School Trustees [Ind.] 70 N. E. 264, 65 L. R. A. 111. Following Butterfleld v. Byron, 153 Mass. 621, 27 N. B. 667, 25 Am. St. Rep. 656 with note, 12 Li. R. A. 572 with note. The criterion seems to be whether the contractor was account- able by the terms of the contract despite any such casualties, whether he assumed the risk. He does not. do so where the prin- cipal structure is not wholly his or he un- dertakes regardless of the risk. It is a question of interpretation. Butterfleld v. Byron, supra. It is not necessary in such case to recon- struct the main building. Neither Is the contractor denied the protection of the rule because it appears that he could have com- pleted sooner, or because the owner offers to restore the main building. Krause v. Crothersville School Trustees, supra. A stipulation protecting the owner from liability for loss does not of itself cast a liability on the contractor. Krause v. Cro- thersville School Trustees, supra. If the contract be entire and performance Is prevented by destruction of the subject- matter without fault of either party, neither can recoTer on the contract, and the con- tractor cannot recover on a quantum meruit unless some benefit has resulted to the own- er. Krause v. Crothersville School Trustees, supra. In Butterfleld v. Byron, supra, the value of unused and unconsumed materials was recovered of the owner, who took them after the flre. As to this question, consult Implied Contracts, 2 Curr. L. 285. 44. Barn to be built upon foundations furnished by the owner. Held not work upon a building of another party, but plain- tiff had bound himself to build a barn. Vogt V. Hecker, 118 Wis. 306, 95 N. W. 90. Immaterial that the owner agreed to furnish the lumber unless there Is a breach of duty to supply it. Id. Contract for construction of dam held to require loss resulting from destruction before completion to fall on con- tractor. W. A. Chapman & Co. v. Mont- gomery W. P. Co. [C. C. A.] 126 F. 372. See Contracts, 1 Curr. L. 626. 46. See 1 Curr. L. 377. 3 Cur. Law. BUILDING CONTEAOTS S 5. 553 arisen from performance/' and impossibility of performance, caused by the owner does not relieve him from liability under the contract.*' The contractor has a right to abandon the contract as soon as the owner's acts render it impossible for him to perform it within the time specified, time being of the essence of the contract,*' or upon the nonpayment of instalments due thereunder.** Whether the contract was abandoned is a question for the jury."" Equity will restrain a subcontractor, who has abandoned his contract, from removing such part of his plant as is necessary to preserve the work until a rea- sonable time elapses for the substitution of another plant.'* § 3. Modification of contract.''^ — ^A written contract not under seal may be modified by a parol agreement before breach,"' or by the acts of the parties;"* but a contract to modify a previous one must be supported by a new considera- tion.°° Unless specially authorized to do so, an architect has no authority to alter or modify the building contract."' § 4. Changes in plans and specifications." — If the engineer has power to annul one portion of the contract without releasing the contractor from per- forming the other portions, a change in the plans and specifications of the work on one section beyond the power to change reserved in the contract does not re- lease the contractor as to other portions." The question as to whether changes in the plans and specifications are ma- terial and whether they were within the contemplation of the parties when the contract was made is one of fact for the jury." § 5. Extra work.'" — A contractor is entitled to recover the reasonable value of all extra labor or material in excess of that required by the contract furnished by him, by the owner's direction,'* or with his Imowledge and consent," though 40. Delay In completing stairway may operate to destroy the benefit ■which prompt- ed the owner to contract. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307. 47. Failure to procure right of way. Measure of damages Is profits contractor prevented from earning. Altoona Electrical, B. & S. Co. V. Kittannlng & F. C. St. R. Co., 126 F. 669. 48. A cause of action accrues to a con- tractor, and the statute of limitations begins to run on Issuance of Injunction restrain- ing continuance of work because of city's failure to properly assess damages and benefits. Ash v. Independence [Mo. App.] 77 S. W. 104. 49. Lawrence Bros. r. Heylman, 89 App. Dlv. 620, 85 N. T. S. 789. 50. PialntlfC contended delay was forced by refusal of defendant to pay him, while defendant contended that It was causeless and Inexcusable. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307. Bl. McCabe v. Hunt, 40 Misc. 466, 82 N. T. S. 664. 52. See 1 Curr. L. 377. 53. Time of making payments. Eagle Iron Works v. Farley, 83 App. Dlv. 82, 82 N. T. S. 503. 54. Requirement that builder purchase hardware modified by owner purchasing it with his consent. Cllne v. Shell, 43 Or. 372, 73 P. 12. 55. A new agreement to proceed with work under terms different from those in the original contract, which had been re- scinded. Is supported by a sufficient consid- eration. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307. See Contracts, 1 Curr. Lr. 626. 56. Provisions inserted In contract by ar- chitect, who Is made agent for the owner for purposes of the contract, for purpose of Inducing surety company to furnish bond, not binding on owner without notice. Swee- ney V. Aetna Indemnity Co. [Wash.] 74 P. 1057. 57. See 1 Curr. Ii. 378. 58. American B, & T. Co. v. Baltimore, etc., R. Co. tC. C. A.] 124 F. 866. 59. Change of plans and specifications for railroad betterments. American B. & T. Co. V. Baltimore, etc., R. Co. [C. C. A.] 124 F. 865. 60. See 1 Curr. L, 378. 61. Architects may recover reasonable value for extra work If the owner promised before the work was done to pay for It, or If ordered by him. Contract called for a $500 fee for $5,400, but the w^ork amounted to $50,000 before finished. Baker v. Pulitz- er Pub. Co. [Mo. App.] 77 S. W. 685. 6a. Contract for 3,000 feet of lumber and 12,000 furnished. Libby v. Deake, 97 Me. 377, 54 A. 856. Reasonable value of all labor and materials furnished and accepted in the construction of work not covered by the contract. City of Chicago v. McKeohney, 205 111. 372, 68 N. E. 964. Where a contractor does extra work which the owner testifies he did not authorize, It is error for the court to Instruct the jury that the owner would be liable for the reasonable value of the extra work and materials, as it destroys the effect of the owner's evidence. W^illlam- 554 BUlLDIlSrG CONTEACTS § 6, 3 Cur. Law. the contract stipxilates tliat the builder shall not charge for extra work unless ordered in writing.*^ He may also recover extra compensation for doing over his original work if not necessitated by any neglect of his contractual duty/* but not for work within the intendment of the contract."' A provision that compensation for the extra work can be had only upon written order of the engineer implies that work so ordered will be paid for.*" The refusal of the architect to include the cost thereof in his final estimate does not preclude recovery, where he is not made arbiter of disputes."^ § 6. Delay in performance.^^ — Where no time is fixed for completion, the work must be done within a reasonable time, taking into consideration all the facts and circumstances of the case."" A contractor is not liable for delay caused by the owner, or his agents or servants,'" even though the contract provides that the owner's request for altera- tions shall in no way affect or make void the contract;'^ but he cannot escape liability for delay because of extra work, when such delay was caused by lack of facilities for carrying it on concurrently with the original work.'^ Waimer of delay or extension of time.''^ — Contractors consent to delay "by son T. Smith & Co. [Tex. Civ. App.] 79 S. W. 51. 63. Not binding when both parties agree on changes. Hay v. Bush, 110 La. 575, 34 So. 692. May be waived by architect as agent for owner. Langley v. Rouss, 85 App. Div. 27, 82 N. T. S. 1082. ft4. Sewer pipes properly laid settled, and it was necessary to relay them. Allen v. Melrose, 184 Mass. 1, 67 N. B. 1060. 65. Additional excavation and masonry below depth marked on plan of bridge piers held not extra work for which contractor entitled to compensation beyond that fixed in the contract, the measurements on the plans being approximate only, and the price iixed being so much per cubic yard. Geary V. New Haven [Conn.] 55 A. 584. Contract to build sewer held to be contract to do work as plan then was or might thereafter be changed, and lowering of grade held to be within power expressly given engineer and not to entitle contractor to extra com- pensation over the price per yard as fixed by the contract. Allen v. Melrose, 184 Mass. 1. 67 N. B. 1060. A subcontractor, who agrees to do the lathing and plastering called for by the plans and specifications cannot re- cover extra compensation for work done under the contract, though it was rendered necessary by imperfections in the work of the contractor. Graves Elevator Co. v. Par- ker Co., 92 App. Div. 456, 87 N. Y. S. 156. 66. Sheathing a trench made it necessary to widen it. Johnson v. Albany, 86 App. Div. 567, 83 N. T. S. 1002. 67 Though payments are to be made upoii his certificate. Jacob v. Weisser, 207 Pa. 484, 56 A. 1065. 68. See 1 Curr. L. 379. efl. Lang v. Menasha Paper Co., 119 Wis. 1 95 N W. 393; Koerper v. Royal Inv. Co., 102 Mo.' App. 543, 77 S. W. 807. 70 Structure over sidewalk prevented Tiiitt'ine up decorative Iron work. CorneU r Standard Oil Co., 91 App. Div. 346, 86 N. Y S 633 Defendants failed to disprove that performance was delayed by other work carried on by other people for the defend- ants themselves. New York Metal Celling Co. V. Raub, 86 N. Y S. 249. Failure to ob- tain rights of way as agreed. Altoona Elec- trical B. & S. Co. V. Klttanning, etc., R. Co., 126 F. 559. Evidence Insufiioient to show error in refusing to allow plaintiff anything tor delay. Snoqualmi Realty Co. v. Moyni- han [Mo.] 78 S. W. 1014. Where parties as- sumed that It was the duty of the seller to superintend the building of the founda- tions for an irrigation pump and he sent a man for that purpose, he will not be al- lowed to claim that it was the duty of the buyer to construct them without supervi- sion, and that the delay was caused by his failure to do so. Masterson v. Heitraann & Co. [Tex. Civ. App.] 77 S. W. 983. 71. When contractor ready to plaster, owner decided to wire building for electric light. Steps were changed, and extra ex- cavation done. Owner undecided as to color of paint. Small v. Burke, 86 N. Y. S. 1066. 72. Contract to do work on a boiler. Contractors later employed to do extra work on the steamship in connection with the work specified In the contract. U. S. Fidel- ity & Guaranty Co. v. Damskibsaktieselska- bet Habil, 138 Ala. 848, 35 So. 344. 73. NOTE. A stipulated penalty for delay will not be enforced in favor of the owner -n-ho has delayed performance by tardiness in preliminary construction fvoric: This was held in King Iron Bridge & Mfg. Co. v. St. Louis, 43 F. 768, 10 L. R. A. 826, In which the city's delay in completing piers hindered the contractor in erecting the superstruc- ture. The law is regarded as settled and the court cites Stewart v. Keteltas, 36 N. Y. 388; Weeks v. McCarty, 89 N. Y. 666; Starr V. Gregory Consolidated Mln. Co., 6 Mont. 485, 13 P. 195; Mansfield v. New York, etc., R. Co.. 102 N. Y. 205, 6 N. E. 386; Cape Fear & D. R. Navigation Co. v. Wilcox, 52 N. C. (7 Jones Law) 481; Dumke ,v. Puhlman, 62 Wis. 18, 21 N. W. 820; Jones v. Chesapeake & O. R. Co., 14 W. Va. 623. See, also, note to King Iron Bridge & Mfg. Co. v. St. Louis [U. S.] 10 L. R. A. 826 on provisions for penalties or stipulated damages. See 1 Curr. L. 379. 3 Cur. Law. BUILDING CONTRACTS § 7. 555 continuing the work/* and the owners by permitting them to do so without ob- jection/" or by rendering them assistance.'''' But if the contractor can complete the work within the time fixed, plus the time occasioned by delays caused or as- sented to by the owner, he is liable for the damages provided for in the contract for each day's delay beyond that time.''' A complaint founded on one breach may amount to a waiver of a similar prior breach,'* and demand to complete a build- ing which has not been finished within a reasonable time amounts to a virtual extension of time." Liquidated damages.^" — Where a fixed sum is agreed upon as damages in ease of a breach of the contract, it will be regarded as liquidated damages only in case the actual damage is incapable of exact determination, and the sum agreed upon is not on its face out of all proportion to the probable loss.'^ If such sum is grossly disproportionate to the probable value of the use of the building, the owner can recover only actual damages.*- The burden of proof is upon the owner to show that a "penalty" is intended as liquidated damages if it is not so stated in the contract, and that the damage amounts approximately to the sum stated.*" An owner who takes possession and completes the work cannot recover the damages for delay stipulated for in the contract, but only his actual damage.** § 7. Termination or cancellation of contract.^" — Failure to comply with the terms of the contract warrants rescission,*' but one has no right to cancel for nonperformance when his own act is the cause thereof.*'' Where the ownei wrongfully stops the work, the contractor may treat the contract as rescinded.** A contract will not be canceled unless there is an offer by the plaintiff to pay the defendant for materials and labor furnished under it.*° 74, 75. tr. S. Fidelity & Guaranty Co. t. Damskibsaktleselskabet Habil, 138 Ala, 348, 35 So. 344. 76. On subletting a grading: contract, the principal contractor reserved right to place an additional force on the work if he was of the opinion that enough men were not being employed to complete it within the specified time and deduct the cost from the contract price. Held, putting on his own men and teams by the contractor was a xvaiver of delay of subcontractor. McArthur Bros. Co. V. Whitney, 202 111. 627, 67 N. B. 163. 77. U. S. Fidelity & Guaranty Co. v. Dam- skibsaktleselskabet Habll, 138 Ala. 348, 35 So. 344. 78. Unnecessary delay In building an an- nex which with the original building was destroyed by fire. Complaint by owners for failure to complete after the fire waived a claim for delay prior to the fire. Krause v. Crothersville Trustees [Ind.] 70 N. E, 264. 79. Krause v. Board of School Trustees nf School Town of Crothersville [Ind. App.] G6 N. E. 1010. SO. This subject is fully discussed in Damages, 1 Curr. L. 834; see, also, 1 Curr. L. 379. 81. Pressed Steel Car Co. v. Eastern R. Co. [C. C. A.] 121 F. 609. Will be regarded as penalty if it exceeds actual damage. Dee v. Carroll Normal School Co. [Neb.] 96 N. W. 65. In default of completion upon a cer- tain day, $100 per month was to be paid until building finished; held liquidated dam- ages. Carter & Co. v. Kaufman [S. C] 45 S. E. 1017. sa. A contract was to construct a church for $3,400. the contractor to pay $3 per day damages for failure to complete at a cer- tain date. In an action on the contract, there was ne evidence as to the actual loss due to delay. Held, an instruction that no damages should be allowed for delay was erroneously refused. Zimmerman v. Con- ra,d [Mo. App.] 74 S. W. 139. 83. Held, court Tvould not take judicial notice of the fact that rental value approx- imated penalty provided. Small v. Burke, 86 N. T. S. 1066. 84. The contract provided for $5 per day for delay. Before ttie time stipulated for completion, the owner declared the contract forfeited and completed the building. Held, he cannot treat the contract binding as to this provision. Fidelity & Deposit Co. v. Robertson, 136 Ala. 379. 34 So. 933. 85. See 1 Curr. L. 380. 86. Defects in construction and delay held to warrant owner in terminating con- tract and completing tlie work himself. Hay V. Bush, 110 La. 575, 34 So. 692. 87. Owner could not cancel where con- tractor refused to proceed because of his failure to pay first instalment of price. Koerper v. Royal Inv. Co., 102 Mo. App. 543. 77 S. W. 307. 88. Requested to stop work for a few days but to remain on the premises and did so, but hears nothing furtlier from the own- er. Dobbling v. York Springs R. Co., 207 Pa. 123, 56 A. 349. Cannot thereafter be required to continue work under origin.al contract. Cochran v. Toho [Wash.] 75 P. 815. 80. Contract void because not recorded as required by Code. Sullivan v. California Realty Co., 142 Cal. 201. 73 P. 767. 656 BUILDING CONTEACTS 8 8. 3 Cur. Law. § 8. Completion by owner or third person.'"' — Where work is abandoned and the owner completes it under a provision in the contract, the contractor is entitled to any balance of the contract price above the cost of completion." A surety who completes a contract abandoned by his principal is entitled to sums reserved from payments made to the original contractor.*^ A provision that the engineer may take any measure he sees fit to complete the contract on time does not authorize him to take possession of the buildings and tools of the contractor for use in so doing."' § 9. Architecfs and other certificates of performance.^* — ^Provisions requir- ing the production of architect's certificates before recovery can be had will not be implied.'^ Where the contract provides that payment shall be made upon certificate of the architect that the work has been performed,'* or that he shall certify as to the damages resulting from failure to complete the work, such certifi- cate is a condition precedent to the right of recovery," unless it appears that it was refused unreasonably, or in bad faith,*' or that its production has been waived.** Where the architect is one of contracting parties, a demand for payment con- stitutes a demand for his certificate.^ § 10. Arbitration of disputes.^ — Where the contract does not provide for the architecfs decision upon disputed points, no such provision can be implied.' The agreement to submit differences to arbitration implies a promise to abide by the award,* and such disputes cannot afterwards be litigated by a party in the 90. NOTB. An election by the ovmei to complete the -work estops him to forfeit for noncompletloni It being provided In the contract that If the contractor neglect to satisfactorily complete the work, the own- er, after notice, may do so, and deduct the cost from the contract price, the latter avail- ing himself of the privilege to so do, can- not assert a forfeiture In respect to the de- ficiency so supplied by him, but is simply entitled to deduct the expense Incurred. Crouch V. Gutmann, 134 N. Y. 45, 31 N. B. 271, 30 Am. St. Rep. 608. See 1 Curr. I* 380. 01. Work deemed to be done under con- tract. White V. Livingston, 174 N. T. 538, 66 N. B. 1118. See 1 Curr. L. 381, n. 77. 92. Would have be6n necessary for own- er to expend the money to complete work before resorting to bond. St. Peter's Cath- olic Church V. Vannote [N. J. Bq.] 66 A. 1037. 93. Montgomery Water Power Co. v. Wil- liam A. Chapman & Co. [C. C. A.] 126 F. 68. »4. See 1 Curr. L. 381. 05. Provision that work shall be satis- factory to architects, and that If subcon- tractor obtains architect's certificate per- formance will be conclusively presumed, does not make a failure to obtain it a bar to recovery. Puller Co. v. Toung Co. [C. C. A.] 126 P. 343. 06. McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428. 97. American Bonding & Trust Co. v. Gib- son County tC. C. A.] 127 P. 671. 98. Facts sufficient to require determina- tion by Jury as to whether commissioner of highways acted in bad faith in refusing to give certificate as to delays caused by city. Masterson v. New York, 87 App. Dlv. 622, 84 N. Y. S. 312; Rowe v. Gerry, 86 App. DItt. 349, 83 N. Y. S. 740. Refusal of certificate as to extra work without justification where work done under oral direction of archi- tect. Langley v. Rouss, 85 App. Dlv. 27, 82 N. Y. S. 1082. Where contractor has power to terminate employment of subcontractor for failure to properly perform, on certifi- cate of architect to that effect, and does so before receiving such certificate, such cer- tificate Is no. defense, and the propriety of his action is for the Jury. In case termina- tion is wrongful, measure of damages Is pro- portionate part of price for work done and profits he would have realized on rest. Sul- livan V. Moffatt IN. J. Law] 56 A. 304. In some states unreasonableness is not sufficient, and a contract which provides that final payment shall be made when work is satisfactory to the owner and architect gives the owner or architect absolute right to reject the work If he acts in good faith. Fairmont Plumbing Co. v. Carr [W. Va.] 46 S. B. 458. A whimsical refusal of an archi- tect's certificate will not prevent a recov- ery where the building Is substantially com- pleted. Windham v. Independent Tel. Co [Wash.] 76 P. 936. 99. Where all but part of last payment made without certificate. Abrahamson-Bn- gesser Co. v. McCafCerty, 86 N. Y. S. 185. The architect's failure to furnish a certifi- cate of completion is Immaterial, where the owners have moved into and occupied the building with the understanding, on the announcement made by the architect and the contractor, that such act should constitute an acceptance. Windham v. Independent Tel. Co. tWash.] 76 P. 936. 1. Abrahamson-Engesser Co. v. McCaf- ferty, 86 N. Y. S. 185. 2. Bee 1 Curr. L. 381. 3. Fuller Co. v. Young Co. [C. C. A.] 126 P. 343. 4. Somerset Borough v. Ott, 207 Pa. 539 56 A. 1079. 3 Cur. Law. BUILDING CONTEACTS § 12. 557 courts until he has shown an offer to arbitrate and a refusal by the other party ;' but an unreasonable delay in making an award relieves him from such agree- ment.' An agreement to arbitrate disputes does not prevent an action for dam- ages for an unaiithorized rescission of the contract.'' An agreement providing that the completion of the work specified thereia will settle all disagreements precludes the owner from retaining a part of the contract price for defects existing prior thereto." Decisions of an arbitrator may only be attacked for actual and intentional fraud on his part, or accident, mistake, or fraud practiced on him by which he was misled.' § 11. Acceptance.'^'' — If a party accepts work as done, he cannot claim specific performance on the part of the builder as a condition precedent to pay- ment, but is entitled to reduce the amount to be paid by the amoimt of damages he has sustained by failure to fully perform.^'- Payment of the contractor and disposal of remaining material by the owner constitutes a waiver of further per- formance,^' but a mere naked use,^' or a use from necessity, does not,^* nor will the use of a temporary structure constitute an acceptance of the completed work.^' Acceptance is not a waiver of a guaranty of fitness.^* § 13. Payment}'' — Where payments are made without directions as to how they are to be applied, the creditor may make the application,^* but it will be presumed that they were intended to pay the earlier rather than the later debts.^' Where interest is not provided for in the contract, a demand is necessary for the exact amount.^" If the contract provides that final payment is to be made upon delivery with a full release of liens, such release is a condition precedent to payment.'^ Under a provision that the owner, upon the filing of a lien or notice of claim, may keep S. Agreement that owner should fix dam- ages for delay and if not satisfactory to the builder, an arbitrator to be appointed. Own- er notified builder of amount he claimed as damages and the latter took no steps to- ward arbitrating. Held, he could not set up defenses that would have been open to Mm before an arbitrator, but was bound by sum fixed by owner. Chllds Lumber & Mfg. Co. V. Page. 32 Wash. 250, 73 P. 353. A con- tract providing for acceptance by the direct- ors of public works to be binding upon all parties leaves to the controller no discre- tion to refuse payment upon approval of the work by the director. Com. v. Pittsburg, 206 Pa. 379, 55 A. 1058. 0. Delay by commissioners of over three months authorizes contractor to sue. John- son V. Albany, 86 App. Dlv. 567, 83 N. T. S. 1002. An agreement that the engineer shall decide every question that may arise rela- tive to the execution of the contract does not contemplate that he shall determine the damages caused by abandonment. Somerset Borough V. Ott, 207 Pa. 539, 56 A. 1079. 7. Action for damages for the loss of a contract and not for work done. Dobbling V. York Springs R. Co., 207 Pa. 123, 66 A. 349, 8. Pisani v. Jordan, 85 N. T. S. 375. 9. Erroneous or unjust judgment not suf- ficient. Cora. v. Pittsburg, 206 Pa. 379, 55 A. 1058. 10. See 1 Curr. L. 382. 11. Water tank not according to specifica- tions, but upon an agreement by the plain- tiff to change It, the defendant paid part of the agreed price and commenced using it. Gray v. New PaynosvlUe, 89 Minn. 258, 94 N. W. 721. 12. Contractor did not bail out last part of an oil well nor case It, but owner made a payment and disposed of the casing. Tex- as Gulf Coast Land & Oil Co. v. Galveston- Chlcago W. B. & D. Co. [Tex. Civ, App.] 77 S. W. 974. 13. Unless accompanied by further acts or language Implying acceptance. Question of fact in each case. Aarnes v. Windham, 137 Ala. 513, 34 So. 816. 14. Walking over steps and a walk from a man's house to the street. Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158. Use of defective lumber kiln and machinery In car- rying on business. Payne v. Amos Kent Brick & Lumber Co., 110 La. 750, 34 So. 763. 15. Temporary bridge erected by conti;act- ors to avoid liability for delay in comple- tion. Stimson Mill Co. v. Los Angeles Trac- tion Co., 141 Cal. 30, 74 P. 357. 16. Repairs to boiler with a six months' guaranty against leakage. U. S. Fidelity & Guaranty Co. v. Damsklbsaktieselskabet Habil, 138 Ala. 348, 35 So. 344. 17. See 1 Curr. L. 383. 18. Smith V. Wilcox [Or.] 74 P. 708. 19. Presumed to have been intended to pay for first three buildings completed and not the uncompleted ones. Kloepfer v. Ma- her, 84 N. T. S. 138. 20. Excelsior Terra Cotta Co. v. Harde, 90 App. Dlv. 4, 85 N. T. S. 732. 21. Releases dated after suit commenced. Titus v. Gunn, 69 N. J. Law, 410. 55 A. 735. 558 BUILDING CONTEACTS 8 13. 3 Cur. Law. back an amount sufficient to pay the same, the builder may recover the balance.'* The assignee of a builder's claim may recover for the work done if he is also assignee of all liens filed.** § 13. Subcontracts.^* — A subcontractor who has notice of the terms of the original contract between the owner and builder is bound thereby.*' An order of payment to a subcontractor, made by a contractor and referring to the original contract, must be construed with such contract.*" The fact that a subcontractor refrains from filing a lien against the building is a sufficient consideration to support a promise of the owner to pay his claim.*' A contractor who has ac- cepted the work of a subcontractor, and has then obtained the architect's certifi- cate that the main contract has been completed, and received the contract price, cannot claim that the subcontract was not completed in accordance with the terms of the original contract,** and the furnishiiig of such certificate is a sufficient compliance with the provisions of a subcontract requiring the architecf s approval of the work done thereunder.*' Withholding payments for benefit of subcontractor.^" — ^Under the Indiana statutes, a notice by a subcontractor to the owner that money is due him from the contractor and to, withhold payment of that amount makes the owner person- ally liable for the full amount.'^ Bights on default by subcontractor.^^ § 14. Bonds.^^ — A law requiring a bond is' void as making a discrimination on the right to contract.'* Slight delay on the part of the owner in selecting material is not a breach going to the entire consideration of the contract so as to annul it, but only operates to relieve the contractor from liability for delay in completing the building and to give him a claim for loss occasioned by the enforced delay.'' If the bond refers to the contract, the two instruments are to be construed together.'" Where the contract requires the builder to pay for materials furnish- ed and the bond is conditioned on his completing the work according to contract, the guarantor is responsible for materialmen's liens."' A bond given by a contractor to one employing him to build, stating that the building shall be delivered free of all claims, is not intended for the benefit of a subcontractor furnishing work or materials.'* A mere oral imderstanding as to times of paj^ment differing from that in 22. Perry v. Levenson, 82 App. Div. 94, 81 N. T. S. 586. 23. Cady v. Fair Plain Literary Ass'n [Mich.] 97 N. W. 680. 34. See 1 Curr. L. 383. 25. Subcontractor bound to do work sat- isfactory to architect. Stein v. McCarthy [Wis.] 97 N. W. 912. Where subcontractor makes a contract to furnish material, re- ferring therein to the original contract, he is bound by provision therein requiring approval by architect. Woarms v. Becker, 84 App. Div. 491, 82 N. T. S. 1086. 26. Payment to be made as per my con- tract. Weber v. Parrell, 84 N. T. S. 272. 27. Culver v. Pocono Spring Water Ice Co., 206 Pa. 481, 56 A. 29. 28. 29. Graves Elevator Co. v. Parker Co., »2 App. Div. 456, 87 N. T. S. 156. 30. See 1 Curr. L. 384. 31. Burns' Rev. St. 1894, § 7262. Roberts V. Ko3S [Ind. App.] 70 N. E. 185. 32. its. See 1 Curr, L. 384. 34. Code Civ. Proc. § 1203 held void. Snell V. Bradbury, 139 Cal. 379, 73 P. 150. 35. Does not relieve surety on contract- or's bond. Bagwell v. American Surety Co., 102 Mo. App. 707, 77 S. W. 327. 36. Closson V. Billman, 161 Ind. 610, G^ N. E. 449. 37. Closson V. Billman, 161 Ind. 610, 69 N. E. 449. Sureties guaranteeing the con- struction of a building in strict accordance with plan and specifications and terms of contr.^ct are not discharged until the build- ing has been released of liens for labor and material. Mayes v. Lane, 25 Ky. L. R. 824, 76 S. W. 399. Where a contract provides for the retention of 15 per cent of the con- tract price until completion of the building tree from liens, sureties upon the contract- or's bond are not released because the owner pays out that amount to dispose of liens before the completion of the contract. Id. .SS. Materialmen cannot recover thereon. Green Bay Lumber Co. v. Independent School Dist.. 121 loAV.T. 06.-!, 97 N. W. 72. 3 Cur. Law. BUILDING CONTRACTS § 15. 559 the contract will not release the surety.'* An owner is under no obligation to sureties upon a contractor's bond to see to the application of payments to the discharge of debts due for material and labor.*" After the lapse of two years, there is no presumption that defects are due to faulty construction." § 15. Remedies and procedure.*" — A provision giving the engineer power to annul the contract in case of failure to perform properly, and providing that in case he does so the amount then due shall be regarded as liquidated damages, does not provide an exclusive remedy for a breach, but in case of wrongful aban- donment, action may be brought on the contractor's bond.** Recovery in general assumpsit or on quantum meruit.**' — Where the contract is fully performed except for payment, recovery may be had in indebitatus as- sumpsit.*° The contractor cannot recover under his contract unless the work is completed, but if the owner accepts the building as constructed, recovery may be had under the common counts for work, labor, and materials furnished.*' If the owner prevents the completion of the work," or otherwise breaches the eon- tract so as to justify an abandonment thereof, the contractor may recover the agreed value of the work done.*' Where no price is agreed upon, the builder is entitled to recover the reason- able value of his work.*' Pleading.^" — The general rule that the complaint must contain a plain and concise statement of facts, which will not leave the defendant in doubt as to the cause of action, applies to actions on building contracts." Performance of conditions precedent to a right of recovery, or an excuse for their nonperformance, must be pleaded,"" but a general allegation of per- formance is sufficient.'* 89. Mere oral request and promise that the owner have five days' grace in paying instalments. Bag-well v. American Surety Co., 102 Mo. App. 707, 77 S. W. 327. 40. Mayes v. Lane, 25 Ky. L.. R. 824, 76 S. W. 399. 41. The liability of a surety under the Code arises should a building fall to ruin, either in whole or in part owing to the badness of the workmanship, but If at the end of two years after completion a defect arises, it must be shown that it Is exclusive- ly the fault of the principal In order to hold the surety. Police Jury of Parish of Ver- non V. Johnson, 111 La. 279, 35 So. 550. 42. See 1 Curr. L. 384. 43. American Bonding & Trust Co. v. Bal- timore & O. S. W. R. Co. [C. C. A.] 124 F. 866. 44. See 1 Curr. L. 384. 45. McArthur Bros. Co. v. Whitney, 202 111. B27, 67 N. B. 163. 40. Owner moved into house before com- pleted, the contractor agreeing to finish the .same according to contract. Evidence that materials and construction were not as per contract. Aarnes v. "Windham, 137 Ala. 513, 34 So. 816. Can recover nothing under the contract or on quantum meruit unless own- er accepts and uses work. Construction of a walk lowest in the middle so as to collect rain water and steps unfinished. Gwlnnup V. Shies, 161 Ind. BOO, 69 N. B. IBS. Owner may recoup damages for failure to perform. Contract to construct Turkish bath to sat- isfaction of owner. Tile was poor and floor uneven, so that water would not drain. Mosaic Tile Co. v. Chiera [Mich.] 9S N. W. B37. 47. And such profits as he would have realized from the work not done while owner may claim a rebate for loss caused by noncompliance with the contract. VTil- son V. Borden, 68 N. J. Law, 627, B4 A. 815. 48. Lawrence Bros. v. Heylman, 89 App. Dlv. 620, SB N. T. S. 789. 4a. Shmilovitz v. Bares, 75 Conn. 714, B5 A. 560. 50. See 1 Curr. L. 386. 61. Complaint for breach of contract to complete building, necessitating completion by plain tifE, held sufllclent. Bryant v. Broad - well, 140 Cal. 490, 74 P. S3. Suit by con- tractor on subcontractor's bond, which made It his duty to save contractor from any loss. Complaint alleged that subcontractor had Incurred indebtedness which contractor was compelled to pay and that the subcon- tractor on demand had refused to reimburse him. Pac. Bridge Co. v. U. S. Fidelity & Guaranty Co., 33 Wash. 47, 73 P. 772. In an action on a bond against a surety for breach of contract by his principal, a supple- mental complaint, alleging a further breach of the same contract may properly be filed, even though the time for bringing suit on the bond had expired. Id. A complaint in an action on a contractor's bond, setting out the bond and contract and alleging nonper- formance in specified particulars resulting In damage for which a settlement had been demanded, sufficiently sets forth a breach of contract and states a cause of action. Failure to supply proper material and snfii- cient men. Fidelity & Deposit Co. v. Rob- ertson, 136 Ala. 379, 34 So. 933. 53. Obtaining architect's certificate. Rowe v. Gerry, 86 App. Div. 349, 83 N. T. S. 740. 660 BUILDING CON"TRACTS § 15. 3 Cttr. Law. A plea that the contractor was delayed by acts of his employer must state the extent of the delay so cansed." Wliere a material part of a contract remaias unperformed, a party cannoU recover upon an allegation of full performance." Defendant cannot plead by way of counterclaim that plaintiff agreed to construct in a manner different from that provided in the contract, in the ab- sence of an allegation that such contract failed to contain the whole agreement, or that the omission was due to mistake or fraud."' Failure to execute in a workmanlike manner may be proved imder a general denial." Variance." — An allegation of performance does not authorize proof of non- performance because of facts not pleaded.** Evidence.^" — ^If the compensation is not fixed in the contract, evidence as to the value of the services is admissible."^ Evidence of customs and usages is admissible for the purpose of showing the meaning of trade terms.'" Expert testimony is not admissible to show substantial compliance with the contract,'^ nor to show the proper classification of material, where such classifica- tion depends on the manner in which it was handled and witness did not see the work done.'* If an architect's certificate is required, its execution must be proved." If the written contract is ambiguous, an independent verbal contract relating to ^he subject-matter, but not inconsistent with it, may be shown." Where a require- ment of written evidence to charge the owner for work done under alterations of the contract has been waived by oral directions for alterations acted on by the contractor, oral evidence of the alterations and their value is admissible in an action on the contractor's bond." Where contract requlrea architect's certlfl- cate, Its execution or refusal must be al- leged and proved. Beck v. N. T. Bldg. Loan Banking Co., 85 N. T. S. 323. Evidence of notice by owner of election to complete building, introduced as proof of extra serv- ices, Inadmissible to excuse failure to pro- duce architect's certificate, where such no- tice was not pleaded. Id.; Vanderhoof v. Shell, 42 Or. 578, 72 P. 126; McGlauflln v. Wormser, 28 Mont. 177, 72 P. 428. 53. Not necessary to state facts consti- tuting performance of a condition precedent, but sufficient to state that all conditions have been performed. Under N. T. Code Civ. Proc. § 533. Acceptance of work by engi- neer. Vandegrift v. Bertron, 83 App. Dlv. 548, 82 N. T. S. 153. 54. U. S. Fidelity & Guaranty Co. v. Dam- sklbsaktieselskabet Habil, 138 Ala. 348, 35 So. 344. 55. Excelsior Terra Cotta Co. v. Harde, 90 App. Dlv. 4, 85 N. Y. S. 732. 56. Agreement that stairs be large enough to admit of piano and book cases being car- ried up. Voss V. Schebeck, 25 Ky. L. R. 481, 76 S. W. 21. 57. Gwlnnup v. Shies, 161 Ind. 600, 69 N. E. 158. 58. See 1 Curr. L. 386. 59. Rowe V. Gerry, 86 App. Dlv. 349, 83 N. T. S. 740. eo. See 1 Curr. L. 386. 61. Suit upon a written contract which was not set out In the abstract of record and Its terms unknown. Merrlner v. Jepp- Bon [Colo. App.] 74 P. 341. 62. "San Domingo mahogany." Snoqual- ml Realty Co. v. Moynlhan [Mo.] 78 S. W. 1014. 63. Zimmerman v. Conrad [Mo. App.] 74 S. W. 139. 64. Opinions of an expert that certain material should be classified as loose rook Inadmissible, where It was formed from looking at the sides of the out long after it was made and, by the terms of the con- tract, the classification depended on the manner In which the material was handled. American B. & T. Co. v. Baltimore & O. S. ■W. R. Co. [C. C. A.] 124 P. 866. 65. Where plaintiff in an action for work, labor and materials under a contract failed to allege a notice of election by the defend- ant to complete the building, evidence of such notice Introduced as proof of extra services, was inadmissible to excuse fail- ure to produce architect's certificate. Beck V. N. T. Bldg. Loan Banking Co., 85 N. T. S. 323. 66. In action for extra work consist- ing of balustrades and lattice work on piaz- zas, an Independent verbal agreement relat- ing thereto Is not Inconsistent where they are shown on the plan referred to In the original contract. Cook v. Littlefield, 98 Me. 299, 56 A. 899. See Contracts, 1 Curr. L. 626; Evidence, 1 Curr. L. 1136. 67. Crowley v. U. S. Fidelity & Guaranty Co., 29 Wash. 268, 69 P. 784. 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS § 1. 561 BTTILDIITG AUD LOAN ASSOCIATIONS. C. Accounting with Borro-wer While Solvent (568). D. Accounting after Insolvency (569). § 4. Termination and Insolvency. Volun- tary Liquidation (671). § 1. In General. Statutory Provisions (5«1), § 2. MembcrsUlp and Stock (562). S 3. lioans and Mortgages (665). A. In General (565). B. Uaury. Conflict of Laws (666). § 1. In general. Statutory provisions. — The Iowa statute regulating the conduct of the building and loan business by unincorporated associations," and the Louisiana act regulating the business of homestead associations,'® are held constitutional. An association must comply with statutory requirements before doing business in a state other than that of its domicile.'"' Such statutes do not exempt corporations taking advantage thereof from the general rule requiring their contracts to be tested by the same rules as those of similar domestic cor- porations.''^ Contracts which by their terms are to become vested in numerical order, without regard to the amount paid thereon, are expressly forbidden by statute in Massachusetts.''^ In Louisiana, homestead associations may buy prop- erty for cash and resell to the original owner on credit, the second sale giving the association a vendor's lien.'" Chapter and by-laws.''* — A shareholder and member of an association is pre- sumed to know its charter and by-laws.'" Valid by-laws of an association to which a member agrees become a part of his contract.'" But a by-law which changes a borrower's rights, after he effects a loan, is not binding upon him.'' A borrower may be estopped to set up the invalidity of a by-law," or to deny 68. Acts 29th Gen. Assem. p. 45, c. 77. Question arose In habeas corpus proceed- ings for release of one arrested for solicit- ing contracts for an unincorporated foreign association, which had not complied with statutory requirements. Brady v. Mattern [Iowa] 100 N. W. 358. 60. Act No. 115, p. 177. of 1888. Ameri- can Homestead Co. v. Karstendlek, 111 La. S84, 35 So. 964. 70. A contract vsrlth a foreign loan asso- ciation which has not complied with a stat- ute requiring certificates of incorporation to he filed w^lth the secretary of state, is void, and no action Is maintainable thereon. Hoskins v. Rochester Sav. & Loan Ass'n [Mich.] 95 N. W. 566. A defense. In an ac- tion by a homestead association, to recover the price of property sold, that plaintiff has not complied with provisions of the home- stead association law^, not supported by proof, Is not entitled to consideration. .\merican Homestead Co. v. Karstendlek, 111 La. 884, 35 So. 964. 71. A bond for a loan executed by the wife alone is void, though' a mortgage given to secure the loan Is properly executed and is on her separate property [Rev. St. 1892, § 2208]. Equitable Bldg. & Loan Ass'n v. King [Fla.] 37 So. 181. 72. Contracts of an association to enable purchasers to buy real estate, discharge in- cumbrances and pay for improvements, held to violate Rev. Laws, c. 73, because such contracts became vested In numerical or- der, without regard to amount paid there- on. Attorney General v. Pitcher, 183 Mass. 514, 67 N. B. 606. The business of a home buyers' association, the members whereof hold contracts for $1,000 each, requiring 3 Curr. Law — 36. certain payments and becoming vested In numerical order so as to entitle holders to a loan is not a co-operative banking busi- ness within Rev. Laws, c. 114, 5 1, prohibit- ing persons from transacting the business of accumulating the savings of members and loaning the same, unless incorporated in Massachusetts. Id. Rev. Law^s, c. 73, for- bidding negotiation and sale of certificates and obligations redeemable In numerical or- der, and providing a penalty of $50 for each offense, and for forfeiture of the franchise of a domestic corporation and of the right to- transact business in the state by a foreign corporation, does not authorize the attor- ney general to maintain a suit In equity against Individuals carrying on the prohibit- ed business as co-partners. Id. 73. Act No. 115, p. 177, of 1888. Ameri- can Homestead Co. v. Karstendlek, 111 La. 884, 35 So. 964. 74. See 1 Curr. L. 388, 389. 75. Coggeshall v. Sussman, 41 Misc. 384, 84 N. Y. S. 1097. 76. Provident Mut. Bldg. Loan Ass'n v. Davis [Cal.] 76 P. 1034. 77. Since the usury laws of the state can- not be changed either by such by-laws or by contract. Ga. State Bldg. & Loan Ass'n v. Grant [Miss.] 34 So. 84. 78. A loan made In accordance with by- laws dispensing with premium bids in open meeting, such by-laws being adopted before passage of a statute authorizing such pro- cedure, is not usurious, for the reason that acting on the by-laws after the law was passed amounted to a readoption of them, and estopped the borrower from setting up their invalidity. Collins v. Cobe, 202 111. 469, 66 N. E. 1079. 562 BUILDING AND LOAN ASSOCIATIONS § 2. 3 Cur. Law. the legal organization of the association as a corporation." Oral or printed statements of ofiBcers or agents of an association, in direct contradiction of the by-laws or the terms of a contract of which the by-laws are made a part, cannot be made the basis of an estoppel unless such representations are fraudulently made.'* An officer of a building and loan association is competent to dischai-ge the duties of trustee in a trust deed given the association on a loan by it." Docu- mentary evidence*^ in proof of the charter or by-laws must be properly authen- ticated. § 2. Membership and stocTc.^* — In the absence of prohibitory statutes, asso- ciations may lawfully issue paid up stock,'* and include in its membership a borrowing and nonborrowing class, the latter being liable only for instalments on stock, not for premiums or interest.'^ The mere fact that there are different classes of stock with different rights and liabilities of stockholders does not neces- sarily destroy the company's character as a building and loan association.'" A statute legalizing premiums, fees and fines, in addition to interest, does not authorize the issuance of preferred stock or discrimination between shareholders." One who invests money in a loan association and receives a certificate of deposit, drawing annual interest, based on the earnings of the business, and a separate certificate of membership and oviTiership of stock, is a stockholder, and not a mere creditor of the association." A stockholder can vote by proxy only when author- ized by statute or the articles or by-laws of the corporation." A member seek- ing to recover dues, in accordance with the terms of his certificate and the by- laws of the association, must allege and prove the existence of the fund out of which such dues are payable."" Fines for default in payments on stock will be allowed only when reasonable.'^ 79. Crete Bldg. & Loan Ass'n v. Pats tNeb.] 95 N. W. 793. 80. Noah V. German American Bldg. Ass'n, 31 Ind. App. 504, 68 N. B. 615. 81. McDonnell v. De Soto Sav. & Bldg. Ass'n, 175 Mo. 250, 75 S.iW, 438, 82. In a foreclosure suit, the certificate of stock, with by-laws and other statements printed thereon, constituting the contract with the association, is admissible in evi- dence. Floyd-Jones v. Anderson [Mont.] 76 P. 751. Certificates of stock admissible In action to cancel lien and declare debt usuri- ous and for other relief against an associa- tion. American Mut. Bldg. & Sav. Ass'n v. Cornlbe [Tex. Civ. App.] 80 S. W. 1026. Letter from association secretary relative to contract, admissible to show association was then doing business and that a five-year contract then existed between member and association. Floyd-Jones v. Anderson [Mont.] 76 P. 751. A book containing printed by- laws used and recognized by members, there being no other copy of such by-laws, was admissible, though the book contained other matter. Star Loan Ass'n v. Moore [Del,] 56 A. 946. A paper purporting to be the char- ter of a corporation, which does not show that It is a certified copy of the recorded act but merely purports to come from the secretary of state and to be recorded, is not admissible In evidence. Id. The affidavit of the secretary of a loan association that the paper annexed is the true copy of the original record of the account of a borrow- ing member is not admissible to prove the state of the account, under Burns' Rev. St. 1901, § 474, regarding proof of the acts of corporations by sworn copies of the records thereof, Coppes v. Union Nat. Sav. & Loan Ass'n [Ind. App.] 67 N. B. 1022. 83. See 1 Curr. L. 389. 84. 85. Bell v. Southern Home Bldg. & Loan Ass'n [Ala.] 37 So. 237. 86. A plea properly stricken because not showing that different classes of stock ex- isted when defendant became a member, nor that the alleged inequalities were such as to destroy the building and loan feature of the company. Rooney v. Southern Bldg. & Loan Ass'n, 119 Ga. 941, 47 S. B. 345. 87. Laws 27th Gen. Assem. p. 32, c. 48. Wlnegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110. One who subscribed for and received preferred stock In a loan cor- poration, on which a loan was received, such preference being void as an unjust dis- crimination between shareholders, was not estopped to set up the invalidity of the contract by having made payments or de- layed asserting such invalidity, where such acts did not prejudice the loan company. Id. 85. His rights are those of an owner of paid-up stock. Ottawa Mut. Loan & Sav. Ass'n V. Merriman, 67 Kan. 779, 74 P. 256. 8». Iowa Code, § 1900, In regard to the right to and method of voting in "elec- tions," covers the action of stockholders In going Into voluntary liquidation, A member having voted more than 10% of the stock at such "election," the action taken was In- valid. McKee v. Howe Sav. & Trust Co., 122 Iowa, 731, 98 N. W. 009. »0. Ronca v. N. Y. Bldg. Loan Banking Co., 84 N. Y. S. 879. 91. Fines for default In payment of dues 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS 8 3. 563 StattLs of borrowing memlers.'"' — Borrowing and nonborrowing memberB of a loan association so far as stock and payments thereon are concerned, stand on an equal footing, and should equally receive the benefits and bear the burdens." A borrowing member does not cease to be a member and stockholder by assigning his stock as collateral security for a loan.'* on stock will not be allowed, without a allowing- being made as to their reasonable- ness and for what they were charged. Fi- delity Sav. Ass'n v. Bank of Commerce [Wye] 75 P. 448. Where a certain fine per month on each share during the period of delinquency Is provided for, the repeated imposition of the same fine, increasing each month in arithmetical progression, will not be permitted. Id. note:. Fines; nature and validity- s Whether or not fines will' be sustained de- pends upon the view taken by the court of the nature of the fine. Thus some courts consider a fine to be in the nature of liqui- dated damages for default in payment or for ndnperformance of a promise. Goodman v. Durant Bldg. & Loan Ass'n, 71 Miss. 310, 14 So. 146; McGannon v. Cent. Bldg. Ass'n No. 2, 19 W. Va. 726. In North Carolina, fines arc regarded as additional interest and within the provisions of the usury laws. Rowland V. Old Dominion Bldg. & I>oan Ass'n, 116 N. C. 878, 22 S. B. 8. In other states it ia ex- pressly declared by statute that neither pre- miums nor fines shall be deemed usurious. A Pennsylvania statute of that kind was held valid in Juniata Bldg. & Loan Ass'n v. Mixell, 84 Pa. 313. And in the many cases where fines are sustained and enforced, it is necessarily assumed that they do not come within tlie provisions of the usury laws. For irhat imposed: Fines are most usu- ally imposed for nonpayment of dues on stock, upon the ground that the success of the enterprise depends on prompt payment of such dues by members. Pfeister v. Wheel- ing Bldg. Ass'n, 19 W. Va. 676; McGannon v. Cent. Bldg. Ass'n No. 2, Id. 726; Parker v. U. S. Bldg., L. & L. Ass'n, Id. 744; Setliff V. North Nashville Bldg. & Sav. Ass'n [Tenn. Ch. App.] 39 S. W. 546. Fines for nonpay- ment of interest are upheld in the last named case, supra, and in Clarksville Bldg. & Loan Ass'n v. Stephens, 26 N. J. Bq. 351. But in West Virginia and Ohio the imposi- tion of such fines is held to be beyond the power of the association. See McGannon v. Cent. Bldg. Ass'p No. 2, and Parker v. U. S. Bldg., L. & L. Ass'n, supra; Hagerman v. Ohio Bldg. & Sav. Ass'n, 25 Ohio St. 186; Forrest City United Land & Bldg. Ass'n v. Gallagher, 25 Ohio St. 208. As to the amount of fines, the general rule is that they must be reasonable. 25 Ohio St. 186 and 208, su- pra. ' For fines which have been held rea- .sonable, see McGannon v. Cent. Bldg. Ass'n No. 2, 19 W. Va. 726; Parker v. U. S. Bldg, L. & L. Ass'n, 19 W. Va. 744; Ricks v. Du- rant Bldg. & Loan Ass'n [Miss.] 18 So. 359; Clarksville Bldg. & Loan Ass'n v. Stephens, 36 N. J. Bq. 351; In re Middlesbrough Bldg. Soc, 54 Law J. Ch. 592. Pennsylvania has a statute limiting the amount of fines. Nat. Sav. Fund & Bldg. Ass'n v. Robinson, 19 Phila. [Pa.] 358. By-laws requiring payment of fines are generally held not to make such fines cumu- lative. Monumental, Permanent Bldg. & Land Soc. v. Lewin, 38 Md. 445; Shannon v. Howard Mut. Bldg. Ass'n, 36 Md. 383; Oc- mulgee Bldg. & Loan Ass'n v. Thomson, 52 Ga. 427; Hagerman v. Ohio Bldg. & Sav. Ass'n, 25 Ohio St. 186; Forrest City United Land & Bldg. Ass'n v. Gallagher, 25 Ohio St. 208. Secured by mortgage i It is not uncom- mon for mortgages to such associations to provide expressly for payment of fines as well as dues. Massey v. Citizens' Bldg. & Sav. Ass'n, 22 Kan. 624; Ingoldby v. Riley, 28 Law T. [N. S.] 55; Juniata Bltlg. & Loan Ass'n V. Mixell, 84 Pa. 313; Rhoads v. Hoer- nerstown Bldg. & Sav. Ass'n, 82 Pa. 180. That security for fines may be Included in the mortgage is expressly decided in Hager- man V. Ohio Bldg. & Sav. Ass'n, 26 Ohio St. 186. Fines are included where the mort- gage is to secure compliance with all the by-laws and regulations. Setlift v. North Nashville Bldg. & Sav. Ass'n [Tenn. Ch. App.] S9 S. W. 546. See, also, McCahan v. Columbian Bldg. Ass'n, 40 Md. 226. That fines are not included unless the mo^rtgage makes express provision therefor Is held in Robertson v. American Homestead Ass'n, 10 Md. 397, 69 Am. Dec. 145, and Bowen v. Lincoln Bldg. & Loan Ass'n, 51 N. J. Bq. 272, 28 A. 67. — From note in 35 L. R. A. 215. 02. See 1 Curr. L. 390. 93. Monier v. Clarke [N. M.] 75 P. 35. 94. He remains liable for premiums. (Au- thorities collected and doctrine discussed.) Fidelity Sav. Ass'n v. Bank of Commerce [Wyo.] 75 P. 448. A member w'lo is in debt to tlie association cannot be considered as having withdrawn from membership un- til he has paid or tendered the debt. Yager V. Nat. Bldg. & Loan Ass'n, 25 Ky. L. H. 1853, 79 S. W. 197. In the absence of fraud, a borrower, taking stock and assigning it as security is a stockholder. Stanley v. Ver- ity, 98 Mo. App. 632, 73 S. W. 727. Since a borrower from an association is also a stockliolder, premiums on the stock cannot be construed as premiums on the loan. At- tempted in order to show contract inequita- ble and have it set aside. Pac. States Sav., L. & B. Co. V. Green [C. C. A.] 123 F. 4,':. An association which has accepted shares of its stock as a pledge for a loan may be estopped to claim that the issuance of the stock was a mere device to hide the real transaction, and that the subscriber is not a member of the association. The associa- tion here took no steps to enforce the lien or to apply the stock to the payment of the debt. Western L,oan & Sav. Co. v. GarfC [Utah] 75 P. 375. Contra: In some states it is held that wlien a member borrows money and pledges his stock, lie ceases to be a member, and becomes a mere debtor. Intersta,te Bldg. & Loan Ass'n v. Holland, 65 S. C. 448, 43 S. B. 978. 564 BUILDING AND LOAN ASSOCIATIONS § 2. 3 Cur. Law. Maturity of stock?^ — ^In the absence of any special agreement, stock matures only when the dues paid and earnings apportioned to it amount to the face value thereof."' As to the effect of an agreement that stock shall mature after a speci- fied number of payments or in a specified time, the courts are not agreed, some holding that when an association so agrees and represents at the time the loan is made, stock matures when the required number of payments has been made, whether the dues and earnings were sufficient to mature it or not,°^ and that the stockholder cannot be required to pay more than the specified number;"* others, that such an agreement works an estoppel ;°° and many that the agreement is ultra vires and void.^ Eepresentations of an association through its agents as to the amount or time required to mature stock are regarded as mere expressions of opinion and not fraudulent, though not verified.^ An association is under no duty to mature the stock of a defaulting stockholder.* 95. See 1 Curr. "L. 391. 96. Noah V. German American Bldg. Ass'n, 31 Ind. App. 604, 68 N. E. 615; Winegardner V. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110. Where by-laws provide that liabil- ity for Instalments shall be limited to a certain number, arid others provide that stock shall not mature until the loan fund portion of Instalments, with earnings, should equal the face value of the stock, such stock does not mature until the stock Is worth Its face value, notwithstanding the required number of payments has been made. Miller V. Wayne International Bldg. & Loan Ass'n [Ind. App.] 70 N. E. 180. 97. Iowa Business Men's Bldg. & Lioan Ass'n V. Berlau [Iowa] 98 N. W. 766. A contract whereby an association agrees to mature stock at the end of a certain time, the member performing his contract. Is en- forceable. People v. N. T. Nat. Bldg. & Loan Ass'n, 88 N. T. S. 850. Settlement under a contract to mature stock in five years held valid. Floyd-Jones v. Anderson [Mont.] 76 P. 761. An absolute promise to mature stock In a specified time Is not rendered conditional upon the success of the under- taking by the agreement by the stockhold- er to pay a certain monthly Instalment on each share until maturity, or withdrawal, and the provision of the by-laws, accepted by him, that such instalments shall be paid until stock is fully paid. Eastern Bldg. & Loan Ass'n v. Williamson, 189 U. S. 122, 23 S. Ct. 627, 47 Law. Ed. 735. An absolute promise to mature stock in a specified time Is not affected by the fact that before a stockholder obtained a loan on such stock, the by-laws were amended to provide for the maturity of stock only when dues and earnings equalled the par value thereof. Id. A state court may place its own construc- tion upon the effect of an absolute promise to mature stock in a specified time, and the effect thereon of the corporation's charter and by-laws, and the statutes and decisions of the state where the association was in- corporated, without contravening the full faith and credit clause of the constitution. Id. 98. Certificate provided that payments on stock should not exceed a certain number. Noah V. German American Bldg. Ass'n, 31 Ind. App. 504, 68' N. E. 615. A borrowing member cannot avail himself of an agree- ment as to the number of payments which will mature stock, when that agreement Is not embodied in his bond and mortgage. Id. 99. The defense that an absolute prom- ise to mature stock In a specified time Is ultra vires cannot be set up in a suit on such pY-omise, by a stockholder who has fully executed the contract on his part. Eastern Bldg. & Loan Ass'n v. Williamson, 189 U. S. 122, 53 S. Ct. 527, 47 Law. Ed. 736. Though the act of an association represent- ing that a certain number of payments would mature stock is ultra vires, yet, when re- lied upon by a tranferee of property, charged with a loan secured by stock, the associa- tion may be estopped to claim a larger amount on such stock, before releasing a trust deed. Williams v. Verity, 98 Mo. App. 654, 73 S. W. 732. 1. The act of an association determining and representing that a certain number of payments would mature the stock is ultra vires. Williams v. Verity, 98 Mo. App. 654, 73 S. W. 732. A loan must be discharged by maturity of stock in the usual course of business, or by payments large enough to discharge the loan at once, regardless of an agreement as to maturity after a certain number of payments. Gary v. Verity, 101 Mo. App. 586, 74 S. W. 161. Such an agree- ment with one member is In contravention of the rights of other stockholders. Id. A building and loan association has no power to guarantee the maturity of stock after a certain number of instalments have been paid. A corporation attempting to guaran- tee stock In this way is not entitled to the benefit of preferential statutes applicable to building and loan associations. Winegard- ner V. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110. An agreement »by an associa- tion that a certain number of payments should mature the stock of a stockholder is of no effect, unless expressly authorized by statute, because it violates the principle of mutuality among stockholders. Code 1896, §§ 1122-1137 does not authorize such a con- tract. Richter v. Southern Bldg. & Loan Ass'n, 137 Ala. 621, 34 So. 562. 2. Where It appears that a borrowing member's stock will not be matured as rap- idly as represented, on account of misman- agement in including a large class of non- borrowing members, the remedy Is with- drawal in accordance with the by-laws, or appeal to the governing board or agents of the corporation before a resort to the court is had. Bell v. Southern Home Bldg. & Loan Ass'n [Ala.] 37 So. 237. 3. Motes V. People's Bldg. & Loan Ass'n, 137 Ala. 369. 34 So. 344. 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS § 3B. 565 § 3. Loans and mortgages. A. In general.* — Where a building and loan contract is unenforceable as such because it is a discrimination between mem- bers, but the borrowing member treats it as enforceable as an ordinary loan, it may be so enforced." An association is bound by a construction placed by the parties on an ambiguous note at the time of making the loan, where such con- struction is in accordance with representations made by the association.' Where a contract requires the expenditure of a portion of a loan on improvements on real estate, the borrower cannot set up nonliability for such portion, because it was for the benefit of the association.'' A provision for attorney's fees in a loan asso- ciation mortgage is enforceable.' Accrued fines for default in payment of dues on stock are an essential part of the liability of the member, but do not become a part of the mortgage debt, unless made so by the mortgage.^ By statute in Utah, a borrowing member may repay loans at any time by complying with the charter and by-laws.^" A payment to a local agent of a foreign loan association is a payment to the association.^^ It is no defense against a payment on a loan that a buildiag and loan association has gone out of business as such.^^ A share- holder and member of an association cannot raise the defense of ultra vires when sued for a loan, on a contract executed by the association.^^ False representa- tions of existing facts by ofiBcers of an association, fraudulently made, constitute a good defense against a mortgage foreclosure suit.^* A grantee of premises mortgaged, by a borrowing member, who assumes and agrees to pay the mortgage, becomes liable for all the obligations secured, such as dues and premiums, besides principal and interest.^" But it is held elsewhere that the additional liability must be expressly assumed.^' (§3) B. Usury. Conflict of laws." — The contract of a borrowing member of a building and loan association is governed by the law of the place where it is incorporated and has its home ofSce, and where subscriptions to, and instalments on, stock, and interest are payable, though the security is in another state.^* But 4. A complaint of which the by-laws of an association were made a part, held to sufficiently allege when payments on stock were to be made, that stock had not ma- tured, that defendants were In default and that the loan was due and unpaid. Miller V. Wayne International Bldg. & Loan Ass'n [Ind. App.] 70 N. B. 180. See 1 Curr. L. 392. 5. Winegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N. W. 1110. 6. Iowa Business Men's Bldg. & Loan Ass'n V. Berlau [Iowa] 98 N. W. 766. 7. Motes V. People's Bldg. & Loan Ass'n, 137 Ala. 369, 34 So. 344. S. Columbian Bldg. & Loan Ass'n v. Eloe [S. C] 47 S. B. 63. Attorney's fees are prop- erly allowed in foreclosure suit by receiver, the mortgage providing therefor. Ottenso- ser V. Scott [Fla.] 37 So. 161. 9. Fidelity Sav. Ass'n v. Bank of Com- merce [Wyo.] 75 P. 448. Where fines for default in payments of dues on stock are by the by-laws made a lien on the stock, they will be allowed. If reasonable, in determin- ing the withdrawal value of the stock, to be credited on the mortgage debt. Id. 10. One who made payments according to by-laws up to a certain time, and then paid the balance due In a single payment, was entitled to have the bond and mort- gage securing the loan canceled, regardless of the consoionableness or unconsclonable- ness of the contract [Rev. St. 1898, 5 396]. Hiskey v. Pao. States Sav., L. & B. Co. [Utah] 76 P. 20. 11. Hoskins V. Rochester Sav. & Loarf Ass'n [Mich.] 96 N. W. 566. 12. Motes V. People's Bldg. & Loan Ass'n. 137 Ala. 369, 34 So. 344. 13. Coggeshall v. Sussman, 41 Misc. 384, 84 N. T. S. 1097; Noah v. German-American Bldg. Ass'n, 31 Ind. App. 504, 68 N. B. 615. 14. The answer sufficiently set out the defense, though it was not sustained by the evidence. No. 6 Fidelity Bldg. & Sav. Union V. Driver, 31 Ind. App. 691, 69 N. B. 177. 15. Miller v. Wayne International Bldg. & Loan Ass'n [Ind. App.] 70 N. E. 180. 16. A stockholder in a building and loan association borrowed money from it on a vendor's lien note, assigning the stock as security and giving a bond for payment of dues, premiums, etc. He thereafter sold the land to defendant, who assumed the note, but nothing was said in the deed as to assuming liability on the bond. The asso- ciation transferred the stock to defendant without his knowledge and accepted pay- ments on the note. Held, defendant was not liable as a stockholder in the association. Manor v. Aldrlch [C. C. A.] 126 F. 934. 17. See 1 Curr. L. 393. 18. Interstate Bldg. & Loan Ass'n v. Edge- field Hotel Co., 120 F. 422; Alexander v. Southern Home Bldg. & Loan Ass'n, 120 F. 566 BUILDING AND LOAN ASSOCIATIONS § 3B. 3 Cur. Law. if the contract is to be performed in a state other than that of the domicile of tiie corporation, the law of the place of performance governs.^' Exemption from usury laws.'^" — Building and loan associations are usually exempted from the operation of usurj^ laivs/^ mutual participation in profits and losses being the basic principle underlying building and loan contracts, which renders them nonusurious.-^ Some courts hold that premiums and interest are payable under separate and distinct contracts, and are not to be confused so as to render the contract usurious."' A company cannot, by calling itself a building and loan association, acquire the privilege of charging more than the legal interest rate on ordinary loans, if it is not such an association in faet.^* That a com- pany bears the name of a building and loan association imports that it is such in fact, and the burden is on a member asserting the contrary to prove it."° Though the lender be a building and loan association, the contract must be shown to be a building and loan contract, and not a simple loan to one not a member.^" If the relation of corporation and stockholder is a mere fiction, entered into for the purpose of efEecting a loan, the contract will be construed as a simple loan.^' 963; Pacific States Sav., Loan & Bldg. Co. v. Green [C. C. A.] 123 F. 43. A contract re- quiring all payments to be made at the home office of the association in Virgihia, held a, Virginia contract. Columbian Bldg. & Loan Ass'n v. Rice [S. C] 47 S. E. 63. A bond and mortgage given to a Minnesota association, payable at Its home office, is a contract of that state, though real estate security is located In Idaho. Lewis v. Clark [C. C. A.] 129 F. 570. 19. A loan by a Missouri corporation, negotiated with its agent In Kansas, bond and mortgage being executed in Kansas by residents thereof, and mortgage security be- ings situate therein and payment being there made, is a Kansas contract. Royal Loan Ass'n V. Forter [Kan.] 75 P. 484. It was held In Michigan that where a loan made by a foreign corporation, secured by a mort- gage on property in Michigan, the premiums being payable to a local agent therein, the contract will be governed by the laws of Michigan. Hoskins v. Rochester Sav. & Loan Ass'n [Mich.] 95 N. W. 566. And a contract executed in Nebraska, secured by mortgage on property in Nebraska, was held a Ne- braska contract, though the association was incorporated In New York and had its main office there. People's Bldg. Loan & Sav. Ass'n V. Pariah [N6b.] 96 N. "W. 243. After insolvency of an a,ssociation, where evi- dences of indebtedness have passed into the hands of strangers, the rights of a borrow- ing member will be governed by the law of his domicile, not the domicile of the associa- tion. Spinney v. Chapman, 121 lov/a, 38, 95 N. -W. 230. 20. See 1 Curr. L. 394. 21. Missouri. Stanley v. Verity, 98 Mo. App. 632, 73 S. W. 727. Iowa. Bacon v. Iowa Sav. & Loan Ass'n, 121 Iowa, 449, 96 N. W. 977. The fact that one not a member be- comes a surety for a member of an associa- tion, securing a loan, does not take the contract out of the statute permitting build- ing and loan associations to charge rates of interest higher than the legal rate. Wife gave note and mortgage on her separate property, securing loan, her husband sign- ing as surety. Wife was a member of the association, husband was not. Le Mars Bldg. & Loan Ass'n v. McLain, 120 Iowa, 527, 94 N. W. 1122. Rev. St. Ohio, § 3836, exempt- ing such associations from the usury laws, is constitutional. Brooklyn Bldg. & L. Ass'n Co. V. Besnoyers, 4 Ohio C. C. (N. S.) 337. Premiums %,nd fines, when imposed by build- ing associations, are not usury if reason- able. Spies V. Southern Ohio Loan & Trust Co., 4 Ohio C. C. (N. S.) 103. A contract of a borrowing member of an association held not inequitable, owing to character and pur- pose of the organization. Pacific States Sav. Loan & Bldg. Co. v. Green [C. C. A.] 123 F. 43. A contract whereby the borrowing mem- ber received ?1,500 and agreed to pay 6% interest, and premiums amounting to $108 annually, and dues on the stock, profits be- ing credited to the stock, held not so In- equitable and unconscionable that it will not be enforced. Fidelity Sav. Ass'n v. Bank of Commerce [Wyo.] 75 P. 448. 22. Rooney v. Southern Bldg. & Loan Ass'n, 119 Ga. 941, 47 S. B. 345. 23. Motes V. People's Bldg. & Loan Ass'n. 137 Ala. 369, 34 So. 344. The loan contract of a borrowing member is separate from his contract as a stockholder, and payments on stock are not to be treated as payments on the loan. Suit to rescind certain contracts with association. Bell v. Southern Home Bldg. & Loan Ass'n [Ala.] 37 So. 237. Even though premiums be regarded as additional interest on the loan, they are not invalid unless they violate some usury statute. Fi- delity Sav. Ass'n v. Bank of Commerce [Wyo.] 75 P. 448. 24. 25. Rooney v. Southern Bldg. & Loan Ass'n, 119 Ga. 941, 47 S. B. 345. 26. Royal Loan Ass'n v. Forter [Kan.] 75 P. 484. 27. All payments will be credited on the loan. Hence borrowing stockholder not es- topped to claim such application of pay- ments on the ground that if the claim had been made earlier, the moneys received would not have been disposed of as they were. Johnson v. Washington Nat. Bldg. Loan & Inv. Ass'n [Or.] 77 P. 872. For a loan of $500, a note for $714 was given, to be paid in monthly instalments of $8.40. $2.50 monthly being also payable as inter- est, stock being issued. American Mut, Bldg. £ Cur. Law. BUILDING AND LOAN ASSOCIATIONS § 3B. 567 The statutes of many states exempting building association loans from the usury statutes provide for a system of competitive bidding to determine the pre- miums on loans.'" The provisions of such statutes must be strictly followed in order to bring the contract within the protection furnished/* and, where they exist, the charging of premiums arbitrarily fixed in amount, renders the contract usuri- ous.'" But the mere existence of a by-law fixing a minimum premium will not render a loan usurious, if it was in fact made after free competition, and the premium bid was higher than the fixed minimum.'^ Where competitive bidding is not required, the statute may permit the borrower and association to agree on a premium rate in addition to interest,'^ sometimes limiting the total amount charged.'' In some jurisdictions, building and loan contracts are subject to the usury laws,'* and where regarded as usurious, all payments are credited on the principal and interest of the loan,'° and if the amount so paid is in excess of the principal & Sav. Ass'n v. Cornlbe [Tex. Civ. App.] 80 S. W. 1026. An answer setting up in sub- stance that a contract was a building and loan contract in form only, to evade the usury laws, was not subject to demurrer on the ground that it attempted to set up usury and failed to allege facts showing the con- tract was not privileged. National Bldg. Ass'n V. Quin [Ga,] 47 S. B. 962. 28. Competitive bidding for the premium to be paid for the preference of priority of loans is an essential feature of the building society plan, with which foreign corpora- tions doing business in Florida must com- ply [Laws 1893, c. 4158]. Skinner v. South- ern Home Bldg. & Loan Ass'n [Fla.] 35 So. 67. 29. A premium of 20%, and 8% on the face of the loan, the agreement being fixed in private and not by competitive bidding as required by statute, is usurious. Assets Realization Co. v. Wightman, 105 111. App. 618. 30. Where the statute required competi- tive bidding, an association by-law author- izing the secretary and cashier to make loans at a premium not less than the av- erage for the last three months, is illegal; and premiums thereunder illegal. Mutual Home & Sav. Ass'n v. Worz, 67 Kan. 506, 73 P. 116. A foreign building and loan as- sociation cannot charge a fixed premium and interest on loans to members in Flor- ida, the contract being one made in and governed by Florida laws. Skinner v. South- ern Home Bldg. & Loan Ass'n [Fla.] 35 So. 67. A by-law of a building association which fixes a minimum premium, higher than the rate of interest allowed by statute, is in- consistent with the statute requiring loans to shareholders to be made upon competi- tive bidding, and renders any loan made in accordance with It usurious. McDonnell v. De Soto Sav. & Bldg. Ass'n, 175 Mo. 250, 75 S. W. 438; Klttredge v. Chillicothe Loan & Bldg. Ass'n [Mo. App.] 77 S. W. 147. Pre- mium being exacted without competitive bidding, as required by statute, but included in a note, the note was held usurious to that extent, and the premium applied on the note as of its date [Rev. St. 1889, §§ 2812, 2814; Rev. St. 1899, 5 3709]. Lewis v. Farm- ers' Loan & Bldg. Ass'n [Mo.] 81 S. W. 887. 31. A borrower, who obtains, after com- petitive bidding, a loan at a premium in advance of the minimum fixed by the by- laws of the association, cannot take advan- tage of the minimum so fixed. Daily v. Saginaw Bldg. & Loan Ass'n [Mich.] 95 N. W. 326; Klttredge v. Chillicothe Loan & Bldg. Ass'n [Mo. App.] 77 S. W. 147. 32. Where an association deducted from the amount of a loan to a member, certain monthly instalments of dues, payable in ad- vance, and required in addition monthly payments, including premiums payable peri- odically, such exaction of a double premium was held not to be permitted by Burns' Rev. St. 1901, ; 4463i, allowing the borrower and association to agree on a premium rate in addition to interest, without bidding. Cop- pes V. Union Nat. Sav. & Loan Ass'n [Ind. App.] 67 N. B. 1022. Corporations created under Laws 1892, c. 689 may charge both interest and premiums. Coggeshall v. Suss- man, 41 Misc. 384, 84 N. T. S. 1097. A con- tract of a loan association Incorporated un- der Laws 1851, c. 122, compelling a bor- rower to pay both Interest and premiums, is not usurious. Roberts v. Murray, 40 Misc. 339, 81 N. T. S. 1023. 33. A stipulation in the bond of a bor- rowing member that, on maturity of the stock, total payments of instalments, inter- est and premiums shall not exceed the amount of the loan with the highest inter- est allowed by statute, entitles the borrow- er to the benefit thereof only on maturity of the stock. Georgia State Bldg. & Loan Ass'n V. Grant [Miss.] 34 So. 84. 34. People's Bldg. Loan & Sav. Ass'n v. Parish [Neb.] 96 N. W. 243. In Nebraska, the usury laws apply to contracts made by foreign associations before the passage of statutes permitting them to do business In the state. A loan contract calling for in- terest and dues, $660 having been paid and $495 actually received, held usurious. Clarke V. Woodruff [Neb.] 100 N. W. 314. A loan association contract requiring fixed monthly payments of interest, premiums and dues until stock is fully paid up is usurious. Har- per V. Middle States Loan, Bldg. & Const. Co. [W. Va.] 46 S. B. 817. Such a contract is usurious because such payments are pay- able for an indefinite period. Prlnca v. Hol- ston Nat. Bldg. & Loan Ass'n [W. Va.] 46 S. B. 708. 35. Prince v. Holston Nat. Bldg. & Loan Ass'n [W. Va.] 46 S. B. 708. In Utah, it 568 BUILDING AND LOAN ASSOCIATIONS § 30. 3 Cur. Law. and interest, the excess may be recovered," in the absence of a statute to the contrary.'' But it has been held that one who voluntarily pays usurious interest cannot recover any part thereof, in an action at law, but if the payment of such interest was induced by fraud, a suit in equity will lie.'' A valid compromise may be made of an alleged usurious debt.'" A grantee of property mortgaged to secure a debt to an association, usurious as to an illegal premium, who knows nothing of the premium, which is not mentioned in the mortgage, may set up the usury against the association.*" In an action to cancel a Hen and declare a debt usurious, the court properly decreed cancellation of the stock given by defendant association, under the prayer for other and further re- lief." (§ 3) C. Accounting with iorrower while solvent.*" — A borrowing member of a going concern is only chargeable with his loan and legal interest, and should be credited with all payments, whether made as dues, premiums or interest,*' and with the withdrawal value of his stock at the time he received the loan,** together with the dividends earned previous to the association's insolvency.*^ The value Is held that borrowing members are entitled to have monthly payments of dues and pre- miums credited on the loan. Hiskey v. Pa- cific States Sav., Loan & Bldg. Co. [Utah] 76 P. 20. In Oregon, building and loan as- sociation contracts calling for interest, pre- miums and dues are held usurious as to all payments in excess of the stipulated rate of Interest, and such payments in excess are applied in extinguishment of the debt and Interest. Contract called for 6% interest annually, 6% annual premium, and $9.75 per month on 15 shares of stock pledged to se- cure the loan. Bpping v. Washington Nat. Bldg., Loan & Inv. Ass'n [Or.] 74 P. 923. 36. Harper v. Middle States Loan, Bldg. & Const. Co. [W. Va.] 46 S. B. 817. 37. Contract being usurious, the receiver could recover only the principal, after de- ducting all payments made, neither costs nor interest being In such case recoverable [Rev. St. 1893, § 1390]. Carpenter v. Lewis, 65 S. C. 400, 43 S. E. 881. 38. Action to recover payments made to an association represented to be a mutual building association. Beach v. Guaranty Sav. & Loan Ass'n [Or.] 76 P. 16. 39. Association claimed debt valid under Minnesota law and borrower claimed it usu- rious under Kentucky law. Gray v. U. S. Sav. & Loan Co., 25 Ky. L. R. 1120, 77 S. "W. 200. 40. Lewis V. Farmers' Loan & Bldg. Ass'n [Mo.] 81 S. W. 887. 41. American Mut. Bldg. & Sav. Ass'n v. Carnibe [Tex. Civ. App.] 80 S. W. 1026. In an action to cancel a lien and declare a debt usurious, evidence connecting the per- son effecting the loan with a building and loan association, defendant, was admissi- ble. Id. 42. See 1 Curr. L. 398-400. 43. National Bldg. & Loan Ass'n v. Pris- ble, 25 Ky. L. R. 449, 76 S. W. 7; Yager v. National Bldg. & Loan Ass'n, 25 Ky. L. R. 1853, 79 S. W. 197. Where by-laws provided for payment of 50 cents a month on each $100 of money borrowed, and a bond secur- ing a loan, provided for a premium of 50 cents a month on each share of stock, the face value of which was $100, held, such payments under the bond should be treated as premiums by a borrowing member as such, and not dues on the stock. Miller v. Wayne International Bldg. & Loan Ass'n [Ind. App.] 70 N. B. 180. Held, under a provision In the bond of a borrowing mem- ber, as to final settlement, he was to be charged with the amount actually advanced him, with Interest at 8 per cent, and credited with Instalments on stock and Interest paid. Interstate Bldg. & Loan Ass'n v. Bdgefleld Hotel Co., 120 F. 422. But not with pre- miums for Insurance on mortgaged premises. Alexander v. Southern Home Bldg. & Loan Ass'n, 120 F. 963. A provision of a. by-law that where a contract Is governed by stat- utes limiting the amount of premium and interest, only so much of the premiums will be taken as profits, as will, with Interest, amount to the highest interest rate there allowed, the balance of premiums being used in settlement in reduction of the debt, means that the benefit allowed can be taken advantage of only on final settlement, after maturity of the stock. Georgia State Bldg. & Loan Ass'n v. Grant [Miss.] 34 So. 84. Applicant to a loan Association for a loan of $40,000 was told that under the rules of the association as to fees, dues, etc., the initial payment would be $1,000. He accepted $39,- 000. Held, In suit to foreclose mortgage, the $1,000 payment was voluntary and de- fendant was not entitled to any credit there- for. State Mut. Bldg. & Loan Ass'n v. O'Cal- laghan [N. J. Eq.] 57 A. 496. 44. Interstate Bldg. & Loan Ass'n v.' Holland, 65 S. C. 448, 43 S. B. 978. Upon winding up the affairs of an association, it is competent for the stockholders to de- termine the liability of a borrowing member by making a final estimate of the value of the stock and deducting this from the amount of his Indebtedness. Star Loan Ass'n v. Moore [Del. Super.] 55 A. 946. But a payment of an amount so determined Is not a discharge of the debtor, unless the estimate of the value of the stock is final, and not to be changed by subsequent dis- position of property. Id. 45. Where a stockholder institutes a suit to pay off a loan and withdraw while the association Is a going concern, his right to be credited with the value of his pledged 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS § 3D. 569 of stock, surrendered to be credited on a loan, is determined by the assets end liabilities of the association at the time of the surrender, and not by the amount paid thereon.*' A member is bound by by-laws fixing the withdrawal value of his stock, if such by-laws do not contravene any law.*'' A tender by a borrowing member, before the voluntary liquidation of the association, renders him liable only for his loan and interest, and not for' losses, and entitles him to credit for all pay- ments.** A borrowing member is not entitled to have credited on his loan ad- mission fees, stock dues, and fines, paid before he became a borrower.*' A bor- rowing member seeking to have his contract declared usurious cannot be credited, on the loan, with fines, withdrawal fees, and amounts paid on expense accounts as a stockholder."" Where a borrowing member has a final settlement with the asso- ciation, while solvent, he may recover thereafter for usury paid the association, and is not chargeable with losses accruing after such final settlement.^^ Notice of settlement and withdrawal may be waived."' A withdrawing stockholder should be charged vnth interest on the full amount of the loan, since the deductions of premium, being illegal, were credited on the loan."' In Iowa, a borrower is charged with the fuU amount of the loan received by him, together with delinquent dues, interest, premium, and fines, and credited with the withdrawal value of the pledged stock, but no greater recovery can be had against him than the net amount of the priacipal actually received, with interest thereon at a rate not greater than twelve per cent."* After completed settlement and withdrawal, it is immaterial whether the contract was one which the association had power to make."" (§ 3) D. Accounting after msolvency.^' — Insolvency works a rescission of the contract between the association and its members, and loans made by it become stock and dividends, at the time he de- manded a settlement, la not affected by the subsequent insolvency of the association. Reitz V. Hayward, 100 Mo. App. 216, 73 S. W. 374. A borrowing member, having pledged stock as collateral, was permitted, in a suit to foreclose a trust deed, to recover the dif- ference between the principal of the note and the value of his paid-up stock and ac- cumulated profits. Western Loan & Sav. Co. V. GarfE [Utah] 75 P. 375. 46. Peal V. Citizens' Bldg. & Loan Ass'n's Assignee, 25 Ky. L. R. 1084, 77 S. W. 932. The credit to be allowed a withdrawing member, repaying his loan, on his pledged stock. Is computed a.ccording to the actual value of the stock at the time of settle- ment. Reitz V. Hayward, 100 Mo. App. 216, 73 S. W. 374. 47. A deduction from first stock payment for reserve fund is not violative of Civ. Code, i 634, limiting an entrance fee to a smaller sum. Provident Mut. Bldg.-Loan Ass'n v. Davis [Cal.] 76 P. 1034. 48. National Bldg. & Loan Ass'n v. Frls- ble, 25 Ky. L. R. 449, 76 S. "W. 7. 49. Interstate Bldg. & Loan Ass'n v. Hol- land, 65 S. C. 448, 43 S. B. 978. 50. - Georgia State Bldg. & Loan Ass'n v. Grant [Miss.] 34 So. 84. 51. Olllges V. Kentucky Citizens' Bldg. & Loan Ass'n's Assignee, 24 Ky. L. R. 1954, 72 S. W. 747. 52. 53. Reitz v. Hayward, 100 Mo. App. 216, 73 S. "W. 374. 54. Bacon v. Iowa Sav. & Loan Ass'n, 121 Iowa, 449, 96 N. W. 977. In a suit to fore- close a mortgage securing a bond, which provided a greater rate of interest than 12%, thp amount due was the amount received on the loan, with Interest at 12%, less the withdrawal value of the stock, and Interest already paid. Iowa Cent. Bldg. & Loan Ass'n V. Klock [Iowa] 94 N. W. 1120. 55. Floyd- Jones v. Anderson [Mont.] 76 P. 751. 66. BTOTE;. Effect of Insolvency on bor- rofrlng members; The contract made by a borrowing member with the association is to the effect that he will pay dues, premiums, and fines, and that he will repay his loan as provided for In the note or other evidence of Indebtedness given by him. Since, when an association becomes insolvent, a realiza- tion of the aims of the association and the expectations of members becomes impossi- ble, the courts treat the contract as rescind- ed or terminated by Insolvency, and refuse to enforce the obligations of the borrowing member thereunder, or enforce them in a manner equitable to borrowing and non- borrowing members alike. Low St. Bldg. Ass'n v. Zucker, 48 Md. 448; Knutsen v. Northwestern Loan & Bldg. Ass'n, 67 Minn. 201, 69 N. W. 889; Strohen v. Franklin Sav. Fund & Loan etc. Ass'n, 115 Pa. 273, 8 A. 843. Thus, after insolvency, neither the cor- poration nor Its receiver can enforce sub- sequently accruing liabilities for dues or premiums. Curtis v. Granite State Provi- dent Ass'n, 69 Conn. 6, 36 A. 1023. Low St. Bldg. Ass'n V. Zucker, 48 Md. 448. Loans become Immediately due and collectible upon insolvency. Curtis v. Granite State Provi- dent Ass'n, 69 Conn. 6, 36 A. 1023; Strauss v. Carolina Inter-State Bldg. & Loan Ass'n, 117 N. C. 308, 23 S. B. 450, 53 Am. St. Rep. 586. In allowing credit upon the loan made to a borrowing member, the theory of the cases Is to place borrowing and nonborrow- 570 BUILDING AND LOAN ASSOCIATIONS 8 3D. 3 Cur. Law. at once due and payable, regardless of the terms of the contract.'^ The borrower is charged with the amount of his loan with interest."* Payments actually made, referable to the loan,"' such as interest and premiums, '"' are credited thereon; but payments on the stock, such as dues, cannot be credited on a member's loan,*' since credit therefor can be given only after final distribution by the receiver,'^' when aU shareholders, borrowing and nonbofrowing, will be paid pro rata from the fund for final distribution.*' On final settlement, the borrowing member is entitled to be credited only with the actual value of his stock, not its face value.'* T\^iere a shareholder, after notice of withdrawal, borrows a sum less than the withdrawal value of his stock, he cannot, in au action by the receiver after in- solvency to recover the loan, offset the withdrawal value of his stock.*" Mter insolvency, caused by no fault of a borrowing member, the latter is not chargeable ing members on the same terms as stock- holders. Consequently, the borrowing mem- ber, after insolvency, cannot be credited with dues' on stoclc, since this would amount to a withdrawal, to the prejudice of non- borrowing members and creditors. The bor- rowing member, after insolvency, Is there- fore charged with the sum actually received on his loan, and Interest thereon, and credit- ed with all payments made as a borrower, but not credited with sums paid as a stock- holder. Curtis V. Granite State Provident Ass'n, 69 Conn. 6, 36 A. 1023; Hekelnkaemper V. German BIdg. & Sav. Ass'n, 22 Kan. 549; Rogers v. Rains, 18 Ky. L. R. 768, 38 S. W. 483; Strohen v. Franklin Sav. Fund & Loan Ass'n. 115 Pa. 273, 8 A. 843. It has been held in Illinois, however, that the borrowing member should not be credited with pre- miums. Choisser v. Young, 69 111. App. 252; Towle V. American Bldg., Loan & Inv. Soc, 61 F, 446. In Maryland, the borrowing mem- ber is charged with Interest at the legal rate only, and not the rate charged in the note and mortgage. Windsor v. Bandel, 40 Md. 172; Waverly Mut., etc. Ass'n v. Buck, 64 Md. 338, 1 A. 561. In North and South Carolina, the borrowing member is credited with all payments, including dues on the stock. Strauss v. Carolina Inter-State Bldg. & Loan Ass'n, 117 N. C. 308, 23 S. B. 450, 53 Am. St. Rep. 585; Bulst v. Bryan, 44 S. C. 121, 21 S. B. 537, 51 Am. St. Rep. 787. — From note to Curtis v. Granite State Provident Ass'n [Conn.] 61 Am. St. Rep. 24. See 1 Curr. L. 400. 57. Lewis v. Clark [C. C. A.] 129 F. 670. After a building and loan association has become insolvent and passed into the hands of a receiver, the borrowing member's obli- gation will be regarded as a simple loan, upon which payments actually made, except stock payments, will be credited, and the balance will be regarded as a debt at once due and payable. Spinney v. Chapman, 121 Iowa, 38, 95 N. W. 230. But premiums agreed to be paid cannot be charged against the borrower. Roberts v. Murray, 40 Misc. 339, 81 N. Y. S. 1023. 58. In settling a debt of a borrowing member to an insolvent building and loan association, interest at 6% is computed on the sum actually received and all payments are credited on the loan. Carman v. Carrlco, 25 Ky. L. R. 2143, 80 S. W. 216. Upon fore- closure of a mortgage against a member after insolvency, the mortgagor should be charged with the amount of his loan, with I interest, and credited with Interest paid and interest on the installments of interest. Monier v. Clarke [N. M.] 75 P. 35. The interest chargeable on the loan should be at the legal rate, where the contract was made. 7% on Minnesota contract. Id. In Nebraska, a loan contract being usurious, the borrower, in foreclosure suit by receiver, was held only for amount actually received. Clarke v. Woodruff [Neb.] 100 N. W. 314. 50. The loan and stock contracts of a borrowing member are separate and dis- tinct; and in the final accounting after in- solvency all payments referable to the loan contract should be credited thereon. Riggs V. Capital Brick Co., 128 F. 491. 60. Steele v. New Park City Bldg. & Loan Ass'n, 24 Ky. L. R. 2303, 74 S. W. 177. And for usurious premiums and Interest thereon. Gary v. Verity, 101 Mo. App. 586, 74 S. W. 161. In foreclosure suit after in- solvency, the borrower is chargeable with the ' amount of his loan, with interest, and credited with interest and premiums paid applied according to rule of partial pay- ments. Riggs V. Capital Brick Co., 128 F. 491. 61. Sleeper v. Winkel, 122 F. 736; Peal V. Citizens' Bldg. & Loan Ass'n's Assignee, 25 Ky. L. R. 685, 76 S. W^. 332; Yager v. Na- tional Bldg. & Loan Ass'n, 25 Ky. L. R. 1853, 79 S. W. 197. In foreclosure suit after in- solvency a borrowing member cannot have dues and premiums credited on the loan. Roberts v. Cronk, 88 N. T. S. 103. 62. Roberts v. Murray, 40 Misc. 339, 81 N. Y. S. 1023. 63. Steele v. New Park City Bldg. & Loan Ass'n, 24 Ky. L. R. 2303, 74 S. W. 177; Gary v. Verity, 101 Mo. App. 586, 74 S. W. 161. After the debts of an Insolvent asso- ciation have been paid, a borrowing mem- ber is entitled to a pro rata dividend with nonborrowing members on the stock. Monier V. Clarke [N. M.] 75 P. 35. 64. Ottensoser v. Scott [Fla.] 37 So^ 161. In a suit by an assignee of claims against a borrowing member of an insolvent associa- tion, which had passed Into the hands of a receiver, such debtor was credited with pay- ments of interest and premiums and with the actual value of his stock, and charged with Interest at 6% from the time the re- ceiver was appointed, on the balance found due. Spinney v. Chapman, 121 Iowa, 38, 95 N. W. 230. 65. GasklU v. Polhemus [N. J. Brr & App.] 57 A. 1048. 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS § 4. 571 with earned premium, bid by him for priority of loan and deducted from th« sum loaned.®* § 4. Termination and insolvency. Voluntary liquidation.^'' — An association may go into Toluntary liquidation and so defeat the right of a borrowing member to a settlement with it as a going concern."^ Under a statute permitting corpora- tions to go into voluntary liquidation by the written consent of the owners of a majority of the stock, a pleading setting up such liquidation of a building and loan association must allege that a resolution to go into liquidation was passed with the consent required by law." Receivership.'"' — A mere debtor of an association cannot maintain a bill to wind up its afEairs and distribute its assets.'^ A borrowing member of an associa- tion cannot in a single bill in equity ask, as debtor, that his stock be declared illegal and his obligation on the loan canceled for usury, and also, as stockholder, ask to have the business of the association wound up and its assets distributed.''^ Upon the appointment of a receiver of an insolvent association, its business ceases and notliing remains but liquidation.'" To authorize the court to enter Judgment dii-ecting a receiver to proceed with vraiding up the afEairs of the association, the report of the receiver must be reasonably certain and definite as to assets and liabilities of the association, and probable cost of settling.'* Before judgment may be entered winding up the affairs of the association, proof must be heard on con- tested questions of fact raised by shareholders' exceptions to the receiver's report.'" Only reasonable diligence is required of a receiver." Insolvency" of a building and loan association consists of its inability to per- form the purposes for which it was created." Insolvency is always a question of fact and is never presumed.'" Mere deficiency of assets does not constitute in- solvency, but merely a loss of capital stock and security, and depreciation of stock held by the members.*'* Payments on stock are liabilities in determining solvene}^.*^ Bights of withdrawing shareholders.^^ — The directors of a building and loan association cannot require a member to withdraw his investment, except in pur- ee. Authorities pro and con cited. Ot- tensoser v. Scott [Pla.] 37 So. 161. e7. See 1 Curr. L. 403. es, e». Tag-er v. National Bldg-. & Loan Ass'n, 25 Ky. L,. R. 1853, 79 S. W. 197. 70. See 1 Curr. L. 402. 71. Day v. Nat. Mut. Bldg-. & Loan Ass'n, 53 W. Va. 550, 44 S. E. 779. 72. Bill dismissed for multifariousness. Day V. Nat. Mut. Bldg. & Loan Ass'n, 53 W. Va. 550, 44 S. B. 779. 73. Monier v. Clarke [N. M.] 75 P. 35. 74. 75. Steele v. New Park City Bldg. & Loan Ass'n, 24 Ky. L. R. 2303, 74 S. W. 177. 76. Laws 1902, c. 60, § 3, requiring the receiver of a building association to "pro- ceed immediately" to convert assets Into cash, requires only reasonable diligence and speed, and does not require a sacrifice of the assets. People v. New York Bldg. Loan Banking Co., 41 Misc. 363, 84 N. T. S. 844. 77. See 1 Curr. L. 402. 78. Lewis V. Clark [C. C. A.] 129 F. 570. 79. 80. Floyd-Jones v. Anderson [Mont.] 76 P. 751. 81. So an association incorporated under Laws 1851, c. 122 is Insolvent when unable to repay contributions of members for stock. People v. New York Bldg. Loan Banking Co., 41 Misc. 363. 84 N. T. S. 844. 82. NOTE. Withdrawal: The rules of building and loan associations usually pro- vide that stockholders may withdraw, on giving the proper notice, and that their claims will be paid in the order In which such notices mature. The status of a mem- ber after giving notice of withdrawal is the subject of much dispute. It has been held that on compliance with the conditions of a withdrawal, a shareholder becomes a cred- itor of the association and is no longer a member. Englehardt v. Fifth "Ward, etc. Ass'n, 5 Misc. 518, 25 N. T. S. 835; Id., 148 N. T. 281, 42 N. E. 710, 35 L. R. A. 289; In re Norwich & N. Provident Bldg. Soc, 45 Law J. Ch. [N. S.] 785; U. S. Bldg. & Loan Ass'n v. Silverman, 85 Pa. 394; Maloney v. Real Estate, Bldg. & Loan Ass'n, 57 Mo. App. 384. But most oases Indicate that member- ship may continue for some purposes after notice of withdrawal has been given. Thus it was held that their claims are very differ- ent from those of general outside creditors. Christian's Appeal, 102 Pa. 184. See, also. Sibun V. Pearce, 44 Ch. Div. 354, 63 Law T. [N. S.] 123; Walker v. General Mut. Bldg. Soc, 36 Ch. Div. 777, 57 Law T. [N. S.] 574. Rights of -wlthdra-wing members when as- sociation Is insolvent) According to the English doctrine, members whose notices of withdrawal have matured before the date of a deed of dissolution, or order to wind up the affairs of the association, are entitled to priority over other members, but ^o<' 573 BUILDINGS AND EESTEICTIONS § 1. 3 Cur. Law. iuance of a valid by-law.*' A borrowing member of an association who gives notice of withdrawal does not become ipso facto a creditor of the association for the withdrawal value of his shares, or for the excess thereof over his indebtedness, so as to exempt his stock from its share of the general indebtedness.'* A mem- ber who withdraws at a time when the association is in fact, though not notoriously, insolvent, no legal steps having been taken to wind up its affairs, has only the right to a pro rata share in the distribution of assets, not the right of a creditor.'^ The fact that an agreement was made between the association and the withdraw- ing member, compromising the latter's claim, does not change the rule.*" But where a stockholder serves notice of withdrawal of stock, in accordance with the constitution and by-laws, and the claim, though persisted in, is not paid, such claim, after insolvency and receivership of the association, becomes a preferred one.*' Where a member of a building and loan association has made full settlement and withdrawn therefrom, such settlement and withdrawal cannot be set aside by the association without a showing of fraud or bad faith.** BUILDINGS AND BTTIIiDIKTG KBSTBICTIOWS. i 1. Pnbllc Resnlatlon (572). § 2. Private Regulation. Restrictive Cov- enants (574)* 9 3. Uablllty for Unsafe Condition ol Premises (576). § 4. Liability for NesUgent Operation oi Elevators (576). § 1. Public regulation.^" — ^An ordinance prohibiting construction does not over outside creditors of tlie association. Barnard v. Tomson [1894] 1 Ch. 374; "Walton V. Edge, 10 App. Cas. 33, 54 Law J. Ch. [N. S.] 362, 52 Law T. [N. S.] 666; In re Mid- dlesbrough, E. S. & C. Dlst. Permanent Ben. Bldg. Soc, 53 Law T. [N. S.] 203. But there Is no such right of priority, when at the time of giving or maturity of such notices, the association was known to be insolvent. In re Sunderland 36th Universal Bl'dg. Soc, 24 Q. B. Dlv. 394. The American cases adopt a different doc- trine and hold that "when an association Is in fact insolvent, a withdrawing member has the right to a pro rata share only, even though he believed the association solvent when he gave his notice. Chapman v. Young, 65 111. App. 131. An order for the amount of his claim does not make him a general creditor. Christian's Appeal, 102 Pa. 184; In re National Sav. Loan & Bldg. Ass'n's Estate, 9 Wkly. Notes Cas. 79. A judgment for the amount of his claims cannot be en- forced by execution so as to cut out cred- itors or stockholders, but may stand as the basis on which to compute his pro rata share on final distribution. Hanney v. En- terprise Sav. Fund & Bldg. Ass'n, 16 Wkly. Notes Cas. 450. See 1 Curr. L. 402. 83. A by-law permitting the directors to require the withdrawal of a member, to be designated at their pleasure, such selection not being based on any equitable principle or rule of general application. Is Invalid and inoperative as to one who was a member when the by-law was passed. Ottawa Mut. Loan & Sav. Ass'n v. Merriman, 67 Kan. 779, 74 P. 256. 84. Coggeshall v. MoGrath, 89 N. T. S. 334. A member, appearing as a claimant upon the estate of an Insolvent association, "upon the ground of his stock interest, is to be treated as a member, and not as a creditor." Walker v. Terry, 138 Ala. 428, 35 So. 466. 85. Colin v. Wellford [Va.] 46 S. E. 780. It Is Immaterial that the fact of insolvency was not known to the shareholder. Reitz V. Hayward, 100 Mo. App. 216, 73 S. W. 374. 86. Colin V. Wellford [Va.] 46 S. B. 780. 87. Silvers v. Merchants' & M. Sav. Fund & Bldg. Ass'n [N. J. Bq.] 56 A. 294. 88. Ploycf-Jones v. Anderson [Mont.] 76 P. 751. 89. NOTE. Validity of regrnlations i Build- ing restrictions being Justifiable only as an exercise of the police power (as to which see Constitutional Law, 1 Curr. L. 676 and Municipal Corporations, 2 Curr. L. 967), they must not only be designed to serve some end of public welfare, but must be reasona- ble In their character. Thus requirement ol a building permit la usually sustained (Hasty V. Huntington, 105 Ind. 540, 5 N. B. 559), but arbitrary power to deny the same must not be vested In the ofilcer charged with their Issuance (Bostock v. Sams, 95 Md. 400, 52 A. 665, 93 Am. St. Rep. 394 [with note] ; City of Sioux Falls v. Klrby, 6 S. D. 62, 60 N. W. 156; State v. Tenant, 110 N. C. 609, 14 S. E. 387). To sustain a regulation as to the height of buildings a very clear case of public necessity must appear. Parker v. Com., 178 Mass. 199, 59 N. E. 634. Requirement of noneombustible materials within, reasonable fire limits is generally sus- tained. Canepa v. Birmingham, 92 Ala. 358, 9 So. 180; Ex parte PIske. 72 Cal. 125, 13 P. 310; Ford V. Thralklll, 84 Ga. 169, 10 S. E. 600; King V. Davenport, 98 111. 305; First Nat. Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434; City ol Salem v. Maynes, 123 Mass. 372; Alexander V. Greenville, 54 Miss. 659; Hubbard v. Med- tord, 20 Or. 315, 25 P. 640; Kllngler v. Blckel, 117 Pa. 326, 11 A. 555; Brady v. N. W. Ins. Co., 11 Mich. 425; State v. Johnson, 114 N. C. 846, 19 S. E. 599. As have regulations re- quiring fire escapes (Arms v. Ayer, 192 111. 3 Cur. Law. BUILDINGS AKD EESTEICTIONS § 1. 573 prohibit repair,"" but under a statute prohibiting enlarging of buildings, no sub- stantial change will be permitted.*^ A city council cannot be vested with discrim- inatory power in granting building permits,"^ nor can it deny lawful permits,'' nor forbid the erection of a negro church on the ground that it is a nuisance,"* nor during the life of a general ordinance, cancel a building permit granted in con- formity with its provisions."" The inadvertent omission of a word in a permit will not be allowed to jiegative the authority therein granted."' Increased danger of fire and general depreciation of value of neighboring property are not grounds for injunctive relief against the erection of a building."' A city granting a build- ing permit does not render itself liable for the negligent act of the builder." The supervision of construction of buildings by public authorities is regulated by statute.®" A certificate issued by the building inspector that a statute relative to fire escapes has been complied with relates to the building and is available to succeed- ing ovniers;* it is conclusive as to compliance, and relieves the owner from any liability,^ but it must afBrmatively appear that inspection has been made.' The 601, 61 N. E. 851; WiUy v. Mulledy, 78 N. T. 316; Sohott V. Harvey, 105 Pa. 222); or the maintenance of water closets, sewers, etc. (Sprigs V. Garrett Park, 89 Md. 406, 43 A. 813; Com. v. Roberts, 155 Mass. 281, 29 N. H. 522); or the maintenance of a water supply on each floor of a tenement building (Health Dept. V. Rector, 145 N. T. 32, 39 N. E. 833). Regulations for the public health or safety may be made applicable to buildings in ex- istence at the time of the enactment. Com. V. Roberts, 155 Mass. 281, 29 N. B. 522; Health Dept. v. Rector, 145 N. T. 32, 39 N. B. 833. — Prom note to Bostock v. Sams, 95 Md. 400, 52 A. 665, 93 Am. St. Rep. 394. See 1 Curr. Li. 404. 90. That no building shall be "constructed or reconstructed" except of Incombustible material does not prohibit the repair of wooden buildings [Ordinance No. 907, city of Bradford]. Contas v. Bradford, 206 Pa; 291, 55 A. 989. 91. Under Stat. 1900, o. 321, requiring buildings erected or enlarged for use as a hotel to be of first class construction, the term "enlarged" would embrace a carrying up of the walls of a building with a slanting roof, though the height of the roof was not changed. Murdock v. Swasey, 183 Mass. 573, 67 N. B. 671. 92. An ordinance giving the common council discriminatory power to issue build- ing permits or to determine when a struc- ture is injurious to the reasonable enjoy- ment of adjacent owners is unconstitutional. Boyd V. Board of Councllmen, 25 Ky. L. R. 1311, 77 S. W. 669. 93. Ky. St. 1899, § 3290 sought to prevent erection of a negro church. Boyd v. Board of Councllmen, 25 Ky. L. R. 1311, 77 S. W. 669. 94. Ky. St. § 3290. Boyd v. Board of Councllmen, 25 Ky. L. R. 1311, 77 S. W. 669. 95. Gallagher v. Plury [Md.] 57 A. 672. 96. The word "stable" in a permit for "carriage house, stable and coal shed." Gal- lagher V. Flury [Md.] 57 A. 672. 97. A stable. It will not be presumed that fllth will be allowed to accumulate. Gallagher v. Plury [Md.] 57 A. 672. The proximity of such buildings Is an incident of city life. Id. 98. Material dropping on pedestrians In the street below. Copeland v. Seattle, 33 V^ash. 415, 74 P. 582. 99. The fact that the public buildings law of New York makes it the duty of the state architect to prepare plans for state buildings and exact construction in con- formity thereto does not take public bullr- ings from the operation of the law requiring descriptions and drawings of plumbing and drainage of public and private buildings in New York City to be filed in the department of buildings and approved by the superin- tendent of buildings before work is com- menced thereon [Laws 1896, p. 1055, c. 803, § 5. Public Buildings Law, § 8, as amended by Laws 1902, p. 579, c. 212]. City of New York V. Burleson Hardware Co., 89 App, Dlv. 222, 85 N. Y. S. 763. Laws 1897, o. 415, as amended by Laws 1899, c. 192, requires contractors to floor buildings under construction to within three stories below the one under construc- tion, where the filling between the floors is to be of fireproof material, otherwise within tw^o stories. Holzman v. Ilatzman, 87 N. Y. S. 478. Under charter 1901, one building a tene- ment house, is not required to leave an open area or vault in front of it, so digging a vault without written permission is a volun- tary construction, and is a violation of Laws 1895, c. 567. City of New York v. Madison Ave. Real Estate Co., 42 Misc. 535, 85 N. Y. S. 1118. 1. P. L. 1879, 128. Bonbright v. Sohoet- tler [C. C. A.] 127 F. 320. Xote. A master is not required to furnish fire escapes (Jones v. Granite Mills, 126 Mass. 84; Schwandner v. Birge, 33 Hun [N. Y.] 186), unless required by statute (Willy V. Mulledy, 78 N. Y. 314; McLaughlin v. Arm- field, 58 Hun [N. Y.] 376, 12 N. Y. S. 164; Lee v. Smith, 42 Ohio St. 458; Schott v. Harvey, 105 Pa. 222; Keely v. O'Conner, 106 Pa. 321; Pauley v. Steam Gauge & L. Co., 131 N. Y. 90, 29 N. E. 999, 42 N. Y. St. Rep. 636; Rose v. King [Ohio] and note 15 L. R. A. 160). Failure to construct fire escape must be the cause of the Injury (Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185). 2. Damages or penalty. Bonbright v. Schoettler [C. C. A.] 127 P. 320. A fire 574 BUILDINGS AXD KESTEICTIONS § 2. 3 Car. Law. superintendent of buildings of Isew York City, and not the state factory inspector, has exclusive jurisdiction in regard to fire escapes on factories within the city.* Under the statute forbidding the obstruction of passageways in theaters by persona occupying them during a performance, a manager is liable for the penalty im- posed when he permits people to stand in the space necessarily used as a passage- way by those entering through a side entrance.' § 2. PHvate regulation. Restrictive covenants.* — Eestrietive covenants run escape that was sufficient under Act 1879 (P. L. 128), is sufficient under Act 1885 (P. L. 68). Id. P. L. 128, providing that "nothing in this act shall interfere with iire escapes now In use and approved," does not relieve a-n owner from providing the number of Are escapes required by the act. Snyder v. Bon- bright, 123 P. 817. 3. Certificate of inspection of ropes and chains no proof of inspection of stairTvays. Snyder v. Bonbright, 123 F. 817. 4. History of legislation on subject re- viewed. City of New York v. Trustees of Sailors' Snug Harbor, 85 App. Div. 355, 83 N. T. S. 442. 5. Laws 1897, pp. 263, 272, c. 378 (Charter §§ 762, 773). Sturgis v. Hayman, 84 N. T. S. 126. 6. NOTB. Building restrictions In deeds i The purpose of these is generally to pre- vent the erection of such buildings as will Impair the value of the residue of the land belonging to the grantor or conveyed to others. So long as the restriction is rea- sonable and in accord with public policy, no valid objection to it is discernible. These restrictions assume various forms. Some of them are directed toward the height, ma- terial, or value of buildings that may be constructed on the land conveyed. See Quatman v. McCray, 128 Cal. 285, 60 P. 856; Hobson V. Cartwright, 93 Ky. 368, 20 S. W. 281; Keening v. Ayling, 126 Mass. 404; Frink V. Hughes [Mich.] 94 N. W. 601; Clark v. Martin, 49 Pa. 289. Others place limitations on the building line, requiring that no build- ing shall be located less than a certain specified distance from the street or ap- proach to within a certain distance of the boundary of the land. See Bwertsen v. Ger- stenberg, 186 111. 344, 57 N. B. 1051; Herrick V. Marshall, 66 Me. 435; Linzee v. Mixer, 101 Mass. 512; Att'y Gen. v. Gardiner, 117 Mass. 492; Sanborn v. Rice, 129 Mass. 387; Nowell V. Boston Academy, 130 Mass. 209; Payson v. Burnham, 141 Mass. 547, 6 N. B. 70S; Ham- len V. Werner, 144 Mass. 396, 11 N. B. 684; Att'y Gen. v. Ayer, 148 Mass. 584, 20 N. E. 451; Att'y Gen. v. Algonquin Club, 153 Mass. 447, 27 N. B. 2; Smith v. Bradley. 154 Mass. 227, 28 N. B. 14; In re Welsh, 175 Mass. 68, 05 N. E. 1043; Best v. Nagle, 182 Mass. 495; 65 N. E. 842; Sutoliffe v, Eisele, 62 N. J. Eq. 222, 50 A. 69. A piazza attached to a house, whether covered by its own roof or by an extension of the roof of the house, if it projects beyond the line prescribed, violates the restriction or condition against the con- struction of buildings nearer than a specified distance from the street. Bagnall v. Davies, 140 Mass. 76, 2 N. E. 786; Reardon v. Mur- phy 163 Mass. 501, 40 N. E. 854. So does H bay window, one story high and built up from the foundation wall (Kirkpatrick v. Peshine, 24 N. J. Bq. 206). and a porch built vpon brick foundations, rnnfed and perma- nently attached to the whole front of the house (Ogontz Land & Imp. Co. v. Johnson, 168 Pa. 178, 31 A. 1008). Compare Hawes V. Favor, 161 111. 440, 43 N. B. 1076; Graham v. Hlte, 93 Ky. 474, 20 S. W. 506. Others forbid the erection of any other buildings on the land conveyed, except dwelling houses and the necessary outbuildings. See Duncan v. Cent. Pass. R. Co., 85 Ky. 525, 4 S. W. 228; Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122; Fuller v. Arms, 46 Vt. 400. Such con- ditions or restrictions are violated by put- ting up a tent, fitted up with a stove and furniture, to be lived in in the daytime tem- porarily in the summer (Blakemore v. Stan- ley, 159 Mass. 6, 33 N. E. 689) ; or by using a portion of the building for a grocery or a meat and vegetable store (Dorr v. Harra- han, 101 Mass. 531, 3 Am. Rep. 398; Cornish V. Wiessman, 56 N. J. Eq. 610, 35 A. 408); or by converting a dwelling into a public eating house (Parker v. Nightingale, 6 Allen [Mass.] 341, 83 Am. Dec. 632); or by carrying on a photograph gallery (Frink v. Hughes [Mich.] 94 N. W. 601). And a condition that only one single dwelling house shall be erected is broken by the erection of a build- ing containing several tenements designed for separate families. Gillis v. Bailey, 17 N. H. 18, 21 N. H. 149. And a condition that no dwelling house should contain more than two tenements, or be constructed for more than two families is broken by the erection of a building with capacity for three fam- ilies. Ivarson v. Mulvey, 179 Mass. 141, 60 N. E. 477. A condition that the property shall be used for residence purposes only does not prohibit the building of an apart- ment house, "with flats, each complete for housekeeping, but with a large dining room for the use of such occupants as desire it Instead of their private dining rooms. Mc- Murtry v. Phillips Inv. Co., 19 Ky. L. R. 2021, 45 S. W. 96. If a building is maintain- ed as a single dwelling house, but is used also as a private Institution for the treat- ment of persons suffering from the liquor and kindred habits, who are boarded and lodged there during treatment, a restriction In the deed conveying the land, that no build- ing other than one single dwelling house shall be maintained on the lot, is not vio- lated. Stone V. Pillsbury, 167 Mass. 332, 46 N. B. 768. Effect of chancre in neighborhood: When the conditions of cities greatly change, it is not for the interest of the community that restrictions put upon land in reference to the quiet of residential streets should con- tinue, when the neighborhood Is entirely given up to business, unless they are so ex- pressed as plainly to be binding. Boston Baptist Social Union v. Trustees of Boston University, 183 Mass. 202, 66 N. E. 714. If the purpose of restrictive covenants inserted In a conveyance is to make the ]oca]i*y ,a 3 Cur. Law. BUILDINGS AND EESTEICTIONS 8 3. 675 with the land'' and are strictly construed.' Nothing will be regarded as a violation thereof that is not in plain disregard of its terms;" thus, a covenant against the erection of tenement houses does not forbid the erection of a modem apartment house,^" nor does a covenant against the erection of a building restrict the erection of a wall.^^ A restrictive covenant in a lease is not violated by a subletting for the forbidden use.^^ They will not be enforced against trivial violations, espe- cially where there has been a substantial violation which has been allowed to remain unmolested;^" they are terminated when the occasion for them ceases,^* and are waived by a failure to enforce them,^" but not by making a more favorable covenant to subsequent grantee of lots in same plat,^" nor by accepting payment of rent.^^ That restrictive conditions may be available to other grantees of lots in the same plat, a general scheme whereby restrictions were to apply to all the lots must be shown,^* and such a covenant cannot be enforced by one not an owner within the plat.^° A covenant which does not pass any estate may be a general scheme which when acted upon will be binding on those Joining therein,-" and a grantee suitable one for residence, but owing to the general growth of the city and the present use of the -whole neighborhood for business, this purpose can no longer be ac- complished, no matter how rigidly the re- striction is enforced, it is oppressive and inequitable to give effect to it, and equity will not enjoin its violation, though when there is no remedy at law the bill may be retained for the purpose of assessing dam- ages. Jackson v. Stevenson, 156 Mass, 496, 31 N. B. 691, 32 Am. St. Rep. 476. See too Roth V. Jung, 79 App. Div. 1, 79 N. T. S. 822. Equity will refuse to enforce a covenant not to devote a certain property to business pur- poses where there has been such a change in the character of the neighborhood by the building of an elevated railway and the in- crease of business houses, as to defeat the object of the agreement, and render it in- equitable to deprive the owner of the privi- lege of using his property as its surround- ings required. Trustees of Columbia Col- lege V. Thacher, 87 N. T. 311, 41 Am. Rep. 365. And so where there is a covenant against the erection of cheap buildings, if condi- tions so change that only such buildings are suited to the vicinity, the covenant will not be enforced. Page v. Murray, 46 N. J. Eq. 325, 19 A. 11. — Prom note to Wakefield v. Van Tassel, 95 Am. St. Rep. 208. See 1 Curr. L. 404. 7. A condition that a deed shall be void if intoxicants are sold on the premises. Jetter v. Lyon [Neb.] 97 N. W. 596. Cove- nant in a lease against selling liquor. Gran- ite Bldgr. Corp. v. Green [R. I.] 57 A. 649. 8. That nothing but a d"welling house should be erected south of the railroad track. Later the track was moved farther north. The covenant did not apply to the strip thus added. Stein V. Lyon, 91 App. Div. 593, 87 N. T. S. 125. Restrictive building covenants in deeds are to be construed most strongly against the covenantor, but in accordance with the intent of the parties as expressed or implied from surrounding circumstances. Deeves v. Constable, 87 App. Div. 352, 84 N. T. S. 592. 9. That no dwelling house should be erect- ed not violated by an addition to a church which contained a study and living rooms. Crofton v. St. Clement's Church [Pa.] 57 A. 570. A restriction tliat no building should be built on the rear 10 feet of a lot is not violated if there is nothing built on it. Id. 10. Laws 1867, c. 9, defining a tenement house, is inapplicable. Kitching v. Brown, 92 App. Div. 160, 87 N. T. S. 75. 11. Clark V. Lee [Mass.] 70 N. B. 47. 12. Selling liquor. Granite Bldg. Corp. v. Greene [R. L] 57 A. 649. 13. Bay window in an upper story en- croached. Hemsley v. Marlborough Hotel Co. [N. J. Eq.] 55 A. 994. 14. A grantor sold adjoining land with a restrictive covenant that no building should be built within 20 feet of his residence. His successors tore down the residence and put up business building. Held, covenant ter- minated. Deeves v. Constable, 87 App. Div. 352, 84 N. T. S. 592. 15. That business would not be carried on on the premises on Sunday. Ocean City Ass'n V. Chalfant [N. J. Eq.] 55 A. 801. 16. A condition on the breach of which the land is to revert to the grantor or his heirs is not waived where in other deeds of lots in the same vicinity the condition re- ferred to the grantor only. Jetter v. Lyon [Neb.] 97 N. W. 596. 17. Granite Bldg. Corp. v. Greene [R. I.] 57 A. 649. 18. Hemsley v. Marlborough Hotel Co. [N. J. Eq.] 55 A. 994. Restrictions in a deed were solely for the grantor's benefit, and there was no mutual covenant on his part to similarly restrict lands remaining in the block. The land of a grantee, released from restrictions, was not subject to an easement in favor of the land of other grantees in the same block. Gebhard v. Addison, S7 App. Div. 375, 84 N. T. S. 418. 19. Not by a grantee of a lot on the other side of the street. Hemsley v, Marlborough Hotel Co. [N. J. Kq.] 55 A. 994. Where a grantor conveyed by deed containing a re- strictive covenant, land on the opposite side of the street from his residence lot, it "was held the restriction did not inure to the benefit of his lot. Id. 30. No words of grant in a covenant by vv-hich beach front owners permitted the city to build a board walk, with aiding covenant against the erection of building on the ocean side. Atlantic City v. New Auditorium Pier Co. [N. J. Eq.] 58 A. 729. 576 BUILDINGS AND RESTEICTIONS § 3. 3 Cur. Lav. with actual notice thereof wiU be restrained from violating it, though his deed was recorded first.^^ § 3. Liahility for unsafe condition of premises.'^'' — ^A municipal corporation is exempt from liability for iajuries sustained through its negligence in the man- agement of a building operated by it in its governmental capacity,** but private owners^* and occupants must use ordinary care to keep their premises in such con- dition that those who come there by invitation may not be exposed to danger,"' and are liable, though they did not know of the defect, if they could by the exercise of due diligence have discovered it."' Where a construction company is engaged in repairing a building which the owner continues to use, the construction company must use reasonable care to protect the employes of the owner."' The only duty owed a trespasser is to refrain from willfully injuring him."* It is negligence to leave debris scattered over a yard,"' or to leave obstacles in such a position that they are liable to fall,°° but it is not negligence to leave the door of a vacant house open,'^ nor to leave a vacant house without inspection for a month.'" Evidence showing the dangerous condition of the premises,** or notice there- of,** is admissible. The question of contributory negligence is ordinarily for the jury." § 4. Liability for negligent operation of elevators.^' — ^Liability for accidents falls on the party who has control of the elevator.*' ai. Several beach front owners covenant- ed that they would not build on the ocean side of a board walk which the city was al- lowed to build under such covenant. Atlan- tic City V. New Auditorium Pier Co. [N. J. Bq.] 58 A. 729. 22. See 1 Curr. L. 406. 23. School building. i3rnst V. West Cov- ing-ton, 25 Ky. L.. R. 1027, 76 S. W. 1089. Note: Counties are not liable for injuries caused by negligence in construction or maintenance of public buildings. Klncaid v. Hardin County, 53 Iowa, 430, 5 N. W. 589; Hamilton County Com'rs v. Mlghels, 7 Ohio St. 109; Sheppard v. Pulaski County, 13 Ky. L. R. 672, 18 S. W. 15; Vigo County Com'rs V. Dally, 132 Ind. 73, 31 N. B. 531; Hill V. Boston, 122 Mass. 344; Eastman v. Meredith, 36 N. H. 284; Hughes v. County of Monroe, 147 N. T. 49, 41 N. B. 407, 39 L. R. A. 33, note. 24. Stair broke down and Injured pros- pective lessee. Smith V. Jackson [N. J. Law] 56 A. 118. 25. Injury by the breaking of rapidly moving belt in a creamery, which the own- ers knew was quite liable to break. True v. Meredith Creamery [N. H.] 55 A. 893. Where there was no fault in the construction of a cellar door in the sidewalk, the owner of the premises not In possession is not liable for Injuries sustained by one falling into it. Fehlhauer v. St. Louis [Mo.] 77 S. W. 843. Licensee fell down an unguarded oellarway. McHugh V. Kerr [Pa.] 57 A. 520. Injury by breaking of platform scales. Molntyre v. Pfaudler Vacuum Fermentation Co. [Mich.] 95 N. W. 527. 26. Evidence held to show that he should have discovered a defect in platform scales. Mclntyre V. Pfaudler Vacuum Fermentation Co. [Mich.] 95 N. W. 527. 27. Glle V. Bishop Co., 184 Mass. 413, 68 N. E. 837. 28. One fell Into an excavation. Freder- burg V. Bear, 89 Minn. 241, 94 N. W. 683. 29. Where debris, sticks, and stones were lying In a yard, evidence held to show a dangerous condition. Wesener v. Smith, 89 App. Dlv. 211, 85 N. T. S. 837. 30. Door taken from Its hinges and lean- ed against a wall fell without being touched, and injured one. Klltzke v. Webb [Wis.] 97 N. W. 901. Chimney had been seen to sway a year before It fell; was not sup- ported or secured In any manner to a near- by wall. Travers v. Murray, 87 App. Dlv. 552, 84 N. T. S. 558. 31. Child playing therein was Injured by her companion letting a window sash drop on her. O'Connor v. Bruoker, 117 Ga. 461, 43 S. E. 731. 32. Gas leakage caused explosion. Con- sol. Gas Co. V. Getty, 96 Md. 683, 54 A. 660. Where a policeman presented a lighted candle at a cellar opening in a vacant house, thereby causing an explosion of gas, any negligence was not Imputable to the owner. Id. 33. A diagram showing location of a cel- lar door in a store is admissible. Franklin v. Bngel [Wash.] 76 P. 84. Where all testi- mony was that stringers would last for Ave years, an instruction that ordinary experi- ence ought to have advised a prudent man that they would not last so long was erro- neous. Mclntyre v. Pfaudler Vacuum Fer- mentation Co. [Mich.] 95 N. W. 527. 34. That the trap door had been open many times and the proprietor of the store had been told to look out for It. Franklin V. Bngel [Wash.] 76 P. 84. 33. Where one fell over debris scattered in a yard. Wesener v. Smith, 89 App. Dlv. 211, 85 N. T. S. 837. Customer, with de- fective eyesight, as proprietor knew, was told to go to back of store for goods, and fell through trap door. No sufficient warn- 3 Cur. Law. BUILDINGS AND EESTRICTIONS § 4. 577 Some courts seem to hold that operators of elevators must use that degree of care required of common carriers of passengers,^^ but others require only the highest degree that a prudent person would exercise under the same circum- stances,** and others merely the exercise of ordinary care,*" and this only toward those on the premises by invitation.*^ Where an occupant directs one on his premises by invitation to use an unsafe elevator, he is liable for injuries sus- tained.*'' The operator must give a passenger a reasonable opportunity to alight,*' and negligence in attempting to alight is no defense where the passenger is injured through the subsequent gross negligence of the operator.** Elevator shafts in rooms where customers or visitors are liable to go must be guarded ;*° but to show negligence it must appear that the opening was so situated as to be dangerous,*" and that persons injured were on the premises by the express or implied invitation of the owner.*' The questi-wi of negligence is ordinarily one for the jury.*' While it is ordinarily true that one who walks into an open elevator well is guilty of contributory negligence,*" the contrary may be shown,"" and it is generally a question for the jury."^ In?. Held no contributory negligence. Brown v. Stevens [Mich.] 99 N. W. 12. 86. See 1 Curr. L. 409. 37. Where an owner of a building took care of the elevators, testimony of a lessee of a part of the building held sufficient to show that the elevator was within his con- trol. Humphreys v. Portsmouth T. & G. Co., 184 Mass. 422, 68 N. B. 836. The grantor In a deed of trust who constitutes the trustee his attorney In fact to take charge of the building remains the principal of an elevator operator employed by the trustee. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. 38. Where an iceman was directed to use a freight elevator, petition for injuries held not to allege the relation of passenger and carrier, and owner was liable only for or- dinary care. Downs v. Seeley [Conn.] 56 A. 502. 39. Where a passenger was caught In the door of an elevator and Injured by its mov- ing up and down, evidence held to show neg- ligence. Luckel V. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. 40. Burgess v. Stowe [Mich.] 96 N. W. 29. 41. Not to one on his premises doing business with his servants. Mueneh v. Heinemann, 119 Wis. 441, 96 N. W. 800. Whether opening the gate and calling "ele- vator" was an invitation to enter was a question for the Jury. Burgess v. Stow [Mich.] 96 N. W. 29. 42. Ford V. Crigler, 25 Ky. L. R. 56, 74 S. W. 661. 43. Luckel V. Century Bldg. Co., 177 Mo. 60S, 76 S. W. 1035. 44. Caught between the roof of the car and floor of the building. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. 45. Shaft In a dark storage room. Evi- dence held sufficient to show negligence. Reid V. Linck, 206 Pa. 109, 55 A. 849. Evi- dence that other persons had previously fall- en down the shaft was admissible. Id. Em- ploye fell through and was killed. Hille- brand v. Standard Biscuit Co., 139 Cal. 233, 73 P. 163. Where an employe of a tenant of a building was injured by falling down the shaft of an elevator, the door of which was open, the landlord being obligated by lease to carry tenants only, held, the landlord owed the employe the duty of exercising reasona.ble care In guarding the shaft. Breuer v. Frank, 2 Ohio N. P. (N. S.) 69. Trapdoor over elevator shaft In middle of store floor left open, people standing round and plalntlfE, a customer, not sufficiently warned. Held negligence. Brown v. Ste- vens [Mich.] 99 N. W. 12. Elevator In dark corner of hotel office, almost impossible to see into shaft in daytime, door partly open and car down, sufficient to show negligence. Bremer v. Plelss [Wis.] 98 N. W. 945. Where a boy five years old fell down an open ele- vator shaft in a store building, evidence held to show negligence. Hayes v. Pitts- Kimball Co., 183 Mass. 262, 67 N. E. 249. 46. Goods In dimly lighted room in whole- sale house, arranged to leave passageway to elevator. Evidence sufficient to show neg- ligence. Wilsey v. Jewett Bros. & Co., 122 Iowa, 315, 98 N. W. 114. Where a strange boy opened the door of an elevator shaft, and a licensee fell down it, evidence showed that the negligence of having an elevator shaft, the door of which was often open, was not the proximate cause of this injury. Cole V. German Sav. & Loan Soc. [C. C. A.] 124 F. 113. Statutes requiring signals to be attached to elevators not so protected as to be inaccessible from without Is inapplicable where Injuries were caused by pushing open a trap door. Gen. Laws 1896, c. 108. Gal- lowshaw V. Lonsdale Co. [R. I.] 55 A. 932. 47. Retail clerk came to wholesale house to get goods. Not a trespasser and used or- dinary care. Wilsey v. Jewett Bros. & Co., 122 Iowa, 315, 98 N. W. 114. 48. Where the operator's testimony was that he saw the passenger caught in the door, it was not error to refuse to direct a verdict. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. A finding that one was invited to pass over an automatic trap door was not Justified. Connors v. Mer- chants' Mfg. Co., 184 Mass. 466. 69 N. E. 218. 49. Humphreys v. Portsmouth T. & G. Co.. 184 Mass. 422, 68 N. E. 836. Evidence show- ed hotel guest familiar with elevator guilty of contributory negligence In going into a 3 Curr. Law^37. 578 BUEGLARY § 1. 3 Cur. Law. Points already covered need not be made the subject of a subsequent instruc- tion." Admissions of the owner of the way in which the accident was caused are ad- missible,^' but it was no error to refuse a question relative to signals, where the statute requiring them was recently enacted and the person injured had no notice of it.'* To hold an owner liable on imputed knowledge, the facts constituting it must be clearly alleged, especially where he suffers a default. '" BTTBGLAIIY. § 1. §2. (579). What Constitntes (578). I Indictment and Proof Thcrenndcr § 3. § 4. Kvidence. Sufficiency (SSI). Instructions and Verdict (582), § 1. What consiitutes.'^' Breaking and entry." — To constitute a breaking, defendant's acts must have made an entry possible."* Unlocking'* or otherwise unfastening doors"" is sufficient. An entry which is not in itself a trespass may be sufficient, if made with felonious intent."^ shaft when car was not there. Bremer v. Pleiss [Wis.] 98 N. W. 945. Where a serv- ant was injured by the automatic opening of a trap door covering an elevator shaft, evidence held to show contributory neg- ligence. Connors V. Merchants' Mfg. Co., 184 Mass. 466, 69 N. B. 218. 50. Where a flve-year-old boy, visiting a store with his grandmother, went away from her and fell down an open elevator well, evidence held Insufficient to show contribu- tory negligence. Hayes v. Pitts-Klmball Co., 183 Mass. 262, 67 N. B. 249. Where a new employe fell down an open elevator well, located in a dark place, evidence held to show that he was in the exercise of due care. Humphreys v. Portsmouth T. & G. Co., 184 Mass. 422, 68 N. B. 836. 51. Whether an employe was guilty of contributory negligence in stepping on a trap door over an elevator shaft was for the jury. Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 73 P. 163. A submission of all the evidence of contributory negligence is sufficient, and it is no error to refuse to charge certain parts thereof. Hayes v. Pltts- Kimball Co., 183 Mass. 262, 67 N. E. 249. Whether one who stepped into an elevator well when the owner opened the gate and called "elevator" was guilty of contribu- tory negligence was for the jury. Burgess V. Stowe [Mich.] 96 N. W. 29. 52. Relative to operator's and passenger's duty. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. It was not error to re- fuse to instruct that recovery could not bo had because of the defective shaft, where the court had already Instructed that recovery could not be had unless entrance to the ele- vator was made at the owner's Invitation. Burgess v. Stowe [Mich.] 96 N. W. 29. 53. Manner in which a pulley was attach- ed to the celling. Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800. 54. Stat. 1901, c. 43». Connors v. Mer- chants' Mfg. Co., 184 MasB. 466, 69 N. B. 218. 55. Downs V. Seeley [Conn.] 56 A. 502. 56. Note: Burglary is an offense against the security of the dwelling house or habita- tion It is the possession that is invaded, and the crime is not against the buildings as property. State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; Anderson v. State, 48 Ala. 665, 17 Am. Rep. 36. The rule may of course be changed by statute, as in Wisconsin, where the offense is held to be affecting real estate. Neubrandt v. State, 53 Wis. 89, 9 N. W. 824. Citations from People v. Richards [N. T.] 2 Am. St. Rep. 383. See 1 Curr. L. 411. 57. Notei The breaking may be actual or constructive. Clarke v. Com., 25 Grat. [Va.] 908. Among acts which have been held to constitute a sufficient breaking are: pushing open closed door (State v. Reid, 20 Iowa, 413) ; opening door secured by chain hooked to nail (State v. Hecox, 83 Mo. 531); opening closed blinds (Com. v. Stephenson, S Pick. [Mass.] 364); pushing up trap door (Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529). See also. State v. Boon, 35 N. C. (13 Ired.) 244, 57 Am. Dec. 555; Rolland v. Com., 85 Pa. 66, 27 Am. Rep. 626; Walker v. State, 63 Ala. 49, 35 Am. Rep. 1. For cases holding there was no breaking, see: Com. v. Strupney, 105 Mass. 588, 7 Am. Rep. 556; State V. Kennedy, 16 Mo. App. 287; Green v. State, 68 Ala. 539; Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 376. Citations from People V. Richards [N. T.] 2 Am. St. Rep. 385, 386. See 1 Curr. L. 411. 58. Removing window strip only. Gad- die V. Com., 26 Ky. L. R. 1585, 78 S. W. 162. 59. 'With Intent to steal personalty there- in. State V. Peebles [Mo.] 77 S. W. 518. 60. Removing a button from an outer, and a slab from an inner, door of a chicken house. State v. Helms [Mo.] 78 S. W. 592. 61. Entry of a store during business hours with intent to commit larceny. The statute read: "Every person who enters * ' * with intent," etc. People v. Brit- taln, 142 Cal. 8, 75 P. 314. ITote. The following are somewhat novel cases: Where defendant, in the nighttime. bored holes through the walls of a granary so that wheat was forced through by its own weight, the defendant taking away and selling the grain, it was held that there was a sufficient entry, and an intent to steal within the granary was sufficiently shown. State v. Crawford, 8 N. D. 539, 80 N. W. 193, 46 L. R. A. 312. A servant having a right to lodge in his master's house is guilty 3 Cur. Law. BUEGLAEY § 2. 579 Intent.^" — Felonious intent in breaking and entrj' is essential.'' Such intent may be inferred from the breaking, entry and carrying away of property.** The degree of the offense is made by statutes to depend on the time of, or special circu.mstances attending, its eommission,*= and on this issue the mental condition of defendant, such as intoxication, is irrelevant, being relevant only on an issue of intent.*" Accomplices.^'' — One who aids or abets in the breaking and entry,"' or in con- cealment of the stolen property,"' will be treated as an accomplice. Mere receipt of stolen goods without knowledge of the theft will not make one an accomplice in the burglary.'" The accomplice of one who breaks and enters a building may be convicted of an attempt to break and enter a building.'^ Nature and situation of buildi/iig.'"' — One charged with burglary of a dwelling house may be convicted on proof of burglary of a barn within the curtilage.'' A hotel is a building within the meaning of a statute defining burglary as a breaking or entering a dwelling house "or other building.'"* To constitute the ofEense of burglary of a private residence," the family need not be personally present at the time of the burglary." A flat car is not a "railroad car" within the meaning of a burglary statute." § 2. Indictment and proof thereunder.''^ — The sufficiency of the indictment" will of course be determined by reference to the statute under which it was drawn.*" If an indictment charging larceny from the house is good imder either of burglary If lie opens a closed door or raises a sash and enters the building, not for the purpose of using the house as a lodging place, but with intent to steal his master's goods. State v. Howard, 64 S. C. 344, 42 S. E. 173, 58 L. R. A. 685. ea. See 1 Curr. L. 411. 63. State v. Tough [N. D.] 96 N. "W. 102B. Intent to commit rape. State v. Worthern [Iowa] 100 N. W. 330. 64. State V. Peebles [Mo.] 77 S. "W. 518. 65. Day or nighttime in California. Peo- ple V. Dowell, 141 Cal. 493, 75 P. 45. Break- ing into a chiclien house is burglary in the second degree, regardless of the purpose for which the chickens were kept there. State V. Helms [Mo.] 78 S. "W. 592. 66. People V. Dowell, 141 Cal. 493, 75 P. 45. «7. See 1 Curr. L. 829, n. 87-92. 68. State V. Peebles [Mo.] 77 S. W. 518. An accomplice must have been present and must have known the unlawful intent of the principal. Glenn v. State [Tex. Cr. App.] 76 S. W. 757. Conviction for breaking and entering an office, not adjoining to or occu- pied with a dwelling house, in the night- time, affirmed, the proof showing accused aided and abetted In commission of the of- fense. People V. McDonald [Mich.] 94 N. W. 1064. 69. A sister who assisted in hiding stolen goods after the burglary. McDaniel v. State [Tex. Cr. App.] 81 S. W. 301. 70. Though the circumstances were such' as to put him on inquiry. Short v. Com., 25 Ky. L. R. 451, 76 S. W. 11. 71. Sufficiency of instruction on the point. State V. Mahoney [Iowa] 97 N. W. 1089. 7S. See 1 Curr. L. 411. 73. A statute (Pub. Acts 1899, No. 34, p. 50), providing punishment for burglary of barn or outbuilding, did not change tlie com- mon law of burglary. People v. Griffith [Mich.] 95 N. "W. 719. T4. Bruen v. People, 206 111. 417, 69 N. B. 24. 75. The punishment for burglary In the daytime is not changed by the fact that the building burglarized was a private resi- dence. Holland v. State [Tex. Cr. App.] 74 g. W. 763. 76. Under White's Ann. Pen. Code, art. 485c. Handy v. State [Tex. Cr. App.] 80 S. W. 526. 77. 2 Ball. Ann. Codes & St. § 7104. Wheat loaded on a flat oar and covered with a tarpaulin fastened to sides of car was stolen. Held, not burglary. State v. Petit, 32 Wash 129, 72 P. 1021. 78. See 1 Curr. L. 411. 79. Indictment held to sufficiently charge the Intent to commit rape. State v. Staton 133 N. C. 642, 45 S. E. 362. 80. An indictment charging that defend- ant, in the nighttime, having in his posses- sion certain Implements of burglary, did at- tempt to commit the crime of burglary while unlawfully attempting to break and enter a store, charges an attempt, and not merely an Intent, to commit the crime [2 Ball. Ann Codes & St. 5§ 7106, 7437]. State v. Garbe [Wash.] 75 P. 993. An indictment for break- ing and entering a dwelling with intent to commit a felony therein is not duplicitous for charging in the same count that accused was armed with a dangerous weapon and made an actual assault upon a person who was lawfully in the dwelling (Davis v. State [Pla.] 35 So. 76), nor is such Indictment had on motion to quash, though the allega- tions as to the dangerous weapon are In- sufficient, if the assault is sufficiently set out [Acts 1895, 0. 4405, p. 167] (Id.). If the building is a permanent and substantial structure, the indictment need not allege that it was especially constructed to keep the goods stolen [Code, § 4417 construed]. Smith V. State [Ala.] 37 So. 157. UndW a statute defining burglary generally and fix- 580 BUEGLAEY § 2. 3 Cur. Law. of two sections of the statute, the court may treat it as drawn under either.'^ No distinction need be made in the indictment between defendants who are prin- cipals.** An indictment which, after stating the county, alleges that defendant did "then and there," commit the offense, sufficiently alleges the venue of the burglary.'* An indictment to meet anticipated proof may charge night and day burglary in different counts." Ownership of the building burglarized must be alleged and proved'^ imless it is otherwise sufficiently described, so that defendant cannot be misled.'" Where the complaint and information both identify a build- ing by street and number, there is no variance, though the terms of the descrip- tion are not otherwise identical.*' Where two or more persons own the property in common or jointly, the ownership may be alleged as in either or all.** . An in- dictment for burglary of commimity property must allege ownership in the hus- band.*" Ownership of the property in the building, which it is charged- accused intended to steal, need not be alleged ;"" but, if alleged, must be proved as laid, and a failure to do so constitutes a fatal variance.'^ Sufficiency of proof; variance."'^^FTOot of commission of the crime on a day other than that charged is sufficient if the defendant is not thereby prejudiced." Occupancy and possession is aU that is required to prove ownership in burglary.** A slight variance between the allegations of the indictment or information and the proof as to the description'* or ownership'* of the premises burglarized will be disregarded if the defendant is not thereby prejudiced."' Where defendant is charged with an attempt to break and enter a building, proof of. an actual breaking and entry is not a variance, but establishes the attempt."* There may be a con- viction under an indictment charging a statutory burglary, though the evidence shows the greater offense of common-law burglary, since such conviction would sus- tain a plea of former jeopardy upon an indictment for burglary based on the Ins a punishment therefor, with a proviso for longer minimum Imprisonment If the crime is committed at night, there Is no variance between an Indictment alleging the crime generally and proof of its commission at night. Bruen v. People, 206 111. 417, 69 N. E. 24. An Indictment for burglary for breaking and entering a railroad car with Intent to steal will sustain a conviction for entering a railroad car with Intent to steal. Under Hev. Codes 1899, §§ 7406, 7411. State V. Tough [N. D.] 96 N. "W. 1025. 81. The offense being a misdemeanor and punishable as such [Penal Code 1895, §§ 178, 179, 182]. Heard v. State [Ga.] 48 S. B. 311. 82. One who actually breaks and enters a house and steals therefrom, and his confed- erate, who stands near and watches these acts are principals in the second degree. McWhorter v. State, 118 Ga. 55, 44 S. E. 873. 83. Cabellero v. State [Tex. Cr. App.] 80 g w 1014. 84. Miller v. State [Tex. Cr. App.] 77 S. W. 800. 85. An allegation that the building was the depot of a named railway without al- leging It was a coi'poration which owned the depot, Insufficient. State v. Horned [Mo.] 76 S W. 953. Ownership of hotel by part- ners held sufficiently established. Bruen v. People, 206 111. 417, 69 N. B. 24. 86. Street number given. People v. Price rfal 1 77 P. 73. 87. People V. Price [Cal.] 77 P. 73. 88. No variance where alleged to be in one and proven to be jointly In two [Code Cr. Proo. 1895, art. 445]. Mass v. State [Tex. Cr. App.] 81 S. W. 46. 89. Where Indictment alleged ownership In wife and evidence showed community property, there was a fatal variance. Jones V. State [Tex. Cr. App.] 80 S. W. 530. 90, 91. Crosky v. State [Fla.] 35 So. 153. 92. See 1 Curr. L. 411, 412, n. 26, 27. 93. State ,v. Rogers [Mont.] 77 P. 293. 18th or 19th of March. State v. Bates [Mo ] 81 S. W. 408. 94. Scoville v. State [Tex. Cr. App.] 81 S. W. 717. 95. Indictment charged burglary of a private residence and proof showed burglary of a room in a hotel used as a private resi- dence. Holland v. State [Tex. Cr. App.] 74 S, W. 763. A low partition divided a room into two and each had a front door, and the information charged burglary of one side and the proof showed entry on that side and taking goods from the other. State v. Pee- bles [Mo.] 77 S. W. 518. Where an informa- tion sufficiently described the place of the burglary without the number of the room, proof of the number was unnecessary, thougb included in the Information. People v Kel- so, 142 Cal. 335, 75 P. 904. 96. Proof that two brothers occupied a house burglarized, and one paid the rent, will support an allegation of ownership In either. Scoville v. State [Tex. Cr. App.1 81 S. W. 717. 97. State v. Rogers [Mont.] 77 P. 293. 98. State V. Mahoney [Iowa] 97 N W 1089. 3 Cur. Law. BURGLAEY § 3. 581 same facts."' Where burglary of a private residence in the daytime and night- time are made separate offenses and an indictment alleges both in different counts, but the evidence clearly showed burglary in the nighttime, it M'as error to sub- mit the issue of burglary in the daytime.^ § 3. Evidence. Sufficiency.^ — Eecent unexplained possession of goods shown to have been feloniously taken by means of a burglary is prima facie evidence of guilt of burglary,' providing the jury find that the breaking and entering and stealing of the goods were parts of the same transaction.* This prima facie show- ing is not a presumption requiring, but only authorizing, conviction," and it may be overcome by a reasonable explanation of his possession.' Mere possession of re- cently stolen property, without evidence of a breaking, is not sufficient.'^ But tbe evidence need not show immediate, actual possession of the goods at the time when defendant was taken.* Proof of the possession of stolen property by de- fendant places on him the burden of explaining his possession," and the giving of a reasonable explanation does not place on the state the burden of proving such explanation false.^" The identity of the stolen goods, having no distinctive ear- marks, may be established by coincidence in quantity and kind.^^ The elements of the crime,** the fact of its commission by defendant,** and the fact that it was committed within the limitation period,** may be shown by circumstantial evidence. For sufficiency of evidence in particular instances, see cases cited in note.*" Admissibility.^'' — Evidence as to the location of stolen property,*' or as to keys,** or other property found in defendant's possession at time of arrest,*" and of his conduct and statements at that time,*' is competent, and the property itself 99. state V. Staton, 133 N. C. 642, 4B S. B. 362. I. Jones V. State [Tex. Cr. App.] 80 S. W. 530. a. See 1 Curr. L. 412. 3. Instruction upheld and conviction af- firmed. People V. Lang, 142 Cal. 482, 76 P. 232. 4. State V. Brady, 121 Iowa, 561, 97 N. W. 62. 5. State V. Brady, 121 Iowa, 561, 97 N. "W. 62. Conviction sustained when possession of stolen goods traced to defendant. Short v. Com., 25 Ky. D. R. 451, 76 S. W. 11. Pos- session of a pocketbook stolen at same time watch was taken by burglar. State v. HuUen, 133 N. G. 656, 45 S. E. 513. Evidence circumstantial and main, circumstance be- ing recent, possession of ithe stolen property will not prevent sustaining conviction. Davis V. State [Tex. Cr. App.] 74 S. W. 919. 9. Lovelace v. State [Tex. Cr. App.] 76 S. W. 756. If the jury believe the explana- tion by defendant of his possession of such property is reasonably and probably true, they should acquit him. McCoy v. State [Tex. Cr. App.] 81 S. W. 46. 7. Strickland v. State [Tex. Cr. App.] 78 S. W. 689. 8. Perry v. State [Tex. Cr. App.] 78 S. W. 513. 9. Evidence sufficient to support convic- tion. State V. Raphael [Iowa] 99 N. W. IBl. iit. Instruction disapproved. Dyer v. State [Tex. Cr. APP.] 77 S. W. 456. II. Conviction affirmed. Jordan v. State, 119 Ga, 443, 46 S. E. 679. 13. The breaking and entry as well as the Intent may be shown by circumstantial evi- dence. State v. Peebles [Mo.] 77 S. W. 618.. 13. Circumstantial . evidence sufficient. Jones V. Com., 25 Ky. L. R. 2062, 79 S. W. 1183. Circumstantial evidence showing pos- session of stolen goods and other circum- stances sufficient. Brown v. State [Tex. Cr. App.] 78 S. W. 936. 14. VT^here, on a trial In December, 190S, there was evidence that "recently during the hrst week In November" the store of the witness was broken and entered and goods stolen, it was sufficiently shown. Jordan V. State, 119 Ga. 448, 46 S. B. 679. 15. Evidence held to sustain conviction. Miller V. State [Tex. Cr. App.] 77 S. W. 800. Evidence Insufficient to connect defendant with the crime. State v. King, 174 Mo., 647, 74 S. W. 627. Where evidence was hearsay and uncorroborated testimony of accomplice, conviction not sustained. Prazier v. Com., 25 Ky. L. R. 461, 76 S. W. 28. 16. See 1 Curr. L. 411. 17. Testimony that witness told prose- cutor Tvhere money was placed was properly admitted, witness not stating what was said. Washington v. State [Tex. Cr. App.] 77 B. W. 810. 18. Where burglary of a hotel was char- ged, evidence of possession of keys to rooms In two other hotels and to a room in the hotel burglarized was admissible. Bruen v. People, 206 111. 417, 69 N. E. 24. 19. Kennedy v. State [Neb] 99 N. W. 645. On the trial of one of three men ar- rested for the same burglary, it is competent to show what property was found on th? persons of all three. People v. Wljson [Mich.] 95 N. W. 536. Evidence of the possession of property taken from another defendant, associated in committing tlie crime with defendant, it being shown that the property was originally taken frpm the premises at the time of the buvglary, was 583 BUEGLAEY 3 Cur. Law. 60 found is admissible.^^ Evidence of other similar offenses is inadmissible un- less some connection with the offense charged is shown.'"' But where there were two or more burglaries at about the same time, evidence as to one may be admitted on trial of another when a part of the res gestae and tending to connect defendant with the offense charged.^^ The condition of the house at the time defendant was seen leaving it may be shown,^* but evidence by prosecuting witness that since the burglary he put a lock on the door and carried the key is inadmissible to show he had control at the time of the burglary.^" A confession is admissible if not extorted by fear and violence.^" § 4. Instructions and verdict.^'' — The defendant is entitled to an instruction to the jury on the definition of the crime he is charged with intending to commit* Instructions based on defendant's testimony,^" or statements testified to by another witness/" or on defendant's theory of the case,^^ should usually be given. As to propriety of instructions on particular issues/^ or the necessity of a charge based on circumstantial evidence,'" see cases cited in the notes. One indicted for burglary and larceny may be convicted of larceny only,"* or may be convicted of burglary and acquitted of the accompanying larceny.^^ A ver- dict of 30 years confinement for burglary of a private residence is not a "cruel and imusual punishment."^' The value of the property stolen is immaterial in fixing the punishment."^ A verdict that "the jury find defendant guilty as charged in the indictment, assess his punishment in the penitentiary for two years," is suffi- admlsslble. Mass v. State [Tex. Cr. App.l 81 S. W. 46. 30. Evidence held to sustain verdict of guilty. Kennedy v. State [Neb.] 99 N. "W. 645. 31. Johnson v. State [Tex. Cr. App.] 76 S. W. 925. 32. Subsequent burglary, not shoT^n to have any connection with the offense char- ged. McCoy V. State [Tex. Cr. App.] 81 S. W. 47. That the same house had been bro- ken into before. Glenn v. State [Tex. Cr. App.] 76 S. W. 757. 33. Bits taken from blacksmith shop used in gaining entrance to storehouse and bits and property taken from storehouse found close together and where defendant was seen. Perry v. State [Tex. Cr. App.] 78 S. W. 513. Evidence that a store was entered by the use of bits of the same size as those taken from another building and later found near where defendant had been seen with stolen property, admissible. Conviction sus- tained. Id. On trial for burglary and lar- ceny, evidence of other offenses by defendant in the same town on the same day is ad- missible to show defendant's presence in the town and to identify him. State v. Bates [Mo.] 81 S. "W. 408. S4. Washington v. State [Tex. Cr. App.] 77 S. W. 810. 25. Johnson V. State [Tex. Cr. App.] 76 S. W. 925. 36. Accused was taken to the store; ho was charged with burglarizing, and kept there a day and a half, and confessed on the way to Jail. State v. Robertson, 111 La. 35, S5 So. 375. 37. See 1 Curr. L. 412. as. Breaking and entering with intent to "steal." State v. Tough [N. D.] 96 N. W. 1025. 30. Error to refuse an instruction based on testimony regarding defendant's explana- tion of his possession of stolen property. Gather v. State [Tex. Cr. App.] SI S. W. 717. Sufficiency of instruction on defend- ant's testimony. Fields v. State [Tex. Cr. App.] 74 S. W. 309. 30. Proper to instruct as to considera- tion of statements of defendant testified to by a witness. State v. Chappell [Mo.] 78 S. W. 585. 31. Instruction presenting defendant's theory of the case not given. Simmons v. State [Tex. Cr. App.] 74 S. W. 762. 33. An instruction charging that defend- ant must show he came into possession of stolen goods "honestly and fairly" is erro- neous, since he need only show he acquired them by some means not connected with the crime charged. State v. Brady, 121 Iowa, 561, 97 N. W. 62. An instruction that the venue must be proven and that It must be proven beyond a reasonable doubt that de- fendant broke and entered with Intent to commit the crime of rape therein was proper. State v. Worthen [Iowa] 100 N, W. 330. A charge on defendant's alibi which assumed the house had been burglarized was not prejudicial where the Jury had been in- structed to find all the elements of burglary before finding defendant guilty. Davis v. State [Tex. Cr. App.] 74 S. W. 919. 33. Held not necessary. Holland v. State [Tex. Cr. App.] 74 S. W. 763; Fields v. State [Tex. Cr. App.] 74 S. "W. 309. 34. State v. Bates [Mo.] 81 S. W. 408. 35. State v. Helms [Mo.] 78 S. "W. 592. 38. Under White's Ann. Pen. Code, art. 485c., and Const, art. 1, § 13. Handy v. State [Tex. Cr. App.] 80 S. W. 526. 37. Acts 1895, c. 285, p. 365, providing im- prisonment for not more than one year for larceny, when the value of the property Is less than ?20, has no application to "lar- ceny from the dwelling by breaking and 3 Cur. Law. CANALS. 683 ciently intelligible.'* Where the indictment charges day and night burglary in different counts, a verdict of guilty will be imputed to tiie count justified by the evidence.-'' CANAI;S.M The right of eminent domain when given to a canal company is, as in all cases, strictly limited in its exercise to the terms of the grant.*^ Where a canal is a public highway, the abandonment of a part of it will not affect the status of what remains in use.*^ By observing certain conditions, railroad companies have the right to bridge canals,*^ but the fact that such conditions will be violated can- not be raised on an appeal from an order granting the right to erect the bridge.** The transferee of the state succeeds to the duties of the state with respect to the canal.*' A canal company is liable for damages by flooding the lands of abutting owners,** though the work be not negligently done,*^ and such damages are not awarded in condemnation proceedings.*^ Liability for negligence does not arise from a failure to guard a canal.*® Whether the exercise by a transferee of a franchise granted to the original company is ultra vires is a question between the state and purchaser.^* entej-lng- in the daytime." State v. Hullen, 133 N. C. 656. 45 S. E. 513. 38. Cabellero v. State [Tex. Cr. App.] 80 S. W. 1014. 39. Miller v. State [Tex. Cr. App.] 77 S. W. 800; State v. Lewis [Mo.] 79 S. W. 671. 40. Franchise by compact betTveeit states t Where a compact entered into between Vir- ginia and North Carolina (2 Rev. St. p. 225) declared canal franchises granted to be ir- revocable without the consent of both states, a Virginia corporation to which such fran- chises had been granted without the con- sent of North Carolina could not Justify an enterprise thereunder. Pinnix v. Lake Drummond Canal & Water Co., 132 N. C. 124, 43 S. E. 578. 41. Act 1790, § 10 provided that a canal company might condemn a right of way not exceeding a certain width. Held, where it did not appear what amount was condemned, it was limited to the extent of its use. Pin- nix V. Lake Drummond Canal & Water Co., 132 N. C. 124, 43 B. B. 578. 4a A company by authority of Laws 1899, c. 469, sold a portion of its canal and abandoned the remainder. New York Ce- ment Co. V. Consolidated Rosendale Cement Co. [N. T.] 70 N. B. 451. Patrons have the same rights in the portion in use as they had prior to abandonment. Id. 43. Where a railroad company is author- ized to condemn easements of crossings, it should be permitted to Institute proceedings without interference from the trustees ap- pointed by the court having control of the canal. Chesapeake & O. Canal Co. v. West- ern Md. R. Co. [Md.] 58 A. 34. 44. The canal was under control of the circuit court and the company would have been in contempt had it instituted condemna- tion proceedings without the order. Chesa- peake & O. Canal Co. v. Western Md. R. Co. [Md.] 58 A. 34. The right to build bridges across her basins may be granted to the extent that the city is concerned. Capde- vlelle V. New Orleans & S. F. R. Co., 110 La. 904, 34 So. 868. 45. To maintain bridges over the canal, as P. L. 75, made this the duty of the canal commissioners. Book v. Pennsylvania R. Co., 207 Pa. 138, 56 A. 352. 46. In widening its canal, it filled up plaintiff's ditch, caused large amounts of mud and sand to be thrown on his land. Pinnix v. Lake Drummond Canal & Water CO:, 132 N. C. 124, 43 S. B. 578. Evidence held sufficient to authorize a recovery of damages by a landowner by reason of a flood caused by insufficient opening in an aque- duct. Greeley v. State, 88 N. T. S. 468. On a claim for damages caused by leakage, evi- dence held to show that some damage was sustained. Crowley v. State, 90 App. Div. 613, 85 N. T. S. 1027. Laws 1894, c. 338, pro- viding that damages resulting from manage- ment of canals may be recovered from the state, renders the state liable for its failure to provide opening in an aqueduct across a stream of sufficient capacity to meet extra- ordinary conditions. Greeley v. State, 88 N. T. S. 468. In an action for injuries to land, evidence that the superintendent told plaintiff, whose land had been injured, that he could not drain into the canal unless he sold some land to the company, was admissible. Bul- lock V. Lake Drummond Canal & Water Co., 132 N. C. 179, 43 S. E. 593. Effect of im- provements on land adjoining that which was injured, immaterial. Id. 47. Pinnix v. Lake Drummond Canal & Water Co., 132! N. C. 124, 43 S. E. 578. 48. Evidence thereof -was Inadmissible where' the condemnation proceedings were not pleaded. Turpen v. Turlock Irr. Dlst., 141 Cal. 1, 74 P. 295. 49. Maintenance of unguarded canal is not negligence so as to render the company liable for death of a child five years old, who was drowned therein. McCabe v. Amer- ican Woolen Co., 124 F. 283. 50. New York Cement Co. v. Consolidated R. Cement Co. [N. Y.] 70 N. B. 451. 584 CANCELLATION OF INSTRUMENTS § 1. 3 Cur. Law. CANCELLATION OE INSTEXTMENTS.bi § 1. IVatare of Remedy (584). Laches (588). Effect of Death of Party § a. Canse of Action and Gronnds for Re- (589). llvidence and Proof (589). Ilef (585). Conditions Precedent (587). § 3. Procednre (690). Pleading (590). Parties (690). § 1. Nature of rsmedy.^^ — The suit for canceUation or amnilment of instru- ments or contracts is a purely equitable remedy/* and cannot be maintained or brought va. a court of law."* Having acquired jurisdiction in a suit for cancella- tion, the equity court wiU retain it to settle the equities between the parties,"" and may grant relief upon both equitable and legal rights,"^ providing legal relief is asked for in the prayer,"^ and necessary facts are pleaded."' But the court cannot grant relief inconsistent with the cause of action pleaded,"' or based on jBndings unwarranted by the evidence or the prayer for relief.'" On the other hand, can- cellation may be granted in a suit brought for another purpose, the prayer being for general relief and the proof warranting such a decree."^ Bl. The title Includes cases In which can- cellation of such Instruments as deeds or mortgages of real property, leases, chattel mortgages. Insurance policies and promis- sory notes has been sought, or in which the annullment or rescission of contracts has been the relief sought. The titles Fraudulent Conveyances, 2 Curr. L. 116; Frnnd and TTndne Influence, 2 Curr. Ii. 104, and Mistake and Accident, 2 Curr. Li. 903, respectively treat of the nature, ele- ments and effect of fraud such as will avoid a transfer to defeat creditors and purchasers in good faith, of fraud or undue influence having a like effect between the parties, and of mistake and accident having that effect. 52. See 1 Curr. Z.. 413. 53. Where the execution of many notes grew out of the same transaction, equity had jurisdiction to entertain suit by all the makers for their cancellation. Notes by 57 persons fraudulently obtained by railway corporation about to build through the town. Mobile, J. & K. C. R. Co. [Miss.] 36 So. 82. Equity has jurisdiction to cancel promissory notes for total failure of consideration and to enjoin an action at law thereon. "Wo- melsdorf v. O'Connor, 53 W. Va. 314, 44 S. E. 191. . Federal court has jurisdiction as a court of equity to cancel a policy of insur- ance, notwithstanding a Missouri statute (Rev. St. 1899, 5 7890), declaring that mis- representation in procuring a policy shall be a question for the jury. Union Life Ins. Co. V. Rlggs, 123 F. 312. 54. Replevin will not lie to correct, mod- ify or cancel a contract. Cattle sought to be recovered, which had been wrongfully sold by one in possession under a written contract. Penton v. Hansen, 13 Okl. 450, 73 P. 843. Cancellation of mortgage notes was asked in a court of law, and refused. Two- good V. AUee [Iowa] 99 N. W. 288. Under the Georgia statutes, a city court, having no jurisdiction to grant affirmative equita^ble re- lief, cannot entertain a suit to set aside an assignment. Ehrlich & Bro. v. Shuptrine, 117 Ga. 882. 45 S..E. 279. 55. Property conveyed In consideration of love and affection and support by grantee, the only daughter of grantor. Grantee died and her husband refused to further perform. The court refused to rescind, but took charge of the property so as to insure support for the grantor, and preserve residue, if any. for her daughter's children. Kelster v. Cu- blne, 101 Va. 768, 45 S. B. 285. An old cou- ple conveyed land for the consideration of care being taken of them by their children. The deed was set aside for incompetency, but the grantees were permitted to recover their expenditures, the contract not being Inequitable or fraudulent. Bollnow v. Roach [in.] 71 N. E. 454. Under the Cali- fornia statute, the court, on dismissing on the merits a suit for the cancellation of a contract, may enter judgment for defendant on a' cross claim, although the amount of the latter is below the amount fixing the jurisdiction of the court. Sullivan v. Cali- fornia Realty Co., 142 Cal. 201, 76 P. 767. In a suit to set aside a conveyance, where the right of possession is in issue, it is the duty of the court to determine that issue, and if all parties are before the court, to put the party entitled thereto in possession. Albin V. Parnell [Neb.] 99 N. W. 646. 66. In a suit to cancel a deed of mining interests, it was held reformation was the proper remedy, but that in either form, an amendment should have been allowed so as to cover judgment for damages for improve- ments placed on the land. Gillis v. Arring- dale [N. C] 47 S. E. 429. 67. Where, In an equitable suit to cancel a deed, no legal relief is asked, damages cannot be awarded. Ruble Combination Gold Min. Co. V. Princess Alice Gold Min. Co., 31 Colo. 158, 71 P. 1121. 68. A suit to set aside a conveyance can- not be considered one to remove cloud on title when possession is not alleged to be in complainants, and there is no proof of such possession. Boddle v. Bush, 136 Ala. 560, 33 So. 826. 59. In a suit instituted to cancel an agree- ment in writing, on the ground that it Is invalid for fraud, jurisdiction cannot be re- tained to construe the instrument and grant an injunction based thereon, since the latter relief. If proper, is inconsistent with the cause of action stated In the bill. Kerr v. Southwlck [C. C. A.] 120 P. 772. 60. In suit to cancel deed for fraud and undue Influence, court erroneously found that grantor had a life estate and right to possession. Butler v. Carvin, 33 Wash. 621, 74 P. 813. 61. If a petition states a good cause of action for cancellation, that relief may be 3 Cur. Law. CANCELLATION OP INSTRUMENTS § 2. 585 It was held in California that, within the meaning of statutes of limitation, a suit to set aside a conveyance for fraud was a suit for the recovery of real prop- erty;®'' in Kansas, the limitation statute governing actions for fraud was held to apply."* Adequacy of remedy at law^* will, as in other cases, oust equity jurisdiction.'" If the averments of the bill show the instrument to be absolutely void, it will not be set aside in equity, as plaintiffs have in such case a complete and adequate remedy at law."' Suit will not lie for cancellation of an instrument which is a mere receipt, since its terms may be contradicted or varied by parol, thus giving an adequate remedy at law." A Federal court of equity will not take jurisdiction of a suit for the delivery up and cancellation of a policy when misrepresentations and concealment can be perfectly well established in a defense at law in an action on the policy.'* The rule is not altered by the fact that suit has been, or may be brought, in a state Icourt, where such defense cannot be made, if the right of removal to the Federal court exists;'* and it is immaterial that such removal will result in a forfeiture of the company's license to do business in the state, since such forfeiture is the result of the company's own act.'* § 2. Cause of action and grounds for relief.''^ — Equity will ordinarily grant granted, though the prayer be for apeclflo performance and other and further relief. OH and gas lease canceled as to portion of lands covered. Cofflnberry v.- Sun Oil Co., 68 Ohio St. 488, 67 N. B. 1069. Deed from mother to son In consideration of t500 and agreement to support, consideration having failed. Suit was for balance of price, and cancellation was granted. Stephenson v. Stephenson, 24 Ky. L. R. 187S, 72 S. W. 742. 62. Not governed by statute limiting ac- tions on ground of fraud or mistake, where fraud and undue influence were the grounds for relief. Murphy v. Crowley, 140 Cal. 141, 73 P. 820. 63. Under the Kansas statute, an action to set aside a deed on the ground of fraud Is barred on the expiration of two years after the discovery of the fraud, and the filing of the deeds In the registry la equiva- lent to such discovery. Rogers v. Richards, 67 Kan. 706, 74 P. 265. 64. See 1 Curr. L. 413. 65. Allegations of bill held Insufficient to warrant equity Intervention. Handley v. Sprinkle [Mont.] 77 P. 296. Held, plaintiff had adequate remedy at law to recover ground rent, and hence bill to cancel agree- ment to reduce ground rent would not lie. Norrls v. Crowe, 206 Pa. 438, 55 A, 1125. If an action In ejectment Is available, a suit to set aside a conveyance will not lie. Pur- chaser at execution sale could not set aside a prior conveyance, alleged to have beerf fraudulent and void, when defendants were in possession. Ropes v. Jenerson [Fla.] 34 So. 955. Must be as complete and as ade- quate, as sufficient and as final, as the remedy in equity. Cable v. tJ. S. Life Ins. Co., 191 tr. S. 288, 24 S. Ct. 74, 48 Law. Ed. 188. It must be a remedy which may be resorted to without impediment created oth- erwise than by act of the party. Id. It was held that the defense of fraud which might be asserted In an action on an Insurance policy In a state court was an adequate remedy which would preclude maintenance of a suit to cancel the poHoy in a Federal court, since the assertion of that defense could not be said to depend on the will of the adverse party. Riggs v. Union Life Ins. Co. [C. C. A.] 129 P. 207. Must be capable of being asserted without rendering the party asserting it liable to the imposition of heavy penalties or forfeitures. Cable v. U. S. Life Ins. Co., 191 U. S. 288, 24 S. Ct. 74, 48 Law. Ed. 188. In the Federal courts the remedy must exist on the law side of the same court. "Where the rights of all claimants could not be determined In the law action, held not a bar. Mutual, Life Ins. Co. V. Blair, 130 F. 971. When there is an adequate remedy at law, a Federal court will not retain jurisdiction simply because the law as there administered is more favorable to petitioner than in a state court. Applied in Insurance company case to cancel a pol- icy. Cable V. U. S. Life Ins. Co., 191 U. S. 288, 24 S. Ct. 74, 48 Law. Ed. 188. 66. Boddle V. Bush, 136 Ala. 560, 33 So. 826. Equity would not cancel insurance pol- icies where bill failed to allege fraud but set up facts showing policies were never de- livered. Northwestern Mut. Life Ins. Co. v. Amos [Mich.] 98 N. W. 1018. Bill for can- cellation dismissed where deed was a for- gery, and even if not forged, had never been delivered. Green v. Brown [Miss.] 34 So. 147. 67. Fraud inducing the settlement for which it was given may be shown in a law action. Such v. Bank of State of New York, 127 F. 450. 68. Cable V. U. S. Life Ins. Co., 191 U. S. 288, 24 S. Ct 74, 48 Law. Ed. 188. ea. Cable V. U. S. Life Ins. Co., 191 U. S. 288, 24 S. Ct. 74, 48 Law. Ed. 188; Riggs v. Union Life Ins. Co. [C. C. A.] 129 F. 207. 70. The company signs an agreement for a license In order to do business. Cable v. U. S. Life Ins. Co., 191 U. S. 288, 24 S. Ct 74, 48 Law. Ed. 188; Riggs v. Union Life Ins. Co. [C. C. A.] 129 P. 207. 71. See 1 Curr. L. 414. note:. IVIieii pat«nt to land will be ean- oeted: "First, where the government, being 586 CANCELLATION OF INSTEUMENTS § 2. 3 Cur. Law. relief when the instrurofiHt or contract sought to be canceled or set aside was pro- cured by fraudulent misrepresentations" or other fraud/' or duress/* or undue in&ience, especially when the parties to the transaction stand in a fiduciary rela- tion." Eelief on the ground of fraud will not be granted if it appears that the fraud was not directly connected with the transaction," or that the petitioner has not suffered inju.ry or cannot show some special ground for equitable relief," or that the 'fraud was made possible by plaintiff's agent, the other party acting in good faith. '^' A mistake of fact is ground for the remedy, whether mutual," or unilateral," but a mistake of law, unaccompanied by special circumstances, such as misrepre- sentation, undue influence, or misplaced confidence, is not.^^ Conveyances made^^ or recorded''^ without authority may be set aside. Pail- the only party interested, the patent Is charged to have been obtained by fraud in representations or conduct; second, where tlie land by appropriate reservation is not subject to patent, but is nevertheless er- roneously patented; third, where the land, though subject to patent in the ordinary ad- ministration of the land office, is patented to the wrong person, either through fraud or by reason of mistake or inadvertence." U. S. V. Bell Tel. Co., 167 TJ. S. 239, 17 S. Ct. 809, 42 Law. Ed. 144. Quoted in Lynch v. U. S., 13 Okl. 142, 73 P. 1095. 72. Misrepresentations as to purchaser, a Catholic corporation, against which seller was prejudiced. Thompson v. Barry, 184 Mass. 429, 68 N. B. 674. False representa- tions and promise of marriage by married man held sufficient ground for setting aside conveyance. Harris v. Duraont, 207 111. 583, 69 N. E. 811. A false representation that de- fendant would take up and cancel two other mortgages it plaintiff would execute to him a new mortgage, and failure of the mort- gagee to carry out the agreement is suffi- cient ground for cancellation of such mort- gage. Hill v. Gettys [N. C] 47 S. E. 449. A railway company fraudulently represent- ed that it would build through a rival town if certain notes "were not given, when in fact, it had already contracted to build through plaintiff's town. Notes given were canceled. Hightower v. Mobile, J. & K. C. E. Co. [Miss.] 36 So. 82. A petition seeking cancellation of conveyance and alleging fraudulent misrepresentations as to value of mineral leases given in exchange for deed of land, states a cause of action. Cooper v. Maggard [Tex. Civ. App.] 79 S. W. 607. 73. Evidence held to show defendant's agent knew of and participated in fraud in procuring deed, which is set aside. Schreck- hise V. Wiseman [Va.] 45 S. E. 745. Where one who has promised to leave property to a person at his death conveys it to a third person in fraud of the promisee, a cause of action at once arises to set the conveyance aside. Teske v. Dittberner [Neb.] 98 N. W. 57. 74. A married woman who makes a con- veyance in consequence of a threat that her husband will be prosecuted for forgery and a promise that he will be protected If the conveyance is made is not debarred from relief under the maxim In part delicto, since the parties are not in an equal position, and the conveyance may be set aside for duress. Turner v. Overall, 172 Mo. 271, 72 S. W. 644. 75. Where a lawyer Induced his Ignorant, feeble-minded foster sister to convey, there was found to be a fiduciary relation, and deed was set aside. Walker v. Shepard [111.] 71 N. E. 422. Where a wife executed a dec- laration of trust, carrying out the provisions of her husband's will as to the proceeds of life insurance policies, it was held there was no such fiduciary relation as that equity, presuming the transaction invalid, would annul the declaration. Rogers v. Rogers, 97 Md. 573, 55 A. 450. Evidence held to show undue influence in procuring execution of deed; but deed allowed to stand on condi- tion that grantee accept land as his full share of father's (grantor's) estate. Krause V. Krause [N. J. Eq.] 55 A. 1095. 76. Pittenger v. Pittenger, 208 111. 582, 70 N. B. 699. 77. Applied in suit by United States to cancel land patent. Lynch v. TJ. S., 13 Okl. 142, 73 P. 1095. 78. Gray .Cloud Land Co. v. Clay, 89 Minn. 166, 94 N. W. 552. 79. A mutual mistake of fact, if material, is ground for rescission or cancellation of the contract by either party. Lease can- celed on showing of mutual, material mis- take as to condition of premises. Barker V. Fitzgerald, 105 111. App.' 536. Where the instrument intended by both parties to em- body a contract of conditional sale was ex- ecuted In the form of a chattel mortgage, the instrument was canceled, in suit for re- plevin of piano sold. Kimball Co. v. Dea- ton, 102 Mo. App. 45, 74 S. W. 427. 80. But the court said that when the mis- take is mutual, the remedy Is reformation. Deed conveying property to order rescinded for unilateral mistake. Wirsching v. Grand Lodge of Free and Accepted Masons [N. J. Eq.] 56 A. 713. SI. Norris v. Crowe, 206 Pa. 438, 55 A. 1125. 82. Contract of exchange of lands set aside because made without authority from plaintiff church corporation. North Louis- iana Baptist Ass'n v. Milliken, 110 La. 1002, 35 So. 264. In foreclosure action, the mort- gage and note were ordered delivered up and canceled because void, having been ex- ecuted without authority, after revocation, by death, of power of attorney. Brown v. Skotland [N. D.] 97 N. W. 543. 83. Where deeds, not intended to be and not In law delivered are put on record by the grantees, so as to be a cloud on gran- tor's title, he may have them canceled. Bunn V. Stewart [Mo.] 81 S. W. 1091. 3 Cur. Law. CANCELLATION OF INSTEUMENTS § 2. 58: Tire io record is not ground for cancellation.'* Inadequacy of consideration is not alone a sufficient ground for setting aside a conveyance,'" but if coupled with circumstances tending to show oppression or undue influence or mental incapacity^ relief will be granted.*' Complete failure of consideration seems to be sufficient.*^ Where a grantor conveys land in consideration of an agreement by the grantee to support the grantor during his or her natural life, failure of the grantee to carry out the agreement is ground for cancellation of the conveyance." This is on the theory that there was fraud in the inception of the contract, and does not apply when failure to perform is by the grantee's heirs.** When this ground is relied upon, plaintiff must plead a re-entry or demand for possession,'" and demand for performance,'^ or facts showing that demand for performance would have been unavailing.'^ Where cancellation is sought on the ground of incompetency of the parties on one side, it will not be granted if any of the parties on that side appear capable of contracting." The right to rescission of a contract of conveyance is not affected by the fact that title was in a third person for the plaintiff's benefit.'* Where cancellation of a deed by defendant to a third person is sought, plaintiff must show a right to specific performance of, or damages for breach of, an agreement relating to the same land.'" Conditions precedent. '^^ — It is the general rule that a party seeking to have a contract canceled must show himself ready to place the other party in. statu quo,'^ 84. A bill to cancel plaintiff's signature to a deed releasing restrictions on lots will not lie on the ground simply that another grantee, to whom the deed was conditionally delivered to sign refuses to record it. 'Went- worth V. Bichorn [Mass.] 69 N. B. 366. 85. But where a fiduciary relation exists, gross inadequacy Is evidence of fraud. "Walker v. Shephard [111.] 71 N. B. 422. Mere inadequacy of consideration no ground to set aside conveyance. Booker v. Booker, 208 111. 529, 70 N. B. 709. Mere inadequacy, without showing of fraud, insufficient to set aside conveyance. Hagan v. Ward. 86 App. Dlv. 620, 83 N. T. S. 436. Want of consid- eration, such as failure to perform promises, is not alone sufficient to warrant setting aside a bond or mortgage. Hill v. Gettys [N. C] 47 S. B. 449. Adequacy of consid- eration is immaterial in absence of circum- stances showing other equitable grounds for relief. Jacobson v. Nealand, 122 Iowa, 372, 98 N. W. 158. Inadequacy of price and neg- ligence of attorney held not sufficient ground for setting aside sheriff's deed, especially since sale had been confirmed by court at the time. Crebbin v. Powell [Kan.] 74 P. 621. 86. Hardy v. Dyas, 203 lU. 211, 67 N. B. 852. 87. Deed from father to daughter set aside where she had paid no part of ex- pressed consideration and had been fully compensated for services to parents. String- fellow v. Hanson, 25 Utah. 480, 71 P. 1052. 88. Stebbins v. Petty, 209 111. 291, 70 N. B. 673. Doctrine recognized but held inappli- cable as facts did not show failure to carry out agreement to support. Pittenger v. Pit- tenger, 208 111. 582, 70 N. B. 699. Plaintiff and husband deeded land to son and wife in consideration of furnishing them a home. The agreement was carried out for 15 months and parties then agreed to rescind because all were dissatisfied. Rescission was prevented by sickness and death. Held, suf- ficient ground for equitable relief and con- tract rescinded. McDowell v. McDowell, 24 Ky. li. R. 2270, 73 S. W. 1022. 89. Stebbins v. Petty, 209 111. 291, 70 N. B. 673. 90, 91. Tomlinson v. Tomlinson [Ind.] 70 N. B. 881. 92. As when grantee, having promised to support grantor, drove her away. Tomlin- son V. Tomlinson [Ind.] 70 N. E. 881. 93. One of three parties to a lease did not appear from the evidence to be incom- petent. Barlow v. Strange [Ga.] 48 S. E. 344. 94. Thompson v. Barry, 184 Mass. 429, 68 N. B. 674. 95. Relief refused. Fruslecke v. Ramzin- ski [Tex. Civ. App.] 81 S. W. 771. 9«. See 1 Curr. L. 416. 9T. Cheuvront v. Cheuvront [W. Va.] 46 S. E. 233. Where motlier was granted can- cellation of a deed for nonperformance by the son, of an agreement to care for her. he was entitled to recover $20 paid her on the price. Stephenson v. Stephenson, 24 Ky. L. R. 1873, 72 S. W. 742. Where deed was canceled, defendant being allowed to retain certain property, held, he was sufficiently compensated for expense incurred while con- tract was in force. McDowell v. McDowell, 24 Ky. L. R. 2270, 73 S. W. 1022. Cancella- tion of building contract refused when plain- tiff did not offer to pay defendant for work done and materials furnished thereunder. Sullivan v. California Realty Co., 142 Cal, 201, 75 P. 767. Note! Since "he who seeks equity mu.-st do equity," the court ti-I1I ordinarily refuse to cancel contracts nnlens tlie pnrtlCH be placed in stain qno. Worthington v. Collins. 588 CANCELLATION OF INSTEUMENTS § 2. 3 Cur. Law. as by tendering back benefits received under the contract/' and relief may be de- nied where the parties/' or innocent third parties/ cannot be so placed. The tender of benefits received must be absolute and made in good faith/ but may be sufficient if made in the bill." But- where the other party has been guilty of fraud or unconscionable conduct; equity may grant relief without an offer to place him in statu quo.* Such tender may be unnecessary where all performance is denied." In Louisiana, tender of the price received is not a condition precedent to the bringing and maintenance of an action to rescind a sale for lesion beyond moiety." Laches.'' — Unexplained delay for an unreasonable period bars the remedy." But if the delay is not unreasonable/ or is caused by ignorance of rights/" it will not preclude relief. Laches of a grantor will not bar suit by his heir to set aside a conveyance.^^ The plaintiff may be precluded from maintaining suit for cancellation by an equitable election." 39 W. Va. 406, 19 S. B. 527; Christian v. Vance, 41 W. Va. 754, 24 S. B. 696. This Is the general rule where the transaction is purely of a commercial nature, or applies solely to property rights, and the doctrine has been carried so far that a court of equi- ty has refused relief, though a party has been unable to restore what he has received on account of misfortune. But where a fidu- ciary relation exists between the parties and the one in whom confidence has been reposed has been guilty of fraud, deceit, overreaching, or unconscionable conduct, re- lief may be granted without a return of benefits received by the petitioner. See Cheuvront v. Cheuvront [W. Va.] 46 S. E. 233. 98. Payments made under an antenuptial agreement. Russell v. Russell, 129. F. 434. In suit to cancel deed fraudulently delivered while in escrow, plaintiff was required to repay a portion of consideration received. Ruble Combination Gold Mln. Co. v. Princess Alice Gold Mln. Co., 31 Colo. 158, 71 P. 1121. Cancellation of a deed will not be decreed without a tender by plaintiff of the consid- eration received. Alaska & C. Commercial Co. V. Solner [C. C. A.] 123 F. 855. 99. A cancellation of a chattel mortgage will not bo decreed unless the original sta- tus of the parties can be restored. Ander- son V. Anderson Food Co. [N. J. Eq.] 57 A. 489. 1. Though a patent was obtained by fraud, the government cannot have it can- celed, when the land has been used for townslte purposes and the rights of inno- cent holders have intervened. Lynch v. U. S., 13 Okl. 142, 73 P. 1095. a. Alaska & C. Commercial Co. v. Solner [C. C. A.] 123 F. 856. 8. Failure to do so before filing the bill Is material only on the question of costs. McLeod V. McDeod, 137 Ala. 267, 34 So. 228. 4. Tender of an amount received In a set- tlement Is unnecessary In order to maintain a suit for cancellation of a receipt given, when by fraud, defendant overstated the amount paid out by him. Price v. Stout, 84 App. Div. 334, 82 N. T. S. 935. An offer to return part of the land and cash received from an exchange Induced by fraud held a sufficient tender under the facts. Harris v. Dumont, 207 HI. B8S, 69 N. B. 811. Grantee tonlr ripRfl for Inadequate price, taking ad- vantage of grantor's Incompetency, and the confidence reposed in him. Return of con- sideration not required. Hardy v. Dyas, 203 111. 211, 67 N. B. 852. A wife was granted cancellation of a separation contract pro- cured by fraud, though she was unable to repay money given her to Induce her to agree to the contract. Cheuvront v. Cheu- vront [W. Va.] 46 S. B. 233. 5. There need be no tender of considera- tion or offer to reimburse when all perform- ance Is denied by plaintiff, who sets up fraud in the other party. Whether there must be reimbursement cannot be deter- mined from the pleadings In such case. Sheehan v. Allen, 67 Kan. 712, 74 P. 245. 6. Ware v. Couvillion, 112 La, 43, 36 So. 220. 7. See 1 Curr. L. 416. 8. Booker v. Booker, 208 111. 529, 70 N. B. 709. Plaintiffs sought cancellation of deed on ground of incompetency and fraud 41 years after right of action accrued, no ex- cuse being given for delay, and original par- ties being long since dead. Wilkes v. Phil- lips [Ga.] 48 S. B. 113. Where there was a failure of plaintiff's grantor to repudiate a deed given by her without Joining her hus- band, for 19 years, plaintiff, acquiring title from woman after a divorce, was barred by laches. Dickman v, Dryden, 90 Minn. 244, 95 N. W. 1120. 9. A suit by a widow to set aside an an- tenuptial agreement for fraud is not barred by laches "where commenced at once after the unsuccessful termination of a prior suit for its reformation, which was commenced within a year after her husband's death, she at all times asserting the invalidity of the agreement. Russell v. Russell, 129 P. 434. 10. Delay in bringing suit to set aside an unreasonable settlement will not bar relief when caused by Ignorance of rights, and the other parties have not been placed in a position rendering an assertion of the claim unreasonable. James v. Aller [N. J. Eq.] 57 A. 476. 11. Donnelly v. Rees, 141 Cal. 56, 74 P. 433. 12. Where plaintiff's property was given to defendant by a donor who at the time gave plaintiff other property which he ac- cepted and received, making no objection for four years after reaching majority, he had elected. Barrier v. Kelly [Miss.] 33 So. 974. 3 Cur. Law. CANCELLATION OF INSTEUMENTS § 2. 589 Effect of death of party.— Aitev a loss on the policy by death of the insured, such a suit cannot be maintained, in the absence of special circumstances invoking equity jurisdiction;" but before such loss it may be maintained," and jurisdic- tion, -when acquired, is not affected by death of the insured after commencement of the action.^* The grantor's heirs may have cancellation of a conveyance for nonperformance of a condition to provide support.^" Evidence and yroof}'' — The allegations setting out the grounds on which re- lief is sought must be substantially and clearly proven.^* But in a suit to set aside a conveyance between parties between whom a fiduciary relation exists, the burden is on the grantee to show the transaction free from fraud or undue influ- ence.^* A certificate of acknowledgment is not evidence of a grantor's mental 13. The misrepresentation and conceal- ment being an adequate defense in an ac- tion on tlie policy. Rigga v. Union Life Ins. Co. tC. C. A.] 129 F. 207. Reversing circuit court below as to tliis proposition. See union Life Ins. Co. v. Riggs, 123 P. 312; Mutual Life Ins. Co. v. Blair, 130 P. 971; Des Moines Life Ins. Co. v. Seifert [111.] 71 N. B. 349. 14. Riggs V. Union Life Ins. Co. [C. C. A.] 129 P. 207; Mutual Life Ins. Co. v. Blair, 130 P. 971. 15. Riggs V. Union Life Ins. Co. [C. C. A.] 129 P. 207. A plea in bar alleging the in- sured's death, and the bringing and pend- ency of an action at law, held not avail- able to present the objection that the bill was not sustainable for want of equity. Mutual Life Ins. Co. v. Blair, 130 P. 971. 16. Man and wife conveyed to two chil- dren in consideration of support, care, med- ical attendance, etii. After the grantor's death, other heirs brought bill to cancel conveyance on ground of failure to perform any of the conditions of the agreement. A demurrer to the bill was held to have been erroneously sustained. Pluharty v. Plu- harty [W. Va.] 46 S. B. 199. 17. See 1 Curr. L. 419. IS. Evidence insufficient to show incom- petency, undue influence, or failure of sup- port by grantees. Pamment v. Warner [Mich.] 97 N. W. 692. In action to set aside assignments of mortgages, evidence held to show a delivery before death of assignor, and decree for assignee affirmed. Peirson V. McNeal [Mich.] 100 N. W. 458. Cancella- tion of deed refused, when there was evi- dence as to circumstances surrounding its execution, no evidence that consideration was not paid, or of fraud or undue influence. Fink V. Van Passen, 206 Pa. 362, 55 A. 1054. In suit to set aside conveyance by widow to daughter, other children "being excluded, where it appeared the grantee cared for grantor for 17 years faithfully, it was held there was no" presumption of undue influ- ence, and evidence did not show any ground for setting deed aside. Vance v. Davis, 118 Wis. 648, 95 N. W. 939. A public contract will not be annulled unless the municipality can show that the contractor has not per- formed the conditions of his contract. City of Bl Reno v. El Reno Water Co. [Okl.] 76 P. 126. Frand must be proven by clear and satis- factory evidence. Grantor held competent and transaction free from fraud. Burnham v. Burnham, 119 Wis. 509, 97 N. W. 176. Cancellation of contract refused evidence ' not sustaining allegations of fraud. Per- kins V. Blanohard Co., 81 App. Div. 635, 82 N. T. S. 1080. Evidence held insufficient to show participation in fraud by defendant in suit to set aside mortgage. Mohr v. Griflln, 137 Ala. 466, 34 So. 378. Proof of fraud in- sufficient in suit by government to cancel land patent. U. S. v. Detroit Timber & Lum ber Co., 124 P. 393. Held that an agreement for a license under a patent could not be canceled, as it was not Invalid for fraud, though Inchoate and incomplete. Kerr v. Southwiok [C. C. A.] 120 F. 772. The bur- den is on the party asserting it. Moore v. Baker [N. J. Eq.] 55 A. 106. Forgery must be substantially and clearly proven. Grantor's testimony will not over- come certiflcate of acknowledgment, ordi- narily. But held, in this case, that forgery was established. Parlin & Orendorflf Co. v. Hutson, 198 111. 389, 65 N. E. 93. Evidence held to show signatures to mortgage and note not forged. Colbert v. Moore [Mass.] 70 N. E. 42. Mental Incapacity of grantor held not to have been shown. Hayman v. Wakeham [Mich.] 94 N. W. 1062. 19. Deed and transfer of promissory notes to Dowie, head of religious sect, by an old lady, a member, set aside, because the burden not met by defendants. Dowie v. Driscoll, 203 111. 480, 68 N. E. 56. Contract by old, weak-minded, ignorant woman to sell set aside, though no active fraud in vendee was sliown, the contract being al- most entirely executory, price inadequate, and circumstances such as to give vendee an undue advantage. Wilkle v. Sassen, 123 Iowa, 421, 99 N. W. 124. Evidence held to re- quire a decree canceling, on the ground of fraud, a conveyance of land, with a reser- vation of a life estate, made for an inade- quate consideration by an aged negro wo- man to her physician. Norfleet v. Beall [Miss.] 34 So. 328. Conveyance by old man to houselceeper held free from undue influ- ence. Crooks V. Smith [Iowa] 99 N. W. 112. Where a fiduciary relation exists between the parties, proof of gross inadequacy be- comes evidence of fraud. Walker v. Shep- hard [111.] 71 N. E. 422. Attorney and client: Where attorney bought land of a client, who had consulted him about it, the attorney must show the utmost good faith and that the client was not overreached. Young v. Murphy [Wis.] 97 N. W. 496. Husband and irlfe: In a suit by a wife to cancel a separation contract, alleged to have been procured by fraud, the burden was on 590 CANCELLATION OP INSTETJMENTS § 3. 3 Cur. Law. capacity,"" nor is a record in a former suit to set aside another conTeyance admis- sible on that issTie."^ § 3. Procedure.-^ — Since the action is equitable, the court tries all questions of fact and should make findings thereon.^' The statutes granting new trial of right in actions affecting title to land apply to a suit to cancel a conveyance.** Pleading."^ — The bill must set out facts suflScient to constitute fraud when 'that is the ground of the relief prayed for.^'^ But only the result of undue influence, not the particular acts constituting it, need be alleged.^' The bill must show a sufficient tender of the property received,^' and must show com- plainant's title to that transferred."' A bill to cancel a conveyance by a common donor to defendant of plaintiff's property, which shows that the donor at the same time made a gift of other property to plaintiff, must disclose the value of the prop- erty received by plaintiff.^" A petition by the United States to annul a patent for fraud must, under the code, contain all the material averments essential to a good bill in equity under the chancery practice.'^ Equitable considerations, which it is claimed warrant the court in refusing to annul a mortgage without restoration of the consideration, must be presented by answer and cannot be raised on demur- rer.'" In a purely equitable action to cancel a contract, a mere allegation that plaintiff has an adequate remedy at law is not good as a defense under the code.'* Parties.^* — ^AU persons interested in the subject-matter of the contract sought to be canceled are necessary parties."* In suit to cancel an agreement to pay com- missions, the other party to the contract, for procuring which the commission is sought, is not a necessary party.'" In suit for cancellation of a policy of insur- ance on the ground of a fraudulent conspiracy between the insured and others, brought after the death of the insured, the co-conspirators may be made parties defendant with the executors or beneficiaries for the purpose of having liability for costs adjudicated." Che husband to show she acted with full knowledge and that the transaction was fair. Cheuvront v. Clieuvront [W. Va.] 46 S. B. 233. In a suit by the wife to cancel a conveyance by her to her husband, the burden is on defendants to show the con- tract fair and equitable. Evidence held not sufficient. Harraway v. Harraway, 136 Ala. 499, 34 So. 836. 20. It is evidence only of those facts to which the notary is required to certify. Walker v. Shepard [111.] 71 N. B. 422. ai. Defendants not having been parties to the former action. Bollnow v. Roach [111.] 71 N. B. 454. as. See 1 Curr. L. 416. 23. Action to set aside conveyance for fraud sent back for retrial because Improp- erly tried by jury and court omitted to make findings. Flanlgan v. Skelly, 89 App. Div. 108, 85 N. T. S. 4. 24. Krise v. Wilson, 31 Ind. App. 590, 68 N. E. 693. Burns' Ann. St. 1901, § 1076. Tomlinson v. Tomlinson [Ind.] 70 N. E. 881. 25. See 1 Curr. L. 417. 26. To cancel bill of sale of stock for fraud. Bill held demurrable. Wetherell v. Johnson, 208 111. 247, 70 N. E. 229. Allega- tions of fraud held to be sufficient. Tom- linson V. Tomlinson [Ind.] 70 N. E. 881. 27. McLeod v. McLeod, 137 Ala. 267, 34 So. 228. 28. Alaska & C. Commercial Co. v. Sol- ner [C. C. A.] 123 F. 856. 89. Cancellation of a lease being sought the bill must allege title to the lands in plaintiff. Indiana Natural Gas & Oil Co. v. Sexton, 31 Ind. App. 575, 68 N. E. 692. 30. Especially if he does not offer to re- turn It. An election is Involved and he must do equity. Barrier v. Kelly [Miss.] 33 So. 974. 31. The United States in such suit has no rights superior to any other suitor. Lynch v. U. S., 13 Okl. 142, 73 P. 1095. 32. Lange v. Geiser, 138 Cal. 682, 72 P. 343. 33. Contract for royalties on songs to be published, plaintiff alleging publisher did not intend to publish them, but made con- tract to prevent competition. Edmonds v. Stern, 89 App. Div. 539, 85 N. Y. S. 666. 34. See 1 Cutr. L. 417, with annotations. 35. In a suit to cancel a patent, every person having an Interest in the land cov- ered by the patent is an Indispensable party, without whom equity will not proceed. Lynch v. U. S., 13 Okl. 142, 73 P. 1095. Where a municipality made a contractr for construction of a system of waterworks, au- thorizing the contractor to mortgage the same to secure loans to enable him to pro- ceed with the work, the mortgagees are necessary parties in a suit by the municipal- ity to cancel the contract. City of El Reno V. El Reno Water Co. [Okl.] 76 P. 126. 30. Warren v. Miller [Iowa] 99 N. W. 127. 37. Union Life Ins. Co. v. Riggs, 123 F. 312. 3 Cur. Law. CAREIEES [IN GENEEAL] § 1. 591 CABBIEBS. Past I. In Genbeai (591). S 1. DefinltlonH and Distinctions (691). § 2. Duty to Undertake and Provide Car- riage (592). Charges (592). What Consti- tutes Discrimination (593). Statutory Pro- visions Against Dlaorlmination (593). Rem- edies (593). § 3. Rights and Relations Between Car- rier and Connecting Carrier, Draymen, or Transfer Men (594). Part II. Cabbiagh or Goods (594). § 4. Delivery to Carrier and Inception of Uablllty (504). § 5. Special Contracts for Carriage, and Bills of Lading (593). Bills of Lading (695). Interpretation . (596). Indorsement and Transfer (596). § 6. The Duty to Furnish Cars (596). § 7. Forwarding and Transporting Goods (596). § 8. Loss of or Injury to Goods (597). § 9. Delivery hy Carrier and Storage at Destination (598). Acceptance and Unload- ing (599). Refusal by Consignee (599). Stor- age at Destination (599). Liability for Con- version (599). § 10. Liability of Carrier or Connecting Carrier (600). Exemption and Limitation of Liability (601). Loss or Injury (601). Stat- utory Remedies (601). § 11. Umltatlon of Liahiilty (601). § 12. Fnbllc Records of Traffic (603). § 13. Remedies and Procedure. Timely Notice or Suit (603). Persons Who May Sue (603). Particular Remedies Available (604). Venue (604). Pleading, Proofs, and Evidence (604). Instructions (605). Dam- ages (606). i 14. Freight and Other Charges (606). Paet III. Cabbiagh of Litb Stock (608). § 15. Duty to Carry and Contract of Car- riage Generally (608). § 16. Care Required of Carrier (608). § 17. Delivery (610). § 18. Liability of Carrier or Connecting Carrier (610). § 19. Limitation of LiabiUty (610). Limi- tations as to Amount (610). Consideration (611). Assent to Limitation (611). Provi- sion that Shipper Shall Accompany and Care for or Load and Unload Stock (611). Provi- sions for Notice of Injury (612). Waiver of Limitation (612). § 20. Procedure in Actions Relating to Carriage of Stock (612). § 21. Damages (616). PAET IV. Cabbiagh op Passengbbs (617). § 22. Who are Passengers (617). Persons on Other Than Passenger Trains (618). When Relation Begins (619). When Rela- tion Ceases or is Interrupted (620). § 23. Duty to Receive and Carry Passen- gers (620). Through Trains (621). Stops Must be Made at Flag Stations (621). Ejec- tion of Passengers (621). Tender of Pare to Avoid Expulsion (623). Manner of Ejection (623). Injuries Caused by Resistance (623). Elements and Measure of Damage (624). Remedies and Procedure for Ejection (625). Delays (626). § 24. Rates and Fares, Tickets and Spe- cial Contracts (627). Penalties for Over- charge (628). Tickets and Contracts (628). Conditions and Limits (628). Mileage Books and Credential Contracts (629). Property, Ownership and Redemption of Tickets (629). Dealing in Nontransferable Special Rate Tickets (630). Cash Pares (630). The Duty of Furnishing Transfers (631). Limitation of Liability (631). § 26. Means and Facilities of Transporta- tion (633). § 27. Operation and Management of Trains and Other Vehicles (634). § 3S» The Duty to Protect Passengers (636). § 29. Taldng on or Setting Down Psm- sengers (637). § 30. Duty to Persons Other Than Passen- gers (641). § 31. Liability for Personal Injuries (641). A. General Principles (641). B. Contribu- tory Negligence of Passenger (644). C. Remedies and Procedure (649). Pabt V. Caebiagb op Baggagb and Passbnqbks' Effects (661). S 32. Rights, Duties and Liabilities (661). § 33. Care of Baggage and Effects (661). S 34. Limitation of Liability (662). i 35. Damages (663). § 36. Remedies and Procedure (663). Paet I. In General." § 1. Definitions and distinctions.^" — Street railway companies*" and persons maintaining or operating passenger elevators,*'^ especially in a public building, are within the term common carriers.*^ Irrigation companies are regarded as quasi-public servants, analogous to com- mon carriers,*' and so are telegraph companies.** 38. This topic treats only of the laws re- lating to common carriage of persons or goods. That relating to corporations en- gaged in carriage (see Railroads, 2 Curr. L. 1382; Shipping and Water Traffic, 2 Curr. L. 1648), is'pertinent to other topics specifically devoted to it. Likewise the relations be- tween the carrier and its employes are those of Master and Servant, 2 Curr. L. 801. The rules peculiar to water carriage are treated in Shipping and Water Traffic, 2 Curr. L. 1648. 39. See 1 Curr. L. 422. 40. Lincoln Traction Co. v. Heller [Neb.] 100 N. W. 197. 41. See article Buildings, 1 Curr. L. 4U4, for a complete treatment of their duties and liabilities. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035; Springer v. Schultz, 105 111. App. 544. Passenger elevator in an office building. Goldsmith v. Holland Bldg. Co. [Mo.] 81 S. W. 1112. 42. Fox V. Philadelphia, 208 Pa. 127, 57 A. 356. But In Michigan, there is a deviation from this rule. Burgess v. Stowe [Mich.] 96 N. W. 29. 43. Gould v. Maricopa Canal Co. [Ariz.] 76 P. 698. See Waters and Water Supply, 2 Curr. L. 2034. 44. See article Telegraphs and Tele- phones, 2 Curr. L. 1843. Cogdell v. W. U. Tel. Co. 135 N. C. 431, 47 S. E. 490. 593 CARRIEES [IN GENEEAL] § 2. 3 Cur. Law. Validity of incorporation is immaterial in fixing the duties of a carrier." A common carrier may become a private carrier or bailee for hire, when he undertakes to carry something which it is not his business to carry.** In such case he has a right to limit or release himself from liability by contract.*^ § 2. Duty to undertake and provide carriage.*^ — The carrier must imder- take carriage and may be penalized for a refusal.*" A common carrier may make such reasonable rules and regulations for the conduct of its business as it may deem necessary."" It is subject to such reasonable regulations as each state or the United States may under the constitution establish.^^ There must be no unequal discrimination^^ against those seeking to use reg- ular trains, even in favor of a patron who has voluntarily expended more than his share in procuring such service."' Charges.^* — ^The common law prevents unjust or unreasonable discrimina- tions.'"' Eates must also conform to such rates as the states on local and the United States on interstate business"" respectively prescribe, and as the charter contemplates."^ A railroad sending its cars over a branch must not discriminate against any shipper thereoii,"' and where it has acquired terminal rights, must not make dis- criminatory charges for use thereof."* A statutory permission to charge expenses of maintenance to owners of private sidetracks does not authorize an arbitrary charge imposed on shipments from such tracks."" 45. Express company. Adams Exp. Co. v. State, 161 Ind. 328, 67 N. B. 1033. 46. Wilson v, Atlantic Coast Line R. Co., 129 F. 774. 47. Wilson V. Atlantic Coast Line R. Co., 129 P. 774. A railroad company Is not re- quired, as a common carrier, to transport a circus train belonging to a circus company, a part of which is loaded with wild animals, over its line on a schedule to be arranged by the circus company. Contract releasing railroad from liability for injury or damage to employes or property of circus company In consideration of reduced rate held valid. Id. 48. See 1 Curr. L. 422. 49. Where a car of lumber was properly loaded, the carrier was liable for the penalty under Code 1883, § 1964, as amended by Laws 1903, c. 444, for refusing to receive the same, though It was to be shipped out of the state. Currle v. Raleigh & A. Air Line R. Co., 135 N. C. 535, 47 S. E. 654. NOTE!. ESect of strikes on carriers' Ua- bllltyi A carrier was held not to be relieved from its duty to receive freight from a con- necting line by its fear that a strike on Its own line might result from so doing. Chi- cago, B. & Q. R. Co. V. Burlington, C. R. & N. R. Co., 34 F. 481. In Kentucky, It was held that a failure to supply cars to Indi- vidual shippers, caused by a strike of coal miners In a certain district, was excusable, since It was more Important to continue its general freight and passenger business than to carry the coal of an individual shipper. Louisville & N. R. Co. v. Queen City Coal Co., 18 Ky. L. R. 126, 35 S. W. 626. — From note to Empire Transp. Co. v. Phila. & R. C. & I. Co., 35 L. R. A. 623. 50. Lewis V. Weatherford, etc., R. Co. [Tex. Clv. App.] 81 S. W. 111. See, also, post, § 27. Rules pertinent to particular matters are treated In the section dealing with that to which the rules relate. See following sec- tions. Bl. See Commerce, 1 Curr. L. 538. Consti- tutional provisions against discrimination held not self-executing [Const., §§ 15, 22]. N. W. Warehouse Co. v. Or. R. & Nav. Co., 32 Wash. 218, 73 P. 388. 52. See 1 Curr. L. 422, n. 6-9. Newspapers are entitled to equal rights on a scheduled train, notwithstanding It has been established and supported by the en- terprise of one to secure quick dfellvery of Its papers. In an action to compel accept- ance of other papers as freight, the equities between the papers as to expenses incurred cannot be worked out on cross bill. Mem- phis News Pub. Co. v. Southern R. Co., 110 Tenn. 684, 75 S. W. 941. 53. Where a train has been established at the expense and by the enterprise of a single newspaper, the carrier cannot impose as a condition a sharing of the expense vol- untarily assumed by the first. Memphis News Pub. Co. v. Southern R. Co., 110 Tenn. 684, 75 S. W. 941. 54. See 1 Curr. L; 422. See post, § 14, for general treatment of freight cKarges. See Commerce, 1 Curr. L. 538, for Interstate Commerce Act. 55. Injunction may be had. Tift v. South- ern R. Co., 123 F. 789. 66. Evidence held to show that on trans- shipment a shipment lost its character as In- terstate commerce. Gulf, C. & S. F. R. Co. v. State [Tex.] 78 S. W. 495. 57. By ralncorporation under a general act, a railroad is estopped to contest the validity of regulations of rates contained therein. Grand Rapids & I. R. Co. v. Os- born, 193 U. S. 17, 24 S. Ct. 310. 58. Kellogg V. Sowerby, 93 App. Dlv. 124, 87 N. T. S. 412. 59. Question of fairness of charge does not enter when exacted of but one shipper. Ohio Coal Co. V. Whitcomb [C. C A.] 123 F. 359. 60. Rev. St. Wis. 1898, § 1802. Ohio Coal Co. V. Whitcomb [C. C. A.] 123 F. 359. 3 Cur. Law. CAEEIEKS [IN GBNEEAL] § 3. 593 What constitutes discrimination.'^^ — Conditions must be similar to establish; discrimination,'^ and unfairness of a long haul rate does not depend on actually greater mileage."' A carrier may make a difference in rates to competitive points,"* hence a charge of lower rates for a longer haul due to competition is not an unjust discrimination if a greater rate for a shorter haul is not unreasonable,'* and a through rate may be less than the sum of local rates."" A contract to maintain rates from one point to competitive points, not exceeding the rates from two other places, is not discrimination within the meaning of the Inter StatS Commerce Act,"' neither is a milling in transit agreement."" Carriage at established rates to pay a legal and determined debt is not a discrimination,"* and where not a blind to cover a low rate, a carrier may buy a commodity and sell it for delivery at another point at less than cost plus estab- lished freight charges.'"' In a proceeding for discrimination between localities or charging more for a shorter haul, it need not be shown that more than commission rates are charged." Statutory provisions against discrimination'^ may require the carrier to for- ward freight in the order received and impose a liability for ensuing damages,'* and penal provisions are construed strictly." Under certain statutes, triple damages and attorney's fees are recoverable.''* .B6me(ites.''"-T— The, existence of a remedy against the person favored does not absolve the carrier.'" An agreement to pay an extra charge reserving legal rights does not waive remedies for discrimination.''* Each act of discrimination need 61. See 1 Curr. L. 423. See Commerce, 1 Curr. Lt 638, for discussion of effect of In- terstate Commerce Act. 62. Held lawful! Refusal to furnish cars to be loaded with coal from wagons as had been done. Harp v. Choctaw, O. & G. R. Co. [C. C. A.] 125 F. 445. To charge greater rate for car lot made of small lots com- bined by a forwarding agent, than for the car lot of a single owner [24 Stat, 379, J 2]. Liundqulst v. Grand Trunk Western R. Co., 121 P. 915. 63. Rev. St. 1899, §§ 1133, 1134. Cohn V. St. Louis, I. M. & S. R. Co. [Mo.] 79 S. "W. 961. 64. A mere possibility of competition will not make a greater rate to a point obnox- ious to the long and short haul clause of Interstate Commerce Act. Rates from New Orleans to La Grange, Ga,, based on Atlanta as a competitive point, held proper. Inter- state Commerce Comm. v. Louisville & N. R. Co., 190 U. S. 273, 23 S. Ct. 687, 47 Law. Ed. 1047. Lower rates from Chicago and west- ern points to Norfolk and Richmond, Va,, than to Wilmington, N. C, held justified by conditions. Interstate Commerce Comm. v. Cincinnati, P. & V. R. Co., 124 P. 624. 65. Interstate Commerce Comm. v. South- ern R. Co. [C. C. A.] 122 P. 800. 66. Const. § 215. Within this meaning, a contract may be through, though there is no express agreement between the connecting carriers. Southern R. Co. v. Com., 25 Ky. L. R. 1078, 77 S. W. 207. 67. Laurel Cotton Mills v. Gulf & S. I. R. Co. [Miss.] 37 So. 134. 68. Laurel Cotton Mills v. Gulf & S. L R. Go. [Miss.] 37 So. 134. And in an action for breach of such contract, the burden is not on the plaintiff to show that the contract rate had been flied with the -Interstate Com- merce Commission and approved by the State Railroad Commission. Id. 69. Interstate Commerce Comm. v, Chesa- peake & O. R. Co., 128 F, 59. 70. Contract held to show violation of § 3 of Interstate Commerce Act. Interstate Commerce Comm. v. Chesapeake & O. R. Co., 128 P. 69. 71. Rev. St. 1899, §§ 1133, 1134. Cohn v. St. Louis, I. M. & S. R. Co. [Mo.] 79 S. W. 961. 72. Rev. St. 1899, S 1126, is not repealed by § 1124. McGrew v. Mo. Pac. R. Co., 177 Mo. 533, 76 S. W. 995. See 1 Curr. L. 423. 73. Rev. St. 1895, arts. 4637, 4539. Hill v. St. Louis S. W. R. Co. [Tex. Civ. App.] 75 S. W. 874. 74. Penalties provided by Acts 1887, p. 110, c. 120, are not extended by the rearrange- ment in Rev. St. 1895, so as to be applicable to additional cases such as violations of Acts 1883, p. 69, c. 70, providing a liability for damages for failure to forward freight in the order received. St. Louis S. W. R. Co. v. Hill [Tex.] 80 S. W. 368. In proceedings to re- cover the penalty, the case must be brought clearly within the statute. Only actual dam- ages are awarded where proof failed to show- receipt of goods "In the warehouse or depot" [Rev. St. 1895, art. 4537]. Hill v. St. Louis S. W. R. Co. [Tex. Civ. App.] 75 S. W. 874. [On rehearing In this case it was held suffi- cient to show delivery on the station plat- form. ] 75. Rev. St. 1899, § 1140. Cohn v. St. Louis, L M. & S. R. Co. [Mo.] 79 S. W. 961. 76. Penalties and Indictments, see 1 Curr. L. 424, n. 33-38. 77. Railroad agreed with an association of elevators to add an elevator charge to its freight rate and pay the amount so collected to the association. Kellogg v. Sowerby, 93 App. Div. 124, 87 N. T. S. 412. 78. Ohio Coal Co. v. Whitcomb [C. C. A.] 123 P. 359. 3 Curr. Law — 38, 594 CAREIEES [IN GENEEAL] § 3. 3 Cur. Law. not be made a separate cause of action." In statutory and penal actions, the acts coming within the statute must be well pleaded.*" Quo warranto will not lie for a discrimination which affects private interests only,'^ but if a franchise be vio- lated, it can be remedied only by public suit.'* The United States may maintain a suit in equity to restrain discrimination.*' § 3. Eights and relations between carrier and connecting carrier, draymen, or transfer men.'* — ^A railroad is bound to accept freight from another carrier at its published rate.*' By statute generally it is required that other carriers be treated with equal fairness.*' It is not an unreasonable preference under the interstate commerce act for a railroad to refuse shipments of cattle for delivery at a stockyards on a different line, with which, however, it has physical connec- tion, if it maintains at the same city of general destination a stockyards on its own line." The carrier may give one transfer agent the exclusive right of solicit- ing business on its trains,** and may exclude soliciting draymen from its depot grounds, where not employed by passengers and when passengers are afforded rea- sonable facilities of egress.*' Statutes imposing penalties for not stopping passenger trains at junction points, being penal, are to be strictly construed.*" Part II. Carriage of Goods. § 4. Delivery to carrier and inception of liability?^ — A carrier has the right to make reasonable rules concerning the classification and suitable preparation of T». Hey. St. 1893, 5§ 1133, 1134. Cohn V. Bt. Louis, I. M. & S. R. Co. [Mo.] 79 S. W. 961. 80. A complaint alleging that goods were tendered at a certain depot on a certain date and that the carrier refused to receive the same is a sufficient allegation of tender. In an action for a penalty under Code 1883, § 1964, as amended by Laws 1903, c. 444. Cur- rle V. Haleigh & A. Air Line R. Co., 135 N. C. 535, 47 S. E. 654. Petition for discrimina- tion under Rev. St. 1899, § 1113, held suffi- cient statement of manner of plaintiff's in- jury. Cohn V. St. Louis, I. M. & S. R. Co. tMo.] 79 S. "W. 961. Code 1883, § 1964, amend- ed by Laws 1903, c. 444, imposing a penalty for a refusal to receive goods for transpor- tation, Is a public statute and need not be pleaded. Currie v. Raleigh & A. Air Line R. Co., 135 N. C. 535, 47 S. B. 654. By what name sued: Tlie Adams Express Co., a copartnership, is properly sued in that name by the state to recover a penalty for discrimination. Adams Exp. Co. v. State, 161 Ind. 328, 67 N. E. 1033. 81. Reconsignment charges in transferring oars from one switch back to another. Rev. St. 1899, c. 12, arts. 2, 4 provides a remedy in the Railroad Commission. State v. At- chison, T. & S. F. R. Co., 176 Mo. 687, 75 S. W. 776. 82. Maximum rate clause. Millcreek Tp. V. Brie Rapid Transit St. R. Co. [Pa.] 58 A. 613. 88. Elkins act permits a suit In equity for violations of Interstate Commerce Act prior to its enactment [Act Feb. 19, 1903 (32 Stat. 847, c. 708)]. United States v. Mich. Cent. R. Co.. 122 F. 544. Injunction held properly granted against coal shipments under con- tract of sale by carrier affording discrim- ination. Interstate Commerce Comm. v. Chesapeake & O. R. Co., 128 F. 59. 84. See 1 Curr. L. 424. See Railroads, 2 Curr. L. 140, for duty to make transfer con- nections. 85. There need not be an agreement for a joint through rate. A combination of lo- cal rates need not have been charged by the initial carrier. The fact that the cars of other companies were loaded, on -which the carrier would have to pay mileage, is not material, nor is the fact that the initial carrier, in consideration of a given per cent of the consignor's shipments, has agreed to give as low a rate as any other road. Tex. & P. R. Co. V. Tex. Short Line R. Co. [Tex. Civ. App.] 80 S. W. 567. 86. Acts requiring express companies to furnish equal accommodations to all other like companies are held constitutional. See Constitutional Law, 1 Curr. L. 569. Adams Exp. Co. V. State, 161 Ind. 328, 67 N. E. 1038. A complaint alleging that defendant, an ex- press company, refused to accept a described package, complete its transportation and collect charges, as was Its custom and usage at that point with other express companies. is sufficient under Act March 7, 1901, Acts 1901, p. 149, c. 93; Burns' Rev. St. 1901, |§ 3312b-3312f, imposing a penalty op express companies refusing equal privileges to other express companies. Adams Exp. Co. v. State, 161 Ind. 328, 67 N. B. 1033. 87. See Commerce, 1 Curr. L. 538. Cent. Stock Yards Co. v. Louisville & N. R. Co., 192 TJ. S. 568, 24 S. Ct. 339. 88. Such regulation does not violate Tex- as anti-trust law [Rev. St. 1895, art. 5313]. Lewis V. Weatherford, M. W. & N. W. R. Co.' [Tex. Civ. App.] 81 S. W. 111. 89. Hedding v. Gallagher [N. H.] 57 A. 225. 90. Sufficiency and admissibility of evi- dence under Rev. St. 1899, § 1075, considered. State v. St. Louts & S. F. R. Co. [Mo. App.] 79 S. W. 714. 91. See 1 Curr. L. 425. 3 Cur. Law. CAREIERS [OP GOODS] § 5. 595 articles for slaipment,"" and the place where it will receive articles for carriage,'* and may change and modify rules on reasonable notice to the public.** Liability may accrue without issuance of bill of lading or intent to ship at once.*' Wliether entire and exclusive custody of goods has been given the carrier, imposing liability as such, is a question for the jury.*' § 5. Special contracts for carriage,"' and bills of lading.'^ — It is not essential that every detail shall be predetermined.** Within the scope of apparent or dis- closed authority, the carrier's agent may make binding contracts.* An undisclosed principal is bound by the terms agreed to by his agent.^ Words will be taken as the parties intended.^ A written contract merges a previous oral one,* but under certain circumstances an action may be maintained on a verbal contract, although a written contract may subsequently have been entered into.° Eebilling and fixing destination at a transfer point does not necessarily make a new contract." Where a contract for preferential rates was for the benefit of a shipper and his assigns, it did not pass to a legatee under the will of the shipper.' Bills of lading.^ — A carbon copy of a bill of lading designed for filing is not a duplicate requiring a revenue stamp." Between the carrier and parties entitled to receive the property at its hands, 92. The question is one of law. Clilcago, R. I. & P. R. Co. V. Colby [Neb.] 96 N. W. 145. "Where a car has a defective draw bar, the carrier waives such objection by agree- ing to haul it by the sound draw bar at the rear of a train. Illinois Cent. R. Co. v. Byrne, 205 111. 9, 68 N. B. 720. 93, 94. Where carrier designated siding where coal would be received, which was not an unreasonable place, shipper could not compel it to receive coal at siding where other merchandise was received merely be- cause it was more convenient to him. Rob- inson V. Baltimore & O. R. Co. [C. C. A.] 129 F. 763. Shipper restrained from dumping coal at other siding, taking possession of cars and blocking siding with teams, thus creating public nuisance. Id. VS. As where goods are delivered to and received by a carrier for shipment. Mis- souri, K. & T. R. Co. ▼. Beard [Tex. Civ. App.] 78 S. W. 253. 96. Bottles and cases deposited on depot platform, it being contended that defendant had no notice they were ready for shipment. Stapleton v. Grand Trunk R. Co. [Mich.J 94 N. W. 739. Evidence held insufficient to show custom to regard goods on platform awaiting shipping instructions as in custody of carrier. Missouri, K. & T. R. Co. V. Beard [Tex. Civ. App.] 78 S. W. 253. en. See X Curr. L. 425. »8. See 1 Curr. L. 426. 99. A contract to furnish a train may be complete, though the time Is left to be de- termined. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. E. 735. Final desti- nation not fixed. Soper v. Tyler [Conn.] 58 A. 699. 1. A sencral freigbt aeent has power to bind the company by an agreement to fur- nish a train. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. B. 735. A station agent has no power to contract for a dis- criminatory rate. Myar v. St. Louis South- western R. Co., 71 Ark. 552, 76 S. W. 557. Disclosure of limitations i A statement by agent that his routing would probably be disregarded prevents his act In accepting freight, routed in a particular way, from being binding. Bessling & Co. v. Houston & T. C. R. Co. [Tex. Civ. App.] 80 S. W. 639. The carrier is liable for contracts of a trav- ellngr freight agent who contracts without disclosing limitations on his general author- ity to solicit business. Baker v. Chicago Great Western R. Co. [Minn.] 97 N. W. 650. a. The action may sound in tort. Cen- tral of Georgia R. Co. v. James, 117 Ga. 832. 46 S. E. 223. S. A contract to furnish "a train" to haul fifty cars of freight construed to mean trains sufficient. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. E. 735. The intention of the parties to make an open contract or one requiring- acceptance before shipment Is a question for the Jury. Baker v. Chicago Great Western R. Co [Minn.] 97 N. W. 650. 4. Where the written contract of ship- ment states that it is not agreed to deliver for a particular market, evidence of a prior oral agreement is Inadmissible, especially where the original shippers were not par- ties; nor does the joinder of the parties thereto as plaintiffs render it admissible. Yazoo & M. V. R. Co. v. Wilson & Co. [Miss ] 35 So. 340. 5. Shipment of stock. Gulf, C, & S. F. R. Co. V. McCord [Tex. Civ. App.] 81 S. W. 1032. 6. Single bill of lading was issued and at a subsequent transfer point the ultimate destination was to be fixed. Soper v. Tyler [Conn.] 58 A. 699. 7. Sullivan v. Louisville & N. R. Co., 138 Ala. 650, 35 So. 694. 8. Bills of lading are quasi-negotiable. See Negotiable Instruments, 2 Curr. L. 1013. By means of a transfer of them a sale of the goods shipped is often effected. See Sales, 2 Curr. L. 1527. As to the liabilities of banks on drafts with bills of lading attached, see Banking, etc., 3 Curr. L. 403. See, also, 1 Curr. L. 426. 9. 30 Stat. 448, Act June 13, 1898, o. 448. Wright V. Michigan Cent. R. Co. [C. C. A 1 130 F. 84J. 596 CAEEIERS [OF GOODS] § 6. 3 Gur. Law. bills of lading are symbols of title.^" A shipper is boTind by the conditions of a bill of lading which he accepts at the time the shipment is made, though he does not receive it, or agree to it in writing,^* and it will not be presumed that a devia- tion was assented to.^'' Parol evidence of the forwarding route is admissible where the bill of lading is silent,^* but a mere instruction in writing to forward by a cer- tain route has no effect.^* Interpretation." — Names written on the bill have such significance as the par- ties intended,^" and the force and meaning to be given words may be shown by ex- trinsic evidence.^^ Meaningless blanks are not to be considered.^* An apparent good order receipt refers only to the outward appearance of the package.^' Indorsement and transfer,"' as afEecting rights between the carrier and the owner or holder of the biU of lading, will be treated in succeeding sections. As affecting title to the goods or rights respecting attached drafts, it is not germane to this title. § 6. The duty to furnish cars"^ does not require provision for an unusual amount of freight offered occasionally and at long intervals."^ In case of scarcity, cars may be fairly apportioned.*' Where there is an agreement to furnish cars, the shipper is not bound to cease the preparation of freight on finding that the car- rier may not be able to furnish the cars.** Unreasonable neglect in providing cars is usually a question for the jury,*" though seventy-five or eighty days' delay has been held unreasonable as a matter of law.** § 7. Forwarding and transporting goods.'''' — The transportation must be with reasonable expedition, imless there is notice of necessity for unusual haste.** A la. Byan v. Great Northern R. Co., 90 Minn. 12, 95 N. W. 758. 11. Not bound by conditions written Into It which he does not read or accept, or au- thorize or assent to, as to delivery to any connecting carrier, where shipping receipt specified carrier. Cleveland, C, C. & St. L. R. Co. V. Potta & Co. [Ind. App.] 71 N. E. 635. 12. The burden Is on the carrier to show that the shipper assented to the billing of goods to a place other than that designated in the shipping receipt. Cleveland, C, C & St. Li. E. Co. V. Potts & Co. tind. App.] 71 N. B. 685. 13. Louisville & N. R. Co. v. Duncan & Orr, 137 Ala. 446. 34 So. 988. 14. Bessling & Co. v. Houston & T. C. R. Co. [Tex. Civ. App.] 80 S. W. 639. 15. See 1 Curr. L. 427. 16. Writing of name of consignee in mar- gin of bill of lading held to be with inten- tion to prevent delivery without production of the bill. Grayson County Nat. Bank v. Nashville, C. & St. L. Ry. [Tex. Civ. App.] 79 S. W. 1094. 17. Deposition of ship's mate held admis- sible to show custom to receipt for cotton as In good condition, where apparently so or not damaged too much. Bath v. Houston & T. C. R. Co. [Tex. Civ. App.] 78 S. W. 993. May be shown that word "notify" in bill of lading Is among carriers regarded as mean- ing that the party to be notified Is entitled to the shipment on presentation of the bill accompanied by the draft to which it is at- tached. Stoner v. Zachary [Iowa] 97 N. W. 1098. 18. Grayson County Nat. Bank v. Nash- ville, C. & St. L. Ry. [Tex. Clv. App.] 79 S. W. 1094. 19. Plaintiff must show by affirmative proof that contents were in good order. Thyll V. New York & I* B. R. Co., 84 N. Y. S. 175. 20. See 1 Curr. L. 427; also consult Bank- ing, etc., 1 Curr. L. 289; Negotiable Instru- ments, 2 Curr. L. 1013; Sales, 2 Curr. Li. 1527. ai. See 1 Curr. L,. 426, n. 59-63. 22. State V. Chicago, B. & Q. R. Co. [Neb.] 99 N. W. 309. In the absence of notice of urgent necessity, the carrier need not put forth unusual efforts to move hay. Strough V. New York Cent. & H. R. R. Co., 92 App. DlV. 584, 87 N. Y. S. 30. 23. In fair proportion to the amount of each shipper's business. See ante, § 2, as to discrimination. One shipper may thus re- ceive fewer cars than another. State v. Chi- cago, B. & Q. R. Co. [Neb.] 99 N. W. 309. An allotment of cars between mines should not be arbitrarily made, but should be based on all the different factors in the daily out- put. Factors pointed out and facts held to show discrimination. U. S. v. West Virginia Northern R. Co., 125 F. 252. 24. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. B. 735. 25. Strough v. New York Cent. & H; R. R Co., 92 App. DlV. 584, 87 N. Y. S. 30. 26. Not palliated by reasonable efforts to procure foreign cars. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. B. 735. 27. See 1 Curr. L. 428. 28. Choctaw & M. R. Co. v. Walker, 71 Ark. 571, 76 S. W. 1058. NOTE. lilablllty lor delays from strikes, etc.: The carrier was said to be liable for a complete failure to deliver goods caused by the depredations or the violence of mobs, rioters, strikers, thieves and the like. Mis- souri P. R. Co. V. Nevlll, 60 Ark. 375, 30 S. 3 Cur. Law. CAKBIEES [OF GOODS] § 8. 597 code provision reqtiiring freight to be forwarded ia five days under penalty does not remit the common-law liability.^* The consignee must use ordinary care in ascertaining and removing causes of delay.'" What is proper diligence is a ques- tion of fact for the jury.'^ Delivery to succeeding carrier. — If no forwarder be specified the initial carrier may select it.*^ Otherwise does so at its own risk.'* When the connecting carrier refuses a shipment, the initial carrier should use the same care that the owner, being a man of ordinary care and prudence, would have exercised under the same knowledge in forwarding.'* It is the duty of the initial carrier to give notice to the consignor unless the property is of such char- acter that injury will result, from the time consumed.'" § 8. Loss of or injury to goods'^ — ^A carrier is not liable for loss of goods not in its possession or under its control, or in no way attributable to its negli- gence." If in its custody, it is not absolved by the fact that the act of its agent representing a third person caused the loss,'* noi* does the shipper's knowledge always excuse the carrier's negligence.'* The carrier may be responsible for the burning of goods placed on its platform.*" It is not negligence for a carrier to fail to take precautions against loss by fire of cars on a siding in the open country,*^ and it is not liable for loss by unprecedented storm, though had cars been de- livered promptly they would have been previously unloaded,*^ the question of negli- gence in such cases being for the jury.*' Nondisclosure of value or the signing of a clear receipt may wholly or partially release the carrier.** W. 425, 28 Xi. R. A. 80. The carrier Is held liable for delay In transporting goods caused by a strike of Its employes, unaccompanied by violence or intimidation. Central R. & Banking Co. v. Georgia Fruit c& Vegetable Bxch., 91 Ga. 389. 17 S. E. 904; Pittsburgh, Ft. "W. & C. R. Co. V. Ha4en, 84 111. 36, 25 Am. Rep. 422; Missouri Pac. R. Co. v. Levi [Tex. App.] 14 S. W. 1062; Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. But the car- rier Is generally relieved from liability for delay caused by mob violence of strikers which cannot be overcome by reasonable ef- forts. Geismer v. Lake Shore & M. S. R. Co., 102 N. T. 563, 56 Am. Rep. 837; Inter- national & G. N. R. Co. V. Tlsdale, 74 Tex. 8, 11 S. W. 900, 4 L. R. A. 545; Lake Shore & M; S. R. Co. V. Bennett, 89 Ind. 457; Haas V. Kansas City, etc., R. Co., 81 Ga. 792, 7 S. B. 629; Louisville & N. R. Co. v. Bell, 13 Ky. L. R. 393. — From note to Empire Transp. Co. V. Philadelphia & R. Coal & Iron Co. [U. S.] 35 L. R. A. 623. 291 Code, § 1964. Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. B. 658. 30. Nonprepayment of freight $f59 dam- ages sustained. Louisville & C. Packet Co. V. Bottorft, 25 Ky. L. R. 1324, 77 S. W. 920. 31. Roth Clothing Co. v. Maine S. S. Co., 86 N. T. S. 25. 32. Bessling & Co. v. Houston & T. C. R. Co. [Tex. Civ. App.] 80 S. W. 639. 33. A car line taking freigljt for a point "Care M. P. R. R." must deliver to that road, and is liable for an intermediate carrier. It was liable lor delay In doing so on the part of a transportation company to which it delivered them. James S. Davis Clothing Co. v. Merchants' Dispatch Transp. Co. [Mo. App.] 81 S. W. 226. 34. Selection of circuitous route held neg- ligent. Louisville & N. R. Co. v. Duncan, 137 Ala. 446, 34 So. 988. 85. Louisville & N. H. Co. v. Duncan, 137 Ala. 446, 34 So. 988. 36. See 1 Curr. L. 428. 87. Not liable for cotton burned while In possession of compress company, though cost of compression was lnolud«!d in the freight and paid by carrier. Edwards & Co. v. Tex. Midland R. Co. [Tex. Civ. App.] 81 S. W. 800. W^here a horse became frightened while in the custody of the carrier and ran away, but no fault was attributable to the carrier, he was not liable. Kaplan v. Midland R. Terminal Co., 88 N. T. S. 945. 38. "Where an express agent at request of the owner attempts to select and forward the owner's goods, the company is liable as for a conversion of goods belonging to others erroneously forw^arded. Edwards v. American Exp. Co., 121 Iowa, 744, 96 N. W. 740. 39. A carrier Is not relieved from Uability for furnishing a refrigerator car improperly Iced, by the fact that the shipper discovers such fact before his goods are loaded, if he has no opportunity to remedy the situation or honestly believes they will travel safely. Whether discovered In time to remedy the condition and impose liability on the ship- pers Is for the Jury. Johnson v. Toledo, S. & M. R. Co. [Mich.] 95 N. W. 724. 40. It Is not in itself negligence to store cotton on the platform unless the shipper has notice that locomotives are so equipped or operated as to be dangerous. Southern R. Co. V. Wilson, 138 Ala. 510, 35 So. 561. Evidence held to show liability for firing cotton placed for shipment. Mo., K. & T. R. Co. V. Beard [Tex. Civ. App.] 78 S. W. 253. 41. Siding maintained for benefit of plant- ers In that locality. Charnoek v. Tex. & P. R. Co., 194 U. S. 432, 24 S. Ct. 671. 42. Hunt Bros. v. Mo., K. & T. R. Co. [Tex. Civ. App.] 74 S. W. 69. 43. Evidence that a car containing explo- 598 CAKEIEES [OF GOODS] § 9. 3 Cur. Law. § 9. Delivery by earner and storage at destination.*^ — In the absence of a special contract or custom to the contrary, the duty of a common carrier of goods is not completed upon their mere arrival at destination, but includes their delivery to the consignee,*" or their deposit iu depot or warehouse, and notice given,*^ though there is a custom not to notify;*' but a custom may remove the necessity of giving notice on particular days.*" Where the contract contemplates delivery upon the carrier's premises at the place of destination, and no time for their arrival or delivery is stipulated for, the carrier is bound to allow the consignee a reasonable time in which to make inquiries as to their arrival,™ or else to give him notice of such arrival."^ In either case, the consignee is entitled to a reasonable time and opportunity, after notice of their arrival, in. which to take the goods away.'^ What is a reasonable time depends upon all the circum- stances of the case, and is a question of fact.^' A well known custom that the carrier shall notify the consignee by mail is to be considered as part of the contract of transportation.'* Demand for delivery and tender of charges may not be es- sential.^' The consignees are not bound to make inquiry if they have reason to think a shipment overdue."® Misinformation in response to an inquiry may make a liability, though the notice had been sent."' After refusal to deliver, the carrier is liable for subsequent damages.'* Presentation of the shipping receipt or bill of lading properly indorsed is essential on a shipuient to consignor's order,'" and usage and custom will not dispense therewith,'" nor will the shipper's direction to deliver without it.*^ A right to presentation of a shipping bill is waived by refusal to deliver on ground of unpaid freight.'" A statute punishing the delivery of goods without production of the bill of lading, unless non-negotiable, cannot be made a basis of recovery by one induced to take the bill through a forgery rendering it apparently negotiable."' Liability for delivery of goods at a wrong station is waived by direction of sives, so placarded, was allowed to stand 3 or 4 days on a transfer track, is for the jury. Phoenix Powder Mfg. Co. v. Wabash R. Co., 101 Mo. App. 442, 74 S. W. 492. 44, 45. See 1 Curr. L. 429. 46. Burr v. Adams Exp. Co. [N. J. Law] 58 A. 609. 47. Pa. R. Co. V. Naive [Tenn.] 79 S. W. 124. Especially where there is a custom. Ala. & V. R. Co. V. J. M. & C. B. Pounder [Miss.] 35 So. 155. 48. Liability exists for freight destroyed by fire in depot. Gulf & C. R. Co. v. Fuqua [Miss.] 36 So. 449. 49. July 4th. One who ships goods to that destination is bound by the custom. Pa. R. Go. V. Naive [Tenn.] 79 S. W. 124. 60, 51. Burr v. Adams Exp. Co. [N. J. Law] 58 A. 609. 52. Plaintiff learned of arrival of goods at 8 p. m., paid charges and arranged for delivery to expressman the next morning. Goods stolen that night. Company held lia- ble. Burr V. Adams Exp. Co. [N. J. Law] 58 A. 609. 53. Burr V. Adams Exp. Co. [N. J. Law] 58 A. 609. It is not an unreasonable delay to fail to deliver goods at Denver, July 10th, which had been shipped from New York July 2d. Brooks v. Del., L. & W. R. Co., 88 N. T. S. 961. 54. Roth Clothing Co. V. Maine S. S. Co.. 88 N. Y. S. 987. 55. Where a consignee refused to accept goods iand the consignor Informed the car- rier to return them and an agent of the carrier called on the consignor, looked at his receipt and said he would trace the goods. Hirsch V. Piatt, 89 N. Y. S. 362. 56. Pa. R. Co. T. Naive [Tenn.] 79 S. W. 124. 57. Where the agent of the consignee inquires for freight, it is negligence to fail to inform him of its arrival, though notice has been mailed the consignee and the car number given by the agent is erroneous. Ala. & v. R. Co. V. J. M. & C. B. Pounder [Miss.] 35 So. 155. 58. Thyll V. New York & L. B. R. Co., 92 App. DIv. 513, 87 N. Y. S. 345. 59. 60. Grayson County Nat. Bank v. Nash- ville, etc., R. Co. [Tex. Civ. App.] 79 S. W. 1904. But see Clegg v. Southern R. Co., 135 N. C. 148, 47 S. B. 667. 61. And after notice by the shipper to a final carrier that he holds the bills of lading and not to deliver, the carrier is not liable for delay in .insisting on the production of the bills of lading or freight receipts by the person entitled to delivery, though it has meantime been notified by the shipper to de- liver without them. Schliohting v. Chicago, R. 1. & P. R. Co., 121 Iowa, 502, 96 N. W. 959. 62. 111. Cent. R. Co. v. Seltz, 105 111. App. 89. 63. Pen. Code, J 633. Mairs v. Baltimore & O. R. Co., 175 N. Y. 409, 67 N. E. 901. 3 Cur. Law. CARKIEES [OF GOODS] § 9. 599 the consignee to forward to another and acceptance there." The carrier may demand its production of the bill of lading as a condition to a diversion of the shipment."' Whether the setting of a car at an agreed point is a delivery is a question of fact.'" Delivery to duly authorized agent of consignee is sufficient.*' The person rightfully entitled to possession,"' or an officer of the law under a prima facie valid authority,'" may claim delivery from the carrier, but the carrier must show that such delivery is binding on the consignee.'" The carrier may be justified in delivering goods to the actual purchaser, though he be not named in Ihe bill of lading and does not produce it.'^ Acceptance and unloading. — Mere payment of transportation charges does not amount to acceptance of delivery, the goods not having been removed.'^ For damages resulting from delay in unloading, the consignee may be liable."' Refusal hy consignee.''* — The shipper should be notified in a reasonable time of refusal,'^ but to prevent loss the carrier may sell unaccepted perishable goods." Storage at destination. — The extraordinary liability as a carrier continues until the consignee has had a reasonable opportunity to inspect and remove the goods during business hours," or until the consignee accepts.'^ Thereafter if proper stor- age facilities do not exist at destination, the carrier may store unclaimed freight elsewhere.''" The happening of an injury does not raise presumptive negligence as against a warehousing carrier.'" Liahility for conversion.^^ — There must be an absolute denial of the right to the goods or the excuses for nondelivery must be unreasonable, inconsistent or made in bad faith to constitute a conversion.'^ Misdelivery of goods is deemed a conver- «4. Hayman v. Canadian Pac. R. Co., 86 N. T. S. 728. 65. Not sufficient that person be con- signee. Ryan v. Great Northern R. Co., 90 Minn. 12, 95 N. 'W. 758. Ce. Whether the consignee has a right to assume that it is so placed with the purpose of delivering it to him. Brown v. Pontlac, O. & N. R. Co. [Mich.] 94 N. W. 1050. 67. Brunswick & W. R. Co. v. Rothchild & Co., 119 Ga. 604, 46 S. B. 830. 68. Where the shipper has not had right- ful possession, the carrier must surrender on demand of the rightful owner at any time before delivery to the consignee. An action of replevin in such case need not allege that the defendant's line passes through the coun- ty In which suit is brought as required in an action for injury to person or property. Atchison, T. & S. P. R. Co. v. Jordon Stock Pood Co., 67 Kan. 86, 72 P. 533. So it may deliver to a mortgagee entitled to possession on condition broken. Johnston v. Chicago, B. & Q. R. Co. [Neb.] 97 N. W. 479. A car- rier must deliver goods to the true owner, claiming under the consignee, when It has notice of his rights, and the bill of lading has already been surrendered. Certified, or- ders for cars of grain held notice of the right of the bank, to whom they had been delivered. National Newark Banking Co. v. Del., L. & W. R. Co. [N. J. Err. & App.] 58 A. 311. Notice to the agent of the carrier charged with the duty of delivering freight of the right of one claiming under the consignee to have the goods delivered to him is notice to the carrier. Id. 69. Southern R. Co. v. Heymann, 118 Ga. 616, 45 S. B. 491. 70. Delivery to barkeeper at casino 1* not Justified by addressing consignee at the casino. Charles Schleslnger & Sons v. New York, N. H. & H. R. Co., 85 N. T. S. 372. 71. Where such had been the course of dealing between the parties. Bernstein v. New York, N. H. & H. R. Co., 88 N. Y. S. 971. 72. Burr v. Adams Bxp. Co. [N. J. Law] 58 A. 609. 73. Evidence held insufficient to show damage to boat frozen in before unloading. Scott V. International Paper Co., 86 N. Y. S. 786. 74. See 1 Curr. L,. 431. 75. Mo., K. & T. R. Co. v. Jenkins [Tex. Civ. App.] 80 S. W. 428. 76. Fish not called for in 54 hours, after 2 notices and affording Indications of decay is properly sold [Laws 1899, p. 1924, c. 582]. Leech v. New York, N. H. & H..R. Co., 40 Misc. 654, 83 N. Y. S. 166. 77. Liability exists for loss by fire with- out negligence. Mo. Pac. R. Co. v. New- berger & Bro., 67 Kan. 846, 73 P. 57. 78. The carrier Is not liable for the de- struction of goods by Are not due to his negligence, where the consignee has assum- ed control and Instead of removing them promptly allowed them to remain until a more convenient time. Stapleton v. Grand Trunk R. Co. [Mich.] 94 N. W. 739. 79. Facts held not to show liability where it was carried back 14 miles to Galveston and there destroyed by an unprecedented storm. Gulf, C. & S. F. R. Co. v. North Tex. Grain Co. [Tex. Civ. App.] 74 S. W. 567. 80. Evidence held insufficient to show wet- ting of goods. Thyll v. New York & L. B. R. Co., 84 N. Y. S. 175. 81. See 1 Curr. L. 430. 82. Pacts held not to show conversion. 600 CAEEIERS [OP GOODS] § 10. 3 Cur. Law. sion of them, the same as a total failure to deliver themf but mere delay is not a conversion.** A demand by the owner upon the carrier for goods in its possession, a,nd a refusal on its part to deliver them, constitute a conversion, in the absence of a sufficient legal ground for such refusal."* The right or duty to demand a bill of lading controls the question of whether a refusal to surrender without its production is a conversion.*' A conversion is not excused by mistake,*^ or the fact that the property is susceptible of unlawful use.** A tender of the goods to the owner, where there has been no previous demand and refusal, is a defense to an action for their conversion,** but an offer to return freight is not, though it may go in mitigation of damages. °" A lien for freight must be pleaded to go in miti- gation of damages for wrongful taking."^ An assignment to the carrier of the shipper's interest in goods wrongfully de- livered confers on the carrier the right to sue the person to whom deUvery has been made for conversion."' § 10. Liability of carrier or connecting carrier." — ^At common law and where there is not a through or joint contract, one carrier is not liable for the negligence of another.'* Such liability is not assumed by a mere agreement to Rubin V. Wells Fargo Exp. Co., 85 N. T. S. 1108. 83. Delivery to wrong person or at wrong place. Defendant disregarded directions as to destination and connecting carrier to which they were to he delivered. Cleveland, C, C. & St. L. R. Co. V. Potts & Co. [Ind. App.] 71 N. B. 685. 84. There must be a demand where the goods have been safely kept. Ryland v. Chesapeake & O. R. Co. [W. Va.] 46 S. B. 923. Coffins delayed. St. Louis S. "W. R. Co. v. Tyler Coffin Co. [Tex. Civ. App.] 81 S. W. 826. 85. Bvldence held not to show demand tor shipment of coffins or refusal to deliver them. St. Louis S. "W. R. Co. v. Tyler Coffin Co. [Tex. Civ. App.] 81 S. W. 826. Refused on the sole ground that owner would not pay the amount of freight demanded which was excessive. Meanwhile goods were frozen. Clegg v. Southern R. Co., 135 N. C. 148, 47 S. B. 667. 86. Delivery on a bond without presenta- tion of a bill of lading and payment of draft attached Is a conversion. Marshall & M. Grain Co. v. Kan. City, Ft. S. & M. R. Co., 176 Mo. 480, 75 S. W. 638. Refusal Is a con- version where the demand is not justified. First Nat. Bank v. San Antonio & A. P. R. Co. [Tex.] 77 S. W. 410. NOTE. Notify shipment; rights of party notified: A railroad company refused to de- liver perishable goods to a consignee In a "notify" shipment, because he would not pay excessive charges. In a suit by the con- signee for Injury caused to the goods by the delay. It was held he could recover in spite of the fact that at the time he demanded the goods the bill of lading had not been transferred to him by the bank to which it had been sent. Clegg v. Southern R. R. [N. C] 47 S. B. 667. . . .,, An action would lie against the carrier In favor of the bank, on the facts of the principal case for wrongful delivery with- out production of the bin of lading. Hlrs- kell v. Farmers Nat. Bank, 89 Pa. 155. De- livery in such case amounts to a conversion. Furman v. R. R., 106 N. T. 579; North Pa. R. R. V. Commercial Bank, 123 V. S. 627. The word "notify" implies that such a party la a stranger to the transaction until he re- ceives title from the real consignee, the bank; for otherwise, notice would be given to him without specific direction. Hutchin- son, Carriers [4th Ed.] § 131b. It is difficult, then, to see how his rights are violated by the refusal to deliver until he secures the Indorsement of the bank, irrespective of whether the carrier knows that he does not hold the bill of lading. — IV Columbia Law Rev. 509. 87. A conversion of coal to Its own use by a carrier. Frazier v. Atchison, T. & S. F. R. Co. [Mo. App.] 78 S. "W. 679. 88. That a nickel In the slot machine Is capable of being used as a gambling device is not a defense to conversion in the absence of proof that It was so used. Edwards v. American Exp. Co., 121 Iowa, 744, 96 N. W. 740. 80. St. Louis S. "W. R. Co. v. Tyler Coffin Co. [Tex. Civ. App.] 81 S. W. 826. 90. Marshall & M. Grain Co. v. Kan. City, Ft. S. & M. R. Co., 176 Mo. 480, 75 S. "W. 638. 01. Haebler v. New York Cent. & H. R. R. Co., 84 N. T. S. 509. 92. Johnson v. Gulf & C. R. Co. [Miss.] 34 So. 357. 93. See 1 Curr. L. 431. 94. Cudahy Packing Co. v. Dorsey [Tex. Civ. App.] 78 S. W. 20; Thomas v. Frankfort & C. R. Co., 25 Ky. L. R. 1051, 76 S. W. 1093. Where there is no joint contract, two rail- road companies cannot be sued for the dis- tinctly separate wrong of one because prop- erty has been transported over the connect- ing lines of the two [Laws 1899, p. 214, c. 125, does not apply]. Tex. & P. R. Co. v. Lynch [Tex.] 75 S. W. 486. An Initial carrier, by delivery of a refrigerator car iced properly and In good condition to a connecting car- rier, discharges Its liability In the absence of special contract. Insertion of words "Ice when needed" in bills does not make a spe- cial contract. Farnsworth v. New York Cent. & H. R. R. Co., 88 App. Div. 320, 84 N. Y. S. 658. Error In waybill given to connecting carrier excuses it for failure to deliver at proper destination. Hayman v. Canadian Pac.'R. Co., 86 N. T. S. 728. 3 Cur. Law. CAREIERS [OF GOODS] § 11. 6G1 deliver to the other,'* or by receipting for an extra terminal point,'" except per- haps to one on a line operating under a traffic agreement.''' An initial carrier accepting goods for shipment beyond its line and undertaking to keep the car in condition is liable,'* and it is liable for foreign damage resulting from the defective condition of the car furnished and its unsuitableness for the purpose intended." The initial carrier is bound to obey the instructions given him by the shipper, and to communicate them to the connecting carrier.^ - The connecting carrier is bound by the biU of lading issued by the initial carrier only so far as it is a con- tract.* Exemption and limitation of liability.^ — A limitation of liability to the car- rier's own line may be efEective, though -liie connecting point is not specified.* A connecting carrier cannot have the benefit of a limitation of time to present claims in favor of initial carrier.' A statute forbidding a carrier to relieve itself from the negligence of a carrier by whom it undertakes to complete a through contract is valid." Loss or injury.'' — ^It is presumed that injury occurred in the hands of the final carrier, though by statute liability is imposed on the first carrier also,* or though the goods are in a sealed car,' and a local expressman is a common carrier in such a sense that delivery of freight to him in good condition raises a presumption of delivery in good order to a railroad acting as connecting carrier.^" This presump- tion of negligence may be rebutted by a showing of proper handling on its part and of improper loading by the shipper or initial carrier.^^ The initial carrier is relieved by a showing of safe delivery to a station in control of the successor.*' Statutory remedies}^ — The Georgia tracing act is held not to deny the equal protection of laws to initial and connecting carriers doing business within the state.** A statute providing that the last of connecting carriers to receive goods shall be liable to the consignee for all damage, the ultimate liability to be settled among the carriers, is not in violation of the commerce clause of the Federal constitution.*^ § 11. Limitation of liability.^" — The carrier cannot exempt itself from lia- 95. Cannot recover from the first carrier ■where the goods are taken from the final carrier in replevin. American Hay Co. v. Bath & H. R. Co., 85 N. T. S. 341. 96. Does not Import a contract to carry to the final destination. Farnsworth v. New York Cent. & H. B. R. Co., 88 App. Dlv. 320, 84 N. T. S. 658. 97. Issuance of bill of lading to point on line of road with which the carrier has a joint traffic arrangement, held a through contract within Rev. St. 1899, § 944. "Western Sash & D. Co. V. Chicago, R. I. & P. R. Co., 177 Mo. 641, 76 S. "W. 998. 98. Johnson v. Toledo, S. & M. R. Co. [Mich.] 96 N. W. 724. 99. Agent Informed that plaintiff intend- ed to ship bees In car. International & G. N. R. Co. v. Aten [Tex. Civ. App.] 81 S. W. 346. 1. As to destination and manner of ship- ment. Cleveland, C, C. & St. L. R. Co. v. Potts & Co. [Ind. App.] 71 N. B. 685. 2. Tex. & P. R. Co. V. Kelly [Tex. Civ. App.] 74 S. "W. 343. 3. See 1 Curr. L,. 432. 4. Was left blank. Nenno v. St. Louis & S. P. R. Co. [Mo. App.] 80 S. W. 24. 5. Grayson County Nat. Bank v. Nashville, C. & St. L. R. Co. [Tex. Civ. App.] 79 S. W. 1094. 6. Rev. St. 1899, 5 5222 invalidates a con- tract limiting liability to line of carrier. Contract for through shipment from Mis- souri to a point beyond Its line in Arkansas. Marshall & M. Grain Co. v. Kan. City, Ft. S. & M. R. Co., 176 Mo. 480, 75 S. W. 638. 7. See 1 Curr. L. 433. 8. Civ. Code, § 2176. Willett v. Southern R. Co. [S. C] 45 S. E. 93. 9. Beede v. Wis. Cent. R. Co., 90 Minn. 36, 95 N. "W. 454. 10. Willett V. Southern R. Co. [S. C] 45 S. E. 93. 11. Tex. & P. R. Co. V. Kelly [Tex. Civ. App.] 74 S. W. 343. la. Evidence of plaintiff. Thyll v. New Tork & L. B. R. Co., 92 App. Div. 613, 87 N. T. S. 345. 13. See 1 Curr. L. 433. 14. Civ. Code 1896, §§ 2317, 2318., Southern R. Co. V. Ragsdale [Ga.] 47 S. B. 179. , 15. Civ. Code 1885, § 2298. Kavanaugh & Co. V. Southern R. Co. [Ga.] 47 S. B. 526. This remedy may be waived and the car- riers proceeded against on their common- law liability. Id. 16. See 1 Curr. L. 434. 602 CAB.RIBES [OP GOODS] § 11. 3 Cur. Law. bility for negligence/^ but may be invoked when an aiEnnative act of wrongdoing is not shown.^' Limitations, however, may have the efEect of shifting the burden of proof of negligence.^* An express company taking a draft for collection cannot limit its liability to that of an ordinary carrier.^" In the absence of a statement of value, a limitation thereof is valid,^^ and having limited amount of its liability, the carrier cannot by its bill of lading secure the benefit of insurance on the ex- cess value of the goods.'"' An exemption from liability for damages by fire, ex- pressed in the bill of lading, is valid."' Any deviation from the terms of the con- tract of carriage will deprive the carrier of the benefits of limitations of liability therein.''* A limitation, valid in the state where the contract is made, will be recognized in the state in .which action is brought.''^ In refusing to recognize"' or allow" contracts limiting liability, a state does not regulate interstate commerce. 17. Paul V. Pa. R. Co. [N. J. Law] 57 A. 139. Clause "Subject to delay" in contract of shipment of perishable goods cannot be given such effect. Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. Limitation respecting operation of side track held not one as carrier. Mann v. Pere Mar- quette R. Co. [Mich.] 97 N. W. 721. Such an exemption is invalid, though there is a statute imposing a penalty for failure to transport in a certain time in the absence of agreement [Code, § 1967]. Parker v. Atlan- tic Coast Line R. Co., 133 N. C. 335, 45 S. B. 658. 18. Hlrsoh V. New York Dispatch & D. Co., 86 N. T. S. 198. 19. Injury from wet. Thyll v. New York & L. B. R. Co., 92 App. Div. 513, 87 N. T. S. 345. A contract exempting liability for wet places on the shipper the burden of estab- lishing a specific act of negligence on the part of the carrier, the proximate cause of the Injury. Id., 84 N. T. S. 175. Showing of loss by fire in freight house is not suffi- cient. Van Akin v. Erie R. Co., 92 App. Div. 23, 87 N. Y. S. 871. Contract "Subject to de- lay" does not shift the burden from the car- rier of showing due diligence. Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. 20. Cannot limit amount of liability for taking check instead of cash. Cowling v. American Exp. Co., 102 Mo. App. 366, 76 S. W. 712. SI. Wilson V. Piatt, 84 N. Y. S. 143. Ex- press receipt stamped by messenger "value asked and not given" effectively limits value to amount stated therein. Limitation to $50 unless greater value is stated and in ab- sence of gross negligence or fraud becomes effective. Bernstein v. Weir, 40 Misc. 635, 83 N. Y. S. 48. 22. Pa. R. Co. V. Burr [C. C. A.] 130 F. 847. 23. Though the option to ship under the common-law liability was not presented to the shipper. Cau v. Tex. & P. R. Co., 194 U. S. 427, 24 S. Ct. 663. 24. Cleveland, C, C. & St. L. R. Co. v. Potts & Co. [Ind. App.] 71 N. E. 685. 25. Limitation of liability for fire in con- tract made in Illinois to carry to Kentucky will be recognized in Kentucky, though in- valid under Const. § 196, the loss having oc- curred in Illinois. Cleveland, C, C. & St. L. R Co. v. Druien [Ky.] 80 S. W. 778. A con- tract for shipment from Illinois to Missouri made in Illinois is to be construed by the law of that state. Nenno v. St. Louis & S. F. R. Co. [Mo. App.] 80 S. W. 24. NOTE. Conflict of laTvs as to carriers' con- tracts UnUtlng liability: The validity of a stipulation limiting the carrier's common- law liability, in a contract of carriage from one state or country to another, is to be de.- termined by the law of the place where the contract was made and the transportation commenced, without reference to the law of the place of destination, or of the place where the alleged breach of contract or loss or injury occurred. This rule is said to have been applied in the following cases where the question was as to the right of a common carrier to limit its common-laTV liability by excepting losses or Injuries not due to negligence. The Henry B. Hyde, 82 F. 681 (valid) ; Hale v. N. J. Steam Nav. Co., 15 Conn. 546, 39 Am. Deo. 398 (invalid); Camp V. Hartford & N. Y. Steamboat Co., 43 Conn. 340 (valid) ; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 S. E. 916, 2 L. R. A. 102 (valid); St. Joseph & G. I. R. Co. V. Palmer, 38 Neb. 463, 56 N. W. 957, 22 L. R. A. 335 (Invalid). The same rule has been applied as to stipulations limiting liability for negligent loss or Injury, though in the oases here cited it seems to have been tacitly assumed that such stipulations were not so opposed to the public policy of the forum that enforcement would be refused, even though valid where made. Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 S. Ct. 469, 32 Law. Ed. 788 (invalid) ; Mexican Nat. R. Co. v. Jackson [C. C. A.] 118 F. 549; 111. Cent. R. Co. V. Beebe, 174 111. IS, 50 N. E. 1019, 43 L. H, A. 210 (Invalid). But the Federal courts refuse to enforce such stipulations, without regard to their validity where the contract was made, on the ground that they are opposed to the public policy of the United States. The Kensington, 183 U. S. 263, 22 S. Ct. 102, 46 Law. Ed. 190; The Iowa. 50 F. 561; The Hugo, 57 F. 403 (affirmed in 168 U. S. 104, 18 S. Ct. 12, without passing on point in question); The New England, 110 F. 415. It is unnecessary to invoke the public policy of the United States in passing on stipulations to which the Harter act ap- plies, as in such case that act governs. See Knott v. Botany Worsted Mills, 179 U. S. 69, 21 S. Ct. 30, 45 Law. Ed. 90. The same general rule, first stated in this note, has also been applied in cases passing 3 Cur. Law. CAEEIBES [OF GOODS] § 13. 603 Necessity and sufficiency of agreement between carrier and shipper." — Limi- tations in the bill of lading must be distinctly brought to the shipper's notice in order that a contract may result from his nondissent.^' Where the shipper has possession of and fills out his own shipping receipts, there is a special contract." A limitation of common-law liability must be on consideration,'^ which is not pre- sumed,"^ but a lack of independent consideration expressed in the bill will not avoid such provision if the contract be entire.^' § 13. Public records of traffic. — The names and addresses of consignor and consignee are "marks" which must be recorded by carriers before delivering liquors to nonlicense towns in Massachusetts."* § 13. Remedies and procedure.^^ Timely notice or suit. — Provisions in bills of lading, requiring notice of claims to be presented and actions for damages to be brought within a certain time, are generally held to be valid conditions preced- ent," but this rule does not apply to cases where there has been a conversion of the goods."" Provision for timely claim is waived by acceptance of informal no- tice and refusal of payment on other grounds.'* Persons who may swe." — A consignee who is injured may sue on a contract with his consignor,** and must sue when title has passed to him.*^ Banlcers to whom a draft with bill of lading attached is forwarded for collection, by becoming responsible for the freight, are entitled to complain of a conversion by the car- rier,*^ but the consignors on election to hold the bank, for negligence in surrender- ing control of the shipment, cannot.*' An action for a breach of a special rate contract during lifetime of the promisee could be maintained only by his executors on the validity of stipulations Umiting tho amount of the carrier's liability. Pac. Exp. Co. V. Foley, 46 Kan. 457, 26 T. 665, 12 L. R. A. 799 (valid) ; Ohio & M. R. Co. v. Tabor, 98 Ky. 503, 32 S. W. 168, 36 S. W. IS, 34 L. R. A. 686, 688 (invalid). The general rule will be defeated where the court takes the position that the limitation passed upon Is contrary to the public policy of the forum and hence invalid. Chicago, B. & Q. H. Co. V. Gardiner, 51 Neb. 70, 70 N. W. 508. None of the cases cited In this note in support of the general rule makes any distinction based on the place of the loss or injury, and In some It ex- pressly appeared that the loss or injury oc- curred outside the jurisdiction of the state in which the contract was made and the transportation commenced. For other cita- tions and full discussion see note to Hughes V. Pa. R. Co. (202 Pa. 222, 51 A. 990) in 63 L. R. A. 513. 26. Limitation of amount of liability for negligence In a contract of interstate car- riage. Pa. R. Co. V. Hughes, 191 U. S. 477, 24 S. Ct. 132. 27. Limitation of liability beyond its line on entering into a through contract [Rev. St. 1899, § 914]. Western Sash & D. Co. v. Chicago, R. I. & P. R. Co., 177 Mo. 641, 76 S. W. 998. 28. See 1 Curr. L. 435. 29. Limitation of value recoverable stamp- ed across face. Doyle v. Baltimore & O. R. Co., .126 F. 841. No contract arises from re- ceipt where the shipper cannot read and his attention is not called to a limitation of .'imount, the receipt being merely handed to him. Pompllj v. Manhattan Delivery Co., 84 N. T. S. 230. 30. Bernstein v. Weir, 40 Misc. 635, S3 N. T. S. 4S; Wilson v. Piatt, 84 N. Y. S. 143. 31. Limitation of liability for fire where not In consideration of less rate, or no rate is agreed on, there was held to be no con- sideration. Phoenix Powder Mfg. Co. v. Wa- bash R. Co., 101 Mo. App. 442, 74 S. W. 492. Where the rate is the usual one, "owner's risk," an additional exemption under a ola^use "subject to delay" is without consid- eration. Perishable fruit. Parker v. Atlan- tic Coast Line R. Co., 133 N. C. 335, 45 S. B. 658. 32. Phoenix Powder Mfg. Co. v. Wabash R. Co.. 101 Mo. App. 442, 74 S. W. 492. 33. Principal consideration suffices, though the carrier may have had but one rate. Cau v. Tex. & P. R. Co., 194 U. S. 427, 24 S. Ct. 663. 34. Rev. Laws, c. 100, § 50. Com. v. Shea [Mass.] 69 N. E. 1066. 35. See 1 Curr. L. 436. 86. Cleveland, etc., R. Co. v. Potts & Co. [Ind. App.] 71 N. B. 685. Such Is not avail- able to a connecting carrier. Grayson Coun- ty Nat. Bank v. Nashville, etc., R. Co. [Tex. Civ. App.] 79 S. W. 1094. 37. Provision requiring claim to be made within ten days rendered Invalid by misde- livery of goods Cleveland, etc., R. Co. v. Potts & Co. [Ind. App.] 71 N. B. 685. 38. Frankfurt v. Weir, 40 Misc. 683, 83 N. Y. S. 112. 3». See 1 Curr. L. 436. 40. Burriss v. Mo. Pac. R. Co. [Mo. App.] 78 S. W. 1042. 41. Frankfurt v. Weir, 40 Misc. 683, 83 N. Y. S. 112. 42. 43. Gulf, etc., R. Co. v. North Tex. Grain Co. [Tex. Civ. App.] 74 S. W. 567. 604 CAKEIEES [OF GOODS] § 13. 3 Cur. Law. as personal representatives.** Statutory remedies avail only the parties withui the statute.*"* Particular remedies available. — ^When a carrier having possession declines to deliver to the person having title, replevin will lie.*' Under the Code in North Carolina, it is not material whether suit is brought in. assumpsit Or in case for loss from delay in transmission.*^ The penalty for delay in paying damage is now abolished in South Carolina.*' Venue*^ in the absence of statute is determined by ordinary rules."" By some statutes, connecting carriers on through contracts may be sued jointly in a county where any one is found.^^ The venue of an action in Georgia for failure to trace freight, or to inform the owner by which of connecting carriers it was lost, is the county where the principal place of business of the initial carrier is located."^ Pleading, proofs, and evidence.^^ — The complaint must not declare on alter- natively distinct causes of action against the defendant as through carrier and con- necting carrier.^* In an action against a railroad company to recover for viola- tion of its duty as a common carrier, plaintiff is not required to plead or prove the written contract under which the shipment was made.'" If a special contract be declared on, the existence of the consideration therein stated cannot be d^ed,°° the party being bound by a bUl of lading as set out unless he avoids such result by his pleading,^' but a suit on a contract evidenced by a bill of lading does not prevent denial of validity of restrictive clauses."' When the suit is tortwise, the duty to carry must be well pleaded."' Plaintiff in trover must show title.'" Neg- ligence must be pleaded to a legal conclusion,'^ but not by setting out f acts.'^ Under general denial to the consignee's action, freight cannot be allowed nor money paid the consignor recouped.'* 44. Sullivan v. Louisville & N. H. Co.. 138 Ala. 650, 35 So. 694. Such a contract la one for the performance of services and not for the payment of money. Id. 45. Under Gen. St. 1901, | 5943, only the consignee, his heirs or assigns can recover for shortage of grain shipped. Owner and consignor cannot. 'Weber v. Chicago, etc., R. Co. [Kan.] 77 P. 533. See Railway Co. v. Simonson, 64 Kan. 802, 68 P. 653. 46. Pub. St. 1901, c. 241, § 2. Hart V. Bos- ton & M. R. R. [N. H.] 56 A. 920. See article Replevin, 2 Curr. L. 1514. 47. Parker v. Atl. Coast Line R. Co., 133 N. C. 335, 45 S. B. 658. 48. Code 1902, § 1711, providing that car- riers shall be liable for breakage, and if they refuse to pay for 60 days, for a pen- alty In addition, was repealed by Acts 1903, p. 81. Johnson V. Southern R. Co. [S. C] 48 a. B. 260. 49. See 1 Curr. L. 436. 50. See article Venue, 2 Curr. L. 2000, es- pecially p. 2002, n. 29-34, p. 2003, n. 52-62. 51. Plea containing practical denial of a through contract held sufficient to entitle defendant, one of connecting carriers, to be sued In another county [Rev. St. 1895, art. 331a]. Tex. & P. R. Co. v. Lynch [Tex.] 75 S W 486. See, also, 2 Curr. L. 2004, n. 62. '.52. Clv. Code 1895, §§ 2317, 2318. MoCaU. V. Central of Ga. R. Co. [Ga.] 48 S. B. 157. 53. See 1 Curr. L. 436. 54. Ixjuisville & N. R. Co. v. Duncan, 137 Ala. 446, 34 So. 988. 55. Is matter of defense. Empire State Cattle Co. V. Atchison, etc., R. Co., 129 P. 480. 56. In an action on a contract of car- riage, providing for release from liability In transportation of a circus train in consider- ation of a reduced rate, an allegation that the statement therein that such reduced rate was given is false, is demurrable. Wilson t. Atl. Coast Line R. Co., 129 F. 774. 57. Complaint in action for damages to machinery due to misdelivery, held suffi- cient on denyirrer, there being an allegation that the bill of lading on which carrier re- lied was not delivered until after the loss. Cleveland, etc., R. Co. v. Potts & Co. [Ind. App.] 71 N. B. 685. 58. Phoenix Powder Mfg. Co. v. Wabash R. Co., 101 Mo. App. 442, 74 S. "W. 492. 59. In an action in tort for Injuries to such train, a petition alleging such contract as a matter of inducement only, and that the same was void, and that it was a part of the railroad's duty as a carrier to transport circuses, is demurrable. Carrier not obliged to transport such trains and hence may con- tract against liability. Wilson v. Atl. Coast Line R. Co., 129 F. 774. 60. "Was then and alwa,ys has been prop- erty of plaintiff" suffices. Cleveland, etc, R. Co. v. Potts & -Co. [Ind. App.] 71 N. B. 685. 61. Petition held insufficient to fix lia- bility for failure of carrier to Inform con- necting carriers that goods were consigned to the shipper's order. St. Louis & S. 3?. R. Co. V. Miller [Tex. Clv. App.] 79 S. W. 43. 62. Unreasonable and long delay of freight. Ala. & V. R. Co. v. Pounder [Miss.] 35 So. 155. 63. Frazier v. Atchison, etc., R. Co. [Mo. App.] 78 'S. W. 679. 3 Cur. Law. CAEEIERS [OP GOODS] § 13. 605 The plaintiff mtist, according to his allegations,'* prove every material issue" by evidence legally sufficient/^ and the carrier must do the same as to defenses.*^ Cases illustrating these general rules are cited. The burden is cast on carrier by a showing of good condition on delivery to it and damage while in its possession.'^ A presumption of ownership of goods arises from production of a bill of lading with draft attached bearing an unrestricted indorsement.'" The consignee, if a buyer, need not show payment of purchase price in order to sue for conversion." To avail of a limitation the carrier must prove such freedom from f aidt as it ex- acts.''^ The ordinary rules'* as to admissions, hearsay,'* and best evidence,'* apply. Obvious conditions are relevant to show n-egligence," but customs bearing on a matter posterior to the wrong are immaterial." Instructions.'''' — ^Eecent holdings on form and sufficiency," and the appropri- ateness or necessity" of particular charges, are collected in the note. 64. Tarlancei AUeg-ation of negligent de- struction of a package and evidence of de- struction by a fire not attributable to neg- ligence. Farr v. Adams Exp. Co., 100 Mo. App. 574, 75 S. W. 183. Complaint In the Code form on a bill of lading, proof of a bill containing special limitations, not a variance. Nashville, etc., R. Co. v. Cody, 137 Ala. 597, 34 So. 1003. 65. Where it was alleged that the car- rier received goods, but neither delivered them to the consignee nor returned them to the consignor, a general denial put both receipt and nondelivery in issue. Brooks v. Del.. D. & W. R. Co., 88 N. T. S. 961. Proof of date of consignee's refusal Is essential in action for failure to notify of refusal. Mo., etc., R. Co. V. Jenkins ITex. Civ. App.] 80 S. W. 428. 66. Sufficiency of evidences To shOTT neg- ligence of final carrier. Thyll v. New York & D. B. R. Co., 92 App. Div. 513, 87 N. T. S. 345. To show Injury from frost due to negligence of last of connecting carriers. Beede' v. Wis. Cent. R. Co., 90 Minn, 36, 95 N. W, 464. To support recovery for freight burned. Ft. Worth & D. C. R. Co. v. Gar- rison CTex. Civ. App.] 79 S. W. 611. To show negligence In falling to give notice of arrival and failing to place goods in cold storage. Pa. R. Co. v. Naive [Tenn.] 79 S. W. 124. To prove contract i Written contract to ship to St. Louis Is not conclusive against contract established by other evidence to carry to East St. Louis, the petition alleg- ing such a contract, but not stating whether written. Mo., etc., R. Co. v. Storey ITex. Civ, App.] 75 S. W. 847. To prove misdelivery: Injury to machin- ery due to misdelivery. Cleveland, etc., R. Co. V. Potts & Co. [Ind. App.] 71 N. E. 685. To prove failure to notify: Statements by the carrier's clerk that lie had mailed three notifloations are not rebutted by the simple statement of the consignee's clerk that he had never received notification. Roth Clothing Co. V. Me. S. S. Co., 88 N. T. S. 987. 67. Proof of occasional acceptance of bills of lading by a shipper cannot overcome posi- tive proof of the nonacceptance of the bill In question. Cleveland, etc., R. Co. v. Potts & Co. rind. App.] 71 N. B. 685. 68. Pa. R. Co. V. Naive ITenn.] 79 S. W. 124. Where a carrier receives property in good condition and returns it broken, he has the burden to show no negligence. Hoffberg v. Bumford, 88 N. T. S. 940. 69. Wlllard Mfg. Co. v. Tlerney. 133 N. C. 630, 45 S. E. 1026. 70. To impose such burden It must be first shown that title could not pass until payment. Evidence held to authorize suit. Frazler v. Atchison, etc., R. Co. [Mo. App.] 78 S. W. 679. 71. Liability for damage caused by Are. Cau V. Tex. & P. B. Co., 194 TJ. S. 427, 24 S. Ct. 663. 72. See generally, Evidence, 1 Curr. L. 1136. Consult Negligence, 2 Curr. L. 996. Evidence of damage see post, this section. Where an insurer sues for goods burned, it cannot be shown that the plaintiff with other companies had made a level rate on the shed in which the goods were stored, together with other sheds as an admission by plain- tiff of the absence of negligence. Judd v. New York & T. S. S. Co. [C. C. A.] 128 F. 7. A letter from the agent of an initial carrier is not evidence against a connecting carrier of the good condition of goods on delivery to it. Thyll V. New York & L. B. R. Co., 84 N. Y. S. 175. 73. Statements of watchmen after fire and termination of employment by defend- ant, as to cause of flre, are not admissible as res gestae. Marande v. Tex. & P. R. Co. [C. a A.] 124 F. 42. 74. Press copies of way bills are not best evidence unless originals are shown to be destroyed or the person making the copies and original is dead. Act between third persons. Haas v. Chubb, 67 Kan. 787, 74 P. 230. 7B. On negligence in storing goods in an unsafe place, condition of neighboring build- ings may be shown, together with city ordi- nance prohibiting smoking in the vicinity. Judd V. New York & T. S. S. Co., 130 F. 991. 76. In an action for conversion, where the carrier has regained possession and stored the freight, evidence of a custom so to store is immaterial. Marshall & M. Grain Co. V. Kan. City, etc., R. Co., 17« Mo. 480, 75 S. W. 638. 77. See 1 Curr. L. 438. 78. Instructions held properly to submit the effect of a statute (3 Starr & C. Ann. St. 1896 [2nd Ed.] p. 3277), prohibiting attaching of burden cars to rear of passenger trains on contract to haul car of scenery. JU. Cent. R. Co. V. Byrne, 205 111. 9, 68 N. B. 720. In- 606 CAERIERS [OF GOODS] § 14. 3 Cur. Law. Damages.^" — ^Damages for delay may be measured by dimimition in value'' or value of use.'^ On wrongful delivery, the measure of damages is the market value less charges, also any special damage which might have been foreseen.'* On failure to give shipper notice of a refusal, the carrier is liable for decline in the market value from the time at which by ordinary care it could have given notice to the consignor,'* or when notice is not imtil unreasonable time after return, for the difference in value at time of notice and at time and place when delivery should have been made." If settlement is to be on terms made by an interme- diary, his decision and not ordinary rules governs." Value and damages are proved as in other cases." Newspapers admitted to show "the condition of the market" may be read to show existence of a strike and acts of the carrier with regard to it." § 14. Freight and other charges.^" — The power of a state to regulate rates does not extend to rates on interstate commerce."" In the absence of special con- tract, an agreement for usual freight rate is implied.*' After classification and ac- struction as to ivhen llablUtr of carrier ter- minateil held properly refused as assuming matter in dispute. Pa. R. Co. v. Naive [Tenn.] 79 S. W. 124. Instructions In an action for goods lost, •which imply that a bin of ladins not assented to or accepted by the shipper and consigning the goods to a different point than that designated by him is binding on hlih, are erroneous. Cleve- land, etc., R. Co. V. Potts & Co. [Ind. App.] 71 N. E. 685. T9. Evidence held not to require instruc- tion as to liability for delivery witliont prodnction of bill of lading. Mo., etc., R. Co. V. Jenkins [Tex. Civ. App.] 80 S. W. 428. A charge that ears are to be famished witliin a reasonable time Is not harmful, though there is no evidence that cars were to be furnished as needed as averred in the complaint. Outland v. Seaboard Air Line R. Co., 134 N. C. 350, 46 S. E. 735. Instruction as to duty of carrier to ship in reasonable tini« held not required by pleadings or evidence in action for failure to notify of refusal by consignee. Mo., etc., R. Co. v. Jenkins [Tex. Civ. App.] 80 S. W. 428. Where there are two theories of liability for fire, one based on the care required of defendant as a rail- road, and one as carrier, defendant is en- titled to have the issue of contributory uesligence submitted. Mo., etc., R. Co. v. Beard [Tex. Civ. App.] 78 S. W. 253. Where an indorsement of a bill of lading "subject to delay" is without legal effect, it is not prejudicial to the carrier to submit wheth- er the goods were shipped under apeclai contract. Parker v. Atl. Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. 80. See generally, article Damages, 1 Curr. L. 833. 81. Difference in condition on arrival and condition in which they should have arrived. Potatoes. Admissibility of evidence consld- pred. Garllngton v. Ft. Worth, etc., R. Co. [Tex. Civ. App.] 78 S. W. 368. Is the differ- ence between the value at the time they ought to have been delivered and at the time of delivery. Merchandise. Roth Cloth- ing Co. V. Me. S. S. Co., 88 N. T. S. 987. 82. Household goods. Mo., etc., R. Co. v. Clifton [Tex. Civ. App.] 80 S. W. 386. On failure to haul theatrical scenery in time for a performance, the nature of plain- tiff's business and his profits for a reasona- ble time prior to the time of violation of the contract may be considered on the question of damages. 111. Cent. R. Co. v. Byrne, 205 111. 9, 68 N. B. 720. 83. Thus in case of knowledge of a con- tract to be fulfilled. Grayson County Nat. Bank v. Nashville, etc., R. Co. [Tex. Civ. App.] 79 S. W. 1094. 84. Mo., etc., R. Co. v. Jenkins [Tex. Civ. App.] 80 S. W. 428. 85. Roth Clothing Co. v. Me. S. S. Co., 86 N. Y. S. 25. 86. Agreement whereby party made agent of carrier settle for damages suffered by con- signee on account of nondelivery of goods, held to take case out of general rule as to damage for loss of goods, and to bind carrier to pay amount agreed upon in addition to value of goods. Cleveland, etc., R. Co. v. Potts & Co. [Ind. App.] 71 N. B. 685. 87. See Damages, 1 Curr. L. 833. On mar- ket value, price at which goods were actu- ally sold is admissible. Garlington v. Ft. Worth & D. C. R. Co. [Tex. Civ. App.] 7J S. W. 368. In action for injuries to bees in transportation, plaintiff, who was engaged in the business, held competent to testify as to the amount of damages sustained. In- ternational, etc., R. Co. V. Aten [Tex. Civ. App.] 81 S. W. 346. 88. Perishable fruit. Parker v. Atl. Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. 89. See 1 Curr. L. 439, for Evidence of es- tablishment of rates. Rebates, Persona lia- ble, Advances. 1 Curr. L. 440, for Actions for freight and charges. 90. A state railroad commission is with- out power to require railroad to abolish "proportional tariffs" applying only to inter- state or foreign shipments, adopted with approval of Interstate Commerce Commis- sion to prevent stopping of export shipments of grain in transit for purposes of cleaning, grading, etc. Rosenbaum Grain Co. V. Chi- cago, etc., R. Co., 130 F. 46. See full treat- ment Commerce, 1 Curr. L. 538. 91. A receiving carrier is not bound to transport for a lower rate agreed on by an initial carrier, by the mere fact that it ac- cepts the shipment which under the law It cannot refuse. Thomas v. Frankfort & C. R. Co., 25 Ky. L. R. 1051, 76 S. W. 1093. Where a shipment is consigned to the shippers, no contract as to rates is shown by 3 Cur. Law. CAERIEES [OF GOODS] § 14. 607 ceptance of freight at a given rate, the carrier cannot recover a greater rate wiiJiout notice on a reclassification,'^ but notice of increase in accordance with the interstate commerce act is waived by payment without protest.'^ A shipper is not protected against an increase in rates by the fact that he has a quantity of goods on hand for shipment."* The consignor is primarily liable for freight."' Demurrage?^ — ^A state regulation of storage car service and demurrage charges is not void, though it incidentally affects interstate commerce."' Eeasonable demurrage charges are enforceable."^ It is not discrimination to charge demurrage for particular classes of freight and not others."" The distance freight has to be hauled from cars does not bear on reasonable time for removal.'^ When demurrage rules provide that in case the proper siding is full, delivery shall be regarded as of the time it would otherwise have been made, it is not material that the siding be occupied with cars of other consignees having equal rights thereon." Notice in addition to notice of arrival is not necessary to impose liability for demurrage.' Liens and enforcement.* — A carrier can have a lien only on articles toward which services are rendered,' but when several cars of a shipment are subject to demurrage, the lien of the entire charge may be asserted against one or more." The lien is not assignable.' It extends to demurrage charges,' advances to pre- ceding carrier," or duties on the goods paid at a port of entry to secure their pos- session.^" A lien cannot be had where goods are damaged in excess of charges." In enforcing liens, statutory conditions must be complied with.^^ When a sale is otherwise made, the carrier is liable as for conversion.^' Recovery of overpayment}'' — One who pays transfer charges under protest the fact that a purchaser had required In- formation as to rates. Myar v. St. Louis S. W. R. Co., 71 Ark. 552, 76 S. W. 557. 92. in. Cent. R. Co. v. Seltz, 105 111. App. 89. 93. Act Congress Feb. 4, 1887, c. 104, § 6 (24 Stat. 380). Strough v. New York Cent. & H. R. R. Co., 92 App. Div. 584. 87 N. T. S. :;0. The reasonableness of a rate need not Ije submitted where voluntarily paid and there is no proof. Id. 94. Strough V. New York Cent. & H. R. R. Co.. 92 App. Div. 584. 87 N. T. S. 30. 05. Portland Flouring Mills Co. v. Brit- ish & F. M. Ins. Co. [C. C. A.] 130 F. 860. 96. See 1 Curr. L. 439. »7. Rules I to XX of the Corporation Commission under Const. 1902, § 155, and Act May 16, 1903; Acts 1902-03-04. p. 392. Atl. Coast Line R. Co. v. Com. [Va.] 46 S. E. 911. 98. New Orleans, etc., R. Co. v. George & Co. [Miss.] 35 So. 193. May be imposed for failure to unload bulk freight from oars within a reasonable time. Schumacker v. Chicago & N. W. R. Co., 207 111. 199, 69 N. B. S25. 99. New Orleans, etc., R. Co. v. George & Co. [Miss.] 35 So. 193. 1. Schumacker v. Chicago, etc., R. Co.. 207 111. 199, 69 N. B. 825. 2, 3. New Orleans, etc., R. Co. v. George & Co. [Miss.] 35 So. 193. 4. See 1 Curr. L. 439. 5. Lien for charges for hauling other goods does not extend to a trap driven to the depot by the owner. Taylor v. Smith, 87 App. Div. 78, 84 N. Y. S. 13. 6. New Orleans, etc., R. Co. v. George