A4U vyt CORNELL UNIVERSITY LIBHAHY 3 1924 097 128 882 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924097128882 DIGEST OF THE American and English Annotated Cases VOLUMES 1-20 WITH FULL INDEX TO THE NOTES AND A TABLE OF CASES EDWARD THOMPSON COMPANY NORTHPORT, L. I., N. Y, 1912 INDEX TO THE NOTES IN THE American and English Annotated Cases* Volumes 1-20. ABANDONMENT. Of cemeteries, see Cemetemes. Of contract for sale of land, see Fbauds, Statute of. Of homestead, see Homestead. Of leased premises, see Landlord and Ten- ant. Of streets, see Streets and Highways. Of vessel as terminating affreightment, see Ships and Shipping. Of written contract for sale of land, see FEAtTDS, Statute of. Abandonment of land granted by state, 19- 375. Circumstances establishing abandonment of right of way by railroad, 11-769. ABATEMENT AND ■REVrVAL — continued. Survival of action for libel or slander, 6-513. Law governing survival of actions, 6-584. Abatement of mandamus by termination of respondent's office, 4-75; 10-60. ABBREVIATIONS. Judicial notice of abbreviations, 17-492. Substitution of phrase et al. in place of names in process, pleadings, etc., 14-571. ABDUCTION. Eight of mother to sue for abduction or en- ticing away of child, 11-1172. ABATEMENT. 0f legacies, see Wnxs. Of nuisances, see Nuisancses. ABATEMENT AND REVIVAL. Plea in, amendment of, see Pleading. Seduction as terminated by marriage, see Seduction. Similar suits in courts foreign to each other, see Actions. Abatement of pendins action for divorce by death of plaintiff, 17-876. Survival of action for rlorith by wron^fnl act after death of beneficiary, 17-773.' Survival of cause of action for breach of promise of marriagp, 10-725. Survival of action for negligence of attorney, 6-651. Survival of action for death by wronsful act after death of wrongdoer, 12-462. Vols. 1-20 — Ann. Gas. Digest. — 1. [1] ABORTION. Necessary allegations in indictment for abor- tion as to means used, 11-221. Woman upon whom abortion is committed as accomplice, 12-1009. Burden and sufficiency of proof as to neces- sity for abortion, 19-636. ABOUT. Meaning of term " about " when used with reference to time, 17-742. ABSENCE. Death presumed from, see Death. Of .judge, receipt of verdict by clerk or at- torney, see Trial. Limitations as affected by, see Limitations or Actions. Of witness rendering former testimony ad- missible, see Criminal Law and Evi- dence. mCEX TO NOTES, 1-20 ANN.. CAS. ABSTRACTS OF TITLE. Payment of fee to custodian of records for making abstract, see Eecoeds. Liability of abstractor of title on account of abstract made by him, 12-410. ABUSE OF PROCESS. Distinction between malicious abuse of proc- ess and malicious prosecution, Z'^122. ABUTTING OWNERS. Consent to liquor license, see INIOXICATING Liquors. Drainage of highways upon adjacent land, see MuNiciPAi, Corporations. Obstruction of access to property, see Nui- sances. Poles erected in front of property, see Texe- QRAPHS AND TELEMONES. Rights and duties respecting streets, see Streets and Highways. Special oh Local Assessments, see that title. ACCEPTANCE. Of checks, see Checks. Of deeds, see Deeds. Of goods sold, see Sales. Of land dedicated to public U36, see DeCiOA- TION. Of neo;otiable instruments, see Bills and Notes. Of subscription, see Subscriptions. ACCESSORIES AND OTHER PAR- TICIPANTS IN CRIME. Criminal liability of one counseling, advising, assisting, or compelling another to com- mit StJicide, 4-1157; 16-522. Necessity of corroboration of testimony of accessory after fact, 5^763. Rule that accessory cannot be tried and con- victed before principal as applicable to principal in second degree, 8-43B. Jurisdiction of prosecution against accessory where principal erime is committed in another state or county, 10-878. Conviction as accessory of person indicted as principal, 14-311. Conviction of person as accessory or aider and abettor of crime which he is per- sonally incapable of committing, 16-467. Necessity of pendency of charge against prin- cipal td warrant prosecution of acces- sory after the fact, 18-295. Failure to disclose felony as rendering person accomplice or accessory after the fact, 19-144. Receiver of stolen goods as accessory or ac- complice of thief, 20-594, ACCIDENT. Evidence of absence of, see Negligence. Evidence of prior accidents, see Evidence. Evidenee of res gestce, see EviBENOfe. Homicide caused by, see HoMicidE. Injunction against legal proceedings on ground of accident, see Injunctions. Presumption of survivorship in disaster, see Evidence. Railroad accidents, see Railroads. On street, see Streets and Highways. Street railway accidents, see Street Rail- ways. Disease as an " accident," 2-140; 15-886. ACCIDENT INSURANCE. See Insurance. ACCOMMODATION PARTIES. See Bills and Notes. ACCOMMODATIONS. Of passengers, see Carriers ; Ships and Ship- ping. ACCOMPI.ICES. Accessories, see Accessories and Other Par- ticipants IN Crime. Failure to disclose felony as rendering person accomplice or accessory after the fact, 19-144. Woman upon whom abortion is committed as accomplice, 12-1009. Receiver of stolen goods as accessory or ac- complice of thief, 20-594. Necessity of cautionary instruction as to con- viction upon uncorroborated evidence of accomplice in jiirisdiction where cor roboration is not necessary, 15-699. ACCORD AND SATISFACTION. Arbitration and Award, see that title. Compromise anfi Settlement, see that title. Payment, see that title. Release and Discharge, see that title. Surety as discharged by, see Suretyship. Promise accepted in satisfaction of debt as executed accord, 6-564. Part payment as satisfaction of disputed claim, 1-801; 16-194. Part payment with receipt in full as Satisfac tion of liquidated and undisputed debt, 5-525. ACCOUls^TS AND ACCOU'iniKG — ACTIONS. ACCOUNTS AND ACCOtJNTING. Books of accounts in evidence, see Evidence. Negotiability of instrument referring to par- ticular account, see Bills and Notes'. Guardian's duty to adcount, see GtIJaedian AND Ward. Salesman's authoritj' to Collect accounts, see Agency. Tax collector's duty to account, see Taxation. By tenant in common for rents and prdfits, » see Tenants in Common. Eight of defendant in action for accounting to affirmative relief in absence of claim therefor, 13-648. Lapse of time as barring right to compel ac- counting by personal representative, 15- 481. Eight of partner to accounting where partner- ship transactions are illegal, 18-407. Power of court to decree accounting for daA- ag^ in action to enjoin unfair compe- tition or infringement of tradeftiark, 20- 59. Necessity that account stated include all items of account of both parties, 20-626. Manner of pledging or assigning book ac- counts, 18-446. ACCRETION. Title as affected by change in course of stream, see Watebs and WATEBCOtJKSES. ACCUSATIONS OF CRIME. Evidence of when undenied, see Cbiminal Law. AOKNOWI.EDGMENTS. Notary Public, see that title. EeviVing barred defaands, see Limitations of Actions. Power of deputy to take acknowledgments, 3-299. Stockholder or officer of corporation inter- ested in instrument as disqualified to take acknowledgment thereof, 16-140. Validity of acknowledgment taken by officer whose right to office has ceased, 5-461. Necessity that certificate of acknowledgment should 8ta.te that it waS taken Within oflBcer's jurisdiction, 10-129. Effect of omission of name of grantor or mort- gagor from certificate of acknowledg- ment, 2-990. Liability of officer for false or defective cer- tificate of acknorwledgment, 13-717. Evidence requisite to impeach acknowledg- ment, 7-249, ACQUITTAr Of CRIME. Sefe Criminal Law and cross-references. ACTIONS. Accounts and Accounting, see that title. By administrators, see Executors aNd Ad- ministrators. For alienation of affections, see Husband and Wife. Alimony decree enforced by, see Alimony and Suit Money. Assignments of, see AssionmeNts. Assumpsit, see that title. Attachment, see that title. On bail bonds, see BaiLj Bankrupt's tort actions as passing to trus- tee, see BanruptoY: Bastardy, see that title. On bills or notes, see Bills and Notes. By boards of liealth, see Hbm.lth. On bonds, see Bonds. Boundary proceedings, see Boundaries. Cancellation and Eescission, see that title. Champerty, see Champerty and Mainte- nance. Chattel mortgages, enforcement of, see Chat- tel Mortgages, By child for chastisement; see Parent and Child. Civil damage acts as giving rise to, see Civil Damage Acts. For collection of taxes, see Taxation. Condemnation proceedings, see EminMn* Do- main. Conflict of laws as affecting, see Conflict of Laws. For conspiracy by merchant against unlawful combination, see Conspiracy, By consumers of water, see Waterworks and Water Companies. For contempt, see Contempt. To contest wills, see Wills. For contract of life insurance broken, see Insurance. For contract relations, interfered with, see Interference with Conteact Eela- tions. For contracts broken, see Contracts, For copyright infringement, see Oopyriohts. Coram Nobis, see that title. Counterclaim in, see Set-off and CotiNTEB- CLAlM. For death, see Death riY Wrongful Ao¥. Against decedents' estates, see Executors and Administrators. For deceit, see Fraud and Deceit. For dower, see Dower. Ejectment, see that title. Etjcction of Remedie.s, see that title. To enforce decrees for alimony, see Ammony AND Suit Money. By executors, see Executors and Adminis- trators. False iMFRisojfMENT, see that title. Fences as subjects of, see Fences. Forcible Entry anii Detainer, see that title. Foreign cnrporatinns sued by nonresidents, see COBpOBATIOf^^s, INDEX TO NOTES, 1-20 ANN. CAS. ACTIONS — eontinued. In forma pauperis by personal representa- tives, see ExECUTOBS and Aoministba- TOB8. For fraud, see Fbatjd and Deceit. Gahnishment, see that title. By guardians, see Guardian and Wabd. Habeas Coepus, see that title. By health boards, see Health. Highway proceedings, see Steeets and High- ways. By husband, see Husband and Wife. Imprisonment in, see Impbisonment fob Debt and in Civil Actions. By infants, see Infants. For infringement of copyright, see Copy- eights. On injunction bonds, see Injunctions. Injunctions, see that title. Institution of as rebutting presumption of payment, see Payment. On insurance contracts, see Insueance. Intoxicating liquors as subject of, see In- toxicating LiQUOBS. Joinder of causes of action, see Pleading. Judgments or decrees as subjects of, see Judg- ments. By justices to recover fees, see Justices of Peace. By landlords, see Landlord and Tenant. For lateral and subjacent support, see Ad- joining Owners. By legatee or distributee to collect assets of decedent, see Executors and Adminis- teatoes. For libel, see Libel and Slandee. Limitation of Actions, see that title. Liquor licenses, collection of, see Intoxicat- ing Liquobs. Lis Pendens, see that title. Maintenance, see Champerty and Mainte- nance. Malicious Peosecution, see that title. Mandamus, see that title. Mechanic's lien, enforcement of, see Mechan- ics' Liens. Municipal corporations as parties to, see Mu- nicipal Cobpoeations. Names of parties, see Name. Ne Exeat, see that title. Negligence generally, see Negligence. By nonresidents against corporations, see Cob- poeations. For nuisances, see Nuisances. On official bonds naming obligees other than those designated by statute, see Bonds. By parent for expulsion of child from school, see Schools. Parents' actions generally, see Parents. Partition, see that title. By partners, see Partnership. By passengers against carriers, see Careiebs. Patents as subject of, see Patents. By person non sui juris, see titles Guabdian AD Litem and Next Friend. Petitions, see that title. By pledgors or pledgees, see Pledge and Col- lateral Security. By policy liolders seeking share of profits of insurance company, see Insurance. For pollution of waters, see Waters and Watebcoueses. ACTIONS — continued. Prematurely brought, see Pbematuee Suits. To prevent revocation of teacher's license, see Schools. By private citizens to enforce liquor laws, see Intoxicahnq Liquobs. For probate of wills, see Wills. Pbohibition, see that title. For public oflBcers' removal, see Public Offi- CEES. For purchase price of goods sold on credit, see Satj:s. By purchasers of land, see Vendoe and Pur- chaser. To quiet title, see Quieting Title — Re- moval OP Cloud. Quo Wabeanto, see that title. Receiverships as subject of, see Receivers. By remainderman for injuries to realty, see Life Estates. Removal of Causes, see that title. Replevin, see that title. Sales giving rise to, see Sales. Seabches and Seizures, see that title. For seduction, see Seduction. By servants, see Mastee and Servant. Set-off in, see Set-off and Counteeclaim. For slander, see Libel and Slander. Specific Performance, see that title. Against states, see States. Stock or stockholders, see Cobpoeations. Successive actions for breach of contract, see Contracts. Survival of actions, see Abatement and Re- vival. Taxes, collection of, see Taxation. By taxpayers to recover public funds, see Ap- propriations. Telegrams as giving rise to, see Telegraphs and Telephones. By tenants, see Landlord and Tenant. Trademarks, trade names, and unfair compe- tition as subjects of, see Trademarks, Trade Names, and Unfair Competi- tion. Trespass, see that title. Trover, see Trover and Conversion. By unincorporated associations, see Unincor- porated Associations. By vendors of land, see Vendor and Pub- chaser. Venue, see that title. For waste, see Waste. By wife, see Husband and Wife. Discrimination against citizens of other states as to actions and proceedings, 1-832. Effect of pendency of like suit in foreign court, 1-365. Nature of action or proceeding for violation of municipal ordinance, 5-289. Agreement of insurer to repair or rebuild, after loss, as creating new cause of ac- tion in favor of insured, 16-105. Liability of electric company for injuries to person on premises to which it supplies current as based on negligence or breach of contract, 17-1046. Proceeding for removal of public officer as civil or criminal in nature, 20-112, ACT OP GOD — ADVANCEMENTS. ACT OF GOD. ADMISSIBILITY OF EVIDENCE. Carrier's liability for damages caused by, see Generally, see Evidence. Cabklebs ' In criminal cases particularly, see Cbiminal Law. ACTS OF LEGISLATURE. See Statutes. ADMISSIONS. In evidence, see Evidence. ADDITIONAL SERVITITDES. See Streets and Highways. " ADDITIONS." As term of insurance policy, see Insurance. ADDRESS TO JURY. See Tbial. ADEMPTION. Of legacies, see Wnxs. ADEQUATE REMEDY AT LAW. As affecting equitable jurisdiction, see Equity. ADJOINING LANDOWNERS. BouNDABiES, see that title. Drainage of highways upon adjacent land, see Municipal Coepobations. Fences, see that title. Pabty Walls, see that title. Accrual of action for injury to lateral and subjacent support, 3-123; 18-752. Measure of damages for injury to lateral and subjacent support, 5-219; 10-77. VSTien grant of mining rights will release grantee from liability for subjacent sup- port, 10-874. ADJUDICATION. In bankruptcy, see Bankbuptct. ADMISSION TO BAR. See Attobneys at Law. ADOPTION OF CHILDREN. Construction of ^vo^d " child " in statute pro- viding for adoption of children, 15-92. Necessity of notice to or consent of natural parent to second adoption of child, 12- 509. Validity of contract or proceeding of adop- tion not made in conformity with stat- ute, 12-144. Collateral attack on decree of adoption, 13- 587. Grounds for vacation of decree of adoption, 17-548. Right of adopted child to inherit from per- sons other than adopting parents, 4- 881; 9-780. Right of inheritance within state of child adopted under laws of another state, 16-779. Right of parent to recover for death of adopted child, 15-148. ADULTERY. Alimony where both parties have committed adultery, see Alimony and Suit Money. As barring dower, see Dower. Necessity for emission, see Cabnal Knowl- edge. Persons capable of committing crime of adul tery, 16-314. What constitutes " living together " or " co- habiting " in fornication or adultery, 19-655. Testimony of detectives to prove adultery, 12-960. Homicide during adultery, 1-136. ADMINISTRATORS. See ExECUTOBS and Administbatobs. ADMIRALTY. Ships and Shipping, see that title. Admiralty jurisdiction in tort, 13-1216. Admiralty jurisdiction of suit for contribu- tion, 20-1236. ADVANCEMENTS. Application of doctrine of advancements in cases of partial intestacy, 6-1011. Gift to son-in-law as advancement to daugh- ter, 18-546. Validity and effect of agreement by heir re- linquishing expectancy in estate in con sideratinn of advancement, 17-725. Admissibility on ifsne of advancement rel non of subsequent declarations of intestate, 17-886. INDEX TO x\0Ti;s, 1-20 AiN'isr. C4.S. APVANCES. Chattel mortgage given to secure, see CHAT- TEL MOKTQABEg. To masters of vessels, see Ships AND Ship- ping. APVSRSE FOSSESSION. Pbescription, see that title. Possession bj mistake of one ifitending to claim only to true boundary as adverse possession, 15-827. Sufficiency of unrecorded deed to give color of title, 1-761. Cpndemnatipji proceedings as furnishijig color of title to land claimed by adverse pos- session, 19-402. Right of one claiming title by adverse posses- sion in subordination only to United States to assert such possession as against another claimant, 20-538. Acquisition of title to part of building by ad- verse possession, 12-870. ' ' Acquisition of title to mines by adverse pos- session, 6-142. Acquisition of title to land within right of way of railroad by adverse possession, 2-718; 10-1001. Adverse possession against husband as bar to wife's dower, 9-149. Width of highways acquired by adyer^e user, 2-973. ' AFFIDAVITS — epntimie4, > NoTARy PuBUC, see that title. Oatpb and Affirmationb, see that title. For receivers, see Receivebs. For search warrants, see Searches and Seizures. By sureties' on appeal bonds, see Appeal and Erkor. Verification of petition for divorce, see Di- vorce. Sufficiency of affidavit or oath made by at- torney of party to proceeding, 7-49. Affidavit or complaint upon information and belief as basis for warrant or injunc- tion, l-653j 1^-817, Sufficiency of " affidavit made before magis- , trftte " >vithjp fedgj-al stfitijte ^elating to interstate extradition, 16-1100. AFFIRMATIONS. See Oaths and Affirmations. AFFBAY. Mobs, see that title. RiPT, ^e t!(at title,. AFFBEIGHTMENT. See Ships and Shipping. ADVERTISEMENTS. Validity of statutes prohibiting use of flag or other governmental symbol for ad- vertising or commercial purposes, 4- 270; 10-528. Municipal control of advertising, 16-699. APVICE. As defense to action fflr malicious prpspcu- tion, see Malicious Prosecution. Suicide, advising commission of, see Suicide. Disobedience of subpoena, advising, see Con- tempt. AFFECTION. Alienation of affections, see Husband and Wife. As consideration for bill or note, see Bills AND Notes. "AFTER THE FIRE." As phrase in insurance policy, see Insurance. "AGAINST THE PEACE AND DIGNITY." Jfecessity that each count contain allegation, see Indictments and Informations. AGE. Allegation of in indictment for rape, see Rape. Estoppel of infant-hy misrepresentation as to, see Estoppel. Family records to p\ow, see EVIDENCE. Time of arrival at specified age, 9-269; 17- 906. Competency of witness to testify as to his own age, 16-592. AFFIDAVITS. For attachment, see Attachment. Of jurors to show misconduct, see Jury and Jury Trial. Of newly disteovered evidence on application for new trial, see New Trial. AGENCY. Brokers, see that title. Consular Agents, see that title. Corporations' agents, see Corporations. Deed deliverjed to agent, see Deeds. Embezzlement by agent, sea Embezzlement. AGENCY. AGENCY — continued. Employment agencies, statutory regulation of , see Employment Agencies. Factobs, see that title. Foreign corporation's duty to appoint agent for service of process, see Corporations. Gifts from principal to agent, see Gifts. Grantor as agent of grantee to accept deed, see Deeds. Insurance agents, see Inswrance. Labor combinations' liability for agents, see Labob Combinations. Liquors purchased by infant for another, see Intoxicating Liquobs. Master's liability for acts of servant, see JIaster and Servant. Motor vehicle owner's liability for acts of driver, see Motor Vehicles. Partnership, see that title. Possession by agent permitting suit to quiet title, see Quieting Title — Removal OF Cloud. Public oflBcers' liability for acts of subordi- nates, see Public Offioees. Set-off of claim against agent, see Set-off and Counterclaim. Statute of frauds as affecting acts of agent, see Frauds, Statute of. Ticket agents, see Cabbieks. Trade union's liability for acts of agents, see Labor Combinations. Trust implied from purchase by agent in his own name, see Trusts. 1. Persons Who Abe Agents. 2. Authority of Agent Generally. 3. Liability of Pbincipal for Toets or Crimes of Agent. 4. Personal Liability op Agent. 5. Denial of Principal's Title. 6. Undisclosed Principal. 7. Evidence. 1. Persons Who Abe Agents. Who are agents within meaning of factors' acts, 18-9L Who is " agent " within statute providing for service of process on agent of for- eign corporation, 19-200. 2. Authority of Agent Generally. Power of agent to sell as including power to barter or exchange, 10-421. Authority of traveling salesman as to collec- tion of accounts, 7-650; 14-858. Authority of agent, in absence of express in- structions, to receive payment of debt by check or draft, 9-1198. Implied authority of officers, agents, or ser- vants to contract for medical, surgical, or other attendance or supplies foi- sick or injured persons, 3-570, Authority of agent shipping goods to enter into contract limiting liability of car- rier, 1-676; 19-806. Liability of agent eicdcuting contract in name of principal without authority, 3^219. AGENC\' — continued. Ratification, as principal, of act of another representing himself to be agent, 13- 271). Effect of retention by principal of benefit of loan procured by agent without author- ity, 3-1145. Right of agent in possession of personalty to maintain trover for its conversion by stranger, 18-572. Subrogation of agent to rights of principal, 17-204. 3. Liability of Principal for Tobts or Crimes or Agent. Liability of principal or master for negligent or tortious acts of insane agent or ser- vant, 4-135. Liability of principal for act of agent in in- stituting malicious prosecution or caus- ing false arrest or imprisonment, 1-723. Liability of owner of automobile for acts of his chauffeur or agent, 10-732; 12-972. Liability of vendor for sale of adulterated article by agent or servant, 17-135. 4. Personal Liability of Agent. Personal liability of agent for breach of war- ranty, 19-773. Personal liability of agent or servant of liq- uor dealer for violation of liquor law, 19-582. Right of action against agent after judgment against principal, 17-614. 5. Denial of Principal's Title. Right of agent to deny title of principal to moneys or property received as agent, 8-570; 13-1184. 6. Undisclosed Principal. Right of agent of undisclosed principal to sue on contract made in his own name, 6- 556. Right of undisclosed principal, who is not sole party in interest, to sue on contract made by agent, 13-955. Right of vmdisclosed principal to enforce con- tract involving personal trust and con- fidence in agent, 15-238. Liability of undisclosed principal on contract under seal, 3,980. Liability of undisclosed principal upon nego- tiable paper, 12-679. Right of action against undisclosed principal after judgment against agent, 8-1026. 7. Evidence. Lack of possession by agent of evidence or in- debtedness as evidence on question of his authority to receive payment, 19- 666. Admissibility in evidence of agent's declara- tions or admissions, not made contem- poraneously with occurrence or transac- tion, 3-621; 13-859. INDEX TO NOTES, 1-20 ANN. CAS. AGGRAVATION OF DAMAGES. See Damages. AGISTMENT. See Animals. AGBEED CASE. Court's power of interference upon submis- sion of controversy or agreed case, 11- 148. AGREEMENTS. See CONTBACTS. ALIENS — contimied. Federal control of aliens after their arrival, 16-1069. Bight of alien to take estate as tenant by curtesy, 7-504. Estoppel of grantor in deed to deny title of alien grantee on ground that latter can- not hold property, 13-532. Right of nonresident alien to maintain action for death by wrongful act, 2-682; 9-1180. Right of alien to act as executor or adminis- trator, 3-988. Right of administrator of alien to sue for lat- ter'g death by wrongful act, 12-223. Treason by domiciled alien, 8-77. Fitness of alien for naturalization as deter- mined by moral or intellectual qualifica- tions, 16-281. AGRICULTURE. Cnops, see that title. Farming, see the cross-references under that title. Landlokd and Tenant, see that title. Manure, see that title. Prohibition against long leases of agricultural lands, see Landlord and Tenant. Thresher's liens, see Liens. AIDERS AND ABETTORS. Generally, see Accessories and Other Par- ticipants IN Crime. Aiding disobedience of subpoena, see Con- tempt. ALCOHOI.. Intoxicating Liquors, see that title. ALIAS. Necessity of proving, see Names. ALIBI. Burden of proof and sufficiency of evidence of alibi in criminal cases, 8-1189. ALIENATION OF AFFECTIONS. See Husband and Wife. ALIENS. Jurisdiction of action against foreign sover- eign or foreign state, see Courts. Laws confining licenses to citizens, see Li- censes. As witnesses, see Witnesses. ALIGHTING. From cars of carriers, see Carriers. ALIMONY AND SUIT MONEY. Bankruptcy of husband as affecting, see Bankruptcy. Ne exeat by wife, see Ne Exeat. Right of wife to alimony where divorce is granted against her, 20-24. Right to alimony of wife confined in prison or other institution where she is sup- ported without cost to herself or her estate, 13-752. Right of husband to alimony in action for di- vorce, 19-1142. Recovery of alimony or allowance by wife in matrimonial action where both parties have committed adultery, 15-376. Necessity and sufficiency of proof of marriage ■as prerequisite to allowance of tempo- rary alimony, 10-558. Power of court to decree alimony and coats against defendant not personally served, 2-819; 14-362. Power of court to award alimony in suit to set aside divorced decree, 19-455. Allowance of temporary alimony or suit money in matrimonial action pending appeal, 3-51 ; 15-229. Allowance of alimony in gross sum, 1-224. Power of court to vest title to husband's property in wife as alimony, 5-469. Life of decree for permanent alimony, 2-915. Power of court to modify decree for alimony after life of decree, 5-940. Power of court to modify decree for alimony based upon agreement of parties, 13- 296. Enforcement of decree for aliraonv by action at law, 3-579; 10-547; 20-1068'. Decree for alimony as lien on realty, 9-90' 18-565. ALLEYS — ANIMALS. ALIJIONV AND SUIT MONEY — continued. Assignability of alimony, 10-393. Effect on decree for alimony of remarriage of divorced wife, 11-523. Power of court to grant alimony pendente lite and counsel fees in action to annul marriage, 5-380; 20-1347. ALLEYS. As streets, see Streets and Highways. AI.I.O'WANCES. Alimony and Suit Money, see that title. ALTERATION. Of boundaries, see Boundabies. Of judgments, see Judgments. AMORTIZATION. See Life Estates. AMOUNT IN CONTROVERSY. Circuit Court's jurisdiction as affected by, see United States Coxjbts. Garnishment proceedings as affected by, see Garnishment. Interest accruing after suit brought as ele- ment in determining, see Interest. For purpose of appeal, see Appeal and Erroh. Inclusion of interest accruing after suit ia brought in determining amount in con- troversy, 13-396. Doctrine de minimis non curat lex as appli- cable to fractions of money, 18-691. AMUSEMENTS. See Theatres and Public Eesokts. ALTERATION OF INSTRUMENTS. Admissibility of secondary evidence to prove contents of instrument, see Evidence. Bills and Notes, see that title. Wills as affected by erasures, see Wills. Drawing lines through or across part of in- strument as material alteration thereof, 18-415. Insertion of name of attesting witness as ma- terial alteration of instrument, 17-757. Implied authority to fill in blanks so as to complete signed instrument, 2-331. Effect of alteration of deed by grantor after delivery and without consent of grantee, 10-459. Effect of alteration of negotiable instrument by stranger to contract, 18-223. Admissibility of parol evidence to show un- authorized alteration of written instru- ment, 12-985. AMENDMENTS. Of by-laws of benefit society, see Benevolent or Beneficial Associations. Of constitutions, see Constitutional Law. Of indictments, see Indictments and Infor- mations. Of judgments, see Judgments. Of oflBcers' returns, see Sheriffs and Con- stables. Of pleadings, see Pleading. Of statutes, see Statutes. Of verdicts, see Trial. AMNESIA. Caused by personal injuries, see Witnesses. ANCHORING. Vessels, see Ships and Shipping. ANCIENT DOCUMENTS. See Evidence. ANCILLARY PROBATE. Of wills, see Wills. " AND." Construction of " and " as " or " and vice versa in cons.truing will, 19-922. ANIMALS. 1. As Property. 2. Ownership. 3. Sale or Mortgage. 4. Injuries by Animals. 5. iN.TURiEs to Animals. 6. Remedies against Trespassing Ani- mals. 7. E strays. 8. Distrained and Impounded Animals. 9. Destruction of Diseased Animals. 10. Humane Statutes. 11. Gift for Benefit of Animals. 12. Description of Animals. Assignability of cause of action for killing, see Assignments. Carriers of live stock, see Carriers. Cattle guards, see Railroads. Dogs barking as nuisance, see Nuisances. 10 INDEX TO NOTES, 1-20 ANN. CAS. ANIMALS -^ coiitinued. Exemption of horses from execution, see Ex- ecutions. Fences, see that title. Fire insurance policy covering, see Insur- ance. Fish, see FiSH and Fisheries. Frightening of hdrsfes by railroads, see RAIl- EOADS. Game and Game Laws, see that title. HOBSE Racing, see that title. Horses frightened by trailis, 9ee Railroads. HoksesHoEhs, see that title. Insurance of, see Insurance. LivBET Stable Keepers, see that title. Manure, see that title. Municipal control Of, see Municipal Corpo- rations. Runaway horse and defective highway caus- ing injury, see Streets and HMhwats. Stock yards as subject to regulation, see Stock Yards. Taxation of, see Taxation. Trespass by on unfenced lands, see Fences. 1. As Propertt. Dogs as subject of larceny, 13-81. 2. Ownership. Title to offspring of animals, 14-338. Brands on animals as evidence of ownership, 12-414. 3. Sale or Mortgage. Implied warranty by seller that animal is fit for breeding purposes, 19-874. Mortgage on animals as including increase, 13-100. 4. Injuries by Animals. Liability of owner of domestic animal for in- juries inflicted on trespasser, 17-563. Duty and liability of master to servant with respect to animal furnished by him to servant, 19-863. Duty of owner of animal to disclose vicious propensities to bailee, 18-814. Constitutionality of statute making owner liable for ddmage by ddgs, 13-847. Provocation by plaintiff as defense to action for injuries by dog, 15-165. Liability of owner for injuries caused by run- away horse, 5-877; 10-865; 17-812. Liability of owner of animals for communica- tion of disease by them to other ani- mals, 15-1002. Liability of owner for injuries committed by animals unlawfully on highway, 14-624. Liability for injuries by wild dfaimals, 14-81. Necessity for knowledge by Owner of vietotis- ness of domestic animal, 1-205. Knowledge of owner as to viciousness af ani- mal in action for personal injuries caused by dog, 4-1^7 ; 20-72. Knowledge of viciousness of animal by agent, servant, etc., as imputable to owner, 18- 673. ANIMALS — continued. Joint or several liability of owners of animals doing damage jointly, 8-1072. 5. Injuries to Animals. Liability of railroad for killing dog, 3-275; 20-918. ]?uty of railroad to keep lookout for animals on track on fenced roads or where no duty to fence exists, 3-591. Liability of carrier of live stock for injuries to sam^, 1-158. Validity of statute imposing penalty on rail- road for failure to pay for injury to animal within sjieeified time, 17-632. Assignability of cause of action against rail- toad Company for negligent killing of domestic animal, 7-502. Measure of damages for injuries to live stock, 5-416; 13-1141. Danger of injury to persons or live stock as element of damage to land by construc- tion of railroad, 19-929. 6. Remedies against Trespassing Animals. InjUnctioh to restrain tl-espass by aninlals, 14-550. The right to kill trespassing animals, 1-193 ; 16-631. 7. ESTRATS. When animal is " estray " or " at large," 9- 284. 8. Distrained and Impounded Animals. Forfeiture and sale of distrained and im- pounded animals, 1-993. 9. Destruction op Diseased Animals. Validity of statute or ordinance providing for destruction of diseased animals without compensation, 15-48. 10. Humane Statutes. Validity of statute prohibiting docking of horses' tails or USe of horses With docked tails, 13-1032. Validity of statutes authorizing seizure, etc., of animals by humane society, 14-916. 11. Gift t-oE Benefit Ot Animals. Gift for 'benefit of animals as charity, 17-139. 12. Description op Animals. Sufiiciency of indictment for latceliy of ani- mal and of proof in support thereof with respect to description of animal 17-735. ANNUITIES. Interest upon arrearages of annuities, 10-339, EiTect of death of annuitant before purchase of annuity, 10-487. Right of annuitant to enforce contract for annuity to which he is not partv. 20- 787. ' ANNULMEITT — APPEAL AND EKEOK. 11 ANNULMENT. Cancellation and Rescission, see that title. Of marriage, see Mabbiage. ANSWER. Generally, see Pleading. Admissions in answers in equity as evidence, see Evidence. Necessity that defendant in condemnation proceedings answer, see Eminent Do- main. ANTI-TRUST ACTS. See Monopoues and Cobporate Tbtjsts. APARTMENTS. In inns, see Inns, Boabdinq Houses, and Apabtments. APOTHECARIES. See Dbugs and Dbuggists. APPEAI. AND ERROR. 1. Right of Appeal. 2. jubisdiction and powebs of reviewing COUBT. 3. Appealable Oedees and Judgments. 4. Time to Appeal. 5. Paeties. 6. Bond. 7. Notice. 8. Examination of Case on Appeal. 9. Effect of Revebsal. 10. Escape of Convicted Pebson. 11. Dismissal of Appeal. Alimony pending appeal, see Alimony. Amol'nt in Contboveest, see also that title. Bills of Exceptions, see that title. Ceetioeabi, see that title. Costs pending appeal, see Costs. Decision upon sufficiency of evidence as res adjudicata on second appeal, see Judg- ments. Depositions tafoeil pending appeal, see Depo- sitions. In disbarment proceedings, see Attorneys at) Law. For discharge of prisoner sentenced exces- sively, see Criminal Law. Finality of order in habeas corpus proceed- ings, see Habeas Cobpus. Habeas corpus as mode of review, see Habeas COEPUS. Habeas corpus proceeding, finality of order in, see Habeas Cobpus. Jeopardy in appeal by government After ac- quittal, see Criminal Law. In mandamus, see Mandamus. New Trial, see that title. APPEAL AND ERROR — coniirmed. Prohibition as mode of review, see Prohibi- tion. Reversible error, see New Teial. Review of assessment under statutes, see Taxation. Review of expulsion of member of religious society, see Religious Societies. Search warrant proceedings, see Seaeches and Seizuees. Taxation as costs of expense of procuring bond, see Costs. In United States courts, see United States Courts. 1. Right of Appeal. Validity and enforceability of stipulation waiving right to appeal, 19-1056. Constitutionality of statutes abridging right of appeal, 5-860. Implied authority of attorney to prosecute proceedings for review, 16-928. 2. Jueisdiction and Powers of Reviewinq Coubt. Right to review separate causes on single ap- peal or writ of error, 17-289. Review of proceedings of courts-martial by civil courts, 17-445. Jurisdiction of civil court to review decision of ecclesiastical tribunal with reference to consolidation or reunion of churches, 19-289. Power of appellate court to consider evidence not produced in court below, 9-951. Power of reviewing court to remand criminal case for proper judgment, 3-1024. Eight of appellate court, upon granting new trial, to limit issues to be tried by jury, 7-116. Power of appellate court to enter final judgi ment upon reversing civil cause for in- sufficiency of evidence, 8-873. Jurisdiction of appellate court after remand, 11-865. 3. Appealable Okdeks and .Judgments. Order dismissing action as frivolous and vexatious, as final or interlocutory for purposes of appeal, 18-394. Amount in controversy for purposes of ap- peal from judgment in consolidated ac- tion, 15-492. Right of appeal from ex parte order, 10-38. Riglit of plaintiff to appeal from voluntary judgment of nonsuit, 9-631. Right of party to review judgment in his favor, 3-510. Right of party who recovers judgment for less than his demand to appeal after satisfaction of judgment, 10-79. Finality of deotee adjudicating equities but reserving settlement of accounts for re- port of master, 5-176. Appealability of order granting or refusing writ of assistance, 10-1042. 12 INDEX TO NOTES, 1-20 ANK CAS. APPEAL AND ERROR — continued. Appealable judgments and orders in eminent domain proceedings, 16-1004. Appealability of judgments in contempt un- der appeal statutes, 3-759; 17-321. Review of chancery decree for costs only, 6- 100. Right to appeal from final decree of divorce, 13-837. Review of salvage award, 20-561. Eight to review void judgment, decree, or or- der, by appeal or writ of error, 20-277. 4. Time to Appeai.. Computation of time for appeal or writ of error as affected by motion for new trial or rehearing, 3-630. Effect on time to appeal of death of judgment plaintiff, 7-393. 5. Pabties. Person not party or privy to judgment below as proper party defendant to writ of error, 5-630. 6. Bond. Necessity that executor or administrator give bond on appeal from revocation of pro- bate of will or grant of letters, 20-416. Requirement or permission of new or addi- tional appeal or supersedeas bond In appellate court, 10-804; 17-378. Effect on appeal bond of failure of sureties to make proper affidavit of property qualification, 12-586. Construction of condition in appeal bond re- quiring sureties to pay judgment of ap- pellate court, 5-90. Right to recover attorneys' fees in action on appeal bond, 15-723. Effect of appeal with bond upon self-execut- ing judgments, 6-775. Effect of appeal and supersedeas bond on in- junction, 4-231. 7. Notice. Parties entitled to notice of appeal, 13-181. Time for filing notice of appeal, 9-731. 8. Examination op Case on Appeal. Estoppel of party to appeal to assume atti- tude inconsistent with that taken by him in lower court, 8-487. Review on appeal from final judgment, of in- terlocutory appealable order, decision, etc., not theretofore appealed from, 11- 552. Eight to question suiiiciency of complaint for first time on appeal, 3-545. Necessity for motion for new trial in order to obtain review on appeal of sufficiency of evidence in jury cases, 4-304. APPEAL AND 'ERROR — continued. Validity and construction of statutes requir- ing appellate courts to weigh evidence, 3-685. 9. Effect of Revebsal. Effect of reversal of joint judgment where all defendants do not appeal, 10-80. Effect of reversal of judgment authorizing sale on title to land purchased at judi- cial sale by attorney of party to pro- ceeding, 14-185. 10. Escape of Convicted Person. Escape of person convicted of crime as affect- ing his proceedings for review, 3-512; 13-497. 11. Dismissal of Appeal. Right of appellant to dismiss appeal, 2-794; 11-966. Power of appellate court to award costs on dismissal of appeal for want of juris- diction, 13-1048. APFEAI. BONDS AND UNDER- TAKINGS. See Appeal and Ebbob. APFEABANCES. Necessity that defendant in condemnation proceedings appear and answer, 9-470. Appearance for purpose of moving to act aside attachment for lack of jurisdic- tion aa general or special appearance, 18-913. Waiver of special appearance by pleading to merits, 4-290. AFFUANCES. Injuries to servants from, see Masteb and Sebvant. Meaning of term " appliance " as used in law of master and servant, 19-151. APFLICATION. For insurance, see Insurance. Of payments, see Payment. APPOINTMENT. Of executors or administrators, see Execu- TOBS and Administeatobs. Judges, statutes imposing appointing power on, see Judges. Power of, see Powers. Of public officers, see Public Ofpioebs. Of receivers, see Receivers. Of trustees, see Trusts and Trustees. APPRAISAL — ARRAIGNMENT. 13 APPRAISAt. Specific performance of contract at price to be fixed by, see Specific Pebtormance. Kecessity that all arbitrators, appraiaers, or referees join in award, 16-507. Qualification of appraisers of loss under fire insurance policy, 5-336. APPKENTICES. Statute authorizing state to bind out infant to service, see Infants. Liability of infant on covenant in apprentice- ship deed, 20-779. APPROPBIATIONS. Of corporate funds for political purposes, see Larceny. Appropriations of public moneys for private purposes, 1-935. Power of municipality to appropriate money for defense of its ofiicers, 3-435. Power of municipality to appropriate moneys for celebrations and entertainments, 11- 976. A'alidity of statute appropriating public funds for fairs, 9-52. Right of taxpayer to maintain action to re- cover money illegally paid out of public* treasury, 19-776. ARBITRATION AND AWARD — continued. Necessity of rehearing and notice thereof be- fore umpire or third arbitrator, 16-557. Submission to arbitration as condition prece- dent to suit on insurance contract con- taining stipulation for arbitration, 8- 171. Failure to secure award after submission to arbitration as affecting right of insured to sue on insurance policy, 8-302; 20- 253. Amendment of pleadings before arbitrator, 20-603. ARCHITECTS. Architect's property in plans furnished under contract or in competition, 2-714. Right of architect to compensation as de- pendent on his estimate of cost of struc- ture, 16-985. Right of architect to mechanic's lien, 9-97. Conclusiveness of decision of architect or en- gineer under working contract, 10-575. Necessity of pleading excuse for nonproduc- tion of architect's or engineer's certifi- cates, made condition precedent to right to require payment, in action for work performed under woi-king contract, 5- 721 J 19-905. AREA WAYS. Use of sidewalks for, see Stbeet's and High- ways. APPROVAL. By executive of proposed constitutional amendment, see Constitutional Law. APPURTENANCES. Easements appurtenant as passing by impli- cation, see Easements. Of vessels, see Ships and Shipping. ARBITRATION AND AW^ARD. AccoBD AND Satisfaction, see that title. Oompbomise and Settiement, see that title. Release and Dischabqe, see that title. Right of municipality to arbitrate or com- promise disputed claim, 18-1030. Enforcement of agreements to arbitrate, 1-31. Right of arbitrator, judge, or the like, to call witness on own initiative, 18-163. Refusal of arbitrators to receive material tes- timony as ground for setting aside award, 8-510. Necessity that all arbitrators, appraisers, or referees join in award, 15-507. ARGUMENT OF COUNSEL. See TEL4.L. ARMS. See Weapons. ARMY AND NAVY. Condition in will against entering, see Wills. Contraband of Wab, see that title. Crimes committed on military reservations, jurisdiction of, see Criminal Law. Discharge of surety on bail bond by enlist- ment, see Bail. Militia, see that title. Trial in military court as bar to prosecution in civil court and vice versa, see Crimi- nal Law. Right of infant unlawfully enlisted to re- lease from detention of military or naval authorities, 16-129. ARRAIGNMENT. Of accused, see Criminal Law. 14 INDEX TO NOTES, 1-20 ANN. CAS. ARREST. ExTBADiTioN, See that title. False arrest, see False Imprisonment. False Imprisonment, see that title, Habeas Corpus, see that title. Homicide in resisting, see Homicide. Impkisonment for Debt and in Civil Ac- tions, see that title. Of. passengers, see CArniERS. Warrants, see that title. Time when peace officer may arrest without warrant for misdemeanor coinmitted in his presence, 9-623. Eight and duty of bystander, when summoned either directly or by hue and cry, to assist officer in making arrest without warrant, 18-932. Right of private person to break open doors in attempt to make arrest, 8-250. Right of officer to kill misdemeanant in order to effectuate arrest, 4-760. Right of person attempting arrest to kill escaping felon, 17-900. Immunity of prisoner from arrest on civil process after interstate extradjtiqn, 17- 619. Propriety and effect of taking prisoner, on arrest, to office of prosecuting attorney, 20-1123. Waiver of illegal arrest, 16-461. What constitutes offense of resisting officer, 17-401. ARSON. Conspiracy of insured to burn property, see Insurance. Acts constituting attempt to commit arson, 8-630. Burning property of one spouse by other as arson, 16-867. Unfinished dwelling as dwelling house within law of arson, 15-547. Proof of corpus delicti in proseciition for ar- son, 13-803. Ownership of property burned as affecting the crime of arson, 1-62 L Charge of burning property or of arson as libel or slander, 17-273. ASPORTATION. Allegation of, see Robbery. ASSAULT AND BATTERY. On guests at inns, see Inns, Boarding Houses, and Apartments. Injury to third person caused in repelling at- tack as creating criminal liability, see Criminal I>aw. On passengers, see Carriers. ASSAULT AND BATT'E^Y — continued. Rape, see that title. On servant by superior servant, see Master and Servant. Pointing unloaded firearm as assault, 13-484. Injury to third person as assaiilt with intent to kill or murder, 8-789. Eight of person assaulted on his own prem- ises to repel attack without retreating, 5-999; 15-51. Intoxication as defense to prosecution for as- sault with intent to kill, 18-530. Voluntary agreement to fight as defense to action for damages for assault, 17-1050. Trespass as justification of assault and bat- tery, 1-888. Right to recover exemplary damages for as- sault, llTn75. Provocation in mitigation of damages for as- sault. 1-899; 19-76?. ASSEMBLY. Legislature, see that title. Unlawful Assemhlt, see that title. ASSESSMENT. Of hajik stock, see Banks and Banking. Benevolent or Beneficial Associations, see that title. • Of dwages, see Damages. Insurance, see that title. , Special or Local Assessments, see that title. Of taxes, see Taxation. ASSETS. Of bankrupt, see Bankruptcy. Of banks, see Banks and Banking. Of corporations, see Corporations. Of decedents' estates, see Executors and Ad- ministrators. Marshaling, see Marshaling Assets. Of municipality, apportionment of in case of division of territory, see Municipal Corporations. Of mutual insurance company, distribution of, see Insurance. Of partnership, see Partnership. In hands of receivers, see Receivers. ASSIGNMENTS. Of alimony, see Awmony. To attorneys, see Attorneys at Law. Bankruptcy as affecting assignment of future earnings, see BaI^kruptcy. Check as assignment of funds of drawer, see Checks. Of contract for purchase of land as within statute of frauds, see Frauds, Statute OF. ASSIGNMEi^TTS FOE CEEDJTOKS — ATTAOflMENT. 15 ASSIGNMENTS — continued. Of insurance policies, see Insurance. Of leases, see Landlord and Tenant. Set-off of assigned claims, see Set-QFF AND COUNTEBCIjAIM. Assignability of executory contracts as af- fected by the element of personal trust and confidence, I-S53; 15-370. Interest taken by assignee of executory con- tract for sale of land, 5-419. Validity of assignment of unearned wages, 5- 64. Assignment by public officers of unearned sal- ary or fees, 4-423 ; 10-63i6. Assignability of right of action for personal injuries resulting from negligence, 6- 444. Assignability of cause of action for destruc- tion of property by fire, 20-259. Assignability of cause of action against rail- road company for negligent killing of domestic animal, 7-502. Eights passing to assignee as incident to as- signment of judgment, 7-423. Assignability of contract not to engage in similar business, 16-261. Assignability of trademarks and trade names, 2-218." Scope and construction of statute prohibiting assignment of claim against United States, 20-1119. Implied warranty of validity of patent on as- signment thereof, 18-58. Manner of pledging or assigning book ac- count, 18-446. Priority as between mechanic's lien claimant and assignee of amoujit due contractor, 19-435. Priority of successive assignees of chose in action as dependent upon notice to debtor, 17-442. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Bankruptcy, see that title. Insolvency, see that title. Rights of secured creditors as to dividends on assignment for benefit of creditors, 2-274; 13-1089. Eight of trustee in bankruptcy or assignee for benefit of creditors to sue for par- tition of insolvent's property, 16-560. Life insurance policy as passing to assignee for benefit of creditors or trustee in bankruptcy, 20-1186. ASSISTANCE. Champerty and Maintenance, see that title. Of paqsepgers iby carriers, see Carriers. Suicide, assisting conimission of, see , Suicide. ASSISTANCi;, WRTT OF. Appealability of order granting or refusing writ of assistance, 10-1042. ASSOCIATIONS. Benevolent or Beneficial Associations, see that title. Unincorporated associations, see Societies AND Unincorporated Associations. ASSUMPSIT. Eight to sue in assumpsit for value of con- verted property used or consumed by tortfeasor, 17-975. ASSUMPTION OF RISK. By servants, see Master and Servant. ASYLUMS. See Hospitals and AsYLUMd. ATTACHMENT. Chattel mortgage lien waived by, see Chattel Mobjcqages. Of decedents' property, see Executors and Administrators. Garnishment, see that title. As malicious prosecution, see Malicious PiROSECUTIOlSr. Attachment against national bank, 3-1155. Liability of cars of foreign railroad to attach- ment or garnishment, 2-340; 11-910. Liability of intoxicating liquors to execution, attachment, or replevin, 17-300. Equitable interest in personal property as subject to attachment, J 1-669. Attachment of funds held by trustee in bank- ruptcy, 13-810. Right of creditor to attach property of dece- dent's estate under writ against execu- tor or administrator, 5-912. Liability of propiisspry note to seiznre ^.nd sale under attachment, 15-980. Fraudulent sale or conveyance of property as ground for attaelirpent, 5-618. Exemption of money " due " or " to be paid " from attachment or other process as ap- plicable to money after payment, 7-75.'). Construction of statute exempting seamen's wages from .ittnchment, 15-130. Effect on affidavit for attachment of state- ment of grounds in {ilternative or (^is- jimctive, 11-27; 20-576. Variance in statement of claim between nfli- davit for attachment and declaration, 3-186. 16 INDEX TO NOTES, 1-20 ANN. CAS. ATTACHMENT — continued. Kight of claimant of attached property to in- tervene, 18-594. Giving of statutory bond to dissolve attach- ment as bar to motion to quash, 12-170. Appearance for purpose of moving to set aside attachment for lack of jurisdiction as general or special appearance, 18- 913. Eight to recover counsel fees as damages upon dissolution of attachment, 10-954. Waiver of attachment as against third per- sons by enlarging original claim, 18- 1022. ATTEMPTS. Generally, see Criminal Law, and the vari- ous criminal titles. Arson, see Akson. Averment of overt act, see Indictment and Infobmation. To bribe or influence juror as contempt, see Contempt. To dissuade witnesses from testifying, see Embkacbky. Subornation of perjury, see Pebjuet. Suicide, see that title. ATTENDANCE. Of witnesses, see Witnesses. ATTENDANTS. Power of court to appoint, see Coubts. ATTESTATION. Of deeds, see Deeds. Of wills generally, see Wills. "Attestation," when used with reference to will, as including " subscription," 16- 1091. ATTORNEY-GENERAL. Prosecuting Attoeneys, see that title. Quo Waeranto, see that title. ATTORNEYS AT LAW. 1. Admission to Bab and Practice or Law. 2. Rights and Duties op Attorney and Client Inter Se. 3. Compensation op Attorney. 4. Lien of Attorney. 5. Notice to Attorney. 6. Contracts to Pbocure Legal Business. 7. Disbarment. Admissions of, see Evidence. AfSdavits and oaths by, see Affidavits. ATTORNEYS AT hAW — continued. Affidavits taken by attorney as notary, see Notary Public. Argument of cafses on trial, see Trlal. Briefs, see Briefs of Counsel. Communications to as privileged, see Wit- nesses. Fees as costs of party appearing for himself, see Costs. \ Fees of attorneys as claims in bankruptcy, see BANKEUPfj3Y. Foreign laws proved, by, see Fobeign Laws. Judgments entered fty negligence or mistake of attorney, see Judgments. Limitations against actions to recover money collected by attorney, see Limitation op Actions. Partnership in practice, see Paetnebship. Statements made by attorneys in judicial pro- ceedings as defamatory, see Libel and Slander. Survival of action for negligence of, see Abatement and Revival. Trial and matters relating thereto, see Teial. Verdict, right to receive, see Teial. As witnesses, see Witnesses. 1. Admission to Bab and Practice op Law. Legislative or judicial power to determine qualifications for admission to bar, 10- 198. Residence as affecting right to admission to bar, 17-878. Right of corporation to practice profession or trade for which license is required, 19- 882. What constitutes practicing law, 18-658. 2. Rights and Duties of Attorney and Client Intei^ Se. Eight of attorney to employ associate counsel or assistants at expense of client, 15- 1180. Right of client to dismiss action without at- torney's consent, 1-247. Validity of stipulation in contract of employ- ment between attorney and client pro- hibiting client from settling litigation without consent of attorney, 13-444. Implied authority of attorney to prosecute proceedings for review, 16-928. Summary jurisdiction to compel attorney to pay over money as applicable only where relation of attorney and client ex- ists, 18-115. Right of attorney to become surety for client, 18-837. Burden of proof as to good faith of transac- tion in case of assignment or conveyance by client to attorney, 18-123. Negligence of attorney as excuse for failure to bring suit within time limited by statute, 20-397. Burden of proof in action against attorney for negligence or wilful violation of duty, 2-603; 14-342. AUCTIONS AND AUCTIONEEES — AWARDS. 17 ATTORNEYS AT LAW — continued. Survival of action for negligence of attorney, 6-651. Eight of client to discharge attorney at will, 19-592. 3. COMPEFTSATION OF ATTOBNEY. Validity of agreements for compensation be- tween attorney and client, 1-299. Right of attorney to retaining fee, 19-489. Right of attorney to contingent fee as af- fected by settlement between client and adversary, 18-1115. Eight of assistant prosecuting attorney ap- pointed by court to compensation for services, 17-336. Eight of attorney to recover for services beneficial to person not employing him, 12-776. Admissibility and necessity of expert evidence on question of value of attorney's ser- vices, 20-53. Liability of infant for services of attorney, 5-131. Validity and enforceability of provision in mortgage fixing attorneys' fees on fore- closure, 19-1068. Solicitation of business by attorney as for- feiture of right to compensation there- for, 10-842. 4. Lien of Attorney. Constitutionality of statute giving attorney lien on cause of action, 8-709. Lien for attorney's fees on land which is sub- ject-matter of litigation, 9-625. Attorney's lien as aflfected by fact that his client is trustee, 12-778. Sufficiency of notice by attorney to judgment debtor of former's lien on judgment, 12- 343. 5. Notice to Attobney. Notice to attorney as notice to client, 3-441. 6. CONTBACTS TO PBOCUBE LEGAL BUSINESS. Validity of contract by attorney with third person to procure legal business, 2-836; 17-690. 7. Disbarment. Power of courts to disbar attorneys, 5-990; 15-419. Disbarment of attorney for fraud in procur- ing license to practice, 20-212. Solicitation of employment by attorney as ground for disbarment, 17-627. Wrongful retention of money by attorney as ground for disbarment, 17-692. Criticism of decision of court as ground of disbarment, 15-205. Disbarment of attorney for act committed in another jurisdiction, 17-599. Disbarment of attorney as disqualification for public officer, 20-422. Vols. 1-20 — Ann. Cas. Digest. — 2. ATTORNEYS AT LAW — continued. Conviction of attorney for crime as condition precedent to disbarment therefor, 8-847. Acquittal of criminal charge against attorney as defense to disbarment proceeding for same oifense, 10-887. Right of attorney to be confronted with wit- nesses against him in disbarment pro- ceedings, 6-582. Right of attorney to review of disbarment proceedings, 10-544. AUCTIONS AND AUCTIONEERS. Judicial Sales, see that title. Right of action by highest bidder at auction sale for refusal of auctioneer to knock down property to him, 16-386. AUSTBAIilAN BALLOT ACTS. See Elections. AUTHORITY. Of agents, see Agency. Of servants, see Master and Servant. AUTHORS. Copyrights, see that title. AUTHORSHIP. Lettebs, see that title. Spelling, punctuation, and literary style as elements in identifying author of writ- ing, 20-1336. AUTOMATIC COUPLERS. Duty of railroad respecting, see Masteb and Servant. AUTOMOBILES. See Motor Vehicles. AWARDS. Arbitration and Award, see that title. In condemnation proceedings, see Eminent Domain. Damages, see that title. A t fairs, see Fairs and Expositions. For salvage services, see Ships and Shipping. 18 INDEX TO NOTES, 1-20 ANN. CAS. AAVNINGS. Liability of person maintaining awning, sign, etc., suspended over street, for pprsowil injuries caused by fall thereof, 10-718; 17-376. BAGGAGE. Of passengers generally, see Cabeieks. Of passengers on vessels, see Ships and Ship- ping. BAIIi. Habeas corpus by person admitted to, see Habbas Corpus. Power of clerk of court to take bail in crimi- nal cases, 6-951. Deposit of money in lieu of hail in criminal cases, 5-153. Bail as matter of right or of discretion, 1-12; 9-619. Whether liability of sureties on bail bond ends with coBviction of principal or con- tinues until execution of judgment, 3- 930; 13-569. Discharge of surety on criminal bail bond by enlistment of principal in military or naval service, 6-610. Validity of contract of indemnity from prin- cipal to sureties on bail bond, 16-1036. Calling accused and entering default upon record as conditions precedent to for- feiture of recognizance, 8-1020. Admissibility lof evidence of flight of accused person admitted to bail, 18-901. Time when court may remit penalty on for- feited recognizance, 28-1261. Action on criminal bail bond as civil or crim- inal proceeding, 10-^293^ BAIIilffENTS. Carrier's liability as bailee, see Cabriees. Conditional sales distinguished from, see Sales. Inns, Boarding Houses, and Apartments, see that title. LngERT ,Stable Keepers, see that title. Loans, see that title. Parlor and sleeping-car companies, see Cab- biers. Pledge and CollAtebai- Sppubity, see that title. Warehousemen, see that title. Unauthorized use of chattel by bailee as con- version, 3-470 ; 12-692. Liability of bailee for loss by burglary, 4-1085. Liability of bailee for theft of servant, 1-96. Lialjility of proprietor of bath house for loss of property of patron, 8-91. Presumption froin loss of goods in possession of bailee, 1-23. BAILMENTS — continued. Eight of bailee to recover for injury to or loes of property, 14-635. Liability of bailee under st)ecial contract to return bailment in good condition or pay its value, 15-162. Negligence of bailee as imputable to bailor in action by latter against stranger for in- jury to property, 18-537. Right of bailee to deny title of bailor, 19-521. Duty of owner of animal to disclose vicious propensities to bailee, 18-814. BAZ-IiOTS. See Elecjions. BAT.I. FliAYING. See Baseball. BANKRUPTCY. 1. Persons Subject to Bankbupjicy. 2. Jurisdiction of Courts. 3. iN^OLyENOT WITiHIN BANKRUPTCT LAW. 4. gpiiEDUfip; or Debts. 5. Effect of Adjudication. 6. Assets of Bankrupt. 7. Examination of Bankrupt. 8. Eights and Duties of Trustee. 9. Voidable Transfers. 10. Provable Claims. 11. Preferences. 12. Debts Entitled to Priority. 13. Effect of Discharge. 14. Eevival of Discharged Debts. Discharge as ^ffpcting SUipety on hojjd of bank- rupt, see Suretyship. Garnishment against trustee, see Garnish- ment. Insqlvency, see that title. Of insured on rights under iire policy, see In- surance. Eevival of barred debt by inclusion in sched- ule of liabilities, see Limitations of Actions. Of tenant as divesting landlord's lien, see Landlord and Tenant. 1. Persons Subject to Bankruptcy. Who is wage-earner within meaning of bank- ruptcy act, 20-979. Who is person " engaged chiefly in farming " within bankruptcy law, 16-511. Corporations subject to involuntary bank- Tupltcy under bankruptcy law, M-359. 2. Jurisdiction of Courts. Ancillary jurisdiction of bankruptcy courts, 17-973. Appellate jufisdiction of federal Supreme Court in bankruptcy proceedings, 16- 1016. BANKS AND BANKING. 19 BANKRUPTCY — continued. 3. Insolvency within Bankruptcy Law. When persons deemed insolvent within bank- ruptcy law, 11-449. 4. SCHBDULE OF DEBTS. SuflSciency of schedule of debts required by bankruptcy law, 10-742. 5. Effect of Adjudication. Bights acquired by garnishment proceedings as affected by bankruptcy of principal debtor, 18-382. Effect of bankruptcy on dower rights of bank- rupt's wife, 19-1087. 6. Assets of Bankrupt. Eight of action for tort in favor of bankrupt as passing to his trustee in bankruptcy, 12-940. Individual property of non-bankrupt partner as assets of bankrupt partnership, 13- 996. Life insurance policy as passing to assignee for benefit of creditors or trustee in bankruptcy, 20-1186. Membership ov sejat in stock or produce ex- change as assets in bankruptcy, 10-243. Contempt by bankrupt in failing to turn over property, 20-889. Time in bankruptcy proceedings when bank- rupt's title to property is divested, 9-544. 7. Examination of Bankrupt. Time for examination of bankrupt, 19-1039. 8. Eights and Duties of Trustee. Eight of trustee in bankruptcy or assignee for benefit of creditors to sue for partition of insolvent's property, 16-560. Duty of trustee in bankruptcy to pay taxes owing by bankrupt, 3-238. 9. Voidable Transfers. Right of trustee in bankruptcy to sue to set aside fraudulent conveyance by bank- rupt before reduction of creditors' claims to judgment, 5-804. Eight of creditor to set aside fraudulent transfer by bankrupt, 11-932. Application of partnership property to pay- ment of debt of individual partner as voidable transfer under Bankruptcy Act, 15-65. Set off by bank of deposit against debt due bank by depositor as voidable transfer under bankruptcy law, 15-307. 10. Provable CiiAins. Unliquidated claim for tort as provable in bankruptcy, 9-448. 11. Preifebences. Construction of clause in bankruptcy act avoiding preference where creditor had " reasonable cause to believe " preference was intended, 16-826. BANKRUPTCY — contirmed. 12. Debts Entitled to Priority. Attorney's fees as valid preference under bankruptcy act, 3-280. Deposit of public funds as preferred claim against insolvent bank, 8-116. 13. Effect of Discharge. Discharge in bankruptcy as subject to col- lateral attack in state court, 18-601. Effect of discharge in bankruptcy on claims for alimony and support of children, 2-268. Effect of discharge in bankruptcy upon as- signment of wages to be earned in fu- ture, 13-366. Effect of discharge in bankruptcy on liability for fraud or obtaining property by false pretenses or representations, 20-308. Effect of discharge in bankruptcy upon judg- ments for wilful and malicious injuries to person or property, 3-169; 12-1011. Effect of discharge in bankruptcy of indi- vidual partner upon liability for part- nership debts, 3-800. Effect of discharge in bankruptcy upon lia- bility of surety on bond, 3-65. 14. Revival of Discharged Debts. Part payment as new promise sufficient to re- vive debt discharged in bankruptcy, 19- 147. Unconditional promise sufficient to revive debt discharged in bankruptcy or insolvency, 9-646. When promise by bankrupt to pay debt must be made in order to revive deht, 7-972. BANKS AND BANKING. 1. Generally. 2. National Banks. 3. Savings Banks. Advance to shipper nn security of bill of lad- ing as entitling bank to goods, see Pledge and Collateral Security. Bank notes as money, see Money. Bills and Notes, see that title. Checks, see tbat title. Deposit as gift, see Gifts. 1. Generally. Acts constituting doing " banking " business, 18-829. Civil liability of bank director for makinct false report or statement as to bank's condition, 4-246. Criminal liability of officer of national bank for making false entries in books or re- ports, ?0-947. Power of bank cashier to release person liable on bill or note, 6-52. Bank's lien or set-off against deposit for debt due it by depositor, 2-206; 19-487. 20 INDEX TO NOTES, 1-20 ANN. CAS. BANKS AND BANKING — corettnued. Payment or transfer of deposit by bank upon oral order, 6-632. Deposit of public funds as preferred claim against insolvent bank, 8-116. Bunning of statute of limitations against ac- tion to recover deposit of money, 4-1146. Duty of bank depositor to examine pass book and vouchers, 17-122. Estoppel of bank to impeach account stated in pass book, 18-331. Liability of bank sending paper to drawee bank for collection, 8-372. Liability of bank receiving paper for collec- tion for sending same direct to payor or drawer, 5-658. Liability of bank for knowingly permitting improper withdrawal of trust funds, 12-669. Bank's liability for wrong payment notwith- standing 'bylaw, 1-100; 14-481. Eight of United States to recover money paid to bank which has cashed forged pension check, 16-1189. Eight of bank to recover money paid by mis- take, 1-632. State regulation of private banking, 10-903. Validity of statute making it crime to re- ceive deposit in insolvent bank, 20-1323. 2. Nationai, Banks. Attachment against national bank, 3-1155. Stockholders' right to inspect books, 1-130. Title of receiver to assets of national bank, 1-296. Liability of married woman to assessment on shares in national bank owned by her, 5-743. 3. Savings Banks. Savings bank trusts, 1-905; 14-924. Liability of savings bank for payment of wrong person, 2-259. Bank's liability for wrong payment notwith- standing by-law, 1-100; 14-481. BABBEBS. Civil Rights Acts, see that title. Duty and liability of barber to patrons, 15- 449. Statutory regulations of barbers, 15-260. BABBED DEMANDS. See Limitations op Actions. BABTEB AND EXCHANGE. Contracts of as within statute of frauds, see Fbauds, Statute op. Exchange of Peopeett, see that title. BASEBAI.I.. Baseball as a nuisance, 18-1094. BASTABDY. Exhibition of child to jury, see Evidence. Illegitimacy generally, see cross-references under Illegitimacy. Parent's right to recover for death of ille- gitimate child, see Death by Wrongpul Act. Eight to custody of bastard child, 17-474. Bastardy proceeding as civil or criminal in nature, 11-316. Eight of nonresident mother to maintain bas- tardy proceedings, 18-574. Right of married woman to maintain bas- tardy proceedings, 19-389. Discontinuance of bastardy proceedings as consideration for contract, 2-493. Power of executive to pardon person found guilty of bastardy, 16-322. BATHING BESOBTS. Public resorts generally, see Theatres and Public Resobts. Duty to patrons of proprietor of bathing re- sort or beach, 8-982. Liability of proprietor of bath house for loss of property of patron, 8-91. BATTEBY. See Assault and Batteet. BELI.. Duty of street railway to sound, see Street Railways. BENEFICIABIES. Benevolent or Benepicial Associations, see that title. Of insurance, see Insurance. Of trusts, see Trusts and Trustees. Under wills, see Wills. BENEVOLENT OB BENEFICIAL ASSOCIATIONS. 1. Jurisdiction op Superior Bodies. 2. By-Laws. 3. Nature of Insurance. 4. Liability for Dues or Assessments. 5. Forfeiture of Benefit Certificate. 6. Proof of Suicide of Insured. 7. Reinstatement. 8. Beneficiaries. 9. Recourse of Members to Courts. BEQUESTS — BIGAMY. 21 BENEVOLENT OR BENEFICIAL ASSO- CIATIONS — continued. Exemptions from taxation, see Taxation. Societies and Unincorporated Associa- tions, see that title. 1. Jurisdiction of Superior Bodies. Jurisdiction of superior over inferior bodies in benefit societies, 12-873. 2. By-Laws. Validity of amendments to by-laws of frater- nal benefit societies as applied to exist- ing members, 1-717; 10-625. Binding effect on member of benefit society, of by-law inconsistent with his contract of membership, 20-929. 3. Nature op Insurance. Kind of insurance which fraternal society has power to write, 15-290. 4. Liability for Dues or Assessments. Personal liability of members of benevolent or beneficial association for assessments or dues, 1-390. 5. Forfeiture of Benefit Certificate. Waiver of, or estoppel to deny, forfeiture of benefit certificate for violation of con- tract of insurance other than failure to pay assessments or dues, 12-639. Waiver of forfeiture of beneficiary certificate for nonpayment of assessment or dues by acceptance of arrearages or similar act, 11-539. 6. Proof of Suicide of Insured. Presumption, burden of proof, and weight and aufiiciency of evidence of suicide relied on as defense to action on life insurance policy or benefit certificate, 17-32. 7. Reinstatement. Survival of right of reinstatement in benevo- lent or beneficial association, 6-698 ; 17- 1175. 8. Beneficiaries. Selection by insured of beneficiary not having insurable interest in former's life as against public policy, 15-235. Meaning of word " dependent " as used to designate beneficiary in insurance, 7-358. Persons included within the term " family," when used to designate beneficiaries in insurance policy or benefit certificate, 7-684; 11-570. Meaning of term " heirs " when used to desig- nate beneficiaries in benefit certificate, 5-458. Right of insured under mutual benefit certifi- cate to change beneficiary where first beneficiary was designated in return for valuable consideration, 12-944. BENEVOLENT OR BENEFICIAL ASSO- CIATIONS — continued. Right to proceeds of benefit certificate upon failure of beneficiaries competent to take, 2-663. 9. Recourse of Members to Courts. Recourse to the courts by members of benevo- lent, beneficial, and similar associations to protect property rights, 3-211. BEQUESTS. See Wiixs. BERTHS. Sleeping-car company's liability for loss of property left in, see Carriers. BEST EVIDENCE. See Evidence. BETTING. Gaming and Gaming Houses, see that title. BEVERAGES. Intoxicating Liquors, see that title. BIAS. Change of venue for bias of judge, see Change of Venue. Discrediting witness, see Witnesses. Of grand juror, see Grand .Iurt. Judges disqualified for, see Judges. Jurors disqualified for, see Jury and Jury Trial. BICYCLES.. Right of bicyclist to safe road, 1-550; 16- 426. Right of bicyclist to ride on sidewalk, 13- 1014. BIDDING. Auctions and Auctioneers, see that title. At judicial sales, see Judicial Sales. BIGAMY. Cohabitation under foreign bigamous mnr- riatje as bigamy, ."i-nfiS ; lO-.'ifiO, Bigamy as depending upon validity of prior marriage, 14-74, 22 liNTDEX TO NOTES, 1-20 AISTIST. CAS. BIGAMY — continued. Belief in death of former spouse as defense to prosecution for bigamy, 8-1104. Belief in validity of invalid divorce as defense to prosecution for bigamy, 10-415; 14- 640. Sufficiency of indictment for bigamy with re- spect to allegation as to first marriage, 10-516. BIIiLBOAKDS AND SIGNS. Municipal regulation of billboards and signs, 16-766. BIIiLIARDS AND FOOI.. Gaming and Gaming Houses, see that title. Keeping of billiatd or pool table as subject of exercise of police power, 11-66. Bltlg AND NdT£S. 1. Validity Generally, 22. 2. Conditional Delivery, 22. 3. consteuction, 22. 4. Consideration, 22. 5. Negotiability, 22. 6. Accommodation Parties, 23. 7. Sureties and Indorsees, 23. 8. Nominal Holders, 23. 9. Bona Fide Holders, 23. 10. Transferees of Bona I'ide Holders, 23. 11. Indorsement, 23. 12. PSesbStment, Protest, a*id Notice, 23. 13. Acceptance, 23. 14. Payment, 23. 15. Alteration, 23. 16. Statute or Limitations, 23. 17. Reduction of Amount to Jurisdic- tional Sum, 24. Alteration of, see also Alteration of in- struments. Attachment of, see Attachment. Banking transactions respecting, see Sanks AND Banking. Bank notes as money, see Money. Checks, see that title. Conversion of notes, see Trover and Conver- sion. Of corporate officers, see Corporations. Indorsement for collection shown by parol evidence, see Evidence. Giving note as suffering damage, see Indem- nity C0NTRiC*S. Guaranty by transferee, see Frauds, Statute OF. Indorsement for collection shown by pafol evidence, see Evidence. Insurance premium paid by note, see Insur- ance. ' Judgment creditor's acceptance of note of third person, see Judgments. Law governing, see also Conflict of Laws. Possession of written evidences of indebted- ness as raising presumption of payment, see Payment. BILLS AND NOTES — continued. As property within statute defining false pre- tenses, see False Pretenses. Release of person liable on by bank cashier, see Banks and Banking. Seizure and sale of note under attachment, see Attachment. Set-off of individual demands in action on joint and several note, see Set-Off and Counterclaim. Surety as discharged by acceptance of, see Suretyship. Surrender of as condition to recovery on original obligation, see Election of Remedies. Undisclosed principal's liability upon, see Agency. 1. Validity Generally. Validity and effect of negotiable paper signed or indorsed by lunatic, 4-539. Validity, in absence of statute, of provision in note authorizing attorney to appear and Soilfess judgment against maker, 18-895. Validity of hote or other security given as Becfet pi-efel-ence in composition with creditors, 16-1072. 2. CONDITIONAt DeLTVEEY. t&rol evidence of conditional delivery of bill 6t note, 3-560; 15-669. 3. Construction. Object and effect of marginal figures in bills and notes, 1-611. Construction together of hill or note and con- temporaneous written instrument in- tended to control bill or note, 5-149. 4i Consideration. Natui'al love and affection as sufficient con- aideratirtn fdt hbte executed by parent to child, 13-165. Partial failure of consideration as defense to afetion on bill or note, 2-430. Validity of Statute reqtiiring note givpn for patent right to show consideration, 5-426. Burden of proof in action on bill or note with tespect to defense of want of considera- tion, 18-205. 5. Negotiability. Negotiability of note containing stipulation for attorney's fees and costs of collec- tion, 4-263. Construction and effect of provision in note allowing attorney's fees \vith respect to amount allowablej 20-1371. NfegOtiability of note payable "With ex- change," 1-385. Negotiability of instrument i-eferring td par- ticular fund or account, 11-599. Negotiability of note containing provision for extension of time of payment, 17-55. BILLS AND WOTfiS. 23 BILLS AND NOtES — continued. Negotiability of note containing clause re- taining title to property for which note is given until note is paid, etc., 14-1129; 20-1333. Negotiability of warehouse receipts, 17-670. Instrument to which seal is affixed, but con- taining no recital respecting sealing, as instrument under seal, 19-674t 6. ACCOMMODATION Parties. Eight of transferee of accommodated party after maturity as against accommoda- tion party, 2-256. Discharge of accommodation joint maker by extension of time to do-maker, 18-999. Conflict of laws respecting liability of mar- ried woman as accommodation maker or indorser, 20-618. 7. SUKETIES AND INDOKSEES. Liability as indorser of one indorsing paper for special purpose, and, after paper is reindoraed to hitu, reissuing same to third person without erasing special in- dorsement, 12-271. Failure of bank to apply general deposit on depositor's note as discharging surety or indorser, 7-1007. 8. Nominal Holders. Eight of action thereon of nominal holder of promissory note, 1-833. 9. Bona Fide Holders. Purchaser of Ohe of series of notes having notice of defenses against other notes as innocent purchaser, 9-340. Payment of less than face value by transferee of negotiable paper as affecting botM fides, 17-386. Bank as holder in due course of note dis- counted for depositor where latter is credited with proceeds, 11-206. Validity of note, void for usury as between original parties, in hands of bank dis- counting same before maturity without notice of usury, 12-1149. Liability of maker of blank negotiable instru- ment to bona fide holder Where blanks are fraudulently filled in, 8-18G; 11- 197. Eights of bona fide holder of note, some of signatures to which are forged, 12-441. Title and right of bona fide holder of stolen negotiable instrument, 13-1172. Eights of bona fide purchaser of overdue ne- gotiable paper from one to whom it has been intrusted, 5-983. Validity in hands of bona fide holder of ne- gotiable contract void bv statute be- tween original partlSfe, 4-353; H-llSl. Transfer of negotiable note as security for antecedent debt, 1-275. BILLS AND NOTES — continued. 10. Transferees of Bona Fide Holders. Title acquired by payee of instrument fraud- ulently procured from maker, or subject to other defenses, by repurchase after transfer to innocent third person, 8-626. 11. Indorsement. Sufficiency of indorsement on face of instru- ment, 19-570. Presumption of place of indorsement of nego- tiable instrument, 5-160. 12. Presentment, Protest, and Notice. Law governing liability of drdwer or indorser of bill or note as dependent upon pre- sefatnleht, protest, or notice, 12-455. Presentment and demand at place named in note payable on demand as condition precedent to suit against maker, 7-693. Necessity of notice of dishonor of bill or note to fix liability of surety, 6-281. Effect of misstatement in notice of protest as to time of dishonor, 12-375. Eight to waive protest by parol, 16-152. Necessity of new consideration to support waiver of protest of bill or note, 5-478. 13. Acceptance. Retention of, or refusal to return, bill of ex- change as acceptance thereof, 8-612. 14. Payment. Sufiicieney of payment of note at place pay- able to one not in possession of note, 14- 879. Payment to bank whei-e note is made f)ayable as discharging maker, 5-298. Burden of proof of payment or part payment of bill or note, 20-518. Failure to pay periodical instalment of in- terest on negotiable instrument as mak- ing instrument overdue, 11-42. 15. At-zhation. Effect of alterati"! of negotiable instrument by stranger to contract, 18-223. Estoppel of party to negotiable paper, drawn so negligently as to render forgery ^asy, to set up fraudulent alteration as against bona fide holder, 16-774. 16. Statute of Limitations. Commencement of running of statute of limi- tations hgainst note payable oti deiiiand, 14-807. Application by creditor of proceeds of fore- closed security as paft payment suffi- cient to revive barred note, 10-980. Pai-l paymerit, by trustee in feankl'uptcy ol ' p^l'sonal represehtatix^e of joint inaker of promissory note, as removing tar of statute of limitations as to other mak- ers, 11-59. 24 IISTDEX TO NOTES, 1-20 ANK CAS. BILLS AND NOTES — continued. 17. Reduction op Amount to Jurisdictionai. Sum. Eight of holder of promissory note to reduce amount due to sum within jurisdiction of court, 5-308. BILLS OF DISCOVERT. See Discovert. BILLS OF EXCEPTIONS. Loss of exceptions as ground for new trial, see New Trial. Bills of exceptions authenticated by bystand- ers, 15-737. Consent of parties as conferring jurisdiction on court to sign bill of exceptions after time fixed by statute, 13-1115. BLASTING. See Explosions and Explosives. Injury to property by concussion or vibra- tion resulting from blasting, 2-201; 19- 787. Liability of owner of premises for damages by blasting done by independent contractor, 14-1161. Liability for injury to property by blasting accompanied by actual physical inva- sion of property, 11-347. BLIND PERSONS. Contributory negligence of, see Negligence. BLOCKING. Of frogs, switches, and rails, see Hasteb and Servant. BILLS OF LADING. Advance of money by bank on security of bill of lading as entitling bank to goods, see Pledge and Collateral Security. Carrier's liability upon bill of lading issued without receiving goods, see Carriers. Limitation of liability of connecting carrier, see Carriers. Effect on passing title to goods of attaching draft to bill of lading to seller's order, 5-263. BILLS OF PARTICULARS. See Pleading. BILLS OF REVIEW. See Equity. BILLS OF SALE. Admissibility of evidence of value of prop- erty transferred in action to have bill of sale declared a mortgage, 11-326. BIRDS. Game and Game Laws, see that title. BLACKLISTING. Delinquent debtor by member of credit asso- ciation as libelous, see Libel and Slan- der. Legality of blacklisting agreements, 1-474. BLOODHOUNDS. Bloodhound evidence, 3-897; 10-1127. "BLOOD RELATIONS." " Blood relations " and " blood relationship " in wills, 5-511. BLOOD STAINS. Law of evidence of blood stains, 15-811. BOARDERS. Living at Inn as establishing relation of inn- keeper and guest, see Inns, Boarding Houses, and Apartments. Distinction between guest and boarder at hotel or inn, 14-326. Liability of hotelkeeper for effects of boarder, 2-16. BOARDING CARS. Of carriers, see Cabbiebs. BOARDS. Of assessors, see Taxation. Of health, see Health. Delegation of legislative pswer by conferrincr authority to grant licenses, see Li- censes. BOATS. See Ships and Shipping. BODILY INJUEIES — BKEACH OF COKTRAOT. 25 BODILY INJURIES. See Pebsonal Injuries and cross-references. BODY. Dead Body, see that title. BONA FIDES. Of parties to negotiable instruments, see Bills and Notes. BONDS. Of administrators, see Executobs and Ad- ministrators. Appeal bonds, see Appeal and Error. Bail bonds, see Bail. Consolidated corporation's power to issue mortgage bonds, see Corporations. Of contractors, see Contracts. Co^'Enants, see that title. To dissolve attachments, see Attachment. Of executors, see Executors and Adminis- trators. Fidelity bonds, see Insurance. Of guardians, see Guardian and Ward. Inheritance taxes on government securities, see Taxation. Injunction bonds, see Injunctions. Legacies of bonds, see Wills. Jfunicipal securities and obligations, see Mu- nicipal Corporations. Replevin bonds, see also Replevin. Sureties on, see Suretyship. Taxation as costs of expense of procuring bond, see Costs. Taxation of as property, see Taxation. Right of action on official bond naming obligee other than one designated by statute, 3-456. Validity and effect of bond having fewer than required number of sureties, 9-707. Extrinsic evidence as to extent of liability as- sumed by obligor under bond, 2-891. Effect of surplus or unnecessary condition in statutory bond, 8-1029. Eight of action for breach of one of several conditions of bond, 6-467. Necessity that all obligees join in action on bond, 15-1061. BONIS NON. Administrator de, see Executors and Admin- istrators. BOOK ACCOUNTS. Manner of pledging or assigning book ac- count, 18-446. BOOKMAKING. Pool rooms, regulation and suppression of, see Gaming and Gaming Houses. What constitutes " bookmaking " within stat- ute against gaming or gambling, 17- 1084. BOOKS. Copyright on, see Copyrights. Of corporations, see Corporations. Ill evidence, see Evidence. Inspection of, see Corporations. Records, see that title. BOUNDARIES. Declarations of surveyor as to, see Evidence. Deed bounding private way as carrying title thereto, see Vendor and Purchaser. Jurisdiction of equity to determine boundary line, 11-1127. Conclusiveness of proceedings to fix bound- aries upon title to land, 3-1064. Parol agreement establishing boundary line as affected by statute of frauds, 8-83. Effect of change in county or district bound- aries after recordation of instrument af- fecting either realty or personalty, 18- 158. Admissibility of declarations of deceased for- mer owner to prove boundaries, 19-551. Real property rights of school district on alteration of boundaries, 20-89. BOUNTIES. Exemption from execution, see Executions. BOYCOTT. Combination preventing merchant from pro- curing goods, see Conspiracy. Boycotting. 1-177; 13-86; 13-826. BRAKEMEN. Ejection of persons on cars by, see Cakbiers. Engineers of trains as fellow servants of, see Master and Servant. BRANDS. On animals as evidence, see Animals. BREACH OF CONTRACT. See Contracts. 26 INDEX TO NOTES, 1-20 ANK CAS. BREACH OF PEACE. Crimes generally, see Cmminai, Law. Assault and Battebt, see that title. Mobs, see that title. EiOT, Bee that title, Uj«LAwyut AssEMBiiT, see that title. BREACH OF PROMISE OF MAR- RIAGE. Seduction, see that title. Validity of promise of marriage by or to mar- ried person, 14-162. Disease as defense to action for breach of promise of marriage, 12-197. Seduction as element of damages for breach of promise of marriage, 5-107. Survival of cause of action for breach of promise of marriage, 10-725. Demand for performance as condition prece- dent to action for breach of promise of marriage, 18-360. Effect of offer by defendant to marry plaintiff on action for breach of promise of mar- riage, 20-1354. Admissibility of evidence of defendant's fi- nancial circumstances in action for breach of promise of marriage, 20-1265. Attack by defendant on plaintiff's character as aggravation of damages in action for breach of promise of marriage, 19-1128. What is excessive verdict in action for breach of promise of marriage, 16-981. Eight to return of property given in contem- plation of marriage on breach of con- tract, 19-538. BREACH OF WARRANTY. See cross-references under Wabbantt. BREAD. See Food. BREAKING. Within law of burglary or housebreaking, see Burglary. BRIBERY. Promise to do certain things after election as bribery of electors, 11-566. Effect on question of bribery of public officer of fact that act for which bribe is taken or offered is beyond his pow?r or juris- diction, 14r-246. Proof of other crimes in prosecution for bribery, 15-195. Attempt to bribe or influence juror as con- tempt, 15-747. BRIDGES. Ferry franchise infringed by, see Febbies. Duty of proprietor of toll bridge to keep bridge in safe condition for travel, 11- 1198. Liability of municipality in respect to main- tenance and operation of bridges, 15- 833. Right of abutting owner to erect bridge over street, 17-246. BRIEFS OF COUNSEI.. Action court will take in reference to scan- dalous or disrespectful language In brief, 9-166, BROKERS, Factors, see that title. Illegal contracts as to compensation by agent of vendor or purchaser, see Contracts. Of theatre tickets, see Theatres and Public Resorts. Of railroad tickets, see Carriers. Power of real estate broker to make contract of sale, 8-851. Right of real estate broker to commission on sale made by owner, 9-433. Right of real estate broker to compensation for saje, lease, etc., defeated by act of owner, 2-184; 20-1024. Right of real estate broker to commission on procuring person willing to purchase on different ternis as to payment, 19-1048. Right to commission as between several real estate brokers, intrusted with sale of same property, 15-766. Right of real estate broker to commission where purchaser fails to comply with binding contract of sale, 11-786. Recovery of commissions by broker who has failed to procure statutory license, 5- 897. Right of real estate broker to recover com- missions under oral contract of employ- ment where statute requires written contract, 13-977. Right of real estate broker to recover dam- ages from purchaser procured by him, for breach of contract to purchase, 11- 476. Ownership as between broker and customer of stock carried on margin, 14-986. Payment to merchandise broker as discharg- ing purchaser, 14-804. Revocation of authority of real estate broker 2-886; 12-1085. BROOKS. See Waters and Watercourses. BROTHER — BUEIAL LOTS. 27 BSQTHXiR- Implied contrfict to pay {pr services pf, see Contracts. Incest, see that title. Sufppssion between illegitimate brptherp, ?ee Descent and Distribution. Half-brother and half-sister as " brother " and " sister," 9^140. BUCKET SHOPS. As gaming, see Gaming and Gaming Houses. BUILDING AND I.OAN ASSOCIA- TIONS. Law governing contracts as to usury, see Conflict of Laws. What constitutes membership in building and loan associations, 1-796. Waiver by building and loan association of by-law specifying person to whom and time and place at which dues are to be paid, 3-731. Right to withdraw from building and loan association, 8-835. Mode of settlement with borrowing members upon premature dissolution of building and loan associations, 4-1080; 10-391. Constitutionality of statutes exempting build- ing and loan associations from usury laws, 20-1252. BUII.DING CONTRACTS. See CoNTBACTS. BUTI.DING RESTRICTIONS. See Vendor and Pubohaseb. BUILDINGS. Adjoining Landowners, see that title. BCBGLARY, see that title. Exempt from taxation, see Taxation. Fallen-building clause in insurance policy, see Iksurance. Fences, see that title. Fire Escapes, see that title. Fixtures, see ajso that title. Gaming houses, see Gaming and Gaming Houses. Insurance of, see Insurance. Leases of, see Lanolohd and Tenant. Mechanics' Lienb, see thjit title. Of municipalities, see also Municipal Cor- porations. Near railroad as barring recovery for fire, see Railroads. Party Walls, see that title. Public Buildings, see that title. Title to part of acquired by adverse posses- sion, see Adverse Possesbion. BUILDINGS -T- pontinuo4. Building placed on land of another by per- mission as realty or porsont'.lty iu ab- sence of agreement respecting subse- quent ownership, 12-1088. Use of streets for inoving buildings, 1-114; 11-639. Right of municipality to erect municipal building in street, 12-24. Validity of statute or ordinance limiting height of buildings, 15-1051. Validity of ordinance requiring permit to erect or repair building within city, 13- 1187. Validity of contract tending to influence lo- cfition of public building, 8-484. Liability of owner for injuries caused by col- Ifipse of building, 18-p. Construction of ordinance forbidding erection of certain buildings within fire limits, 18-183. Validity of legislation establishing building lines, 19-188. BULK SALES. See Fraudulent Conveyances. BURDEN OF PROOF. See Evidence. BURGLARY. Larceny, see that title. Receiving Stolen Property, see that title. Robbery, see that title. Burglary by opening screen door or window, 15-932. Burglary by opening, sufficiently to si in en- trance, door or window partly open, 15-929. Constructive breaking within statutory or common-law burglary or housebreaking, 15-1023. Necessity of alleging, in indictment for burg- lary, ownership of building entered, 5- 1011. Necessity that information or indictment for burglary from corporation should allege fact of incorporation, 12-683. Possession of stolen property as evidence of burglary, 19-1281. Proof of other burglaries on prosecution for burglary, 16-669, Liability of bailee for loss by burglary, 4- 1085. BURIAL LOTS. See Cemeteries. 28 INDEX TO NOTES, 1-20 ANN. CAS. BURNING FBOPEBTT. Arson, see that title. FiEES, see that title. BUBNT RECORDS. See Reoobds. BUSINESS. Banking business, see Banks and Banking. Building restrictions, see Vendor and Pub- chaser. " Cabbying on Business," see that title. Conspiracy to injure, see Conspiracy. Foreign corporation doing business within the state, see Corporations. Goodwill of, see Goodwill. Injunction against police surveillance of place of, see Injunctions. Licenses of, see Licenses. Noise arising from as nuisance, see Nui- sances. Offensive to neighborhood as prohibited by building restrictions, see Vendor and PUECHASEE. Profits of as element of damages, see Dam- ages. Railroad's right to conduct business, see Railroads. Restraint of Trade, see that title. Taxation of, see Licenses. Trade fixtures, see Fixtures. BY-LAVTS. Of benevolent associations, • see Benevolent or Beneficial Associations. Of building association, see Building and Loan Associations. Of corporations, see Corporations. BYSTANDERS. Bills of exceptions authenticated by, see Bills of Exceptions. "BY VIRTUE OF EMPLOYMENT OR OFFICE." In embezzlement statute, see Embezzlement. CALIiS, Upon stockholders, see Coepobations. CANADA. Judicial notice of federal statutes by pro- vincial courts, see Evidence. CANALS. Canal as navigable water, 17-349. CANCELLATION AND RESCISSION. Avoidance of deed of incompetent person in ejectment, see Ejectment. Charter party, cancellation in, see Ships and Shipping. Of contracts by parties, see Contracts. Evidence of release, see Release and Dis- charge. Fraudulent conveyances, power of personal representative to set aside, see Fraud- ulent Conveyances. Of infants' contracts, see Infants. Infant's right fo disaffirm contracts, see In- fants. Of insurance policies by insured, see Insur- ance. Of insurance policy, see Insurance. Of judicial sales, see Judicial Sales. Of partnership agreement for fraud, see Partnership. Personal representative's right to set aside fraudulent conveyance, see Executors and Administrators. Petitioner's right to withdraw name, see Petitions. Reformation of Instruments, see that title. Of sales of goods by parties, see Sales. Setting aside fraudulent conveyance, see Fraudulent Conveyances. Of subscription to corporate stock, see Cor- porations. Of written contract of sale of land, see Frauds, Statute of. Can(3ellation in equity of instrument pro- cured by fraud when adequate remedy at law exists, 8-548. Rescission of executed contracts-, 1-516. Right to rescind release for mutual mistake of law, 20-1247. Rescission of sale of land for mistake in quantity, 4-52. Rescission by vendor because of failure of vendee to disclose insolvency, 8-505. False statement by purchaser as to intended use of realty purchased, as false repre- sentation warranting cancellation of deed, 20-913. CANDIDATES. For election, see Elections. CAPACITY. To contract, see Contracts. Of testators, see Wills. CARBON COPIES. Admissibility, see Evidence. CAR COUPLINGS — OAEEIEES. 29 CAR COTJFIilNGS. Knowledge by master of defect in, see Masteb AND Seevant. CARGO. Of -yessels, see Ships and Shipping. CARNAI. KNOWLEDGE. Adultery generally, see that title. Incest generally, see that title. Rape generally, see that title. Seduction generally, see that title. Necessity of emission to constitute carnal knowledge, 11-93. CARRIAGES. Generally, see Streets and Highways. MoioB Vehicles, see that title. CARRIERS. 1. Carriers of Goods, 29. a. Duty to Carry Goods, 29. b. Xature of (Joods, 29. c. Discrimination, 29. d. Furnishing Cars, 29. e. Receipt of Goods, 29. f. Freight Hates arid Charges, 29. g. Mode of Loading or Packing Goods, 30. h. Transportation and Delivery of Goods, 30. i. Loss of or Injury to Goods, 30. j. Seizure of Goods by Public Authori- ties, 30. k. Limitation of Liability, 30. 1. Time for Presentation of Claims, 30. m. Lien on Goods, 30. n. Statutes Regulating Particular Class of Carriers, 30. 0. Connecting Carriers, 30. 2. Carriers of Live Stock, 30. 3. Cabbiebs of Passengers, 30. a. Persons Who Are Carriers, 30. b. Duty to Receive Persons for Carriage, 31. c. Persons Whc Are Passengers, 31. d. Information as to Route, 31. e. Commencement and Termination of Relation of Carrier and Passenger, 31 f. Condition and Management of Cars and Trains, 31. g. Tickets and Fares, 31. h. Parlor and Sleeping Cars, 32. i. Duties toward Particular Persons, 32. j. Assault on or Arrest of Passenger, 32. k. Expulsion of Persons from Cars, 32. 1. Injuries Caused by Obstruction on Track, 32. m. Evidence of Negligence of Carrier, 32. n. Contributory Negligence of Pas- sengers, 32. o. Limitation of Carrier's Liability, 32. p. Form of Action against Carrier, 83, q. Baggage, 33. CARRIERS — continued. Civil Riuins Acis, see that title. By feiry, see Feekies. Injuries to passjiiger by walking through doorway, ^ee Railroads. Insurance hy carrier and owner, see Insur- ance. Interstate and Foreign Commebce, see that title. Larceny of tickets, see Larceny. Public officers on trains in discharge of duty, see Negligence. Railroad commissioner's power to compel train connections, see Railroads. Servants acting outside scope of employment as creating liability, see Master and Servant. By water, see also Ships and Shipping. 1. Carriebs of Goods. a. Duty to Carry Goods. Validity of statute imposing penalty upon carrier of goods for refusing to accept freight tendered for shipment, 17-253. Existence of strike as excuse for refusal of carrier to receive freight for shipment, 17-483. b. Nature of Goods. Liability of carrier for transporting goods in violation of statute, where carrier is ignorant of nature of goods, 20-1156. Liability to carrier of person shipping ex- plosives or dangerous goods, 18-20. Liability of common carrier as carrier of money, 4-769. Duty of carrier to ice cars containing perish- able freight, 10-171. c. Discrimination. Discrimination between shippers by carriers of goods, 1-55. d. Furnishing Cars. Duty of carrier to furnish car suitable for particular shipment, 15-144. Liability of carrier of goods for injuries re- sulting to consignor or consignee from failure to furnish safe cars, 9-990. Agreement by carrier to furnish ears to shipper as binding contract, 12-885. e. Receipt of Goods. Liability of carrier upon bill of lading Issued without receipt of goods, 7-731. Delivery of goods to carrier for shipment as delivery to purchaser, 20-1027. f. Freight Rates and Charges. Requiring prepayment of freight charges as unlawful discrimination by carrier, IG- 621. Validity and enforceability of contract by carrier to carry goods at discriminat- ing rate fixed by mistake, 16-455. Effect of interstate commerce act upon right of shipper to damages on ground of un- reasonable freight charges, 9-1082. 30 INDEX TO NOTES, 1^20 ANK. CAS. CARRIERS — continued. g. Mode of Loading or Packing Goods. Duty of carrier of goods receiving loaded car from connecting carrier to inspect man- ner of loading, 16-1155. Duty and liability of carrier as to goods not packed, or improperly packed, 18-234< h. Transportation dnd Delivery of Goods. Liability of carrier for failure to stop in transitu goods demanded by stranger to shipping contract, 13-360. Measure of damages for carrier's delay in transporting property intended for ex- hibition purposes, 5-827. Unusual and excessive amount of freight to be handled as excusing delay in trans- portation by carrier, 11-274, Liability of carrier of goods by land for de- viation from route, 15-76. Liability of carrier for delivering goods to wrong person, 5-100. Quarantine regulations as defense to carrier for failure to deliver or transport goods, 17-880. Liability of carrier holding goods after ar- rival at their destination, at request and for convenience of eohsignee, 10-442. i. Loss of or Injury to Goods. Misrepresentation or concealment of nature or value of goods as affecting carrier's liability for their loss or injury, 5-120. Liability of carrier for damages caused by act of God co-operating with its own negli- gence, 3-453; 12-449. Selection of car by shipper as aflfeeting car- rier's liability for damage to goods by defect in car, 4-1144. Liability of carrier of goods on land for in- jury or loss by fire, 5-821. Right of consignee t6 goOdS without payment of freight, where damages equal Or ex- ceed amount of freight, 9-794. Validity of statute imposing; penalty on car- rier of goods or live stock for failure to pay claim Within certain time, 20- 1056. j. Seizure of Goods hy Puhlic Authorities. Liability of carrier for goods taken from its possession by seizure under police regu- lations, 15-538. k. Limitation of LiahiUty. Validity of contract between carrier of goods and shipper whereby value of goods is fixed and liability of carrier is limited to such amount, 12-1124; 18-363. Validity and effect of stipulation limiting liability of carrier of goods for loss bv fire, 20-229. Authority of agent shipping goods to enter into contract limiting liability of car- per, 1-670; 19-806. CARRIERS — continued. Law governing validity of contract by limit-, ing common-law liability of carrier of goods, 4-1106. 1. Time for Presentation of Claims. Validity and effect of Contract stipulation limiting time to present claim against carrier of goods, 97.17; 14-416. m* Lien on Goods, Lien of carrier for charges on gooda torti- ously delivered to it, 3-1096. Lien of rdili'dad company fOr demurrage charges, 4-15. Waiver of carrier's lien by delivery to con- signor's agent on promise to retain goods until payment of freight charges, 7-961. n. Statutes Regulating Particular Class of Carriers. Validity of statutes regulating particular class of carriers of goods, 16-1239. o. Connecting Carriers. Liability of |)asgengei' carrier selling through ticket for wrongful acts or otilissidns of connecting carriers, 3-5. Presumption as to which of several connect- ing carriers is liable for injury to goods carried, 3-584. Validity of stipulation in bill of lading lim- iting liability of connecting carrier to its own line, 7-471. Rights of iiiial Connecting carrier as to freight charges, where initial carrier has made unauthorized agfefement with consignor for through tate, 5-57tf. Constitiltiohality of statiitfes l-egulating lia- bility of connecting carriers of goods, 1-707. State statutes prescribing duty or -liability of connecting carriers as regulation of interstate commerce, 2-517. 2. Cabbiers op Live Stock. Duty of carrier to furnish car suitable for particular shipment, 15-144. Liability of carrier Of live Stock by laM for deviation from route, 15-76. Liability of Carrier of live stock for injuries to same, 1-158. Validity and effect of contract stipulation limiting time to present claim against carrier of live stock, 9-17; 14-416i Validity of statute imposing penalty on car- rier of goods or live stock for ifniliire to pay claim within certain time, 20-1056. Burden of proof of negligence on part o'f car- rier of live stock, 15-35. 3. Careiees of PasSeNgIebs. a. Persons Who Are Carriers. Liability of livety stable keepers as carriers 16-506, ' CABRIERS. 31 CAEEIERS — continued. Proprietor of seenfc railway dr siwilar con- trivance as carrier of passengers, 17- 410. b. Duty to Receive Persons for Carriage. Duty of carrier to carry passengers on freight or special trains, 5-43. Duty of carrief to receive for carriage feeble or infirm persona, 11-973; 17-1056. Duty of carrier to carry person afflicted with contagious disease, S-221. Duty of carrier of passengers to carry person suffering from contagious disease, where it has expressly contracted to carry him, 11-970. c. Persons WTio Are Passengers. Who is passenger of a carrier, 1-451. Employee of carrier as passenger, 13-S89. d. Tnformation as to Boiite. Liability of carrier for act of agent in in- forming passenger as to route, 131-968. e. Commenoement and Termination of Rela- tion of Carrier and Passenger. When intending passenger actually becomes such, 1-605; 9-1104. Termination of liability of carrier to passen- ger, 6-1033; 19-1019. f. Condition and Management of Cars and Trains. Validity of statute making it criminal offense for carrier to fail to furnish sufficient accommodations for passengers, 19-70. Duty of railroad company to allow passen- gers time to board or alight from trains, 7-760; 14^962. Duty of carrier to furnish suitable steps or other appliances for boarding or alight- ing from cars, 9-965. Duty of street railways to provide safe place for boarding and alighting from cars, 1-916; 9-854. Duty of carrier of passengers to assist pas- senger, 13-596, Liability of carrier of passengers for negli gence of employee in assisting passen- ger, 10-367. Validity of regulation of carrier separating races, 20-982. Validity of statute or ordinance providing for separation of white and colored pas- sengers, 7-274. Negligence of carrier of passengers in allow- ing baggage or similar articles to be placed by passengers in aisles of cars, 12-887. Duty of carrier of passengers to heat Convey- ances, 9-557. Liability of carrier of passengers for failure to remove ice or snow from steps of yehicle, 17-51, CARRIERS — continued. Duty of railroad company to announce sta- tioils for benefit of passengers, 2-676. Duty of carrier of passengers to stop at flag station to receive passengers, 12-1003; 18-68. Duty of railroad to put passenger off at des- tination not stopping station, 6-24. Damages recoverable by passenger for being carried beyond destination, 16-187. Liability of street railway for failure to carry passenger to destination indicated by sign on car, 3-1080. Liability of carrier for delay in transporting passenger, 17-952. Liability of carrier to passenger for defects in cars used but not owned by it, 16- 612. Liability of carrier for injuries received by passenger in going from one ear to an- other of moving train, 16—446. Liability of carrier for injuries to passenger caused by car door, 18-1163. Validity of statute prohibiting soliciting of trade or business on premises or trains of carriers of passengers, 18-867. g. Tickets and Fares. Constitutional or statutory provisions against gift or receipt of free railroad trans- portation, 17-662. Effect, upon rights of purchaser, of time limit fixed by carrier of passengei's for use of ticket, 6-119; 20-316. Construction of stipulation in railroad ticket that coupon shall be "void if detached," or words of like import, 19-457. Eight of railroad company to eject paSsenSfr for refusal to pay extra fate wheire suffi- cient opportunity to buy ticket was pre- sented, 10-923. Right of railroad to eject passenger for re- fusal to pay extra fare where no op^ portunity to buy ticket was presented, 3-887. Right of carrier to eject passenger holdinj; ticket invalid through its fault, 9-889. Duty of carrier to give passenger time to produce ticket or pay fare, 20-922. Duty of carrier to carry passenger *hO ten- ders fare after refusal to pay, 10-941. What is reasonable sum which passenger may tender in payment of fare, 10-642; 18- 44. Rights and duties of passenger receiving in- correct transfer, 1-392; 10-277. Validity of statute or ordinance prohibiting selling or giving away of street cai' transfers, 11-557- Validity and effect of statutes prohibiting ticket brokerage, 6-873. Injunction to prevent buying ahd selling oi* nonttansfei-able tickets, 12-700. Discrimination of carrier of passengers be- tween localities as to rates of fare, 18- 149, 32 INDEX TO NOTES, 1-20 ANN. CAS. CARRIERS — continued. Validity of statutes requiring railroads to carry certain classes of persons at re- duced rates, 2-420; 9-1130. h. Parlor and Sleeping Cars. Property or effects of passenger for which sleeping-car company is liable, 14-521. Liability of sleeping-car company for loss of passenger's property, left by him in berth while temporarily absent there- from, 10-895. Statutory regulation of operation of sleeping cars, 15-415. Servants of palace-car company and railroad company as fellow servants, 13-1146. Validity and enforceability of contract re- leasing railroad company from liability to employees of sleeping-car company on cars of latter hauled by former, 12- 738. Liability of railroad company for acts of em- ployees of sleeping or drawing-room car company with relation to passengers, 19-1134. i. Duties toward Particular Persons. Liability of carrier for injury to free passen- ger, 6-669; 10-870. Duty and liability of carrier to child for whom no fare is demanded, 9-963. Liability of carrier of passengers to person riding on free pass, 4-1131; 12-677. Liability of carrier to person riding on drover's pass or in charge of stock, 6- 799. Liability of carrier to intoxicated passenger, 5-72; 9-488. Duty of carrier to protect passengers against intoxicated passenger, 8-225. Duty and liability of carrier to person at- tending or visiting p'aasenger, 10-161 ; 20-453. Liability of railroad to person riding on ticket or pass fraudulently procured or under which passenger has no right to transportation, 7-587; 20-1227. Liability of railroad company to person wrongfully riding on train by permis- sion or direction of railroad employee, 9-540. Liability of railroad for injuries received by passenger riding on platform, 1-315; 10-816. Duty and liability of carrier of passengers to express messenger, 12-727; 19-1207. Liability of carrier of passengers to newsboy or news agent, 7-528. Duty and liability of carrier of passengers to postal clerk, 6-863; 11-882. j. Assault on or Arrest of Passenger. Liability of carrier for assault on passenger by fellow passenger or stranger, 3-254; l'8-773, Duty of carrier to protect passenger from ar- rest by officer of the law, 12-784. CARRIERS — continued. k. Expulsion of Persons from Cars. Damages recoverable by person hoarding train for purpost of being expelled, i-S-4SJ. Implied authority of brakeman to eject tres- passers, 18-892. 1. Injuries Caused ly Olstruotion on Track. Liability of carrier for injuries to passenger caused by train running into landslide, 17-884. Liability of carrier for injuries to passenger caused by obstruction placed on track by third person, 11-856. m. Emdence of "Negligence of Carrier. Derailment of train or car as evidence of neg- ligence on part of carrier of passengers, 12-1045. Presumption of negligence from collision re- sulting in injury to passenger, 4-10. n. Contributory Negligence of Passengers. Contributory negligence of passenger in cross- ing intermediate track between train and station, 14-24. Contributory negligence of passenger alight- ing from street car and passing to rear of it across parallel track without look- ing for approaching oar, 6-705; 12-912. Boarding moving car or train as contributory negligence, 2-939. Contributory negligence of passenger in standing in moving car of train, 13-122. Contributory negligence of passenger in rid- ing or standing on running board of open street car, 4-666; 9-1025. Contributory negligence of passenger in per- mitting part of his body to protrude from car, 1-710. Contributory negligence of passenger in leav- ing seat before train stops at destina- tion, 4-750. Contributory negligence in alighting from moving train where act is obviously dangerous, 1-778; 17-1154. Contributory negligence in alighting from moving train by advice or command of carrier's servant, 1-781. Contributory negligence of passenger in jump- ing from vehicle to avoid threatened danger, 16-84. o. Limitation of Carrier's Liability. Validity of stipulation in free pass exempting carrier of passengers from liability for negligence, 4-557. Validity of stipulation in free pass exempting carrier of passengers from liability for negligence, 12-584. Validity of stipulation in drover's pass ex- empting carrier from liability for negli- gence, 5-768. Validity and effect of contract between em- ployer and carrier limiting liability of latter for injuries to employees of for- mer, 12-1077. CARHYIITG AWAY " — CENSUS EEPORTS. 33 CARRIERS — continued. ^'alidity and enforceability of contract re- leasdiig railroad^ company from liabiHty to lemployees of sleeping-car company on cars of latter hatiled by former, 12- .738. p. Form of Action against Carrier. Right of passenger to bring action ex con- trartii against carrier ior personal in- juries or ejection from train, 10-462. q. Bofsraje. Drummer's samples as baggage, 6-828. Street railway as carrier of passenger's ef- fects, 9-2fll. SuiHciency of delivery of baggage to render carwr liable, 14-^12. Eight of passenger to liave ba,ggage carried on same train, 15-391. Liability of ^arxier for loss of property not urdinajily regaided as baggage but re- ceived as siich bv ba^age agent, 13- 240. Right of passenger to recover for loss af prop- erty carried by him as baggage but be- longing to anotti'er, 13-329. Right of father to recover from carrier for loss «8 baggage ef articles used for or by his child, 7-61. Right to recover punitive damages for faihire of carrier to transport baggage to proper place, 11-837. Validity ajid effect of stipulation in ocean steamship ticket limiting liability for passenger's baggage, 9-913. What is reasonable time for passenger to call for baggage after arrival so as to ter- minate liability of carrier as such, 16- 712. gee also supra, 3. f. and 3. h. "CARBYING AWAY." Allegation of, see Robbeey. "CARRYING ON BUSINESS." Meaning of term " carrying on business " as ■Qsed in statutes, 18-32. CARRYING WEAPONS. See Weapons. CARS. Of carriers, see Cabbiees, Injuries to servants by, see Master and Seb- VANT. Motor cars, see Motor Vehicles. Railroad cars, see Railroads. Street cars, see Stbetct Railways. yops. }-2Q — Ann. Cab. Digest. — 3, CASH. " Cash " in will as including realty, see Wills. Monet, see that title. CASHIER. Of bank, see Banks and Banking. CAUSA MORTIS. Gifts, see Gifts. CAUSE. Probable cause in false imprisonment, see False Impeisonment. Probable 'camise ifor prasecatian, see Ma- licious Peosecution. CAUSES OF ACTION. Actions, see that title. Compromise and settlement of, see Compeo- mise and StETTLEMENT. Insurance agreement to repair or rebuild as creating new cause, see Insueance. Joinder of, see TPleadIng. Removal of, see Removal of Causes. CAVEAT EMPTOR. Generally, see Sales. Rule of caveat emptor as precluding defenses by bidder at sheriff's sale, 18-501. " CEASE TO BE OPERATED." As term in insurance policy, see Insurance. CELEBRATIONS. Appropriations of moneys for, see Appeopbia- TIONS. CEMETERIES. Dedication and abandonment of land for cemetery purposes, 15'-172. Validity of state or municipal rejiulatlofts or restrictions as to burial of dead, 14- 1085. Validitv of bequest for purchase or care of tomb, monument, burial lot, or ceme- tery, 15-606. Partition of cemetery lots, 12-876. Equitable relief npainst cemetery as nuisance, 5-136; 20-794. CENSUS REPORTS. See EvlopNCE. 34 IlfDEX TO Is^OTES, 1-20 ANN. CAS. CERTIFICATE. Of acknowledgment, see Acknowledgments. Of architect, see Architects. Benefit certificates, see Benevolent ob Bene- ficial Associations. CERTIFICATION. Of checks, see Checks. CERTIOE. :?.!. Right of person not party to have proceeding reviewed by certiorari, 10-861. Who may bring certiorari to review highway proceedings, 18-667. CESTUIS QUE TRUSTENT. See Tbusts and Trustees. CHAIR CARS. See Caebiebs. CHAI.I.ENGE. To fight duel, see Duel. To grand jurors, see Gband Juet. To juror, see Juet and Jubt Tbial. CHAMPERTY AND MAINTENANCE. Champertous agreement to prosecute as de- fense, 19-517. Assisting poor person to prosecute or defend suit as maintenance, 11-69. Giving contract of indemnity against possible sviits as species of maintenance, 14-559. Civil liability for maintenance, 9-863. CHANCE VERDICT. See Trial. CHANGE OF INTEREST. Within meaning of insurance contract, see In- surance. CHANGE OF VENUE. Removal op Causes, see that title. Right to change of venue for bias or prejudice of judge, in absence of express statutory provision, 10-265. Constitutionality of laws providing for change of venue in criminal prosecu- tions on application of state or pourt's own motion, 3-197, CHANGE OF VENUE — continued. Right of garnishee to change of venue, 5-777. Weight of newspaper articles as evidence of prejudice against accused entitling him to change of venue, 18-789. County to which venue may be changed in absence of statute requiring change to be to nearest or adjoining county, 9-177. Number of times party is entitled to change of venue, 7-304. Timeliness of motion for change of venue or change of judge made after trial of cause, 8-758. CHARACTER. In breach of promise suit, see Breach op Promise of Maeeiaqe. Comment on failure of accused to prove good character, see Trial. Evidence of, generally, see Evidence. Evidence of in criminal prosecutions, see Criminal Law. Representations as to, see Frauds, Statute OP. CHARGES. or carriers, see Caebiebs. CHARGE TO JURY. Generally, see Tbial. In criminal prosecution, see Cbiminal Law. CHARITIES. False pretense in obtaining money as charity, see False Pbetenses and Cheats. Oificer of charitable institution as witness to will, see Wills. Succession tax on bequests to foreign corpora- tion, see Taxation. Trusts and Tbustees, see that title. Devise or bequest to church as charitable use, 4-1139; 9-1202. Gift for benefit of animals as charity, 17-139. Validity of bequest to individual manifest re- sult of which is evasion of statute lim- iting bequests to charities, 13-1196. Validity and effect of condition of inalien- ability attached to gift for charity, 12- 816. Gift in violation of mortmain statute as void or voidable, 10-1030. General charitable intent essential to appli- cation of cy pres doctrine, 1-541. Validitv of bequest for celebration of masses, 14-1025. Law governing validity of testamentary gift to foreign charity, and administration thereof, 20-866. Liability of private charitable institution for negligence of employees, 4-104; U-160, CHAETEE — CHILDEEN-. CHARTER. Of corporation, see Corpobations. Of municipalities, see Municipal Corpoba- tions. CHARTER PARTIES. See Ships and Shippino. CHASTISEMENT. Of children by parents, se« Paeent and Child. Of children by teachers, see Schools. Of convicts, see Convicts. CHASTITY. Charge of unchastity as actionable per se, see Libel and Slandek. Reduction as affected by, see Seduction. Solicitation of, see Solicitation op Chas- tity. CHATTEI. MORTGAGES. Clause authorizing vendor to retake and sell goods, see Sales. Of crops to be planted, see Crops. Mortgages of realty, see Mortgages and _ Deeds of Trust. Pledge and Collateral Securitt, see that title. As violation of sales in bulk acts, see Fraudu- lent Conveyances. Validity and construction of chattel mortgage given to secure future advances, 9-1151. Priority as between liens of livery-stable keeper and chattel mortgagee, 11-1043. Effect on lien of chattel mortgage of removal of property from place of record to other town or county, 12-947. Enforcement of chattel mortgage in foreign state to which goods have been removed by mortgagor, 3-109. Waiver of chattel mortgage lien by attach- ment, 4-487; 17-957. Eight to deficiency judgment in action to foreclose chattel mortgage, 18-1075. Effect of tender after default upon security of chattel mortgage, 15-495. Right of personal representative of insolvent to assail validity of chattel mortgage, 2-712. CHATTELS. 'Generally, see Personal Property and cross- references thereunder, B^les of, see SAW;a< CHAUFFEUR. See Motor Vehicles. CHEATS. See False Pretenses and Cheats. CHECKS. Agent's authority to accept, see Agency. Gift of check, see Gifts. Unrestricted indorsement of draft or check as warranty that instrument is genu- ine, 7-746. Ordinary bank check as assignment of funds of drawer, 5-189. Effect of certification of check on liability of drawer or indorser, 11-245. Sufficiency of acceptance of bank check to bind drawee, 11-284. Reasonable time for presentment for pay- ment of check drawn on bank in same place as residence of payee, 10-U21. Discharge of debtor by creditor's negligence in presenting check of third person for payment, 5-871. Right of drawer to stop payment of certified check, 16-213. Telegram as sufficient direction by depositor io stop payment of check, 13-468. Liability of hank to depositor for paying raised check, 5-774. Right of United States to recover money paid to bank which has cashed forged pension check, 16-1189. Title to checks indorsed in blank and for- warded for collection, 2-117. Damages recoverable by depositor for wrong- ful dishonor of check, 7-819; 10-899. Admissibility, in action by depositor for dam- ages for wrongful dishonor of check, of evidence of depositor's financial credit and standing, 10-988. Right of holder of lost check to recover amount from drawer, 14-398. Giving worthless check as false pretense, 8- 1069; 14-510. Undelivered check as subject of larceny, 18- 138. CHIEF EXECUTIVE. See Governor. CHILDREN. Adoption of, see Adoption of Children. Bastardy, see that title. Bequests to, see Wills. Curtesy as affected by birth of issue, see Cun-. TESY, 36 INDEX TO NOTES, 1-20 ANN. CAS. CHILDREN — continued. Custody and support as affected by divorce, see DivoncE. Definitions of child and children, see WoBUS AND Phrases. Descent and Distribution, see that title. As designation of beneficiaries of life insur- ance, see Insurance. Devises to, see Wills. Guardian and Ward, see that title. Infancy, see Infants. Master's duty toward infant servant, see Master and Servant. Miscarriage as element of damages, see Dam- ages. Parent and Child, see that title. Railroad's duty to fence against, see Rail- roads. School attendance, see Schools. Of slaves as legitimate, see Slaves. Trespassing on property where ponds, wells, etc., exist, see Negligence. Trespassing on railroad tracks, see Rail- roads. Constitutionality of statutes providing for commitment of wayward children to in- stitutions or to proper guardianship without jury trial, 5-96; 14-810. Liability of owner to trespassing children in- jured by dangerous substances on prem- ises, 5-503. Duty and liability of one maintaining elec- tric wires in reference to children, 10- 925. Liability of municipality for injury caused by defective highway when sustained by one using highway for play, 19-973. Contributory negligence of children, 1-895; 17-353. Imputing negligence of parent to child of ten- der years, 1-216; 11-886. Validity and construction of child-labor acts, 9-1108; 15-473. Privilege of naming child as valid considera- tion for contract, 11-482. Admissibility of testimony of married woman to prove nonaccess of husband, 6-816; 15-764. Right to exhibit to jury child whose paternity is in issue, 19-536. CHRISTIAN SCIENCE. As practice of medicine, see Physicians and Surgeons. CHURCHES. Bequests for celebration of masses, see Chari- ties. Clergymen, see that title. Parsonage as exempt from taxation, see Taxation. Religious Societies, see that title. Meaning of term " church " in statutes pro- hibiting sale of liquor within specified distance of church, 9-1113. " Place of worship " or " meeting for divine worship," etc., within statute against disturbance thereof, 19-448. Devise or bequest to church as charitable use, 4-1139; 9-1202. Jurisdiction of civil court to review decision of ecclesiastical tribunal with reference to consolidation or reunion of churches, 19-289. CIGARETTES. What are cigarettes, 14-934. Right of state to prohibit importation of cigarettes, 9-360. CIRCUIT COURT OF AFPEAI.S. See United States Courts. CIRCUMSTANTIAI, EVIDENCE. Instructions respecting in prosecution for larceny, see Larceny. CITIES. See Municipal Corporations. CIVIIi ACTIONS. Imprisonment in, see Imprisonment fob Debt and in Civil Actions. CHINESE. Competency of Chinaman as witness, 18-563. CIVIL COURTS. See Courts. CHOSES IN ACTION. Conversion of, see Trover and Conversion. Negotiable instruments, see Bills and Notes. Statute against fraudulent conveyances as applicable to, see Fraudulent Convey- ances. Taxation of, see Taxation. CIVIL BAMAGE ACTS. Damages for death by intoxication, 1-134. Furnishing liquor as proximate cause of in- jury under civil damage acts, 3-59; 13- 200. Joinder of defendants in action under civil damage act, 14-1057^ CIVIL EIGHTS — COLLECT tON. 37 CIVIL RIGHTS. Eemoval of cause for denial of, sfee REMovaL OF Causes. Separation of races on cars, see CAKKiBiBS. Separation of races in schoblsj sfee Schools. CLUBS — (-b((K?(irH?. Application of statute regulating liquor traf- M tb bbnU 0e k\c\k] bliib distribtitin^ liquors to menioers, lO-J^Sti. Club formed by tailor for distributing clothes as lottery, 5-837. CIVIL RIGHTS ACTS. Statute^ securing equal rights in places 6f public aecommodition, 9-69. CIVIL SERVICE. Abolition of office as violation of civil service statutes, 20-B46. CLAIM AND DELIVBRT. See Replevin. CLASS. Devise or bequest to, see Wlixs. Eeinainder given to, see REMAliniESs. CLASSIFICATtOlf. Of municipalities according to population, see JIUNICIPAL CORPOBATIONS. Of subjects of taxation; see Taxation; ed-AiiMii^isttiAi^bRS. See EttctJTOK^ and AbkiNisTtiATOBs. cOAl. Btlrriiiig of feoit coal as liUisaiice, see Nui- yAifcfcg. COAL HOLES. Injuries frdiii, see feiHEETS and Sighwats. CODE. Repeal of statille^ by, see STATUtiis. CODE r'tiiAiiiMS. Joindet of catl^eS Undel", See JtfeADiNQ. CODICILS. See Wills. CLiJiiGTfMfejr. Commuitieations to as privileged; see Wit- nesses. Exemption of parsonage from taxation, see Taxation. Imputation on as defamatory, see Libel and Slander. CLEAftS &t CbtfftTS. Admission to bail by, see Bail. CouBT.s, see ^hat title. Judgments, see that title. Right to receive verdicts, see TiiAL. M«riufa:eture 6f ih ten^fflerfisf, Stattttfe^S regu- lating, see Labor Laws. COERCION. Of employer by threat to strike, see Labor Combinations. Payment ilid,t:le iiiider; recdVery of, Sfee Pay- ment. Undue iNPLUfcSbiD, see that tHle. cdHA^t+A^ibir. As bigamy, see Bigamy. Marriage as aflfected by, see Marriage. What constitutes " living together " or " co- habitating " Ih formcfttlbn or adultery, 19-655. COLLAPSE OF BUILDING. See Buildings. CLOUD ON TI*LE. See Quieting Title — Uiatdiflt 6f CiouD. CLUBS. Corporations, see that title. Societies and Unincorporated Associa- tions, see that titl«. COLLECTION. By bank, see BAfiftfe Ai^ri i^AMfeiNQ. Of bills or notes, see Bills and Notes. Salesman's authority to Bbll^ct ftccbliiits; seb UttUJtlMkfif!. Sgi-Vatit'S lirtbilit.V fBr ttiiliVet^y di gBbaS with- out collecting charges, see MAgTEb and Servant. Of taxes, s&e TAxAttbrf. 38 INDEX TO NOTES, 1-20 ANN. CAS. COLLECT ON DITLIVERT. Place of sale where shipment is made C. O. D., see Sales. COLLISION. Injuries to servants from, see Masteb and Servant. Of vessels, see Ships and Shipping. COLOR. Use of as infringement of trademark or un- fair competition, see Trademabks, Tkade Names, and Unfair Competi- tion. COMMITMEWT. Of criminals, see Cmminal Law and cross- references. Of children to institutions or to proper guardianship, see Children. COMMITTEES. Delegation of power by municipal councils to, see Municipal Corporations. Legislative committees, see Legislatuse. COMMON CARRIERS. See Carriers. COLOR OF TITLE. In adverse possession, see Adverse Posses- sion. Possession accompanied by as giving right to maintain tiespass, see Trespass. COMBINATIONS. Labor Combinations, see that title. Monopolies and Corporate Trusts, see that title. In restraint of trade, see Restraint of Trade. COMMERCE. Interstate and Foreign Commerce, see that title. COMMERCIAL AGENTS. See Consular Agents. COMMERCIAL PAPER. See Bills and Notes. COMMERCIAL TRAVELERS. See Drummers. COMMON, TENANTS IN. See Tenants in Common. COMMUNICATIONS. To or by jury, see Jury and Jury Trial. COMMUNISTIC SOCIETIES. See Religious Societies. COMMUNITY PROPERTY. See Husband and Wife. COMMUTATION OF SENTENCE. See Criminal Law. COMPANY. See Corporations. COMPARATIVE NEGLIGENCE. See Negligence. COMMISSIONERS. In condemnation proceedings, see Eminent Domain. Jury commissioner, failure to qualify, see Jury and Jury Trial. COMMISSIONS. Of brokers, see Brokers. Conversion by agent of funds out of which he is entitled to commission, see Embezzle- ment. Of factors, see Factors. Of insurance agents, see Insurance. COMPENSATION. For animals destroyed under law, see Ani- mals. Of architects, see Architects. Of attorneys, see Attorneys at Law. Of brokers, see Brokers. For change of grade of street, see Streets AND Highways. .For condemnation of property, see Eminent Domain. Of corporate officers and directors, see Cor- porations. For crossings at new highways, see Rail- roads. Damages, see that title. COMPETENCY — CONDEMNATION. 39 COMPENSATION — continued. For depreciation in property replevied, see Replevin. Of directors or officers of corporations, see Corporations. Interest, see that title. For land taken for public use, see Eminent Domain. Of life tenant for improvements, see Lite Estates. Of officers, see Public Officers. Of partner, see Partnership. Of public officers, see Public Officers. To railroad for crossing of tracks by another railroad constructed upon highway, see Railroads. ^Rewards, see that title. Streets, change of grade of, see Streets and Highways. Telegraphs and telephones, construction of lines for, see Telegraphs and Tele- phones. Of witnesses, see Witnesses. COMPETENCY. Of evidence, see Evidence. Of jurors, see Jury and Jury Trial. Of servants, see JIaster and Servant. Of witnesses, see Witnesses. COMPROMISE AND SETTIiEMENT. Accord and Satisfaction, see that title. Attorney's right to contingent fee as affected by, see Attorneys at Law. Building associations' settlements with mem- bers, see Building and Loan Associa- tions. Distributee's settlement of claim as binding upon administrator, see Executors and Administrators. Evidence of offer by accused to compromise criminal charge, see Criminal Law. Release and Discharge, see that title. As termination of malicious prosecution, see Malicious Prosecution. Right of parent or person in loco parentis to compromise child's cause of action, 17- 608. Right of municipality to arbitrate or compro- mise disputed claim, 18-1030. Enforceability of agreement compromising il- legal contract, 11-612. Concealment of facts as avoiding compromise and settlement, 16-935. COMPUTATION. Of interest, see Interest. Of time, see Time. COMPETITION. Contracts designed to suppress, see Con- tracts. Unfair, see Trademarks, Trade Names, and Unfair Competition. CONCEAIiED AVEAFONS. See Weapons. COMPLAINT. CONCEALMENT. In civil proceedings, see Pleading and cross- references thereunder. In criminal cases, see Indictments and In- formations. Pleading, see that title. For violation of ordinance, see Ordinances. COMPOSITION WITH CREDITORS. Validity of note or other security given as secret preference in composition with creditors, 16-1072. By attorney of cause of action against him, see Limitations of Actions. As avoiding compromise, see Compromise and Settlement. Carrier's liability for loss of goods as af- fected by, see Carriers. Of defects in article sold, see Sales. Fraud, see that title. " CONCURRENT." As term in insurance policy, see Insurance. COMPOUNDING OFFENSES. CONCUSSION. Validity of contract to secure existing indebt- edness between parties made in consid- eration or agreement not to prosecute criminally, 15-310. Necessity of alleging and proving actual com- mission of offense charged to have been compounded, 9-565. Injury to property from blasting, see Blast- ing. CONDEMNATION. Of property for public use, see Eminent Do- main. 40 INDEX TO NOTES, 1-20 ANN. CAS. CONDITTONAIi ESTATES. Estates generally, see Estates. \A'ords declaratory of purpose or cojialderae tion of conveyance as creating, see Deeds. CONDITIONAL SALES. See Sams. cowditionaIj wills. See Wills. CONDITIONS. BilTs or notes delivered npoa conditions, see Bills and Notes. In bomis, see Bonds. To forfeiture of bail, see Bail. Ik insnnamce, see Insubance. In leases, see Lan.bkokb' anb- Tenattt. Of subscription to corporate stock, see CoK- pokations. To actions for hreajih. of promise, see Breach OF PBOMXSE- of MARIsrAGE. Ejectment by grantor for breach of conditions subsequent, see EJBieTMENT. CONDONATION. Criminal conversation as Husband abbi Wihet. In divorce, see Divorce. affected by, see eowiwrcTOB. As feHbw servant of other traiiunen, see Master- and Servant. CONFESSION OF JUDGIVIENTS. Power of married womam to confess judg- ment, 10-714. Validity, in absence of statute, of provision in note ao^drorieing' attocney to appear and confess judgment against maker, 16-895. CONFESSIONS. Of commission of crimes, see Criminal Law. "CONFINED TO HOUSE." MeaninsT of phrase in insurance policy, see iNSumtwcB:. CONFLICT OF LAWTS. 1.. COHTRAOia. 2. Torts. 3. Wills. 4. Practice. Custody of children after divorce, see Di- vorce. LiabalLty of parties to- biUs' or noiies asi da- pendent upon presentment, protest, or notice, see Bills and. Notes. Situs of taxable peisonalty, see Taxation. 1. Contracts. Contracta governed by laws, ol place of per- formance, 1-88. Conflict of laws as to. executoiry contract re^ latiiiig- to realty, 20-^68. Conflict of laws as to validity of transfer of c«mai«rcial paper, 2^706. Conflict of la.ws respecting liability o£ mar- ried woman as accomnwdation maker or indorser, 20-6T8. Law governing insurance contract, 19-30. Law governing validit^w of gaimMing contracts or agreements coITaterar thereto, 17-48. Usury laws governing huiHing and loam conr tracts, 1-241; 14-736. Law governing, validity of cDatEact; limdrfcing. common-law lia-bility a£ eapi!i«ir of goods, 4-1106. Usury law governing validity of mortgage on lands in one, jiu-nisdietion) given to se- cure debt contracted or obligation ex- ecuted in another jurisdiction, 11-225. 2. Torts. Law gBVwming' distribution of. damages re- covered for dfeaih by wrongfiil' act, 8-149. Conflict of laws as to elements, of damages in action for tort, 4-524. Conflict of laws as to recovery of damages- for meniJal' anguish in teltegraph' case9, 7-1068; 19-1063. Suit in foreign jurisdiction under statute per- mitting recovery ioi death by wrongiul act,. 2-805; 13-1036.. Conflict of laws as to fellow-servant doctrine, 7-257. 3. Wills.. Law governing execution of will of person- alty, 9-44. Law governing execution of will of realty, 2-5'9T. Law governing construction of will of realty, 11-498; 18-578. Law go-veraifl^f -viaUdifcy- o£ tesfaumsivifcaTjy gift to foreign charity, and administration thereof, 20-866. 4. Practigb. LaiW' govorningr surviiwd of actions). 61-584. Law governing right of set-off, 4^88^. Stfatnte' of limitations gnveming in action- oH ftjreign' judgment, 8-l'123; CONrUSIQ¥ OF GOODS — CONSTITUTIOIsTAL LAW, 41 CONFUSION OF GOODS. Trust property mingled with that of insol- vent trustee, see TKttsTS ANp TsusTEais. See Gabmebs. (jONNIVANCE. Crimjnal conyersatioji ap alTepted jjy, ^ge " :^us^^jip Aij'i^ Wife'. Divorce as aifected by, see Diyppcp. CONSENT. Jurisdiction to sign bill of exceptions con- ferred by, see BuiiS OFExcEPTibrrs. Murder as affefeted by, see HciMiclbE. Gf owner t^' inlprovetnents for which lien is filed, see Mechanics' Liens." Of par^fits or gukfdians to marriage, see MaBriag'e. •' ■ 1. . ■ , ^ To performance of surgical operation, see PHYSICliNS ATSTD SURGEONS'. Bape 3,3 afiSected by, see Rape. To remission of damages, see Damages. To robbery, see RpBBEKY. See Damages. CONSIDERATION. For bjljs pr note?, see ^}^^ and Notes. fpf conrracts, ^ee PpNjkACT?. Forbearance to sue as new consideration per- mitting reCPyfry fit g'2rnb]ing d^t, pee Naming ani} GA^fiNo' J^ouses. Recital of ip de^ii as nfoijji^ to pay, pee Li^i- '"' ' itATiopp OP Actions. Reformation as affectecj by, see Reformation ■ ' pi^ iNiSTliuitfeNTs'.' Specific perforlriafice as affectprl bv adequacy of, see SPEciFig PERF'OR:>rAN'cE. " Statements of in contract witliin statiite of ■ ■' jfraud8,'see''FBATJDS, Statute of." ' cp;^$iG^q^$. Oarri)?r!p liability to, see Oarbiebs. CONSOLIDATION. QS corRPrfiti,|, see CpANGE OF Venve. Veterans, statutes exempting frpm license taxes, see Licenses. Veterans, statutes preferring veterans for of- flpe, see Pkefebence La-^^. Yotirig. prpvisipns respecting, see ELEq^lONS. Wages, statutes giving employees jifins for, ^ee JIaster and S^|;rvant. Wages, statutes regulating tiroe of payment o.f, see Master and SgEVANf . Witnesses, statutes abridging cppstitutional privilege of, see Witnesses. Constriiction of incon.sistent provisions or amendments of constitutiPn, 18-725. Proceedings of constitutional convention as aid in construing constitution, 10-1146. Provision ojt ponstitutipfl for amendment thereof as mandatory ox directory, 15- 786. Necessity of app?-qyal by executive of pro- posed co^^stitutiopal amendment, 4-7ft3. Mode of entering proposed constitutional amendments on legislative journals, 3-768. Self-executing provisions of constitutions, '7-627; 18-199. Impairment of obligjition of contracts by jii; dicial decision, 4-93; '9-112'!.' " Prohibiting revival of judgments as iippair- ment of aljligation pf contracts, 3-i!|.48. Repeal or modification of statute affecting municipal corporation as impairment p| obligation of contract between §tat€ and municipality, 4-794. Municipal ordinance as within purview of clause in Federal Constitution asainst impairment of obligation of contracts, 12-503. Impairment of ordinance granting privilege as impairment of contract obligation, 3-88. What is cruel and unusual punishment, 19- 725. Constitutionality of initiative apd referen- dum provisions either in gtate constitu- tions or municipal charters, 11-920. Long acquiescence in validity of statute as aflfepting its constitutionality, 16-877. CONSTBTTOTION. Qf pontracts, spe CpNTBACfs. Of ordinances, see ORDiNAuppa. Of statutes!, see Statutes. Of wills, see Wills. CONSTBUCTIVB CONTE|£FT. See Contempt. CONSTRUCTIVE! SERVICE. See Summons and Process. Qqi?||,T5lUOT?YB '^l^tTSTS. See Trusts. eOXSVhAB, AQENTS. Jurisdiction of action against foreign consul or other commercial agent oi foreign country, 19-915. cpj?:^'EmPT. Eo^ei: of legis^t\^^fi ox, Ipgialativp epmmittgg to punish witness for contempt, 7-877. Power of magistrate or justice of ppace to punish witness far cdntempt, 9-316. Right of one court to punish as contempt vio- lation of order 'of anot'her cdurt, 11- 1037. When contempt is committed in " p,;'^S£nce " of eouvt, 17-220. Legislivtive ^egijl^tiwi p| power pf court tft punish for conte^^pt, 1^-759. Ppndency of cause as essential element of con- tempt by publicatipn in newspaper, 3-763; 18-664. Disclaimer of intent as defense to chq,rge pi contempt by newspaper publieatioii,' 13- 502. Truth of newspaper publication ft^ justifica- tion or defense to charge of contempt, 10-692. ■ " " ' " ' "'"'^^' ' Contempt by publicatipi) o,x statement rpflept- ing upon ^u^ge in p.er|prinf ncg ql iflinis; t^ri^] dut^e^, }g-Q^S;' Disclosure by grand jurpr of proceedings oE grand jury £\s pp.ntBmpt of coprt, 15-257. Attempt to bribe or influence juror as con- tempt, 15-747. Aiding, procuring, or advising dis_pbedipnce to avfbpoena fis conteinpt of c6ur|j 18-319. Cpntempt \tj baplcrapt in |aiiii(H ta turn over property, 20-889. Viplatipn qf iniUP.Ptipn by p^rsfin not party to suit as criminal coi|,tgHipt, 8-^^; 20- U9. Disabilities of person in contempt of court, 3-463. ■ ■ ■ ■ Inability to comply with prdej- or decree !)s defense to clidrge ofcoptenipt, 15-943.' ' Sufficiency pf affidayit on ipforpiritifln ap'l belief to sijppqrt pfln^gpipt prqcpedings', 14rlQ42. Pioof in prp?eputJRn fpr ppnstructive con- tempt, 4-183; 11-532. Term of imprisonment for civil contempt, 6-53S. Imprisonment of woman for contempt as vio- lation of constitutional or st|itutory pro,- vi'sion against imprisonment in ' civil action, S-66. * ' ' ' Appeala|)ilit5 pf ji^dgnj^pts in ppntppip^ im- der appesj-l pj;^futp^, 3-7^9; IJrl^l. CONTEST — CONTRACTS. '4S CONTEST. Of efection, see kiJECTiONS. Of tax, see Taxation. Of will's, see Wilis. CONTINGENT REMAINDEBS. See IREiiAtNDEfeS. CbNTiNGENT WII.LS. Siee Wilis. CONTRABAND OF W^AK. Contraband of war as including persons, 15- 241. CbNTBACTOBiS. Generally, s^ C(>ntkacts. Independent Contractors, see that title. fl. 10. 11. CONTRACTS. CapXcAty of PeeS6ns To XDonTHact, 46. Consideration, 46. Formation, 46. Constbcction, 46. Validity Respecting Subject-mattek, '46. Implied Contract's, 47. BuiLDisG OR WoEKixe Contra'cts, 47. Excuses fob NoNtteRi'oEJiANcfe, 47. Rescission and Termination, 47. EEilEDIES or PAETlfeS, 47. Damages, 47. Accord and Satisfaction, see that title. Of affreightment, see Ships and Shipping. Of agency, see Agency. Annuities, see that title. Antenuptial agreement, see Husband and Wife. To arbitrate, see Ahbitbat*ion and AwA'ttD. Assignment of, see AsStoNMiiJfTS. BetweSii at'tor'ney a'nd client, see At¥6kneys AT Law. Of bailment, see BAiLlfeNts. Benevolent or Beneficiat, Associations, see that title. Breach of Promise of Marriage, see that title. .Of brokers, see Brokers. Building contracts as affecting mechanics' liens, see Mechanics' Liens. CanrfelTa'tion of, '^e Can'cellation and REScissiok. Of cai'riers, see CABinfeRis. CHAMPERTY AND MAINTENANCE. See that title. Charter-parties, see Ships and Shipping. Compounding Offenses, see that title. Of compromise, see Compromise and Settle- ment. 'CoN'J'LicT OF Laws, see that title. 'Of corporations, see CJorporationr. Bv counties to search for property not taxed, see 'C6'un¥i'eS. CONTRACTS — contihued. By 'douft'ty crtmlnissioners extending beyond term of office, see Counties. COvEjfjAtiTTS, s'ee that titW. Creating monopolies, see MONopoLliiS and Corporate Trusts. Cropping agreements, see LANotoBD Knd Ten- ant. IJeeds of trust. See MORTGAGES AND bEEDS or Trust. Electric company's liability lEor injuries to person on premises to which current is supplied as based on breach of contract, see Ei.ECTRic Light and Power Com- panies. For employment of union labor only, see Labor Combinations. Exchange op Property, see that title. Exempting railroads from liability for fires, see Railroads. To fight as defense to actions for assaults, see Assault and Battery. Fixing cliaracter of property as real Or per- sonal, see Personal Property. FJxtiires as subject of, see Fixtures. Of foreign corporations as affected by non- compliance with statutes, see Corpora- tions. Fraud as -affecting, see also Fraud and De- ceit. Frauds, Statute of, See that title. Of guardians, see Guardian and Ward. Of hiring, see Master and Servant. Of Imsband, see Husband and '\¥ife. Impairment of obligation of, "see Constitu- tional La*. Implied contracts of municipalities, see Mu- NTCTPAi, Corporations. Indemnity Conthacts, see that title. Independent Contractors, see that title. Of infants, see Infants. Injiihc'tion aS remedy, see Tkj'uN'Ctions. Insaiie person's liability fbV breach of, see Insanity. "Of insW-aaii^e, 'See INSURANCE. Interest, see that ti'tle. Interference with Contract Relations, see that title. Laiv governing, see Conflict of Laws. Of law pai-ttfevship as affected by death of partner, see Partnership. Limitation of Actions, see that title. Mandamtts as a remedy, see Mandamus. Of marriage, see jNTabriage. Of master and servant, see Master and Ser- vant. Monopolies and Corporate Trusts, see that title. Mortgages, i^e jMoRtgages and Deeds of Trust. Of municipal dbTfioi'&tioiis, see Municipal Corporations. Options, see that title. ' Oral contracts within statute of frauds, see Frattds. Statute of. Parol evidence affecting written contracts, see Evidence. 'Of pnrt'ripvsliip, see Partnership. iSi'vity of contract as element of negligeVlc/e, see Negligence. 46 INDEX TO ITOTES, 1-20 ANK CAS. CONTRACTS — continued. Probate and contest of wills as subjects of, see Wills. Of promoters as imposing liability upon cor- porations, see COKPOKATIONS. By public ofBcers as to compensation, see Public Officees. Of railroads, see Railroads. Reformation in equity, see Reformation oir Instruments. Releases, see Release and Discharge. Rescission by writing, see Frauds, Statute OF. In restraint of marriage, see Marriage. Rewards, see that title. Of sale of goods, see Sales. Of sale of land, see Vendor and Purchaser. Sexual Intercourse procured by promise of marriage, see Seduction. Specific performance of, see Specific Per- formance. Statute of frauds affecting, see Frauds, Stat- ute of. Of subscription to corporate stock, see Cor- porations. Sunday contracts, see Sundays and Holi- days. Suretyship, see that title. Telegraphs and Telephones, see that title. Timber as subject of, see Trees and Timber. Trees as subject of, see Trees and Timber. For union labor, see Labor Combinations. Usurious contracts, see Usury. Verbal agreements, see Frauds, Statute of. Of water companies, see Waterworks and Water Companies. Of wife, see Husband and Wife. I. Capacity of Persons to Contract. Contractual capacity of deaf and dumb per- son, 14-53. Degree of intoxication of contracting party necessary to invalidate contract, 8-254. Admissibility of opinion evidence as to men- tal capacity of person to execute con- tract or deed, 4-888. 2. Consideration. Agreement unenforceable because of statute of frauds as consideration for new con- tract, 19-1182. Antecedent debt as consideration constituting grantee or mortgagee purchaser for value. 3-395. Privilege of naming child as valid considera- tion for contract, 11-482. Discontinuance of bastardy proceedings as consideration for contract, 2-493. 3. Formation. Time when contract consisting of letters or telegrams showing ofTer and uncondi- tional acceptance is complete, 6-378. 4. CONSTRrCTlON. Grammatical construction of contracts, 6-55. Preliminary negotiations as aid to construc- tion of Instrument, 18-257. CONTRACTS — coniinnrd. Rule of construction that language used by promisor is to be construed as promisor thought it to be understood by prom- isee, 12-392. 5. Validity Respecting Subject-matter. Vallditv of contracts in violation of statute, 1-333; 11-664. Effect on legal contract of subsequent statute making same Illegal, 10-1024. Validity of contract that may furnish incen- tive to crime, 19-133. Validity of contract executed by one party on Sunday without knowledge of other party, 16-632. Validity of contract completed on secular day where preliminary negotiations are con- ducted on Sunday, 20-36. Validity of contract for contingent compen- sation in procuring legislation, 6-218. Validity of contract requiring, as incident to full performance, procurement of legis- lation, 16-850. Validity of contract tending to influence ap- pointment to public office, 7-874. Validity of contract by public officer to ren- der services for sum less than compen- sation fixed by law, 19-1075. Validity of contract tending to influence lo- cation of public building, 8-484. Validity of contract in restraint of trade cov- ering whole state or country, 20-661. Validity of contract not to engage in particu- lar business where time Is unlimited, 16-254. Validity of contract by servant not to engage in similar business as master after ter- mination of employment, 8-155. Validity of contract designed to suppress competition in bidding for contract to perform public work, 20-386. Illegality, as gambling contract, of contract for sale of property for future delivery, where one party only intends deliverv, 11-440. Law governing validity of gambling contracts or agreements collateral thereto, 17-48. Validity and enforceability of contract by carrier to carry goods at discriminating rate fixed by mistake, 16-455. Legality of contract to procure testimony, 13-212. Validity of contract to procure compensation for stolen property, 7-1010. Validity of contract by attorney with third person to procure legal business, 17- 690. Illegal contracts as to compensation by agents of vendor or vendee, 1-573. Validity and effect of agreement by heir re- linquishing expectancy in estate in con- sideration of advancement, 17-725. Legality of blacklisting agreements, 1-474. CONTKA PACEM — CONTIIIEUTION. 47 CONTRACTS — continKcd. Marriage brokerage contracts, 1-696. Validity of contract intended to facilitate procuring of divorce, 11-377. Agreement between insured and insurer dis- criminating in favor of former as against other policy holders, 18-759. Validity of contract to purchase editorial comment in newspaper, 15-42. Enforceability of agreement compromising il- legal contract, 11-612. Admissibility of parol evidence to show ille- gality of contract, 16-388. Province of court or of jury to determine whether contract is contrary to public policy, 11-124. 6. Implied Contracts. Implied contract as to rate of interest, 20- 1268. Right of child to recover for services rendered during minority to person standing in loco parentis, 20-394. Implied contract to pay for services rendered by brother or sister in same family, 8- 203. 7. Building ob Working Contracts. Enforceability of promise of extra compensa- tion to contractor who refuses to com- plete working contract, 14-499. Conclusiveness of decision of architect or en- gineer under working contract, 10-575. Right of contractor to recover for extra work ordered by architect but not ordered in express manner provided by working contract, 7-213; 17-81. Discharge of surety on contractor's bond by alteration in work to be done under working contract, 16-347. Use of structure or work by owner as accept- ance waiving nonperformance of work- ing contract, 15-972. Act or default of employer as excusing delay in performance of working contract, 17- 646. Necessity of pleading excuse for npnproduc- tion of architect's or engineer's certifi- cate, made condition precedent to right to require payment, in action for work performed under working contract, 5- 721; 19-905. 8. Excuses fob Nonperformance. Destruction of subject-matter of contract aa excuse for nonperformance, 1-466. Act or default of employer as excusing delay in performance of working contract. 17- 646. Existence of strike as excuse for nonperform- ance of contract in absence of special stipulation relating thereto, 12-313. Existence of strike as excuse for refusal of carrier to receive freight for shipment, 17-483. CONTRACTS — con Hnucd. Liability of telegraph company for delay in transmitting message due to strike of employees, 17-240. 9. Rescission and Termination. Limitations on right to rescind fraudulent contract, 1-910. Rescission of contract by substitution of new contract between same parties, 6-315. Rescission of contract for successive deliv- eries of goods on account of nonpayment of instalment, 11-1049. Right to terminate contract containing no stipulation as to duration, 20-1104. 10. Remedies op Parties. Recovery on contract by party guilty of wil- ful default, 5-613. Successive actions for breach of contract per- formable in instalments, 6-63. Remedies of party to contract upon antici- patory breach thereof or prevention of performance, 1-427; 12-1108. Right of party to illegal contract, before per- formance of illegal purpose, to repudiate contract and recover consideration, 11- 633. Recovery of consideration paid on executed illegal contract when parties are in pari delicto, 4-714. Equitable relief against gambling contracts, 1-154. 11. Damages. Stipulated forfeiture for breach of contract as penalty or liquidated damages, 1- 244; 10-225. Exemplary damages in action on contract other than contract to marry, 16-104. CONTRA FACEM. Conclusion of indictment, see Indictments and Infobmations. CONTRIBUTION. Exoneration, see that title. Between joint tortfeasors, see Release and Discharge. Contribution between tortfeasors, 2-528. Right of stockholder to enforce contribution against co-stockholders, 4-734. Right of devisee of land encumbered by tes- tator to have incumbrance discharged out of personalty to disappointment of legatees, 8-592. Liability of person becoming surety at re- quest of cosurety for contribution to latter, 16-856. Measure of contribution between sureties who are bound in different amounts, 18-853. Running of statute of limitations against contribution between sureties, 15-1030. Admiralty jurisdiction of suit for contribu- tion, 20-1236. i8 mTi:S:X TO lirOTEB, 1-20 AN3^; CAS. CONTRIBUTORY NEGIil&fiNCti: COFART]ETlTic(N. Uiiinbbl-pdratfed associations, see Societies AND UNINCOEPoliATSb As'sOfclATiONS. Usury as defense jjrohibited hy statute, see Usury. Water, companies, see Waterworks and Water Companies. 1. definitions And Distinctions. Distinctioii between public and private cor- poration, 1-371. Word " perSon " aS including private corpo- ration, 20-737. Term "' corporation " as including " foreign corporation," 13-814. What is '' moneyed corporation," 20-136. What IS 5«osi-public corporation, 18-1063. 2. Promoters. teelation of promoter to tdrjibr'ntion and stockholders, 4-669; 17-269. Liability of corporation to thifd parties n'n contracts of its jjroitioters, S-2'(32. 3. Incorporators. Power 6f riiarried woman to be ilico'rporator, 11-807. 50 INDEX TO NOTES, 1-20 ANN. CAS. CORPORATIONS — continued. 4. Name of Cobpokation. Change of name of private corporation, 19- 1238. 5. Rights and Powers Generally. Right of de facto corporation to exercise power of eminent domain, 9-594. Right of corporation to practice profession or trade for which license is required, 12- 674; 19-882. Right of corporation to license for sale of intoxicating liquors, 17-1001. Power of corporation to guarantee stock or bonds of another corporation, 11-891. Acquisition by corporation of stock in an- other corporation for purposes of con- trolling same and preventing competi- tion, 8-64. Right of corporation to acquire its own stock, 17-1261. Power of private corporation to lease its real property, 4-1061. Effect of ultra vires purchase of land by cor- poration, 17-529. Right of corporation to insure lives of offi- cers, 16-295. Right of corporation to sue for libel or slan- der, 5-550. Right of corporation to attack validity of statute in force at time of its incorpo- ration, 12-558. 6. CrviL Liability Gteneballt. Liability of corporation for libel or slander, 9-443; 17-622. Liability of corporation for debts of predeces- sor, 4-260. 7. Criminal Responsibility. Liability of corporation to indictment for nonfeasance, 5-413. Liability of corporation for conspiracy, 17- 102. Liability of corporation to indictment for homicide, 16-840. Necessity that criminal prosecution of corpo- ration be by indictment, 19-534. 8. Officers of Corporations. Distinction between office and employment, 17-451. Agent of private corporation as " officer," 5- 223. Bill in equity to determine title to office in private corporation, 4-707. Right of director or officer of corporation to compensation for services in absence of express contract, 3-734. Accountability of director for secret profit, to person subsequentlv becoming stock- holder, 18-359. Power of officer of corporation to vote him- self compensation, 11-773; 19-1260. CORPORATIONS — continued. Right of officer of corporation to recover bal- ance due under contract for compensa- tion after insolvency of corporation, 12- 581. Legality of action by majority of quorum of corporate directors, 13-786. Power of president and secretary to execute commercial paper for corporation, 2- 520; 18-729. Liability of person signing negotiable paner as officer of corporation, 6-1000. Power of president of corporation to sell or mortgage corporate property, 19-623. Character of corporate " debts " for which di- rectors are liable, 12-807. Equitable jurisdiction of suits by corporations or receivers against directors or officers for negligence or wrongful acts, 7-1121. Criminal liability of officer of corporation for its acts of nonfeasance or misfeasance, 8-383. Misconduct of officers or directors of corpora- tion as ground for appointment of re- ceiver, 17-916. Power of court to remove officer of private corporation from office or to enjoin him from performing his duties, 20-598. Right of director to inspect books and papers of corporation, 17-837. Stockholder or officer of corporation inter- ested in instrument as disqualified to take acknowledgment thereof, 16-140. Imputability to corporation of notice to its officers where latter are engaged in in- dependent acts in their own interest, 6- 679. 9. Stock and Stockholders. a. Shares of Stock. Right of stockholder to preference in sub- scribing for new stock, 9-745. Liability on stock subscription as dependent upon whole amount of stock having been subscribed, 16-1253. Admissibility of parol evidence to show that subscription to stock was conditional, 19-883. Right to withdraw stock subscription, 16-532. Right to rescind or repudiate stock subscrip- tion on ground of fraud after insolvency of corporation, 16-178. Purchase of stock by director as affected by fiduciary relation to stockholder, 2-877. Right of corporation to acquire its own stock, 17-1261. Right of stockholder to enforce against corpo- ration, after insolvency, its agreement to purchase his shares, 10-145. Validity and effect of provision in charter, statute, or by-law creating lien on stock in favor of corporation, 3-188. Mandamus to compel issuance of corporate stock, 16-900. COEPOEATIOES. 51 CO^lPOEATIONS — continued. Implied warranty on sale of corporate stock, 10-168. Validity of transfer of stock not in writing, 6-481. Validity of corporate by-law regulating alienation of stock, 19-702. Effect on sales of corporate stock of seven- teenth section of statute of frauds and equivalent enactments, 18-599. Eight to damages for failure or refusal of corporation to transfer shares on books, 13-299. Taxation of transfers of stock, 6-523; 10-107. Rights inter se of corporation and hona fide purchaser of forged or spurious stock certificate, 5-251. Liability of married woman to assessment on shares in national bank owned by her, 5-743. Measure of damages for conversion of shares of stock, 18-608. Distinction between specific and general lega- cies of stock, bonds, or securities, 19- 1187. b. Voting. Validity and effect of charter or by-law provi- sion excluding preferred stockholders from right to vote, 4-567. Validity of stock voting agreements, 14-938. u. Inspection of Books. Eight of stockholder to inspect books of cor- poration as absolute or qualified, 10- 990; 20-612. Stockholder's right to inspect books of na- tional bank, 1-130. Eemedy of stockholder to enforce right to in- spect corporate books, 19-310. d. Purchase of Corporate Property by Stock- holders. Eight of majority stockholders to purchase corporate property, 14-920. e. Liability of Stockholders. Liability of purchasers of stock from corpo- ration at less than par to creditors of corporation, 5-667. Debt of corporation for which stockholder is liable as including claim for tort, 19- 138. Liability for corporate debts or calls of per- son who holds stock as collateral secu- rity, 10-783. Liabilitv of transferee of stock for corporate debts, 3-1120. Liability for corporate debts of stockholder who transfers stock to escape liability, 6-428; 18-341. Liability as stockholder of transferrer of stock where transfer is not entered on books, 14-898. COEPOEATIONS — continued. ' Individual liability of members or stockhold- ers for debts of corporation defectively organized, 1 5-1 1 44. Necessity of exhausting remedy against cor- poration before enforcing stockliolders' liability, 2-28; 16-1152. Creditor's knowledge that stock is unpaid as waiver of stockholder's liability, 10-90. Constitutionality of retrospective act chang- ing remedy to enforce stockholders' lia- bility, 5-324. Limitation of action to enforce stockholder's statutory liability, 3-505. f. Belief from Ultra Vires Acts. Acceptance by stockholder of benefits of ultra vires act of corporation as affecting his right to equitable relief, 6-126. 10. Regulation of Rates of Coeporations. Power of courts to fix or regulate rates of public service corporations, 9-823. Validity of statute conferring on commission power to fix. rates for public service cor- porations, 14-614. 11. Dividends. Distinction between stock and cash dividends, 9-290. Right of holder of preferred stock to cumula- tive dividends, 6-216. Right to stock dividend as between life tenant and remainderman, 12-650. Right of pledgee of stock to collect dividends, 3-725. 12. Consolidation op Corpobations. Necessity of assent of all stockholders to con- solidation of corporations, 19-1266. Power of consolidated corporation to issue mortgage bonds, 20-1282. Constitutionality of special or local laws an- nexing and consolidating corporations, 3-499. 13. Foreign Corporations. Term ■' corporation " as including " foreign corporation," 13-814. Right of foreign corporation to acquire and hold real property by devise, 6-735. Effect upon contracts of foreign corporation of its noncompliance with domestic stat- utes, 2-63; 13-512. Right of noncomplying foreign insurance com- pany to enforce domestic contract, 9- 338. Necessity that complaint in action by foreign corporation allege compliance with do- mestic statute, 2-1005: l.'?-69. Necessity nf pleading specially noncompliance bv foreign corporation' with domestic statutes, 9-492. 52 INDEX TO I^OTES, 1-^0 ANN. CAS. CORPORATIONS — eontinWe'd. Imposition of li'ceiisfe tax or fefe on foreign cbrjioi-ations, 3-632. Power of state to imjidse additional burden on foreign corporation wliioh has coni- plied with eonflltiofls f6r doihg business in state, 9-981; 17-1251. What, constituted doing business iri stlate hy foreign oorporalion, 2-3()7; 11-320. Suits in domestic forum by hbnresl'd'eilts against fbreign corpolrations, 2-2i0. Liability of cars of foreign rAilroaS to attach- ment or garnishment, 2-349; li-910. Validity of staWite recjuiritfg for'eigA corpora- tion to appoint resident agent for ser- vice of process; 6-42. Who is " agentj". within statute providing for feerVice of process on agent of foreign torp'blation, 1^-200. Statute requiring foreign corporation to des- ignate person upon whom process may be serVed ^s jiroviding eiclil'siVe inode of service, 5-953. Statute 'requiring foreign corp6rSitioli to gra^it irrevocEjble, poT^ter of attorntey to state officaal|tp accept service of summons as applicable to nonresident suitor, 13-53. Liability to suit within state of foreign cor- poration which, has revoked designation of agent for service of process an.d has fee'ase'd t"b 'do buSifee!¥s wiVAift 'state, G- 295. Interference 'by 'courts wi'th in|;ernal aiflfftii^l of foreign corpo'ration, l'6-84. 14. Ddbation and Dissolution. Construction of statutory or charter Iprovi- sion as to duration of corf)6ra,te ex- istence, 19-1213. Concentration, of stock in hands of One person as effecting dissolution of corporation, 8-10^6. Righ't of mihority stockholder or stockhold- ers to ifia'int'ain suit tq Wind tip fft Sii- solve corporation, 15-422. Mode oi 'fettlein'ent with borrowi'ng "Aiemti'ers upon '^r^'afuVe dissolu'tion of tjiilding and loan associations, 4-1080; 10-391. Preference of tri 122. Distribution of assefe arid surp*!us of mutual insurance company upon dis^oTutifeA', 7- 412. Effect of dissolution of corporation upon Ws contracts of lease, 13-577. Power of corporation after di'^sotu'tion to prosecute pending or new acfiori, 17- 225. CORPUS DEIilCTI. Necessity of -proof of corpus delicti, 1-823. Proof of 'corpus delicti in larceny by circum- stantial evidence, 16-1214. "Proof of 'c6'r"pii's deticti in prosecution for arson, 13-803. mce of. preferred stockholders in di ribWtio'n OT 'assets 'of corporation, 2C is- 20- CORPUS DELICTI — contiHued. Protef "of corpui delicti in prosecution for embezzlement, 17-630. Prb'Of of corpus delicti in larceiy by circum- stantial evidence, 16-1214. COBBESFONDiBNCE SCHOOI^S. Carrying on correspondence school as inter- state commerce, 14-967. CORKOBOBATIO]^. Of confessions, se6 Criminal LaW. In incest, see Incest: Of prosecutrix in rape prbrfeciltib'n, 'see Rape. Of seduced female,, see Seduction. To support conviction fOr perjury, ^e Peb- JUEY. 'cbSTS. Agairibt deJerid'i'n't not se'rved personallj', 'see 'Cdb'K'Ps. Alimony and Suit Monet, see that title. On dismissal of 'a^^ekl, see Appeal and . Ekbob.^ ^ ,, Exemption froin 'execvition as extending to costs, see Executions. Of receivership, see Seo'eivebs. Ki'ght of per'soii rianie'd 'as executor to recbVer from estate expenses of attempt to sus- tain will, seo ExiicuTOBs and Adminis- tbatoes. Right (k paf ty "ap'pearing for hiikitefi to tax attorney's fees as costis, S-834. L'iabilit'y 6'f state Or federa"! governiiien^; for costs, 8-398. ffigh't to i'ecpver atWrney's fees in action o'n appeal te'ftd, l'5-y23. Validity of statute allowing taxation, as co^s, "of 'at'tor'riey'& fees In kctidfi fAv personal service's, 17-282. Lia'bility of husbSind for counsel fees, incurred by wife in diVorCe action, 15-21. Constitutionality of statutes requiring pre- payment, ,or ,t^x?,tion as costs of jury fees, 5-930; 12-378. taxation jis cos'ts of fees,^ milekge, etc., of ■ivi'triess su'b'f)'ceii&ed but riot call^ on to testify, 6-1017. 'Ex'pense 'oi 'procuring feond Hi action 'as item 6'f taxable costs, 'i&-12(ei. Allowance of counsel fees or costs in matri- 'mOnia'l action penffihg 'ap^ekl, 3-51; 15- 22!). Liability for costs of trial court after reversal 'cif 'jvtSgrrfi^at 'h'y ap'pella'te co'u'rt, 'i-%. Imposition of cgsts as co'nS^ition of granting .fi^ 'trfil for ins{iKic'ie9icy of eViiKende, 7-183; ^6-41. Right of defendant to deniiani security for 'cfi.st's after answer, '8-'S'4i. tlevinw of ciia'nc'ery decree for costs oiilv 6- 100. ^ COTENANTS — COURTS. 53 COTENANTS. See Tenants in Common. COUNTY SEAT. Power q£ cpuft ^p sjt at place other th^n, aee CppBTS. COUNCIL. Of municipality, see Municipal Corpora- tions. COUPLING CABS. Injuries to railroad employees, see Master AND Servant. COUNSEL. Argument of, see Triai,. ArtORNEYS AT LAW, See that title. Briefs of Counsei., see that title. Suicide, counseling commission of, see Sui- cide. cqyiSTSE^ ^BES. For collection of assessments, see Special ob Local Assessments. Compensation of attorneys, see Attorneys at Law. Costs, see that t});le. ILTpon dissplutipn of attfvchpi^gnt, §?g Attach- ment. Mfpj^aniqs' liens providing fo;-, se§ INfEfiH^^- ics' Liens. In partition proceedings, see Partition. COUNTEKCLAIiyi. See Set-off and Counterclaim. CpUNTIES. In which actions to set aside contract for sal^ of realty must be brought, see Courts. Change in boundaries after recordation of in- struments, see Records. Change of Venue, see that title. Garnishment against, see Garnishment. ilunicipal corporations generally, see Munici- pal Corporations. Venue, see that title. Liability of county for expenses of jurors du>ing trial, 17-1232. Power of cpunty tp make contract to pearoh for property omitted frpm taxatjpn, 4- 140; U-W- Statutes requiring pounties to support mili- tia, 1-128. Jnterfl^t on cpunty warrants, 3-459. Legislative delegation to counties of power to enact criminal ordinances, t-743. Power of members of board of county com- missioners to make contract extending beyond their terni of office, 12-088. Time of apportionment of assets or liabilities of counties, towns, pr municipalities in cape of divjsipn of t^fritpry by legisla- ture, 18-324. CpXTPONS. Attached to railroad tickets, a^e C^-RIJIERS. COURSE OE EMPLOYMENT. See Master and Servant. COURTS. 1. JpjSJSPICIION, 54. 2. Place pF IJold'ing, 54. 3. Bu|:;ps,'55. 4. OFrioBRS OR Attendants of Cquots, 55. 5. Deci^iojts, ^5. Alimony, powef tp modify decrees for, see 4LiMQJ|y and' Suit Mp^fEY. Amount in CfoNTROVEBSY, see that tjtJe. ^.ppellat^ jfiri94ictjon pf, see ^P^^'Vi' ^^^ Error. Appointment of co-a4fpiifi?tratpr, spe EXEpu- JPJJS fJTD AD^IJNJ^TR^TpRS. ATjqgNfSYg Aj L4.W, gpe tljat ^itle. Banicriiptcy geji^x^]y, ^ee Pankrupo^cy. Briefs of "Counsel, see that title. ' Pf)filffi}Rn pf jury, ses JpR^ AJfp Jpff Tfil^L. CoNTEjiJB'j:, see that tjtle. Courts-iii,aj;tia], civil ppijrts' po>ye^ tp review prpp'ep4ings pf ,' sep CpURfS. Criminal prosecijtions, see Cjsiminal L^^. DEPOSlTffJN^, see tjiat tj^le. I^isljarijiept of attprp^ys, see AirpBNEYS at La|v. Discretionary power exercised undey statute as dup p):ppe^^ of Jaw, ^ep Dpp PppcESS OP Law. Of eiH'ty; ^^P pcjUEfT ^ikJ cros3-refe;rences J;fi|epjfn,def. Exclusion of persons from court room, see Trial. F^ir? and expositipffp. rpyi^w pf ^JSi?.r43 at, see' ]?AjBR AND ;p5^pog);i'ip:^p. Findings, see that title. Grand' jury, power to reasaepifjle, sep Grand Jury, Habeas Corpus, see that title. Holidays as affecting acts and prpceedings, see Sundays and Houdays. Ipjunctipn iig^inst jpdifiial proceedings, see INJUNCWJPNS. Interest, powpv to add to verdict, see Trial. JpoGps. spp tliaj; title. •Tpfioi^pNfs, p,e|? ffiiit title. Judicial notice, see Evideng^., 54 IXDEX TO NOTES, 1-20 AWN. CAS. COUNTS — continued. Jurisdictional sum, deduction of amount due on note to, see Bills and Notes. Jurisdiction in divorce cases, see Divorce. Jurisdiction in garnishment proceedings, see Garnishment. Jurisdiction of crimes committed on military reservations, see Criminal Law. Jurisdiction of ifalse pretenses, see False Pbetenses and Cheats. Jurisdiction of oflfenses in territory consti- tuting new county, see Venue. JuRT and Jury Trial, see that title. Jury, coercion of, see Jubt; and Jury Trial. Leave to prosecute quo warranto, see Quo Warranto. Legal existence of as subject of inquiry, see Habeas Corpus. ]\Iandamus, see that title. Money paid into court, ovniership of, see Tender. New Trial, see that title. New trial on court's motion, see New Trial. Overruling plea on court's motion, see Trial. Per.tury, see that title. Physical examination, power to compel sub- mission to, see Physical Examination. Process, see Summons and Process. Prohibition to restrain action of, see Prohibi- tion. Public lands, protection of rights of claimants of, see Public Lands. Questions of law and fact, see Trial. Quo warranto, leave to bring, see Quo Wae- RANTO. Rates of public service corporations, regula- tion of, see Corporations. Reoei\'EBS, see that title. Religious societies, review of expulsion of members of, see Religious Societies. Removal of Causes, see that title. Ifen judicata, see Judgments. Return of officer, power to compel amendment by, see Sheriffs and Constables. School regulations, review of, see Schools, Sentence and punishment, see Criminal Law. Stare Decisis, see that title. Summons, see Summons and Process. Trial and matters relating thereto, see Trial. Trustees, appointment or removal, see Trusts AND 'Trustees. United States Courts, see that title. Venue, see that title. Verdict, power to add interest to, see Trtat., Witnesses, limiting number of, see Trial. 1. Jurisdiction. Jurisdiction of Municipal Court to try of- fenses against state laws, 18-53. Jurisdiction of probate courts to construe wills, 8-473. Power of Probate Court to determine ques- tions involving incidentally title to real estate, 5-192. Jurisdiction of Probate Court to determine questions of title to property between estate and stranger, 6-878. Power of Probate Court to reject part of in- strument and admit remainder to pro- bate, 18-388. COURTS — contirmed. Ancillary jurisdiction of bankruptcy courts, 17-973. Jurisdiction of action for damages for viola- tion of Interstate Commerce Act, 4-773. Jurisdiction of suit for infringement of trademark, 15-220. Discretion of court as to taking jurisdiction of cause also triable in another juris- diction, 3-1153. Forum in which action for damages to realty must be brought, 3-344. County in which action to set aside contract for sale of realty must be brought, 3-727. Jurisdiction to set aside fraudulent convey- ance of realty situate in another state, 5-533. Jurisdiction of actions against municipal cor- porations, 4-1170; 10-37. Control by courts of act of municipality in letting municipal contract, 17-650. Jurisdiction of court of action against for- eign sovereign or foreign state, 14-575. Jurisdiction of action against foreign consul or other commercial agent of foreign country, 19-915. Interference by courts with internal affairs of foreign corporation, 19-84. Power of court to remove officer of private corporation from office or to enjoin him from performing his duties, 20-598. Power of court to fix or regulate rates of irri- gation company, 16-799. Supervisory control of courts over special of- ficers and boards exercising discretion- ary powers, 2-543. Original jurisdiction of state court of last re- sort to issue mandamus, 20-184. Review of proceedings of courts-martial by civil courts, 17-445. Jurisdiction of civil court to review decision of ecclesiastical tribunal with reference to consolidation or reunion of churches, 10-289. Interference by courts with receipt or delivery of mail. 17-1068. Right to control action as between two courts of concurrent jurisdiction, 1-409. Irregularities in service of process as affect- ing court's jurisdiction upon collateral attack, 1-923. Power of court to decree alimony and costs against defendant not personally served, 2-819; 14-362. Estoppel of litigant to deny jurisdiction of court by previous acts or conduct ad- mitting jurisdiction, 14-1044. Authority of trial court to entertain bill )f review for error apparent after decision on appeal, 18-722. 2. Place of Holding. Power of trial court to sit at place other than county seat, 8-939. COVENANTS — CEIMINAL LAW. 55 COUBTS — continued. 3. Rules. Validity of court rule in contravention of common law or statute, 19-801. Power of court to disregard rules, 6-592. 4. Officers or Attendants op Courts. Power of court to appoint attendants or court officers, 17-904. 5. Decisions. Impairment of obligation of contracts by ju- dicial decision, 4-93; 9-1121. Weight and effect of opinions of courts not officially reported, 11-1107. Opinions of courts as evidence, 19-404. Conclusiveness in domestic courts of foreign will duly probated abroad, 9-422 ; 14- 977. Conclusiveness of decree of probate or Surro- gate's Court refusing probate of ^Yill, 15-68. Immunity from collateral attack of order of Probate Court for sale of decedent's re:il estate, 3-234. Effect upon decision of judicial tribunal of participation of disqualified mpmber whose vote does not produce result, 13- 336. COVENANTS. In apprenticeship deeds, see Apprentices. Bonds, see that title. Building restrictions, see Vendor and Pur- chaser. Of grantors of patent rights, see Patents. Injunction as remedy for breach of, see In- junctions. By landlords, see Landlord axd Tenant. In leases, see Landlord and Tenant. In mining lease for prosecution of work, see Mines and Minerals. Of tenants, see Landlord and Tenant. By vendors of land, see Vendor and Pur- chaser. Acceptance of deed poll as binding grantee as covenantor, 15-683. Construction and effect of absolute covenant in deed conveying property expressly subject to incumbrance, 15-982. Construction and effect of covenant in deed conveying right, title, and interest in premises, 15-1200. Necessity of notice to covenantor of good title to defend eviction proceeding in order to conclude him in action on covenant, 13- 206. Provision in deed whereby grantee assumes existing mortgage as covenant running with land, 15-1055. Covenant to maintain division fence as cove- nant running with land, 15-57. Covenant against sale of liquor as covenant running with land, 14-129. COVERTURE. See Husband and Wife. COWORKERS. See Master and Servant. CREDIBILITY. Of witnesses, see Witnesses. CREDIT. Extension of as waiver of lien, see Me- chanics' Liens. Kepresentations as to, see Frauds, Statute of. Usury in sale of property or performance of labor on, see Usury. CREDITORS. Assigments for benefit of, see Assignments FOR Benefit of Creditors. Composition with, see Composition with Creditors. CRIMINAL CONVERSATION. See Husband and Wife. CRIMINAL LAW. 1. Criminal Responsibility, 56. 2. Jurisdiction of Offenses, 57. 3. Limitation of Time fob Prosecution, 57. 4. Jeopardy, 57. 5. Rights of Accused Respecting Trial, 57. 6. Evidence, 57. a. Admissibility Generally, 57. b. Identification of Accused, 57. c. Confessions, 58. d. Character, 58. e. Proof of Other Crimes, 58. f. Weight and Sufficiency of Evidence, 58. 7. Duty of State to Call Witnesses, 58. 8. Instructions, 58. 0. Sentence and Punishment, 58. 10. Repeal of Statute, 59. 11. Publication of Reports of Executions, 59. Abortion, see that title. Accessories and Other Participants in Crime, see that title. Accomplices, see that title. Alibi, see that title. Appropriation of corporate funds, see Lar- ceny. Arrest, see that title. Arson, see that title. Assault and Battery, see that title. Bail, see that title. • Bank receiving deposit while insolvent, see Banks and Banking. 3)8 I¥DEX TO ISTOTES, 1-20 AS^. CAS. CRIMINAL JjAW — oontirmed. Bastardy proceedings as crijpin^l in nature, see BXsTABDi.' Bigamy, see that title. Bbibeet, see thaf; f^ij^l^- Burden of proof in civil ease based on crim- inal aef, spp EyiDEM^cp. Bdbglaby, see that title. Carrier's liability under statute for failure to furnish aeeommodatioh'sj see Cakkiers. Change of Venue, see that title. Cheating,"see False PKETEisisESAND Cheats. Compensation of prosecuting attorney, see Attoeneys jj^ J^fW: Compounding Offenses, see that title. CfiNSefpAC^, gee tha|i title. Contempt, see that titje. poptfact {(jraigljiiig inceut}vg to pviijie, ya- lidity of, see Contracts. Cojiyjotjp;! of crijpe ypitjltp constitutional pro- vision disfrancljisipg conyJBted persons, sea Elections. Convicts, see that title. Coram Nobis, see' thai title. Coroner's verdict as evjdence, see CoBONEEp. Corporate fiinds, appropriation qf,' see' Lar- ceny. Corporations and corporate officers indictable for nonfeasance or misfeasance, see CoB- pobations. Corpq),i}tipp'^ pirjijfipal ^-pspflnsilbilfty, sgp CoB- ' PORATIONS. Corpus De]l;pj?i, se,e that title. County ordinances, see Counties. De facto officers' responsibility, see Public Officees. Disorderly ppusES, see that title. DiSTUEBiNQ Meeting, ' see ' inat title. Pfvprce for cojjyiction of crime, ^e? DiyOBOE. Dying declarations, see Homicidj;. Election by prosecutjcnf l)etween apts Pfoypn as viola't'ions of liquor law, see Iririoxi- CATiNQ Liquors. Embezzlejien^, see that titje. Embbaceby, ^^e that title. Escape of criminal,' see E^q.^j'^, Prison Breaking, and Rescue. Estoppel ip crjpjinal law, see Est:q?pel. Evidejips generally, see EviDENcp. Evidence of failure of accused t,o attempt to §seape, ^pe JIpcApp, PBfgoif Breaking, -And Rescue. ' ' Evidence qf jatqxicfit^ijg quality qf liquors illegally ' sole}, see Intoxicating' Liq- DOP^. Execution' of insured as bar to recovery on policy, see Insurance. Extradition, see that titl?. Ealijp pfet.eps.es, see False Pretenses and Cheats. Fines, see Fines apid Benau^ies. Forgery, see that title. .Q4.MiifG Afip Gaming Rouses, see that title. Grand Jury, see that title. Habeas Corpus, see th^t title. Homicide, see that titl?. Incest, se? tji^t title. Indictment and Information, see that title ai)d pro^s-jreferences. Injunction against pripiing,l acts or prosecu- tions, see Injunctions. CRIMINAL JjAW — continued. Insanity, see that title. In^f^jjjty inqjjisitipp, sep Iis'S^nity. iNTOxiC4.a;iN0 LiQpftRS, see that title. Judgg^, e}iaf}gf^ o| ^s reyprsibl^ eyfor, s^e IfE^ Jurisdiction of municip^al court bo try pffepses '"against st'a'te laws', see 'Courts. Jury, see al'so JuRt and Jury Teiai.. Justice of peace reopening "case, see ' Justices op Peace. Kidnapping, see that title. Jifindlofd's liability for iiuisance of teijant, see LAijrpLORD and Tenant. .Laecewy, see that title. Libel, see Libe^:. and SLAffOEB. Liquor Isjwsi see I'prTOXlCAflNj^ LiQuqBS. Lotteries, see that title. Malicious Mischief, s'e^ that title. Manslaughter, see ' Homicide. Master's liability for acts of servant, see 'Master and Servant. Master's liability for loss of life of passenger on vessel, see Ships and Shipping. Mayi|e?iI, ^e,e ^.Yin^ titlp. Murder, sep HpjiipipE. New Trial, see that title. Nuj^ancfi pf t^ea^np, landlQr4'? l|fi|}}|ity fof, see pANDLPRD and TEip'A^iT. OBSCjeNiyy; ^pe that (;itl.e. rdin'ances eiiacted ' by counties, see GpijNTiES. Paedons, see that title. Perjury, see that title. Photographing accused persons, see Right of Privacy. Prohibition for lack of jurisdiction of court, see Peohibition. ' ' ' ' ' Proof of unnecessary allegations of indict- ment, see Indictments and Informa- tion^. ' . ■ ' Prosecuting attorneys' compensation, see At- toeneys at Law. ' """' ' Rape," see tliat title. Receiving Stolen Property, see that title. Remand of case by reviewing ' court," S^fe Ap- peal AND E^EOE." " Riot, see that title. Robbeey, see that title. Seduction, see that title. Slander, see Libel and SLANpEE. Solicitation of ' pHAg-jiTYj' see that title. Stolen property, receiving, "see '"Receiving Stolen Property. Subornation of perjuryj see Perjury. Suicide, see that title. ^]m.fMqN8 4J!D Rroce^s, see that title. ^jinday law^, see guND^YS and Holidays. Threats, see that titlg. TBpApoN, see th^t ti/^lp- TBl^f,, ses »lso tfej; tjtjp. tJsuBy, se,^ put title. Venue, see tnat title. Verdict, see also 'T^ial. Voters, ' dis(juallftca'ti6n of by convie/;ign, see " Electioxs'.' ' ' ■ "' "■" Witnesses, see that title. 1. Criminal Responsibility. Responsibility for crime of person mentally diseased from use of intoxieants, 19- 1169. CRIMINAL LAW. 5T CRIMINAL LAW — contiimed. Kesponsibility of deaf and dumb persons for crime, 16-444. Criminal liability of one eoriinaeliiBg, itdvising, assisting, or compelling another to com- mit suicide, 16-522. CrimiriHil liability of one who maikesi sm at- tack, assault, o-r th-e like, for res.ulting injury to third person caused in repel- ling attack, 11-1026. Inducement to commit ofFense' with view to prosecution tlierefor as defense to such prosecution, 17-295. Exemption from prosecution of person becom- ing state's evidence under agreement of immunity, 18-747. Obtainiaig real prO'perty by false pretenses as criminal offense, 18-397. 2. JuKiSDicTiojf OF Offenses. Jurisdiction to try prisoner forciblj' or un- lawfully brought within jurisdiction, 14-523." Jurisdiction to- prosecute c»imes conunitted on federal military reservation, 3-831; 11-753. 3. LuuTATlON as Time fob Pbosecutiott. When criminal prosecution is deemed com- menced within, statute of limitations, 1-319. Kunning of statute of limitations against crime as affected by indictment set aside or (jiiashed, 8-194. 4. Jeoh?abdY. Former jeopardy as issue of law or fact) 11- 993: Examinafcioii- befo-re magistrate as former jeopardy, 18—556. Former jeopardy notwithstanding order of ffiietriali 1-118; 10-1086. Appeal by government after acquittal' as con- Sflituting second jeopardy, 1-664". Conviction for lesser offense on trial for greater as bar to prosecution for greater an new trial, 4-778; 16-12061 Prosecution, for murder or manslaughter after conviction for assault and death of per- son assaulted as second' jeopardy, 12- 819. Trial' in military court aS' bar to prosecution in civil court, and vice versa, 11-645. Right to plead' over after plea of former con- viction or acquital, 8-130. Failure to interpose objection of former jeopardy on second trial as waiver of plea, 6-134. Waiver of objisction to second jeopardy by procuring quashal of first indictment, li4^42«: 5. Rights of Accused' RteaPECTiNO Trial. Right of convict to speedy trial, 17-170. T?ime and msthod' of objecting to sufficiency of indictment, 1-4^9'. CRIMINAL LAVf — contintied. Time and metliod of objecting to indictment on ground of duplicity, 10-1004. Necessity of arraignment in citimiwa! case, 12-704. Right to witMralw pleai of gwilty in (trJB»iii*l action, 8-237; 16-973. Right of prisoner umxtergoing triall to bft free from shackles, 5-959, Comment by pi'oseeiation on failure Of a'4Sus«'d to testify, 20^1273, View in criminal case in absendg of accused as pfejudicial eTror, 11-1159. Waiver of right of accused to be prtesent at rendition of verdict, I3-121'3. 6. Evidence. a). AdmissMUtif Generally'. Admissibility of e^*idence■ of relative physical conditio™ or strengtll- of partitea' ow itoiW of seM-defense, 19-124. Admissibility, as evideBcfe Of crime, of in- criminating articles taken from person of accused, 3-354. Admissibility, to prove guilt, of evi-dence thai accused was armed wlien arrested, 15-1057'. Admissibility in criminal case of evidence ob- tained by requiring, defendant to furnish shoe fo compare with footprint, 9-655. Admissibility in evidence of offer by accused to compromise criminal charge and of ad'missions made in connection there- with, 16-458. Admissibility in criminal prosecutions of evi- dence given by defendant before coroner, 3-517; 12-161. Admissibility in evidence in criminal action of statements made by defendant before grand jury, 9-1215. Admissibility in evidence, in criminal prose- eutioa,. of fontter' plea of guilty, 5-719. ©om.petency in cr'imdnal cases of former testi>- mony af absent- witness, 1-471; 13'-973. Admissibility in evidence' Of Undeiiled accusa- tion of crime; 4-1042; 12-875. Admissibility, in criminal- prosecution', Of'evi- dence of threats by tlwTd person to com- mit crime charged agdinst defendant, 10-323.. Admissibility of evidence- i)o prove fculsity of report upon which- accused- claims to have acted, 11-607. Admissibility on issue of insanity, of evi- dence of ancestors or kindred, 6-29. Burden and quantum of proof on issue of in- sanity in criminal cases, 3-ft26; 15-95. b. Id'entificatioil of Accused. Identity of name of defendant in criminal' prosecution with name of person pre- viously eonvictled as establishing identSty of person, 6-1026; 14^589. Wfentification of accused person by his voice, 14-82; 20-403. 58 INDEX TO NOTES, 1-20 ANN. CAS. CRIMINAL -LAVf — continued. c. Confessions. Admissibility in evidence of confession of de- fendant against himself and codefend- ant, 4-918; 18-274. Admissibility in evidence of part of confes- sion, 9-347. Admissibility of confessions obtained by fraud or trick, 15-274. Sufficiency of extra-judicial confession with- out corroborative evidence to sustain conviction, 10-913. Right of accused to introduce evidence as to voluntary character of confession before admission thereof in evidence, 15-184. Admissibility of evidence in rebuttal of con- fession, 16-791. Right of accused to show insanity at time of alleged confession, 16^1086. Admissibility of improper or involuntary con- fession to impeach defendant in crim- inal case, 17-872. d. Character. Admissibility in criminal prosecution of per- sonal knowledge or opinion of witness as to character of accused, 12-750. Right of defendant in homicide case to intro- duce evidence of his good character, 11- 1189. Admissibility of evidence of character of de- ceased in prosecution for homicide, 4- .■538; 11-229. Admissibility of evidence of reputation of de- ceased's family in prosecution for homi- cide, 18-983. . Right of prosecution to comment on failure of accused to produce evidence of good character, 19-407. e. Proof of Other Crimes. Admissibility, to prove motive for crime, of evidence tending to prove other crimes against defendant, 7-66. Proof of other crimes in prosecution for . bribery, 15-195. Proof of other burglaries on prosecution for burglary, 16-669. Proof of other offenses and similar acts in prosecution for embezzlement, 11-816. Admissibility of evidence of similar trans- actions in prosecution for false pre- tenses, 10-906; 17-464. Proof of other forgeries in prosecution for forgery, 9-456. Proof of other acts of familiarity or inter- course in prosecution for incest, 10-656. Proof of similar .crimes in prosecution for kidnapping, 14^693. Proof of other offenses in prosecution for vio- lation of liquor law. 18-846. Admissibility of evidence of other crimes in prosecution for rape, 8-459; 18-442. CRIMINAL LAW — contirmed. f. Weight and Sufficiency of Evidence. Conviction for crime as conclusive evidence against accused in subsequent prosecu- tion for perjury in denying guilt, 13- 369. Number of witnesses and corroborative evi- dence necessary to support conviction for perjury, 6-812. Conviction for perjury upon contradictory statements of defendant, 13-731. Manner and sufficiency of proof of former proceeding in prosecution for perjury, 17-265. Necessity and sufficiency of proof of guilty knowledge on part of one chargsd with receiving stolen property, 15-899. 7. Duty of State to Call Witnesses. Necessity that prosecution should call all witnesses indorsed on indictment, 10- 247. Duty of state in criminal case to call eye- witnesses of crime, 16-918. 8. Instructions. Propriety of instruction defining reasonable doubt as doubt for which juror can give reason, 11-1019. Right of defendant in criminal case to in- struction as to reasonable doubt deal- ing with individual juror, 11-433. Effect of erroneous instruction as to higher degree of crime where jury are properly instructed as to, and find verdict for, lower degree, 14-989. Right of court to direct verdict of guilty in criminal case where plea of " not guilty " has been entered, 8-808. 9. Sentence and Punishment. Right of accused to be present when sen- tenced, 6-451; 11-813. Necessity of informing prisoner of nature of charge, plea, and verdict before sen- tence, 19-100. Admissibility of evidence in criminal case after conviction in mitigation or ag- gravation of sentence, 14-968. Right of prisoner convicted of offense to have other offenses pending against him dis- posed of finally in passing sentence, 20- 873. Right of prisoner who has received excessive sentence to be discharged on habeas corpus or appeal, 7-144. Effect of invalidity of part of cumulative sentence, 10-511. Power of court to suspend sentence in crim- inal case, 8-386; 14-722. Validity of statute prescribing special pun- ishment for prior offender or habitual criminal, 18-923. Constitutionality of statute conferring on board power to commute sentences of criminals, 4-1111; 14-479. CEOPS — CUSTOMS AND USAGES. 59 CRIMINAL LAW — continued. Effect of puiiisument autually imposed to re- duce grade of crime from felony to mis- demeanor, 8-S21. Imposition of both of alternative punish- ments. 1-734. Laws changing punishment as ex post facto laws, 3-77. Reconfinement of recaptured criminal for re- mainder of sentence, 3-416. 10. Repeal of Statute. Ettect of repeal of criminal statute after judgment, 1-220; 16^69. Statutes prescribing effect of repeal of crim- inal statute on prosecutions for prior offenses, 6-891. 11. PUBUCATION OF REPORTS OF EXECUTIONS. Validity of statute prohibiting publication of report of criminal execution, 10-353. CROSSINGS. Injuries to servants at, see Master and Ser- vant. Passengers crossing tracks, see Carriers. Railroad crossings, see Railroads. Street crossings, see Streets and Highways. Street railway crossings, see Street Rail- ways. CROSS-PETITION. Jurisdiction to grant divorce decree upon nonresident's cross-petition, see Divorce. CROWD. Liability of proprietor of department store for injuries caused by crowd in store, 18-42. CROPS. Landlord and Tenant, see that title. Wife's right to by virtue of estate by entirety, see Husband and Wife. Right of farm laborer to lien on crops, 20- 356. Right to growing crops upon death of life tenant, 14-38. Right of tenant, under lease for fixed period, to crops after termination of lease, 9- 1139. Right of landlord to growing crops where tenant's estate is forfeited by his own act, 15-1033. Succession to growing crops of decedent, 17- 943. Validity of parol reservation of crops by ven- dor of land, 18-504. Validity of mortgage of, or agreement to mortgage, crops to be planted, 5-400. Growing or standing crops as personalty sub- ject to replevin, 5-480. Sufficiency of levy of execution on standing crops, 15-884. Measure of damages for loss of or injury to growing crops, 6-949; 12-782. CROSS BILXS. Generally, see Equity. In proceedings to force mechanics' liens, see Mechanics' Liens. CRUEI. AND UNUSUAL PUNISH- MENT. What is cruel and unusual punishment, 19- 725. CRUELTY. Divorce for, see Divorce. To animals, see Animals. CULTIVATION OP LAND. As " improvement," see Improvement. CURATIVE STATUTE. Power of legislature to enact, see Statutes. CURTESY. Dower, see that title. Necessity of concurrence of seizin and birth of issue to support estate by curtesy, 15-730. Right of curtesy in lands held under contract of purchase, 15-580. Right of curtesy in lands subject to life es- tate, 6-93. Right of alien to take estate as tenant by curtesy, 7-504. Divorce as barring right of curtesy, 17-730. CROSS-EXAMINATION. Of witnesses, see Witnesses. CUSTOMS AND USAGES. See Usages and Customs. CO IXDEX TO NOTES, 1-20 AISTN. GAS. CUTTING OF TREES. See Teees and Timbeb. CT 1>RE& DOCJTRtNE. Gtiiieral charitable intent essential to appli- cation of cy pres doctrine, 1-541. As idem sonans with T, see Names. DAMAGES. 1. Measure of Damages (jEnebally. 2. Elements of Damages. 3. Aggravation Or MlWdAtiON of DAitAtiES. 4. EJCESlPLAiit Or V^MfiTt DAMAQiSs. 5. Mode of Assessment. 6. Inadequacy or Excessiveness of Award. 7. Failure to Award Nominal Damages. 8. StU-ulATions as fel DA«A6ES 6b S'cte- feitukes. P'oT assafllt, s«i* A^SAUW. In attachment, see Attachment. For breach of promise, see Breach op Promise of MASSiAca: Carrier's delay in transporting goods, see Carriers. ,_, For carrying passenger beyond destination; see Carriers. Check wrongfully dishonored, see Checks. For condemnation of land, see Eminent Do- JiAlJf. As condition to rescission of contract of sale, see SAtSa. For conversion of or failure to deliver house- hold goods, see Conversion. For conversion of shares of stock,- see Cor- porations. Counsel fees as damages for dissolution of in- junction, see l-^JiiNfrioiiS. For crops injured or destroyed, see Crops. For death by wrongful act, see Death by Wrongful Act. Decree awarding of as alternative to injunc- tion, see Injunctions. Depreciation ai vahie of ftdiJiHy replevied, see Replevin. In ^change; of property, see EiftHilf(5* Olr Property. Fines and Penalties, see that title. Under ifldeninity coWralcts, see iNftEMtlriT'* Contracts. To infant for persortal injiftries-, see Infants. For injuries to live stock, see Animals. For injury to lateral or subjacent support/ see Adjoining dwNEEs. Interest on value of premises as recoverable in ejectment, see SjECttiiil^T. To landlord for tenant's failure to repair, see Landlord and Tenant. Law fToveyntrtg,- see CONFLief OS- 1/AWS. For liquor license wrongfully revoked, see In- toxicating LWJUOBSv DAMAGES — continued. To mines, see Mines and Minerals. Against municipality as affected by claiui filed, see MtiNiciPAi, Corporations. Opinion as to damage to realty, see Evidence. ]?dt pitrt petfdrilidhce of coiltract of Sef-Vlfces, see Frauds, Statute of. For personal injuries to infant, see Infants. For pollution of watercourse, see Waters and WATERCOURSES: I*or property taken for public use, see Emi- nent Domain. For railroad's failure to erect station, see EAILfiOADS. E^al estate brdker's right to rfecoter tfoiix purchaset, see Brokers. EeiiEaSe and Discharge, see that title. Respecting sales of goods, see Saues. Respecting sales of landSj see Vendor and Purchaser. For seaman's wrongful disehargfej see S'siPS AND Shipping. Seduction as element, see Breach of Promise OP Marriage. Specific performance where contract provides for liquidated damages, see Specific Performance. In telegraph cases, see Telegraphs and Tele- phones. To tenants; see Landlord and. Tenant. For trees injured or destroyed, see 'Trees and Timber. For vessels lost, see Ships and Shipping. Sy wife for loss of earnings, see HijSb'And And Wife. 1. Measure of DAMAriiis dsji^BkttY. MedSiire of dariiages for fdSs' or degtruetiofi of jjfopertv having no msirkeit value, 9-1148." teaSure of damage^ recoveraWe by' wife 6i child for death of htf^'Eind or parent by wrongful act, 16-931. Meastife of (inHin^ed where' t^«aiit hdlds oVef without consent of landlord, 17-2184. 2. Elements of Damages. Eigitt to recO^'ev daftia^es for bodily pain and suffering resulting from fright witliout actual pdysical violence, 12-741. Right, to recover for future prain and suffer- ino; in action for personal injury, 9-1051. Necessity and contpetency of evidence as to mental suffering, 2-55. Recovery of damages for mental suffering for physical injuries of another, 5-579. Loss of time as eTeinent of d'almages for loss of property, 17-1080. Business profits as element of daiirages for peHtiUSi fnjurieg, 11-45; H-dSi. Impairment of prospects of marriage as ele- ment of damages for personal iniuries, 15-53. Loss of soiftVty o* m'M stg eie^eirt 6f damages in action by parent for injuries to child, 18-4!79v DAMS — DANGER 61 DAMAGES — coniinued. Losa of unborn child as element of damage in action for personal injuries to woman, 19-266. Eight to recover damages for future disabil- itv in absence of special allegation thereof, 20-116. Admissibility of evidence in action for per- sonal injuries, of lack of cdiicxtion or fitness of person injured for other pur* suits, 14-856. Allowance of interest upon damages for eon- version of property or injury thereto, 1-763. Recovery of consequential damages for breach of implied warranty on sale of food, 16- 497. 3. Aggravation or Mitigation of Damages. Attack by defendant on plaintiff's character as aggravation of damages in action for breach of promise of marriage, 19-1128. Necessity of pleading specially matters in mitigation of damages, 10-219, Gratuity from third person as mitigation of damages, 1-213; 10-794. Eight of defendant sued for conversion of chose in action to show insolvency in mitigation of damages, 6-841. Provocation in mitigation of damages for as- sault, 1-899; 19-762. Admissibility of evidence of benefit to owner in mitigation of damages for trespass, 20-925. Admissibility of evidence of provocation in mitigation of damages in action for libel or slander, 4-923. Admissibility of evidence of retraction in re- duction of damages for libel or slander, 15-84. 4. EXEMPLABT OB PUNITIVE DAMAGES. Power of court of equity to award exemplary damages, 15-547, Exemplary damages as matter of right, 19- 574. Eight to recover exemplary damages for as- sault, 11-1175. Exemplary damages in action on contract other than contract to marry, 3-413; 16-104. Punitive damages in action of replevin or claim and delivery, 4-71. Injury to person as warranting recovery of exemplary damages in action for tres- pass on realty, 16-75. Eight to recover punitive damages for failure of carrier to transport baggage to proper place, 11-837. '^'^alidity of statute authorizing; recovery of exemplary damages for act punishable as crime, 9-638. Functions of court and jury in allowance of exemplarv damages for libe) and slan- der, J4-823, DAMAGES — continueJ. Inadequacy of verdict for punitive damages only as ground for setting aside verdict, 20-879. 5. Mode or Assessment. Eight of defendant in personal injury case to have jury assess separately damages for physical injury and for mental shock, 20-990. 6. Inadequacy or Excessiveness op Aw abb. Inadequacy of damages in personal injury ac- tion as ground for setting aside verdict, 8-903; 17-1073. Inadequacy of verdict for punitive damages only as ground for setting aside verdict, 20-879. \Vhat is excessive verdict in action for death by wrongful act, 18-1209. What is excessive verdict in action for per- sonal injuries not resulting in death, 16-8. What is excessive verdict in action for breach of promise of marriage, 16-981. Necessity of consent of losing party to re- mittitur of damages, 2-675. Remittitur when excessive verdict is granted through passion or prejudice, 3-939. 7. Failure to Award Nominai, Damages. Failure to give nominal damages as reversible error, 5-225. 8. Stipulations as to Damages or Fortei- TURES. Deposit by tenant to secure performance nf stipulations contained in lease as pen- alty or liquidated damages, 19-215. Stipulated forfeiture for breach of contract as penalty or liquidated damages, 1-244; 10-225. DAMS. See Waters and Watercourses. DANCING SCHOOIiS. Statutory regulation of dancing schools or academies, 19-631. DANGER. Automobiles as inherently dangerous, see Motor Vehicles. As element of damage to land by construction of railroad, see Eminent Domain. Explosions and Explosives, see tlmt title. Opinion evidence as to whether wni-k. situa- tion, appliance, etc., is dangerpus, see Evidence. Railroads, see that title. Spring Guns, see that title, G2 INDEX TO NOTES, 1-20 ANN. CAS, DATE. Of crime as alleged in indictment, see Indict- ments AND iNrOBMATIONS. DAT. Day's labor, see Labob Laws. Time, see that title. DEAD BODY. Burial of, see Cemeteeies. Undebtaivebs and Embalmees, see that title. Right of property in dead bodies of human beings, 3-132; 14-470. DEAF AND DUMB PERSONS. Contributory negligence of deaf persons, see Negligence. Contractual capacity of deaf and dumb per- son, 14-53. Responsibility of deaf and dumb persons for crime, 16-444. Mode of taking testimony of deafmute, 9-88. DEATH. Abatement of action by, see Abatement and Revival. Accidental death within insurance contract, see Insurance. Of annuitant, see Annuities. Bigamy as affected by belief in death of for- mer spouse, see Bigamy. Divorce action abated by, see Divobce. Divorce, vacation of decree after death of party, see Divobce. Dying declarations, see Homicide. EXECUTOBS AND Administbatoes, See that title. Expert testimony as to life expectancy, see Lite. Homicide, see that title. Insubance, see that title. Of judgment plaintiff as affecting time to ap- peal, see Appeal and Ebbob. Of partner, see Paetnebship. Of public officers, see Pubijc Ofpicees. Of servant during term, see Mastee and Ser- vant. Testimony as to transactions with decedents, see Witnesse.s. Trust as affected by death of donor, see Teusts A'^n Trustees. Wills, see that title. Of witness rendering former testimony admis- sible, see Evidence. Facts which must be shown in connection with absence to establish presumption of de^th, 7-573; 14-242. DEATH — continued. Right to and effect of administration on es- tate of person presumed to be dead, 3-1126; 14-148. Right of party to instrument to deny execu- tion thereof by himself after death of other party, 17-398. DEATH BY WBONGFUI. ACT. CrviL Damage Acts, see that title. From intoxication, see Intoxicating Liq- UOBS. Law governing distribution of damages, see Conflict of Laws. Survival of action, see Abatement and Re- vival. Simultaneousness of injury and death as af- fecting action for damages by survivors of injured person, 3-54. Suit in foreign jurisdiction under statute per- mitting recovery for death by wrongful act, 2-805; 13-1036. Right of parent to recover for death of adopted child, 15-148. Right of parent to recover for death of ille- gitimate child, 10-810. Right of nonresident alien to maintain ac- tion for death by wrongful act, 2-682; 9-1180. Right of administrator of alien to sue for lat- ter's death by wrongful act, 12-223. Commencement of running of statute of limi- tations against action for death by wrongful act, 17-519. Pleading statute of limitations in action for death by wrongful act, 19-819. Parties liable under statutes giving cause of action for death by wrongful act, 1-490. Justifiable homicide as defense to action for death by wrongful act, 18-641. Admissibility, in action for death by wrong- ful act, of mortality tables to show probable duration of life, 12-425. Measure of damages for death by wrongful act recoverable by collateral next of kin, 10-113. Measure of damages recoverable by wife or child for death of husband or parent by wrongful act, 3-103; 16-931. Right to recover exemplary damages in ac- tion for death by wrongful act, 6-194. Funeral expenses as element of damages for death by wrongful act, 6-201 ; 13-744. What is excessive verdict in action for death by wrongful act, 18-1209. Survival of action for death by wrongful act after death of wrongdoer, 12-462. Survival of action for death by wrongful act after death of beneficiary, 17-773. Release by deceased as affecting right to re- cover for death by wrongful act, 1-232. Recovery by administrator for death of wife by wrongful act as bar to recovery by husband for tort, 14-554, DE BONIS NON — DEEDS. 63 DE BONIS NON. Administrator, see Executors and Adminis- TBATORS. DEBTS. As consideration for contract, see Contracts. Corporation's liability for debts of predeces- sor, see Corporations. Of decedents, see Executors and Adminis- trators. Frauds, statute of, as applicable to agreement for assumption of debt, see Frauds, Statute or. Gambling debts, see Gaming and Gaming Houses. Garnishment of debts, see Garnishment. Imprisonment for, see Imprisonment foe Debt and in Civil Actions. Libel in charge of refusal to pay, see Libel and Slander. Limitation upon municipal indebtedness, see Municipal Corporations. Of mortgages, see Mortgages and Deeds of Trust. Of municipalities, see Municipal Corpora- tions. Payment of, see Payment. Promises to answer for, see Frauds, Statute of. Taxation of, see Taxation. Under bankruptcy law, see Bankruptcy. Character of " corporate debts " for which directors are liable, 12-807. DECEDEirrS' ESTATES. Attachment of, see Attachment. Descent and Distribution, see that title. Executors and Administrators, see that title. Larceny of property belonging to. pleading and proof of ownership, see Larceny. Place of taxation of, see Tax.^tion. Settlement of in equity, see Eqi^ity. State's priority against, see States. Subrogation to creditor's rights against, see Subrogation. Taxation of, see Taxation. Testimony as to transactions with decedent, see Witnesses. Wills, see that title. DECEIT. •False Pretenses and Cheats, see that title. Fraud and Deceit, see that title. DECISIONS. Of architects under working contracts. Architects. Of courts, see Courts. Starf Decisisi, see that title, DECLARATION. See Pleading and cross-references. DECLARATIONS. Dying Declarations, see that title; and see Homicide. In evidence, see Evidence. DECREES. See Judgments. DEDICATION. For cemetery purposes, see Cemeteries. Implied acceptance, by public user, of land dedicated to public use, .S-792. Dedication of park or square by selling lots according to map or plat, 17-312. Wliat causes reverter after dedication, 1-455. DEEDS. 1. Nature of Instrument. 2. Names of Parties. 3. Attestation. 4. Delivery and Acceptance. 5. Construction. 6. Description of Land. 7. Alterations. Acknowledgment of, see Acknowledgments. By administrators, see Executors and Ad- ministrators. Alteration of Instruments, see that title. Antecedent debt as consideration, see Con- tracts. Avoidance of in ejectment, see Ejectment. Consideration, antecedent debt as, see Con- tracts. Covenants in, see Covenants. By executors, see Executors and Adminis- trators. As mortgages by parol agreement, see Frauds, Statute of. Opinion evidence of mental capacity of par- ties, see Contracts. Parol evidence affecting, see Evidence. Recital of consideration as promise to pay, see Limitations of Actions. Recordation, see Records. Seals, see that title. For support, see Support and Maintenance. Tax deeds, see Taxation. Trust deeds, see Mortgages and Deeds of Tritst. Undue influence affecting, see Undue Influ- ence. Vendor and Purchaser, see that title. 1. Nature op Instrument. Price as consideration in determining whether deed was intended aa mortgage, 20-1 1 fto. 64 INDEX TO NOTES, 1-20 ANN. CAS. DEEDS — continued. 2, Names qf Pabtjss. . Effect of omission of grantor's name from body of deed, 12-203. Validity of deed to fietiticras grantee, or grantee under assumed name, 10-97. 3. ArrESTATiON. Effect on validity of deed between parties thereto of failure to comply with statu- tory requirem,ent as to number of attest- ing witnesses, 18-1101. Competency of attesting witness to deed or mortgage, 15-591. Sufficiency of phras« above signatures to indi- cate that persons signing deed are wit- nesses, 12-281, 4. Deuvbbt and Acceptance. Delivery of deed by deposit by grantor for registration, 7-'226. Grantor as agent of grantee to accept delivery of deed, 12-1072. Application of doctrine of relation back to first delivery of deed deposited in escrow to defeat intervening claims of creditors, 16-1132. Necessity that condition upon which deed is delivered in escrow should be in writing, 16-97. Delivery of instrument to agent of person to be benefited thereby as delivery in escrow, 19-250. Presumption as to date of delivery where dates of deed and certificate of ae- knowledgment differ, 15-151. Acceptance of deed by grantor, 1-868. 5. CONSTBUCTION. Distinction between exception and reservatioii in deed, 18-799, Construction of instrument in form of deed to become effective upon death of grantor, 7-790. Construction of habendum clause In deed i^^ connection with premises, 8-444. Construction of term " more or less " in deed of realty, 12-297. Words merely declaratory of purpose or con- sideration of conveyance or devise as creating conditional estate, 3-38; 12- 227. 6. DESCRlPTIOJf OF Land, Effect of uncertainty in description of land reserved or excepted in deed or contract of sale, 19-1209. Effect of conveyance of part of tract of land by acreage or fraction, 2-918. 7. Alterations. Effect of alteration of deed by grantor after delivery ^n^ wjtihout consent of grantee, 10-459, DEEDS OF TRUST. See MoETGAGEs at«d Deeds of Tkjst. " DEEM " — « DEEMED." Meaning of term "deem" or ''deemed," 18- 480, DE FACTO. Corporations, see Cobpobations. Judges, see Judges. Municipalities, see Municipal Co^oaATiONS. Officers, see Public Opficees. DEFAMATION. See Libel and Slandee. DEFAtJI/F. Judgments by, see Judgments. Promise to answer for, see Frauds, Statute OP. DEFECTS. In highways, see Streets and Highways. DEGRADING WITNESSES. Question tending to degrade vrttness, see Witnesses. DELAY. By carrier, see Carriers. Laches, see that title. In performing contract, see Contracts. In transmission of messages, see Tbleoeaphs AND Telephones. DELEGATION. By master of duties toward servant, see Master and Servant. Of taxing power to school districts, see Taxa- tion. DELIVERY. Of baggage to or by carrier, see Carriers. Of bills and notes, see Bills and Notes. To carriers, see Carriers. Of checks, see Checks. Claim and delivery, see Replevin. Contract for sale of property for future deliv- ery, legality of, see Contracts. Of deeds, see Deeds. P. O. B., see Free on Board. Of gifts, see Gifts. Of goods by vessel, see Ships and Shipping. Of goods sold, see Sajles, DEMAND — DERAILMENT. 65 DELIVERY — continued. To innkeeper under statute limiting liability, see Inns, Boakdinq Houses, and Apabt- MENTS. Within statute of frauds, see Frauds, Stat- ute OP. Of telegraph messages, see Telegraphs and Telephones. Validity of pledge without, see Pledge and COLLATEBAL SECUBITY. DEMAND. As condition precedent to suit on note, see Bills and Notes. Necessary to start statute of limitations, see Limitations of Actions. For rent as condition to forfeiture of term, see Landlord and Tenant. To support replevin action, see Replevin. DE MINIMIS. Doctrine " de minimis non curat lex" as ap- plicable to fractions of money, 18-691. Application of maxim " de minimis non curat lex " to tax proceedings, 19-694. DEMISES. See Landlord and Tenant. DEMONSTRATIVE EVIDENCE. See Evidence. DEMONSTRATIVE LEGACIES. See Wills. DEMURRAGE. Validity of statute, ordinance, or rule provid- ing for reciprocal demurrage, 13-964; 19-1092. Lien of railroad company for demurrage charges, 4-15. Lien of carrier by water for demurrage in ab- sence of contract, 5-388. DEMURRERS. See Pleading. DEMURRER TO EVIDENCE. See Trial. DENIAL. See Pleading. YoLS. 1-20 — Ann. Cas. Digest. — 5, DENTISTS. Constitutionality of statute requiring dentists to take out licenses as impairing vested rights of previous practitioners, 5-1005; 19-833. Practice of medicine and surgery as embrac- ing practice of dentistry, 16-488. Imputation of ignorance, incompetence, etc., to physician, dentist, or druggist, as sl&der or libel, 20-482. DEPARTMENT STORES. Injuries caused by crowds in, see License. " DEPENDENT." As designation of beneficiaries in insurance, see Insdeance. DEPOSIT. Bailments generally, see Bailments. Of bail, see Bail. Bank deposits, see Banks and Banking. Of grain in warehouse, see Warehouses. Running of limitations against actions to re- cover, see Limitations op Actions. DEPOSITIONS. Interest as affecting qualification of person to take deposition, 6-610. Persons who may write deposition, 11-1067. Duty of court to compel production of evi- dence for use in another jurisdiction ir- respective of its admissibility, 6-577. Admissibility of deposition of party to action, 10-960. Right to take deposition pending appeal, 17- 936. DEPOSIT OF PUBLIC FUNDS. As preferred claim in bankruptcy, see Bank- ruptcy. Public officer's liability for loss of funds, see Public Officebs. DEPOTS. Of railroads, see Railboads. DEPUTY. Power of deputy to take acknowledgments, 3-299. DERAILMENT. Of cars as evidence of negligence, see Car- RIEbs, 66 INDEX TO NOTES, 1-20 ANN. CAS. DEBELICTS. DE SON TORT. What constitutes a derelict, 17-939. ®*« Executoes and Administbatobs. DERRICKS. Injuries to servants from, see Masteb Am) Servant. DESCENT AND DISTRIBUTION. Advancements, see that title. EXECTJTORS AND ADMINISTEATOES, 966 that title. Inheritance of executory contract of sale, see Vendoe and Puechasee. Insurance policy payable to " estate," see Insobance. Kemainder given to class, succession to, see Remainders. Taxation of property inherited, see Tax- ation. Wills, see that title. Eight to take property by inheritance or will as natural right protected by constitu- tion, 9-726. Succession to growing crops of decedent, 17- 943. Succession between illegitimate brothers and sisters, 16-987. Right of inheritance within state of child adopted under laws of another state, 16-779. Succession by murderer to property of victim, 2-658; 14-99. Distributive share of heir in real estate as chargeable with heir's indebtedness to estate either as against land itself or proceeds of sale thereof, 7-563. Right of legatee or distributee to sue for as- sets belonging to decedent's estate, 4- 193. DESCRIPTION. Amendment of pleading in respect of, see Pleading. In indictments, see Indictments and Infor- mations and cross-references there- under. Of land sold, see Vendoe and Puechaser. Of person defrauded in indictment for false pretenses, see False Peetenses and Cheats. Of property in indictment for larceny, see Labceny. DESERTION. Divorce for, see Divoece. By husband as depriving wife and family of homestead rights, see Homestead. DESTINATION. Of carriers, see Cabeiebs. DESTRUCTION. Of diseased animals, see Animals. Of gambling apparatus, see Gaming and Gaming Houses. Of liquors illegally kept, see Intoxicating LiqtTOBs. DETAINER. See Foecible Entry and Detainee. DETECTIVES. Injunction against police surveillance, see In- junctions. Shadowing by detective, 1-156. Testimony of detectives to prove adultery, 12-960. DETINUE. See Refuivin. DEVIATION. By carrier from route, see Caeriehs. By servant from course of employment, see Master and Servant. By vessels, see Ships and Shipping. DEVISES. See WniS. DICTA. Stabe Decisis, see that title. DICTIONARIES. See Evidence. DID. Omission of word "did" in indictment, see Indictments and Information. DIRECT EXAMINATION. Of witnesses, see Witnesses, DIEECTING VEEDICT — DISMISSAL AND NONSUIT. 67 DIRECTING VERDICT. See Tkial. Dismissal and Nonsuit, see that title. DIRECTORS. Of corporations, see Corporations. DISCRETION. Bail as matter of, see Bail. Court's control of officers exercising, see Courts. Of courts generally, see Courts. Leading questions as matter of, see Wit- nesses. Ordinance vesting discretion of enforcement, see Municipal Corporations. View by jury as matter of, see Trial. DIRECTORY PROVISIONS. Of constitutions, see Constitutional Law. DISABILITY. Affecting contempt, see Contempt. Damages recoverable for future disability, see Damages. DISBARMENT. See Attorneys at Law. DISCRIMINATION. By carriers, see Carriers. In. favor of insured against other policy hold- ers, see Insurance. In granting licenses, see Licenses. Liquor licenses, statutes limiting granting of to residents, see Intoxicating Liquors. Against nonresidents as to actions and pro- ceedings, see Actions. Statute discriminating as to interest, see In- terest. By telephone company, see Telegraphs and Telephones. By water companies, see Waterworks and Water Companies. DISCHARGE. In bankruptcy, see Bankruptcy. Of firearms, see Weapons. Of guarantors, see Guaranty. Of parties to negotiable instruments, see Bills and Notes. Of prisoner on failure to find indictment, see Indictments and Informations. Release and Discharge, see that title. Of servants, see Master and Servant. DISCIPLINE. In schools, see Schools. DISEASE. In accident insurance, see Insurance. Carrier's duty toward person afflicted with contagious disease, see Carriers. Communicated by animals, see Animals. Condonation of as defense to divorce, see Di- vorce. Criminal responsibility of person diseased from use of intoxicants, see Drunken- ness and Intoxication. As defense to action for breach of promise, see Breach of Promise of Marriage. Health, see that title. Hospitals and Asylums, see that title. Illness as proximate cause of injury, see Per- sonal Injuries. DISCONTINUANCE. Of bastardy proceeding as consideration for contract, see Contracts. DISHONOR. Of bill or note, see Bills and Notes. Of checks, see Checks. DISCOVERY. Jurisdiction of court of equity to entertain bill to discover names or identity of parties against whom it is sought to entertain action, 11-578. Effect of denial of possession or control of documents concerning which discovery is sought, 15-317. Refusal of discovery on ground that it will tend to convict defendant of conspiracy, 5-739. Parties defendant to bill of discovery, 20-906, DISMISSAL. Of appeal, see Appeal and Error. Of servants, see Master and Servant. DISMISSAL AND NONSUIT. Appeal by plaintifT from voluntary nonsuit, see Appeal and Error. Of appeal, see Appeal and Error. By client without attorney's consent. See At- torneys AT Law. Directing verdict, see Trial. Involuntary dismissal, see Triai,, 68 INDEX TO NOTES, 1-20 AISTN. CAS. DISMISSAL AND NONSUIT — co«.tt»Med;. Appropriateness of nonsuit in equity cause, 5-211. Right of complainant to dismiss bill in equity without order of court, 5-850. Dismissal of action by coplaintifiF, 20-1005. What constitutes " final submission " of cause so as to preclude voluntary dismissal, 4-510. Dismissal of action by agreement as res judi- cata, 13-655. Judgment of nonsuit or dismissal in one ju- risdiction as bar to action in another, 19-1016. Dismissal or nonsuit of removal cause in fed- eral court as affecting subsequent juris- diction of state court, 4-891 ; 9-942. DISOBEDIENCE. Of servants, see Mastee and Servant. Of subpoena as contempt, see Contempt. DISORDERLY HOUSES. Gaming and Gaming Houses, see that title. Place where law against usury is violated, as disorderly house, 18-988. General reputation of house as sufficient evi- dence of its disorderly character, 12- 273. Kight to recover rent for premises used for purposes of prostitution, 8-181. DISPLACEMENT WAVES. Duty of vessel respecting, see Ships and Shipping. DISTRESS. Of animals, see Animals. Landlord's right of, see Landlord and Ten- ant. One distress as bar to second, 3-821. DISTRIBUTION. Of assets in hands of receivers, see Receivek.s. Of decedents' estates, see Descent and Uis- tbibution. DISTURBING MEETING. ' Place of worship " or " meeting for divine worship," etc., within statute against disturbance thereof, 19-448. DITCHES. Dbains, see that title. For irrigation, see Ibkioation. DIVERSE CITIZENSHIP. As ground for removal, see Removal of Causes. DIVERSION. Of waters, see Waters and Watercoubses. DIVESTITURE OF TITLE. Of bankrupt, see Bankruptcy. DIVIDENDS. See Corporations. DISQUALIFICATION. Of judges, see Judges. Of jurors, see Jury and Jury Trial. Of justices, see Justices op Peace. Of witnesses, see Witnesses. DISRESPECT. Brief containing disrespectful language, see Bbiefs op Counsel. DISSOLUTION. Of attachment, see Attachment. Of building p.ssociations, see Building and Loan Associations. Of corporations generally, see Coeporations. Of municipality, see Municipal Corpora- tions. Of mutual insurance company, distribution of assets, see Insurance. Of partnership, see Partnership. DIVINE WORSHIP. Chueches, see that title. DIVISION FENCES. See Fences. DIVORCE. 1. Jurisdiction op Court Generally. 2. Causes for Divorce. 3. Necessity for Compliance with Stat- ute. 4. Defenses. 5. Petition. 6. E^aDENCE. 7. Death op Plaintiff. 8. Counsel Fees Incurred by Wife. 9. Appeal from Decree. 10. Decree of Foreign Court. 11. Vacation of Decree. 12. Custody arp Sup?obt of Childi^en, DOCKS — DOMESTIC AIn'IMALS. 69 DIVOECE — continued. Alimoky, see that title. Annulment of marriage, see Mabbiaoe. Beneficiaries of insurance as affected by, see Insurance. Contracts to procure divorces, see Contracts. Curtesy as affected by, see Curtesy. Ne exeat in suit by wife, see Ne Exeat. Partition of homestead after, see Homestead. Remarriage within proscribed time, see Mar- riage. Will as affected by, see Wills. 1. Jurisdiction of Court Generally. Jurisdiction of court to grant nonresident defendant divorce upon cross-petition, 9-1200. Validity of decree in divorce proceeding pass- ing title to land situated in another ju- risdiction, 17-859. 2. Causes for Divorce. Kefusal of intercourse as desertion warrant- ing divorce, 12-547. Refusal of wife to follow husband to new domicil as desertion, 5-852. Kecessity of personal violence to constitute cruelty warranting divorce, 9-1090. 3. Necessity for Compliance with Statute. Right of plaintiff to divorce, in spite of fail- ure to comply with statutory require- ments, wliere defendant does not raise objection, 20-341. 4. Defenses. Connivance as bar to divorce, 10-819. Condonation of loathsome disease as defense to divorce action, 13-216. Right of recrimination in divorce action as affected by comparative gravity of of- fenses, 6-171. Insanity of defendant in divorce proceedings, 1-252. Pardon as affecting right to divorce on ac- count of conviction of crime, 7-1165. 5. Petition. Necessity of allegation of residence of plain- tiff in petition for divorce, 12-1092. Necessity and sufficiency of verification of petition for divorce, 11-799. 6. Evidence. Admissibility in divorce action of evidence to show adulterous disposition of defend- ant, 16-1118. 7. Death of Plaintiff. Abatement of pending action for divorce by death of plaintiff, 17-876. 8. Counsel Fees Incurred by Wife. Liability of husband for counsel fees incurred by wife in divorce action, 15-21. DIVORCE — continued. 9. Appeal from Decree. Right to appeal from final decree of divorce, 13-837. 10. Decree of Foreign Court. Extraterritorial effect of divorce decree or statute prohibiting remarriage of party or parties, 15-758. Extraterritorial effect of divorce decree of foreign court having jurisdiction, 4- 864; 20-870. Validity of foreign divorce as dependent upon jurisdiction over defendant, 5-26. 11. Vacation of Decree. Power of court to vacate divorce decree for fraud, 18-1002. Vacation of divorce decree, after death of party, in direct proceeding brought by surviving party, 5-892. Power of court to award alimony in suit to set aside divorce decree, 19-455. 12. Custody and Support of Children. Right of court refusing divorce to award cus- tody of children, 5-91. Conflict of laws as to custody of children after divorce, 12-1059. Liability of father for support of children after divorce decree awarding custody to mother and providing for main- tenance, 12-138. Liability of father for support of children after divorce awarding custody to mother but not providing for mainte- nance, 7-903; 14-255. DOCKS. See Wharves. DOCTORS. See Physicians and Surgeons. DOCUMENTS. Discovery of, see Discovery. Documentary evidence, see Evidence. Production of, see Production of Docu- ments. Subpoena duces tecum, see Summons and Process. DOGS. Generally, see Animals. Barking as nuisance, see Nuisance. DOMESTIC ANIMAIiS. See Animals. 70 lA^DEX TO NOTES, 1-20 ANJST. CAS. DOMESTIC REIiATIONS. AliMONT, see that title. Childbbk, see that title and cross-references. DrVoBOE, see that title. Evidence of, see Evidence. GUABDIAN AND V\'akd, see that title. Husband and Wife, see that title. Mabeiagb, see that title. Mastitb and Servant, see that title. Pabent and Child, see that title. BOMICII.. Conflict of Laws, see that title. Acquisition of domicil by person in place where he enjoys exemption from local laws, 18-699. DOMINANT TENEMENTS. See Easements. DOOB. Burglary by opening, see Bubqlaby. As fixture, see Fixtubes. Injuries to passengers by oar doors, see Cak- biebs. Injuries to passenger walking through door- way, see Eaileoads. Innkeeper's liability for injuries from revolv- ing or swinging door, see Inns, Boabd- INQ Houses, and Apabtments. DOUBLE INSURANCE. See INSUEANCE. DOnBI.E TAXATION. See Taxation. DOWER — contirmed. Right of dowress to partition of premises, 19-810. Right of married woman to release dower by separate instrument not joining hus- band, 13-143. Effect of bankruptcy on dower rights of bankrupt's wife, 19-1087. Adultery in absence of divorce as bar to dower, 5-230. Adverse possession against husband as bar to wife's dower, 9-149. Sale of land for taxes as defeating inchoate right of dower, 19-977. Validity of antenuptial agreement for release of dower and like interests in property of intended spouse, 16-710. Legislative control of inchoate dower, 12-191. DRAFTS. Agent's authority to accept, see Agency. Attaching to bill of lading to seller's order, see Sales. Bills and Notes, see that title. Checks, see that title. DRAINAGE DISTRICTS. Liability for torts, see Tobts. DRAINS. Ibbigation, see that title. Municipality's right to drain water from highway, see Municipal Cobpoeations. Drainage of natural ponds formed by surfac water, 2-197; 11-1143. Drainage of land as public use within law of eminent domain, 20-272. DO'WER. Abatement of legacy accepted in lieu of, see Wills. CuBTEST, see that title. Election of widow as to taking, see Wills. Husband's will revoked by marriage as affect- ing, see Wills. Right of dower in equity of redemption, 12- 481. Right to dower of wife joining in conveyance set aside as in fraud of creditors, 15- 446. Applicability of statute of limitations or doctrine of laches to action for dower, 11-411. Right of purchaser of land from husband without joinder of wife to require dower to be allotted from other lands left by decedent, 9-490. Right of widow to cut trees on dower land, 20-972. DRAMA. Dramatic copyrights, see Coptbiohts. DRAWERS. Of checks, see Checks. DREDGING. Right of government to dredge through land under water held by private owners. 19 - 697. DRIVING. Generally, see Streets and Highways. MoToa Vehicles, see that title. DROVERS. Liability of carrier to person riding on drover's pass, see Cabeieks. DEUGS AND DRUGGISTS — DUEESS. n DRUGS AND DRUGGISTS. Intoxicating Liquobs, see that title. Eight of druggist to retain prescription filled by him or presented to be filled, 4-519. Validity of statutory regulation of druggists or pharmacists, 10-399. Construction of statutes regulating sale of poison by druggists, 20-491. Contributory negligence of injured person, his agents or servants, as bar to action for sale of poison by mistake, 8-896. Imputation of ignorance, incompetence, etc., to physician, dentist, or druggist as slander or libel, 20-482. DRUMMERS. Authority of traveling salesman as to collec- tion of accounts, 7-650; 14-858. Drummers' samples as baggage, 6-828. DRUNKENNESS AND INTOXICA- TION. Accident insurance, provision as to death or injury while intoxicated, see Insurance. Civil, Damage Acts, see that title. Intoxicated passengers, see Caekiebs. Intoxicating Liquoes, see that title. Liquors, see Intoxicating Liquoes. Admissibility of nonexpert testimony to prove intoxication, 10-788. Competency of witness to testify that person is or was temperate or intemperate, 13- 253. Degree of intoxication of contracting party necessary to invalidate contract, 8-254. Contributory negligence as affected by intoxi- cation, 19-1176. Responsibility for crime of person mentally diseased from use of intoxicants, 19- 1169. Intoxication as defense to prosecution for as- sault with intent to kill, 18-530. Intoxication as defense in prosecution for larceny, 6-636. Impeachment of witness by showing his in- intoxication at time of events concern- ing which he testifies, 16-388. Validity of statute providing for compulsory commitment of inebriate 'to asylum or other institution for treatment, 15-964. DUCES TECUM. Subpoena, see Summons and Pkocess. DUE COURSE. Bills and Notes, see that title. DUELING. What oonBtitufces challenge to fight duel, 19- 72. DUE PROCESS OF i:.AW. Exercise by court of discretionary power, con- ferred by statute, as due process of law, 2-317. Due process of law in commitment of insane persons, 1-733; 13-877. DUES. Benevolent ob Beneficial Associations, see that title. Of building association, see Building and Loan Associations. Failure to pay to mutual insurance company, see Insurance. DUMB PERSONS. See Deaf and Dumb Persons. DUMPING GROUNDS. Injuries resulting from, see Municipal Cob- poeations. DUPLICITY. In indictments, see Indictments and Infor- mations. DURATION. Of contract containing no stipulation, see Contracts. DURESS. Contract of wife induced by threats of prose- cution against husband, see Husband AND Wife. Payment to prevent apprehended injury to business as payment under duress, 2- 825. Recovery of money paid under coercion of threats to begin criminal prosecution, 3-107. Demand for receipt in full as condition of payment of part of debt as duress avoid- ing receipt, 8-880. Violence or duress as ground for annulment of marriage, 20-1375. Marriage to avoid prosecution for seduction as voidable for duress, 14-869. Duress as defense in prosecution for murder, 3-1028. 72 INDEX TO NOTES, 1-20 ANN. CAS. DYING DECLARATIONS. In homicide prosecutions, see Homicide. Exceptions to rule that dying declarations are admissible only in prosecutions for homicide, 6-69. DWXXIilNG HOUSES. Within law of arson, see Absor. EARNINGS. See Wages and cross-references. EARTHQUAKE. Construction of clause in fire insurance pol- icy excepting loss caused by earth- quake, 17-1097. EASEMENTS. Condemnation of private way as necessitating compensation, see Eminent Domain. Conveyance by one tenant in common, see Tenants in Common. Estate acquired by railroad, see Railroads. Forcible entry and detainer to recover, see F0ECIB1.E Entey and Detainer. lateral and subjacent support, see Adjoining Landowners. Pabty Walls, see that title. Conveyance of land containing no reference to " appurtenances," etc., as passing easement appurtenant, 20-1212. Acquisition of prescriptive title by use of easement founded upon void parol - grant, 13-925. Effect of practical location of easement granted in general terms, 7-853. Location of indefinite right of way by par- ties interested, 1-681. Interest in land acquired by condemnation as easement or fee, 20-568. Way as appurtenant to close at which it neither begins nor ends, 3-643. Duty to repair and protect easement as rest- ing on owner of dominant or servient tenement, 14-1138. Extinguishment of easement of light by mer- ger of estates, 12-303. Ejectment to recover land subject to ease- ment, 17-734. EAVES. Overhanging property, see Teesfass. ECCrESIASTICAI. COURTS. Civil courts' jurisdiction to review decisions of, see Courts. EDITORIAI. COIffMENT. Contract to purchase, see Contracts. EDITORS. Liability for libel, see Libel and Slandbs. EDUCATION. Evidence of lack of, see Damages. Infant's contract for, see Infants. Schools, see that title. " EFFECTS." ' Effects " in testamentary gift as including realty, 7-128. EIGHT-HOUR I.AWS. See Labor Laws. EJECTMENT. By executors or administrators, see Execu- tors and Administrators. Of guests from inns, see Inns, Boabding Houses, and Apartments. Of passengers, see Carriers. Of tenants, see Landlord and Tenant. Ejectment to recover land subject to ease- ment, 1-863; 17-734. When title must exist in plaintiff to support suit in ejectment, 7-1125. Right of grantor to maintain ejectment for breach of condition subsequent in deed, 14-1017. Right of vendor to maintain action of eject- ment against vendee not in default, 20- 353. Right of tenant in common to recover entire premises in ejectment against stranger, 5-824. Right to maintain action of ejectment against landlord without joining tenant, 12-53). Avoidance of deed of incompetent person in action of ejectment, 14-507. Time as to which judgment in ejectment speaks, 13-1092! Right of plaintiff in ejectment to recover as damages interest on value of premises during period of detention, 16-853. ELECTION. In equity, see Wills. By prosecution between acts proven as viola- tions of liquor law, see Intoxicating Liquors. ELECTIOX OF EEMEDIES — ELEC. L. AND P. COMPANIES. 73 ELECTION OF REMEDIES. Vendor's lien as waived by action, see VendOB AND Purchaser. Pursuit of mistaken remedy as election of remedies, 5-962. Inconsistency of remedies as essential to ap- plication of doctrine of election, 6-212. Election of remedies on breach of conditional sale, 1-268; 16-1057. Surrender of negotiable paper as condition to recovery on original obligation, 20- 857. ELECTIONS — continued. Estoppel of voter to question validity of elec- tion by participating therein, 13-1136. Right of private person to enforce by man- damus public right or duty relating to elections, 11-419. Eight of contestant to enjoin incumbent of office from performing duties thereof pending election contest, 16-1052. Povyer of courts of equity to enjoin elections, 9-123. Judicial notice of local option elections, 18- 191. EI.ECTIONS. ELECTRICITY. Bribery of electors, see Bribery. Declarations of voters as to voting, see Evi- dence. Equity jurisdiction to protect political rights, see Equity. Initiative and Referendum, see that title. Public Officers, see that title. Validity of primary election laws, 5-568 ; 12- 73. Constitutional or statutory provisions relat- ing to elections as applicable to primary elections, 16-251. Necessity that propositions submitted to voters of municipality be stated singlv, 2-369; 12-851. Civil liability for preventing exercise of right to vote, 20-1008. Irregular or fraudulent nomination as inval- idating election, 7-839. Power of legislature to define qualifications of voters, 7-665. What constitutes conviction of crime within constitutional provision denying right to vote to convicted person, 15-103. Effect of holding election at place other than that regularly appointed, 17-1090. Necessity of compliance with statutory re- quirements as to notice of election to vote on issue of bonds, 18-1137. Validity and effect of statutes requiring bal- lots to be numbered, 6-969. Number of times name of candidate may ap- fea,T on official ballot, 3-796. Validity of ballot with respect to place of mark for candidate, 20-672. Effect on ballots cast at election of official irregularity therein, 12-722. Effect of blank ballots east at election, 3-70. Constitutionality of Australian ballot acts, 4-144. Use of voting machines at elections, 2-840 , 12-474. Construction of statutory or constitutional requirement that proposition be decided by majority or other proportion of voters, 13-416. Tie vote in election, 17-574. As motive power, see Railroads. Municipality's liability for operation of light- ing plant, see Municipal Corporations. Telegraphs and Telephones, see that title. Wires, see also that title. Eight of riparian owner to use water to gen- erate electric power, 17-1226. Liability of one maintaining wires in high- way for injury to traveler coming in contact with live wire, 4-709. Duty and liability of one maintaining elec- tric wires in reference to children, 10- 925. Larceny of electricity, 6-739. ELECTRIC LIGHT AND PO'WER COMPANIES. Laws making owner of leased premises liable for light furnished, see Landlord and Tenant. Municipal light plants, see Municipal Corpo- rations. Electric light or power company as "manu- facturer," 7-726. Power of electric light and power companies to exercise right of eminent domain, 5- 531. Stringing electric wires above ground as neg- ligence, 9-751. Power house as nuisance, 8-567. Poles and wires of tslegraph, telephone, or electric companies generally, as person- alty or realty, 9-1192. Liability of electric company for injuries to person on premises to which it supplies current as based on negligence or breach of contract, 17-1046. Liability of electric company for injuries re- sulting from one of its wires charging wire of other company or person, 16- 1194. Lineman of electric company as fellow ser- vant of employee in power house, 17- 467. 7i mj)^X TO NOTES, 1-20 Al^K CAS. ELECTRIC BAII.WATS. See Stbeet Railways. ELEVATES RAILROADS. See Stbeet Railwats. ELEVATORS. Liability of proprietor of elevator to one using same contrary to orders or speci- fic prohibition, 13-1099. Fall of elevator as presumptive negligence on part of owner or operator, 8-976. EMANCIPATION'. Of infants, see Infants. EMBALMERS. See UNdeetakees and EMBANKMENTS. Constructed by riparian owner, see Watebs AND WATEECOUESES. EMBEZZLEMENT. LaBCBNT, see that title. Receiving Stolen Pbopehtt, see that title. Distinction between larceny and embezzle- ment, 13-882. Construction of phrase "by virtue of em- ployment or office" in embezzlement statute, 15-443. Decoy letter as subject of embezzlement or larceny under postal laws, 4-878. Conversion by agent of funds of which he U entitled to percentage as commission as constituting embezzlement, 15-1227. Embezzlement by member of partnership or unincorporated association, 14-724. Necessity of allegation of value in indictment for embezzlement of money, 13-554. Necessity of allegation of demand and refusal to pay in indictment for embezzlement, 15-575. Sufficiency of indictment for embezzlement from private corporation, company, as- sociation, or society, with reference to allegations of ownership, 18-343. Proof of corpus delicti in prosecution for em- bezzlement, 17-630. Admissibility, in prosecution for embezzle- ment, of evidence of financial Condition of defendant, 6-349. Proof 6f other offenses and similar acts in prosecution for embezzlement, 11-816. EMBRACEBf. Attempt made in good faith to dissuade wit- ness from testifying as criminal offense, 13-579. EMINENT DOMAIN. 1. POWEE TO TABa: Pbopeett. 2. Pueposes fob Which Pbopeett May Be Taken. 3. Pbopebty Subject to Condemnation. 4. Taking op Pbopebty. 5. Condemnation Pboceedings. 6. INTEBEST ACQUIBED BY CONDEMNOB. 7. PBIOBITIES BETWEEN CONFLICTING CON- DEMNOBS. 8. Remedies foe Taking. 9. Compensation. 10. Pebsons Entitled to Compensation. 11. Waivee op Right to Compensation. 12. Tebmination of Public Use of Land. Additional servitude upon street, compensa- tion for, see Steeets and Highways. As breach of warranty of title, see Vendoe and Puechasee. Color of title furnished by condemnation, see Adveese Possession. 1. PowEB TO Take Pbopebty. Delegation of power of eminent domain, 1- 537. Right of de facto corporation to exercise power of eminent domain, 9-594. Power of electric light and power companies to exercise right of eminent domain, 5- 531. Power of telegraph company to construct lines upon public roads under Act of Congress of July 24, 1866, 1-533. 2. Pueposes foe Which Pbopebty May Be Taken. Condemnation of property for private use, 1-188. What constitutes public use for which prop- erty may be taken by eminent domain, 2-50; 14-903. Irrigation as public use or benefit, 1-304. Drainage of land as public use within law of eminent domain, 20-272. Right of railroad company to condemn land for spur to private establishment, 7- 835; 13-1012. Taking or damaging land to create water power for mills and manufactories, 4- 992; 10-1060. Right of defendant in condemnation proceed- ing to question public character of use, 2-133. 3. Pbopebty Subject to Condemnation. State or public lands as subject to condemna- tion under power of eminent domain, 15-488. Water apart from land as subject to law of eminent domain, 13-72. EMISSION — EMPLOYERS' LIABILITY INSURANCE. T5 EMINENT BOMAm -^ continued. 4. Taking of Psopeety. Consequential damages to property from proper exercise of governmental power as taking generally, 4-1185. Discretion allowed to grantee of power of eminent domain as to location and quan- tity of property to be taken, 2-946. 5. Condemnation Proceedings. Venue of condemnation proceedings as to land located in more than one county, 19- 984. Necessity for defendant in condemnation pro- ceedings to appear and answer, 9-476. Eight to trial by jury in eminent domain proceeding, 18-680. Interest or bias sufficient to disqualify jviror in eminent domain proceedings, 5-923. Right of jury in eminent domain proceedings to disregard testimony of witnesses, 3* 302. Appealable judgments and orders in eminent domain proceedings, 16-1004. Vacation of award in eminent domain pro- ceedings on account of misconduct of commissioners, 20-711. 6. INTEKEST Acquired by Condemnor. Interest in land acquired by condemnation as easement or fee, 20-568. 7. Prioeities between Contijcting Coit- DEMNOES. Priority of right to land between conflicting condemnors under law of eminent do- main, 9-689. 8. Remedies for Taking. Exelusivenees of statutory remedy for dam- ages for taking of property by eminent domain, 14-1150. 9. Compensation. Eight to pompensation for taking of private right ni "^y, 19-681. Eight to cninpc-i.dp.tion in condemnation pro- ceedings for improvements placed Upon land bv condemnor without authority, 6-.?82;" 13-980. Eight of landowner to compensation for im- provements placed by him on land after institution of condemnation proceedings, 17-1033. Eecovery of damages in condemnation pro- ceedings for injury to personal property or expense of removing it from prem- ises, 8-696; 16-787. Danger of injury to persons or live stock as element of damage to land by construc- tion of railroad, 11-697; 19-929. Eight to interest as part of compensation in eminent domain prOceedinsrs, 15-108. Time with reference to which value of prop- el-ty taken by eminent domain is to bft estimated, 9-115. EMINENT DOMAIN — contin v - ' Damages recoverable by railroad for laying out street across its right of way, 15-14 Liability of railroad company for damages caused by construction of road to land through which it has acquired right of way, 19-335. Compensation for interest acquired by telo- graph company in railroad's right of way, 1-741. Compensation for interest acquired by tele- phohe company in railroad right of way, 20-723. Deduction of benefits in assessing damages for land taken by eminent domain pro- ceedings, 13-603; 19-859. Right of landowner to damages upon vnlun- tarj" discontinuance of eminent domain proceedings, 8-734. Necessity of notice to landowner of assess- ment of damages in condemnation pro- ceedings, 4-903. Offer to purchase by third person as evidence of value of property taken in eminent domain proceedings, 5-971. Price paid by condemnor for other property for use in same enterprise as evidence of value of land condemned, 20-695. 10. Persons Entitled to Compensation. Right as between lessor and lessee to compen- sation for property taken by eminent domain, 4-1011; 15-714. Right of mortgagee to award in condemna- tion proceedings, 4-944. 11. Waiver of Right to Compensation. Waiver by landowner of right to compensa- tion for property taken under right of eminent domain, 8-855. 12. TEBMiiitATlON OF Public Use of Lank. Reversion of land taken under power of emi- nent domain when public use ceases, 19- 155. EMISSION. To constitute carnal knowledge, see Carnal Knowledge. EMPLOYEES. Master and Servant, see that title. Public Officers, see that title. EMPIiOYEHS' tlASltl** ACTS. See MASTEti And Servant. EMFIiOYEftS* tJAfilLItV IWStJR- ANCE. See Insurance. Y6 IXDEX-TO XOTES, 1-20 Al^K CAS. EMPLOYMENT AGENCIES. Statutory regulation of employment agencies, 5-326. ENACTMENT. Of statutes, see Statutes. ENDORSEMENT. Of negotiable instruments, see Bills and Notes. Of checks, see Checks. ENGINEER. Certificates of engineers as to work done, see Contracts. As fellow servant of other trainmen, see Mas- ter AND Servant. ENGINES. Fire engines, see Municipal Corporations. Locomotives on railroads, see Master and Servant and Railroads. Traction Engines, see that title. ENLISTMENT. In military or naval service, see Army and Navy. ENTIRETY. Estate by, see Husband and Wife. ENTRY. Forcible Entry and Detainer, see that title. EN VENTRE SA MERE. Gift to children as including child, see Wills. EPILEPTIC INSANITY. In criminal cases, see Insanity. EQUAL RIGHTS. Civil Rights Acts, see that title. EQUITABLE ELECTION. See Wills. EQUITABLE MORTGAGES. Instrument in form of chattel mortgage as mortgage on realty, 14-1101. EQUITY. 1. Equitable Jurisdiction. 2. Pleading and Practice. Action at law to enforce decree, see Judg- ments. Boundary lines as subject of jurisdiction, see Boundaries. Building restrictions as enforceable in, see Vendor and Purchaser. Cancellation and Rescission, see that title. Contribution, see that title. Conversion and Reconversion, see that titl",. Costs, review of decree for, see Costs. Courts of, see also Courts. Cross bill in proceedings to foreclose mechan- ic's lien, see Mechanics' Liens. Decrees, see Judgments. Discovert, see that title. Election, see Wills. Equitable conversion, see Conversion and Reconversion. Estoppel, see that title. Exoneration between municipality and abut- ting owners, see Streets and High- ways. Fraud and Deceit, see that title. Implied trusts, see Trusts. Injunctions, see that title. Judgments as subject of jurisdiction, see Judgments. Laches, see that title. Marshaling Assets, see that title. Masters in Chancery, see that title. Nonresidence as ground for set-off, see Set- opr AND Counterclaim. Nuisances as subject of equitable jurisdic- tion, see Nuisances. Quieting Title — Removal op Cloud, see that title. Receivers, see that title. Repormation of Instruments, see that title. Rescission, see Cancellation and Rescis- sion. Resulting trusts, see Trusts. Set-off for nonresidence, see Set-off and Counterclaim. Specific Performance, see that title. Subrogation, see that title. Trusts and Trustees, see that title. Usury as ground for aifirmative relief, see Usury. Wills, jurisdiction to construe, see Wills. 1. Equitable Jurisdiction. Jurisdiction of equity to protect political rights, 10-976. Bill in equity to determine title to office in private corporation, 4-707. Equitable jurisdiction of suits by corpora- tions or receivers against directors or officers for negligence or wrongful acta, 7-1121. Settlement of decedents' estates in equity, 2- 870. Jurisdiction of equity in cases of fraud where adequate remedy at law exists, 3-611. Jurisdiction of equity to set aside will for fraud, 18-807. EQUITY OF EEDEMPTION — ESTATES. YT EQUITY — continued. Equitable relief against gambling contracts, 1-154. Equity jurisdiction, on ground of mulitplic- ity of suits, of several actions for dam- ages on account of same tort, 16-694. Effect of statute of frauds upon power of equity to reform contracts on ground of fraud, accident, or mistake, 18-919. Mutual mistake as ground for reformation of written instruments, 3-444. Equitable relief against contract on account of mistake due to negligence, 5-214; 11- 1164. Rescission of sale of land for mistake in quantity, 4-52. Eight to rescind release for mutual mistaka of law, 20-1247. Jurisdiction of equity to correct mistake in description of land sold at judicial sale, 11-85. Eight to relief of one purchasing his own property by mistake, 18-328. Right to recover paj'ment made through for- getfulness of facts, 18-670. Failure of insured to read fire insurance pol- icy as precluding right to have it re- formed for mistake, 20-365. 2. Pleading and Practice. Eight of contract creditors to intervene in equity, 3-1091. General rules as to amendment of equity pleading, 1-976. Necessity of pleading statute of limitations as defens-60«; 14-342. Burden of proof as to contributory negli- gence^ 10-4. Burden of proving payment of legacy to which presumption of payment has at- tached, 2-747. Burden of proof of res judicata,, 2-655. Burden of proof as to running of statute of limitations,, 8i-340. Burden of proof as to suicide relied on as de- fense toi action ow life insurance policy or benefit certifica,te,, 17-32. Burden of proof of ehastLty or good repute of woman in prosecution, ion seduction, 17- 89. Burden of proof of good health of insured at time of delivery of policy where life in^ surance contract so. requires, 17-238. Burden of proof ast to, validity of subsequent marriage-, 17-680. Borden of proof ot undue influence in case of coaveyaince, inter vi/vos by parent to child, 17-989. EVIDENCE — continnetf. Burden of proof as to good faith of transac- tion in case of assignment or conveyance by client to attorney, 18-123. Burden of proof as to practicability of guard- ing maeliinery from which servant has sustained injury, 18-133. Burden of proof in action on bill or note with respect to defense of want of considera- tion, 18-205. Burden of proof of undue influence in case of conveyance inter vivos by child to par- ent, 18-539. Burden of proof as to necessity for abortion, 19-636. Burden of proof of payment or part payment of bill or note, 20-518. Burden of proof as to identity of fugitive from justice within law of extradition, 20-546. 19. Weight and Sufficiency. Weight of testimony based on memory of oral statements, 18-1191. Weight of imcontradicted testimony, 4-982; 12-245. Weight of photographs as evidence, 15-98. Weight of weather records as evidence, 19- 852. Sufficiency of evidence to warrant reformation of instrument on ground of mutual mis- take, 19-343. Sufficiency of evidence to show mailing of let- ter, 19-651. Weight of positive and negative testimony as to locomotive and street car signals, 12- 1033. Admissibility and weight of testimony of law- yers to, prove foreign law, 20-1339. Sufficiency of proof to establish contents of lost instrument, 2-41. Sufficiency of proof as to necessity for abor- tion, 19-636. General reputation of house as sufficient evi- dence of its disorderly character, 12- 273. Weight and sufficiency of evidence of suicide relied on as defense to action on life in- surance policy or benefit certificate, 17- 32. Sufficiency of evidence as to practicability of guarding machinery from which servant has sustained injury, 18-133. Validity of statutes making certain facts prima facie evidence, 6-746. Validity of statute making proof of certain facts conclusive evidence, 14-734. EXAMINATION. Of bankrupt, see Bankruptct. Physical examination, power to compel sub- mission to, see Physicai, Examination. Of witnesses, see Witnesses. 84 INDEX TO NOTES, 1-20 ANN. CAS. EXCEPTIONS. Bills of Exceptions, see that title. In civil cases, see Teial. In conveyances of land, see Vendor and Pub- chaser. In criminal prosecutions, see Criminal Law. Distinguished from reservations in deeds, see Deeds. To indictment, see Indictments and Infor- mations. Loss of as ground for new trial, see New Trlal. EXCESSIVENESS OF DAMAGES. See Damages. EXCHANGE. Negotiability of note payable with, see Bills AND Notes. EXCHANGE OF PROPERTY. Power of agent to exchange property, see Agency. Contracts of barter and exchange as within " sales of goods " clause of statute of frauds, 14-305. Measure of damages for breach of contract to exchange property, 15-475. Measure of damages for false representations inducing exchange of property, 15-458. EXCHANGES. Bucket shop as gaming, Gaming Houses. see Gaming and Membership or seat in stock or produce ex- change as assets in bankruptcy, 10-243. Right of property in market quotations, 8-761. Right to equitable relief for refusal of tele- graph company to furnish stock quota- tions for gambling purposes, 6-887. Liability of telegraph company for erroneous transmission of message announcing prices or state of market, 3-429. Market reports as evidence, 12-127. Contract for buying and selling futures as subject of interstate commerce, 14-1034. EXCLAMATIONS. Evidence of exclamations of pain, see Evi- dence. EXCLUSIVE RIGHTS OB PRIVI- LEGES. See Monopolies and Corporate Trusts. EXCUSABLE HOMICIDE. See Homicide. EXECUTIONS. Action on judgment affected by, see Judg- ments. Of criminals, statute prohibiting publication of report of, see Criminal Law. Injunction against, see Injunctions. Against insane persons, see Insanity. Judicial Sales, see that title. Interest of lessee as subject to levy under ex- ecution, 15-867. Liability of interest acquired by purchaser at execution sale to levy and sale under execution, 8-475. Levy under subsequent execution upon sur- plus in hands of officer after satisfying prior execution, 6-655. Property or franchise of quasi-public corpora- tion as subject to sale under execution, 5-512. Application of exemption from execution to liability or judgment for costs, 13-258. Right of debtor to claim successive exemp- tions, 4-220. Meaning of term "wearing apparel" in ex- emption statutes, 15-159. Construction of statutes exempting horses from execution, 6-779. Right of nonresident to claim exemption from execution or garnishment in absence of express restriction in statute, 10-500. Exemption from execution of pension or bounty, 17-1191. Right of officer to levy execution on goods of stranger mixed with those of debtor, 18- 948. Liability of intoxicating liquors to execution, attachment, or replevin, 17-300. Sufficiency of levy of execution on standing crop, 15-884. Issuance of execution for part only of judg- ment debt, 19-464. Effect of variance of execution from judg- ment as regards collection of interest, 8-169. Amendment of officer's return in respect to signature, 17-459. Effect of supersedeas upon execution after its issuance, 5-786. Excessive levy as ground for setting aside execution sale, 12-339. Execution as evidence of officer's right to make levy, 18-1128. Right of officer to demand indemnity for en- forcing execution, 16-1045. Rights and remedies of debtor against credi- tor who issues execution after debt has been paid, 19-368. EXECUTIVE — EXECUTOES AND ADMHSTISTRATOES. 85 EXECUTIVE. See GovERNOB. EXECUTORS AND ADMINISTBA- TORS. 1. Appointment, 85. 2. Refusal to Act, 85. 3. Duties, Powers, and Liabilities, 85. 4. Purchase and Sale of Property, 85. 5. Suits in Behalf of Estate, 85. 6. Claims against Estate, 85. 7. Executor de Son Tort, 86. 8. Administrators Pendente Lite and de Bonis Non, 86. Administration of testamentary gift to for- eign charity, see Charities. Attestation of wills by execvitor, see Wills. Contest of wills, see Wills. Descent and Distribution, see that title. Devises, see Wills. Garnishment against, see Garnishment. Insurance policy payable to " estate," see In- surance. Legacies, see Wills. Probate of wills, see Wills. Eight of representative of insolvent to assail chattel mortgage, see Chattel Mort- gages. Set-off by or against, see Set-off and Coun- terclaim. Sureties of, see Suretyship. Taxation of estate, see Taxation. Testimony of representative's coparty as to transactions with decedent, see Wit- nesses. Time to commence proceedings for adminis- tration, see Limitations of Actions. Trusts generally, see Trusts and Trustees. Widow acting as executrix as election to take under will, see Wills. Wills, see that title. 1. Appointment. Eight of alien or nonresident to act as execu- tor or administrator, 3-988. Necessity and propriety of administration upon estate of minor, 7-861. Eight to and effect of administration on es- tate of person presumed to be dead, 3-1126; 14-148. Power of court to appoint coadministrator against consent of persons entitled to administration, 4-550. Collateral attack on decree granting letters testamentary or of administration, 4-1117. Necessity that executor or administrator give bond on appeal from revocation of pro- bate of will or grant of letters, 20-416. 2. Refusal to Act. What constitutes renunciation of trust by ex- ecutor or testamentary trustee, 20-836. EXECUTORS AND ADMINISTRATORS — continued. 3. Duties, Powers, and Liabilities. Power of executor to make oil and gas lease, 1-406. Duty of executor or administrator to retain from his distributive share of estate amount of his debt to estate, 6-810. Right of person entitled to administer to nominate another as administrator to exclusion of person next entitled, 17- 948. Eight of person named as executor in will to recover from estate money expended in unsuccessful attempt to sustain will, 18-741. Individual liability of personal representa- tives under original contracts founded on new consideration, 1-769; 18-292. Liability of executor or administrator and his sureties for property coming into his hands which is not assets of estate, 19-560. Right of creditor to attach property of dece- dent's estate under writ against execu- tor or administrator, 5-912. Lapse of time as barring right to compel ac- counting by personal representative, 15- 481. 4. Purchase and Sale of Propeett. Real estate acquired by executor or adminis- trator for benefit of estate as realty or personalty, 7-703. Conveyance by personal representative, is such, of property of estate as estopping him to claim personal interest therein, 20-76. Validity of deed by executor or administra- tor to person other than purchaser, 5-708. 5. Suits in Behalf of Estate. Eight of personal representative to sue in forma pauperis, 1-805. Right of personal representative of grantor to set aside conveyance as fraudulent as to creditors, 18-37. Right of personal representative to bring ejectment for lands of deceased, 15-569. Right of personal representative of insolvent estate to recover payment made to cred- itor in excess of pro rata share, 19-794. Right of administrator of alien to sue for lat- ter's death by wrongful act, 12-223. Right of legatee or distributee to sue for as- sets belonging to decedent's estate, 4-193; 20-95. 6. Claims against Estate. Right of creditor of decedent to maintain bill in equity to enforce payment of debt where no personal representative has been appointed in forum, 20-844. INDEX TO NOTES, 1-20 ANN. CAS. EXECUTORS AND ADIIINISTRATOES — continued. Claim for legacy or distributive share of es- tate as " claim " against estate within statute providing for administration of estates of deceased persons, 20-855. Fine imposed in criminal case as recoverable from defendant's estate after his death, 19-1147. Liability of decedent's estate for taxes 6n property which escaped taxation in his lifetime, 18-350. Right of person sued by executor or adminis- trator to set off claim against decesised not presented within statutory period, 7-850. Institution of suit as sufficient presentation of claim against decedent's estate to re- move bar of nonclaim, 14-931. Provision in will for payment of debt as dis- pensing with necessity of presenting or proving claim, 15-824. Binding effect upon administrator of sole dis- tributee's settlement of claim in favor of deceased, 10-555. 7. Executor de Son Toet. Validation of acts of executor de son tort by subsequent grant to him of letters of administration, 5-58. 8. Administbatoes Pendente Lite and de Bonis Non. Administrators pendente lite, 6-263. Appointment of administrator de honie non after final settlement of estate, 5-497. EXECUTORY INTERESTS. Eemaindees, see that title. Revebsions, see that title. EXEMPLARY DAMAGES. See Damages. EXEMPTIONS. Acquisition of domicil in place where person is exempt from local laws, see Domicil. From assessment for local improvements, see Special ob Local Assessments. From attachment, see Attachment. From execution, see Executions. From garnishment, see GaenishmeNt. Of homesteads, see Homesteads. From jury service, See Jury and Jury TbIal, From license taxes, see Licenses. From process, see Summons and Process. Of seaman's wages, see Ships and Shipping. From taxation, see Taxation. EXHIBITIONS. Faies and Expositions, see that title. Theatbes and Public Resorts, see that title. EXONERATION. Right of devisee to have incumbi-ance dis- charged out of personalty, see Wills. Exoneration between municipality and abut- ting owners as to damages paid on ac- count of unsafe highways, 1-945; 14- 1047. EX PARTE ORDERS. Appeal from, see Appeal and Ebbob. EXPERIMENTS. In evidence, see Evidence. By jury on view, see Juby and Juet Tbial. EXPERT EVIDENCE. Generally, see Evidence. Competency of experts, see Witnesses. Proof of intoxication by nonexpert testimony, see Drunkenness and Intoxication. EXPLOSIONS AND EXPLOSIVES. Blasting, see that title. Explosions as exception in insurance contract, see Insurance. Master's duty to warn servant of discharge of, see Master and Servant. Injunction to r69tra,in keeping or storing of explosives, 14-594. Liability of person keeping and storing ex- plosives for injuries caused by explosion, 10-456; 20-827, Liability of owner to trespassing children in- jured by dangerous substances on prem- ises, 5-503. Liability of seller for injury caused by explo- sive. .5-181; 12-267. Duty and liability of rtastef to servant with respect to use of railroad torpedoes, 19- 1097. Liability to carrier of person shipping explo- sives or dangerous goods, 18-20. Liability for injuries resulting from diaeharee of fireworks, 5-539; 13-947. EXHIBIT. Variance between exhibit and pleading, see Pleading. EXPOSITIONS. See Fairs and Expositions. EX POST FACTO LAWS — FALSE IMPRISONMENT. 8Y EX POST FACTO LAWS. Laws changing punishment as, see Cbiminal Law. EXPRESS COMPANIES. Eight of railroad to grant exclusiv* facilities to express company, 13-1079. EXPRESS MESSENGERS. Duty and liability of carrier of passengers to express messenger, 19-1207. EXPROPRIATION. See Eminent Domain. EXPULSION. Of passengers, see Cabeiebs. Of pupils, see Schools. EXTORTION. Constitutionality of statutes designed to pre- vent extortion, 1-433. Receiving fee before it is due as extortion, lS-1117. EXTRADITION. Who is fugitive from justice within purview of interstate extradition laws, 7-1076; 13-907. Burden of proof as to identity of fugitive from justice within law of extradition, 20-546. Sufficiency of " affidavit made before magis- trate " within federal statute relating to interstate extradition, 16-1100. Immunity of prisoner from arrest on civil process after interstate extradition, 17- 619. Bight of extradited person to discharge on ground that extradition was unlawful or void, 7-1056. Right after interstate extradition to try pris- oner for crime not designated in requisi- tion, 3-542. Right after international extradition to try prisoner for crime not designated in requisition, 10-639. Rearrest in extradition proceedings of person discharged on habeas corpus, 6-499. Review by courts of executive action in inter- state extradition proceedings, 3-876; 13-931. FACTORIES. As nuisances, see Nitlsances. FACTORS. Bkokees, see that title. Who are agents within meaning of factors' acts, 18-91. Right of factor to claim advances in full from insolvent principal, 6-311. Lien of factor for commissions as dependent upon possession, 3-644. Duty of factor to insure goods of principal, 14-680. FACTS. Generally, see Evidence. Questions of fact, see Trial. FAILURE OF CONSIDERATION. As defense to action on bill or note, see Bills AND Notes. FAIRS AND EXPOSITIONS. Validity of statute appropriating public funds for fairs, 9-52. Right of exhibitor at fair or exposition to ap- peal to courts from decisions as to award, 15-191. FAIRWAY. Anchoring in, see Ships and Shipping. FALSE IMPRISONMENT. By agent as imposing liability upon princi- pal, see Agency. Malicious Prosecution, see that title. Extent of liability of one causing false im- prisonment, 19-971. Delay in presenting prisoner for examination or trial a^ constituting false imprison- ment, 13-984. Civil liability of judicial officers for false im- prisonment, 4-325. Persons who participate with officer in mak- ing unlawful arrest as liable for false imprisonment, 13-105. Liability for false imprisonment of officer ar- resting wrong person under warrant, 8-34. Necessity of alleging and proving want of probable cause in action for false im- prisonment, 12-35. Evidence of result of criminal prosecution in action for false imprisonment, 1-926. Right of plaintiff in action for malicious prosecution or false imprisonment to show condition of jail where he was confined and his treatment therein, 19- 614. 88 INDEX TO NOTES, 1-20 ANN. CAS. FALSE PKETENSES AND CHEATS. Fbaud and Deceit, see that title. Larceny, see that title. Obtaining money by impersonating officer, see ROBBEBT. Distinction between larceny and obtaining property by false pretenses, 2-1010. Obtaining real property by false pretenses as criminal offense, 9-857; 18-397. Giving mortgage on property not owned by mortgagor as false pretense, 14-287. Giving worthless check as false pretense, 8-1069; 14-510. Bill or note as " property," etc., within stat- ute against false pretenses, 9-970. Obtaining money as charity by false represen- tations as false pretense, 19-1131. Extent to which false pretenses must be cal- culated to deceive in order to be indict- able, 7-32. Illegality of purpose of person defrauded as defense in prosecution for false pre- tenses, 13-563. Jurisdiction of offense of obtaining property by false pretenses, 4-368. Sufficiency of indictment for false pretenses in respect to description of person de- frauded, 17-624. Sufficiency of allegations in indictment for false pretenses as to written instrument upon which charge is based, 11-833. Necessity of alleging ownership of thing ob- tained in indictment for obtaining prop- erty by false pretenses, 13-849. Admissibility of evidence of similar transac- tions in prosecution for false pretenses, 10-906; 17-464. FALSE REPORTS. Of bank directors, see Banes and Banehto. FALSE REPRESENTATIONS. See particularly the title Fbatjd and Deceit and cross-references thereunder, and see the various subjects of misrepresenta- tion as indicated by the titles through- out the index. False Pbetenses and Cheats, see that title. In sales of goods, see Sales. FALSE SWEARING. See Febjubt. " FAMILY." Ab designation of beneficiaries in insurance, see INSUBANCE. FAMILY RECORDS. As evidence, see Evidence. FARES. Of carriers, see Cabbiebs. FARMING. Cbops, see that title. Farm laborer's lien on crops, see Cbops. Persons engaged in within bankruptcy law, see Bankbuptct. On shares as establishing tenancy, see Land- lobd and Tenant. FEDERAL COURTS. See United States Coubts. FEE. Condemnation as passing, see Eminent Do- main. Estate acquired by railroad, see Railboads. Restraint on alienation of, see Pebpetuities AND TBUSTS fob ACCUMULATION. FEERLE PERSONS. Carrier's duty toward, see Cabbiebs. FEES. Costs, see that title. Counsel Fees, see cross-references under that title. Extortion in receiving before due, see Extob- TION. Jury fees, see Jubt and Jury Trial. Justice's right to recover, see Justices op Peace. License fees, see Licenses. For making abstract of record, see Recobds. Note stipulating for attorneys' fees, see Bills AND Notes. Paid through mistake, recovery of, see Pub- lic Officers. Of public officers, see Public Oppicebs. Of witnesses, see Witnesses. FALSE TES'nMONY. Instruction as to, see Witnesses. FELLOW SERVANTS. See Masteb and Sebvant. FELONIES — FINES AND PENALTIES. 89 FELONIES. See Criminal Law and cross-references. FIGURES. •In bills or notes, see Bills and Kotes. " FELONIOUSLY." In indictment for rape, see Rape. in indictment or information for homicide, see Homicide. FENCES. Pabtt Walls, see that title. Railroad fences, see Raileoads. Location of partition fence, 11-199. Constitutionality of statute giving fence viewers power to assign division fences between owners to maintain, 8-426. Covenant to maintain division fence as cove- nant running with land, 15-57. Effect of statute prohibiting recovery for damages done by trespassing animals on unfenced lands, 9-1095. Right to enjoin adjoining landowner from maliciously erecting or maintaining fence of unusual height, 9-734. Rights to damages for erection of spite fence. 19-478. FERRIES. Transferability and descendibility of ferry franchise or license, 2-693. Ferries between states, 1-110; 16-865. Operation of private ferry as infringement of ferry franchises, 19-1033. Construction of bridge as infringement of ferry franchise, 12-255. Liability of owner of ferry to passengers, 17- 371. FIDELITT INSURANCE. See Insubance. FIDUCIARIES. Agents, see Agknct. Attobneys at Law, see that title. Directors of corporations, see Corpobations. Executors and Administeatoes, see that title. Guardians, see Guaedian and Ward. Investments in foreign jurisdictions, see Trusts and Teustees. Partners, see Paetneeship. Trustees, see Trusts and Trustees. FIGHTING. Agreement to fight as defense, see Assault AND Batteby. Dueling, see that title. FILING. Of mechanic's lien, see Mechanics' Liens. Delivery of document to officer when not at office as " filing " thereof, 18-250. FINAL JUDGMENTS AND ORDERS. For purpose of appeal, see Appeal and Ebbob. FINAL PASSAGE. Of bills, see Statutes. "FINAL SUBMISSION." Of cause precluding voluntary dismissal, see Dismissal and Nonsuit. FINANCIAL CIRCUMSTANCES. Evidence of in action by depositor for dis- honor of check, see Checks. Evidence of in action by physician, see Physicians and Surgeons. Evidence of in action for breach of promise, see Breach op Pbomise of Mareiage. Evidence of in prosecution for embezzlement, see Embezzlement. Evidence of in prosecution for larceny, see Labceny. Evidence of to prove contract, see Payment. FINDER OF LOST PROPERTY. See Lost Pbopeety. FINDINGS. Of master, see Mastees in Chancebt. Refusal to make requested findings as consti- tuting contrary finding, 7-380. FINES AND PENALTIES. Forfeiture as penalty or liquidated damages, see Damages. Judgment in criminal case as res judicata in penal action, see Judgments. Penal ordinances, construction of, see Ordi- nances. Pleading statute of limitations, see Limita- tions of Actions. Remission of penalty on forfpit<>d recogni- zance, see Bail. Statutes imposing penalties on carriers, see Cabbiebs. 90 INDEX TO NOTES, 1-20 ANK. CAS. FINES AND PENALTIES — continued. Statute imposing penalty for each piece of game possessed, see Game and Game Laws. Statute making property leased for sale of liquor subject to payment of, see In- toxicating LiQUOBS. For taking usury, see Usuey. Telegraph company's liability to penalty, see Telegkaphs and Telephones. Meaning of and distinction between " fine," "penalty," and "forfeiture," 18-883. Constitutional or statutory provision against imprisonment for debt as applicable to imprisonment for failure to pay fine or penalty, 19-757. When forfeiture of property under statute takes effect, 7-899. Eight to recover fine improperly or illegally collected, 12-703. Recovery of cumulative penalties under penal statute, 14-1063. Fine imposed in criminal case as recoverable from defendant's estate after his death, 19-1147. Eight of court to direct verdict for plaintiff in penal action, 16-964. Power of executive to remit fines and for- feitures, 17-603. FIRES — continued. Protection against in places of amusement, see Theatbes and Public Resobts. Fires caused by railroads, see Eailboads. Liability of warehouseman for loss of goods by fire, 19-243. Independent contractor rule as applicable to damage by fire, 18-755. Negligence in setting fire on one's own prem- ises as affected by weather conditions, 20-699. Liability of water company "under contract with municipality for fire loss sustained by municipality, 20-625. Liability of water company, under contract with municipality, for fire loss sustained by private citizen, 2-479; 9-1070. Assignability of cause of action for destruc- tion of property by fire, 20-259. Extinguishing fire on vessel as salvage ser- vice, 17-911, Validity and effect of stipulation limiting lia- bility of carrier of goods for loss by fire, 20-229. FIBEAVOBKS. Liability for injuries resulting from dis- charge of fireworks, 5-539; 13-547. FIREARMS. See Weapons. FIRM. See Pabtnebship. FIRE DEPARTMENT. Generally, see Municipal Cobpoeations. Care in crossing railroads, see Eailboads. FIRE ESCAPES. Duty to maintain fire escapes, 9-1166. FIRE INSURANCE. See Insubance. FIRE I.IMITS. Construction of ordinance forbidding erection of certain buildings within fire limits, 18-183. Eight of municipality to remove building erected within fire limits in violation of valid ordinance, 9-292. FIBES. Aeson, see that title. Carrier's liability for injuries or losses by, see Cabbiebs. FISH AND FISHERIES. Fish markets as nuisances, see Nuisances. Game and Game Laws, see that title. Right of fishery in owners of streams and ponds, 3-860. Power of state to grant to private individual exclusive right to shellfish within waters of state, 16-198. Validity of statutes authorizing summary de- struction of fishing appliances, 1-950. FIXTURES. Fences generally, see Fences. Character as fixtures or personalty, before annexation, of articles brought on prem- ises to be annexed, 4-1160. Doors or windows as fixtures, 20-470. Ice house erected by tenant as fixture, 20-790. Mirrors as personalty or realty, 1-687. Stoves and heating apparatus as realty or personalty, 2-375. Effect of agreement that articles annexed to land shall not become fixtures and that title shall not pass on rights of subse- quent purchaser or mortgagee of land without notice, 4-1073. FLAG — FOREIGN CORPORATIONS. 91 FIXTURES — continued. Eight to fixtures as between life tenant anil remaintlerman, 2-405. v Riglit of moitgngpo to trade fixtures placed upon mortgaged premises after givinix mortgage, 13-071; 18-939. New lease as affecting right to remove fix- tures, 3-331; 20-769. Eight of person claiming under tenant as to time for removal of fixtures, 10-109. Eight of lessee to remove trade fixtures sub- stituted for parts of leased premises, 20-606. Eight of lessee under mining lease to remove machinery and other appliances, 2-738. FLAG. Validity of statutes prohibiting use of flag or other governmental symbol for advertis- ing or commercial purposes, 4-270; 10- 528. FLAGMEN. At railroad crossings, see Railboads. Eailroad's duty to emploj^ee to flag train, see PIASTER AKD SERVANT. Eailroad's duty to warn, see Master and Ser- vant. FLAG STATIONS. Carrier's duty respecting, see Carriers. FLOATING TIMBER. Injuries to riparian owner by, see Trees and Timber. FLOODS. Se€ Waters and Watercourses. FLYING S'WITCH. Negligence in making, see Eaixboads. FOOD — continued. Constitutionality of statutes or ordinances regulating sale of milk, 4-119; 18-321. Validity of statute or ordinance regulating manufacture or sale of bread, 17-617. Validity of statute or ordinance regulating receptacles used in selling milk, 14-703. Constitutionality of state statutes regulating manufacture or sale of oleomargarine, 2-4.51; 17-1100. Eight of state to seize and destroy food unfit ■ for use, 15-281. Sale and delivery of food as work of neces- sity within Sunday law, 16-278. FOOTPRINTS. Admissibility of evidence obtained by requir- ing accused to furnish shoe for com- parison with footprint, 9-655. FORCE. Injunction in case of remedy by, see Injunc- tions. Eecovery of possession of personalty by, see Eecaption. FORCIBLE ENTRY AND DETAINER. Threats and display of force without actual force as constituting forcible entry, 15- 804. Eecovery of easement by action of forcible entry and detainer, 9-1177. Eight of tenant to maintain forcible entry and detainer against landlord for for- cible ejectment after termination of lease, 12-767. Necessity for notice to quit before landlord can bring forcible entry and detainer against tenant whose lease has expired, 8-731. Eight of landlord to maintain action for for- cible entry and detainer for entry dur- ing possession of tenant, 7-924. F. O. B. See Free on Board. FOG SIGNALS. Failure to hear as negligence, see Ships and Shipping. FOOD. Implied warranty upon sale of food, 4-1124; 15-1-083. Eecovery of consequential damages for breach of implied warranty on sale of food, 16- 497. FORECLOSURE. Of chattel mortgages, see Chattel Mort- OAOES. Of mechanic's lien, see Mechanics' Liens. Of mortgages, see Mortgages and Deeds of TmjST. FOREIGN COMMERCE. See Interstate and Foreign Commerce. FOREIGN CORPORATIONS. See Corporations. 92 INDEX TO NOTES, 1-20 ANN. CAS FOREIGN COUNTRIES. Aliens, see that title. Consular agents of, see Consulab Aoents. FOREIGN JUDGMENTS. See Judgments. FORFEITURES — continued. Of leased premises, see Landlobd and Ten- ant. Liquidated damages, see Damages. Of liquors, see Intoxicating Liquors. Of mortgages, see Mortgages and Deeds or Trust. Of tenant's estate as entitling landlord to growing crops, see Chops. FOREIGN I.ANDS. Divorce decree passing title to, see Divorce. Injunction against trespass on, see Trespass. Jurisdiction of actions relating to, see Courts. FOREIGN I.AWS. Conflict of Laws, see that title. Federal statutes as applicable to citizens wliile abroad, see Statutes. Inheritance by child adopted under, see Adoption of Children. International Law, see that title. Presumption that statutes of foreign state are similar to those of domestic forum, 1-459. Proof of foreign law as properly made to court or to jury, 7-74. Admissibility and weight of testimony by la^vyers to prove foreign law, 20-1339. FOREIGN MARRIAGES. See Marriages. FOREIGN RECEIVERS. See Receivers. FOREIGNERS. See Aliens. FORESTS. See Trees and Timber. FORFEITURES. Of animals distrained and impounded, see Animals. Of bail, see Bail. Of benefit certificates, see Benevolent or Beneficial Associations. Of distrained animals, see Animals. Fines and Penalties, see that title. Of gambling apparatus, see Gaming and "Gaming Houses. Under game laws, see Game and Game Laws. Of homestead, see Homestead. Of insurance, see Insurance. FORGERY. Bank cashing forged pension check, see Banks and Banking. Forged notes in hands of bona fide holders, see Bills and Notes. Negligence in drawing negotiable instrument as estopping party to set up fraudulent alteration, see Bills and Notes. Rights of corporation and iona fide pur- chaser of forged stock certificates, see Corporations. Telegraph company's liability for forged mes- sage, see Telegraphs and Telephones. Injurious nature of forged instrument as ele- ment of forgery, 3-293; 9-1111. Forging and uttering as one oflFense, 1-308. Forgery by use of fictitious name, 18-482. Fraudulent procurement of genuine signature as forgery, 17-705. Signing name of another person incorrectly as forgery, 20-166. Forgery of or by typewriting, 8-86. When forgery unavailable as a defense, 1- 181. SuflBciency of indictment for forgery with re- lation to setting out instrument forged, 17-499. Proof of other forgeries in prosecution for forgery, 9-456. FORMER JEOPARDY. See Criminal Law. FORMER PROCEEDING. Evidence given in generally, see Evidence. Competency of former testimony in criminal cases, see Criminal Law. Evidence of admissions of attorney at, see Evidence. Proof of in prosecution for perjury, see Per- jury. FORNICATION. What constitutes "living together" or "co- habiting " in fornication or adultery. 19-655. ' FORUM. Courts, see that title. Venxte, see that title. FRA]STCHISES — FEAUD AND DECEIT. 93 FRANCHISES. Bbidqes, see that title. Of corporations generally, see Corpoeations and cross-references thereunder. Execution sales of, see Executions. Of ferries, see Ferbies. Licenses, see that title. Of municipalities, see Municipal Coepoea- t'ions. Street franchise as extending to new street, see Steeets and Highways. Taxation of, see Taxation. Of turnpikes, see Tuenpikes and Toll Roads. Right of municipality which has granted franchise for performance of public ser- vice, to compel exercise of franchise, 18-335. Right of state to tax federal franchise, 17- 722. FKATEBNAL SOCIETIES. Benevolent oe Beneficial Associations, see that title. Societies and Unincoepobated Associa- tions, see that title. FRAUD AND DECEIT. In antenuptial conveyances, see Husband and WlEE. Bills and notes fraudulently filled up, see Bills and Notes. Carrier's liability to person riding on ticket or pass procured by, see Cabeiees. Concealment by attorney of cause of action against him, see Limitations of Ac- tions. Confessions obtained by fraud, see Ceiminal Law. Demurrer to allegation of as confession, see Pleading. Disbarment of attorney for, see Attoeneys AT Law. Equitable jurisdiction on ground of, see also Equity. Infringement of trademark as affected by, see Tbademaeks, Teade Names, and Un- PAiE Competition. Injunction against legal proceeding on ground of, see Injunctions. Larceny in obtaining property by, see Lae- ceny. Liability for as debt, see Imprisonment foe Debt and in Civil Actions. Marriage induced by, see Marbiagb.^ Nomination of candidates for election, see Elections. Obtaining property by as larceny, see Lar- ceny. Releases obtained by, see Release and Dis- chabge. In sales of goods, see Sales. Sales of land as affected by, see Vendor and PUBCBAS^R, FRAUD AND B^CEIT — continued. Telegraph company's liability for fraudulent message, see Telegeaphs and Tele- phones. Unfair competition as affected by, see Tbade- maeks, Teade Names, and Unfaib Competition. Using mails to defraud, see Post Office. Wills as affected by, see Wills. Commission of fraud or deceit as injury to person or property, 19-936. Undue influence as related to fraud, 18-412. What amounts to false representation of ex- isting fact, 1-980. Meaning of term "graft," 19-1079. Prejudice or damage arising from false rep- resentations inducing person to do what law would compel him to do, 20-179. Concealment of facts as avoiding compromise and settlement, 16-935. Power of court to vacate divorce decree for fraud, 18-1002. Right of party against whom judgment has been obtained by perjury to sue for damages, 18-23. Fraud in formation of partnership as ground for dissolution or rescission, 10-695. Necessity of returning or tendering considera- tion upon repudiation of release of dam- ages for personal injuries, procured bv fraud, 4-655; 10-739. Right of purchaser to rescind contract of sale on ground of fraud or false representa tions as depending on his having been damaged thereby, 14-261. Misrepresentation by vendor of price paid for property as actionable deceit, 8-1062. Fraudulent representation of area by vendoi to purchaser where true boundaries arft pointed out, as actionable deceit, 16- 502. False statement by purchaser as to intended use of realty purchased, as false repre- sentation warranting cancellation of deed, 20-913. Limitations on right to rescind fraudulent contract, 1-910. Performance of executory contract for sale of personalty after discovery of fraud as affecting right of action for dam- ages, 20-172. Effect of discharge in bankruptcy on liability for fraud or obtaining property by false pretenses or representations, 20-308. Fraud as a question of law or fact, 1-446. Necessity and sufficiency of allegation of scienter in action for false representa- tions, 16-646. Presumptions and burden of proof as to fraud, 1-809. Jurisdiction of equity in cases of fraud where adequate remedy at law exists, 3-611. Respective jurisdictions of law and equity to avoid release for fraud, 13-75Q, 94 INDEX TO JSTOTES, 1-20 ANK CAS. FRAUDS, STATUTE Or. 1. Statute as Defense. 2. Contracts Affected by Statute Genee- ALLY. 3. CoNTEACTS Relating to Interests in Lands. 4. Promises to Answeb fob Debt, etc. 5. Representations as to Character, etc. G. Contracts Not to Be Performed within Year. 7. Contracts foe Sales of Goods. 8. Memorandum of Contract Rbquibed by Statute. 9. Waiver of Protection of Statute. Antenuptial agreements, see Husband and Wife. Contract unenforceable because of statute as consideration, see Contracts. Guaranty by transfer of negotiable instru- ments, see Guaranty. Indemnity contracts as within statute, see In- demnity Contracts. Insurance contracts, validity of when oral, see Insurance. Parol evidence affecting writings, see Evi- dence. Partition of lands by parol, see Partition. Reformation of agreements as affected by, see Reformation of Instruments. 1. Statute as Defense. Oral contract within statute of frauds as ground of defense, 11-479. 2. Contracts Affected by Statute Gener- ally. Parol modification of written contract as af- fected by statute of frauds, 1-728. Parol alteration of contract as affected by statute of frauds where contract has been acted upon as altered, 7-1041. Validity and enforceability of parol contract partly within statute of frauds, 8-963; 10-509. Parol agreement establishing boundary line as affected by statute of frauds, 8-83; 16-150. Effect of statute of frauds upon parol agree- ment that deed shall operate as mort- gage, 11-313. Agreement between two parties whereby one assumes other's debt as within statute of frauds, 18-391. Application of statute of frauds to joint promise by two persons for benefit of one of them, 5-844. Judicial sales as affected by statute of frauds, 7-1071. Application of statute of frauds to contracts relating to mines, 10-99. Contract authorizing one to purchase per- sonal property for another as within statute of frauds, 11-1000. Effect on sales of corporate stock of seven- teenth section of statute of frauds and equivalent enactments, 7-930; 18-599. FRAUDS, STATUTE 01? — continued. Contract to make tombstone or monument as within statute of frauds, 10-309. 3. Contracts Relating to Interests in Lands. Sale of growing trees as sale of interest in land within statute of frauds, 9-192; 18-971. Applicability of statute of frauds to oral agreement to mortgage land, 6-46. Validity of oral agreement to devise land, 5-495; 20-1137. Partnership agreement for purchase and sale of lands aa within statute of frauds, 7- 1142; 13-140. Necessity that assignment of written contract for purchase of land be in writing, 15- 1177. Necessity that written contract for sale of land be abandoned or rescinded in writ- ing, 14-729. Continuance of existing possession of land as part performance suflBcient to satisfy statute of frauds, 9-135. Possession of one of several parcels of land as part performance sufficient to satisfy statute of frauds, 8-80. Revival, by oral contract, of defunct contract for sale of land, 17-1111. Written contract to convey part of tract of land to be selected hj vendor or pur- chaser as within statute of frauds, 19- 373. Invocation of statute of frauds by successor in interest to one who has repudiated oral contract for sale of realty, 16-412. 4. Promises to Answer foe Debt, etc. Application of statute of frauds to promise to indemnify, 6-671. Promise made as part of purchase price of property as promise to pay debt of an- other within statute of frauds, 12-1101. Validity of oral guaranty by transferer of negotiable instrument, 2-506. Original or collateral nature of oral promise within statute of frauds as questioti of law or fact, 9-895. 5. Representations as to Chaeaotee, etc. Construction of statutes requirint of garnishee to change of venue, 5-777. Eijlit 'f garnishee to set-off as applicable to claims maturing after service of gar- nishment, 18-214. Nccessitv that garnishee plead specially de- fense of set-off, 15-706. Effect of pending garnishment proceedings on subsequent action against garnishee by principal defendant, 9-478. Rights acquired by garnishment proceedings as affected by bankruptcy of principal debtor, 18-382. Effect upon garnishment proceedings of ef- f? cement of judgment in principal case, 6-752. GAS AND GAS COMPANIES — continued. Petroleum and natural gas as minerals, 20- 937. Larceny of gas, 6-739. Constitutionality of legislation to prevent waste of natural gas, petroleum, vrater, and the like by private owner, 16-1001. Gas company as manufacturer, 10-668. Acts constituting negligence on part of gas company, 1-66. State or municipal regulation of gas rates, 11-748; 15-1042. Rights of gas or water company as against municipality interfering with pipes in making public improvement, 6-390. GATES. At railroad crossings, see Bailboads. GENERAL APPEARANCE. See Appeaeances. GENERAL ASSEMBLY. Legislature, see that title. GENERAL DENIAL. See Pleawno. GENERAL LEGACIES. See Wills. GENERAL REPUTATION. Evidence of, see Evidence. GEOGRAPHICAL FACTS. Judicial notice of, see Evidence. GEOGRAPHICAL NAMES. Use of as unfair competition, see Trade- mabks, Trade Names, and Unfair Com- petition. GIFTS. GAS AND GAS COMPANIES. Executor's power to make gas lease, see Ex- ECt-TOES AND ADMINISTRATORS. Laws making owner of leased premises liable for light furnished, see Landlord and Tenant. Voj,s, }-30 — Ann, Cas. Digest, — 7, Advancements, see that title. To charities, see Charities. Gratuity from third person as mitigation of damages, see Damages. Of liquors, see Intoxicating Liquors. Trusts and Trustees, see that title. By wife, see Husband and Wife. 98 lA^DEX TO NOTES, 1-20 ANN. CAS. GIFTS — contmaed. Complete execution of gift inter vivos by de- posit of money in bank to credit of an- other, 3-865. Validity of gift inter vivos from principal to agent, 15-1133. Enforcement of imperfect or incomplete gift as trust, 16-373. Interest given by general bequest of person- alty with unlimited power of disposi- tion, 17-480. Necessity and suflBciency of acceptance to maJce subscription enforceable, 17-1076. Evidence sufficient to establish parol gift of land, 12-494. Revocability of completed gift inter vivos by parent to child, 6-432. Gift causa mortis by delivery to third per- son, 2-1003. Gift of cheek as valid gift catisa, mortis, 10- 475. GIRL. " Woman " as including, see Women. GONG. Duty of street railway to sound, see Street Railways. GOODS. Generally, see Peesonai. Pbopeety and cross- references. Bulk sales of, see Fkatjduient Conveyances. Ciirriage of, see Cabeiebs. Sales of, see Sai.es. Sales of on Sunday, see Sundays and Hou- dats. Sales of within statute of frauds, see Fbauds, Statute of. GOOD •WIUj. Sale of business as passing good will without mention thereof, 18-433. Effect on rights of vendor of sale of good will in business, 11-573. Eight of partner to dispose of firm's good will, 20-582. GOVERNMENT. Lands of, see Public Lands. States, see that title. United States, see that title. GOVERNOR. Approval of statutes, see Statutes. Extradition, see that title. Pardon, see also Pardon, JlSPRffiVE, ANIJ GOVERNOR — continued. Immunity of governor of state from judicial control, 3-391; 11-620. Power of governor to a,ppoint to office in ab- sence of constitutional or statutory authority, 19-823. Eight of appointing power to make appoint- ment to office where term thereof does not begin until after expiration of term of appointing power, 18-142. Power of executive to remit fines and forfei- tures, 17-603. Power of executive to pardon person found guilty of bastardy, 16-322. Evidence of executive veto, 19-837. GRADE. Of streets, see Steeets and Highways. GRADE CROSSINGS. See Eailboads. " GRAFT." Meaning of term " graft," 19-1C79. GRAND JURT. Contempt of juror by disclosure of proceed- ings, see Contempt. Statements made by accused before grand jury as evidence, see Cbiminal Law. Bias as ground for challenge to grand juror in absence of statutory provision, 4-873. Legality of grand jury not selected in accord- ance with statute, 10-964. Waiver of irregularity in formation of grand jury, 4-226. Validity of indictment baaed on testimony given by indicted person before grand jury, 6-606. Inquiry as to sufficiency of evidence before grand jury, 1-842. Testimony by members of grand jury as to number of grand jurors concurring in indictment, 1-649. Right of indicted person to inspect minutes of grand jury, 4-1055; 18-421. Power of court to reassemble discharged grand jury, 17-656. Impeachment of indictment by member of grand jury, 20-47. GRANTORS AND GRANTEES. See Vendor and Pubchaseb, GRAVES. See MoNUJdKNTB, GKAVE YAKDS — HABEAS COEPUS. 99 GBAVE YARDS. See Cemetebies. "GROSS EARNINGS." What are " gross earnings " of railroad com- pany, 16-429. GROWING CROPS. See Chops. GROWING TREES. See Trees and Timbeb. GROUND RENTS. Extinguishment of ground rent by merger of estates, 8-996. GUARANTY. Corporations as guarantors of stock and bonds, see Corporations. Distinction between absolute guaranty and offer to guarantee, 15-1164. Distinction between continuing and limited guaranties, 4-822. Discharge of surety or guarantor by credit- or's acceptance of bill or note from debtor, 4-884. Change in firm or corporation as discharging guaranty thereto, 15-1020. Validity of oral guaranty by transferer of ne- gotiable instrument, 2-506. GUARANTY INSURANCE. See Insurance. GUARDIAN AD LITEM. Next Friend, see that title. Right of infant married woman to prosecute action with husband as co-plaintiff with- out appointment of guardian ad litem or next friend, 9-1116. GUARDIAN AND WARD. Liability of guardian for alienation of affec- tions, see Husband and Wife. Marriage without consent of guardian, see Marriage. Parent and Child, see that title. Right of general guardian to institute suit in individual capacity on behalf of mipov ward, U-1092, GUARDIAN AND W KKD — omtvnued. Liability of insane person for breach of con- tract made by guardian, 11-54. Right to mechanic's lien on property of in- fant under contract made by guardian, 15-1089. Guardian or next friend as interested witness or as party in suit involving ward's es- tate or rights, 4-1068. Duty of guardian to account with respect to transactions after ward's majority, 19- 509. Liability, for past defaults, of sureties on ad- ditional and substituted bonds of guard- ians, 4-345. Right of child to recover for services rendered during minority to person standing in loco parentis, 20-394. Garnishment of funds held by guardian, 13- 500. GUARDING MACHINERY. Duty of master with respect to, see Master AND Servant. GUARD RAirS. Railroad company's duty to block, see Mas- ter AND Servant. GUESSING CONTESTS. See Lotteries. GUESTS. At hotels or inns, see Inns, Boarding Houses, and Apartments. Sales of liquor on Sunday to guests of hotel, see Intoxicating Liquors. HABEAS CORPUS. For discharge of prisoner sentenced exces- sively, see Criminal Law. Extradition after discharge by habeas corpus, see Extradition. Habeas corpus as civil or criminal proceed- ing, 7-1020. Habeas corpus to bring convict before court for trial, 4-723. Habeas corpus to review errors or irregulari- ties in proceedings, 11-1051. Right of person out on bail to writ of habeas corpus, 5-552. Inquiry into legal existence of court, in habeas corpus proceedings, 16-341. Determination on habeas corpus of constitu- tionality of statute or ordinance undei;' which petitioner is held, 3-581, 100 INDEX TO NOTES, 1-20 ANN. CAS. HABEAS CORPUS — continued. Power of inferior court to consider, in habeas corpus proceedings, question decided by highest court of jurisdiction, 14-758. Right to raise plea of former jeopardy in habeas corpus proceedings, lS-327. Finality of order in habeas corpus proceed- ings, 1-260; 11-129. HABENDUM CLAUSE. See IteEDS. HABITUAL DRUNKARDS. Validity of statute providing for compulsory commitment of inebriate to asylum or other institution for treatment, 15-964. HAWKERS AND PEDDLERS. Junk dealers, see JuNK. Liability of owner of premises to, see Li- cense. Sale by sample for future delivery as ped- dling, 2-830. Validity of ordinance prohibiting hawkers, peddlers, etc., from crying wares or ad- vertising them iibtsily in city streets, 20-591. Validity of statute or ordinance prohibiting hawking or peddling by others than producers of goods sold, 16-1030. Liability of owner of premises to person who goes thereon for purpose of selling things to occupants, 19-425. HEADLIGHTS. HABITUAL CRIMINALS. Validity of statute prescribing special punish- ment for prior offender or habitual criminal, 18-923. HANDBILLS, ETC. Right of municipality to prohibit distribu- tion of handbills, etc., 5-423. HANDCUFFS. Right of accused to be free from, see Cbimi- NAL Law. HANDWRITING. Holographic wills, see Wills. Spelling, punctuation, and literary style as elements in identifying author of writ- ing, 20-1336. Competency of nonexpert to testify to hand- writing of mere correspondent, 8-1035. Competency of witness, under rule excluding testimony as to transactions with dece- dent, to testify as to handwriting of de- cedent, 12-671. Proof of handwriting by third person where writer is accessible as witness, 20-108. Proof of mark by comparison or opinion evi-. dence, 19-504. Papers in record as standards for comparison of handwriting, 9-451. HARBOR. Anchoring vessel in, see Ships and Ship- ping, Negligence in failure to have burning, see Railroads. HEALTH. Animals destroyed by virtue of statute, see Animals. Annulment of marriage for concealment or misrepresentation as to, see Marbiage. Asylums, see Hospitals and Asylums. Disease, see cross-references under that title. Food, see that title. Hospitals, see Hospitals and Asylums. Of insured at time of delivery of policy, see Insurance. Labor Laws, see that title. Quarantine, sec that title. Statutes providing for health of employees, see Master and Servant. Constitutionality of sanitary laws, 1-442. Compulsory vaccination, 1-336; 10-882; 14- 945. Statutory regulation of slaughterhouses, 18- 470. Power of board of health to bring suit, 4-474. , Authority of board of health to regulate municipal water supply, 18-499. HEALTH INSURANCE. See Insurance. HEARING. Deaf and Dumb Persons, see that title. Failure to hear foar signals as negligence, see Ships and Shipping. HEAT — HOMICIDE. HEAT. Carrier's duty to heat conveyances, see Cab- KIEKS. Overheating as fire within insurance policy, see Insurance. HEATERS. As realty or personalty, see Fixtukes. HEIGHT OF BUILDINGS. See BuuBiNGS. HEIRS. Contest of wills by, see Wins, Descent and Distribution, see that title. " Heirs "as used to designate beneficiaries in insurance, 5-458. HIGH VT^ATER MARK. See Watebs and Wateecoueses. HIGHWAYS. See SxEEETS and Highways. HIRING. Bailments generally, see Bailments. Personal services, see Master and Servant. HISTORICAIi -WORKS. In evidence, see Evidence. HOGS. Animals generally, see Animals. Municipality's power to prohibit keeping of, see Municipal Cobporations. HOLDING OVER. By tenant, see Landlord and Tenant. HOIilDATS. See Sundays and Holidays. HOLOGRAPHIC WILLS. See Wills. HOMESTEAD. Right of husband to assert exempti«a— of homestead from debts where title is in wife, 14-1157. Reassignment of homestead upon increase or decrease in value, 16-119. Eight of husband or wife to partition of homestead after divorce or separation, 6-954. Validity and effect of alienation of incum- brance of liomestead without joinder or consent of wife, 9-3. Failure of widow to occupy homestead as af- fecting her rights therein, 12-786. Right of husband to deprive wife and family of homestead rights by deserting them and abandoning homestead, 11-423. Lease of part of premises as affecting home- stead exemption, 16-1038. Abandonment or forfeiture of homestead by involuntary or compvilsory absence, 8-681. Loss of homestead exemption by loss of fam- ily, 12-717. Lien of judgment upon excess of homestead over statutory value, 16-603. Validity of mortfifaHo upon government land made by claimant holding under home- stead act prior to final proof, 9-934. Marshaling assets in respect to homestead lands, 17-1061. HOMICIDE. 1. Criminal Responsibility foe Homicide. 2. Pleading, Pkactice, and Evidbnoe. Civil liability for, see Death by Wrongful Act. Estate by entirety as affected by murder of one spouse by other, see Husband and Wife. Jeopardy in conviction for assault barring further prosecution, see Criminal Law. " Kill," " Killing," see that title. Succession by murderer to property of vic- tim, see Descent and Distribution. 1. Criminal Responsibility foe Homicide. Accidental discharge of weapon, 1-34. Criminal liability for setting spring gun or other dangerous contrivances resulting in homicide, 15-587. Criminality of unintentional homicide com- mitted by person engaged in unlawful act not malum in se, 4-800. Homicide in resisting arrest as excusable on ground of self-defense, 4-844. Right of self-defense of person not in lawful pursuit of business, 9-1134. Killing in defense of one occupying particu- lar relation to slayer as justifiable homicide, 13-1055. Killing in defense of person other than rela- tive as excvisable homicide, 13-1129. 102 IKDEX TO NOTES, 1-20 ANN. CAS. HOMICIDE — contimted. Killing or assaulting friend or relative as provocation sufficient to reduce homicide from murder to manslaughter, 13-1084. Homicide during adultery, 1-136. Degree of mental disturbance essential to pas- sion which will reduce felonious killing to manslaughter, 9-929. Duress as defense in prosecution for murder, 3-1028. What constitutes killing in perpetration of another crime, 8-973. Death caused by wilful or negligent omission of duty as manslaughter, 13-42. Criminal responsibility for accelerating death of diseased or injured person, 4-958. Consent or request of deceased as affecting crime of murder, 14-994. Liability of person serving life sentence to trial and sentence for murder, 14-488. Fact that death resulted from supervening cause as defense to charge of homicide, 16-576. Liability of corporation to indictment for homicide, 16-840. Right of officer to kill misdemeanant in order to effectuate arrest, 4-760. Right of person attempting arrest to kill es- caping felon, 17-900. 2. Pleading, Pbactice, and Evidence. Necessity that indictment for homicide should allege that deceased was human being, 20-775. Necessity of using word " feloniously " in in- dictment for homicide, 11-996. Necessity of allegation of deliberation and premeditation in indictment for murder, 3-936. Sufficiency of indictment for homicide with respect to description of instrument used, 18-314. Burden of proof in prosecution for homicide where defense is that killing was acci- dental, 11-309. Right of defendant in homicide case to intro- duce evidence of his good character, 11- 1189. Admissibility of evidence of character of de- ceased in prosecution for homicide, 4-338; 11-229. Admissibility of evidence of reputation of de- ceased family in prosecution for homi- cide, 18-983. Admissibility of evidence of relative physical condition or strength of parties on issue of self-defense, 19-124. Admissibility of dying declarations as ques- tion of law or fact, 8-539. Necessity that there should be expectation of "immediate" death to render dying declaration admissible, 17-287. HOMICIDE — continued. Expression of desire for consolations of reli- gion as proof of belief that death is im- pending within rules as to dying decla- rations, 13-238. Want of religious belief on part of declarant as affecting admissibility or weight of dying declarations, 16-148. Impeachment of dying declarations by proof of contradictory statements, 7-885; 20- 887. Duty of court to instruct as to self-defense where accused denies killing, 19-120. Duty of court in murder trial to instruct as to lesser degrees of homicide without special request, 3-139. Necessity of using word " feloniously " in in- struction defining murder, manslaugh- ter, etc., 13-550. Murder committed in perpetration of felony as precluding from consideration of jury various degrees of homicide, 18-590. Right of jury to convict for lesser degree under indictment or information charg- ing act declared by statute to be murder in first degree, 12-1081. HORSE RACING. "Bookmaking" as gaming, see Gaming and Gaming Houses. Pool rooms as controllable by police power, see Gaming and Gaming Houses. Validity of statute licensing or regulating horse racing, 8-1016. Betting on horse racing as gaming or gam- bling, 6-693; 11-280. HORSES. Generally, see Animals and cross-references thereunder. Liveey-Stable Keepebs, see that title. HORSESHOERS. Constitutionality of laws requiring special qualifications of horseshoers, 1-930. HOSPITALS AND ASYLUMS. Husband's liability for support of insane wife, see Husband and Wife. Liability of owner or proprietor of private hospital or sanatorium for negligence of employees, 8-1046. Liability of insane institution for negligent or tortious acts of inmate, 12-829. Injunction against private hospital or sana- torium for contagious or infectious dis- eases, 15-719. HOTELS — HUSBAND AND WIFE. 103 HOSPITALS AND ASYLUMS — continued. Liability of master conducting hospital for servants for negligence of hospital em- ployees, 14-749. Municipal hospital for contagious diseases as nuisance, 6-823. Liability of municipality for negligence in respect to condition of or performance of services incident to hospitals, pest- houses, and almshouses, 4-624. HOTELS. See Inns, Boabding Houses, and Apabt- MENTS. HOUNDS. Bloodhound evidence, see Evidence. HOURS. Of labor, see Labor Laws. HOUSEBREAKING. See BnBGLABT. HOUSEHOI.D GOODS. Conversion of, see Conversion. HOUSE OF REPRESENTATIVES. Legislatuee, see that title. HOUSES, GAMING. See Gaming and Gaming Houses. HOUSES OF PROSTITUTION. See Disoedebly Houses. HUMANE SOCIETIES. See Animaxs. HUNTING. Game and Game Laws, see that title. HUSBAND AND WIFE. 1. Antenuptiai, Aoeeements and Convey- ances. 2. Rights, Duties, and Liabilities as to Othees. HUSBAND AND WIPE — continued. 3. Rights, Duties, and Liabiutibs Inter Se. 4. Alienation of Affections. 5. Criminal Conversation. 6. Estate by Entireties. 7. Separate Property Rights. 8. Damages for Personal Injuries. 9. Admissibility of Letters between Par- ties. Abduction of child, see Abduction. Alimony and Suit Money, see that title. Assessment on shares of stock owned by wife, see Corporations. Bastardy proceedings by married woman, see Bastardy. Confession of judgment by wife, see Confes- sion of Judgment. Contest of will by widow, see Wills. Death of husband, damages recoverable by wife, see Death by Wrongful Act. Divorce, see that title. Homestead rights, see Homestead. Infant married woman, actions by, see Guardian ad Litem. Insurable interest of husband, see Insurance. Joinder of wife in alienation or incumbrance of homestead, see Homestead. Larceny between, see Larceny. Married Women, see also the cross-references under that title. Partnership between, see Partnership. Rape by husband on wife, see Rape. Redemption of mortgaged premises by wife, see Mortgages and Deeds of Trust. Specific performance of husband's contract to convey realty, see Specific Peeporm- ANCE. Suretyship of wife under mortgage of separ- ate property for husband's debt, see Suretyship. Tax title acquired by wife in husband's land, see Taxation. Widow's right to contest will, see Wills. As witnesses, see Witnesses. 1. Antenuptial Agreements and Convey- ances. Validity of antenuptial agreement for release of dower and like interests in property of intended spouse, 4-804; 16-710. Validation of oral antenuptial agreement by postnuptial contract or conveyance in writing, 13-559. Right of party to marriage to iipecifie enforce- ment of antenuptial contract made by third person, 9-603. Antenuptial conveyances of real property in fraud of marital rights, 1-860 ; 13-104. Right of infant to disaffirm marriage settle- ment after attaining majority, 12-861. 2. Rights, Duties, and Liabilities as to Others. Liability of husband for voluntary torts of wife, 9-1225; 16-378. Validity and effect of contract of wife in- duced by threats of criminal prosecution against husband, 11-385. 104 IKDEX TO NOTES, 1-20 ANN. CAS. HUSBAND AND WIF:E, — continued. Husband's promise to pay debt contracted by wife in her own name and credit, 9- 1067. Liability of husband for support of insane wife outside of matrimonial home, 4-787. Liability of wife for medical attendance upon husband, 5-832. Liability of husband for wife's funeral ex- penses, 1-172. Liability of wife for husband's funeral ex- penses, 18-856. Validity of judgment rendered against mar- ried woman sued in maiden name, 16-795. 3. Eights, Duties, aito Liabilities Inteb Se. Ownership, as between husband and wife, of jewelry bought with husband's money for wife's use, 16-5Q8. Validity of conveyance by wife direct to hus- band yhere husband is required to join in wife's deed, 20-1331. Right of one spouse to compensation or lien for improvements made on lands of other spouse, 14-1178. Burning property of one spouse by other as arson, 16-867. Eight of husband, as against wife, to dispose of his personalty during coverture, 10- 1053. Validity of gift of personalty by married woman to person other than husband, 4-586. Right of one spouse to maintain civil action at law against the other, 3-145; 14- 881. 4. Alienation of ArFEcrioNa Action by wife for alienation of aflfectiopa or for criminal conversation, 6-661 ; 14- 47. Liability of parent or guardian for alienation of affections, 8-813. XiMk of affection between husband and wife as defense to action for alienation of af- fections, 7-689. 5. Criminal Conversation. Action by wife for alienation of affections or for criminal conversation, 6-661 ; 14-47. Connivance by husband as bar to action for criminal conversation, 5-867. Condonation as defense to action by husband for criminal conversation, 10-62. Proof of marriage in action for criminal con- versation, 15-870. 6. Estate by Entireties. Wife's right of profits, crops, and usufruct of estate by entirety, 4-1101. Estate by entirety as subject to claims of creditors of one spouse, 12-53. HUSBAND AND WIFE — contimed. Estate by entirety as subject to mechanic'? lien for work perfornie- 500. Validity of statute providing that insurance contract shall' not be' avoided for imma- terial false warranty, 7-1107. h. Penalty for Refusal to Pay Loss. Constitutionality of-' statiatfeB- providing' dam- ages or penalty foi' refwsid'' or failure of insurance company to pay foss, 5- 406} 14-301. i. Actions. Law governing, insurance contract, 19-30. Clause in insurance policy limiting time to bring suit thereon as affected, by mi- nority of insured, 20-12.91. Effect on rights, of iftsuredi; after reinsuranee, of limitation clause as' to smt on policy. 7-37: Failure to secure award after sU'toission to arbitration as affecting right of insured to sue on insurance policy, 20-253. Defense of ultra vires by insurance company in action on policy, 4-1046^ Necessity of pleading, as defense to suit on insurance policy, election to avoid con- tract for breach of warranty, ]4-91i Denial of liability on insurance policy ob one ground as waiver of' other g,Fouiiids of defense, 20-438» INSURANCE. 113 INSURANCE — continued. Eight of insurance company to enforce sub- rogation by suit in its own name, 1- S83; 18-710. 2. Accident Insurance. Intentional exertion as " accidental means " of injury within accident insurance pol- icy, 1-789. Meaning of term " confi'ned to house " or sim- ilar phrase in accident insurance policy, 18-1111. Construction of clause in accident insurance policy excepting death caused by dis- ease," 5-86. Construction of exception in accid'ent insur- ance policy as to death or injury while " intoxicated " or " under the influence of intoxicants," etc., 13-51&. " Poisoning " resulting from voluntary act within accident insurance policy, 1-255. CcSBstruction of sunstroke clause in accident insurance policy, 10-854. Construction of " total disability " clause in accident insurance policy, 7-815. Construction of term " voluntary exposure to unnecessary danger " as used in acci- dent insurance policy, 10-451; 18-1125. Construction of exception in accident insur- ance po-liey in case of accident tO' in- sured while walking or being on rail- road, 12^4. Liability of insurer against accident for in- juries sustained doiring sleep, 6^554. Notice of accident within time required by terms of aceident insura-nce policy as condition preeedent to recovery, 14-292. Burden of proof and sufficiency of evidence to show accidental death under accident inaurance policy, 9-9'19. Eight of accident insurance company to be subrogated to rights of insured against person' causing injury, 16-635. 3. ElIPiOTEKS' l/IAfirCITY INSUBANCE. Construction and effect of condition in em- ployers' liability insurance policy re- quiring insured to give insurer notice of accident, 11-258. Validity and conetruction of stipulation in employers' liability insurance policy limiting time to bring action thereon, 9-164. Eight of jury to consider fact that employer is insured against accidents to em- ployees, 3-554; 9-323. 4. FiDEtrrt Aios GrrABANTY Insurance. Effect of false representations of insuired on validity of policy of fidelity or guar- anty insurance, 8-608. Discharge of surety on fidelity bond by fail- ure of employee to- notify sumty of de- linquency of employee, 11-1031. yoM. 1-20 — Ann. Gas. Digest. — 8. INSURANCE — continued. 5. FiKE Insurance. ii. Insurable Interest. Insurable interest of husband in property of wife, 2-32. b. Terms and Conditions of Contract. Construction of term " additions " in fire in- surance policy, 8-94; 10-938. Executory contract for sale of insured prop- erty as breach of condition against alienation, 3-710; 9-461. Judicial or foreclosure sale as breach of con- dition against sale, in fire insurance policy, 2-358. Construction of term " ceased to be opeTated " in fire insurance policy, 10-800. Validity and effect of clause in fire insurance policy making insured coinsurer, 14- 852. Construction of term " concurrent " in insur- ance policy, 5-755. Validity and effect of stipulation in fire in- surance policy suspending liability in case of default in payment of instal- ment premiramv 12-628. Liability of fire insurance company for losses by explosions under policy excepting ex- plosions from risks covered, S-780. Construction of clause in fire insurance pol- icy excepting loss caused by earthquake, 17-1097. Construetion of fallen building clause in fire insurance policy, 18-580. Necessity of exact compliance with iron-safe clause in insurance policy, 9-466; 14- 1079. What constitutes " keeping," " storing," " using," etc., of prohibited articles within fire insurance policy, 13-540; 19-414. Running of limitation agaiinst aiction on fire insurance policy limiting time to sue thereon to certain period " after the fire," 10-824. Effect of mortgage clause in standard fire in- surance policy upon application of con- ditions in policy to interest of mort- gagee, 7-399. Sale and mortgage back as violation of clause in fire insurance policy prohibiting change in interest, title, etc., 12-259. Materiality of warranty regarding incum- brances on property covered by fi're in- surance policy as question of law or fact, 15-342. Validity and construction of condition avoid- ing fire insurance policy upon foreclo- sure of mortgage, 16-664. Appointment of receiver as violation of con- dition in fire insurance policy against change of interest, title, or possession, 10-869. 114 INDEX TO NOTES, 1-20 ANN. CAS. INSUEANCE — continued. Standing timber as " property " within mean- ing of fire insurance policy, 6-569. Existence of executory contract of sale as breach of condition in fire insurance policy requiring insured to be sole and unconditional owner of property, 7- 498; 18-864. Existence of vendor's lien as breach of condi- tion in fire insurance policy requiring insured to be sole and unconditional owner of property, 7-57. Existence of title in government as breach of condition in fire insurance policy for sole and unconditional ownership, 10- 333. Time to which sole and unconditional owner- ship clause in fire insurance policy re- lates, 7-1155. Construction of vacancy clause in fire insur- ance policy issued upon rented property, 9-95. Revival of fire insurance policy by occupancy after vacancy, 9-55. Construction of provision in fire insurance policy indemnifying against loss of rents, 18-514. c. Standard Policy. Constitutionality of legislation providing for standard fire insurance policy, 6-91. d. Property Covered Tjy Policy. Goods in process of removal with consent of insurer as covered by fire insurance pol- icy, 14-691. Fire insurance policy on live stock in desig- nated location as covering animals tem- porarily elsewhere, 15-661. Validity of insurance policy on property il- legally kept or used, 15-541. e. Increase of Risk. Necessity of knowledge or control by owner of insured property of act constituting increase of risk, 7-388; 10-1038. Eflfect on fire insurance policy of increase of risk which ceases before loss, 11-782. f. Overheating as " Fire." Overheating as fire within fire insurance pol- icy, 17-1125. g. Wrongful Act of Insured. Effect of negligence of insured on liability of fire insurance company, 6-587. Conspiracy of insured to burn property as de- fense to action on fire insurance policy, 19-841. h. Mistake of Parties as to Policy. Effect on fire insurance policy of mistake of agent in describing location of propertv, 13-1024. INSURANCE — continued. Failure of insured to read fire insurance pol- icy as precluding right to have it re- formed for mistake, 20-365. i. Cancellation of Policy iy Insurer. Acts sufficient to effect cancellation of fire insurance policy by insurer, 17-795. Necessity of return or tender of unearned premium to effect cancellation of fire insurance policy by insurer, 12-1067. j. Bankruptcy or Insolvency of Insured. Effect of bankruptcy or insolvency of insured on rights under fire insurance policy, 14-889. k. Assignment of Policy. Assignment of fire insurance policy after loss, 3-476. 1. Proof of Loss and Appraisers Thereof. Furnishing proofs of loss within prescribed time as condition precedent to recovery on fire insurance policy, 15—335. Qualifications of appraisers of loss under fire insurance policy, 5-336. m. Beneficiaries. Validity of fire insurance policy payable to "estate" of deceased person, 8-122. Who may sue on insurance policy covering mortgaged property with loss payable to mortgagee, 4-543. Application by mortgagee, on mortgage debt. of money received by him on fire insur- ance policy procured for his benefit by mortgagor, 9-66. Recovery by mortgagee under fire insurance policy procured for his benefit, when mortgagor fails to furnish notice and proof of loss, 13-436. Effect of award of appraisers on rights of mortgagee to whom loss is payable un- der fire insurance policy, 18-271. n. Agreement hy Insurer to Repair or Rebuild. Agreement of insurer to repair or rebuild, after loss, as creating new cause of ac- tion in favor of insured, 16-105. o. Insurance Agents. Right to act as agent for both fire insurance company and insured, 6-441. Right of fire insurance agent to insure his own property, 12-95. p. Fire Insurance Patrol. Liability of fire insurance patrol in tort, 16- 1222. 6. Health Insurance. Validity of provision in health policy requir- ing notice of illness to be given within specified time, 15-218. INSURANCE. 115 INSURANCE — continued. Meaning of term " confined to house " or sim- ilar phrase in health insurance policy, 18-1111. 7. Lite Insurance. a. Insurable Interest. Selection by insured of beneficiary not having insurable interest in former's life as against public policy, 15-235. Necessity for pleading insurable interest in action on life insurance policy, 3-538. b. Disclosures by Applicants. Duty of applicant for life insurance to notify insurer of facts discovered subsequently to application and examination, 15-126. c. Wa7-ranties and Representations. ElTect on life insurance policy of incorrect opinion answer, made in good faith, in medical examination, 8-1156. Misrepresentation of relationship of insured to beneficiary as avoiding life insurance policy, 4-336; 11-72. Breach of warranty that insured has not made previous application for insur- ance, 7-676; 18-101. Meaning of term " severe " or " serious " ill- ness in application for life insurance policy, 20-291. What constitutes consultation with, or at- tendance by, physician within meaning of application for life insurance, 17- 1203. d. Occupation of Insured. What constitutes breach of condition in in- surance policy relating to occupation of insured, 7-568. e. Incontestable Clause. Validity of incontestable clause in life insur- ance policy, 4-364; 13-305. Effect of incontestable clause in life policy on provision against suicide, 1-310. f. Premiums. Nonpayment of premium as invalidating con- tract of life insurance in absence of pro- vision to such effect, 19-67. Forfeiturp of insurance policy for nonpay- ment of premium when insurer is in- debted to insured, 17-508. Right of insurance company to change from assessment to level premium plan, 4- 361. Necessity and sufficiency of notice of time of payment of life insurance premium, in absence of statute or policy provision requiring notice, 10-687. Necessity and sufficiency of notice of time of payment of life insurance premium un- der statutes requiring notice, 4-483. INSURANCE — continued. Waiver of provision in life insurance policy as to time of payment of premiums by acceptance of premium after appointed time, or similar act, 7-385. Effect of acceptance of note for life insurance premium, 1-967. Recovery of premiums paid for life insurance, 4-123. g. Paid-up Policies. Effect of failure to surrender life insurance policy within stipulated time after de- fault upon right to paid-up policy, 10- 470. h. Assignment. Right of insured to assign policy of life in- surance to one having no insurable in- terest, 5-360; 12-686. Life insurance policy as passing to assignee for benefit of creditors or trustee in banliruptcy, 20-1186. i. Mode of Death. Legal execution of insured as bar to action on life insurance policy, 13-133. Effect of suicide of insured on life insurance policy containing no provision as to suicide, 8-162; 11-779. Construction of clause in life insurance pol- icy excepting death from suicide while " sane or insane," 7-659. Declarations or written statements made by insured previous to death as evidence of suicide, 8-1114. Presumption, burden of proof, and weight and sufficiency of evidence of suicide relied on as defense to action on life insurance policy or benefit certificate, 17-32. Death while engaged in violating law within exception in life insurance policy, 3- 873; 12-310. j. Beneficiaries. Meaning of term " children " as used to desig- nate beneficiaries in life insurance pol- icy, 15-529. Meaning of word " dependent " as used to designate beneficiary in insurance, 7- 358; 17-867. Persons included within term " family," when used to designate beneficiaries in insur- ance policy or benefit certificate, 7-684 ; 11-570. Meaning of term " heirs " when used to desig- nate beneficiaries in insurance policy, 5-458. Vested interest of beneficiary in ordinary life insurance policy, 1-684; 11-49. Effect of divorce upon rights of beneficiary in insurance, 2-351. Right to proceeds of life insurance policy made payable to wife of insured, or to their children, where wife dies without issue, 10-269. 116 INDEX TO NOTES, 1-20 ANN. CAS. INSUBANCE — continued. Liability of proceeds of life insurance for debts of beneficiary, 2-91. k. Recovery by Insurer of Money Paid. Right of life insurance company to recover money paid on policy where insured is presumed to be dead, 13-411. 1. Action for Breach of Contract. Sight to sue for damages for anticipatory breach of life insurance contract, 9- 665; 12-38. Burden of proof of good health of insured at time of delivery of policy wherS life in- surance contract so requires, 17-238. m. Suits to Ei/ifOrce Right to Share in Pfoflts of company. Right of policy holder in life insurance com- pany, wh6 is entitled to share profits or Surplus, to apply to courts for relief, 10-403. n. Time to Sue on Policy. Validity of clause in life insurance policy limiting time to bring action thereon, 7-918. When limitation begins to run against life insurance policy providing period within which suit must be brought, 8-1064. 8. Maeine Insubance. Value of wreck as element in determining constructive total loss, 12-23. Recovery under policy of marine insurance by one within description of beneficiaries but not within contemplation of parties to contract, 4-501. Payment of loss by reinsured as prerequisite to recovery from reinsurer, 14-951. 9. MuTUAl, INSUBANCB. Effect of provision in mutual insurance con- tract for forfeiture or suspension of policy on failure to pay dues, 11-340. Distribution of assets and surplus of mutual insurance company upon dissolution, 7-412. INTEMPERANCE. See DiluiricENifEss and Intoxication. INTENTION. In criminal law, see Cbiminal Law and cross-references thereunder. As element of oifense of using mails to de- fraud, see Post-Ofpice. Infringement of trademark or unfair compe- tition as affected by, see Tbademaeks, Teade Names, and Unfair Competi- tion. Merger of estates as affected by, see Estates. Of testators, see Wiels. Testimony by party as to, see Evidence. INTEROOVRSB. Sexual Intjebcoubse, see the cross-references under that title. INTEREST. On annuities in arrears, see Annuities. On bills and notes, see Bills and Notes. On 6ity warrants, see Municipal COepoea- TIONS. As compensation in condemnation proceed- ings, see Eminent Domain. Court's power to add to verdict, see Teial. Execution varying from judgment as affect- ing, see Executions. Insurable interest, see Insueance. Jurors disqualified for, see Juet and Juby Tbial. Limitations as affected by payment of, sec Limitations of Actions. On municipal obligations, see Municipal Coepoeations. On negotiable instruments, see Bills and Notes. Public officer's liability for, see Public Of- FICEES. Purchaser's liability for where completion of sale is delayed, see Vendoe and Pub- Chasee. Statute of limitations as affected by payment of, see Limitations of Actions. Surviving partners' liability for, see Pabt- NEBSHIP. On taxes, see Taxation. Usurious interest, see LTsuey. Variance of execution from judgment as af- fecting collection of, see Executions. Implied contract as to rate of interest 20- 1268. Right to recover interest on money paid bv mistake, 10-307. Conipuf;iiion of interest in case of partial lisiyments, 13-711. Validity of statutes discriminating as to in- terest between different classes of cm- tracts, 7-478. Allowance of interest upon damages for con- version of property or injury thereto, 1—763. Right of plaintiff in ejectment to recover as damages interest on value of premises during period of detention, 16-853. Right to interest as part of compensation irt eminent domain proceedings, 15-108. Collection of interest on taxes. 16-!71. time from which general pecuniary legacies draw interest in absence of governin" provision in will, 6-525. " " Inclusion of interest aeeniing after suit is brought in determining amount in con- troversy, 13-396. IXTEEFEEENCE WITH CONTRACT — IISTTEE VIVOS. IIY INTERFERENCE WITH CONTRACT REIiATIONS. Labok Combinations, see that title. Civil liability for interference with contract relations, 2-441; 11-337. INTERLOCUTORY JUDGMENTS, See Appeal and Ebeob. INTERNAL AFFAIRS. Of corporations, see Cobpobations. INTERNAL IMPROVEMENTS. Prohibition against state angaging in, see States. INTERNATIONAL EXTRADITION. See Extradition. INTERNATIONAL LAW. Seizure of vessels outside territorial jurisdic- tion for yiolation of municipal law, .3-811. Contraband of war as including persons, 15- 241. INTERPLEADER. Privity of title between claimants in inter- pleader, 1-513. INTERSTATE AND FOREIGN COMMERCE — continued. Right of sjtate to prohibit importation of cigarettes, 9-360. State statute requiring preliminary inspec- tion of importations as attempted regu- lation of interstate commerce, 14-1103. State regulation as to labor upon material to be used in municipal improvement as in- terstate commerce regulation, 3-309. State taxation of business of taking orders for foreign goods or services as at- tempted regulation of interstate com- merce, 2-701; 14-865. State taxation of property delayed during trajisit between states as taxation of in- terstate commerce, 5-1019. State regulation of soliciting orders for in- toxicating liquors by nonresident as in- terference with interstate commerce, JO-736. Privilege tax imposed for sale of liquor on vessel engaged in interstate trafiBc, 3- 263. What coastitutes " original package " as ap- plied to interstate shipments, 12-1116. Effect of Interstate Commerce Act upon right of shipper to damages on ground of un- reasonable freight charges, 9-1082. Effect of Interstate Commerce Act upon right of shipper to enjoin enforcement of un- reasonable freigijt rate, 11-849. Jurisdiction of action for damages for viola- tion of Interstate Commerce Act, 4-773. Ferries between states, 16-865. When imported liquors become subject to state regulation, 20-669. INTERROGATORIES. See Tbial. INTERSTATE EXTRADITION. See Extradition. INTERSTATE AND FOREIGN COM- MERCE. Transportation by independent railroad oper- ating entirely within single state, of freight shipped from or to points with- out state, as interstate commerce, 13- 905. Contract for buying and selling futures as subject of interstate commerce, 14-1034. Carrying on correspondence school as inter- state commerce, 14-967 ; 18-1109. State statutes penalizing negligent handling of telegrams as regulation of interstate commerce, 2-513. State regulation of railroads as interference with interstate commerce, 7-5; 1,3-147. State regulation of railroads as interference with interstate commerce, 13-147. State statutes prescribing duty or liability of connecting carriers as recrnlation of in- terstate commerce, 2-517. INTERURBAN RAILROADS. See Street Railroads. INTERVENTION. Right of contract creditors to intervene in equity, 3-1091. Right of claimant of attached property to in- tervene, 18-594. Right nf adverse claimant to intervene in ac- tion for partition. 20-82. Commencement of action as interrupting statute of limitations in favor of inter- venor, 15-664. INTER VIVOS. Gifts, see Gifts. 118 i:ntdex to notes, 1-20 ann. gas. INTOXICATING I.IQUORS. 1. Intoxicants. 2. Power to Eegulate Use op and Traffic IN LiQUOES. 3. Validity of Liquor Laws. 4. Sales. 5. Gifts. 6. Licenses. 7. Enforcement of Law by Private Citi- zens. 8. Persons Responsible under Law. 9. Prosecutions. Civil Damage Acts, see that title. Intoxication, see Drunkenness and Intoxi- cation. Jury using, see Jury and Jury Trial. Lease for saloon purposes, rights of parties where tenant is unable to use premises, see Landlord and Tenant. Local Option, see that title. Place of sale when shipped C. 0. D., see Sales. 1. Intoxicants. Constitutionality of statute declaring bever- age intoxicating irrespective of its ac- tual character, 8-52. Medical or toilet preparations containing al- cohol as within purview of intoxicating liquor statute, 13-638. Liability of intoxicating liquors to execution, attachment, or replevin, 17-300. 2. Power to Regulate Use of and Traffic in Liquors. General power of state to regulate and pro- hibit traffic in intoxicating liquors, 2-98. Right to prohibit possession of intoxicating liquor for personal use, 19-163. When imported liquors become subject to state regulation, 7-1132; 20-669. 3. Validity of Liquor Laws. Constitutionality of statute prohibiting giv- ing away of liquors, 13-736. Constitutionality of statute prohibiting sale of liquor in particular locality, 8-258. Validity of statute forbidding bringing of liquor into prohibition territory, 14- 569. State regulation of soliciting orders for in- toxicating liquors by nonresident as in- terference with interstate commerce, 10- 736. Constitutionality of statutes providing for forfeiture or destruction of liquors il- legally kept. 2-245. Validity of statutory regulations as to fre- quenting saloons by, and selling or giv- ing liquors to, certain persons, 3-325; 13-491. Validity of statute or ordinance regulating sitting in, and use of screens in, saloons, 5-382. INTOXICATING LIQUORS — continued. Validity of statute limiting granting of liq- uor licenses to residents or citizens of state, 16-1060. Validity of statute making property leased for sale of liquors subject to payment of fines, taxes, etc., assessed against lessee, 18-177. Validity of liquor law under constitutional provision as to title and subject-matter of statutes, 20-323. 4. Sales. Distinction between wholesale and retail sales of liquors, 18-187. Meaning of term " church " in statutes pro- hibiting sale of liquor within specified distance of church, 9-1113. Meaning of term " school " or " schoolhouse " within statute prohibiting sale of liquor within certain distance thereof, 16-924. Liability for sale of liquor to minor purchas- ing for another, 6-867. Sale of intoxicating liquors to minors for medicinal purposes, 3-840. Ignorance of minority as affecting prosecu- tion for furnishing liquor to minor, 18- 437. Statutes permitting sale of liquor on Sunday in hotels to " guests," " travelers," "with meals," etc., 17-817. Validity of sale of liquors where seller knows same will be illegally resold, 3-154; 15- 269. Loan of intoxicating liquors as sale within purview of prohibitory statute, 14-276. Sale of intoxicating liquors as public nui- sance per se, 14-36. Recovery of price of liquors sold illegally within state, 7-360. Covenant against sale of liquor as covenant running with land, 14-129. 5. Gifts. Statutory prohibition against furnishing liq- uor to minors aa applicable to giving liquors, 4-1063. 6. Licenses. Right of corporation to license for sale of in- toxicating liquors, 17-1001. Person who becomes qualified freeholder for sole purpose of petitioning for or con- senting to issuance of liquor license as hona fide freeholder within statute, 16- 276. Consent of abutting owners to issuance of liq- uor license, 1-60. Who is " owner " under statute providing for consent or remonstrance of property owners to issuance of liquor license, 16- 1229. Collection of liquor license by suit, 12-173. Right of holder of one liquor license to con- duct more than one place of business, 3-1109. IlSrTOXICATION — JEOPARDY. 119 INTOXICATING LIQUORS — continued. Eights of partners under liquor license, 10- 910. Eight of licensee to damages for wrongful re- vocation of liquor license, 14-674. Eight of liquor licensee to recover fee paid where license fails without his fault, 17-187. Propriety of quo warranto to test right to sell intoxicating liquor under license, 18- 526. 7. Enfobcement of Law by Pbivate Citi- zens. Bight of private citizen to maintain action to enforce liquor law, 15-1015. 8. Pebsons Eesponsible undeb Law. Liability of partner for illegal sale of liquor by copartner, 8-276. Liability of licensee for illegal sale of intoxi- cating liquors by his servant against in- structions, 13-324. Personal liability of agent or servant of liq- uor dealer for violation of liquor law, 19-582. Application of statute regulating liquor traf- fic to bona fide social club distributing liquor to members, 10-386. 9. Peosecutions. Necessity of alleging name of purchaser in prosecution for unlawful sale of intoxi- cating liquor, 4-98 ; 13-128. Necessity of alleging price or consideration in prosecution for unlawful sale of liq- uor, 19-693. Necessity of alleging and proving intoxicat- ing quality in prosecution for illegal sale of liquor, 13-117. Proof of . other offenses in prosecution for violation of liquor law, 18-846. Eight to use record of sales of liquor kept by druggist as evidence against him, 20- 1182. Inquiiy into validity of license produced by defendant in prosecution for sale of liq- uors without license, 12-714. Ignorance of character of liquors sold as de- fense to prosecution for illegal sale, 12- 472. Impossibility of securing license as defense to prosecution for selling liquor without license, 18-95. Wrongful refusal of license as defense to prosecution for sale of liquor without license, 17-60. Eight of accused to have prosecution elect be- tween several acts proven as violations of liquor law, 20-1070. IN TRANSITU. Carrier's liability for failure to stop, see Cab- biebS. INVENTIONS. See Patents. INVITEES. See License. INVOLTTNTABY BANKBUFTCT. See Bankbuptcy. INVOLUNTABY SEBVITUDE. Convict laborers, see Convicts. Peonage, see that title. Statute authorizing state to bind out infant to service, see Infants. IBON SAFES. Clause respecting in insurance policy, see IN- siibance. IBBIGATION. Right of riparian owner to use water for irri- gation, 17-829. Liability of owner of irrigation ditch for damages arising from its construction and maintenance, 13-267. Irrigation as public use or benefit for which land may be condemned, 1-304. Power of court to fix or regulate rates of irri- gation company, 16-799. ISSUE. Birth of as affecting estate by curtesy, see Cubtbsy. " Issue " and " lawful issue " as regards ille- gitimates, 5-936. JAILS. See Peisons. JAPANESE. Competency of Japanese as vidtness, 18-981. INTOXICATION. See Deunkenness and Intoxication. JEOPARDY. See Cbiminal Law. 120 INDEX TO liTOTES, 1-20 AKN". CAS. JEWELRY. Ownership, as between husband and wife, of jewelry bought with husband's money for wife's use, 16-508. JIM CROW^ LAttrS. Validity of, see Caebiees. JOINDER. Of arbitrators, appraisers, or referees in award, see Aebitration and AwiW, Of eailses trf aetio-n, see Pi-eamng. Of defendants in action under civil damage act, see Civil Damage Acts. Of husband in release of dower, see Dowee. Of parties, see Pasties to Actions. In petJtion for change of grade as affecting compensation, see Steeets and High- ways. Wife conveying to husband, see Hdsband and Wife. Of wife in alieHation or iiwumbrance of homestead, see Homestead. JOINT ADVENTURES. Partnership generally, see Pabtneeship. Mutual rights and liabilities of parties to joint adventure, 17-1022. JOINT PROMISES. Application of statute of frauds to, see Feauds, Statute of. JOINT RESOLUTIONS. Of legislature as having force of law, see Legislatube. JOINT STOCK COMPANIES. Cobpobations, see that title. JUDGES — continued. False imprisonment, liability for, see False IMPEISONMENT. judicial Sales, see that title. Justices op Peace, see that title. libel in statements of, see Libel and Slan- DEB, New Tbial, see that title. Public oflBcers generally, see Public Oiti» cebs. Questions of law and fact, see Tbial. Slander in statements of. See Libel and Sl^NDEK. Sunday laws as affecting acts of, see Sun- days AND Holidays. Trial and matters relating thereto, see Tbiai. Witnesses' examination by judge, see Wit- nesses. Validity of statutes imposing appointing power of judges, 8-599; 10-436; 18- 1189. Title of judge to office as subject to attack in action brought before him, 20-460. Waiver of objection to jurisdiction of special or substitute judge, 19-94. Authority of successor to trial judge to pass upon motion for new trial, 7-493; 10- 327. Disqualification of judge who is resident or taxpayer in municipality which is party to proceedings before him, 6-406. Degree of relationship to party necessary to disqualify judge or justice of the peace, 12-516. Construction of term " party " in statute dis- qualifying judge related to party, 15- 533. Disqualification of judge for political bias or prejudice, 20-424. Power of disqualified judge to m^ke formal orders or to perform ministerial acts, 5-975. Waiver of objection to disqualified judge, 10- 969. Effect upon decision of tribunal of participa- tion by disqualified judge whose vote does not produce result, 13-336. Validity of acts of de facto judge, 12-208. JUDGMENTS. JOINT TENANTS. Tenants in Common, see that title. JOINT 'WILLS. See Wills. JUDGES. Change of as reversible error, see New Tbial. Contempt, see that title. CousTS, see that title. 1. Chabacteb and Foem. 2. Legislative Contbol. 3. Peesons Concluded. 4. CoNrEssiON OF Judgment. 5. Default Judgments. 6. Satisfaction and Extinguishment. 7. Altebatmn and Vacation. 8. Actions on ob to Enfobce. 9. Extbateeeitobial Opebation. 10. Lien. 11. Res Judicata. Of adoption as subject to collateral attack, see Adoption of Children. For alimony, see Alimony. JUDGMENTS. 121 JUDGMENTS — continued. Appeal as affecting, see Appeal and Error. Of appellate courts, see Appeal and Error. Assignments of, see Assignments. Bankruptcy as affecting, see Bankruptcy. For damages or indemnity bond as alterna- tive of injunction, see Injunctions. By default for failure to produce documents, see Production of Documents. By disqualified judge when matter is formal or ministerial, see Judges. In ejectment, see Ejectment. Execution for part only of, see Executions. Finality for purposes of appeal, see Appeal AND Error. Garnishment proceedings as affected by vaca- tion of, see Garnishment. Injunctions, see that title. Judges, see that title. Of justices of peace sitting without juries, see Justices of Peace. Letters testamentary or of administration, collateral attack on decree granting, see Executors akd Administrators. Against married woman sued in maiden name, see Husband and Wife. New promise as i-eviving, see Limitations of Actions. Of partnership as affected by death of part- ner, see Partnership. Perjury, see that title. Review of, see Appeal and Error. Revival by new promise, see Limitations of Actions. Set-off of, see Set-off and Counterclaim. Stare Decisis, see that title. Against tenant affecting title, see Landlord AND Tenant. Time as to which judgment in ejectment speaks, see Ejectment. 1. Chakacter and Form. Judgments or decrees sufficient to constitute cloud on title, 7-334. Single or separate judgments on consolidation of causes, 3-534. 2. Legislative Control. Power of legislature to validate or invali- date judgments of courts, 2-241. Prohibiting revival of judgments as impair- ment of obligation of contracts, 3-1148, 3. Persons Concluded. Effect of judgments and decrees on persons not in being, 2-790. Conclusiveness, against purchaser of land, of judgment against vendor in action brought after purchase, 3-339. 4. Confession of Judgment. Power of married woman to confess judg- ment, 10-714. 5. Defattlt Judgments. Validity of judgment by default awarding re- lief beyond prayer of complaint, 11- 353. JUDGMENTS — continued. Default judgment entered by clerk without required order of court as void or void- able, 16-1211. Default judgment rendered by justice of peace, on process served less than re- quired time, as void or voidable, 8- 1142. Absolute right of defendant not personally served to have judgment opened and to defend, 12-992. 6. Satisfaction and Extinguishment. New trial or vacation of judgment after sat- isfaction of judgment, 3-19. Acceptance by judgment creditor of note of third person as extinguishing judgment, 19-482. 7. Alteration ok Vacation. Power of trial court to revise, correct, or amend criminal judgment after execu- tion, 11-298. Correction of judgment as suit of third party, 19-1103. Vacation of divorce decree, after death of party, in direct proceeding brought by surviving party, 5-892. Power of court to vacate divorce decree for fraud, 18-1002. Grounds for vacation of decree of adoption, 17-548. Equitable relief against judgment entered against party through negligence or mistake of attorney, 10-447. Equitable relief against judgments procured by perjured testimony, 3-83; 10-1107. 8. Actions on or to Enforce. Right of action on domestic judgment as af- fected by remedy by execution, 4-169. Enforcement of decree in equity by action at law, 11-658. Enforcement of decree for alimony by action at law, 20-1068. 9. Extraterritorial Operation. Extraterritorial effect of divorce decree of foreign court having jurisdiction, 20- 870. Extraterritorial effect of divorce decree or statute prohibiting remarriage of party or parties, 15-748. Validity of decree in divorce proceeding pass- ing title to land situated in another jurisdiction, 17-859. Validity and effect in one state of judgment rendered on warrant of attorney in an- other state, 20-262. 10. Lien. Deficiency judgment on execution sale as lien on property after conveyance by judg- ment debtor during redemption period, 13-320. 122 INDEX TO NOTES, 1-20 ANN. CAS. JUDGMENTS — continued. Lien of judgment upon excess of homestead over statutory value, 16-603. Judgment lien against property of munici- pality, 4-102. 11. Res Judicata. Dismissal of action by agreement as res judi- cata, 13-655. Judgment for defendant for failure or insuffi- ciency of plaintiflf's proof as bar to sub- sequent suit on same cause of action, 9-187. Judgment of nonsuit or dismissal in one jurisdiction as bar to action in another, 19-1016. Right of action against agent after judgment against principal, 17-614. Judgment against partner on partnership ob- ligation as bar to suit against copart- ner, 8-315. Action by municipality as bar to action by citizens thereof involving same matter, 8-1134. Recovery by administrator for death of wife by wrongful act as bar to recovery by husband for tort, 14-554. Judgment in criminal proceeding as res judi- cata in civil or penal action, 5-78. Application of doctrine of res judicata to is- sues in action as to which judgment is silent, 6-104. Decision of appellate court upon sufficiency of evidence to prove fact in controversy as res judicata on second appeal, 6—791. Finality of order in habeas corpus proceed- ings, 1-260; 11-129. Burden of proof of res judicata or estoppel by judgment, 2-655. JUDICIAIi NOTICE. See Evidence. JUDICIAL SALES. As breach of fire insurance policy, see Insur- ance. Executions, see that title. Of insane person's property, see Insanity. Within statute of frauds, see Frauds, Stat- ute OF. Trust implied from purchase for another, see Trusts and Trustees. Judicial or sheriflF's sale of property in par- cels or en masse, 8-741. Right of tenant in common to buy common property at judicial sale or sale under power in trust deed, 17-1169. Rule of caveat emptor as precluding defenses by bidder at sheriff's sale, 18-501. Jurisdiction of equity to correct mistnke in description of land sold at judicial sale, 11-85. JUDICIAL SALES — continued. Effect of reversal of judgment authorizing sale on title to land purchased at judi- cial sale by attorney of party to pro- ceeding, 14-185. Vacation of sheriff's sale on account of chill- ing or puffing bidding, 3-423. Advance bid as ground for setting aside judi- cial sale, 7-173. Plaintiff" in execution as necessary party to proceeding to set aside sheriff's sale, 5-260. Effect of statute of limitations to protect purchaser at void judicial sale, 9-872. Amount of restitution where property is sold under judgment subsequently reversed, 15-672. JUNK. Statutory regulation of junk dealers and junk shops, 16-722. JURISDICTION. Of actions against municipalities, see Munic- ipal Corporations. Of action for violation of interstate commerce act, see Interstate and Foreign Com- merce. Of admiralty, see Admiralty. Of benevolent associations, see Benevolent OR Beneficial Associations. Of chancery courts, see Equity. Of courts, see Courts. Of criminal offenses, see Criminal Law. Of divorce, see Divorce. Of false pretenses, see False Pretenses and Cheats. Of federal courts, see United States Courts. In garnishment proceedings, see Garnish- ment. Of infringement of trademarks, see Trade- marks, Trade Names, and Unfair Competition. Judges, see that title. Jurisdiction by consent to sign bill of excep- tions after time allowed, see Bnxs of Exceptions. Prohibition for lack of, see Prohibition. Of prosecution against accessory,' see Acces- sories AND Other Participants in Crime. Of removed causes, see Removal of Causes. Of states, see States. To try kidnapped prisoner, see Kidnapping. JURY AND JURY TRIAL. 1. Right of Trial by Jury. 2. Waiver and Loss of Right. 3. Exemption from Jury Service. 4. Competency of Jurors. 5. Jury Commissioner. 6. Formation of Jury. 7. Custody and Conduct of Jury. 8. Fees and Expenses. JURY AND JURY TRIAL. 123 JURY AND JURY TRIAL — continued. Charge of judge, see Trial. Contempt by attempt to influence juror, see Contempt. Damages, see that title. Evidence, see that title. Exclusion of jury during argument as to ad- missibility of evidence, see Teial. Experiments in presence of jury, see Evi- dence. Findings, see that title. Gband Jusy, see that title. Instructions, see Trial. Reasonable doubt, see Criminal Law. Retirement, reading evidence after, see Tbial. Trial and matters relating thereto, see Trial. Withdrawal of unreasonable testimony from jury, see Evidence. I. Right of Trial by Juey. General scope of constitutional provisions guaranteeing right of trial by jury, 1-703. Constitutionality of statutes providing for commitment of wayward children to in- stitutions or to proper guardianship without jury trial, 5-96 ; 14-819. Right to trial by jury in eminent domain pro- ceeding, 18-680. Right to jury trial as to existence of and damages for nuisance, 3-1043. Right to jury trial in action to quiet title, 3-248; 18-245. Right to jury trial in quo warranto proceed- ings, 5-640. Right of trial by jury for violation of munici- pal ordinance, 4-507; 18-380. Right to jury trial of will contest, 15-211. 2. Waiveb and Loss of Right. Waiver of jury trial in criminal cases, 1-597 ; 9-1183. Failure of defendant in criminal case to de- mand jury as waiver of jury trial, 9- 263. Waiver of juiy as affecting right to jury on second trial or at subsequent term, 4-1004. 3. Exemption from Juey Service. Constitutionality of laws exempting certain classes of persons from jury service, 5-783. 4. Competency of Jurobs. Prejudice as to business of party to action as disqualifying juror, 20-1312. Competency of employee of party as juror, 12-306. Competency as juror of employee or official of state or government which is party to action, 15-400. Effect on competency of juror of residence in county or municipality interested in suit, 6-961. JURY AND JURY TRIAL — continued. Membership in, or contribution to, society for suppression of crime, as disqualifying juror in criminal case, 9-312; 17-223. Religious affiliations as affecting competency, of juror, 17-343. Competency of jurors who have previously served in cause involving same or simi- lar facts, 4-965. Interest or bias sufScient to disqualify juror in eminent domain proceedings, 5-923. Disqualification of juror as grounds for new trial, 1-196; 12-922. 5. Juey Commissioneb. Effect of failure of jury commissioner to qual- ify properly, 18-765. 6. FOBMATION of JDEY. Appointment of substitute for disqualified of- ficer to select or summon jury, 17-367. Time of exercise of right of peremptory chal- lenge, 19-766. Right and manner of exercise of peremptory challenges by joint parties in civil ac- tions, 16-265. Allowance of excessive number of peremptory challenges as ground for reversal, 12- 371. Improper refusal of court to sustain challenge to juror for cause as warranting rever- sal where injured party exhausts his peremptory challenges, 9-279. Effect of statute granting peremptory chal- lenge upon right of prosecution to stand aside juror, 6-274. Failure of record to show , that jury were sworn as ground for reversal, 8-750; 17-178. 7. Custody and Conduct of Jury. What amounts to coercion of jury by court into agreeing on verdict, 11-1131. Private communication by trial judge with jury during deliberations as ground for new trial, 16-1141. Communication to jury by custodian or other court officer as ground for new trial, 13-522. Effect on verdict of information as to facts given to jury by one of their number, 4-274. Expression of opinion or prejudice by juror during trial as ground for new trial, 16-175. Right of jury in eminent domain proceedings to disregard testimony of witnesess, 3- 302. Discussion by jurors of former conviction of defendant, or submission of record thereof, as ground for new trial, 15- 361. Propriety of permitting jury to taste or smell liquor to determine whether it is intoxicating, 16-218. 124 mCEX TO NOTES, 1-20 ANN. CAS. JURY AND JXIRY TRIAL — continued. Use of intoxicating liquors by jury as ground for new trial, 10-889. Eight of jury on view to malse evidence for tliemselves by experiment, 18-571. Presence of custodian of jury in jury room as ground for new trial, 8-652. Effect on verdict of papers improperly in jury room, 6-931. Reading of newspapers by jury during trial as ground for setting aside verdict, 6- 352; 12-180. Allowing recreation to jury during trial as ground for new trial, 14-534. Presumption of prejudice from improper separation of jury, 1-287. Temporary separation of juror from his fel- lows on account of illness as ground for new trial in criminal case, 20-656. Admissibility of affidavits of jurors to prove misconduct by or affecting jury while outside jury room, 6-290, Obligation of party moving to set aside ver- dict because of misconduct of jury to show absence of participation or ac- quiescence in misconduct, 7-420. 8. Fees and Expenses. Liability of county for expenses of jurors during trial, 17-1232. Constitutionality of statutes requiring pre- payment or taxation as costs of jury fees, 5-930; 12-378. JUSTICES OF FEACi;. "Affidavit made before magistrate " within extradition statute, see Extradition. CouKTS, see that title. False imprisonment, liability for, see False Imprisonment. Jeopardy in examination before magistrate, see CEiJtiNAL Lavp. Subpmna not entitled in any prosecution, see Summons and Pbocess. Degree of relationship to party necessary to disqualify judge or justice of the peace, 12-516. Power of justice of peace or magistrate to re- open criminal case decided by him, 4- 767. Right of justice of peace to recover fees in separate action, 9-372. Time of rendition and entry .of judgment by justice of the peace sitting without jury, 12-1029. Default judgment rendered by justice of peace, or process served less than re- quired time, as void or voidable, 8-1142. Power of magistrate or justice of peace to punish witness for contempt, 9-316. JUSTIFIABI.E HOMICIDE. See Homicide. JUSTIFICATION. Of libel and slander, see Libel and Slandee. " KEEPING." Of prohibited articles within insurance pol- icy, see Insubanoe. KIDNAPPING. Jurisdiction to try prisoner forcibly or un- lawfully brought within jurisdiction, 14-523. Proof of similar crimes in prosecution for kidnapping, 14-693. KILL, KILLING. Homicide, see that title. Meaning of terms "kill," "killed," "kill- ing," etc., 20-100. KNOAVLEDGE. Allegation of, see Fraud and Deceit. Of animal's viciousness, see Animals. Carnal Knowledge, see that title and cross- references. Carrier's liability for transporting goods as affected by, see Carriers. Of cestui que trust as affecting validity oi trust, see Trusts and Trustees. Of character of liquors sold as affecting crim- inal responsibility, see Intoxicating Liquors. Contract executed by one party on Sunday without knowledge of other party, see Contracts. By employee of dangers, see Master and Servant. Incest as affected by knowledge of relation- ship, see Incest. By insurer of facts as waiver of conditions in policy, see Insurance. Laches as affected by, see Laches. By master of dangers or defects, see Master and Servant. Of minority as affecting responsibility for furnishing liquor to minor, see Intoxi- cating Liquors. Notice, see that' title. Of offer of reward, see Rewards. Receiving stolen property as affected by, see Receiving Stolen Property. Of testator as to contents of will, see Wills. LABOR. See Work and Labob. LABOE COMBINATION'S — LANDLOED AND TENANT. 125 LABOR COMBINATIONS. Defamation in publishing that employer has been placed on " unfair list," see Libel AND Slander. Interference with Contract Relations, see that title. Monopolies and Corporate Trusts, see that title. Notes on labor combinations, 16-1182. Validity of laws prohibiting discharge of union employees, 1-939; 13-773. Validity of contracts stipulating for employ- ment of union labor only, 5-285. Attempted coercion of employer by threat to strike, as unlawful act, 3-974. Picketing, 13-60. liability of trade union for wrongful conduct of its agents, 5-601. Injunction as remedy against injury to busi- ness or property by strikers, 4-783. Publication that employer has been placed on " unfair list " of labor union as libelou.5, 15-677. LACHES — continued. Applicability of doctrine of laches or statute of limitations to action for dower, 11- 411. Lapse of time as barring right to compel ac- counting by personal representative, 15- 481. Applicability of statute of limitations or doc- trine of laches to mandamus proceed- ings, 9-845; 20-1114. Loss of right to relief against infringement of trademark or trade name by acqui- escence, laches, or delay, 18-459. IiADING, BILLS OF. See Bills of Lading. LAND. Grcnerally, see Real Propebty. " Land " as including leasehold, see Wills. Public Lands, see that title. LABOR LAWS. Master and Servant, see also that title. Regulations as to labor upon municipal im- provements, see Interstate and For- eign Commerce. Constitutionalitv of statutes limiting length of day's labor, 1-82; 11-90; 13-959. Statutorv restriction of hours of labor upon public works, 1-46; 10-721. State statute regulating hours of labor as in conflict with federal statute on same subject, 19-816. Validity of statutes regulating manufacture of clothing in tenements, 1-747. Validity of statute regulating employment of adult females in other respects than number of hours of labor, 12-799. Validity and construction of child labor acts, 9-1108; 15-473. Statutorv regulation of employment agencies, 5-3'26. Validity of laws prohibiting discharge of union employees, 1-939; 13-773. LABORERS. Master and Servant, see that title. Farm laborer's right to lien on crop, see Crops. LACHES. Estoppel, see that title. Limitations op Actions, see that title. Prescription, see that title. Laches as affected by ignorance of facts, 19- 110. LANDLORD AND TENANT. 1. Existence of Relation and Character of Tenancy, 126. 2. Leases, 126. 3. Title, Possession, Care, and Enjoyment of Premises, 126. a. Generally, 126. b. Eviction and Ejectment of Tenant 126. c. Deprivation of Use of Premises, 12(j. d. Light and Water, 127. e. Repairs ami Improvements, 127. f. Removal of Straw or Manure, 127. 4. Rent, 127. 5. Notice to Quit, 127. 6. Subletting, 127. Conditional sales distinguished from leases, see Conditional Sales. Crops, see that title. Ejectment against landlord, see Ejectment. Execution on interest of lessee, see Execu- tion. Fixtures, see that title. Gas rights, leases of by executors, see Execu- tors and Administrators. Homestead exemption as aflfected by lease of part of premises, see Homestead. Insurance, see that title. Landlord's liability to person making sales to tenants, see Licence. Leasehold as included in gift of " real estate " or " lands," see Wills. Leases by corporations, see Corporations. Liquor fines and tax^s, statute making prop- erty liable for, see Intoxicating Liq- uors. Mining leases, see Mines and Minerals. Municipality's power to rent property, see Municipal Corporations. Nuisance for which landlord may repoyer, see Nuisances. 126 mDEX TO NOTES, 1-20 ANK CAS. LANDLORD AND TENANT — cojitirwied. Oil rights, leases of by executors, see EXKCU- TOEs_ AND Administrators. Pogaession by tenant permitting suit to quiet title, see Quieting Title — Eemoval of Cloud. Railroads as lessors and lessees, see Raii- IIOADS. Renewal of lease as implying trust, see Trusts and TRusTifes. Sureties of lessee as discharged by alteration of lease, see Suretyship. Tenants in Common, see that title. Trustee, term of lease by, see Trusts and Trustees. Trust implied from renewal of lease, see Trusts and Trustees. 1. Existence op Relation and Character of Tenancy. Person occupying building on premises under agreement to farm on shares as tenant of owner, 13-235. Character of tenancy arising from occupancy of premises under invalid lease and paying rent therefor, 17-540. 2. Leases. Validity within statute of frauds of oral lease for one year to commence in future, 18- 1078. Construction of " wear and tear "clause in lease, 13-96. Positive clause of forfeiture as embracing negative covenants, 1-794. Water rents as taxes or rates within meaning of covenant in lease, 8-111. Special or local assessment as included within covenant in lease to pay " taxes," 12- 589. Time referred to in lessee's covenant to return premises in condition they " now " are, 15-881. Construction of covenant in lease for renewal as covenant for perpetual renewal, 13- 1006. Time for which renewal may be had under in- definite agreement in lease granting op- tion of renewal, 6-102. Distinction between assignment of lease and sublease, 7-537. Covenant against assignment of lease as af- fected by transmission of lessee's inter- est upon his death, 12-978. Assignment by one colessee to another as breach of covenant in lease against as- signment, 16-318. Right to enforce covenant of renewal as to part only of leased premises, 17-113. Holding over by tenant under lease giving option for renewal as exercise of option, 6-341; 19-399. Right of assignee of lease to enforce cove- nant for renewal, 12-969. Yalidity of stipulation in lease giving lessee 9ption to purqhasej 15-380. LANDLORD AND T'EN ANT — continued. Right of assignee of lease to enforce option to purchase, 5-914. Construction and effect of constitutional pro- hibition against long leases of agricul- tural lands, 15-345. Deposit by tenant to secure performance of stipulations contained in lease, as pen- alty or liquidated damages, 19-215. 3. Title, Possession, Care, and Enjoyment of Premises. a. Generally. Effect upon landlord of judgment against ten- ant affecting title to land, 5-61; 19- 263. Estoppel of tenant in possession prior to lease to deny landlord's title, 4-108. Right of landlord to maintain action for for- cible entry and detainer for entry dur- ing possession of tenant, 7-924. Implied covenant by lessor to give possession to lessee, 14-402. Right of way as passing to lessee under gen- eral demise of premises, 19-1202. Respective rights of landlord and teuant to roof of leased premises, 16-1209. Liability of landlord to tenant for use of premises by another tenant, 14-1124. Rights and remedies of landlord on abandon- ment of premises by tenant, 14-1088. Measure of damages where tenant holds over without consent of landlord, 17-284. Duty of landlord as to concealed defects in premises, 1-679; 12-512. Liability of landlord to third persons for de- fects in premises as affected by his agreement to repair, 2-466; 12-49. Right of landlord to place signs on demised premises, 12-41. Criminal liability of owner of premises in possession of tenant for nuisance exist- ing thereon, 14-210. b. Eviction and Ejectment of Tenant. Constructive eviction resulting from positive overt act of landlord, 7-593 ; 19-690. Right of landlord to render premises unin- habitable after breach of condition in lease where lease gives right of re-entry for conditions broken, 15-1071. Damages recoverable by tenant in action for wrongful eviction, 6-460. Right of tenant to damages against landlord for forcible ejectment after termination of lease 12-770. Right of tenant to maintain forcible entry and detainer against landlord for for- cible ejectment after termination of lease, 12-767. c. Deprivation of Use of Premises. Effect upon lease of part of building of acci- dental destruction of, or injury to, building, 9-107, LANDSLIDE — LAECENY. 127 LANDLORD AND TENANT — co«*tn«ed. Eight as between lessor and lessee to compen- sation for property taken by eminent domain, 4-1011; 15-714. Eights of landlord and tenant inter se under lease of premises for saloon purposes where tenant is subsequently unable to use premises for that purpose, 15-1103. d. Light and Water. Duty of landlord to light passageway common to tenants, 14-764; 19-667. Liability of landlord to tenant for injxiries caused bv water brought upon premises, 10-257. ■ Validity of statute, ordinance, or regulation making owner of premises liable for light or water furnished to tenant or former owner, 7-1017; 11-241. Liability of one tenant to another for negli- gent use of waterworks, 18-533. e. Repairs and Improvements. Action of tort on landlord's agreement to re- pair, 3-835; 13-171. Liability of landlord to tenant for negligence of independent contractor in making re- pairs, 9-211. Measure of damages recoverable by tenant for landlord's breach of covenant to repair, 15-563. Measure of damages for breach of covenant in lease to make improvements, 4-899. Eight of lessee to enforce covenant to pay for improvements or repairs against suc- cessor of reversion, 4-439. Construction of tenant's covenant to repair with reference to condition of premises at time of letting, 8-577. Measure of damages recoverable by landlord for tenant's breach of covenant to re- pair, 14-152. f. Removal of Straw or Manure. Eight of tenant to remove straw from prem- ises, 16-528. Eight of tenant to remove manure from prem- ises, 11-80. 4. Eent. Effect upon liability for rent of surrender of premises between rent days, 10-365. Effect of customary acceptance of rent by landlord after stipulated time for pay- ment, 15-253. Necessity of demand for payment of rent in order to enforce forfeiture for nonpay- ment, 8-581. Receipt by landlord of rent accruing after breach of condition in lease as waiver of forfeiture for breach, 11-62. Right to recover rent for premises used for purposes of prostitution, 8-181. Lien of landlord as divested by bankruptcy gr insolvency oi t^naiit, lij-38f|. LANDLORD AND TENANT — continued. Right to distrain as depending on relation- ship of landlord and tenant, 19-268. One distress as bar to second, 3-821. Remedy of stranger whose property on ten- ant's premises is distrained for rent, 16- 1160. 5. Notice to Quit. Necessity for notice to quit before landlord can bring forcible entry and detainer against tenant whose lease has expired, 8-731. Sufficiency of service of notice to quit by landlord, 8-1144. Designation of time of termination of ten- ancy in notice to quit by tenant, 4-628. 6. Subletting. Sufficiency of oral consent to subletting where lease requires written consent, 16-606. Subletting part of demised premises as viola- tion of stipulation against subletting, 19-953. Effect upon rights of sublessee of surrender of leased premises by lessee to lessor, 10-424. I.ANDSLIDE. Carrier's liability for injuries caused by, see Carriebs. Injuries to servant caused by sliding of rock, earth, etc., see Master and Servant. LANDS, PUBLIC. See Public Lands. LANGUAGE. Language in which publication required by statute should be made, 14-420. LAPSE. Of legacies or devises, see Wills. LAPSE OF TIME. Adverse Possession, see that title. Laches, see that title. Limitations of Actions, see that title. Prescription, see that title. Presumption of payment from, see Payment. LARCENY. 1. Distinouished prom Other Offenses. 2. Acts Constituting Oppense. 3. Allegations op Indictment. 4. lNT0XTr,\TI0N .'iS DEFENSE, 5. E""I1)EA'0E. 6. Instructions, 7. VEKpiCT, 128 INDEX TO NOTES, 1-20 ANN. CAS. LARCENY — continued. Bailee's liability for theft by servant, see Bailments. BuRGLABY, see that title. Embezzlement, see that title. Receiving Stolen Peopebty, see that title. RoBBEET, see that title. Stolen Goods, see that title. 1. Distinguished fkom Otheb Offenses. Distinction between larceny and embezzle- ment, 13-882. Distinction between larceny and obtaining property by false pretenses, 2-1010. 2. Acts Constituting Offense. Doctrine of taking for personal gain in law of larceny, 18-824. Larceny by finder of lost property, 20-1380. Appropriation of valuable property found in property purchased as larceny, 16-228. Undelivered check as subject of larceny, 18- 138. Dogs as subject of larceny, 13-81. Larceny of gas, water, or electricity, 6-739. Larceny of railroad tickets, 14-179. Decoy letter as subject of embezzlement or larceny under postal laws, 4-878. Thing kept for unlawful purpose as subject of larceny, 5-798. Appropriation of corporate funds for political purposes by officer of corporation as criminal offense, 10-320. Obtaining possession of property by trick or fraud with intent to steal as larceny, 8-287. Right to possession by person from whom property is stolen as affecting crime of larceny, 13-495. Larceny between husband and wife, 2-37. Facilitation of theft by trap to catch thief as consent to taking, 10-631. 3. Allegations of Indictment. Effect on indictment for larceny alleging that more certain description of property is unknown, of evidence that more certain description could have been given, 18- 944. Sufficiency of indictment for larceny in re- spect to allegations charging theft of articles belonging to different owners, 16-585. Pleading as to ownership or possession in prosecution for larceny of property be- longing to decedent's estate, 20-1 2G3. Sufficiency of indictment for larceny from pri- vate corporation, company, association, or society with reference to allegations of ownership, 18-1121. Allegation of ownership in indictment or in- formation for larceny of married woman's property, 6-163. Necessity of alleging value in indictment for larceny, 2-857, LARCENY — continved. Sufficiency of indictment for larceny of ani- mal and of proof in support thereof with respect to description of animal, 17-735. 4. Intoxication as Defense. Intoxication as defense in prosecution for larceny, 6-636. 5. Evidence. Proof of corpus delicti in larceny by circum- stantial evidence, 16-1214. Admissibility, in prosecution for larceny, of proof of possession by defendant of other stolen property, 10-1089. Admissibility of declarations as to owner- ship, made by person accused of larceny, prior to being suspected, 2-303. Admissibility of evidence of financial condi- tion of defendant in prosecution for larceny, 19-117. Proof as to ownership or possession in prose- cution for larceny of property belonging to decedent's estate, 20-1263. Burden of proof of mistaken belief as to own- ership in prosecution for larcenyj 2-192. 6. Instbuctions. Duty of court, upon request, to instruct as to law of circumstantial evidence in prose- cution for larceny wherein it is shown that defendant had possession of stoleji property, 8-796. 7. Verdict. Necessity that verdict of conviction for lar- ceny should state value of property, 19- 687. LATEBAIi AND SUBJACENT SUP- PORT. See Adjoining Landowners. liAUNDRIES. Injury to servant operating mangle, see Mas- tee and Sebvant. LAW. Questions of, see Trial. Statutes, see that title. "LAWFUL ISSUE." See Issue. LAW OF ROAD. See Streets and Highwats, LAW EEPOETS — LIBEL AND SLANDER. 129 LAW BEPOKTS. See Reports. LAWYERS. See Attorneys at Law. LEADING QUESTIONS. Discretion in permitting, see Witnesses. « LEASES. Generally, see Landlobd and Tenant. By brokers, see Beokees. LEGACIES AND DEVISES. See Wills. LEGAL CONCLUSIONS. General allegations of indebtedness as, see P1.EADINQ. LEGISLATURE. Privilege of witnesses testifying before com- mittees, see IJBEL AND Slander. Statutes, see that title. Power of legislature to expel members, 2-759. Power of legislature to appoint committee to sit after adjournment of session, 11- 649. Power of legislature or legislative committee to punish witness for contempt, 7-877. Power of legislature to validate or invalidate judgments of courts, 2-241. Powdr of legislature to define qualifications of public officer, 19-743. Right of legislature to delegate power to create public office, 18-489. Power of legislature to extend term of in- cumbent of public office, 13-160. Service of civil process upon members of legislature, 2-615. Judicial notice of contents of legislative jour- nals on issue as to enactment of stat- ute, 20-449. Joint resolution of legislature as having force and effect of law, 18-706. LETTERS. Of administration, see Executors and Ad- MINISTEATORS. Contracts consisting of letters, see Con- tracts. Libel, see Libel and Slander. Post Office, see that title. Testamentary, see Executors and Adminis- trators. Vots. 1-20 — Ann. Cas. Pigest. — 9, LETTERS — continued. Presumption as to authenticity of letter re- ceived in reply to letter, 11-887. Sufficiency of evidence to show mailing of let- ter, 19-651. Rebuttal of presumption of receipt of letter, 4-956. Publication of libel through letter addressed to person defamed, 1-190; 11-425. Duty of railroad company to person visiting station to mail letter on train, 20-320. Admissibility in evidence against writer of letters between husband and wife, 3- 915. LEVEE DISTRICTS. Liability for torts, see Toets. LEVEL CROSSINGS. See Railroads. LEVY. Of executions, see Executions. Of special assessment, see Special oe Local Assessments. Of taxes, see Taxation. LEWDNESS. Obscenity, see that title. Solicitation of Chastity, see that title. I'i-SX FORI, LEX LOCI, LEX REI SITI, ETC. See Conflict op Laws. LIBEL AND SLANDER. 1. Defamatory Words and Acts, 129. 2. Publication, 130. 3. Privileged Communications, 130. 4. Persons Entitled to Sue, 130. 5. Persons Liable, 130. 6. Defenses, 130. 7. Pleadings, 130. 8. Evidence, 131. 9. Erroneous Instructions, 131. 10. Damages, 131. 11. Venue, 131. 12. Survival of Action, 131. Survival of action, see Abatement and Re- vival. 1. Defamatory Words and Acts. Imputation on clergyman as libel or slander, 20-718. • Disparagement of property or of manufac- tured articles as libel or slander, 8-310, 180 INDEX TO ISTOTES, 1-20 ANN. CAS. LIBEL AND SLAmMR — continued. Defamation of real property as actionable wrong, 9-818. Imputation of ignorance, ineompetenije, etc., to physician, dentist, or druggist as slander or libel, 20-482. Statement that nontrader owes debt and re- fuses to pay as libel per se, 8-'844. Imputation of insolvency to business man as Blander, 8-213. Charging woman with unchastity as action- able p^r ge, 15-1242. Libel or slander In publishing or speaking of white person as negro, 4-689. Charge of burning property or of arson as libel or slander, 17-273. Charge of robbery as libel or slander per se, 5-865. Publication of person's photograph as that of another as libel, 9-866; 16-1077. Literary criticism as libel, 1-330. Publication that emplojrfer has been placed on " unfair list " of labor union as libel- ous, 15-677. Communication by member of credit associa- tion to other members, blacklisting per- son as deliaquent debtor, as libelous, 11-57. Significance of title or headline in determin- ing whether article is libelous, 13-375. 2. PUBUCATIOH. Publication of libel through letter addressed to person defamed, 1-190; 11-425. Publication of libel by communication to stenographer, 1-103. 3. PEIVILEOED OOMMUJWOATIOIirS. Communication regarding public oflSeer made to person not having authority in mat- ter as privileged within law of libel and slander, 14-106. Communication to peace or prosecuting officer conceraing commission of crime as privileged against prosecution for libel or slander, 7-113. Complaint against public officer or employee to person or body having power in mat- ter, as privileged withm law of libel and slander, 19-1196. Report of mercantile agency as privileged within law of libel and slander, 12-149. Statements by party in pleadings in civil ac- tion as privileged within law of libel and slander, 12-1025. Publication of pleadings before they come be- fore court as privileged within law of libel, 11-162; 15-618. Utterances of judges as privileged against prosecution for libel or slander, 4-433. Privilege of attorney from prosecution for libel or slander for statements made in judicial proceedings, 7-603. Testimony of witness as privileged within law of libel and Slander, lS-773. LIBEL AND SLANDER — continued. Privilege from liability for slander of wit- ness testifying before legislative com- mittee, 6-803. Privilege of witness as to utterances made be- fore or after testifying, 3-127. Communication by or between stockholders in corporation as privileged within law of libel and slander, 10-272. Privileged communication within law of libel and slander as question of IM ot fact. 10-1152. 4. Pebsons Entitled to Sde. Right of corporation to sue for libel of Blan- der, 5-550. Right of one of class of persons to sue for libel or slander Of class, 8-135 ; 14-329. Identity of name as giving right of action for libel or slander where publication was not intended to refer to plaintiff, 16- 168. 5. Persons Liable. Liability of corporation for libel or slstnder, 9-443; 17-622. Liability of editor or manager of newspaper or periodical for libel published therein, 7-457. Liability of telegraph company for receiving and transmitting libelous message, 9-^ 697. Joint liability for slander, 3-312. .Joint libellants as " joint trespassers,'' 1-875. Falsity of charge against public officer as af- fecting privilege against prosecution for libel, 3-649. 6. Defenses. Necessity that justification of libel or slan- der be justification of precise charge, 3- 528. Truth alone as complete defense in civil ac- tion for libel, 17-761. Previous libel or slander of defendant by plaintiff as defense to action for libel or slander, 18-72. Insanity as defense in action for libel or slander, 4-573. 7. Pleamnos. Necessity that complaint for libel or slander should set out exact language of de- famatory statement, 9-495. Sufficiency of complaint for libel or slander in respect to allegations connecting plaintiff with defamatory matter, 13- 380. Pleading and proof of libel or slander in for- eign language, 6-731. Pleading as libelous charges of the commis- sion of acts in foreign jurisdictions, I-' 199. LIBEETY OF SPEECH AND PEESS — LICENSES. 131 LIBEL AND SliANTfEU— contitmed. 8. Evidence. Admissibility, in action for libel or slander, of opinioii of witness as to meaning or eflFect of words used, 18-833. Admissibility of evidence of retraction in re- duction of damages for libel or slander, 15-84. Admissibility, on question of malice, of evi- dence of repetition of slander or libel after commencement of action, 12-103. Admissibility of evidence of provocation in mitigation of damages in action for libel or slander, 4-923. Admissibility of evidence of plaintiff's do- mestic relations, social standing, and pecuniary condition in action for libel or slander, 6-768. Nature of evidence admissible to prove bad character of plaintiff in civil action for libel or slander, 19-986. Admissibility of testimony by defendant in action for libel or slander as to his feelings for plaintiff or latter's feelings toward him, 16-748. Burden of proving malice in action for libel or slander where communication is privileged, 7-844. Quantum of proof required to establish justi- fication in civil action for libel or slan- der, 7-1158. 9. EBBONEOUS iNSTRUCnONS. Effect of erroneous instruction in action for libel when jury are judges of law, 3-552. 10. Damages. Functions of court and jury in allowance of exemplary damages for libel and slan- der, 14-823. Recovery of counsel fees as damages in action for libel or slander, 16-514. 11. Venue. Venue of action or prosecution for libel or slander, 9-382. 12. SiTEVivAL OF Action. Survival of action for libel or slander, 6-513. LIBERTY OF SPEECH AND PRESS. Constitutional liberty of speech and press, 15-3. LICENSE. Of patent rights, see Patents. Persons on or about railroads, see Railroads. Theatres and Public Resorts, see that title. Revocability of executed license on faith of which licensee has incurred expense, 7- 706; 13-843. LICENSE — continued. Dtlty of owner of premises to licensee, 1-209. Duty of owner of premises to invitee who tem- porarily follows purpose of his own, 17- 591. Liability of owner of premises to person who goes thereon for purpose of selling' things to occupants, 19-425. Liability of proprietor of department store for injuries caused by crowd in store, 18-42. Duty and liability of carrier to person at- tending or visiting passenger, 20-453. LICENSES. Of attorneys, see Attorneys at Law. Of automobiles, see Motor Vehicles. Failure to procure as barring recovery by broker, see Brokers. Of ferries, see Ferries. Franchises, see that title. Of gaming, see Gaming and Gaming Houses. Of horse racing, see Horse Racing. Junk, statutory regulation of, see JUNE. Liquor license, see Intoxicating Liquors. Marriage licenses, see Marriage. Of physicians, see Physicians and Surgeons. Of surgeons, see Physicians and Surgeons. Taxes generally, see Taxation. Of teachers, revocation of, see Schools. Power of municipal corporation to impose li- cense fees, 2-313. Conferring on administrative boards author- ity to determine qualifications of li- censees as delegation of legislative power, 2-427. Power to tax occupation omitted from enu- meration of taxable occupations in con- stitution, 19-270. Power to tax occupations as affected by con- stitutional i^equirement that taxes be uniform, 2-325; 15-586. Right of corporation to practice profession or trade for which license is required, 19-882. Mandamus to control action of board in mat- ter of granting professional license, 16- 183. Power of state to discriminate against goods of foreign country by taxing sales, 5- 880. State taxation of business of taking orders for foreign goods or services as at- tempted regulation of interstate com- meroey 2-701 ; 14-865. Imposition of license tax or fee on foreign corporation, 3-632. Statutory regulation of junk dealers and juiik shops, 16-722. Validity of statute or ordinance imposing tax on fire insurance companies for fire protection purposes, 17-261, 132 INDEX TO NOTES, 1-20 ANN. CAS. LICENSES — continued. Validity of ordinance imposing tax on tele- graph or telephone company for use of streets as depending on amount of tax, 16-343. Privilege tax imposed for sale of liquor on vessel engaged in interstate traflSc, 3- 263. Validity of statute or ordinance confining license to engage in certain occupation to citizens of United States, 11-516. Right to collect license tax from person en- gaged in prohibited business, 15-1068. Validity of statutes exempting veterans from license taxes, 9-1005. Constitutionality of statute requiring den- tists to take out licenses as impairing vested rights of previous practitioners, 5-1005. Validity and interpretation of statutes im- posing license taxes on plumbers, 7— 580; 18-181. LIENS. Of attorneys, see Attorneys at Law. Of banks on deposits, see Banks and Bank- ing. Of carriers of goods, see Caeeiers. Of chattel mortgages, see Chattel Mort- gages. For demurrage, see Demurrage. Of employees for wages, see Master and Ser- vant. Of factors, see Factors. Of husband on land of wife, see Husband AND Wife. Of judgments, see Judgments. Of landlords, see Landlord and Tenant. Of livery stable keepers and chattel mort- gagees as to priority, see Chattel Mortgages. Of materialmen, see Mechanics' Liens. Of mechanics, see Mechanics' Liens. Of mortgages, see Mortgages and Deeds op Trust. From payments for improving land, see Trusts and Trustees. Of purchasers of land, see Vendor and Pue- chaseb. On stock of corporations, see Corporations. Tax liens, see Taxation. Of tenants in common for rents and profits, see Tenants in Common. Of vendors of land, see Vendor and Pur- chaser. \ For wages in favor of employees, see Master AND Servant. Of wife on land of husband, see Husband AND Wife. Decree for alimony as lien on realty, 18-565. Lien of innkeeper on property of third per- sons in possession of guests, 3-626; 12- 404. Right of tenant in common to lien on prop- erty for rents and profits received by cotenant, 16-94. Eight of farm laborer to lien on crops, 20- 356. Thresher's Uens, 11-1003. UFE. MoBTALiTY Tables, see that title. Competency of expert to testify to expectancy of life, 10-621. LIFE ESTATES. Curtesy in lands subject to life estate, see CUBTESy. Grant or devise of life estate with absolute power of disposition, see Wills. Remainders, see that title. Reversions, see that title. Right of life tenant to possession of principal sum in case of bequest of money for life, 6-787. Right to fixtures between life tenant and re- mainderman, 2-405. Right to stock dividend as between life ten- ant and remainderman, 12-650. Life tenant or remainderman as person to bear loss due to depreciation of secu- rities caused by wearing away of pur- chase premiums, 10-515. Right of life tenant to compensation for im- provements, 3-689. Right of life tenant, who pays off incum- brance on fee, to reimbursement from remainderman or reversioner, 8-725. Right of life tenant to remove minerals from soil, 8-1121. Right of tenant in common to partition of property in which he has life estate only, li-1040. Eight of action of remainderman for injuries to realty by stranger, 6-145. Right to growing crops upon death of life ten- ant, 14-38. When statute of limitations begins to run against action by remainderman for conversion of property by life tenant, 16-540. LIFE INSURANCE. See Insurance. LIFTING. Assumption of risk by servant in, see Mas- tee and Servant. LIGHT. Easement of, see Easements. Electric Light and Poweb Companies, see that title. Landlord's duty to light passageways, see Landlord and Tenant. Laws making owner of leased premises liable for light furnished, see Landlord ano Tknant, LIGHT LOCOMOTIVES — LIMITATIONS OF ACTIONS. 133 LIGHT — continued. Master's duty with respect to furnishing, see Master and Servant. ^Municipality's liability for operation of light- ing plant, see Municipal Cokpoea- TIONS. Eailroad's duty to light stations, see Rail- roads. Street lights, see Streets and Highways. Street railway's duty respecting signal lights, see Street Railways. On vessel anchored in fairway, see Ships and Shipping. LIGHT liOCOMOTIVES. See Traction Engines. LIMITATIONS OF ACTIONS. 1. Statutes of Limitation Generally, 133. 2. Applicability of Statutes, 133. 3. Commencement of Running of Statute, 133. 4. Interruption or Suspension of Statute, 134. 5. Computation of Period, 134. 6. Commencement of Prosecution, 134. 7. Running of Statute against Particu- lar Proceedings, 134. 8. Persons ey and against Whom Statute May Be Pleaded, 134. 9. Estoppel to Plead Statute, 134. 10. Revival of Barred Demands, 134. 11. Effect of Married Women's Acts, 135. 12. Pleading, 135. 13. Burden of Proof, 135. For accounting of personal representatives. Bee Executors and Administrators. Against contribution between sureties, see Suretyship. Injunction against foreclosure sale where debt is barred, see Insurance. On insurance policies under stipulations therein, see Insurance. Judicial sales as affected by, see Judicial Sales. Laches, see that title. Law governing, see Conflict of Laws. For nuisances, see Nuisances. By servants under employers' liability acts, see Master and Servant. 1. Statutes of Limitation Generally. Constitutionality of new limitation of actions applying to existing causes of action as dependent upon its reasonableness, 8- 525; 14-352. Retroactive operation of statute of limita- tions, 4-166. Extraterritorial effect of limitation on statu- tory cause of action, 2-151. Construction of statute recognizing foreign statutes of limitations, 14-42. Exceptions to statute of limitations impliedly excluded when not enumerated, 1-643; 16-906. LIMITATIONS OF ACTIONS — continued. Negligence of attorney as excuse for failure to bring buit within time limited by statute, 20-397. Validity of title acquired by possession under tax deed valid on face for period of stat- ute of limitations protecting tax titles, 16-1144. Acquisition of title to stolen personalty by lapse of time, 19-751. Right to convict for lesser offense which is barred under indictment for greater of- fense not barred, 17-718. 2. Applicability of Statutes. Applicability of statutes of limitation to de- fenses, 4-933. Nature or form of action as determining par- ticular limitation applicable, 12-175. Application of statute of limitations as be- tween trustee and beneficiary of express trust, 3-200; 13-1165. Application of general statutes of limitation to proceedings for administration of de- cedents' estates, 2-773. Applicability of statute of limitations to prosecution for conspiracy, 12-242. Applicability of statute of limitations or doc- trine of laches to action for dower, 11- 411. Applicability of statute of limitations or doc- trine of laches to mandamus proceed- ings, 9-845; 20-1114. 3. Commencement of Running of Statute. Return of debtor to state sufficient to start statute of limitations running, 14-941. What constitutes fraudulent concealment by attorney of cause of action against him in favor of client within statute of limi- tations, 9-78. Necessity that demand, when necessary to start statute of limitations, be made within statutory period, 4-728. Limitation against action for wrongful act r breach of contract or duty as running from date of act or breach or from oc- currence of actual damage, 13-696. Accrual of cause of action for injury by pub- lic officer's breach of duty, 3-997. Accrual of action for mortgage debt as af- fected by acceleration clause in mort- gage, 2-35-4. Commencement of running of statute of limi- tations against bonded indebtedness of municipality, 14-102. Commencement of nmning of statute of limi- tations against note payable on demand, 14-807. Commencement of running of limitation against action by client to recover money collected by attorney, 15-1208. Commencement of running of time against mechanic's lien for materials furnished on running account, 7-947. 134 mBEX TO ^S^OTES, 1-20 ANK CAS. LIMITATIONS OF ACTIONS — continued. Cpnjmencement of running of statute of limi- tations against action for death by wrongful act, 17-519. Time when statute of limitations begins to run agfiinst action by remaii)4erman for conyersipn of property by life tenant, 16-540. 4. INTEBEUPTION OE SUSPENSION OF STATUTE. Exceptions to and interruptions of statutes pf nonclaim, 3-576, Absence of mortgagor from state as suspen- sion of running of limitation against ac- tion for foreclosure, 8-1173. Interruption of running of statute of limita- tions on account of infancy of heir, de- visee, or distributee, 3-837. Effept of injunction or other legal proceeding on limitation of tinje to bring suit, 4- 147. Commencement of action as interrupting stat- ute of liipitatiops in favor, of inter- vener, 15-664. Institution of suit as sufficient presentation of claim against decedent's estate to re- move bar of nonclaim, 14-931. p. Computation of Pei(IOd. Inclusion of day of accrual of action in com- puting limitation against action, 18-58. 6. Commencement op Peosecution. When criminal prosecution is deemed com- menced within statute of limitations, 1- 319. 7. Running of Statute against Pahticu- LAE PEOCaEEDINGS. Running of statute of limitations against crime as affected by indictment set aside or quashed, 8-194, Running of statute of limitations against cause of action arisiiig in foreign juris- diction, 5-546. Running of statute of limitations against ac- tion to recover deposit of money, 4- 1146. Running of statute of limitations against fraudulent conveyances, 4-1 Q98. Running of statute of limitations against warrants of municipal or quasi-munici- pal corporations, 2-394. Running of statute of limitations against action for services performed in consid- eration of oral agreement to compensate by will, 8-113. Running of statute of limitations in case of claim against estate for funeral ex- penses, 19-791. Running of statute of limitations against action to quiet title, 20-43. Limitation of action to enforce stockholder's statutory liability, 3-505. LIMITATIONS OF ACTIONS — continued. 8. Pebsons bt and against Whom Statute Mat Be Pmaded. Rigljt of assignee or grantee of mortgagor to plead statute of limitations, 1-1003. Bight of action against one defendant as af- fected by bar of statute of limitations as to eodefendant, 12-981. Right of foreign corporation to plead statute of limitations, 1-9. Right to plead statute of limitation? against municipal corporation, 8-98 ; 20-427. Right of state to plead statute of limitations as to claim against it, 10-595. Running of statute qt limitat;ions against state as dependent upon state being real jparty in interest, 8-702. 9. Estoppel to Pi.ead Statute. Estoppel to plead statute of limitations J)y conduct not amounting to fraud or to express waiver of statute, 9-755. 10. Revival of Baeeed Demands. Written promise or acknowledgment relied on to take case out of statute of limitatioTis as aided by other writings, 12-811. Acknowledgment by one of several obligors as barring defense of statute of limitations by others, 17-176. Person to whom new promise must be made to remove bar of statute of limitations, 5-811; 19-103. Part payment, in full satisfaction of debt, as removing bar of statute of limitations as to part not paid, 14-213. Giving cheek, bill, note, etc., as part payment or collateral security, as starting stat- ute of limitations running anew. 15- 332. Application by creditor of undirected pay- nient to debt barred by limitation as re- viving unpaid portion, 13-1203. General undirected payment to creditor hold- ing several barred claims as revival of any one of them, 14-56. Revival of barred debt by inclusion in sched- ule of liabilities, 4-939. Effect of payment of interest on running of statute of limitations, 4-634. Recital of consideration in deed as written promise to pay within statute of limita- tions, 2-470. New action, on demand barred by limitation, after dismissal of action for failure to give security for costs, 3-97. Removal of bar of statute of limitations against actipn ex delicto, by new promise, 11-180. Effect of new promise or part paympnt to re- vive judgment or judgment debt, 9-254. Application by creditor of proceeds of fore- closed security as part payment suffi- cient to revive barred note, 14-980. LIMITATION OVEE — LOAN. 135 LIMITATIONS OP ACTIONS — continued. Part payment, by trustee in bankruptcy of personal representative of joint maker of proinisBory note, as removing bar of statute of limitations as to other mak- ers, 11-59. II. Effect of Married Women's Acts. " Married women's acts " as afifecting stat- utes of limitations, 3-817. 12. Pleading. Pleading statute of limitations in action for death by vrrongful act, 19-819. Necessity of pleading specially statute of limitations as defense to action for pen- alty, 12-87. Necessity of pleading statute of limitations as defense in equity cases, 8-379. Pleading compliance with statute of limita- tions, 1-^5. 13. Burden of Proof. Burden of proof as to running of statute of limitations, 8-340. LIMITATION OVER. Generally, see Wiixs; Remainders. Rule in Shelley's case as affected by, see Shelley's Case, Rule in. MSTBNING. At railroad crossings, see RAlLJtOADS, At street railway crossings, see Street Rail- ways. LITERARY CRITICISM. As defamatory, see Libel and Slander. LITERARY PRODUCTIONS. Copyright of, see Copyrights. LIVERY STABLE KEEPERS. Stables as nuisances, see Stables. Liability of livery stable keepers as carriers, 2-344; 16-506. Priority betwy constitutional or statutpry provision abrogating fel- Ipw-servant doctrine as to railrpad em- ployees, 8-1086. Employees withip meaning of statute abro- gating fellow-servaflt doptrine as to em- ployees of railroads, 11-924; 17-514. j. Disobedience of Rules. Disobedience of rules or regulations of mas- ter as affecting right of servant to re- cover for personal injuries,' 8-3 ; 10-152. k, Limitation of Liability. Validity and effect of agreement limiting lia- bility of master to servant for future negligence,' 6-3. 1. Proof of Cause of Injury. Necessity of proving actual cause of injury in action by servant -for personal inju- ries, 5-167. m, Dapifiges. Right of jury to consider iaet that employer is insured against accidents to em- ployees, 9-333. MASTEKS m CHANCERY — MAYOR 143 MASTER AND SERVANT — continued. n. Statutes Affecting Liability of Master, Constitutionality of statutes providing for health or safety of employees, 2-780. Validity of federal employers' liability acts, 17-331. Statutes affecting defense of contributory negligence in actions by servants against masters, 5-633. Constitutionality of statute abrogating fel- low-servant doctrine, 10-1113. Kind of railroad intended hy constitutional or statutory provision abrogating fel- low-seryant doctrine as to railroad em- ployees, 8-1086. Employees withiii meaning of statute abro- gating fellow-servant doctrine as to em- ployees of railroads, 11-924. Construction of federal safety appliance act in reference to keeping couplers in re- pair, 14-239. Construction of provision in Employers' Lia- bility Act requiring notice of injury to be given employer, 15-292. Construction of provision of Employers' Lia- bility Act limiting time for commence- ment of action, 15-491. Estoppel of master to invoke fellow-servant doctripe by failure to comply with statutory regulation, 10-43. MASTER AND SERVANT — continued. Effect of servant's discharge from personal lialfjility upon master's liability for ser- vant's act, 9-66p. 5. Liability of Servant to Master. Liability to ipaster ol servant who delivers goods without collecting charges, in vio- lation p;E instructions, 11-276. 6. Criminal Responsibility. Criminal liability of master for acts of ser- vant, 13-707. Liability of vendor for sale of adulterated ar- ticle by agent or servant, 17-135. Liability of licensee for illegal sale of intoxi- cating liquors by his servant against in- structions, 13-324. Personal liability of agent or servant of liq- uor dealer for violation of liquoj' law, 19-582. MASTEKS IN CHANCEBT. Referees, see References. Conclusiveness and weight of master's find- ings of fact, 19-908. MASTERS OF VESSEI.S. See Ships and Shippino. 4. Liability for Injuries to Third Persons. Joint action against master and servant for negligent or other act of servant, 10- 756. Materiality of evidence of competency of ser- vant in action for damages caused by his negligence to third person, 19-997. Implied authority of officers, agents, or ser- vants to contract for medical, surgical, or other attendance or supplies for sick or injured persons, 3-570. Liability of master for acts of servant in ex- cess of instructions, 5-123. When liability of master reattaches after de- viation by servant from course of em- ployment, 3-607; 20-1292. Liability of master for act of servant per- formed while acting under direction of another, 7-100; 14-731. Iiiability of master for injuries caused by overworked servant, 14-120. Lig^jiljity of master for negligent or tortious acts of insane servant, 4-135. Liability of master for act of servant who is al?o public officer, 6-252; 17-638. Liability of carriers of passengers for acts of servants outside of scope of employ- ment, 1-617; 19-618. Liability of innkeeper for assault of employee on guest, 8-688. Implied authority of brakeman to eject tres- passers, 2-624. MATEBIAIiMEN. Lien of, see Mechanics' Liens. MATERIAIiS. Lien for, see Mechanics' Liens. MATURITY. Of bills and notes, see Bills and Notes. Payment before, see Payment. MAXIMS. See subjects to which maxims relate. "MAY" AND "SHALL." "May" and "shall" occurring in same stat- ute, 4-420. MAYHEM. Selif-(}efpnse as defense to prosecution for mayhem, 15-82. MAYOR. See Municipal Corporations. 144 INDEX TO ]\'OTES, 1-20 ANN. CAS. MEALS. Sales of liquor on Sunday "with meals," see Intoxicating Liquobs. MEASUREMENTS. Evidence of when taken by nonexpert, see Evidence. MEASURE OF DAMAGES. See Damages and cross-references thereunder. MECHANICS' LIENS. 1. Vauditt of Statutes. 2. Services or Materials for Which Lien Mat Be Had. 3. Property Subject to Lien. 4. Direction or Consent of Owner. 5. Terms of Building Contract. 6. Contract Performed in Another State. 7. Incorporation of Materials in Struc- ture. 8. Persons Entitled to Lien and Prior- ities. 9. Default by Principal Contractor. 10. Statement, Notice, and Fiung of Claim. 11. Waiver. 12. Enforcement of Other Remedies. 13. Cross Bill in Foreclosure Proceedings. 14. Doctrine of Instantaneous Seizin. Subrogation to lien by person paying wages, see Subrogation. 1. Validity of Statutes. Validity of mechanics' lien laws, 4-620. Validity of mechanics' lien providing for tax- ing of attorneys' fees, 11-714. 2. Services or Materials fob Which Lien May Be Had. Right to mechanic's lien of one who rents appliances, teams, etc., to contractor for use in erecting building or other work, 15-383. Explosive for blasting as "material" for which mechanic's lien may be had, 5- 446. Construction of word " materials " as used in statute giving mechanic's lien for ma- terials furnished for railroad construc- tion, 9-309. 3. Property Subject to Lien. Mechanic's lien on leasehold estate, 3-1096; 14-1031. Mechanic's lien on separate buildings located on noncontiguous lots, 2-685. Mechanics' liens on buildings or improve- ments as distinct from land on which located, 2-689. MECHANICS' LIENS — continued. Mechanic's lien for construction of sidewalk, 4-1015. Public school building as subject to mechan- ic's lien, 17-131. Application of mechanics' lien laws to rail- roads, 7-269. Extension of mechanic's lien to land where improvement giving rise to lien has been destroyed or removed, 2-812. 4. Direction or Consent of Owner. Estate by entirety as subject to mechanic's lien for work performed under contract with one spouse only, 11-87. Right to mechanic!s lien on property of in- fant under contract made by guardian, 15-1089. Mechanic's lien on realty for improvements made with consent but not at expense of owner, 11-1082; 19-734. 5. Terms of Building Contract. Waiver of mechanic's lien by contract incon- sistent with lien, 1-954. Effect as to subcontractor of stipulation against lien' in building contract, 14- 144. Right to mechanic's lien under entire contract containing nonlienable items, 4-836. 6. Contract Performed in Another State. Right to enforce lien in one state for work or materials furnished in another state, 10-374. 7. Incorporation of Materials in Struc- ture. Necessity that materials for which mechan- ic's lien is claimed be incorporated in structure, 13-13; 19-588. 8. Persons Entitled to Lien and Prior- ities. Right of architect to mechanic's lien, 9-97. Right of corporation to mechanic's lien, 7- 430. Priority as between mechanic's lien claimant and assignee of amount due contractor, 19-435. 9. Default by Principal Contractor. Effect of default of contractor on lien of sub- contractor, materialman, or workman, 17-116. 10. Statement, Notice, and Filing of Claim. Sufficiency of statement or notice of mechan- ic's lien naming in caption but not in body of statement or notice owner or person against whose interest lien is claimed, 20-1162. SuiBciency of service of notice of mechanic's lien on agent of owner, 16-355. Commencement of running of time against mechanic's lien for materials furnished on running account, 7-947. MEDICAL ATTENTION — MESSAGES. 145 MECHANICS' LIENS — continued. Right of mechanic's lien claimant to file new claim when first claim is invalid, 15- 1086. Effect of incorrect designation of owner of property in statement of claim for me- chanic's lien, 14-689. 11. Waiver. Extension of credit as waiver of mechanic's lien, 20-522. 12. Enfokcement of Otheb Remedies. Right to enforce mechanic's lien and to pur- sue other remedy simultaneously, 3- 1100. 13. Cross Bill in Foreclosure Proceedings. Right to file cross bill in proceedings to fore- close mechanic's lien, 9-228. 14. Docteine of Instantaneous Seizin. Application of doctrine of instantaneous seizin to mechanic's lien, 7-624. MEDICAI. ATTENTION. Duty of person injured to secure, see Physi- cians AND Surgeons. MEDICAI. BOOKS. As evidence, see Evidence. MEDICAI. EXAMINATION. Answers made by insured in, see Insurance. Physical Examination, see that title. MEDICINE. Drugs, see Drugs and Druggists. Medicinal preparations as intoxicants, see In- toxicating Liquors. Practice of, see Physicians and Surgeons. MEETING. Churches, see that title. DiSTUTtHiNG Meeting, see that title. MEMBERS. Of benefit societies, see Benevolent or Bene- ficial Associations. Of building associations, see Building and Loan Associations. Of corporations generally, see Corporations. Of religious societies, see Religious Soci- eties. Of stock or produce exchanges, see Ex- changes. Of unincorporated associations, see Societies AND Unincorporated Associations. Vols. 1-20 — Ann. Cas. Digest. — 10. MEMORANDUM. Of contract required by statute of frauds, see Frauds, Statute of. MEMORY. Evidence of statement made to witness where latter has forgotten facts, see Evidence. Forgotten facts as newly discovered evidence, see New Trial. Memorandum as evidence of past recollection of witness, see Evidence. Recovery of payment made through forget- fulness, see Payment. Right to inspect memorandum used to re- fresh, see Witnesses. Weight of testimony based on memory of oral statements, 18-1191. MENTAL CAPACITY. Insanity, see that title. Of parties to contracts, see Contracts. Of testators, see Wills. MENTAL SHOCK. As element of damage, see Damages. MENTAL SUFFERING. Damages for, see Damages. MERCANTILE AGENCIES. Reports of as defamatory, see Libel and Slander. MERCHANDISE BROKERS. See Brokers. MERCHANDISES. Bulk sales of, see Fraudulent Conveyances. Sales of on Sunday, see Sundays and Holi- days. Sales of within statute of frauds, see Frauds, Statute of. " Merchandise " as including vessels, 11-681. MERGER. Of estates, see Estates. MESSAGES. Telegraph messages, see Telegraphs and Telephones. 14a INDEX TO NOTES, 1-20 ANN. CAS. E;?:pbe^s Mbs^engees, see that title. METERS. Water meters, see Waterwobks and Watep Companies. METBOFOLITA])f FOUPE. Statute creating, see Municibai, Cokpoba- TlOlitS. MIDWIFERY. As piiaptifie of ^le(}ici^e, see Phtsicians 4Nn Stjegeons. laiL^AGE. Witnesses' right to, .^ee Witnesses. MII.ITARY COURTS. Generally, seg ppn^TS. Trial by as bar to prosecution in civil courts afl4 liice versa,, see CbiminAL 3Li^\(!» MiLiTAR^Y b¥:^9V4.ti:qns. Jurisdiction pjf cj'iines cpmrnitfed on, see CBiMiisTAL Law. ' MHilTIA. Civil liability of officer to eivili3,p, fop acts of militia, 16-1164. Statutes requiring counties to support mili- ti|,, 1-1??. MILK. See Food. MINES AND MINERALS — contwMed. Owjjerphip of. minerals in highway, see SS^EETS AND :g.IGBV4Y8. Partnerships in mining enterprises,, see Pabt- Ppllution of streams,, see Waxebs and "Watebcoubse^, ]' ' ' statute of frauds as affecting, see Fbauds, Statute of. Taxation of interest in minerals, see Taxa- tion. Petroleum and natural gas as minerals, 20- 937. ' ■'■,''' "'' ' " ' ■ ' Right of owner of land to waste gas, petro- leum, percolating waters, or other un- derlying substance to injury of neigh- bor, 4-^57. Constitutionality of legislation to preveijt waste of natural gas, petroleum, water, and the like by private owier,' 4-213; 16-1001. Open quarrying not included under reserva- tion of "mines and mineral?," 2i-639i Mining lease as sale of land, 9-524. Covenants in mining leases for diligent prose- cution; of woifi, 2-44S; 20-1165. Right of lessee under mining lease to remove raaehinery and" other appliances, 2-738. Acquisition of title to inines by adverse pos- session, 6-142. Sufficiency oi disQOyery of ipjperal to support location of mining claim, 15-628. Measure ofr ^^QJ^'g^.s for a^jS(^natij3n of min- eral lands, 2-966. Measure of damages for wrongful working of minej 8-43. ' ^ - •" Partition of mining interests and mining ■ rights,^ 15-778.- , '' ,,' ;' '. ,' ,' ,, Validity of statutes regulating weighing, etc., of minerals which are mined by employees b^ wpigljt, lilj-74. MINISTERIAL ACTS. Undfer Sunday) laws, see Sundays and Holi- days. MILLS. Taking or damaging land to create water power for mills and manufactories^ l'- 1060; 4-992. MINES AND MINERALS. Grant of mining rights as releasing liability for subjacenii support, see Adjoining Landowners! Injuries to servant from negligence of mine boss or foreffisfn, ss^q I^AStee and Ser- vant. Life tenant's right to remove minerals, see Life Estates. MINISTERS OF THE GOSFEL. Communications to as privilege, see Wit- nesses. Exemption of parspijage from taxation, see Taxation. Imputation on clergyman as Ijbel or ^l^nder, 2,0-7,18. MINORS. CHp,D^PN, see thaj; titi,e,., Employment of, see Master and Siijivant. IpfS-npy., see Ini-ants. Liquor sales to, see iNTOXip^TlNO LiCiUOES. MIEEORS — MONOPOLIES AJSTD CORPOEATE TEUSTS. 147 Mirrors as perso^ialty ojf realty, 1-687. MISCARRIAGE. As element of damage, see Damages. Promise to answer for, see Feauds, Statute OF. MISCHIEF. Malicious Mischief, §ee that title. MISBEMEANORS. Generally, se* Cmminal Law and cross-ref- erences. Arrest for, see Abbest. MISFEASANCE. Of corporations, see Cobpobations. MISJOINDER. Of defendants in tort actions, see Pabties to Actions. MISREPRESENTATIONS. Generally, see Feaud and Deceit and cross- references thereunder, and see the vari- ous titles relating to suhjects of mis- representation. Carrier's liability for loss of goods as af- fected by, see Carbiebs. As cresLtiiig estoppel', see Estoppel. Fals6 Pbetenses and Cheats, see that title. Of infants, see Infants. Infringement of trademark as affected by, see OfRAD^MABKS, TBADE NAMES, AND UN- FAiB Competition. MISTAKE. Acceptance of goods after discovery of, see Sales. Of carrier in fixing freight rate, see Caeriees. Election of remedies by pursuit of mistaken remedy, see Election of Eemedies. Equitable relief for, see Equitt and cross-ref- erences. Fees paid to public oflBcers through, see Pub- lic Opficebs. Of Are insiirjipce agent in degpriljing l(p<;ation of property, see Insurance. Injunction against legal proceedings on ■ ground of, see In.iuncTions. In insurance, fve also Inritb/VNCE. Ip middle i;jitia) of narne, see Names. Payment of interest through, see Interest. Payment t9. publj,? .Offficer t^rpijgjh, ,^ee PuwijG Officers. MISTAKE — pqntinwd. Possession by as adverse, see Adverse Pos- session. Eeformat'Qn for, see Re^obmaiion of In- struments. Usury in reservation of i^iterest tlwpffgh, s^e Usury. MITIGATION OF DAMAGES. See Damages. MOBS. Constitutionality of statutes making munici- pality liable for injuries caused by mobs, 6-268; 14-1133. What constitutes mob or rjot for vifhich mu- nicipality is' liable, 11-185; 18-151. Liability of municipality for damage caused by mob a,s dependent on notice to au- thorities, 8-465. MONEY. Alimony and Suit Monet, see tliat title. As bail, see Bail. ' ' Banks and Banking, see that title. Carriage of, see Cabriees. Conversion of, see Trover and Conversion. Embezzlement of, see Embezzlement. Interest, see that title'. '■ Money " as term including realty, see Wills. Obtained by impersonation, see Robbeey. Public officer's liability for loss of, see Pub- lic Officers. Telegraph company's failure to transmit, see Telegraphs and Telephones. Tender, see that title. Usury, see that title. Bank notes as money, 4-630. Doctrine de minimis non curat lex as appli- cable to fractions of money, 18-691. " MONEYED CORPORATION." What is, "moneyed corporation," 20-136. MONOPOLIES ANB CORPORATE TRUSTS. Combination preventing njerchant from pro- curing goods, see Conspibacy. I!,estraiflt of trade, ^ee .Contracts. Unfair competition, see Trademarks, Trade NAif]Bs, and Unfair Competition. A(;q,visitiop, by corporation of stock in an- other corporation for purpose of con- trolling same ^.nd preventing competi- tion, 8-64. 148 INDEX TO NOTES, 1-20 ANN. CAS. MONOPOLIES AND CORPORATE TRUSTS — continued. Validity of contracts between public service corporations to fix prices or rates or to divide trade or territory, 6-157. Constitutionality of statutes granting exclu- sive rights or privileges, 1-847. Constitutionality of statutes designed to pre- vent monopolies and trusts, 6-846; 18- 1154. Illegal combinations within Sherman Anti- trust Act, 2-956 ; 9-299. Anti-trust statutes as applicable to combi- nation to control price of personal ser- vices, 17-752. Validity and enforceability of collateral con- tract entered into by monopoly or cor- porate trust, 8-892. Power of state to grant to private individual exclusive right to shellfish within waters of state, 16-198. Eight of railroad company to grant exclusive privileges on depot grounds, 2-190; 14- 494. MONUMENTS. Bequests for, see Wills. Taxation of money appropriated for, see Taxation. Meaning of term " monument " as used in will directing monument to be erected for testator or other person, 19-1158. Contract to make tombstone or monument as within statute of frauds, 10-309. MOORING. Vessels, see Ships and Shipping. "MORE OB LESS." As phrase occurring in deeds, 12-297. As phrase occurring in personal property contracts, 12-294. MORTALITY TABLES. Admissibility, in action for death by wrong- ful act, of mortality tables to show probable duration of life, 12-425. MORTGAGES AND DEEDS OF TRUST. 1. Nature. Execution, and Provisions of Contract. 2. Liability op Mortgagor for Debt. 3. Lien op Mortgage. 4. Rents and Profits, Taxes, and Insur- ance. 5. Foreclosure and Sale. 6. Redemption. MORTGAGES AND DEEDS OF TRUST — continued. Accrual of action for mortgage debt, see Limi- tations OP Actions. Acknowledgment of, see Acknowledgments. Of animals as including increase, see Ani- mals. Assumption of by grantee as covenant run- ning with land, see Covenants. Chattel Mortgages, see that title. Condemnation award, mortgagee's right to, see Eminent Domain. Consolidated corporation's power to issue mortgage bonds, see Corporations. Of corporate property, see Corporations. Debt antecedent thereto as consideration, see Contracts. Deed operating as mortgage by parol agree- ment, see Frauds, Statute of. Dower rights in equity of redemption, see Dower. Execution of on another's property, see FAI.8E Pretenses and Cheats. False pretenses in giving, see False Pee- tenses and Cheats. Fire insurance policy, mortgage clause in, see Insurance. Fixtures placed on premises after mortgage, see Fixtures. Foreclosure sale as breach of condition in flre policy, see Insuranqe. Of homesteads, see Homestead. Insurance policy referring to, see Insurance. Law governing as to usury, see Conflict op Law. Oral agreements to mortgage, see Frauds, Statute op. Parol agreements that deeds shall operate as, see Frauds, Statute op. By partner of firm assets, see Partnership. Party entitled to sue on policy covering mort- gaged property, see Insurance. Possession of written evidences of indebted- ness as raising presumption of payment, see Payment. Recording of, see Records. Recording deeds intended as, see Records. Subrogation of junior mortgagee, see Subbo- GATION. Tax sale, mortgagee purchasing premises at, see Taxation. Tenant in common paying mortgage, see Ten- ants IN Common. Tenant in common's right to purchase at sale, see Tenants in Common. Usury law governing as to, see Conflict of Laws. By wife of separate property for husband's debt as creating her surety, see Sdbett- SHIP. 1. Nature, Execution, and Provisions of Contract. Price as consideration in determining whether deed was intended as mortgage, 20-1199. Instrument in form of chattel mortgage as mortgage on realty, 14-1101. Mortgage on land as movable or immovable. 20-715. MORTMAIN — MOTOR VEHICLES. 149 MORTGAGES AND DEEDS OF TRUST — continued. Competency of attesting witness to deed or mortgage, 15-591. Validity and enforceability of provision in mortgage fixing attorneys' fees on fore- closure, 19-1068. 2. LiABiuTT OP Mortgagor fob Debt. EflFect of release by mortgagee of mortgaged premises to grantee of mortgagor on liability of mortgagor for mortgage debt, 6-550. Extension of time to grantee who has as- sumed mortgage debt as releasing per- sonal liability of mortgagor, 9-259. 3. Lien of Mortgage. Effect on mortgage of tender of mortgage debt after maturity and before foreclo- sure, 8-363. By whom tender of mortgage debt must be made to extinguish lien, 7-1065. Continuing lien of mortgage after payment to secure another debt, 4-316. 4. Rents and Profits, Taxes, and Insur- ance. Application of rents and profits in hands of mortgagee in possession, 3-1132. Right of mortgagee to recover in direct suit against mortgagor taxes paid on mort- gaged property, 15-525. Application by mortgagee, on mortgage debt, of money received by him on fire insur- ance policy procured for his benefit by mortgagor, 9-66. Liability to mortgagor of mortgagee who agrees to procure fire insurance on mortgaged premises for failure prop- erly to insure, 11-936. 5. Foreclosure and Sale. Foreclosure of mortgage by pledgee, 16-125. Necessity of notice by mortgagee to mort- gagor of intention to exercise power of sale in mortgage, 11-170. Proper place of sale under mortgage contain- ing power of sale " at courthouse," where courthouse is removed or de- stroyed or there is more than one, 11- 166. Power of trustee under trust deed to resell property after invalid first sale, 17-755. Remedy of one improperly omitted as party to foreclosure proceedings, 4-848. Injunction to restrain sale of property under mortgage or trust deed on pround that action on debt secured is barred by stat- ute of limitations, 7-189. Absence of mortgagor from state as suspen- sion of running of limitation against ac- tion for foreclosure, 8-1173. MORTGAGES AND DEEDS OF TRUST — continued. 6. Redemption. Right of tenant for years to redeem premises from mortgage, 4-807. Riglit of married woman to redeem mort- gaged premises during life of husband, 6-475; 15-315. Constitutionality of act extending time for redemption, 2-801. Right of dower in equity of redemption, 12- 481. MORTMAIN. Charitable gifts affected by mortmain stat- utes, see Charities. Perpetuities and Trusts for Accumula- tion, see that title. MOTIONS. Generally, see the subjects to which motions relate. For change of venue, see Change of Venue. MOTIVE. As evidenced by other crimes, see Criminal Law. Malicious motive as rendering act unlawful, see Malice. MOTOR VZTHICLES. Streets and Highways, see that title. Street Railways, see that title. Vehicles coming within terms " automobile," "motor vehicle," etc., 16-608. Automobile as inherently dangerous machine, 19-1229. Rights and duties of persons driving automo- biles in highways, 13-463. Liability of owner of automobile fnr acts of his chauffeur or agent, 10-732; 12-972. Liability for resulting injuries of one who leaves automobile standing in highway unattended, 16-402. Criminal liability of owner or driver for in- juries inflicted by automobile, 18-239. Negligence of driver as imputable to occu- pant of automobile, 19-1225. Opinion evidence as to speed of automobile, 19-754. Statutory regulation of automobiles in mat- ters other than speed, 5-793; 12-291. Validity of statute or ordinance prohibiting use of automobiles within certain terri- torial limits, 15-1169; 20-516. Effect on rights and liabilities of owner or driver of automobile of failure to com- ply with statutory regulations as to registration, license, displaving number, etc., 18-242. Use of highway by traction engine, 15-1074. 150 i:STDEX TO TTOTES, 1-20 ANN. CAS. sioVables. Mortgages, see Mortgages and Deeds of Trust. MOVING BUILDINGS. See BuiLDiNOS. MULAttdES. See Negroes. MUNICIPAL CORPORATIONS. 1. Okganization, FSAScHlst, And Legal STATfes, 190. 2. GOVEHNING BODT, OtTIGfiRB AND AGENTS, 150. 3. Subjects op Regulation and Ordi- nances, 151. 4. Torts Generally, 151. 5. Contracts Generally, 151. 6. JCoNEYs, Securities, and OBLts-ArioNSj 151. 7. Public Works, Property, and Improve- ments, 152. a. Generally, 152. . , b. Light, Water, and Ice, 152; c. Drains, Sewers, Cojt- XBACTS GeNEBALLT. Distinction between street railways and " commercial " railroads, 4-449. Business railroad company may conduct as incidental to main business, 4-910; 13- 293. Liability of purchaser of railroad on personal contracts of old corporation, 6-85. Liability of lessor of railroad for negligent or illegal operation by lessee, 2-861; 10- 350. Proper pleading In action against railroad for damages caused by its lessee, 9-682. Right of railroad to grant exclusive facili- ties to express company, 13-1079. 2. Location, Lands, and Right of Way. Validity of contract for location of railroad, 15-637. Power of railroad to change its location, 7- 1032. Estoppel of municipality to compel removal of railroad from streets by acquiescence in construction of road, 11-295, Admissibility of parol evidence to show agree- ment between parties at time of execu- tion of deed of land to railroad for right of way or depot purposes, 17-863. Acquisition of title to land within right of way of railroad by adverse possession or prescription, 2-718; lO-lOOl. Estate or interest acquired by railroad in land purchased for right of way, 6-242; 13-432. Circumstances establishing abandonment of right of way by railroad, 11-769- Assessment of railroad right of way for street improvement, 2-587; 12-i635, 3. Constbuction and Equipment Geneb- AliY. Validity of statute leqiuiring railngad to build side track to private egtablish- m«nt at own expense, 18-^91, Liability of railroad eompaey for damages caused by construction of road to land tliroxigh which it lias acquired rig'ht of way, 19-335. Duty of railroad company to block frogs, switches, and guard rails, fl-498; 14- 696. Failure of railroad to equip cars with auto- matic couplers as negligence per se, JO- 701. RAILROADS — continued. Construction of federal safety appliance act in reference to keeping couplers in re- pair, 14-239. Right of railroad to use electricity as motive power, 5-53. Degree of care required of railway company in use of electricity as motive power, 3-258. Duty of railroad to maintain telegraph or telephone service, 18-108. Mandamus to compel railroad to maintain safe and adequate equipmsnt, 12-369, 4. Structukes, Cattle Guaeds, Fences, AND Stations. Location of mail crane near railroad track as actionable negligence, 9-1002. Negligence of railroad in constructing perma- nent structure close to tracks as ques- tion of law or fact, 7-331. Duty of railroad to fence its right of way as including duty to fence against chil- dren, 13^187. Care required of railroad in keeping right- of-way fence in repair, 11-430. Constitutionality of statutes requiring rail- roads to construct fences and cattle guards, 3-182. Depot or station grounds within purview of statute requiring railroad to fence tracks, 11-20. Duty of railroad to fence its right of way as including duty to fence against adult persons, 20-1216. Liability of railroad for injuries from ex- posure due to failure to provide suit- able waiting-room, 6-671. Duty to provide and keep open waiting-room at junction of two railroads, 18-211. Duty of railroad as to lighting stations, 7- 969. Validity of contract by railroad to erect and maintain station, 14-441. Right to specific performanee of eontract by railroad to erect depot or station, 14- 478. Measure of damages for breach of contract by railroad to erect depot, 4-999. Right of railroad company to grant exclusive privileges on depot grounds, 2-J90 ; 14- 494. Validity of statute prohibStill^ soliciting of trade or business on trains of carriers of passengers, 1,8-867,. 5. Operation of Trains ,Generali,y. Power of railroad commission to compel rail- road to make train connections with other roads, 11-406. Power of municipality to require railroad oy street railway to stop cars at certain points, 17-552. Speed of railroad train as negligence in ab- sence of prohibitory statute, 7-988. RAILKOADS. 181 RAILROADS — continued. Inference as to speed of railroad train or street car from distance run after acci- dent and efiforts to stop, 15-948. Liability of railroad company for personal injuries caused by objects thrown or falling from train, 13-77. Liability of railroad company for personal injury caused b.y frightening of horses by train or cars, 3-1070; 10-302. Making flying switch as negligence, 10-15. Validity of statute prohibiting soliciting of trade or business on premises of car- riers of passengers, 18-867. 6. Crossings. Right of railroad to compensation for cross- ing of tracks by railroad constructed upon street or highway, 14-216. Validity of requirement that railroad shall construct and maintain crossings at new highways without compensation, 8- 1056; 20-1208. Duty of driver of fire apparatus to stop, look, and listen before crossing railroad track, 7-352. Presence of gates at railroad crossing as ex- cusing traveler from duty to look and listen, 7-801. Duty to stop, Icok, and listen at railroad crossing where flagman is stationed, 10-418; 13-854. Reasonable belief that no train is approach- ing crossing as relieving traveler of im- putation of negligence per se in failing to look and listen, 9-216. Duty of railroad company td maintain and operate gates at crossing, 3-449. Duty of railroad to maintain flagman at cros.sing in absence of statute, 4-294; 17-982. Power of municipal corporation to require railroad company to maintain gates or flagman at ciossing, 5-301. Act of third person as defense to charge of railroad obstructing highway crossing, 10-589. Passiufj over, under, or between cars obstruct- ing crossing, as negligence, 12-593. Contributory regligence in crossing in front of train or engine standing still, 15-732. Crossing behind train of cars obstructing crossing as negligence, 20-1094. Duty of railroad to give signals at other than ' grade crossings, 3-361 ; 16-1234. Failure of railroad engine or car to have headlight or other light burning in pass- ing crossing as negligence, 15-463. Failure of railroad company to give statu- tory signals on approaching crossing as excuse for traveler's contributory negli- gence, B-78. Failure of lailroad to sound statutory cross- ing signals as negligence toward person on track at place other than crossing, ie-1110. RAILROADS — continued. Negligence of railroad in allowing view at ciossing to be obstructed by trees, etc., on its right of way, 10-485. Frightened or unmanageable team as excuse for contributory negligence at railroad crossing, 16-954. 7. Fires. 2 Explosions and Explosives. Persons wrongfully on railroad trains, see Cabriers of Passengers. On railroad trains or tracks, see Railroads. Wires over premises, see Wires. Shooting across land of another as trespass, 10-531. Remedy of owner of land against encroach- ment by overhanging eaves, 4-343. Right of one in actual possession of land un- der color of title to maintain action for trespass against mere trespasser, 4- 190. Liability of owner to trespassing children in- jured by dangerous substances on prem- ises, 5-503. Liability of landowner for injury to tres- passing child on account of unguarded pond, pool, well, etc., 7-200; 11-990. Injunction as remedy for continuing or re- peated trespass, 15-1235. Injunction against trespass on realty situate in another state, 8-519. Necessity as excuse or justification for tres- pass, 15-1153. Admissibility of evidence of benefit to owner in mitigation of damages for trespass, 20-925. Implied authority of brakeman to eject tres- passers, 2-624. Joint libelants as " joint trespassers,'' 1-875. TRIAL. 1. Time, Place, and Conduct of Trial Gen- erally, 218. 2. Duties and Powers of Judge Generally, 218. 3. Questions of Law and Fact, 218. 4. View by Jury or Court, 218. 5. Argument of Counsel, 219. 6. Instructions, 219. 7. Dismissal or Directing Verdict, 219. 8. Verdict — Form, Validity, Effect, ietc., 219. 9. Exceptions and Objections, 219. 218 INDEX TO NOTES, 1-20 ANN. CAS. TKIAL — continued. Amendment of pleadings, see Pleading. Change op Venue, see that title. In criminal cases, see also Criminal Law. Defamation per se, see Libel and Slandeb. Delay in presenting prisoner for, see False Imprisonment. Dismissal, voluntary, see DiSMissAi:/ and Nonsuit. Findings, see that title. Inspection of memorandum to refresh mem- ory of witness, see Witnesses. Instructions as to accomplice's testimony, see Accomplices. Instructions as to degree of crime, see Cbiii- INAL Law. Instructions as to reasonable doubt, see Criminal Law. Instructions in homicide cases, see Homicide. Instructions in larceny as to circumstantial evidence, see Labcent. Instructions in rape prosecutions as to cor- roboration, see Rape. Instructions to disregard false testimony, see Witnesses. New Tbial, see that title. Nonsuit, voluntary, see Dismissal and Non- suit. Pleading, see that title. Privilege of witness of refusing to produce documents, see Production or Docu- ments. Pboduction op Documents, see that title. Supersedeas, see Supersedeas and Stat of Pboceedings. Venue, see that title. Witnesses, see also that title. 1. Time, Place, and Conduct op Tbial Gen- EBALLT. Waiver by accused of right to time to pre- pare for trial, 17-522. Bights of accused in federal courts as to place of trial, 17-1117. Exclusion of jury during, argument relative to admissibility of evidence, 20-1141. Effect of disobedience of rule excluding wit- ness from court room during trial, 9- 368. Right of criminal court to exclude persons from court room, 9-111; 20-632. Propriety of permitting part of evidence to be read to jury after retirement, 20- 1219. Demonstration by or misconduct of spectator during criminal trial as ground for new trial, 12-645. Misconduct of party to action subsequent to verdict as ground for new trial, 12- 958. 2. Duties and Powebs of Judge Genbsallt. Duty of presiding judge not to absent himself from trial, 2-8; 16-627. Right of arbitrator, judge, or the like, to call witness on own initiative, 18-163. TRIAL — continued. Power of court to limit number of witnesses as to certain fact or issue, 8-828; 17- 780. Reference by trial judge to amount of plain- tiff's claim in action for personal in- juries as reversible error, 17-573. Power of court to require counsel for accused to outline defense to jury, 16-324. Right of court to overrule plea of its own motion, 15-250. Withdrawal of unreasonable testimony from consideration of jury, 15-1187. 3. Questions of Law and Fact. Assumption of risk arising after commence- ment of employment as question of law or fact, 3-^14. Province of court or of jury to determine whether contract is contrary to pu])Kc policy, 11-124. Fraud as question of law or fact, 1--446. Former jeopardy as issue of law or fact, 11- 993. Original or collateral nature of oral promis« within statute of frauds as question of law or fact, 9-895. Admissibility of dying declarations as ques- tion of law or fact, 8-539. Proof of foreign law as properly made to court or to jury, 7^74. Negligence of railroad in constructing per- manent structure close to tracks as ques- tion of law or fact, 7-831. Privileged communication within law of libel and slander as question of law or fact. 10-1152. Reasonableness of rules and regulations for conduct of business of quasi-public na- ture as question of law or fact, 3-715. Reasonableness of time for delivery of goods as question of law or fact, 6-245. Reasonableness of time in which gpods are returned under contract of " sale or re- turn " as question of law or fact, 14- 331. Burden of proof and province of court and jury as to whether articles furnished to infants constitute necessaries, 14^686. Functions of court and jury in allowance of exemplary damages for libel and slan- der, 14-828. Court's power of inference upon submission of controversy or agreed case, 11-148. Sale of intoxicating liquors as public nuisance per se, 14-36. Failure of railroad to equip cars with auto- matic couplers as negligence per se, 10- 701. 4. View by JujtT ob Court. Right of court trying case without jurv to view premises, 19^-678, View by jury as resting in diaoretion of court, 18-730. TEOLLEYS — TKOVEK AND CONVERSION. 219 TRIAL — continued. Impressions made on minds of jurors by view as evidence in case, 10-663. 5. Akqument of Counsel. Restricting argument of counsel in criminal action as constituting reversible error, 2-435. Comment by attorney upon failure of party to testify in civil action, 16-309. Right of prosecution to comment on failure of accused to produce evidence of good character, 19-407. Right of counsel to comment on failure of accused to call his wife as witness, 17- 421. Necessity and sufficiency of objection and ex- ception to improper argument of coun- sel, 7-229. 6. Insteuctions. Propriety of instruction containing technical terms, 11-622. Necessity that further instructions requested by jury be given in open court, 14-514. Effect of erroneous instruction in action of libel when jury are judges of law, 3- 552. Duty of court to instruct as to self-defense where accused denies killing, 19-120. Effect of failure to instruct that alleged negligence must have been proximate cause of injury, 20-85. Necessity that further instructions to jury, after retirement, be given in presence or with consent of counsel, 17-536. 7. Dismissal ob Directing Verdict. Right of court to direct verdict for plaintiff in penal action, 16-964. Power of trial court to direct verdict at close of opening statement of plaintiff's coun- sel, 14-699. Right of court to direct verdict of guilty in criminal case where plea of " not guilty " has been entered, 8-808. Effect of request by both parties for direc- tion of verdict, 6-545; 13-372. Waiver of exception to denial of application to take case from jury by subsequent introduction of evidence, 14-222. Judgment for defendant for failure or insuffi- ciency of plaintiff's proof as bar to sub- sequent suit on same cause of action, n-187. 8. Vebdict — Form, Validity, Effect, etc. Common-law power and duty of court to sub- mit proper special interrogatories to jury, 15-469 Validity of wri+ten verdict in criminal case, 12-79. Validity of verdict influenced by punishment expected to be imposed, 1-270. TRIAL — continued. Validity and effect of several verdict against joint defendants in tort, 12-534. Validity of verdict rendered after jury have been polled and some jurors have dis- sented and jury have been sent back for further deliljcrations, 6-457. Affidavits of jurors as evidence that verdict returned or entered differed from ver- dict actually found, 3-401. Amendment by jury of sealed verdict, 5-394. Power of court to add interest to verdict of jury, 10-753. Duty of trial court to set aside verdict as contrary to evidence, 2-762. Effect of verdict finding that amount awarded is not yet due, 18-779. Necessity that verdict of conviction for lar- ceny should state value of property, 19- 687. Omission of words from verdict as affecting validity thereof, 16-475. Validity of chance or quotient verdict, 16- 9io. Right of clerk or attorney to receive verdict in absence of trial judge, 16-90. 9. Exceptions and Objections. Necessity and sufficiency of objection and ex- ception to improper argument of coun- sel, 7-229. Failure to object to admission of evidence at former trial as precluding objection at subsequent trial, 19-1279. Necessity of taking objection or exception to error on hearing before referee, 20-193. Right of plaintiff to divorce, in spite of fail- ure to comply with statutory require- ments, where defendant does not raise objection, 20- 341. Filing amended pleading as waiver of objec- tion to sustaining of demurrer, 19-306. Waiver of exception to denial of application to take case from jury by subsequent introduction of evidence, 14-222. Right to new trial of party who has lost benefit of his exceptions from causes be- yond his control, 12-1056. TROLLEYS. Generally, see Street Railways. Poles of as obstructing view of trains or cars, see \ isioN. TROVER AND CONVERSION. Conversion by agent, see Embezzlement. Interest upon damages for conversion, see Damages. Recovery of stolen goods from thief, see Stolen Goods. Set-off of judgment against judgment for con- version, see Set-ofp and Counterclaim. 220 INDEX TO NOTES, 1-20 ANN. CAS. TROVER AND CONVERSION — con«tn«ed. Set-off of value of property converted, see Set-off and Countebclaim. Unauthorized use of chattel by bailee, see Bailments. Transfer of personalty by conditional vendee as conversion, 8-129. Trover for conversion of money, 15-1011. Trover for conversion of promissory note that has been paid, 12-265. Trover for conversion of shares of stock or certificates of such stock, 11-203. Right of agent in possession of personalty to maintain trover for its" conversion by stranger, 18-572. Necessity of tender of debt secured by pledge before action can be brought against pledge for conversion, 10-1125. Right to sue in assumpsit for value of con- verted property used or consumed by tortfeasor, 17-975. Right of defendant sued for conversion of chose in action to show insolvency of maker in mitigation of damages, 6-841. Measure of damages for conversion of, or failure to deliver, household goods, 3- 891. Measure of damages for conversion of shares of stock, 18-608. Effect of recovery in trover upon title of property converted, 15-454. TRUST COMPANIES. Banks and Banking, see that title. TRUST DEEDS. See MOBTOAGES and Deeds of Tbust. TRUSTS AND TRUSTEES. 1. Existence, Validity, and Administba- TION OF TbTJSTS GENEEALLT. 2. Qualifications of Teustees. 3. Appointment and Removal of Tbustees. 4. Renunciation of Tbust by Tbustee. 5. Powebs of Teustees. 6. Liability of Teustees and Tbust Estate. 7. Notice of Tbust Relation. 8. Implied oe Resulting Tbusts. Administrators, see Executoes and Adminis- TBATOBS. Attachment of funds, see Attachment. Bank permitting improper withdrawal of funds, see Banks and Banking. Bankruptcy trustees, see Bankeuptcy. Executors, see Executoes and Administba- TOBS. Guardians, see Guabdian and Wabd. Monopolies and Cobfobate Tbusts, see that title. TRUSTS AND TRUSTEES — continued. Peepetuities and Teusts fob Accumula- tion, see that title. Receivebs, see that title. Taxation of personalty, place of, see Taxa- tion. I. Existence, Validity, and Administba- TioN OF Tbusts Genebally. General rule as to creation of precatory trusts, 2-593. Enforcement of imperfect or incomplete gift as trust, 16-373. Oral promise by beneficiary in life insurance policy to pay proceeds to third person as enforceable trust, 14-872. Validity of spendthrift trusts, 18-221. Validity of spendthrift trust where donor is also beneficiary, 19-273. Bufficiencv of instrument to create spend- thrift trust, 18-495. Validity of trust as depending on knowledge of cestui que trust as to creation thereof, 12-167. Effect upon trust of death of donor without exercising power of revocation, 6-189. Savings bank trusts, 1-905; 14-924. 2. Qualifications of Teustees. Power of married woman to act as trustee of express trust, 7-1082. Power of corporation to act as trustee of charitable trust, 8-1181. Power of municipality to take property as trustee, 17-746. Who may be appointed trustee by donee of power to appoint, 4-405. 3. Appointment and Removal of Teustees. Power of court to increase or diminish num- ber of trustees appointed by creator of trust, 6-598. Power of court to remove trustee who goes out of jurisdiction, 20-816. 4. Renunciation of Trust by Tbustee. What constitutes renunciation of trust by ex- ecutor or testamentary trustee, 20-836. 5. Powers op Trustees. Right of substituted trustee to execute power conferred on original trustee, 16-325. Right of fiduciary to invest funds in private corporate stock, 16-69. Power of trustee under trust deed to resell property after invalid first sale, 17-755. Power of trustee to mortgage trust property, 1-942; 9-643; 10-255. Term for which trustee may lease trust prop- erty, 14-651. ■ Power of trustee to convey trust property without consent of cotrustees, 4-953. Right of fiduciary to make investment beyond jurisdiction of appointing court, 14- 834. TRUTH — UNDUE INFLUENCE. 221 TRUSTS AND TRUSTEES — continued. 6. Liability of Trustees and Trust Estate. Liability of trustee for default of cotrustee as to funds jointly received, 15-522. Rights of cestui que trust as to trust prop- erty mingled with that of insolvent trus- tee, 7-553. Application of statute of limitations as be- tween trustee and beneficiary of express trust, 3-200; 13-U65. Liability of trust estate for torts of trustee, 19-387. 7. Notice op Trust Relation. Use of descriptive term after signature of trustee as notice of trust relation, 16- 843. 8. Implied or Resulting Trusts. Resulting trust arising from purchase of land by agent in his own name, 5-255; 12- 805. Parol agreement made with person interested in land, that promisor will buy in land at judicial sale and hold for benefit of ' promisee, as implied trust enforceable inequity, 5-173; 12-542. Creation of resulting trust by part payment of consideration for realty taken in name of another, 2-667. Lien or resulting trust arising from payment of money for pjirpose of improving land, 9-249. Implied trust arising from renewal of lease, 7-295. Constructive trust arising from oral agree- ment to hold in trust or reconvey lands conveyed under influence of confidential relations, 2-777. Liability of heir or distributee as trustee ex maleficio for failure to perform oral promise which prevented making of will, 2-556. TRUTH. As defense to action for libel, see Libel and Slander. TYPEWRITING. Forgery of or by, see Foboebt. TTLTRA VIRES. Generally, see Corporations. As defense by insurance company, see Insub- ANCE. UMPIRE. See Arbitration and Award. UNCHASTITT. Charge of as actionable per se, see Libel and Slander. Seduction as affected by, see Seduction. UNCONDITIONAIi OWNERSHIP. In insurance, see Insurance. UNDENIED ACCUSATIONS. Evidence of, see Criminal Law. UNDERGROUND WATERS. See Wattbs and Watercourses. UNDERTAKERS AND EMBAI.MERS. Dead Body, see that title. Statutory regulation of undertakers or em- balmera, 18-477. UNDERTAKINGS. On appeal, see Appeal and Erbob. Bonds, see that title. TURNPIKES AND TOLL ROADS. Turnpikes or toll roads as " highways " or " public highways," 17-804. Title to turnpike after expiration of corpora- tion's charter or franchise, 13-665. TURNSTILE. Innkeeper's liability for injuries caused by, see Inns, Boarding Houses, and Apart- ments. TURNTABLES. gee Ra;lboad3, UNDISCLOSED PRINCIPAL. See AoENCT. UNDUE INFLUENCE. Trust implied from conveyance influenced by, see Tbusts. Undue influence as related to fraud, 18-412. Admissibility of declarations of testator not made at time of execution of will, on question of undue influence, 5-608; 10- 600. Uqnatural or unreasonable character of wiU aa evidence of undue influence, 7-984. 222 INDEX TO XOTES, 1-20 ANK CAS. UNDUE INFIyUENCE — cotitiniied. Fact that will is prepared by beneficiary as evidence of undue influence, 15-551. Presumption of undue influence arising from relation of man and mistress, 9-783. Presumption and burden of proof of undue in- fluence in ease of conveyance inter vivos by child to parent, 18-539. Presumption and burden of proof of undue in- fluence in case of conveyance inter vivos by parent to child, 17-989. UNFAIR COBIFETITION. See Tbademabks, Teade Names, and Unfair Competition. UNIFORMITY. Of taxation, see Taxation. UNINCORPORATED ASSOCIATIONS. See Societies and Unincobpoeated Associa- tions. UNIONS. Labob Combinations, see that title. Strikes and Steikebs, see the cross-refer- ences under that title. UNITED STATES. Army and Navt, see that title. Control of alifens, see Aoens. Crimes committed on military reservations, jurisdiction of, see CbiminAi, hAvr. Dredging through land under water, see Dredging. Franchises of, right of states to tax, see Franchises. Infringement of patent rights by, see Pat- ents. Judicial notice of federal matters, see Evi- dence. Post Office, see that title. PuBuc Officers, see that title. Statutes generally, see Statutes. Statute prohibiting assignment of claims against, see Assignments. Taxation of federal bonds by states, see Taxa- tion. Taxation of personalty on government reser- vations, see Taxation. Treason, see that title. Liability of federal government for costs, 8- 398. UNITED STATES COURTS. Bills of review for newly discovered evidence, , _ see EqtriTT. Decisions by state courts as binding upon, see Stare Dficlsis. UNITED STATES COURTS — contijiued. Dismissal of removed cause in as affecting jurisdiction of state court, see Dis- missal and Nonsuit. Federal receivership as subject to state proc- ess, see Receivers. Injunction by state court against proceed- ings in, see Injunctions. Injunction to restrain proceedings in state court, see Injunctions. Removal of causes to, see Removal of Causes. Appellate jurisdiction of Federal Supreme Court in bankruptcy proceedings, 16- 1016. Jurisdiction of Federal Circuit Court of Ap- peals to review question of jurisdiction of Circuit Court, 9-387. Jurisdiction of Federal Circuit Court of Ap- peals to review criminal cases decided in territorial courts, 9-394. Jurisdiction of Federal Circuit Court as af- fected by amount in controversy in cases of joint parties plaintiff or defendant, 5-489. Binding effect on federal courts of dictum of state court, or decision not concurred in by majority of judges, as to construc- tion of state statute, 13-573. State decisions on evidence as binding on federal courts, 16-567. UNIVERSITIES AND COLLEGSS. Schools, see that title. UNLAWFUI. ASSEMBI.T. Distinction between unlawful assembly and riot, 17-1149. "UNMARRIED WOMAN." Meaning of term " unmarried woman " within statute relating to seduction, 17-65. UNREASONABLE TESTIMONY. Withdrawal of, see Evidence. UNUSUAL PUNISHMENT. Cruel and unusual punishment, see Constitu- tional Law. USAGES AND CUSTOMS. Evideiice of on issue of negligence, see Evi- dence. Local custom or usage as binding nonresi- dent, 19-945. Judicial notice of usage or custom, 12-430. " USING " — YENDOK Alf D PUECHASEE. 228 " USING." Of prohibited articles within insurance policy, see Insubance. USING MAILS TO DEFRAUD. See Post Office. USURY. Law governing, see Conflict of Laws. Notes in hands of bona fide holders, see Bills AND Notes. Computing interest on basis of 360 days in year as usury, 4-463. Interest on oTerdue interest as usury, 13-151. Payment of debt l)efore maturity with inter- est to maturity as usury, 20-1350. Stipulation for increased interest after ma- turity of indebtedness as constituting usury, 7-489. Reservation of illegal interest through mis- take of fact as usury, 9-548. Sale of property or performance of labor on credit as within usury law, 20-1131. Sale of property at excessive price to enable purchaser to raise money by reselling as usurious transaction, 7-986. Availability of defense of usury to purchaser of property charged with usurious debt, a-^6. statutes prohibiting corporations from plead- ing usury as defense, 14-115. Recovery of usury voluntarily paid, 1-421. Amount of penalty under usury statutes authoriring recovery of double amount of interest paid, 3-849. Jurisdiction of equity to grant affirmative re- lief against usurious contract, 2-912. Constitutionality of statutes exempting build- ing and loan associations from usury laws, 2-996; 20-1252. Constitutionality of statutes making taking of usury criminal, S-386. Place where law against usury is violated, as disorderly house, 18-988. UTTERING FORGED INSTRU- M£NtS. See PoBQEBT. VACATION. Of award in condemnation proceedings, see Eminent Domain. Cancellation and Rescission, see that title. Of divorce decrees, see DrvOBCE. Of juflgMeiits, see Judgments. Of streets, see StbeeTS And HIoHwatb. VACCINATION. Compulsory vaccination, 1-336 j 10-882; 14- 945. VALUE. Allegation of in indictment for larceny, see Larceny. Of goods carried, see Caebiees. Of land condemned, see Eminent Domain. Of personalty, testimony of owner as to, see Evidence. Statement of in verdict of larceny, see Lab- CENY. VARIANCE. Of insurance policy from application, see In- surance. In larceny, see Larceny. Pleading, see that title. Between statute and enrolled bill, see Stat- utes. VEHICLES. AutomoDiles, sec Motor Vehicles. Of carriers, see Carriers. Contributory negligence of driver as im- putable to passenger, see Negligence. Crossing railroads, see Railroads. MoTOB Vehicles, see that title. Street cars, see Street Railways. On streets generally, see Streets and High- ways. Taxation of, see Municipal Coepoeations. Teaction ENGINES; see that title. VENDOR AND PURCHASER. 1. capacity or parties and validity of Sales, 224. 2. conteacts of sale and deeds, 224. 3. DESTBUCTION OR DETEBIOBATION OF Peop- EETY, 224. 4. INTEEEST Conveyed, Title and Posses- sion, 224. 5. Representations and Wabeanties, 224. 6. Covenants and Restrictive Agreements, 224. 7. Vendoe's LIen, 224. 8. Remedies of Vendor, 225. 9. Remedies of Purchaser, 225. Brokers of real estate, see Brokers. Cancellation of sale, see Cancellation and Rescission. Declaration by vendor in possession as to fraudulent sale, see Evidence. Deeds, see that title. Estoppel of grantor to deny title of alien grantee, see Aliens. Pbauds, Statute of, see that title. Fraudulent Conveyances, see that title. Goods as subject of sale, see Sales. Homestead as subject of sale, see Home- stead. Infants' conveyances, see Infants. Judgment against vendor as binding on pur- chaser, see Judgments. 224 INDEX TO NOTES, 1-20 ANN. CAS. VENDOR AND PURCHASER — cofttinwed. Judicial Sams, see that title. Lis Pendens, see that title. Mining lease as sale, see Mines and Min- erals. Misrepresentation by vendor of price paid, see FBAUD and DEM3EIT. Options to purchase in leases, see Landlord AND Tenant. Oral agreements, see Fbauds, Statute of. Partnership taking land in firm name, see Pabtnebship. Records, see that title. Rescission of sale, see Cancellation and Re- scission. Sales of goods, see Sales. Specific Performance, see that title. Statute of frauds, see Frauds, Statute of. Support deeds, see Support and Mainte- nance. Taxation of land contracted to be sold, see Taxation. Trusts resulting from purchases, see Trusts AND Trustees. Vendors' lien as breach of condition in fire insurance policy, see Insurance. Verbal contracts of sale, see Frauds, Statute of. 1. Capacity of Parties and Validity op Sales. Validity of conveyance by convict, 16-123. Right of infant to recover amount paid by him for purchase of property, 16-524. Validity and effect of deed or grant of present estate to grantees not in existence, 18- 871. 2. Contracts of Sale and Deeds. Effect of uncertainty in description of land reserved or excepted in deed or con- tract of sale, 19-1209. Provision in contract to convey realty avoid- ing contract on failure of vendee to per- form conditions as provision for benefit of vendor only, 19-641. Revival, by oral contract, of defunct contract for sale of land, 17-1111. Validity of parol reservation of crops by ven- dor of land, 18-504. 3. Destruction or Deterioration op Prop- erty. Rights of parties to executory contract for sale of land where buildings are de- stroyed or property deteriorates before conveyance, 9-1055; 18-796. 4. Interest Conveyed, Title and Posses- sion. Deed bounding private way as carrying title to middle thereof, 18-74. Title conveyed by deed given in ofiicial capac- ity, 11-731. Conveyance of land containing no reference to " appurtenances," etc., as passing ease- ment appurtenant, 20-1213, VENDOR AND PURCHASER — continued. Interest taken by assignee of executory con- tract for sale of land, 5-419. Desceiidible and devisable quality of interest of vendee in executory contract for sale of realty, 8-954. Construction of provision that title shall be " satisfactory " to vendee in executory contract for sale of land, 8-273. Implied right of purchaser to possession of realty, 4-1018. Liability for interest of purchaser in posses- sion of land where completion of con- tract is delayed, 8-935. Defective title as defense to action against ipurchaser in possession for purchase price, 3-365. 5. Representations and Warranties. Fraudulent representation of area by vendor to purchaser where true boundaries are pointed out, as actionable deceit, 16- 502. False statement by purchaser as to intended use of realty purchased, as false repre- sentation warranting cancellation of deed, 20-913. Entry under right of eminent domain as breach of covenant of warranty of title in deed, 10-1079. 6. Covenants and Restrictive Agreements. Implied covenant of vendor of land according to map not to alter or change streets, 16-582. Construction of building restriction prohibit- ing erection of building for business of- fensive to neighborhood, 11-173. Erection of signboard or billboard as viola- tion of restrictive covenant against of- fensive trade or business or similar covenant, 16-225. Right of purchaser of property under general plan to enforce common building re- striction against another purchaser, 14- 1021. Change of circumstances as warranting re- fusal by court of equity to enforce build- ing restriction, 5-48. Waiver of restrictive agreements by acqui- escence in violation thereof, 1-603; 14- 760. 7. Vendor's Lien. In what jurisdictions implied vendor's lien is recognized, 2-372. Existence of implied vendor's lien where con- sideration for conveyance is agreement to support vendor for life, 20-927. Estoppel to assert implied vendor's lien, 20- 578. Pursuit of remedy at law as waiver of ven- dor's lien, 13-92. Taking security from third person as waiTW of implied vendor's lien, 13-869, VENUE — VIEW. 225 VENDOR AND PURCHASER — confimfecf. 8. Remedies of Vendor. Action at law for purchase price on breach by purchaser of executory contract for sale of land, 4-791. Right of grantor to maintain ejectment for breach of condition subsequent in deed, 14-1017. Right of vendor to maintain action of eject- ment against vendee not in default, 20- 353. 9. Remedies of Purchaser. Right of purchaser to recover money paid under verbal contract for sale of land, 2-931. Right of grante* to damages from grantor who executes subsequent conveyance in- juring grantee, 20-1126. Action by intermediate vendor, held liable for breach of warranty, to recover from his vendor, 4-977. Measure of damages for breach of contract to sell land due to vendor's inability to make title, 2-634. Purchaser's lien for purchase money on ven- dor's failure to complete contract, 8- 958; 15-824. Right to relief of one purchasing his own property by mistake, 18-328. Right of purchaser of land from husband without joinder of wife to require dower to be allotted from other lands left by decedent, 9-490. VENUE. Forum in which actions relating to realty must be brought, see Coubts. Change of Venue, see that title. Removai, op Causes, see that title. Teial, see that title. Jurisdiction of criminal ofiFenses committed in territory out of which new county is created, 4-555. Validity of statutes fixing venue of prosecu- tion for crime committed partly in one county and partly in another, 4-1194. Validity of statute making offense subject to prosecution in county other than that where committed, 9-615; 19-1236. Forum in which action for damages to realty must be brought, 3-344. Venue of condemnation proceedings as to land located in more than one county, 19-984. Venue of action or prosecution for libel or slander, 9-382. VERDICT. Generally, see Tbiai,. Coroner's verdict as evidence, see Ooboneks. Damages, see that title. JUBY AND JUBY TRIAL, See that title. VERIFICATION. Affidavits, see that title. Of assessment roll, see Taxation. Of information, see Indictment and Infor- mation. Of petition for divorce, see Divorce. VESSELS. See Ships and Shipping. VESTED REMAINDERS. See Remaindebs. VESTED RIGHTS. See Constitutional Law and cross-refer- ences thereunder. VETERANS. Constitutionality and intent of veterans' pref- erence laws, 1-291; 9-1049. Validity of statutes exempting veterans from license taxes, 9-1005. VETO. By governor, see Governor. Mayor's power of, see Municipal Coepoba- tions. VIBRATION. Injury to property by blasting, see Blasting. VICE-PRINCIPALS. See Master and Servant. « VICINITY." Meaning of term " vicinity," 18-736. VERBAIi CONTRACTS. Of insurance, see Insurance. Statute of frauds, see Frauds, Statute of. Vols. 1-20 — Ann. Cas. Digest. — 15. VIEW. By jury or court, see Trial. Looking at railroad crossings, see Railroads, 226 INDEX TO NOTES, 1-20 ANJST. CAS. VISION. Obstruction of view at crossing as negligence, see Railboads. State of weather as aflFecting visibility of railroad rolling stock or street ears, 16- 357. Telegraph, telephone, trolley, or electric light poles as obstruction to view of ap- proaching train, locomotive, or street car, 20-295. VOICE. Identification of accused person by his voice, 14-82; 20-403. VOTING. At ejections, see Elections. Stoekholders' right of, see Cobporations. VOTING MACHINES. See Elections. VOTING TRUSTS. See COBPOEATIONS. VOUCHERS. See Banks and Banking. VOYAGE. Of vessel, see Ships and Shipping. WAGE EARNERS. Within bankruptcy act, see BANKRUPTCY, -WAGES. Assignments of, see Assignments. Of children, see Parent and Child. Discharge in bankruptcy as affecting assign- ment of, see Bankruptcy. Of officers, see Public Officers. As preferred claims against estates in hands of receivers, see Receivers. Of seamen, see Ships and Shipping. Of servants generally, see Master and Ser- vant. Subrogation to laborer's lien of person pay- ing, see Subrogation. Tips as part of earnings or wages, 14-336. VOIDABUE: TRANSFERS. Chder bankruptcy law, see Bankbuptcy. "VOID IF DETACHED." Stipolation in railroad ticket that coupon shall be, see Cabbiebs. "VOLUNTARY EXPOSURE TO UN- NECESSARY DANGER." As phrase of accident policy, see Insurance. Of Of Of WAITING ROOMS. See Railboads. WAIVER. By accused of right to be present at rendition of verdict, see Criminal Law. Of attachment, see Attachment. By building association of by-laws, see Build- ins AND Loan Associations. Of building restrictions, see Vendor and Pubchaseb. Of carrier's lien, see Carbiebs. Of chattel mortgage liens, see Chattel Moet- GAOES. compensation for change of grade, see Streets and Highways. compensation for land condemned, see Eminent Domain. court's lack of jurisdiction of removed cause, see Removal op Causes. Of damages by acceptance of goods sold, see Sales. Estoppel, see that title. Of exception to denial of motion to take case from jury, see Trial. Of forfeiture of benefit certificate, see Ben- evolent or Beneficial Associations. Of forfeiture of lease, see Landlord and Ten- ant. Grand jury, irregularity in formation of, see Grand Jury. In insurance, see Insurance. Of jeopardy, see Criminal Law. Of jury trial, see Jury and Jury Trial. By master of right to discharge servant, see Master and Servant. Of mechanic's lien, see Mechanics' Liens. Of nonperformance of working contract, see Contracts. Of objection to special or substituted judge, see Judges. Of privilege of communication, see Wit- nesses. Of privilege of refusing to testify, see Wit- nesses. Of protest of bill or note, see Bills and Notes. Of right of appeal, see Appeal and Error. By seller of right i,o reclaim goof^s. s.e? Smj;s, WAR — WATERS AND WATERCOURSES. 227 WAIVER — continued. Of special appearance, see Appearances. Of statute of frauds, see Fbauds, Statute of. Of stockholders' liability, see Corpobations. Of tenant's breach of lease by receipt' of rent, see Landlord and Tenant. Of vendor's lien, see Vendor and Pubohaseb. WAR. Army and Navy, see that title. Contraband of War, see that title. MnJTiA, see that title. WARD. GUABDIAN AND Wabd, gee that title. WAREHOUSES. Deposit of grain in warehouse as bailment or sale, 10-1074. Liabilitv of warehouseman for loss of goods by fire, 19-243. Negotiability of warehouse receipts, 17-670. WARES. Bulk sales of, see FBAtrDtrtENT Conveyances. Sales of on Sunday, see Sundays and Holi- days. Sales of within statute of frauds, see Frauds, Statute of. WARNINO. By railroads, see Railroads. To servants of dangers, see Master and Ser- vant. By street railways, see Street Railways. WARRANT OF ATTORNEY. Judgment rendered on in another state, see Judgments. WARRANTS. Arrest, see that title. County warrants, see Counties. False imprisonment in arrest of wrong per- son under, see False Imprisonment. Search warrants, see Searches and Seizures. Affidavit or eomplaint upon information and belief !is ^'"^is for warrant or injunc- tion, 18-817. WARRANTY. Agent's liability for breach of, see Agency. Ari|Bine from unrestricted indorsement of draft or cheek, see Checks, WARRANTY — continued. Of genuineness of draft or check, see Checks. Of goods sold, see Sales. Implied on assignment of patent, see Assign- ments. In insurance, see Insurance. Of patents, see Patents. Sales of land as affected by, see Vendor and Purchaser. WASTE. Of gas, petroleum, water, etc., see Mines and Minerals. Right of tenant in common to maintain action for waste against cotenant, 15-271. Right of lienor or creditor to restrain waste by owner of realty, 13-89. WATCHES. Innkeeper's liability for loss of by guests, see Inns, Hoarding Houses, and Apart- ments. WATERS AND WATERCOURSES. Condemnation of water, see Eminent Do- main. Drains, see that title. Dredging through land under water, see Dredging. Ferries, see that title. Fish and Fisheries, see that title. Highways over or into, see Streets and Highways. Hunting on, see Game and Game Laws. Ice, see that title. Ice, injuries caused by hole in, see Ice. Irrigation, see that title. Landowner's liability to trespassing child, see Negligence. Sewers, see Municipal Corporations. Shellfish, see Fish and Fishehies. Ships and Shipping, see that title. Wharves, see that title. Necessity and sufficiency of source of supply to constitute watercourse, 10-1047. Acquisition by artificial stream of character of natural watercourse, 14-909. Canal as navigable water, 17-349. Duty of one obstructing natural watercourse to anticipate extraordinary freshets or floods, 8-777. Overflow from watercourse as surface water, 3-208. Measure of prescriptive right to flow lands by maintenance of dam, 18-217. Right of resident of state to divert waters into another state, 10-126; 14-562. Equitable estoppel as defense to suits to re- strain diversion and use of water, 2-\ 788, 228 INDEX TO XOTES, 1-20 ANN. CAS. WATEES AND WATEKCOUESES — eou. Coaatit^tionali^ ol legislation to prevent waste of natural gas, petroleuBi, water, and the like by private owner, 16-1001. Liability for pollution of stream by mining operations, K>-587. Prescriptive right to pollute watercourse, 3- 84. Joint liability in damages of persons pollut- ing stream independently, 10-773. Measure of damage lor pollution of water- course, 9-534. Single suit by riparian owner to enjoiin inde- pendent acts of pollution hy several per- sons, 9-516. Drainage of natural ponds formed by sur- face water, 2-197; 11-1143. Right of landowner to sink well and intercept subterranean waters supplying neigh- bor's well or spring, 4-829; 10-846. Liability of owner of artifiojal reservoir for damages caused by percolation of water, 5-681; 13-219, Liability for poHutiooi of underground waters, 16-676. Meaning of term "ordinary" as applied to high and low water mark, 17-149. Con'cuJTent jurisdiction of states over waters forming state boundaries, 16-1115. Nature of riparian rights, and lands to which they attach, 9-1235. Right of access of riparian proprietors, 1-184, Right of access of riparian owner as includ- ing right to conatrnct wharf or pier, 11-U. Right of riparian owner to use water to gen- erate electric power, 17-1226. Embankment by riparian owner against over- flow from stream to injury to other pro^ prietors, 4-718. Liability of one using stream to float timber for resulting injuries to riparian owner, 10-235. Effect on title of riparian owner of change in course of navigable stream, 13-50. Right of government to dredge through land under water held by private owners, 19- 697. WATERWORKS AND WAIER OOMPAN. lES — continued. Municipal regulftUon of water pipes in high- ways^ 10-1100. Idabillty of municipality for negligence in construction or operation of water- works, 14-1010. Right of gas or water company as against municipality interfering with pipes in making public improvement, 6-390. Right of water company to diaoriminate bc' tweeu consumers as, to rates, 20-958. Right of water company to qorap^l custwBeop to pay for meter as condition to supply- ing water, 15-378. Right to shut off water supply for nonpay- ment of water rent, 19-847. Water rents as taxes or rates within meaning of covenant in lease, 8-111. Liability of watw eompany t» consumer for failure to furnish supply of water, 20- 1294, Liability of water company under contract with munioipaJiiy for fir^ loss sustained by municipality, 20>-625, Liability of water company, under contract with municipality, for fire loss sus- tained by private citizen, 2-479; 9-1070. Liability of one tenant to another for negli- gent use of waterworks, 18-533. Rigbt of private, consumer to enforce con- tract of municipality with water com- pany, 5-507, Larceny of water, 6-739. WAVES. Duty of vessel respecting displacement waves, see Ships and Shippinq. WAYS. Demise of premises as passing right of way, see I>j;piow> anp Tenant, Easements of way, see Easements. Pbivate Wats, see the croas-referenaes under that title. Streets and Highways, see that title. Turnpikes, see Tubnpikes and Toll Roads. WATERWORKS ANB WATER COMPANIES. Landlord's liability for injuries caused by water, see Landlord and Tenant. Laws making owner of premises liable for water furnished, see Landlord and Ten- ant. Sewers, see Municipal Corporations. Special assessments for laying pipes, see Spe- cial OR Local Assessments. Sprinklinff streets, see Streets and Hioh- WATS. Authority of board of health to regulate mu- nicipal water supply, 18-499. WEAFQNS. Assault in pointing firearms, see Assault. Evidence that accused was armed when ar- rested, see Criminal Law. Homicide, see that title. Spring Guns, see that title. Trespass in shooting across lands, see Tres- pass. Right to bear arms, 1-56; 17-570. What amounts to carrying weapon within prohibitory statute, 11-1105. Validity of statute or ordinance prohibiting discharge of firearms in public places, 11-723. ■ " WEAR AND TEAR » — WILLS. 239 "WEAR AND TEAR.' WIFE. Clause in lease relating to, see Landlord and Generally, see Husband and Wife. Tenant. " Wife " as designation of beneficiary, se« Wilis. "WEARING APPAREI,." "Wearing apparel" in exemption statutes, 15-159. WILD ANIMAIS. See Animals. WEATHER. Admissibility and weight of weather records as evidence, 19-852. Negligence in setting fire on one's own prem- ises as affected by weather conditions, 20-699. State of weather as affecting visibility of railroad rolling stock or street cars, 16- 3S7. WEIGHT OF EVIDENCE. Generally, see Evidence. In criminal prosecutions, see Cbiminal Law. WEIGHTS AND MEASURES. Statutes regulating weighing of minerals, see Mines and Minerals. WELIiS. Generally, see Waters and WATEHOOtmsES. Owner's liability for in.iiiry to trespassing child, see NBGUGErJC-, WHARVES. Ships and Shipping, see that title. Eight of access of riparian owner as including right to construct wharf or pier, 11-11. Right of owner of private wharf to exclude others from use thereof, 16-1226. Right of municipality, in absence of statute, to erect free wharf at point where street abuts upon water front, 14-1135. Eight to and liability for wharfage charges in absence of express contract, 13-384. WHOLESALE. Liquor sales, see Intoxicaung Liquors. WIDOW. Contest of will by, see Witts. Dower rights of, see Dower. Failure to occupy homestead as affecting rights, see Homestead. Husband and Wife, see that title. W^ILFUL INJURIES. Discharge in bankruptcy as affecting judg- ments for, see Bankruptcy. W^ILLS. 1. Capacity to Make Will, 230. 2. Nature and Form op Instruments, 230. 3. Execution, 230. 4. Fraud, Undue iNFLUEyfCE, or Mistake, 230. 5. Revocation and Revival, 230. 6. Probate and Contest, 231. 7. Construction, 231. a. Generally, 231. b. Persons Entitled to Gifts, 231. C. Estate or Interest Conveyed, 231. d. Conditional Gifts, 232. 8. Rights and Duties of BenepiciAriss, 232. Administrators, see Executors and AdMIN' istrators. Alteration of Instruments, see that title. Charitable devises or bequests, see Chari- ties. Children as subject of disposition by, see Parent and Child. Contracts of sale as devisable, see Vendor AND Purchaser. Descent, see Descent and Distribution. Distribution, see DESCENT AND DISTRIBUTION. Executors and Administrators, see that title. Foreign corporations as devisees, see Corpo- rations. Inheritance as protected right, see Descent AND Distribution. Inheritance taxes, see TAXATION. Law governing, see Conflict of Laws. Oral agreements to devise lands, see Frauds, Statute of. Payment by legacy, see Payment. Powers, see that title. Probate courts, see Courts. Public schools as beneficiaries under, see Schools. Remainders created by, see REMAINDERS. Rule in Shelley's Case, see ShelleVb Case, Rule in. Service performed upon promise to compen- sate by will, accrual of action for, see Limitations of Actions. Shelley's Case, Rule iN, see that title. Spendthrifts, see that title. Taxation of legacies or devises, see Taxa- tion, 230 INDEX TO NOTES, 1-20 ANN. CAS. WILLS — continued. Trust implied from promise preventing exe- cution of will, see Tbusts and Tbus- TEGS. Tbusts and Trustees, see that title. 1. Capacity to Make Wnx. Belief in spiritualism as impairment of testa- mentary capacity, 10-617. Unnatural or unjust disposition of estate as evidence of testamentary incapacity, 13- 1044. Time to which inquiry as to testamentary capacity should be limited, 18-905. Admissibility of declaration of legatee or devisee as to mental capacity of testa- tor, 9-807. 2. Natube and Fobm of Insteuments. Admissibility of oral declarations of deceased witness to will on issue of genuineness of will, 19-1009. Validity of will making no disposition of property, 1-368. Admissibility of evidence to prove that paper testamentary on its face was not in- tended as will, 18-897. Admissibility of evidence to show that in- strument, not testamentary on its face, was intended to take effect upon death of maker, 12-287. Construction together as one will of several testamentary instruments partially in- consistent, 18-284. Doctrine of incorporation into will by refer- ence, 1-395. Validitv and probate of joint and mutual wills, 2-26; 17-1006. Contingent or conditional wills, 8-1150. Necessity that codicil, to be effective, be physically attached to will, 14-472. Eeference by testator to his will as including codicil, 8-429. Holographic will not wholly in handwriting of testator, 1-373; 20-369. Rule that holographic will must be found among "valuable papers," 5-636. Necessity and sufficiency of proof of rogatio testium to establish nuncupative will, 10-1132. Statutory restrictions as to time of making nuncupative will, 3-317; 14-1164. 3. Execution. Requisites of valid testamentary disposition, 1—51, Necessity of affirmative proof of knowledge of contents of will by testator unable to read, 14-876. Meaning of " credible " as applied to witness to will, 18-1091. Necessity that witness to will should have known testator previously to subscrip- tion, 17-686. WILLS — continued. Competency of executor as attesting witness to will, 15-789. Competency, as attesting witness to will, of officer or other person interested in charitable institution receiving benefit under will, 15-794. Time as of which competency of witness to will is to be determined, 15-889. "Attestation," when used with reference to will, as including " subscription," 16- 1091. Order of subscription to will by testator and witnesses, 5-463; 20-1367. Signature of testator " at end " of will, 2- 730; 11-1013. Sufficiency of signature of testator to will with respect to manner of signing, 18- 769. What constitutes subscription by witness to will in " presence " of testator, 6-414. Sufficiency of subscription to will by witness, 4-637. Execution of will as governed by law in force at time of testator's death or at time of execution, 13-1154. 4. Fbaud, Undue Influence, ob Mistake. Fact that will is prepared by beneficiary as evidence of undue influence, 15-551. Unnatural or unreasonable character of will as evidence of undue influence, 7-984. Admissibility of declarations of testator not made at time of execution of will, on question of undue influence, 5-608; 10- 600. Jurisdiction of equity to set aside will for fraud, 18-807. Jurisdiction of equity to reform will, 15-141. 5. Revocation and Eevivai.. Doctrine of dependent relative revocation, 1- 609. Revocation of will by erasure or obliteration of signature where another signature is added, 20-218. Revocation of will by invalid or inoperative codicil, 20-1001. Revocation of will by marriage and birth of issue, 7-786. Revocation of will by marriage of testator under statute making wife heir of hus- band, 17-1142. Extent to which widow's interest is affected by statutory revocation of will by tes- tator's subsequent marriage, 5-795. Revocation of will by divorce of testator, 3- 230; 16-544. Admissibility of testator's subsequent decla- rations on issue of revocation of will, 10-535. Admissibility of declarations of testator upoa issue of revocation of will which can- not be found, 3-960; 14-284. WILLS. WILLS — continued. Effect of revesting of estate alienated on im- plied revocation of will by alienation of property, 16-209. Revival of vpill by destruction of revoking will, 4-313 ; 13-245. Revival of will by codicil, 1-671. 6. Probate and Contest. Power of probate court to reject part of in- strument and admit remainder to pro- bate, 18-388. Admission to probate of part only of lost will, 18-630. Admission of will to probate without first obtaining, by direct proceeding, annul- ment of letters already granted, 9-962. Admission of will to probate notwithstand- ing failure of witnesses to remember circumstances, 11-428. Ancillary probate of will of resident which has been probated abroad, 7-313. Probate of joint and mutual wills, 2-26; 17- 1006. Conclusiveness in domestic courts of foreign will duly probated abroad, 9—422; 14- 977. Right of state to contest will, 14-959. Right of widow of decedent to contest his will, 11-1015. Judgment creditor of heir as interested per- son to contest will, 14-334. Acceptance of benefit under will as affecting right to attack its validity, 3-525. Validity and enforceability of agreement by parties interested to dispense with pro- bate of will, 15-742. Validity of contract to refrain from contest- ing will, 15-303. Validity of agreement to contest will, 15-300. Validity of condition in will for forfeiture of gift in case of contest, 17-997. Right to jury trial of will contest, 15-211. 7. CONSTETTCnON. a. Generally. Jurisdiction of equity to construe wills, 13-2. Jurisdiction of probate courts to construe wills, 5-473. Construction of "and" as "or" and vice versa in construing will, 19-922. Efi'ect of invalid clause in will upon clauses otherwise valid, 3-950; 18-473. Validity of bequest for purchase of care of tomb, monument, burial lot, or ceme- tery, 15-606. Meaning of term "monument" as used in will directing monument to be erected for testator or other person, 19-1158. b. Persons Entitled to Oifts. Construction of gift in will to class inaxj- curately enumerated, 15-45. WILLS — contvnued. Bequest to class as including persons dead before making of will, 5-243. Construction of term "blood relations" or " blood relationship, ' 5-511. When gift to " children " and like includes child en ventre sa mere, 7-134; 12-'200. Adopted child as within designation of " chil- dren " or similar phrase in will or deed, 18-518. Construction of terms " issue " and " lawful issue " as regards illegitimates, 5-936. Bequest to " residuary legatee " as including realty, 14-795. Construction of phrase " right heirs " as used in will, 16-298. Who entitled to share in bequests to " ser- vants," 2-866. When " survivor " will be construed to mean "other," 4-581. Construction of bequest or devise to " wife " of testator, 12-756. Admissibility of parol evidence to show whether living child was intentionally omitted from will, 8-637. Time to which words of survivorship refer in devise or bequest of remainder after life estate, 14-706. o. Estate or Interest Conveyed. Term " cash " or " money," when used in will, as including real property, 20-1288. When testamentary gift of " effects " will be construed to include real property, 7- 128. When testamentary gift of " estate " is to be restricted to personalty, 3-420. Gift of " real estate," " land," etc., in vrill aa including leasehold, 20-1089. Estate passing by devise of rents, profits, In- come, etc., of land, 9-247. Cutting down clear devise or bequest by clauses or expressions of doubtful im- port, 3-615; 10-176; 11-470. Words merely declaratory of purpose or con- sideration of conveyance or devise as creating conditional estate, 3-38; 12- 227. When after-acquired realty passes by will, 18-167. Interest given by general bequest of person- alty with unlimited power of disposi- tion, 17-480. Estate taken by devisee of land contracted to be sold, 9-34. Estate created by grant or devise of life es- tate with absolute power of disposition, 9-947. Validity of devise over limited upon indefi- nite failure of issue, 6-648. Effect of gift over upon estate taken undei will, 1-882; 11-345. 232 INDEX TO XOTES, 1-20 ANK CAS. WILLS — continued. d. Conditional Gifts. Effect on conditional devise or bequest of event rendering condition impossible of performance, 17—433. Validity of legacy or devise conditioned upon recipient renouncing or embracing par- ticular religious belief, 7-656. Validity of condition attached to legacy or devise against entering into military Or naval service, 13-354. Validity of partial or limited restraint on alienation of fee simple estate, 7-319. Validity of testamentary disposition in re- straint of marriage, 5-138; 9-1143. Validiiy of condition in will for forfeiture Ol gift in case of contest, 17-997. 8. Rights and DrrriEs op Beneficiabtes. Bistinction between specific and general lega- cies of stock, bonds, or securities, 10- 490; 19-1187. Bequest of insurance money as specific leeacv. 10-1137. Enumeration of property in residuary clause as making legacy or devise specific, 11- 765. Demonstrative legacies, 4-162. Abatement of legacy given in satisfaction of debt, 10-158. Abatement of legacy accepted by widow in lieu of dower, 2-976. Ademption of specific legacy by change in character of property bequeathed, 8- 144. Presumption that subsequent benefit to lega- tee to whom testator does not stand in loco parentis is ademption or satis- faction of legacy, 15-248. Construction of word " relative " as used in statute providing against lapse of lega- cies or devises to relatives, 10-920. Effect of death of legatee before taking effect of legacy given in pajrment of debt, 4- 73. Primary liability of lapsed legacy or devise to payment of claims against estate, 3- 719. Estoppel by acceptance of benefit under will to object to disposition by testator of property of beneficiary, 9-956. Right to control manner in which another shall exercise right of equitable elec- tion, 10-828. Right of widow to benefit by conversion di- rected by testator when she elects to take against will, 17-160. Effect of death of widow within time for making election between dower and other interest, 5-82, Effect of widow's qualifying and acting as executrix upon right of election under will, 4-1037. WILLS — continued. Burden of proving nonpayment of legacy to which presumption of payment nas at tached, 2-747. Time from which general pecuniary legacies draw interest in absence of governing provision in will, 6-525. Right of devisee of land encumbered by tes- tator to have incumbrance discharged out of personalty to disappointment Of 8-592. WINDING mP. Of corporations, see CoePokations. Of partnerships, see Partneeship. WINDOW. Burglary by opening, see Bubglabt. As fixture, see Ftxtukes. WIRES. ElECTBiClTT, see that title. Teleoraphs and Telephones, see that title. Stringing electric wires above groutid as neg- ligence, 9-751. Liability of one maintaining wires in high- way for injury to traveler coming in contact with live wire, 4-709. Duty and liability of one maintaining elec- tric wires in reference to children, 10- 925. Remedy of landowner for unauthorized string- ing of wires above his premises, 9-860. Poles and wires of telegraph, tetephoiw, or electric companies generally, as person- alty or realty, 9-1192. Liability of electric company for injuries re- sulting from one of its wires charging wire of other company or person, 16- 1194. WTTN£SS£S. 1. Attendance, Expenses, and Compensa- tion, 233. 2. Failtjee to Swear Witnesses, 233. 3. Competency Generally, 838. 4. PRIVrLEQED CoMMtTNICATlONS, 233. 5. Examination, 234, 6. Privilege of Refusing to Testify, 234. 7. Credibility and Impeachment, 234. Alteralaon of instrument by insertion of name of, see Alteration of Instru- ments. In arbitration proceedings, see AKBEmAMON AND Award. Contempt, see that title. Contracts to procure testimony, see Con- tracts. Deaf mutes, see Deaf and Dumb Pebsons. Death of, rendering former testimony admis- sible, see Evidence. WITNESSES. 233 WITNESSES — contimed. To d«eds, see Deeds. Depositions, see that title. Dying dieclarations, impeachment of, see Homicide. Embraceky, see that title. Evidence given by, see Evidesmce. ExolueJon; from eovtrt loomi, see- Tbial. Exemption from process, see Summons and Pbocess, Experts, see Evidence. Failure of accused to call wife, conjiBent of counsel, see Teial. Former testimony of, admissiljility, see titles. evidence and' Ckiminal Law. Grand jurors testifying as to concurrence in indictment, see Geand Jury. Guardians as interested witnesses, see GuAB)> IAN AND Ward. Handwriting, comp&teney to prove> see Hand- writing. Impi;ope<' answer as reversible eiirorj se^ Trial. IndictnKent based on testiniony of accijsed, ?ee- Grand Jury. Judge's power t,Q call, see Ti«Ar,. Jury disregarding testimony, see Just and Jury Trial. Limiting number of, see Trial. To mortgages, see MoRTaAGES and Deeds op Trust. New Tbial, see that title. Oaths and Affirmations, see that title. Party's failure to testify, comment by 9,ttor- ney, see Trial. PBBJXJiBY, see that title. Probate of will as affected by recelleetion of, see Wills. Prosecution's duty to call, see Criminal Law. Raped female ineapabje ^ consent, compe- tency of, see Rape. Right of part^ to instrument to deny execu- tion after death of other party, see Evi- denc?;. Slander as predicable to statements of, see LISEL and SJ/ANDER. To wills, see Wills. 1. Attendance, Expenses, and Compensa- tion. Evidence admissible to show unsuccessful search for witniejSi, 8-i68. Right of nonresident witness to mileage from residence to place of trial, 7-163. Right to mileage and per diem of witness who is nonresident of eounty where trial is had, 10-397. Taxation as costs of fees, mileage, etc., of witness subpoenaed but not called to testify, 6-1017. Right of public ofiBeer to witHeaa feea, 19-168. Extra compensation of expert witness, 5- 993; 17-715. 2. Failure to Swear Witnesses. Effect, upon triail and verdict of failure to swear witness, 4-1023. WITNESSES — cor^imed., 3>. Competency Generally, Conviction of infamous ci;ime iri one jurisdic- tion as disqualiijeation in another ju- risdiction, 5-917; 19-381. Proof of disqualification of witness on ac- count of conviction of crime, 7-167. Religions belief a? affecting competency of witness, 12-155. Competency of infant as witness,, 14-7. CowpeteBiey of Chinaman; as, witness^ 18-563. Competency of Japanese as witness, 18-981. Competency and propriety of attorney as wit- ness, for elient or adverse party, 13-31. Common-law rules as to competency of hus- band and wife as witnesses against each other in criminal cases, 2'-881. Husband or wife as corapeteijt witness in prosecution for bigamy, 12-1 14. Competency of wife as witness against hus- band for crime committed against child of wife, 6-187. Competency at common law of one spouse to testify for or against co. United States (D. C), 12x1004. 2. Indictment. Name or deseription of instrnin«Ht used. — An indictment for abortion resulting in death which fails to give the name or description of the instrument alleged to have been used fails to set out the charge against the defendant with sufficient fulness to deprive him of his right to require a, bill of particu- lars, and his absolute right to such bill is not affected by the fa.ct that he has been tried twice befoi^e on the same cliarge and may already possess the information asked for. Com. V. Sinclair (Mass.), 11-217. Where a count in an indictment for pro- ducing an abortion resulting in death charges, following closely the language of the statute, that the defendant with intent to procure the miscaraiage of a named woman "did unlaw- fully use a certain instrument " upon her body, a motion to quash the indictment on the ground that the count contains neitlier a description of the instrument cliarged to have been used nor an averment that it was unknown to the grand jurors is pixjperly overruled, as the defendant lias the right, if the charge is not fully, plainly, and formally set out, to require the prosecution to file a statement of such particulars as may be necessary to infown him of the nature of the crime charged. Com. v Sinclair (Mass.), 11-217. 3. Evidence. a. Admissibility. ^ Expert medical testimony.*- Physi- cians who have qualified as medical experts and who attended and examined a woman after an alleged abortion had been produced on her are competent to testify as to their opinions concerning the kind of intrutoent used in the operation and the mode of nsing it which would pi'oduce the conditions tbey found. Com. V. Sinclair Ai,. 4. ACCESSOEY A^PTER THE FaCT. 5. Prosecution. See Abortion. Aiding or abetting suicicle, see Suicide. Receiver of stolen goods as accessory to lai-ceny, see RECEtVlNQ Stolen Prop- erty, 1. 1. Who May be an Accessory. Persons incapalile of Comiuitting; offense. — A person may be guilty as a prin- cipal or as an accessory of a crime which he is personally incapable of committing alone. State V. Burns (Conn.), 16-465. 2. Prosecution as Principal. Under Connecticut statute. — Under section 1.583 of tbe General Statutes of Con- necticut, which provides that " every person who shall assist, abet, counsel, cause, hire, or command another to commit any offense, may be prosecuted amd p«nisli«id as if he were the principal oflfender," a woman who abets, couiBsels, causes, hires, or oommands a man to commit the offense of carnally knowing and abusing u, female under the age of six- teen years, may be prosecuted, informed against, and convicted as if she were the principal offender. Such statute has done away with the <;ommon-law distinction between principals and accessories in felonies. State V. Burns (Conn.), 16-465. Conviction under indictment as principal. — By virtue of the IMinnesota statute one who at common law would be an accessory before the fact ma,y be charged directly with the commission of the felony as principal, and the admission, on his trial, of evidence to show that he procured the crime to be committed is neither a variance nor a violation of a constitutional provision that in criminal prosecution the accused shall be informed of the nature and cause of the accusation against him. State v. Whitman (ffinn.), 14-^09. 3. Trial and Conviction before Principal. Principals in different degrees. — The rule that an accessOTy 'cannot be tried and convicted before his principal has been con- irfcted bits no appWcKWon as between princi- pals in the first aMd sccoad diegrees. State r. Jar^jll (N. €a,r.), «-438. 4. Accessory after the Fact. Accessory or accomplice. — One whose connection with stolen property did not com- mence until after the felonious taking had hoen coitsiQmmatied, and who in no manner participated in the larceny, is not an accom- plice, but at most an accessory after the tact. State V. Phillips (S. Dak.), 5-760. — mere knowledge of crime,— The mere fact that a person knows that a crime has been committed and does not give infor- mation thereof does not make him an acces- sory after th-e fact. Levering v. COBunon- wealth (Ky.), 19-140. Necessity of indictment against principal.— Under the Arkansas statute f an accomplice. State V. Phillips (S. Dak.), 5-760. 5. Prosecution. Jurisdiction.— Under the Tennessee stat- nites, one who has procured to be performed withoJit the state a criminal abortion resnlt- iag im death, canTJot be prosecuted within the state as an accessory before the fact to the murder, though the death occurred within the state, where it does not appear that the principal felon consummated the ofi'ense within the state through the intervention of an innocent or guilfy agent, or by any other means proceeding directly from himself. Edge V. State (Tenn.), 10-876. Allegation of kno-nrledge of crime.— An indictment against an accessory after the fact need not set forth specifically the facts showing that the defendant had knowl- edge of the crime committed by the principal. State 17. Jones (Ark.), 18-293. Proof of participation in offense.-' Joint participation in furnishing prisoners with implements with vpliich to break jail is shown by evidence that both defendants were present and acting together at the time the acts charged were done, though one of the defendants gave some implements to the pris- oners at one time, and the other defendant ■gave them other implements at another time. State V. Ballew (S. C), 18-569. ACCIDENT. Accident insurance, see Insurance, 8 a. Burden of proving accident in prosecution for murder, see HoinicrDE, 4 b. CoDstraction of English workmen's compen- sation act, see Master and SEKVASfT, 3 m. Duty of master to provide against unforeseen accidents, see Master anb RERVANt, 3 b. ACCOilMODATION NOTES — ACCORD, ETC. 245 Killing by accidental discharge of concealed weapon, see Homicide, 4 b. Liability for accidental injuries, see Negli- gence. ACCOMMODATION NOTES. Discharge of accommodation joint maker, see Bills and Notes, 10. Liability of accommodation maker, see Bills AND Notes, 11. Married women as accommodation makers, see Conflict of Laws, 1. ACCOMMODATIONS. Character of accommodations as determining relation of innkeeper and guest, see Inns, Boarding Houses and Apabt- MENTS, 2. ACCOMPZ.ICSS. 1. Who Is an Accomplice. 2. corrobobation of testimony. See Aboetion. Request for leniency to accomplice as evi- dence to impeach accomplice's testimony, see Criminal Law, 6 n ( 1 ) . Eight to continuance after repudiation of promise of immunity, see Criminal Law, 6 d (1). 1. Who Is an Accomplice. General teat.— The general test to de- termine whether a. witness is an accompliee is whether he himself could have been indicted for the offense, either as principal or acces- sory. If he could not, then he is not an accomplice. State t\ Gordon (Minn.), 15-897. The test of an accomplice ja whether the person so charged could be convicted as a principal or as an accessory before the fact, or as an aider or abettor on the evidence. Levering v. Commonwealth (Ky. ), 19-140. Conscious assistance of principal. — Where the evidence fvirnishes ground for the inference that a person alleged to be an accompliee did not consciously assist in pro- moting the defendant's design, and that consequently such person was not an accom- plice, the appellate court cannot say that the trial court was wrong in its conclusion to that eiTect. State ea? rel. Webb v. District Court (Mont.), 15-743. Knowledg:e o* intended crime.^A per- son is not an accomplice merely because he knows that the accused intends to commit the crime. Levering v. Commonwealth (Ky.), 19-140. 2. Coeboboeation of Testimony. Necessity. — Under the Minnesota Revised Laws of 1905 a conviction cannot be had upon the testimony of an accompliee unless sufficiently corroborated. State v.. Gord^tment is verified by one of the niunber only, such verification, though not in conformity with a rule of the court, is an irregularity only, and, where not objected to in the trial court, is not ground for reversal of judgment in favor of each claim- ant by the appellate court. Northwestern Steamship Co. v. Ransom (U. S.), 20-1015. ADMISSION OF ATTORNEYS. See Attoeneys at Law, 1. ADMINISTRATION BONDS. See ExBCUTOBS and Administbatoes. ADMINISTRATIVE ACTS. Restraining administrative acts, see Pbo- hibition, 1. ADMINISTRATIVE OFFICERS. Liability to prohibition, see Pbohibition, 3. ADMINISTRATORS. See ExEcuTOES and Administbatoes. Administrators de bonis non, see Executobs AND Administbatoes, 14. Administrators pendente lite, see Executobs AND Administbatoes, 16. Administrators with the will annexed, see Executors and Administbatoes, 15. ADMIRAI.TY. See Salvage; Seamen; Ships and Ship- ping; Towage. Review of evidence on appeal, see Appeal AND Ebeoe, 12 h (1). Jurisdiction in tort. — A shore dock, bridge, abutment, protection piling, and pier, are structures connected with the shore and land commerce, and an injury to such structures caused by a vessel negligently adrift is not a maritime tort of which a court of admiralty has jurisdiction. Cleve- land Terminal, etc., R. Co. v. Cleveland Steamship Co. (U. S.), 13-1215. Contribution. — A court of admiralty has jurisdiction of a libel to enforce con- tribution from the owner of one of two ves- sels, which were both at fault for a collision with a third, in favor of the charterer of the other vessel at fault, who has paid a ADMISSIONS AND DECLARATIONS. See Evidence, 10 d. Actions on fire insurance policy, see Insub- ANCE, 5 m ( 10 ) . ADMISSION. Admission in pleading, see Pleading, 4 a (4). Criminal cases, see Cbiminal Law, 6 n (11). Effect of demurrer as admission, see Pleading, 5 e. Proof of partnership, see Paetnebship, 1 b. ADOPTED STATUTES. See Statutes, 4 k. ADOPTION OF CHILDREN. Right of adopting parent to sue for death of adopted child, see Death bt Weongful Act, 6. Construction of statute.— Statutes re- lating to the adoption of children are not exclusive so that no right to take property by fin adopted child may be created in any other way. Chehak v. Battles (Iowa), 12-140. Adoption of adults.— The word " child " in the Alabama statute relating to the adoption of children refers to the status of the person adopted and not to the age of such person, and an adult may be adopted under the statute. Sheffield v. Franklin (Ala.), 15-90. Specific performance of contract for adoption.— Although an instrument of adoption is not valid because not acknowl- edged by all the parties and recorded, the surrender of a child by its parents to others, who at the time agree to adopt the child as their own and make it their heir, is a valid consideration for the contract of'^don- ADOPTION OF CHILDEEN. 255 tion, and the child, for whose benefit the contract is made, may maintain an action for the specific performance of such con- tract. Chehak v. Battles (Iowa), 12-140. Such a contract is not affected by the statute of frauds, part of the consideration — the surrender of the child — being paid at the time of the contract ; nor is the contract in the nature of a testamentary disposition of property and contrary to the statute relating to the execution of wills. Chehak V. Battles (Iowa), 12-140. Second adoption. — Under the New ,York Domestic Relations Law, providing that an adopted child may be adopted directly from its foster parents by another person " in the same manner as from parents, and as if such foster parents were the parents of such child," the natural parents of a legally adopted child absolutely cease in law to have any right or authority regarding such child, and in case of a second adoption after the death of the foster parents, it is not necessary to give notice to or obtain the consent of the natural parents or the survivor of them. Matter of Macrae (N. Y.), 12-505. Bight of adopted children to inherit. — The Michigan statute providing that on the adoption of a child he shall become an heir at law of the adopting parents, the same as if he were in fact the child of such parents, does not make the child an heir of a brother of the adopting parent. Van Derlyn v. Mack (Mich.), 4-879. An adopted child has no right to succeed to the estate of any member of the adopting family other than the adopting parent, and the adopted child does not succeed to the estate of the ancestors or collateral kin of the adopting parent, or to the estate of chil- dren born to the adopting parent. Hocka- day r. Lynn (Mo.), 9-775. An adopted child does not by reason of his adoption become heir to the real prop- erty of a brother of his adopting parent who dies intestate after the death of such parent, and therefore the adoption does not make the child an heir by representation of the property which might have come to his adopting parent had such parent survived his brother. Hockaday v. Lynn (Mo.), 9-775. Right of adopted child under limi- tations in default of " children."—' Where property is bequeathed to a person for life and after his death to any child or children that he may leave surviving him, and in default of any child or children of the life beneficiary the property is to become a part of the testator's residuary estate, the residuary legatees under the will are "remaindermen" within the meaning of the New York statute (Consol. Laws, c. 14, § 114) providing that an adopted child shall not be deemed the child of the adopting parent so as to defeat the rights of remain- dermen under limitations of property dependent on the adopting parent dying without heirs, Mjitter pf Leasl? (N, Y,), lS-516, A limitation in a will to the " child or children " of a life beneficiary under the will is not a limitation to an adopted child under the New York Domestic Relations Law (Consol. Laws, c. 14, § 114) providing that adopted children shall have the right to inherit from their foster parents, " but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the fos- ter parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen." Matter of Leask (N. Y.), 18-516. Collateral attach on decree of adop- tion. — A decree of adoption rendered in proceedings regular on their face and by a court of competent jurisdiction is neverthe- less subject to collateral attack on a writ of habeas corpus for the possession of the adopted children by a parent who was not a party to the decree of adoption and had no notice or knowledge thereof until after the decree had been rendered. Beatty v. Davenport (Wash.), 13-585. Extraterritorial effect of adoption.— Statutes relative to the adoption of chil- dren which confer on an adopted child the right of inheritance of the property of the adopting parent in the state of adoption, have no extraterritorial operation, and con- sequently, where a person who has adopted a, child in the state of Georgia, under a statute of that state conferring such right of inheritance, afterwards removes to Ala- bama, and dies there, the adopted child has no right of inheritance in the latter state by virtue of such adoption. Brown v. Fin- ley (Ala.), 16-778. IJaiv of comity. — The legal status of an adopted child, acquired by the law of adop- tion, is by the law of comity recognized in every other jurisdiction where such status becomes material in determining the right to take property by will or inheritance. Matter of Leask (N. Y.), 18-516. Revocation of adoption. — To warrant a finding of undue influence by one person in inducing another person to adopt a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about by the influence was not in reality the act of the person whose act it was in form, but the act of the person exercising the influence. Phillips v. Chase (Mass.), 17-544. In a proceeding to revoke a decree of the Probate Court by which a married woman was declared to have, adopted a son of her husband by a former marriage, evidence that the woman was a nervous invalid prior to and at the time of her marriage to the child's father, and continued in poor health to the time of her death, which occurred some sixteen years after the adoption; that the husband had been her physician prior to the marriage, and continued to act as such thereafter; that within three months. 256 ANK CAS. DIGEST, VOLS. 1-20. after the ma-riage he threatened to desert her if she did not adopt his son; that there were certain circumstances in her life, con- nected with a former marriage and known to her husband, which made siich threat par- ticularly terrifying to her; that up to the time of the adoption her acquaintance with her husband's son had been casual only; and that after the adoption had taken place she frequently referred to it bitterly, and said that she had been forced to do it against her will — warrants a finding by the jury that the adoption was procured by the undue influence of the husband. Phillips r. Chase (Mass.), 17-644. In such a proceeding, where one of the issues submitted to the jury is whether the adopting parent was unduly influenced by her husband " or any other person " in the making of the adoption, and where there is no evidence of undue influence by any per. son other than the husband, the answer " yes," given by the jury on such issue, will be construed as a. finding that the adoption was procured by the undue influence of the husband. Phillips v. Chase (Mass.), 17-544. In such a proceeding, findings by the jury that the adoption was not made by the adopting parent of her own free will, and that she was unduly influenced in making it, necessarily imply that the procuring of the adoption also constituted a fraud on the court. Phillips v. Chase (Mass.), 17-544. When a married man so dominates his wife's will as to force her against her will to bring a petition in court for the adoption by her of his son by a former marriage, he commits a gross fraud on his wife, and such a fraud on the court that the decree of adoption should be set aside. Phillips v. Chase (Mass.), 17-544. Rovocation after death of foster parent aad child,— In such a case as that above considered, where the wife and the adopted child have both died, and the husband, as heir of the child, claims the property which descended to the latter on the wife's death, the decree of adoption may be revoked by the probate court on petition by the wife's next of kin, on the principle that the husband, through whose fraud and undue influence it was procured, should not be permitted to profit by his own wrong. It is no defense to such a petition that the adopted child was innocent of any partici- pation in the wrong by which the adoption was procured; nor can the respondent object that the petitioners should have proceeded by a bill in equity instead of by a petition in the probate court. The remedy by bill in equity is proper where the fraud com- mitted by a defendant- entitles him without disentitling the plaintiff; but in the case of an adoption procured by fraud the decree which entitles the party perpetratiiig the fraud also disentitles the next of kin of the adopting parent, and they can obtain no relief until the decree of adoption is set aside. Phillips v. Chase (Mass.), 17-544. ADnZ.TEBATION. See Food. Sufficiency of information.— An in- formation for the violation of an ordinance against the sale of adulterated milk is suf- ficient where it specifically informs the accused of the time, place, and particular in which he has violated the ordinance. St. Louis r. Liessing (Mo.), 4-112. ABTTLTEBT. See FOBNICATION. Bar to alimony, see Alimony and Suit Monet. Bar to right to dower, see Doweb, 2 a. Ground for divorce, see Divorce, 2. Definition.— The sexual intercourse of a married man with a woman other than his wife, whether married or single, is adultery on his part within the meaning of the Kan- sas statute making adultery a misdemeanor. Bashford v. Wells (Kan.), 16-310. ADULTS. Adoption of, see Adoption of Childben. ADVANCE BIDS. As ground for setting aside judicial sale, see Judicial Sales, 2 b. ADVANCEHENTS. 1. In Genebal, 256. 2. Sufficiency of Evidence to Estab- lish, 257, Intent of donor presumed from testamen- tary provisions, see Wells, 10 f. 1. In Genebal. In case of partial intestacy.— The Iowa statute providing for bringing into hotchpot advancements given by an " intes- tate " to his heir, does not app'ly where the ancestor has left a will disposing of part of his property. Gilmore v. Jenkins (Iowa), 0-1008. No presnmption from inequality of gifts.- The mere fact that a parent has given property to one child and not to another, or more to one than to another, is not suffieient to charge the favored child in the distribution of the parent's estate. Elliott i\ Western Coal, etc., Co. (111.), 17-884. Deed to son-in-law as advancement to daughter.- A deed of gift by a father- in-law to his son-in-law, accepted by the latter, which contains a provision clearly indicating that it was the intention of the grantor that the property so conveyed was ADVANCES — ADVERSE POSSESSION. 257 to be an advancement to his daughter, the wife of the grantee, is an advancement to her, notwithstanding she may have been ignorant not only of the fact that the deed contained such a provision, but even of the existence of the deed altogether. Ireland v. Dyer (Ga.), 18-544. Under the evidence in the case the jury could have found that the plaintiff had not received her distributive share of the estate, after deducting from that distributive share the value of the advancement made to her; therefore it was error for the court to direct a verdict in favor of the defendant. Ireland t: Dyer (Ga.), 18-544. Validity of release of interest by heir. — Where a father pays a certain sum of money to his adult son, and the latter exe- cutes an instrument in writing whereby he acknowledges the receipt of such sum as an advancement, in full of his distributive share in his father's estate, and agrees not to take, claim, or receive anything further out of said estate at or after his father's death, such instrument is valid, and estops the son from claiming any share in the estate upon the father's death intestate. In re Simon (Mich.), 17-723. Note exeonted hy parent to child.— In view of the Kentucky statute regulating the subject of advancements, a parent can- not require payments to be made from her estate to certain children by executing in their favor promissory notes reciting a valu- able consideration, where in fact no con- sideration exists except natural love and affection. Sullivan v. Sullivan (Ky.), 13-163. 2. SuFFiciEircT OF Evidence to Establish. Oral declarations of donor. — Section 7 of chapter 39 of the Revised Statutes of Illinois provides that " no gift or grant shall be deemed to have been made in advance- ment unless so expressed in writing or charged in writing by the intestate, as an advancement, or acknowledged in writing by the child or other descendant." Inas- much as advancements, under this statute, cannot be evidence by parol declarations or statements, no material or essential part of the proof necessary to establish an advance- ment can be supplied by parol testimony. Elliott V. Western Coal, etc., Co. (111.), 17-884. Prior to the above statute, it was a ques- tion of intention whether a gift by a parent to a child was an advancement, and the donor's oral declarations, made at the time of the gift, as to his intentions, were admis- sible as part of the res gestce characterizing the act of giving. Since the statute, it is still a question of intention, but the statute has prescribed the manner of proof of the intention. Elliott v. Western Coal, etc., Co. (111.), 17-884. Subsequent written declaration of donor.— Where a father conveys land to his daughter, by a warranty deed absolute on its face and containing nothing to show that the conveyance is intended as an advanee- Vow. 1-20 — Ann, Cas, Pigest.— ^17, ment, he cannot at a later time derogate from his grant by executing a separate instrument in writing, not a will, declaring that the land so conveyed is the daughter's full "heirship" in his real estate; nor is such instrument competent evidence to prove that the gift was intended as an advance- ment. The intention which will character- ize a, gift as an advancement is the inten- tion of the donor at the time of making the gift, expressed in the manner required by the statute. Elliott v. Western Coal, etc., Co. (111.), 17-884. ADVANCES. Advance by factors, see Factobs, 4. Corporate stock, see Cobpobations, 8 b. Security for future advances, see Chattel Mobtoages, 2. ADVENTURES. See Joint Adventtjbes. ADVERSE POSSESSION. 1. Subjects of Adverse Possession, 257. a. Property of individuals, 257. b. Property subject to public use, 258. c. Public lands, 258. 2. Intent of Occupant, 258. 3. Claim ob Colob of Title, 258. 4. Notice of Adverse Claim, 258. 5. Hostility of Possession, 258. a. Possession consistent with rights of others, 258. b. Possession by grantor after con- veyance, 259. c. Weight and sufficiency of evi- dence, 259. 6. Tacking Possession, 259. 7. Claim to Pabt of Tbact, 259. 8. Abandonment of Title, 259. Cemetery land, see Cemeteries, 2. Defense to action of ejectment, see Eject- ment, 4. Effect on right to dower, see Doweb, 2 d. 1. Subjects op Adverse Possession. a. Property . of individuals. Minerals. — Where the title to underlying coal has been severed from the title to the surface of the land, no title to the coal can be acquired by adverse possession of the sur- face. Wallace v. Elm Grove Coal Co, (W. Va.), 6-140. Part of building. — Possession of an upper room in a building supported entirely by portions of the story beneslth may ripen into title thereto by adverse possession under the provisions of the statute of limitations. Iredale v. Loudon (Can.), 12-863. Where one of several owners of land with ft building thereqi^ sells his interest to 9, 25§ ANK CAS. DIGEST, VOLS. 1-20. c6-owiief, and occupies a second story room ia said buildiflg reached by a Stfeet door to *hich he has the only key, and, after first payiUg rent, remains in exclusive possession of the room, the stairWay leading to it, stad the street door landiftg, for twelve years without paying rent, during which tiiHe the annual tax bills for the Whole premises are generally left in his room and are sent by him to the managing owner who pays them, the occupant acquires title under the statnte of limitations to the room and to so much of the structure as rests on the soil to which he has acquired title. Iredale v. Loudon (Can.), 12-863. b. Property subject to public use. Railroad Hght of T«rajr. — Whether in any case a railroad company can be deprived of its right of Way by adverse possession, quaere. Roberts v. Sioux City, eti., E. Co. (Neb.), 10-992. The use for agricultural purposes, such as the grazing and cultivation by adjoin- ing landowners of otherwise unused and unfenced parts of the right of way of a railroad company, is not inconsistent with or adverse to the enjoyment 6f an easement. Roberts v. Sioux City, etc., R. Co. (Neb.), 10-992. The general public has the same interest in the preservation and maintenance of rail- roads as it has in the maintenance of other highways, and the title to a part of the railroad's right of way, while ihe road is being operated as a common carrier, cannot be divested by adverse possession. McLucas V. St. Joseph, etc., E. Co. (Neb.), 2-71.5. The United States Supreme Court has decided that a congressional grant of a right of way for the construction of a railroad is on an implied condition which is inconsist- ent with the acquisition of any part thereof by a private individual or corporation. McLucas r. St. Joseph, etc., R. Co. (Neb.), 2-715. , . . The right of way of the Gfrand Island Railway Company having been acquired by grant froW the general government for the construction of a railroad, the statute of limitations is not a defens6 tp an action tly the said company to recover possession of a strip of land within such right of way. McLucas r. St. Joseph, etc., K. Co. (N^!i.), 2-715. c. Public lands. One claiming title to land by adverse pos- session for a period of ten years as agamst all persons, but recognizing the superior title of the United States government, and seeking in good faith to acquire that title, may assert such adverse possession as against any person claiming to be the owner under a prior grant. Boe v. Antold (Ore.), 20-533. 2. Intent of Ooodpant. Possession by tl4uatte)r. — The good faith of the occupant is to be considered on the question of adverse possession. The facts that the improvements made by the Occupant were made at ;i time when he was a mere " Squatter," that a change in the deed was made, that the deed was not recorded, that no taxes were paid, and that only a small part of the tract was cleared and improved in twelve years, all bear strongly upon the good faith of the clafm of adverse possession. Hunter v. Wething- ton (Mo.), 12-S29. 3. CtAIM OB COLOB OF TITI.E. Color of title defined. — Color of title is that which in appearance is title, but Which in reality is no title at all. Knight 1). Grim (Va.), 19-400. Becord in condemnation proceeding Or color of title. — The record of a con- demnation proceeding In which a final order has been entered is admissible in evidence to show color of title, though it may be insufficient to show a good title. Knight v. Grim (Va.), 1^400. Color of title is not afforded by the record of condemnation proceedings prior to tte final order confirming the report of the com- missioners. Knight V. Grim (Va.), 19-400. peed by administrator. — A deed by an administrator conveying land of the deced- ent pursuant to a void order of sale , is nevertheless sufficient to set the statute of limitations running in favor of the grantees against the heirs of the decedent from the date of the delivery of the deed. Millican v. McNeill (Tex.), 20-74. Identification of land described in deed. — A deed describing land conveyed by the name of the tract is admissible in evi- dence to show color of title in the defend- ant in ejectment, where there is evidence that there was such a tract capable of definite location. Cadwalader v. Price (Md.), 19-547. 4. Notice op Adtebse Claim. The occupancy, by an individual, of parts of the right of way of a railroad company obtained by condemnation proceedings, wiih the elevators, granaries, coal sheds, and similar structures, used in carrying on his business, and by the company as a common carrier, for convenience in handling his ship- ments, will not be treated as adverse or under claim of title, unless actual notice of such claim is brought home to the company, or his conduct is such as will as a mattei of law constitute such notice; and in the absence of such notice or conduct, the erec- tion and maintenance of such buildings without an express agreement therefor will be regarded as being with the permission, consent, or license of the company, and sufc- ject to its rights to resume the possession of the ground whenever necessity requires its use for railroad purposes. Roberts Vt Sioux City, etc., R. Co. (Neb.), 10-992. 5. Hostility op Posses.sion. a- Possession consistent with rights of others. Possession under deed from life ten- ant. —The possession of a purchaser from a life tenant ia not adverse to the remainder- ADVERTISEMENTS. 259 man until the termihation of the life estate, and the statvite of limitations does not begin to run against the remainderman until that time. Porter i\ Osman (Mich.), 3-687. A conveyance of a decedent's land made under a void order of sale by an administra- tor who has an undivided life interest in the land conveyed, as to which the deed operates by way of estoppel, does not start the statute of limitations running against the heirs of the decedent until the death of the administrator. Millican v. McNeill (Tex.), 20-74. Possession nnder deed from tenant by curtesy. — One who holds possession of land by deed from the tenant by curtesy can acquire no title by adverse possession dur- ing the life of the grantor, as the statute of limitations does not begin to run against the heirs of the deceased wife until the death of the husband. Wilson v. Froat (Mo.), 2-557. b. Possession by grantor after conveyance. Possession by grantor. — Where a grantor remains in possession after convey- ing his Interest in the land, his possession is subservient to the grantee, and a clear, positive, and continuous disclaimer and dis- avowal of such relation, and the assertion of an adverse right to the knowledge of the grantee, are indispensable to change the character of the grantor's possession and to render it adverse to the grantee. Schaubuch V. Dillemuth (Va.), 15-825. Extending Possession to Fixed Boundaries. Possession by mistake. — The possession of one claiming to own land to a fixed boun- dary is adverse to the adjoining proprietor, though the occupant at the time believed that the boundary fixed was the true boun- dary line. Krause v. Nolte (111.), 3-1061. When it appears in an action of ejectment that the owner of a tract of land, after con- veying fifty acres thereof, placed a fence on wilat he supposed to be the true boundary line, in the belief that the tract west of the fence contained the grailtee's fifty acres, whereas it contained only thirty-three acres, the grantor's possession of the seventeen acres east of the fence is not adverse, unless he intended to claim such land as his own even though the fence was not on the true boundary line. Schaubuch v. Dillemuth (Va.), 15-825. In such a case the defendant is not preju- diced by evidence intro'duced by the plaintiff to the efi'ect that the southern and western boundaries of the plaintiff's land would he exactly the same whether it contained fifty or billy thirty-three acres. Schaubuch v. Dillemuth (Va.), 15-825. In such a case verbal admissions of the defendant tending to show that if there was not fifty acres in the tract AS^est of the fence, he recognized the right of those claiming fiflder his grantfee to have the boundary line so located that such tract would contain that quantity of land, tend to throw light upon the defendant's intention or motive in occupying tlie land in controversy, and are therefore admissible. Schaubuch v. Dille- muth (Va.), 15-82S. e. Weight and sufficiency of evidence. Evidence examined and held sufficient to sustain a finding of open, notorious, exclu- sive, and adverse possesion of land under a claim of ownership. Ater r. Smith ( 111. ) , 19-105. Evidence examined and held sufficient to show adverse possession of land. Cadwal- ader v. Price (Md.), 19-547. / 6. Tacking Possession. Where one enters into possession of a part of a tract of land under color of title duly recorded, and conveys the land to subsequent grantees who enter but fail to record their dfeed, the latter may tack their possession to that under the former duly recorded deed and acquire a good prescriptive title at the expiration of the proper period. Roberson V. Downing Co. (Ga.), 1-757. 7. Claim to Part of Tract. When adverse possession is claimed of a part only of the lands sued for, the proper practice is for a survey to be made under a warrant issued by the court. Cadwalader V. Price (Md.), 19-547. 8. Abandonment of Title. One who has acquired absolute title to land by adverse possession for the statutory period does not impair his title by there- after paying rent to the owner of the title. Martin v. Martin (Neb.), 14-511. ADVERTISEMENTS. See Newspapers. Advertising lotteries, see LOTTERIES. Advertising obscene matter, see Obscenity. Bill boards as violation of building restric- tion, see Deeds, 3 c. Calling for bids for public work, see Munici- pal Corporations, 7 d. Enjoining designation of official newspaper, see Injunctions, 2 d. Evidence of advertising by physician as affecting professional standing, see Libel and Slander, 4 f (2), Libelous advertisements, see Libel and Slander, 2 a. Power of municipality to exclude advertis- ing trucks from Streets, sfee Municipal Corporations, 5 f (2). Power of municipality to regulate distribu- tion of handbills, see Municipal Cor- porations, 5 f (2). Printed advertisement of auction sale as memorandum required by statute of frauds, see Frauds, Statute of, 3 e (3). Prohibiting or regulating crying of wares on streets, see Hawkers and Ped- dlers, 2, 260 Aim. CAS. DIGEST, VOLS. 1-20. Publication of photograph in advertise- ments, see Pbivact, Right of. Eight of landlord to post advertisements on premises, see Landlobd and Tenant, 5 b. Sale of land under mortgage or deed of trust, see Mobtqaqes and Deeds of Tbust, 14 e. Use of flag for advertising purposes, see Constitutional Law, 9 b 10. Use of state arms or seal for advertising, see Constitutional Law, 8. Mnnlcipal regnlation of billboards. — Under the Illinois City and Village Act, a municipality has ample power to regulate the construction and use of billboards. Chi- cago V. Gunning System (111.), 2-892. The fact that billboards are placed on pri- vate property and not upon public streets will not protect those owning or using them against a reasonable regulation thereof by the municipality. Chicago v. Gunning Sys- tem (111.), 2-892. A municipal ordinance placing such extreme restrictions upon the erection and maintenance of billboards and imposing such an excessive license tax as to be pro- hibitive rather than regulative is unreason- able and void. Chicago v. Gunning System (111.), 2-892. A city ordinance requiring that signs or billboards shall be constructed not less than ten feet from the street line is a regulation not reasonably necessary for the public safety and cannot be justified as an exercise of the police power. Passaic v. Paterson Bill Post- ing, etc., Co. (N. J.), 5-995. ADVICE. Advising disobedience of mandate as con- tempt of court, see Contempt, 1 e. ADVICE OF COUNSEI.. Defense to action for malicious prosecution, see Malicious Pbosecution, 2 c. Ground for equitable relief from judgment at law, see Judgments, 13. AEROLITE. Ownership of aerolite, see Pbopebty. AFFIDAVITS. 1. Who May Make. 2. Who Mat Take. 3. Sufficienct. Affidavit on motion for new trial, see New Tbial, 3 0. Affidavit on application for change of venue in crimnial cases, see Change of Venue, 2 f. Charging crime on information and belief, see Crimpjal Law, 4, Evidence in extradition proceedings, see Ex- tradition, 4. Impeachment of verdict by affidavit of jurors, see JUBT, 7; Tblal, 8 I. Institution of proceeding of affidavit, see Contempt, 3 a. Requirements of affidavit for attachment, see Attachment, 6 b. Search warrant on affidavit made on infor- mation and belief, see Seabches and Seizures. Sufficiency of affidavit to prove publication of summons, see Summons and Pbo- cess, 2. Testimony in form of affidavit as ground for refusing continuance on account of absence of witness, see Cbiminal Law, 6 d (2). Verification of informations, see Indict- ments and Informations, 3. 1. Who May Make. Agent or attorney. — Where the statute requires an oath to be made by a party to a proceeding, an affidavit made by the party's agent or attorney is not sufficient. Martin V. Martin & Bowne Co. (D. C), 7-47. 2. Who May Take. Foreign notary. — Under the statute of 1899, an affidavit in forma pauperis before a foreign notary with his seal attached is receivable in the courts of Georgia and suf- ficient to prevent a dismissal of a bill of ex- ceptions for failure to pay costs. Simpson V. Wicker (Ga.), 1-542. Notary afterirards employed as at- torney. — The Michigan statute making it unlawful for notaries public who are also attorneys to administer oaths in causes in which they are engaged professionally, does not invalidate a claim against a city for damages for personal injuries which is sworn to before a notary who subsequently brings a suit for the injuries as attorney for the claimant. Allen v. West Bay City (Mich), 6-35. 3. Sufficiency. Omission of venue or seal. — In the absence of a statute to the contrary, an affidavit is not rendered fatally defective by the fact that the venue is omitted, or by the fact that no notarial seal is attached to the jurat. Meldrum v. United States (U. S.), 10-324. Reference to attached instrument. — An affidavit may be made as full and com- plete by reference to an attached instrument as if the matters stated in such instrument were set out in the affidavit itself. Aiismus 17. People (Colo.), 19^91. AFFIMITT. As affecting competency of jurors, see JuEY, 5 d. Relationship to parties as disqualifying judge, see Judges, 4 b (3), AFFIRMANCE — AGENCY. 261 AFFIRMANCE. See Appeal and Ebbob. Affirmance of interlocutory decree as res judicata, see Jxtogments, 6 c. AFFREIGHTMENT. Actions for breach of contract of, see Cab- BIEBS, 4 j (2). AFTER-DISCOVERED EVIDENCE. Ground for new trial, see New Tbial, 2. AGE. Admissions as to age, see Evidence, 10 d. Attainment of majority, see Infants, 1. Carnal knowledge of girl under age of con- sent, see Rape, 1 d. Census reports to prove age, see Census. Estoppel to deny infancy, see Infants, 3 c. Family records to prove age, see Rape, 2 d (2). Marriage of person under age of consent, see Mabbiage, 1 b. Opinion evidence to prove age, see Rape, 2 d (2). Proof by declarations, see Evidence, 10 a. Sufficiency of evidence to show age of pros- ecutrix in rape case, see Rape, 2d (3). AGENCY. 1. Cbeation and Incidents of Rela- tion, 262. a. The contract in general, 262. b. Termination of agency, 262. c. Evidence, 262. d. Province of court and jury, 262. 2. Rights, Duties, and Liabilities Intee Se, 262. 3. Rights, Duties, and Liabilities as TO Third Pebsons, 262. a. Authority of agent, 262. (1) In general, 262. (2) In particular transactions, 263. (3) Delegation of authority, 263. b. Evidence of authority, 263. (1) Presumptions and burden of proof, 263. (2) Admissibility of evidence, 264. (3) Weight and sufficiency of evidence, 264. c. Unauthorized or wrongful acts of agent, 264. d. Liability of agent, 264. e. Ratification, 265. f. Notice to agent as notice to prin- cipal, 265. g. Undisclosed agency, 265. (1) Rights of undisclosed prin- cipal, 265. (2) Liabilities of undisclosed principal, 266. (3) Rights of agent of undis- closed principal, 266. See Beokebs; Factors. Admissions by agents, see Evidence, 10 d (3). Affidavit by agent for principal, see Affi- davits, 1. Agency coupled with interest, see Brokers, 1 b. Agents of banks, see Banks and Banking, 3. Alteration of instrument by agent, see Alteration of Insteuments, 1. Appropriation of money by agent as con- version, see Trover and Conversion, 1. Authority of master of vessel to bind owner, see Ships and Shipping, 7. Child as implied agent of parent, see Parent AND Child, 2. Confidential relationship of principal and agent, see Feaud and Deceit, 4. Consent by agent of property owner to granting of liquor license, see Intox- icating Liquors, 4 f. Criminal liability of agent, see Food, 6 a; Intoxicating Liquors, 5 i. Declarations by agent, see Evidence, 10 c. Delivery of deed to agent of party, see Deeds, 1 c ( 2 ) ; Escrow. Delivery of gift to agent of donor, see Gifts, 1 b. Effect of payment to unauthorized agent, see Bills and Notes, 10. Embezzlement by agent, see Embezzle- ment, 2. Employment agencies, regulation of, see Constitutional Law, 5 c. Employment of agent to purchase or sell as within statute of frauds, see Frauds, Statute of, 10. Execution of deed by agent, see Deeds, 1 b (1). Gift by principal to agent, see Gifts, 1 a. Grantor as agent of grantee to accept de- livery of deed, see Deeds, 1 c ( 2 ) . Implied agencies, see Husband and Wife; Parent and Child, 2. Insurance agents, see Insurance, 2. Interference with contract of agent, see In- terference WITH Contract Rela- tions, 4. Issuance of tickets by connecting carriers, see Carriers, 6 c (5). Larceny committed through agent, see Larcent, 3 b. Liability of labor union for acts of its agents, see Labor Combinations. Liability of owner of automobile for acts of chauffeur, see Motor Vehicles. Libel or slander by agent, see Libel and Slandeb, 4 c. Liability of corporation for crimes of agents, see CORPOBATIONS, 5 c. Partner as agent of co-partner, see Pabtnbr- ship, 5. Payment to agent of mortgagee as satisfac- tion of mortgage, see Mortgages and Deeds op Trust, 10 a. Promoters as agents of corporation, see Cor- porations, 6 a. Purchase by agent with principal's money as creating implied trust, see Trusts and Teustees, 1 b (2). Purchasing liquor as agent for another, see Intoxicating Liquors, 5 h. 262 ANN. CAS. DIGEST, VOLS. 1-20. Ratification of agent's Eicts, see Fbauds, Statute of, 3 c (2). Reformation of contract made by agent, see Refoemation of Instbumbnts. Eight pf agent to sue for ponversion of " owner's property, see Teover anp Con- version, 3. Eight of undisclosed principal to sue on written contract, see Fkatjds, Statute or, 1 b. Signature by agent of memorandum required by statute of frauds, see Fbapds, Statute of, 3 c (2). Subrogation of agent to rights of principal, see SUBBOGATION, 1 b- Taxation of personality in hands of agent, see Taxation, 3 b. Verbal employment of real estate agents, see Fbauds, Statute of, 4 c. Wife as agent of husband, see Husband and Wife. 1. Ceeation and Incidents of Relation. a. The contract in general. Agency or joint adyenture. :r- A con- tract between a real Estate agent and a landowner, that if the agent finds a purchaser for the land he shall have as compensation for his services the amount the land sells for above a certain price, is an agency contract, and not a joint adventure. Manker v. Tough (Kan.), 17-208. Acting for both parties. -r- Where the fact that an agent is acting for both parties is disclosed to the prinjeipals, the agency cannot be questioned. Aiple-Hemmelman Eeal Estate Co. v. Spfilbrink (Mo.), 14^52. b. Termination of agency. Duration. — A contract of an agency to sell two tracts of land construed and held to create an agency for a period of sixty days as to each tract. Beadle v. Sage Land, etc., Co. (Mich.), 6-53. Agency not conpled ivitli interest — terniinaticn of agency. — The revocation of an agency uncoupled with an interest con- sidered. I?owan V. Hull (W. Va.), 2-884. Termination by operatipn of laiie. — To terminate a contract of agency by opera- tion of law, there must be either a change in the law which \5fill make the required acts illegal, a change in the subject-matter of the contract sjjch as the destruction of the prop- erty by fire, or a change in the condition of the parties, as by death or insanity. Jlart- ford V. McGillieuddy (Me.), 12-1083. partial cancellation of poin-er of at- torney. — Where a power of attorney covers several tracts of land, and a judgment order- ing its cancellation and removal is rendered in a proceeding to remove a cloud from the title to one of the tracts, the power is merely canceled in so far as it affects the land referred to in the judgment, and it remains valid as between tlie parties and as to other lands affected thereby. Priddy t\ Boice (Mo.), 0-S74. c. Evidence. Declaration of agent. — Agency cannot be established' by the declaration of the sup- posed agent. Florida P*st Coast R. Co. D. Lassiter (Fla.), 19-192. Circnmstantial evidence. — An alleged agency need not be established by direct evi- dence, but it may be- established Ky Bircum- stances, such as the relation of the parties to each other and their conduct with refer- ence to the subject-matter of the contract. Lindquist v, Dick^pn (Mifln,), 8-1024. d. Province of court and jury. Where the evidence is conflicting as to the exjgteiice pf 9.?i agency, the question 'is for the determination of the jury. Neppach v. Oregon, etc., E. Co: (Oregon), 7-103ff. ' 2. Eights, Duties, anp Liabilities Intee Sb. Duty of agent to account to prin- cipal. — A person occupj'ing a confiflentj^l relation to another will be requirefl to ac- count to his principal for any gift, gratuity, or benefit received by him in violation of his duty, or any interest acquired adverse to his principal without a full disclosure, though it does not appear that the principal has' suf- fered any actual loss by fraud or otherwise. United States v. Carter (U. S.), 19-594. ~ accounting for money receiTe4 for illegal purposes. — A princip9,l who places money in the hands of an agent to he dis- bursed to others for an illegal purpose does not necessarily forfeit his right to such money, but may require the agent to ac- count to him for such of it as has not been expended or appropriated to the unlawful purpose. Ware v. Spinney (Kan.), 13-1181. Denial of princip^'s title. — While the general rule is that an agent who receives money for his principal is estopped to deny the title of the principal and must acount for the money to hini, this rule does not prevent the agent, when sued by his prin- cipal, from showing that he has been di- vested of the money by title paramount to that of the principal, or that he has paid the money over to one holding such a title. Moss Mercantile Co. v. First Nat. Bank (Oregon), .8-569. 3. Eights, Duties, and Liabilities as to Thied Pebsons. a. Authority of agent. (1) In general. Authority presumed from beneficial acts. — In a foreclosure suit brought by an assignee of a mortgage, where it is con- tended that the mortgage was not properly assigned because the authority of the agent who made the assignment is not shown, but it appears that the assignment was made for the benefit of the principal and that he has not questioned it, the agent's authority will be presumed until the contrary is made to appear. Stravhorn v. McCall (Ark.), 8-377i • Construction of written authority.— Letters of inistriictioh to an attorney or agent are not given the rigid construction ordinarily given to formal powers of attor- ney, but are liberally construed against the AGENCY. 263 writer when the attorney or agent has acted in good faith. American Bofiding Co. v. Ensey (Md.), 11-883. Notice implied from written author- ity. — Where the act of an agent is one which reqpirea authority in writing, those dealing with him are charged with notice of that fact and of any limitation or restric- tion on tlie authority of the agent contained in such written authority, and a contract beyond the scope of such authority, as thus limited or restricted, is not binding on the principal. Frahm t). -Metcalf (Neb.), 13-312. Acts in presence of principal. — An ^ct done by an agent at the instance of and in the presence of his principal is in law the act of the principal; and if, at the in- stance and in the presence of a member of a partnership, the name of the partnership is signed by another pej'sou tp a promisBOry note under seal, the note thus executed has the same legal effect as if such member had performed the physical act of signing. Mer- chants, etc.. Bank V. Johnston (&a.), 14-546. (2) In particular transactions. To make contracts. — Where the owner of goods held in storage directed the storage company to ship them to him by railroad, and an officer of the storage company sent the box containing the goods by a cartman to the railroad station accompanied by a oonjpJete shipping order, the agent of the railroad company had no right to assume that the cartman had the authority to alter or modify the terms of the order, and a presentation of the order signed by the stor- age company was a notice to the railroad company that the cartman had no authority to enter into a contract to exempt the rail- road company from liability. Eussell v. Erie E. Co. (N. J.), 1-672. Iiimiting liability of carrier,^ A dray- man employed to deliver goods to a carrier for shipment has no authority, merely by virtue of such employment, to bind the ship- per by a contract limiting the carrier's lia- bility. Benson v. Oregon Short Line E. Co. (Utah), 19-803. To exchange property. — In the absence of any trade usage to the contrary, the power given to an agent to sell does not carry with it or imply the power to barter or exchange. Kearns v. Nickse (Conn.), 10-420. To receive payiqtent. — Authority to an agent to sell goods does not of itself and alone apparently give to the agent authority to collect pay for tlje goods thus sold. Scar- ritt-Comstbck Furniture Co. v. Hudspeth (Okla.), 14-857. Possession of evidence o£ debt. — Ppssession of a note or other evidence of debt is not essential to t]ie proof of an ap- parent or ostensible authority to receive pay- ment of the principal of the debt as agent of tte creditor. Such authority may be in- ferred from facts and circumstances other thaii the possession of the evidence of debt, though great weight is to be given to the fact that the alleg^d agent does not ha^e siich possession at the time of receiving the payment. Campbell v. Gowans (Utah), 19-660. ~ medinm of payment. — In the absence of a custop to the contrary, an agent who has authority merely to collect cannot re- ceive a check or draft or anything except money in payment. Griffin v. Erskine (Iowa), 9-1193. In view of the universal custom of using drafts and checks as a means of payment, an agent appointed to make a collection may re- ceive a drafl- or check as conditional satis- faction of the claim placed in his hands, unless he has instructions to the contrary, whenever he has good reason to believe that the paper received will be paid upon presen- tation. Griffin v. Erskine (Iowa), 9-1193. To extend time of payment. — The land agent of a railroad company, who transacts the company's entire business in relation to tiie acquisition, sale, and disposition of its lands, who is held out by the company as its authorized representative in that respect, and whose authority and acts have never been disavowed or disapproved by his prin- cipal, may bind his principal by a valid agreement extending the time of payment allowed the purchaser in a contract for the sale of lands by the company. Neppach v. Oregon, etc.,, R. Co. (Oregon), 7-1035. To compromise disputes. — Authority to an agent to sell goods does not carry with it authority to compromise differences which may arise between his principal and those to whom he sells goods, by reason of the goods not coming up to the standard repre- sented; and where a purchaser relies upon a compromise with such an agent, the burden is on him to establish the agent's authority (if such fact be in dispute) to effect com- promise in such case. Scarritt-Comstock Furniture Co. v. Hudspeth (Okla.), 14-857. (3) Delegation of authority. To secure medical attendance for servant. — An agent authorized by the mas- ter to secure medical attendance for a Ser- vant cannot delegate to the physician em- ployed by him authority to employ' other physicians as assistants at the master's ex- pense. Bond V. Hurd (Mont.), 3-5Q6. b. Evidence of authority. (1) Presumptions and burden of proof. To receive payinent. — Where the de- fendant alleges that the plaintiff's district agent accepted certain notes in full payment of an account, and sucn agent, when called by the defendant to establish his authoritj', denies not only that he received such notes in payment, but that he had authority to receive payment, and it appears that the purchaser had notice from the invoices of the goods that payments must be made to the plaintiff's treasurer, the evidence is insuf- ficient to establish the authority of such agent to accept the notes in full payment, the burden of proof having been on the de- fendant. American Car, etc., Co. v. Alex- andria Water Co. (Pa.), 15-641. Where a traveling salesman sells goods by 264 ANN. CAS. DIGEST, VOLS. 1-20. sample or from catalogues and price lists, sending the orders to liis principal to be filled, the presumption is that such agent has not the authority to collect for such goods; and where a purchaser, subsequent to the date of ordering goods through such an agent, makes payment thereon to him, he does so at his peril; and in litigation for the value of the goods, the authority of the agent to make such collections being denied by his principal, the burden is on the pur- chaser to prove that the agent had such authority; and where the court instructs that such purchaser should be given credit for all payments made to such agent, unless he had notice or knowledge of the fact that such agent had no authority to collect for goods so sold, and judgment is rendered charging such payments to the seller, it will be presumed that the erroneous instructions operated to the prejudice of the seller, and a new trial should ~he granted by reason thereof. Scarritt-Comstock Furniture Co. v. Hudspeth (Okla.), 14-857. (2) Admissibility of evidence. Acta and declarations of agent. — An agent's authority to bind the principal can- not be shown by the agent's acts or declara- tions. Daniel v. Atlantic Coast Line E. Co. (N. Car.), 1-718. Declarations made by an agent after a transaction to which they relate are not binding on his principal, and are not ad- missible in evidence against the principal; and this is so though the agency is that of a husband for his wife. Hartman v. Thomp- son (Md.), 10-92. (3) Weight and sufficiency of evidence. Evidence examined and held sufficient to show that a loan broker had apparent au- thority to represent the lender in negotiating a loan and in receiving payments of interest from the borrower. Campbell v. Gowans (Utah), 19-660. ProTlmee of conrt and jnry. — Where an agent's appointment and authority, real or apparent, are admitted or are not in con- troversy, the court may declare whether they empowered the agent to perform the particular act in question, but where there is a dispute as to the appointment or as to the authority conferred, the fact of such ap- pointment or authority must be found by the jury. Neppach v. Oregon, etc., R. Co. (Oregon), 7-1035. c. Unauthorized or wrongful acts of agent. Unanthorized contracts.— Where money is borrowed on behalf of a principal by an agent, the lender believing that the agent has authority, though in fact his act has not been authorized or ratified, the principal cannot be sued at law; but in equity, to the extent to which the money borrowed has in fact been applied in paying obligations of the princi- pal, the lender is entitled to stand in the same position as if the money had originally been borrowed by the principal. Bannatyne r. Maclver (Eng.), 3-1143. False imprisonment. — An agent having charge of a principal's property has no im- plied authority to cause the arrest of one whom he believes to have stolen the property, and in the absence of proof of authority or ratification by the principal, the latter is not liable in damages to the person arrested. Daniel v. Atlantic Coast Line K. Co. (N. Car.), 1-718. A watchman employed by a corporation to guard its property has no implied authority to arrest a person, on a charge of attempted robbery, on » public street some distance from the corporation's premises; and there- fore, in the absence of evidence of express au- thority, the corporation cannot be held Ha-' ble for the action of the watchman in maJcing an arrest and prosecuting the person arrested. Thomas v. Canadian Pacific R. Co. (Ont.), 8-324. Malicious proseention. — A corporation cannot be held liable for the act of its ser- vant in instituting a malicious prosecution, unless the servant acted with its authority, express or implied. Thomas v. Canadian Pa- cific R. Co. (Ont.), 8-324. In an action against a corporation for a' malicious prosecution instituted by one of its servants, where it is not shown that the servant had any express authority to insti- tute the prosecution, the burden is upon the plaintiff to show that the servant, from the nature of his duties, had implied authority to prosecute the plaintiff. Thomas v. Cana- dian Pacific R. Co. (Ont.), 8-324. An action of malicious prosecution cannot be maintained against a corporation for the acts of one of its servants, who is also a con- stable, in making an arrest and instituting a prosecution in his capacity as a public officer, where there is no evidence to show that the corporation exercised any control over the servant's actions as constable; and this is so though the servant was appointed to office by the public authorities at the request of the corporation. Thomas v. Canadian Pa- cific R. Co. (Ont.), 8-324. d. Liability of agent. Unanthorized contracts. — Under the North Dakota statutes one who without au- thority executes a written contract in the name of his principal without believing that he has authority so to do is responsible as principal to third persons therefor, and an action is maintainable against him upon the contract as principal and for its breach. Kennedy v. Stonehouse (N. Dak.), 3-217. Facts held to show an unauthorized con- tract for the sale of land by an agent in the name of the principal and to give the con- tracting party a right of action against the agent as principal for a breach of the con- tract. Kennedy v. Stonehouse (N. Dak.), 3-217. Damages recoverable under the North Da- kota statutes from an agent by one injured by breach of the agent's warranty of author- ity. Kennedy v. Stonehouse (N. Dak.), 3-217. Prior action against principal as bar. — A creditor who is free to sue either prin- AGENCY. 265 cipal or agent, and who elects to proceed against the principal, with full and correct knowledge both of the facts and law govern- ing his case, cannot, after prosecuting his suit against the principal to judgment, bring another suit against the agent upon the same demand. Murphy v. Hutchinson (Miss.), 17-611. Warranty by agent. — An agent making a sale may personally warrant the thing sold, and in such a case he is personally liable on the warranty, though he is acting for a known principal, and though the principal gives a, similar warranty. Dahlstrom v. Gemunder (N. Y.), 19-771. The liability of an agent on his personal warranty of a thing sold by him for his prin- cipal is discharged by the satisfaction of a judgment recovered by the purchaser against the principal who also warranted tlie thing sold. Dahlstrom v. Gemunder (N. Y.), 19-771. e. Ratification. Acceptance of benefits. — In order to constitute a ratification there must be an ac- ceptance of the results of the act with an intent to ratify and with full knowledge of all the material circumstances. Eussell v. ErieR. Co. (N. Y.), 1-672. A railroad company which accepts a deed of land purchased by an agent cannot dis- pute the latter's authority to pay an addi- tional consideration to that recited in the deed. Windsor v. St. Paul, etc., R. Co. (Wash.), 3-62. Subsequent authorization. — Where an attorney having a claim for collection exe- cutes a bond and seizes goods of the debtor, and later, when the validity of the bond is questioned, writes his clients and receives from them a letter dated back to a time prior to the execution of the bond, authorizing the attorney to execute " any bond that may be necessary to get an order to seize and hold the stock of goods," such letter confers au- thority on the attorney to execute a new bond and procure a bonding company to sign it as surety, notwithstanding the fact that the goods have already been seized and the letter refers to such bond as "may be necessary to get an order," etc., the second bond being necessary to prevent a seizure and to keep it in force. American Bonding Co. v. Ensey (Md.), 11-883. False representation of agency. — Where a person in obtaining a conveyance of land represents that he is the agent of another, but makes the purchase in his own name, and with his own money, and with the intention of acquiring the property for his own use and benefit, the named i)rincipal is not entitled to ratify the purchase and thereby acquire the benefit of the conveyance. Vir- ginia Poeohontas Coal Co. v. Lambert (Va.), 13-277. f. Notice to agent as notice to principal. A traveling salesman, who merely solicits orders for goods which are not in his posses- sion, has no implied authority to receive pay- ment for goods sold by him; and there- fore, in the absence of express authority to make the collection, notice to him in collect- ing an account from a dissolved partnership that the partnership debts have been assumed by one partner does not of itself constitute notice of that fact to his principal. Moon Brothers Carriage Co. v. Devenish (Wash.), 7-649. Averment of knowledge by principal. — In an action of tort, if, as to the drfend- ant, the relation of principal and agent is such that actual knowledge by the agent could be imputed by law to the principal, such relation should be set out or knowledge should be alleged in the principal and no mention made of the agent, and an allegation as to the knowledge of " the defendant, to wit, the defendant's agent," is not sufficient. Davis V. Smith (R. I.), 3-832. g. Undisclosed agency. ( 1 ) Rights of undisclosed principal. Contract involving personal trust. — An undisclosed principal cannot compel the performance or recover damages for the breach of an executory contract made by his agent in the latter's own name, where such contract involves elements of personal trust and confidence as a consideration moving from the agent to the other party to the con- tract. Birmingham Matinee Club v. McCarty (Ala.), 15-237. The above rule is applicable to an action by an undisclosed principal to recover dam- ages for the breach of an executory contract, made in the name of his agent, for the sale of the principal's land, where it is stipulated in the contract that the ostensible seller shall by warranty deed grant an unencumbered title. Birmingham Matinee Club v. McCarty (Ala.), 15-237. Where in such an action by an undisclosed principal it appears that he has received from his agent a part payment made by the de- fendant, judgment may, in response to a plea of recoupment, be rendered for the defendant for the amount paid by him. Birmingham Matinee Club v. McCarty (Ala.), 15-237. Contract for benefit of several prin- cipals. — An undisclosed principal has no right to sue on a contract made by an agent for the benefit of that principal and other un- disclosed principals, where the contract is not severable but consists of orders given by the several principals and " lumped " together by the agent in making the contract. H. Mid- wood's Sons Co. V. Alaska-Portland Packers' Assoc. (R. I.), 13-954. A contract for the purchase of goods entered into by an agent for undisclosed prin- cipals, and consisting of orders given by the principals and " lumped " together by the agent in making the contract, does not become severable by the fact that the seller, knowing the goods are purchased for different parties located in different cities, agrees, for the con- venience of all parties concerned, to ship separate carload lots to the customers, and draw direct on the customers for the ship- 266 ANN. CAS. DIGEST, VOLS. 1-20. t!-ents. H. Midwood's Sons Co. v. Alaska- Portland Packers' Assoc. (R. I.), 13-954. Equities of third persons. — Where an undisclosed principal sues on a contract made by his agent in the latter's own name with the defendant, who had no knowledge of an agency but supposed that the agent dealt for himself, the suit is subject to any defense or set-off acquired by the defendant against the agent before he had notice of the principal's rights; but if the defendant knew or had rea- son to believe that he was dealing with one who was the agent for some undisclosed thifd person, he cannot set off a claim against the agent. Frazier v. Poindextet (Afk.), 8-552. Where a person has accepted from an agent notes for collection under an agreement to pay the money to a third person when col- lected, he has no right to apply the money to a debt due him by the agent and to refuse to pay it to the third person who is the agent's principal, even though when he made the agreement he had no information of the agency and believed that the notes belonged to the agent. Frazier r. Poindexter (Ark.), 8-552. (2) Liabilities of undisclosed principal. Contract under seal. — The rule thaf an undisclosed principal shall stand liable for the contract of his agent does not apply when the contract is under seal. Van Dyke v. Van Dyke (Ga.), 3-978. If one lends money to another on his own credit and takes therefor a promissory note under seal, payable to the lender's order, the lender cannot afterwards disregard such note and render a third person liable for the money loaned on the ground that such per- son was the principal of the borrower, which fact was unknown to the lender at the time when the loan was made. Van Dyke v. Van Dyke (Ga,), 3-978. Negotiable instruments. — A person whose name does not appear on a promissory note cannot be charged as an indorser thereof by parol proof that the nominal payee in ac- cepting and indorsing it was acting as his authorized agent, where nothing on the face of the note suggests the existence of an agency. New York Life Ins. Co. v. Martin- da,le (Kan.), 12-677. £ffect of judgment against agent. — Where a person contracts with another who is in fact the agent of an imdisclosed prin- cipal, and after learning all the facts he brings an action on the contract and recovers a judgment against the agent, the judgment is a bar to a subsequent action against the principal; but an unsatisfied judgment against the agent is not a bar to a subse- quent action against an undisclosed principal, if the plaintiff was ignorant of the facts as to tlie agency when he prosecuted his action against the agent. Lindquist v. Dickson (Minn.), 8-1024. (3) Rights of agent of undisclosed principal. Right to sue in ovr-n. name. — Where au agent acting through a suhagent makes a valid contract in his own name with a third persdn without disclosing his pfiiicipal, the contract is binding ofl the agent iii his indi- vidual capacity, ahd he may maintain an action in his own name for a breach of the contract; and the Arkansas statute makes no change in the rule. Shelby v. BurfoW ( Atk. ) ,- 6-554. A contract made by an agent in his own name through a subagent is not rendered in- valid by the facts that the name of the prin- cipal is not disclosed and that the person contracted with believes that the agent is contracting for his own benefit. Shelby v. Burrow (Ark.), 6-554. AGGRAVATION. Damages for wrongful discharge of servant, see Masteb and Sebvant, 1 e. Matters for consideration in imposing sen- tence, see CEiMrNAL Law, 7 b (6) (e). AGREED CASE. Snitmission confined to issues of law. — The New York statilte authbrizing the par- ties to a difference which might be the sub- ject of ah action to " agfee updn a case, con- taining a statement of the facts upon which the controversy depends," and to present a submission thereof to a court of record which would have jurisdiction of an action brought for the same cause, was not intended to em- bface issues where sLif disputed facts are involved, but is to be confined to causes de'- pending wholly on questions of law; and where a submitted controversy necSsSai'ily involves the duty of drawing inferences from inconclusive, equivocal, or evidentiary facta before a legal coHcItision can be fotfaed, the issue is one which muSt be presented and de- cided in an action. Marx v. Brogan (N. Y.), 11-145. Whefe the controversy submitted is whethei" a building proposed to be erected at a certain place in New York city is of such a chat- aetet that its erefltion will Violate a cove- nant designed to prevent the erection of a " tenement house," and the facts agreed on disclose the dimensions Of the proposed build- ing, its external appearance, its internal ar- rangements, the material of which it is com- posed, the estimated cost Of the whole, atd the fentals expected to be realized, the facts submitted are purely evidentiary in their nature, leaving the essential, decisive, and ul- timate fact to be decided by the court, and hence the court is without jurisdiction of the controversy. Marx v. Btogan (N. Y.), 11-145. AGREEMENTS. See Contbacts. Marriage agreement as consideration to sup- port ante-nuptial contract, see Husband and Wife, 2 a, (2). AGEICULTURE — ALIENS. 261 AGRICUIiTURE. Agricultural leases, see Landi/jrb and Ten- ant. Crops, see Crops. AID BONDS. Eailroad aid bonds issued by county, see Counties, 3. , AIDER. Defects in indictment aided by joinder in issue, see Ixdiotments axd Inpobma- TIOXS, 4. Defects in pleading aided by verdict or find- ingSj see Pleadikg, 11. Prescription as validating void marriage, see JIabbiaqe, 1 b. AIDERS AND ABETTORS. See AccESSoBiES and Other Participants in Crime. Participation in criminal homicide, see Homicide, 2. Prisoner assisting warden to punish fellow- prisoner as abettor, see Prisons. ALCOHOL. See Intoxicating Liquors. ALCOHOLISM. See Drunkenness and Intoxication. ALIAS. Use of alias in indictment, see Indictments and Informations, 4. ALIBI. Burden of proving alibi, see Criminal Law, 6 n (1). Materiality of exact date of crimp as defense of alibi, see Criminal Law, 6 q (1). Proof of alibi in prosecution for rape, see Rape, 2 e. ALIENATION. Devises in restraint of alienation, see Wills, 9 c. Fraudulent alienation, see Fraudulent Con- veyances. Transfer of homestead, see Hoiiestead, 4. ALIENATION OP AFFECTIONS. See Husband and Wirft, 6. ALIENISTS. See Evidence, 8 b (2). ALIENS. See Naturalization. Aiding invading army, see Treason. Right of administrator of alien to sue for death by wrongful act, see Death by Wboxgfcl Act, 6 d. Eight of alien to hold land as tenant by curtesy, see Curtesy, 2. Protection under copyright laws, see Copy- right, 3. Federal control. — That portion of the Act of Congress of Feb. 2, 1907, regulat- ing the immigration of aliens into the United States, which provides that " whosoever shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution, or for any other immoral pur- poses, any alien woman or girl, within three years after she shall have entered the United States, shall, in every such case, be deemed guilty of a felony," is unconstitutional, being an invasion of the police power reserved to the states under the constitution. While Congress has power to exclude aliens from the United States, to prescribe tlie terms and con- ditions on which they may come in, to estab- lish regulations for sending out of the coun- try sUch aliens as have enteted in violation of law, and to commit the enforcement of such conditions and regulations to executive officers, it has no power to control generally the dealings of our citizens with resident aliens. Keller v. United States (U. S.), 16-1066. On a criminal prosecution for violation of the statute above mentioned, Where the only offense charged or proved is that the de- fendants harbored in their house of prosti- tution an alien female, who was voluntarily leading the life of a prostitute, and who first entered sUch house about a year after her arrival in this country, having had no deal- ings with the defendants, and being entirely unknown to tliem prior to that time, the in- dicttUent should be quashed. Keller v. United States (U. S.), 16-1066. Right to hold realty. — Where land is granted to an alien, Without capacity to ac- quire land by purchase under the laws of the state, the state has the right to declare a forfeiture or escheat of the lands by pro- ceedings in the nature of office found, at all times prior to alienation of the property by the grantee and prior to the grantee's death; but such right of the state, if unexercised, is lost by the death of the grantee. Abrams v. State (Wash.), 13-527. Under the Washington constitution provid- ing that an alien who has not made any decla- ration of intention to become a citizen of the United States may acquire title to real estate by inheritance, real estate granted by deed to an a}len and not declared fprfeited during the lifetime of the grantee descends upon the 268 ANN. CAS. DIGEST, VOLS. 1-20. grantee's death to his alien heirs. Abrams v. State (Wash.), 13-527. Notwithstanding the Washington constitu- tion prohibiting " the ownership of lands by aliens other than those who in good faith have declared their intention to become citi- zens of the United States " and providing that " all conveyances of lands hereafter made to any alien directly or in trust for such alien shall be void," the grantor of land to an alien , grantee, by a fee simple deed given for a valuable consideration, is divested of any right, title, or interest in the land conveyed, and, in any event, becomes estopped to deny the title of the grantee by standing idle for thirteen years while the property increases in value, and the grantee retains possession and makes valuable improvements thereon. Abrams v. State (Wash.), 13-527. ALIMONY AND SUIT MONEY. 1. In Genebal, 268. 2. jubisdiction of coubt, 268. 3. Suit Money and Ammont Pendente Lite, 269. a. Allowance in general, 269. b. Allowance in action to annul marriage, 269. c. Allowance pending appeal, 269. d. Marriage as prerequisite, 269. 4. Pebmanent Alimony, 269. a. Nature, 269. b. Misconduct of wife as affecting allowance, 270. c. Allowance in action to annul marriage, 270. d. Mode of allowance, 270. e. Amount of allowance, 270. f. Lien of alimony, 270. g. Modification of allowance, 270. h. Enforcement of decree, 271. i. Foreign decree, 272. Effect of ante-nuptial conveyance by husband, see Husband and Wife, 2 b. Failure to pay alimony as contempt of court, see Contempt 1 f. Liability as affected by discharge in bank- ruptcy, see Bankruptcy, 9. Liability of husband for counsel fees in di- vorce suit by wife, see Husband and Wife. 1. In General. Basis of allowance — marital Tela> tlons. — Alimony is only cognizable as be- tween parties united by a marital relation that imposes upon the husband the legal duty to support the wife. Chapman v. Parsons (W. Va.), 19-^53. Statutory proTiglons exclusive. — The provisions of the Nebraska statute relative to alimony, its allowance, and the mode of its enforcement, are exclusive of all other ways and means. Cizek v. Cizek (Neb.), 4-464. English la-w. — The rules as to what is alimony and as to the practice which still guides^ the court in dealing with applications for alimony are the same as were laid down by, and which guided, the old ecclesiastical courts in considering applications for ali- mony. Leslie v. Leslie (Eng.), 13-750. Under the English Matrimonial Causes Act of 1884, a wife who has obtained a, decree for restitution of conjugal rights may, if the hus- band disobeys the decree, either apply for an alimentary provision and to have the same secured to her, or, if she elects to petition for a judicial separation, she may apply for ali- mony, and after she has obtained a decree, may ask for permanent alimony to be allotted to her; but it is not open to her, after she has elected to proceed for a judicial separa- tion and after she has obtained a decree in that suit, to ask for an order and for security. Leslie u. Leslie (Eng.), 13-750. Right of iirife confined in prison. — A wife sentenced for more than three years to prison, where she is supported at the ex- pense of the state, is not entitled to an allot- ment of alimony or to an order directing an expensive and harassing inquiry at the ex- pense of the husband with a view to the al- lotment of permanent alimony to her after her release. Leslie v. Leslie (Eng.), 13-750. Iiiabillty to claims of creditors. — An allowance for support, adjudged in a divorce action, does not constitute indebtedness to the party in whose favor the allowance is made which can be reached by creditors of that party; but payments in money required by the judgment in a divorce action to be made by one party to the other as the por- tion of that other upon a division of the property of the parties may be reached by the creditors of that other. Brenger v. Bren- ger (Wis.), 19-1136. Allowance in favor of husband. — A decree in a divorce suit by a husband against his wife directing her to pay him $25 a month for " future support and maintenance," or, at her option, the sum of $2,000, is a decree for alimony, and cannot be sustained as a division of the joint property of the parties, where such property does not exceed $2,000 in value. Brenger v. Brenger (Wis.), 19-1136. Independently of statutory authority there can be no allowance of alimony or in the na- ture of alimony made to a husband out of his divorced wife's estate or earnings. Bren- ger V. Brenger (Wis.), 19-1136. 2. JUBISDICTION OP COUBT. Jurisdiction purely statutory.— Juris- diction of the court in matters relating to divorce and alimony is given by the statute, and every power exercised by the court with reference thereto must look for its source in the statute or it does not exist. Cizek v. Cizek (Neb.), 5-464. Absentee defendant not personally served. — Where in an action for divorce the defendant is without the state and no per- sonal service upon him is had within the state, the court has no power after a judg- ment by default to enter a decree against him for alimony and counsel fees. Proctor V. Proctor (111.), 2-819. In an action for divorce against a non- resident defendant not personally served, the ALIMONY AND SUIT MONEY. 269 court cannot make a decree vesting in the plaintiff an interest in the real estate of the defendant situate without the state. Proctor u. Proctor (111.), 2-819. A judgment in personam for temporary ali- mony and attorney's fees cannot lawfully be rendered in a divorce suit brought against a nonresident husband, who is not served with process within the state, and does not appear in the case, but is only constructively served by publication. Hood r. Hood (Ga.), 14-359. Reconsideration of motion.— The court may, at a term subsequent to its refusal to award temporary alimony in an action to annul a marriage, grant a motion for a re- consideration of the application for alimony, and award alimony on an additional showing. Eicard i'. Ricard (Iowa), 20-1346. Snit to set aside divorce. — There is no jurisdiction to award alimony as between parties divorced from bed and board, as inci- dent to the pendency of an independent suit to set aside the decree of divorce for fraud, and before the decree is successfully assailed. Chapman v. Parsons (W. Va.), 19-453. 3. StriT Money and Alimony Pendente Lite. a. Allowance in general. Snit money. — When a petition is filed for divorce and alimony, or for alimony alone, the court may make such an order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case, whether she is plaintiff or defendant in the suit. Day v. Day (Kan.), 6-169. In an action for divorce brought by the wife, where it appears that the plaintiff is without means to prosecute her suit prop- erly, and that the defendant has means with which to pay, the court will allow the plain- tiff suit money and counsel fees. Day v. Day (Idaho), 10-260. Character of pending suit. — In no suit but one seeking a divorce of some character is there jurisdiction to award alimony pen- dente lite. Chapman v. Parsons (W. Va.), 19^53. b. Allowance in action to annul marriage. Under New York statute.— In an action brought by a wife against her husband to annul their marriage on the ground that the husband was insane when the marriage was contracted, the New York supreme court has no power to make an order on application of the wife directing the payment of counsel fees and alimony pendente lite by the defend- ant. Jones V. Brinsmade (N. Y.), 5-378. Counsel fees. — Even after the affirm- ance of a decree annulling a mariage, the ap- pellate court will, if it appears that the woman is entitled to counsel fees, grant a motion for the allowance of such fees to her counsel. Willits v. Willits (Neb.), 14^883. In such a case the court may also require the husband, if his circumstances warrant it, to pay reasonable suit money to enable the wife to make a defense, and to reimburse her for expenditures on behalf of the family dur- ing the existence of the marriage relation. Willits V. Willits (Neb.), 14-883. c. Allowance pending appeal. By trial court. — Under the Idaho stat- utes a district court retains jurisdiction in a divorce case after an appeal to allow costs, expenses, and attorney's fees in prosecuting the appeal. Roby v. Roby (Idaho), 3-50. By appellate court. — Under the Idaho constitution an appellate court may order the payment of attorney's fees or suit money on appeal in a divorce case. Roby V. Roby (Idaho), 3-50. An appellate court wherein a writ of error in a divorce action is pending may, in the exercise of its appellate jurisdiction, entertain a motion for an allowance for the support of the wife and her child pending the proceed- ing in error and for the prosecution thereof, and may make such order as the circum- stances warrant. Duxstad v. Duxstad (Wyo.), 15-228. On appeal from order granting tem- porary alimony. — On appeal by the de- fendant in a divorce suit from an order re- quiring him to pay alimony pendente lite, the appellate court has power to entertain a mo- tion to compel the appellant to pay the ap- pellee a sum of money to enable her to pay her counsel fees on appeal; and it will grant such a motion where the appellee is in a destitute condition, and there is a good reason why relief cannot be obtained in the trial court. Lane v. Lane (D. C), 6-683. d. Marriage as prerequisite. Proof on motion. — In an application for temporary alimony and the expenses of the action, though the answer denies the fact of marriage, the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purpose of the application, and if the matters contained in such affidavits and papers, or shown by legitimate proofs before the court, make out in the judgment of the court a fair presump- tion of the marriage, the court has the power to grant alimony pending the action and the expenses of the action. Fountain v. Fountain (Ark.), 10-557. On an application for temporary alimony in a wife's action for divorce, where the answer denies the fact of the marriage, but the plaintiff testifies that the ceremony was performed by one authorized to solemnize it, and then shows by affidavits of others and by the testimony of the defendant the con- stant cohabitation of the parties for years as husband and wife, these facts warrant a reasonable presumption that the parties were married, and show a strong probability that the plaintiff will succeed on a final hearing in establishing the marriage, and therefore justify the court in granting an order for temporary alimony and the expenses of the action. Fountains. Fountain (Ark.), 10-557. 4. Permanent Alimony. ii. Nature. Assignability. — Where a decree grant- ing a wife a divorce allows her alimony pay- able in a gross sum, and awards her the care, custody, and education of the children, she 270 ANN. CAS. DIGEST, VOLS. 1-20. cannot assign the decree to a third person. Fournier t'. Glutton (Mich.), 10-392. A divorced wife may niaiutain 3. bill to set aside an assignment made by her of a decree in her favor for alimony, though she has made no formal tender of the amount paid her in consideration of the »agigpmejit! where it appears that before filing thfe bill she undertook to make the tender, but did not do so because the assignee said he would not accept it. Fournier v. Glutton (Mich.'), 10-392. b. Misconduct of wife as affecting allowance. Adultery of wife. — Under the New York Co(]e of Givil Procedure, which provides that in an action by a wife for separation and support " the defepdant may set up in justi- fication the misconduct of the plaintiff," a wife who has committed adultery is, notwith- standing the fact that her husband has like- wise been guilty of adultery, not entitled to a judgment of svjpport. Hawkins v. Hawk- ins (N. Y.), 15-371. Such wife's right to a judgment of support is not strengthened by the fact that in a prior action for divorce by the husband the court refused, because of the adultery of the parties, to dissolve the marriage or to grant relief to either of them, and the decree in the divorce action does not bar the husband from urging the wife's adultery as a defense to her action. Hawkins v. Hawkins ( N. Y. ) , 15-371. SeiB^rtion by ivife, -!» Under the statutes of this state, although a husband may obtain a divorce from his wife on the ground of wil- ful and contijiued desertion for more than three years before tbe filing of the suit, it is not an inflexible rule of law that the wife shall not be allowed alimony. On the other hand, it does not follow that the (Jivorced wife would be entitled to alimony as of course, when her conduct has been grossly improper and caused her husband to obtain a total divorce from her. Davis v. Davis (Ga.), 80-20. Submission of question to jury. — Under the facts of the present case, the judge should have submitted to the jury the ques- tion of whether alimony should be allowed to the wife, if a divorce should be granted to the husband. Davis v. Davis (Ga.), 2(>-20. c. Allowance in action to annul marriage. Ifot alloivable in absence of statute. — In the absence of statutory authority, per- manent alimony will not be allowed in a suit to annul a voidable marriage, Willits v. Willits (Neb.), 14-883. Statutory authority to grant allov- ance. — Under a statute providing that a pe- tition to annul a marriage shall be filed as in actions for divorce, and that the provisions of the statute relating to divorce shall apply, alimony mny be allowed the defendant in an action by a husband for annulment of the marriage on the ground that the wife had another husband living, since a marriage is presumptively legal until the contrary is shown. Ricard v. Ricard (Iowa), 20-1346. Support of children. — A court an- nulling a marriage at the suit of a husband who was under the age of consent when thd marriage was solemnized may require him to pay a reasonable amount for the support and nurture of the issue of such marriage. Wil- lits V. Willits (Neb.), 14-883, d. Mode of allowance. Alloivance of gross amount. — A court may, in its discretion, grant to a wife after divorce alimony in gross amount in lieu of a stated allowance. De Roche v. De Roche (X. Dak.), 1-221. Allowance of real estate. — In suits arising under the provisions of the Nebraska statute, the district court has no jurisdiction to award real estate of the husband to the wife in fee as alimony, and a decree in so far as it attempts so to do is void and subject to collateral attack. Gizek v. Cizek (Neb.), 5-464. e. Amount of allowance. Amounts held proper. — In granting a divorce to the wife and awarding alimony for the support of her and a child, an allowance of $3,000 for the wife, $500 for the child, and $500 attorney's fees, is fair and reasonable, where it appears that the wife has no esta.te and the husband has real property worth $13,000. Hooe v. Hooe (Ky.), 13-214. An award to a wife of $7,000 in gross as alimony held not excessive under the circum- stances. De Roche v. De Roche (N. Dak.), i-221. f. Lien of alimony. Alimony payable in instalments. -'■ Permanent alimony decreed in a fixed annual sum in an action wherein the defendant has appeared or has been served with process, is a personal decree and a lien on the defepd- ant's land, though such alimony is payable in instalments in the future. Goff r. Goff (W. Va.), 9-1083. Notwithstanding the Kansas statute mak- ing a judgment a lien on the real estate of the debtor within the county, an allowance of permanent alimony payable in inst3.1ments does not create a lien on any property of the husband unless the record affirmatively dis- closes that the court intended it to have that effect. Scott ». Scott (Kan.), 18-5*4. No lien in absence of statute. — In the absence of a statute to the contrary, a decree for alimony in favor of a divorced wife is not a lien on the husband's property. Kerr v. Kerr 'S, 5 e. Certification of ground of judgment amended for writ of error, see Appeal and Ebbob, 8 d. Charge before committing magistrate, see Cbiminal Law, 4. Constitutitmal regulation of amendatory legis- lation, see Constitutional Law, 22. Constitutions generally, see Cqnstitutional Law, 27. Constitution of United States, see Constitu- tional Law, 2. Corporate okarters, see Cobpobations, 3 b. Curing premature suit by amendment, see Actions. Execution or return, see Executions, 3. Franchise, see Fbanohisbs. Indictments and informations, see Indict- ments AND InPOEMATIONS, 4, 6. Judgments, see JuDGirE.NTS, 8. Mandamus proceedings, see Mandamus, 3 e. Slunicipal charters, see Municipal Cobpoba- tions, 2. Pending prosecutions as aflfeoted by amend- ment of statutes, see Cbiminal Law, 2 c. Pleadings generally, see Pleading, 9. Pleading before arbitrator, see Abbitbation and Awabd, 1. Pleadings in justices' courts, see Justices op the Peace, 3. Power 6t court to amend record, see Couets, 2 a. Power of legislative committee to amend bill, see Statutes, 1 a. Process, see Summons and Pbocess, 4. Hecord on appeal, see Appeal and Eebob, 8 b. Return of service of process, see Summons Aim Process. Review of decision on motion to amend plead- ing, see Appeal and Ebbob, 4 a. Statute of limitations as aifeeted by amend- ment of summons and complaint, see Limitation of Actions, 4 b (2). Statutes, see Statutes, 5. Title of amendatory statute, see Statutes, 3. Verdicts in civil cases, see Teial, 8 d. A MENSA ET THORO. See DivoECE. AMNESTY. See Paedon, Repbieve, and Amnesty. AMORTIZATION. Liability of life tenant for premium on in- vestments, see Life Estates. AMOUNT. Amount of sentence, see Cbiminal Law, 7 .*> .(6). Limitation as to amount of sales under stat- ute of frauds, see FsAutos, Statute of, 9 a. AMOUNT IN CONTROVERSY. Appellate jurisdiction dependent on amount, see Appeal and Ebbob, 2 b. Federal jurisdiction dependent on amount in controversy, see Courts, 2 b (5). Jurisdiction of state courts dependent on amount in controversy, see CoUBTS, 2 a; 2 (1). AMUS]5MENTS. See Theatbes and Pubijo Resobts. ANCESTOR. Death of ancestor as affecting rights of infant heirs, see Limitation of Actions, 4 b (3). ANCIENT DOCUMENTS. See Evidence, 9 b (2). ANCILLARY RELIEF. See Receivebs; Specific Pebfobmance, 4. ANCILLARY JURISDICTION. Bankruptcy courts, see Bankbdptct, 17. ANIMALS. 1. Animals as Pbqpebtt, 275. a. In general, 275. b. Branding, 275. 2. Liability fob Injuries by Anihals* 275. a. In general, 275. b. Trespassing animals, 276. c. Animals on highway, 276. ( 1 ) In general, 276. (2) Runaway horses, 277. d. Injuries by dogs, 277. e. Injury to trespass, 278. f. Injury to bailee, 278. g. Scienter, 278. h. Joint liability, 278. i. Damages, 278. 3. Liability fob Injuries to Animals, 279. a. Animals on highway, 279. b. Animals on railroad track, 279. c. Criminal liability, 279, 4. Esteays, 280. 5. Cruelty to Animals, 080. 6. Diseased Animals, 280. See Game and Game Laws. Automobiles frightening horses in highway> see Motoe Vbhicles, 2 b. Bailment of animals, see LrvEEY Stable Keepebr. Barking of dogs ag nuisance, see Ncibances, 1 b. ANIMALS. 275 BrMd ou stolen aninjals as evidence of own- evgliip, see Larceny, 6 a (4). Carriers of live stock, see Cakkieks, 5. Compensation for possible future injury to live stock, see Eminent BomaIn, 7c (3). Destruction of diseased animals, see Health, 1. Evidence as to trailing by bloodhounds, see Criminal Law, 6 n (10). Fjigjitening horses by blowing off gas well, see Gas and Gas Companies, 5. Frightening of horses by locomotive, see Railroads, 8 b (3). Gift for benefit of animals as charity, see Charities, 1. Implied warranty in sale of stallion, see Sales, 4 a. Iveepiog animals within municipal limits, see Municipal Coepokations, 4 d (3). Leaving horse at inn stable as constituting owner a guest, see Inns, Boarding Houses akd Apartments, 2. Liability of railroad for injuries to animals, see Railroads, 7 a. Place of taxation of live stock, see Taxation, 3 b. Pollution of water by burying dead animals, see Waters and Watercourses, 1. Proof of identity of animal, see Evidence, 8 c. Eestr.aining lease of city property for horse racing purposes, see Injunctions, 3 b. Servant injured by vicious animal, see Master and Servant, 3 c ( 1 ) . Statutory regulation of stockyards, see Con- stitutional Law, 5 c. Statutory regulation of stockyard charges, see Constitutional Law, 9 b. Statutory regulation of slaughter houses, see Constitutional Law, 5 c. Waiver of jury trial in prosecution for cruelty to animals, see Jury, 1 e (2). 1. Animals as Property. a. In general. Ownership of offspring. — Where, in a replevin suit for the possession of a mare and her three colts, the jury finds upon suf- ficient evidence that the mare belongs to the defendant, and that the plainti^ has no inter- est whatever in her, the ownership of the mare carries the ownership of her offspring, in the absence of evidence to the contrary, and the court is justified in holding that a part of the verdict awarding the three colts to the plaintiff is against the evidence. Dun- ning r. Crofutt (Conn.), 14-337. Mortgage as coveping offspring- — A chattel mortgage of cows does not cover their calves in gestation at the time of the execu- tion of the mortgage and born prior to fore- closure, there being no reference in the mortgage to the increase. Demers v. Graham (Mont.), 13-97. Animals ferae naturae. — Under the common law of England, the title to animals ferm naturce or game is in the sovereign for the use and benefit of the people, the killing or taking and use of the game being suliject to governmental control and regulation for the general good. Harper v. Galloway (Fla.), 19-235. b. Branding. Bight to record brand. — A brand con- sisting of a " horseshoe with bar under, on one or both jaws, and a horseshoe on one or both jaws," is not the same as or similar to another person's brand consisting of " a logp resenibling a horseshoe in shape, with the points either up or down, on either or both jaws," within the meaning of the Oregon stat- ute (Bell. & C. Comp. St., § 4202) providing that when a person has recorded a brand, no other person can record " the same brand or brand similar thereto," without the consent of the owner of the recorded brand. Brown V. Moss (Ore.), 18-541. Sufficiency of record^ — The Oregon statute (Bell. & C. Comp. St., § 4201) pro- viding that when a certificate of brand is delivered to the county clerk in the form required, he shall " record said certjfiucate in a book to be kept for that purposej' contem- plates a record of the certificate in full, and an entry by the clerk merely of what he con- ceives to be the contents of the certificate is not sufficient. Brown v. Moss (Ore.), 18-541. Brand as evidence of ownership. — Under the Oregon statute (Bell, ^ fi. Cp^jpp. St., § 4204) making a recorded brand on aji animal 'primq, faoie evidence of ownership in the person whose brand it may Ije, apd pro- viding that proof of the right to use such brand shall be made by a certified popy of the record thereof, the plaintiff in an action to recover the possession of horses may give in evidence a certified copy of the record of his brand duly made according to law, regard- less of whetiaer the brand was entitled to record. Brown v. Moss (Ore.), 18-541. Under such statute the effect of such a brand as evidence is for the jury, and it is error for the court to exclude from evidence a certified copy of the record thereof on the ground that the brand was not entitled to record because the same or a similar bra^jd had previously been recorded by another per- son. Brown v. Moss (Ore.), 18-541. 2. Jjiability foe Injuries by Animals. a. In general. Owner responsible. — "The ovsTier of an animal is responsible for the damage he has caused," and the burden is on the owner to prove that he was without the slightest fault and did all that was possible to prevent the injury. Damonte r. Patton (La.), 10-862. Common carriers transporting wild animals. — A common carrier having a shipment of bears in its freight house await- ing delivery to the consignee is not the owner or keeper of the animals within the meaning of the rule that the owner or keeper of a wild animal is liable for injuries caused by it, irrespective of negligence, and the carrier in such case cannot be held liable for injuries caused by a hear except upon proof of negli- gence in the ordinarv sense of that word. Molloy r. Rtarin (N.'Y.), 14-57. A oommou carrier accepting and transport 2Y6 ANJSr. CAS. DIGEST, VOLS. 1-20. ing trained bears securely confined in cages, and having such bears in its freight house awaiting delivery to the consignee, with the fronts of the several cages, which are covered by an iron grating, facing towards each other so that there is no possibility of the animals doing any mischief unless a person volun- tarily and unnecessarily exposes himself by going into the inclosure between the cages and too close to the grating, is not guilty of any negligence as respects the taking of rea- sonable precautions for the public safety, and is therefore not liable to a person who is upon the carrier's premises by sufferance, and who being impelled by idle curiosity inserts his person between the cages and is seized and injured by one of the bears. Molloy v. Starin (N. Y.), 14-57. Commnnlcation of disease. — In the absence of statutory provisions, one who keeps upon his own premises animals suffering from a contagious disease is not liable for the com- munication of such disease to the animals of others, unless he knows that his animals are diseased and is guilty of some negligence in the manner of keeping them. Eshleman v. Union Stock Yards Co. (Pa.), 15-998. b. Trespassing animals. Ejection from premises. — Even though an owner of premises has knowledge of the traits and habits of a particular breed of dogs, and that one of such dogs would not kill or maim a domestic animal, such owner is, when such dog is in fact harassing, worry- ing, and annoying his gravid animals in such a manner as would be likely to cause him pecuniary loss, justified in using such force as is necessary to eject the dog from his premises and to cause a cessation of the in- juries. State V. Churchill (Idaho), 16-947. Where trespassing dogs are chasing, worry- ing, and frightening hogs and cattle, the owner of the premises in attempting to remove and eject the dogs therefrom has a right to act upon appearances. In other words, if there is apparent impending danger to his live stock, he is justified in the use of such force in ejecting the dogs as a reasonably prudent man would use under like circum- stances in defense and protection of his prop- erty. State V. Churchill (Idaho), 16-947. Right to kill. — The fact that a dog is a trespasser does not justify one in killing him, and whether the circumstances are such as to justify the killing is a question of fact for the jury. McChesney v. Wilson (Mich.), 1-191. Where it clearly appears in a prosecution for maliciously killing dogs that the defend- ant was not acquainted with the owner of the dogs, and did not in fact know who was their owner, and that in wounding and kill- ing the dogs he wag not actuated by malice or a wanton or reckless spirit, but acted solely through a desire to remove the dogs from his premises, and to prevent their worrying, annoying, and terrorizing his live stock, he cannot be held criminally liable for malicious mischief. State v. Churchill (Idaho), 16-947. Where the evidence as to such occurrence is direct and not circumstantial, the testi- mony of experts as to the habits and traits of the particular breed of dogs is inadmis- sible, unless it appears that the owner had at the same time knowledge of such habits and traits. State v. Churchill (Idaho), 16-947. Liability of owner. — Where a dog in- vades and trespasses on the legal righte of a person and injures person or property, and such invasion and trespass is the result of the negligence of the owner, the owner of such dog is liable for the damages done. McClain v. Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. Where a person takes a dog to a racetrack, or is in control of such dog at and near the track, and suffers or permits such dog to go on the racetrack and interfere with the riders in such race, and an injury results therefrom to a rider, the owner or person in control of such dog is guilty of negligence and is liable for the damages thereby sustained. McClain Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. Duty to restrain animals. — Persons who are keepers, harborers, or custodians of dogs are required to exercise proper judg- ment as to the place where the dog is taken and the position in which the dog may be placed, and are responsible for the acts of such dog; and when dogs are taken to a place not suitable or proper or placed or suf- fered to be placed in a position where they become a dangerous agency, and an injury results therefrom, a jury is warranted in concluding that the owner, harborer, or per- son in control of such dog is guilty of negli- gence. McClain 1). Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. Injnnction. — An injunction will be granted to restrain trespasses by chickens where it appears that repeated invasions have occurred in the past and are threatened for the future, and that a muiltiplicity of suits would be required to compensate the plaintiff in damages. Keil v. Wright (Iowa), 14-649. c. Animals on highway. (1) In general. Horse led by halter. — A horse led by a halter and in charge of an attendant is right- fully in the street, and in the absence of a showing of negligence in management, or that the horse had ever shown vicious pro- pensities, the owner is not liable for injuries to a passerby. Eddv w Union R. Co. (R. I.), 1-204. Cow frightening horse. — The owner of a cow at large in the public highway is not liable in damages to a person injured by being thrown from her vehicle by her horse taking fright at the cow getting up when she at- tempted to drive around it. Marsh v. Koons (Ohio), 14-621. Purpose of Ohio statute. — The object of the Ohio statute making it unlawful for the owner of certain animals, including cattle, to suffer them to run at large in any public highway, and making him liable for all dam- ANIMALS. 277 ages done by such animals on the premises of another, is not the safety of travelers on the highway, but the prevention of trespasses, and the owner of such an animal is not, merely because of the existence of the statute, liable in damages to a person injured by the frightening of her horse at the animal at large in the highway contrary to the statute. Marsh r. Koons (Ohio), 14-621. (2) Runaway horses. Horse left unfastened. — It is negli- gence for the driver of a horse and cart to abandon his seat and hold on the reins, and to go chasing his hat in the street, without fastening or otherwise securing the animal; and, where a horse thus left standing runs away, the owner will be held responsible for an injury inflicted by the runaway's collision with a third person without contributory fault. Damonte r. Patton (La.), 10-862. It is not negligence per se to leave a horse standing unfastened and unattended in a highway. Whether such conduct constitutes negligence in a particular case is a question of fact for the jury or other trial tribunal; and in an action for personal injuries where the evidence shows that the defendant allowed a pair of quiet horses, attached to a wagon loaded with hay, to stand unfastened on a country road, with the reins thrown on the ground, while he attempted to adjust the load on the wagon, and that the horses, being startled by the fall of some of the hay from the wagon, ran away and injured the plain- tiffs, who were driving along the highway in a buggy, a finding by the trial court that the defendant was not guilty of negligence will be affirmed. Ryan v. Mcintosh (Can.), 17-806. Collision with, electric car. — Where a runaway horse hitched to a cart, without lights, on a dark, rainy night, dashes along the track of a street railway and collides with an electric car coming from the opposite direction, with the result that the motorman is knocked off and injured, the owner will be held liable; it appearing from the evidence that the motorman could not avoid the col- lision. Damonte v. Patton (La.), 10-862. The motorman in charge of a street car who is running his car on schedule time is not chargeable with negligence for not anticipat- ing and being prepared for the unexpected and improbable appearance on the track of a runaway horse at large through the negli- gence of his driver, and in contravention of the police ordinances. Damonte r. Patton (La.), 10-862. ' Question tor Jury. — In an action to re- cover damages for personal injuries inflicted by a runaway horse, the question of the lia- bility of the owner of the horse held to be properly left to the jury. Koonz v. New York Mail Co. (N. J.), 5-874. d. Injuries by dogs. Provocation as defense. — Where one's conduct toward a dog is knowingly such as is calculated to incite or provoke it to acts of damage, its naturally resulting action, m so far as it involves consequences to the in- citer or provoker, is to be regarded as his, and as not having reference to the dog in such manner as to be chargeable to its owner or keeper. Kelley v. Killourey (Conn.), 15-163. Constitutionality of statute impos- ing liability. — The Missouri statute pro- viding that " in every case where sheep or other domestic animals are killed or maimed by dogs, the owner of such animals may recover against the owner or keeper of such dog or dogs the full mount of damages, and the owner shall forthwith kill such dog or dogs," does not, by making the owner or keeper of dogs liable for their vicious habits regardless of his knowledge of their vicious propensities, deprive him of property with- out due process of law in violation of his constitutional rights. Holmes v. Murray (Mo.), 13-845. Wlio a keeper of dogs. — A person is the keeper of dogs and liable under such statute for damages done by them where the dogs belong to such person's daughter, who keeps house for him, receiving wages for her services, and the dogs are kept at his house with his knowledge and consent. Holmes v. Murray (Mo.), 13-845. Presumption against injury to keeper. — The right of action against the owner of a vicious dog arises from the knowledge by the owner of its vicious propensities, and such propensities having been established, there remains no presumption in law that the ani- mal may not display them towards its keeper as well as against a stranger. Emmons v. Stevan (N. J.), 18-812. Evidence. — In an action under the Missouri statute giving the owner of sheep or domestic animals killed by dogs a right of action against the owner or keeper of the dogs for the full amount of damages, evidence tending to show that the defendant was the owner of the dogs which killed the plaintiff's sheep and that the sheep were worth the amount demanded as damages, makes out a prima facie case and requires the submission of the issues to the jury. Holmes v. Murray (Mo.), 13-845. In an action under such statute for the killing of sheep by dogs owned by the de- fendant or his daughter, where the evidence of the defendant is that neither his dogs nor the dogs of his daughter did the killing, evi- dence that the daughter had the dogs killed after the alleged killing of the sheep is in- admissible unless it is first shown that she did so with the defendant's knowledge and consent. Holmes P. Murray (Mo.), 13-845. Variance. — In an action for personal in- juries caused by the bite of a vicious dog, a variance between the allegation and proof as to the ownership of the dog held to be im- material. Grissom t'. Hoflus (Wash.), 4-125. Instructions.— Notwithstanding the Con- necticut statute imposing liability for In- juries inflicted by dogs, an instruction that the owner of a dog is not liable if a person was bitten in consequence of wrongfully, wil- fully, and persistently annoyinst, hurting, torturing, and provoking such dog, is prop- 278 A]!fK CAS. DIGEST, VOLS. 1-20. erly granted. Kelley v. Klllourey (Conn.), 15-163. e. Injury to trespasser. Vicious horse. — In an action for per- sonal injuries, where the evidence shows that the defendant, a farmer, oecupieid a field which adjoined a railway station and was divided from a footpath by a wire fence, that he put into this field a horse which he knew to be bad tempered and to have bitten per- sons; that members of the public had previ- ously, to the defendant's knowledge, for many years habitually crossed the field without leave, for the purpose of making a short cut from a point on the footpath, where they got oyer the fence, to a gate near the station; that the defendant had warned off persons crossing the field and had complained to the police of persons so crossing as trespassers, but had refused to take legal proceedings against any of them for trespass, assigning as a reason that some of them were his cus- tomers for milk ; and that the plaintiff, while so crossing the field without leave from the defendant, was bitten by the horse, a judg- nient in favor of the plaintiff is erroneous. Under such circumstances, it cannot be held that the defendant's knowledge that the pub- lic habitually crossed the field without leave, as above mentioned, imposed upon him towards persons so crossing any duty not to keep an animal such as the horse in question in the field, or to take any care for their pro- tection from risk of being injured by it, andj consequently, the defendant is not liable to the plaintiff in respect to the injuries sus- tained by the latter. Lowery v. Walker (Eng.), 17-553. f. Injury to bailee. Onty to disclose vicious propensities. — The owner of an animal having vicious propensities which are directly dangerous, is bound to disclose them, if known to him, to a bailee. Emmons v. Stevane (N. J.), 18-812. False representations by bailor re- garding dispbsition. — A representation made to the bailee by the bailor of a vicious animal that such animal is of gentle dispo- sitions when the bailor knows to the contrary, will render the bailor liable in an action against him by the bailee for injuries in- flicted upon the latter by the animal, at least in the absence of proof that the bailee was chargeable with knowledge of its true dis- position. Emmons v. Stevane (N. J ) 18-812. g. Scienter. Necessity of showing. — Whether a do- mestic animal is or is not rightfully in the place where it inflicts the injury is de- terminative as to the necessity of proof of knowledge on the part of the owner of the vicious propensities of the animal. Eddy v. Union R. Co. (E. I.), 1-204. Knowledge of servant imputed to master. — The knowledge of employees that animals intrusted to their care are vicious is imputable to the owner, so as to render him liable for injuries inflicted by one of the atii- mals on a person who, without knowledge of the vidious propensities, is employed to assist in the care of the animals. Gooding r. Shutes Co. (Cal.), 18-671. Animal likely td commit similar lAjurj'. -^ In an action for injuries com- mitted by a dog it is hot necessary that the same injury should have actuEllly been coni- mitted by the animal to the knowledge of its owner, but knowledge by the owner that the disposition of the aniWal is such that it is likely to commit a similar injury to that com- plained of is sufficient to mainta,in the actions. Scienter need not be precisely simi- lar, but that it is substantially so Will suf- fice. Emmons v. Stevane (N. J.), 18-812. (See notes, 1 Ann. Cas. 205; 4 Ann. Cas. 127.) Animal rightfully or irrongfally at place of injury. — If domestic animals, such as oxen, horses, dogs, etc., injUrt, any one in person or property while rightfully In the place where such injury is dohe, the owner is hot liable for sUCh injury tihless he knew that such animal was accustomed to do such mischief; and in suits to recover dam- ages for such injury, knowledge must be al- leged and proved, for unless the owner knew that such animal was vicious or posSesSed such traits, he is not liable. If, however, he had slich knowledge, he is liable. McClain v. Letviston Interstate Fair, etc., Assoc. (Idaho), 20-60. If domestic animals injure any person or property, while wrongfully in the place whei'e the injury is done, the owner is liable, al- though he had no notice that such ahimal was accustomed to do such wrong or mischief. In such case the ground of action is that the animal was wrongfully in the place wlSre the injury was done; and it is not necessSrv to allege or prove any knowledge on the part of the owner that such" animal had previous^ been vicious. McClain v. Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. SuiBcienc;^ of evidence. — In an actioii for personal injuries Caused by the bite bt a vicious dog, the evidence held sufficient to gd to the jury upon the question of knowledge by the owner of the vicious disposition of the dog. Grissom r. Hoflus (Wash.), 4-125. h. Joint liability. Minnesota statute. — The Minnesota statute does not change the common-law rU16 that where several dogs kill sheep and do other damage jointly the ovi'ner of each dog is liable only for the damages done by his animal, and a joint action will not lie against the owners of the dogs, as the statute merelj; relieves the plaintiff from the ilecessitj' of showing scienter. Nohre v. Wright (Minn.), 8-1071. i. bainages. Amount pmid to physician. — In an action to recover damages for personal in- juries iflflicted by a rUliaway horse, it is hot erroneous for the trial court to refuse to ex- clude from the consideration of the jury the services of the physician as an elemeflt of ANIMALS. 2*79 dftfSage. Koonz t\ Ne* YOt'k Mail Co. (N. J.), 5-874. 3. Liability for Injuries to AnimaiS. a. Animals oh highWtiy. Contributory xiegllgence d^ owner. — Evidence reviewed, in an action against a town to recover damages for injuries sus- tained by the plaintiff's blind horse in con- Sequence of a fall froftl a btidge hflving no guards or tailings, and held insuftieient to justify a trial dourt itt holding that the plaintiff was guilty of contributory negli- gence as a mlitter of law ill failing to take steps to prevent "the horse fi'Olii going on the bridge. Howrigan i'. Bakersfleld ( Vt. ) , 9-2S2. b. Animals on railroad track. Dnty to watch for. — A railfbad com- pany owes no duty* to the o-wner of anitntlli wrongfully on the track to be ofl the look- out for them, and if they are injured before their presence is discovered, an ftotioft for damages will not lie. CanadiaA Pac. E. Co. V. Eggleston (Can.), 3-590. ITegUsent klllilig of dogs'. ■^ Ddg^ are personal property, for the negligent killing of which a railroad company is liable. St. Louis, etc., R. Co. r. Hhoden (Ark.), 20-915. In FloridBj dogs are property and taxable as other personal property, and a railroad company is liable ill damages for the negli- gent killing of a dog. Florida Cent., etc., R. Co. V. Davis (Fla.); 3-274. Under the Connecticut statute, a stteet railway company is not liable for the negli- gent but unintentional killing of a dog Which was more than six months of age at the time of the killing and which Was not registered as required by statute. Dickerman V. Con- solidated R. Co. (Conn.), 8-417. Measnre of damageii -^ Measure of damages recoverable against a failroad com- pany for injuries to mules. Southern R. Co. V. Giliner (Ala.). .5-414. Penalty for delay iil paying daniAges. — The Arkansas statute which requires rail- road eompahtei^ to pay for animals killed or injured by theif trEtlas within thirty days after service of notice by the owner, and which provides that, if payment ia ndt made within the time specified, the owner shall be entitled to double the amount awarded to hitti tf the jul-y, together with a reasonable douh' sel feey in an action fot damages, Unless the amount awarded by the jury is less than the amount sued for, is valid. St. Louis, etc., R. Co. V. Wynne (Ark.), 17-631. c. Criminal liability. Malicions or wanton killing or in« Jnring in general. — A dOg is the Subject of larceny, and therefore the malicious or wanton killifig of a dog is a ctime denounced by a statute against maliciously or wantonly killing any animal " which it is made larceny to steal." State v. Soward (Ark.), 13-79. Malice at element of offeltae. — In tiew of the provisions of the Illinois criminal code Which make cruelty to animals and ma- liMons injiity to dotnestic afliiiiald separate aM distilici offenses, subject tb different pun- ishnleilts, it must be held that mstliCe towards the oWlier of the animal killed or injured is ail essential element Of the latter offense. People v. Jones (til.), 16-332. Malice is the gist of a prosecution under the Idaho Revised Statutes (§ 7153) for the malicous killing or wounding of a dog, and in order to justify a conviction must be estab- lished to the satisfaction of the jury beyond a reasonable doubt. State V. Churchill (Idaho), 16-947. Under that portion of the Illinois statute relating to malicious mischief which makes it a criminal offense wilfully and maliciously to kill, wound, maim, disfigure, or poison any domestic animal belonging to another, it is not necessary, in order to sustain a con- viction, to prove that the animal was killed or injured by the defendant with intent to destroy its life, Proof of such intent is neces- sary only where the indictment is tased on the latter portion of the same statute, which makes it a like offense to expose any poison- ous substance with intent that the life of a,ny such animal shall be destroyed thereby^ Peo- ple V. Jones (111.), 16-332. In a prosecution for maliciously killing, wounding, or maiming dogs, the state must stow either that the defendant entertained malice against the owner of the dogs, or that the killing, wounding, or maiming was char- acterized by such wanton and reckless dis- regard of the rights of property in others as to raise the presumption of malice from the manner of the commission of the act. State V. Churchill (Idaho), 16-947. Justification as defense. — An owner of property, when acting in its defense, is not restricted to the adoption of such meas- ijres as are absolutely necessary for its pro- tection, but is justified in doing whatever appears to be reasonably necessary for that purpose, in the exercise of ordinary prudence and caution, and having regard to the cir- cumstances of the particular case, and con- sequently, in a, prosecution for maliciously in- juring a domestic animal, where the defense is that the accused inflicted the injury in the protection of his own property, it is re- versible error for the trial court to instruct the jury that they may find the defendant guilty unless they believe, from the evidence, that an ordinarily cautious and prudent man, situated as was the defendant, would have be- lieved that the infliction of the injury " was absolutely necessary for the protection of his property." People r. Jones (111.), 16-332. Admissibility of evidence. — The rule allowing the introduction of evidence of the jtedi^r^e, traits, h&bits, and reputation of a Jiafticulal' ddg, Which prevails in civil actions fflt flaftiag^B, is ncJt applicable in a criminal praSfeoutioil for Inalioiously killing dogs. Unless knowledge of the facts Sought to be proved- is bi^oUght home to the defendant. State h. Chutdhill (Idaho), 10-947. On the trial of aU indictment for malicious mischief ih casttatihg a bull, where the ac- cused interposes the defense that he cas- trated the animal for the pufpose of fre- 280 ANK CAS. DIGEST, VOLS. 1-20. venting cross-breeding with his own cows, and there is evidence that a cross-bred calf is worth much less than a full-blood calf, it is error to exclude evidence offered by the de- fendant to show that a cow which has given birth to a cross-bred calf will permanently retain a tendency to cross-breed, since such evidence tends to show the seriousness of the injury to defendant's cows by having the bull loose among them, and, therefore, has a bearing on defendant's motive in doing what he did. People v. Jones (111.), 16-332. In such a case, where the indictment is based on a statute which makes malice towards the owner of the animal an essential element of the offense, any evidence which fairly bears upon the question of malice is admissible, and hence it is error to exclude evidence tending to show the absence of malice on defendant's part, such as evidence that a bull which has once attacked a man will have a habit for a long time thereafter of attacking that particular man, and that the only known remedy is to castrate the animal. People v. Jones (111.), 16-332. Snfflolency of evidence of malice. ^ Although malice towards the owner of the animal is an essential element of the offense of malicious injury to a domestic animal under the Illinois statute, it is not necessary, in a prosecution for such offense, to show that the defendant actually knew the owner of the animal, or to prove that he ever said or did anything to indicate malice against the owner, since malice may be inferred by the jury from the nature of the act itself and from the circumstances which accompany and characterize it. Such inference is one of fact for the jury, and not one of law for the court. People r. .Jones (111.), 16-332. Pnnlslmieiit. — In a criminal prosecution for malicious mischief in castrating a bull, where the evidence shows that the bull was worth only forty dollars, and that it was castrated without cruelty and unnecessary pain and in such a way that it became an ordinarily healthy and valuable steer, a ver- dict imposing a fine of $350 against the de- fendant should be set aside as excessive. People V. Jones (111.), 16-332. On a criminal prosecution for poisoning a horse, where the defendant is found guilty, and the value of the animal is shown to be over one hundred dollars, a sentence of im- prisonment in the penitentiary for not less than three nor more than four years is proper under the Colorado statutes. Jaynes v. People (Colo.), 16-787. 4. ESTBATS. When horse Is an eatray. — The ques- tion whether a horse on a highway is a traveler or an estray depends upon whether his owner is guilty of contributory negli- gence. If the owner is not guilty of con- tributory negligence, the horse is a traveler; but if the horse is on the highway through his owner's negligence, he is not a traveler but an estray. Howrigan v. Bakersfield (Vt.), 9-282. Municipal ordinances, — A municipality may pass an ordinance providing that hogs shall not be allowed to run at large within the corporate limits. Crum v. Bray (Ga.), 1-9»1. An ordinance for the seizure and sale of hogs running at large, after notice to the owner, is valid. Crum v. Bray (Ga.), 1-991. 5. Cbtjelty to Animals. Police power of state. — In the exercise of the police power of the state the legis- lature may enact proper laws for the preven- tion of cruelty to animals, and may desig- nate agents or officers who may be charged with the execution of such* laws. Jenks v. Stump (Colo.), 14-914. V^idity of statutes anthorlzing seiz- nre. — Except in cases of emergency, or when public necessity or safety requires sum- mary action, notice must be given to the owner of an animal supposed to be abandoned, neglected, or cruelly treated, and an oppor- tunity must be afforded for the determination by a competent tribunal whether such animal is in fact abandoned, neglected, or cruelly treated, before it can be taken, before a lien can be created upon it, and before it can be sold. Jenks v. Stump (Colo.), 14-914. The Colorado statute providing that any officer of the State Humane Society may take charge of any animal found abandoned, neglected, or cruelly treated, and shall there- upon give notice to the owner, if known, and may at the expense of the owner care for such animal until the latter takes charge thereof, and giving the State Humane Society a lien for such expense enforceable by selling the animal at public auction after giving the owner five days' notice, or, if he is unknown, after posting for ten days, deprives the owner of his pjioperty without due process of law, in that it fails to give the owner an oppor- tunity to contest the legality of the seizure. Jenks V. Stump ( Colo. ) , 14^914. Socking of horses' tails, — A state has no power to prohibit the importing or bring- ing into the state of horses having docked tails, as such a prohibition would he an in- terference with interstate commerce. Stubbs V. People (Colo.), 13-1025. The exclusive power of Congress to regu- late interstate commerce deprives a state of any authority to prohibit the use in the state of horses having docked tails and brought into the state from another state or country, so long as such horses remain the property of the person importing them, and such horses are none the less protected as inter- state commerce because they are used by the servant, agent, or partner of the owner, or by a member of his family. Stubbs v. People (Colo.), 13-1025. 6. Diseased Animals. Destruction of diseased animals, see also Health, 1. Operation of federal statute. — The regulations of the United States Bureau of Animal Industry for the suppression of con- tagious diseases among domestic animals, AKIMUS TESTANDI — ANI^UITIES. 281 adopted pursuant to the Act of Congress of May 29, 1884, known as the Animal Industry Act, have no effect In a state in which such regulations have not been accepted by the withoi-ities thereof. Eshleman v. Union Stock Yards Co. (Pa.), 15-998. The Act of Congress of May 29, 1884, known as the Animal Industry Act, which prohibits the transportation from one state or territory to another of live stock suffering from contagious diseases, expressly excepts from its provisions live stock suffering from splenetic or Texas fever which are being transported to market for slaughter, and per- mits such live stock to be unloaded on the way thereto to be fed and watered. The un- loading of such live stock, even though there are " ticks " on them, at a stockyard to be fed and watered, is therefore not prohibited by the act. Eshleman v. Union Stock Yards Co. (Pa.), 15-998. Destmotioa irlthont compensation.— Power " to maintain the city's cleanliness and health, and to this end to regulate the loca- tion of, and the inspection and cleaning of dairies, . . . and to adopt such ordinances and regulations as shall be necessary or ex- pedient for the protection of health and to prevent the spread of disease," is a plenary delegation of police power in connection with the police of dairies, and invests the city council with all the authority which the state itself is possessed of to require dairy cows in a large city to be inspected, and, if found to be affected with tuberculosis, to be destroyed, without compensation to the owner. New Orleans v. Charouleau (La.), 15-46. It being shown that tuberculosis in a cow may be ascertained by a practically infallible test, and it being further shown that the presence of a cow so affected in a dairy in a city Is a serious menace to the public health, the public authorities have the same right to require the destruction of such cow without compensation to the owner and without judi- cial inquiry as they have to require the de- struction of decayed fish, meats, and vege- tables. New Orleans v. Charouleau (La.), 15-46. Right of action for commnnicating disease. — A purchaser of cattle which are at the time suffering from a disease com- municated to them through the negligence of a third person acquires no right of action against the latter. Eshleman v. Union Stock Yards Co. (Pa.). 15-998. Liability of stockyards company. >— A stockyard company is liable only for or- dinary neglect, and is not responsible for the communication of disease to cattle kept in the pens, where it does not appear that the cattle which were previously kept therein contaminated the pens, that the defendant failed to disinfect the pens, and that the catties to which the disease is alleged to have been communicated received their infection from such pens. Eshleman v. Union Stock Yards Co. (Pa.), 15-998. ANIMUS TESTANDI. See Wills, 2. ANIMUS FURANDI. See L-ABCEirr. ANNEXATION. Territory annexed by municipality. Municipal Cokpoeations, 3. ANNUAI. REPORTS. Statutory requirements, see Cobfobatioms, 3 b. ANNUITIES. Creation by will, see Wills, 8 c (8). Mode of creation — charge of land. >— Where a father makes a will devising his land to his son subject to an annuity in favor of his daughter, but afterwards, on account of a doubt as to the validity of the will be- cause the son is named in it as executor, con- veys the land to the son and on the same day enters into a contract with the son by which the son covenants to pay the daughter an annuity, such annuity is a charge on the land. The deed and contract are intended to accomplish the same purpose as the will. Dawson v. Dawson (Can.), 20-780. Duration. — An annuity given to a char- itable corporation without limitation or quali- fication as to duration will generally be con- sidered as designed to continue during the life of the annuitant. Merrill v. American Bap- tist, etc.. Union (N. H.), 6-646. Where a testator gives an annuity to a charitable corporation with the intention that it shall continue so long as the corporation shall exist and shall fulfil the purposes de- signed by its charter, the fact that the an- nuity may continue perpetually does not affect its validity, as charitable trusts are not within the rule against perpetuities. Merrill V. American Baptist, etc.. Union (N. H.), 6-646. Right to capital snm. — Where a testa- tor devises his residuary estate in trust for sale and conversion, and directs his trustees, after payment of his debts and of the funeral and testamentary expenses, to purchase in the name of his wife a government annuity of a specified sum for her life, and the wife sur- vives the testator, the right to take the value of the annuity in cash instead of the annual payment vests in the wife on the testator's death, and upon her death a few days later, before the probate of the will or the purchase of the annuity, her legal representatives are entitled to a sum sufficient to have purchased the annuity at the date of the testator's death. Tn re Bobbins (fing.), 10-485. Arrears. — Where a testator devises land subject to the payment of an annuity to a 282 ANH. CA^. DIGEST, VOLS. 1-20. third person, apd the wjlj pj-pyi^ea that the annuity shall be a lien on the land devised, an action against the devisee or his personal representatives to enforce payment of the annuity as a personal obligation, which does not seek to enforce the Ijep ftgf ipst the land, is governed by the statute of limitations ap- plying to an ordinary action upon an implied contract, and therefore the plaintiff is only entitled to recover suph instalments of the annuity as are not barred bv that statute. Stringer v. Stevens' Estate (Mich.), 10-337. Interest on arrears. — In an action io recover arrearages of an annuity created by will for the support and maintenance of the testator's wife, jjit^rest ig j-ecoverable; and this is so thoiigli the annuitant has died and the action Jias been brflught by her adminis- trator, and though the action is one at law to enforce the personal obligation of the devi- see of the land upon which the annuity was charged, and not an equitable proceeding to enforce the lien of the annuity on the land. Stringer v. Stevens' Estate (Mich.), 10-337. Enf^rqemeiit l>y aniinitant not p^rty to agreement, —r An agreeipen^ Ijy whiph one party covenants with the other to pay an annuity tp a thirii person l>rho is not a party to the agreement is enforceable at the suit of thp annuitant against the promisor. Dawson v. Dawson (Can.), 20-780. ANNULMENT. See Deeds, 5; Mabbiage, 3. Allowance of alimony on annulment of mar- riage, see Alimony asd Suit Monet, 3 b. Annulling probate, see Wills, 7 n. Power of state court to annul composition in bankruptcy, see Bankruptcy, 14. Power of state court to annul discharge in bankruptcy, see Bankbtjptcy, 14. ANOTHEB SUIT FENDING. Dismissal because of another suit pending as bar to subsequent action, see JUDQ- MENTS, 6 c. Ground of ab3,tement, see Abatement and Revival. Pendency of another indictment as grouiid for arrest of judgment, spe JuDGJiijNTS, 7 a. ANSWER. See Pleading, 4. Defects in complaint waived by answer, see Death bt Wrongful Act, 4. Den;urrer abandoned by answer, see Plead- ing, 5 h. Demurrer after answer, see Pleading, 5 d. Dismissal of action after filing of answer, see Dismjssae, Discontinuance, and Non- Suit, 1 d. ANSWERS. Witnesses under examination, see Wit- nesses, i f. ANSWERING FOR SERT OP ANOTHER. See Fbacpb, Statute of. ANTE-NUPTIAL CONTRACTS. See Husband and Wife, 2 a. Enforcement, see Spemfio Pkbf0BM4kce, 3 a. ANTICIPATION OF INJURY. gee Negligence, 2. ANTI-MONOPOLY STATUTES. See CoBPORATioNS, 8 b; Monopolies and COBPOBATB TEUSTS; CONSTITUTIOKAL Law, 21. "ANTI-PASS LAW." See Cabbiebs, 2 b. ANTI-TRUST LAWS. See Monopolies and Coepobatb Tbusts. Provision for investigating existence of un- lawful opinbinationa, see Constitu- tional Law, 21. Violation of anti-trust law by boycott, see Ijabob Combinations, 0. ANYTHING TO SAY. Preliminary to imposition of sentence, see Cbiminal Law, 7 b (3). APARTMENTS. See Inns, Boaeding Houses, and Apabt- MENTS. APPEAL AND ERROR. }. Nature of Proceedings, 284. 2. Eight of Appeal, 284. a. In general, 284. b. In criminal cases, 284. c. Abridgment of right, 285. d. Separate appeals, 285. 3. Jurisdiction and Powees of AppEi LATE Courts, 285. a. In general, 285. b. Amount iji controversy, 286. c. Federal courts, 286. (1) In general, 286. (2) United States suprem court, 286. APPEAL AND ERROR. 283 (3) UiiitBcI St?.tes circuit coijrt of appeals, 288. d. Appcfils from interijiediate appel- late courts, 288. e. Rules of appellate court, 289. f. Termination of jjirisdjctiflj), 289. 4. Appealable JuDOMEistTs and Oedebs, 289. a. In general, 289. b. In habeas corpus proceedings, 290. c. In bankruptcy proceedings, 290. d. In condemnation proceedings, 290. e. In election contests, 291. f. In contempt proceedings, 291. g. Jn criminal cases, 291. h. Judgipent for costs, ^91, i. Voluntary judgment of ppnsult, 291. 5. Pabties to Appellate Pboceedings, 291. a. Who may appeal, 291. b. Joint parties, 292. c. Substituted parties, 292. 6. Notice of Appeal, 293. 7. Time of Appeai,, 293. a. In general, 293. b. When time begins to run, 293. c. Time for service of notice of argument, 294. 8. The Becoed on Appeal, 294. a. What constitutes record, 294. b. Transcript of record, 294. 0. Abstract of record, 295. d. Amendment of record, 295. e. Sufiioiency of recitals, 296. 9. Bill of Exceptions, 296. a. In general, 296. b. Time to file, 207. c. Inclusion of all the evidence, 297. d. Amendment, 298. 10. Assignments of Ebkor, 298. a. In general, 298. b. Sufficiency, 299. 11. Dismissal of Appeal, 300. a. In general, 300. b. Grounds of dismissal, 300. c. Right of appellant to dismiss, 301. 12. Examination of Case on Appeal, 301. a. What is brought up by appeal, 301. b. Trial de novo, 303. c. Examination of opinion of lower court, 303. d. Consideration of new evidence, 804. e. Rehearing, 304. f. Second appeal, 304. g. Judicial notice of records, 304. b. Examination of questions of fact, 304. (1) In general, 304. (2) Power of appellate court to weigh evidence, 304. (3) Verdict of jury, 305. (4) Findings of court, 306. (5) Jijdgment of intermediate appellate court, 307. (6) Reserved cg,se, 308. i. Error waived in appellate court, 308. 13. Review of Exercise of Discretion- aby poweb, 308. 14. Presumptions on Appeal, 309. a. In general, 309. ]3. As to ipQtigns, 310. c. As to order of intermediate court, 310. d. As to jury, 310. e. As to pleadings, 310. t. As to evidence and rulings thereon, 311. g. As to instructions, 311. h. As to findings, 311. i. In criminal cases, 312. 15. Reveesible Erbob, 312. a. In general, 312. b. Error must be clearly shown, 313. c. Error must be material, 313. d. Error must be prejudicial, 314. (1) In general, 314. (2) Error in rulings on the pleadings, 314. (3) Error in admission of evi- dence, 315. (4) Error in exclusion of evi- dence, 316. (5) Other errors in relation to evidence, 316. (6) Error in instructions, 317. e. Error must appear from record, 317. (1) In general, 317. (2) Error in rulings on the pleadings, 318. (3) Error in rulings on the evi- dence, 318. (4) Error in instructions, 318. f. Who may allege error, 319. g. Errors not available, 319. (1) Question not raised below, 319. (2) Sufficiency of objection or exception, 324. (3) Inconsistent attitude on appeal, 325. (4) Error caused by appellant, 326. (5) Error favorable to appel- lant, 326. (6) Wrong reasons for correct decision, 327. 16. Decision ob Judgment of Appellate Court, 327. a. In general, 327. b. Rendition of final judgment on reversal, 327. c. Granting new trial, 328. d. Remanding for proper judgment or sentence, 328. e. Modification of judgment, 328. f. Imposing terms on successful party,' 329. 17 Effect of Appeal, 329. 18. Supebsedeas and Bond, 329. a. In general, 329. b. Sufficiency, ,S30. c. Ahiount, 330. d. Additional bond, 330. 8. Actions on appeal bonds, 330. 2U ANK CAS. DIGEST, VOLS. 1-20. 19. Costs, 330. a. In general, 330. b. Damages for delay, 331. 20. Reheabing of Afpeai., 331. 21. Mandate ajst> Pboceedings Below, 331. Adjudication of invalidity of ante-nuptial agreement, see Husband and Wife, 2 a. Allowance of alimony pending appeal, see Ali- mony AND Suit Money, 3 c. Amendments on appeal, see Pleading, 9 e ( 2 ) . Appellate jurisdiction in bankruptcy proceed- ing, see Bankeuptcy, 18. Bail pending appeal, see Bail, 3. Certiorari in aid of appellate jurisdiction, see Cebtiorabi, 1. Death of party pending appeal as abatement of action, see Abatement and Eevival. Duty of counsel in preparation of brief, see Bbiefs op Counsex. Habeas corpus after affirmance, see Habeas COBPUS, 3. Habeas corpus as appellate process, see Habeas Cobpus, 1. New trial after affirmance on appeal, see New Tbial, 3 a. Power of appellate court to disbar attorney, see Attoeneys at Law, 2 a. Preserving for review questions as to conduct of counsel, see Tbial, 4 c. Preserving for review questions as to direction of verdict, see Tbial, 6 d. Quashing void summons on appeal, see Sum- mons AND Peocess, 1. Reduction of penalty on appeal, see Penalties AND Penal Actions. Review of grant or refusal of injunctions, see Injunctions, 7. Review of imposition of fine, see Fines, I c. Review of judgment for damages, see Dam- ages, 15. Review of local assessments, see Special oe Local Assessments, 7 e. Review of rulings on challenges to jurors, see JuBY, 6 e. Temporary injunction in aid of appellate jurisdiction, see Injunctions, 4 a. Particular Actions and Proceedings. Actions for breach of promise of marriage, see Bbeach of Pbomise op Mabeiage, 2 i. Actions for injuries to servants, see Mastee AND Seevant, 3 n (5). Actions for libel or slander, see Libel and Slandeb, 4 i. Actions on contracts of sale, see Sales, 5 d (5). Condemnation proceedings, see Eminent Do- main, 9 m. Construction of wills, see Wills, 8 d ( 3 ) . Decisions on motions for new trials, see New Tbial, 4. Disbarment proceedings, see Attobneys at Law, 2 f. Divorce cases, see DivoBCE, 9. Election cases, see Elections, 8 c. Enforcement of mechanic's lien, see Me- chanics' Liens, 10. Foreclosure proceedings, see Mobtgages and Deeds of Teust, 13 h. Habeas corpus proceedings, see Habeas Cob- pus, 8. Mandamus proceedings, see Mandamus, 3 g. Probate proceedings, see Wills, 7 m. Removal of cause to federal court, see Re- moval OF Causes, 5. Specific performance, see Specific Pebfobm- ance, 5 f. Criminal Proceedings. Criminal cases generally, see Cbiminal Law, 9. Particular crimes, see Labceny, 7; Rape, 2 g; ROBBEEY, 2 d. Discretionary orders granting or refusing per- mission to withdraw plea of guilty, see Cbiminal Law, 6 j (2). Prosecutions for violation of liquor law, see Intoxicating Liquobs, 6 j. 1. Natube of Pboceedings. Beglnnixig of ne-nr snit. — Under the West Virginia statute, an appeal from a cir- cuit court to the supreme court of appeals is the beginning of a new, and not the contin- uation of an old, suit. Wingfield t\ Neall (W. Va.), 9-982. Appeal retained as vrrit of error. — A cause carried up on appeal in a case not appealable will be entered as pending on error, where the appearance of the appellee has been entered within the time limited for a writ of error, though without filing a brief. Jensen V. Eagle Ore Co. (Colo.), 19-519. Error coram nobis. — In Mississippi the writ of coram noiis is applicable to criminal as well as to civil proceedings, but it cannot be invoked to revoke a. judgment of convic- tion in a criminal action by showing that cer- tain jurors, prior to having qualified as such, had formed or expressed opinions unfavorable to the defendant. Fugate v. State (Miss.), 3-326. The only method of review of a criminal case, beyond a review of the events of the trial on writ of error or appeal, is an original proceeding in the trial court on writ of error coram nobis. Beard v. State (Ark.), 9-409. 2. Right of Appeal. a. In general. After satisfaction of judgment. — In an action at law in which no equitable fea- ture is involved a plaintiff who recovers judg- ment for less than the amount claimed, and who subsequently coerces by execution pay- ment of the judgment, cannot, where there is no admission in the pleadings or the evi- dence that the amount of the judgment is due the plaintiff, and where the provisions of the judgment as to the amounts awarded and denied are connected and interdependent, ap- peal from the judgment as an entirety. Adams v. Carter (Miss.), 16-76. b. In criminal cases. Question of law involved. — The statt or a municipality may appeal in any case APPEAL AND EEROR. 285 from a judgment acquitting a defendant, where a question of law lias been decided ad- versely to either. Gulfport v. Stratakos (Miss.), 13-855. Order quashing indlotment. — The state has the right of appeal from an order quashing an indictment. State v. Johnson (S. Car.), 11-721. Necessity of order allowing. — Under the Wyoming statute authorizing the com- mencement in the Supreme Court of proceed- ings to vacate, modify, or annul a judgment in a criminal case, by petition in error in the same manner as in civil cases, there is an absolute right of appeal to that court in criminal cases without any previous order by that court or any justice thereof. Rich- ardson V. State (Wyo.), 12-1048. Necessity of motion in arrest of judg- ment. — A writ of error lies to correct errors apparent on the record even though no motion in arrest has been filed in the trial court. State v. Kelley (Mo.), 12-681. Appeal by United States. — In none of the provisions of the federal statute defining the appellate jurisdiction of circuit courts of appeal is there any indication of an inten- tion to confer upon the United States the right to bring up a criminal case of any grade after a judgment below in favor of the defendant. United States v. Zarafonitis (U. S.), 10-290. Motion to cancel fine. — A motion to cancel a fine imposed in a criminal case on the ground that the cause has abated by the death of the defendant is not a criminal case, and therefore the government may sue out a writ of error to review an order Ranting the motion. United States v. Dunne (U. S.), 19^1145. c. Abridgment of right. Constitutionality of statutes. — It is within the constitutional power of a legis- lature to provide in a city's charter that in all civil cases in which the fine imposed does not exceed a certain amount the judgment of the city court shall be final, and no appeal shall lie therefrom. Chattanooga v. Keith (Tenn.), 5-859. The Australian commonwealth constitution act does not authorize the commonwealth par- liament to take away the right to appeal to the king in council from a judgment of a state court, in an action to enforce payment of an income tax. Webb v. Outrim (Eng. ), 7-84. d. Separate appeals. When necessary. — Separate actions, which have not been consolidated in the trial court, cannot be brought to the supreme court for review by a single appeal or writ of error or embodied in a single transcript; nor can the rule which forbids such consoli- dation in the appellate court be obviated by any stipulation between the parties or their counsel. Mobile Improvement, etc., Co, ■;;, Stein (h\B,.), 17-288, 3. JUBISDIOTION AND PoWEBS OP APPELLATE COUBTS. a. In general. Cases involving constitutional ques- tions.— Under the Virginia constitution, where the jurisdiction of the supreme court of appeals in a case depends solely upon the constitutional question involved, and such question is decided against the appellant, the court has no jurisdiction to pass upon the merits. Postal Telegraph-Cable Co. v. Um- stadter (Va.), 2-511. Where the record on appeal shows that exceptions were taken to instructions based upon the provisions of a statute and that among the reasons for a motion for a new trial was assigned the unconstitutionality of the statute as ground for challenging the correctness of the court's action in giving such instructions, the constitutionality of the statute is sufficiently involved to warrant the appellate court in passing upon the ques- tion. Christy v. Elliott (111.), 3-487. In an action to enjoin a turnpike com- pany from obstructing a public highway by maintaining toll gates and exacting toll from the public having occasion to use such high- way, defended on the ground that the defend- ant has title to at least an easement in the highway and that the injunction would be a denial of due process of law and an impair- ment of the obligation of the defendant's con- tract with the state, and a taking of its property without just compensation in viola- tion of the constitutional guaranties, a con- stitutional question is involved which must be passed upon, even though adversely to the defendant, and the case is one, therefore, of which the Missouri supreme court, rather than the court of appeals, has jurisdiction. State ex rel. Hines v. Scott County Macadam- ized Road Co. (Mo.), 13-656. Cases involving franchises. — Under a statute authorizing appeals to the Illinois supreme court in cases involving a " fran- chise " an appeal from a judgment in a naturalization proceeding is properly taken to the supreme court, because such a judg- ment permits the petitioner to exercise the elective franchise or prevents him from doing so. United States v. Hrasky (111.), 16-279. Cases involving questions of tort. — The question arising from a refusal of the trial court to set aside a verdict on the ground that it was excessive is one of fact and not of law, and for this reason cannot be reviewed on appeal by the Oregon supreme court. Wolf t'. City, etc., R. Co. (Oregon), 15-1181. Appeal not taken in time. — On appeal, where it appears that the appeal from the judgment was not taken within the time pre- scribed by statute, and that no valid appeal has been taken from the order denying a motion for a new trial, the appellate court is without authority or jurisdiction to exam- ine the evidence for the purpose of ascer- taining whether it is sufficient to support the verdict and judgment. Trull v. Modern WPPdmen of An»prio» (Id^ho), 10-53, 286 ANN. CAS. DIGEST, VOLS. 1-20. lletermination of collateral questions. — The supreme court of Colorado has juris- diction to pass upon the effect of an agreement made in reference to the judgment brought up for review, #hea sflch agreement is made a matter of record in that coUrt. Dueey V. Patterson (Colo.), 11-393. Giving ad-trice before jndgment. — The Connecticut supreme court of errors will give advice to a trial court upon a reservation in respect to questions of law involved thefein in advance of the time when the cause is ready for final judgment, where the questions presented are such as must certainly enter into the final determination of the cause and the advantages to be derived from a prelimi- nary adjudication of them are manifest and distinct. SouthiHgton v. Southington Water Co. (Coiin.), 13-411. b. Amount in controversy. Appealable amount in general. — Where, after an action has been brought against the makers and indorsers of a note for two thousand dollars, the makers sUe the iriaorser in warranty, elaitning that no 'con- sideration was given for the note, and asking that the indofser shall guarantee them against any judgment obtained in the main action, .ifld also asking that an agteement under v. hich the makers were to befeome liable for three thousand dollars shall be declared void, and, the two actions being tried together, jtidgment is given for the plaintiff in the action on the note, while the action in war- ranty is dismissed, the amount in disptite on appeal from the latter judgttient is the prin- cipal of the note sued on, to which the costs of the adtion in warranty cannot be added ih 6rder to give the appellate court jurisdic- tion; and the dgreenlent songht to be avoided by the plaifttilM in warranty is only a col- lateral matter to the issue raised on appeal, i(nd cannot be Considered in determining the amount in dispute. Labrosse v. Langlois (Can.), 13-392. Consolidated actions. — In determining the jurisdiction of an appellate court with respect to the amount in cbntrovefsy, the amounts involved in separate suits which have been consolidated cannot be added to- gether. Covington Bros. & Co. v. Jordan (Ky.), 15-491. Addition of interest. — Interest accru- ing after the commencement of an action; unless specially claimed as damages, cannot be added to the amount claimed in the declar- ation in determining the amount in contro- \CTsj for the purpose of giving jurisdiction on appeal. Labrosse v. Langlois (Can.), 1.3-392. Cases involving construction of stat- utes. — The supreme coUrt of Indiana has appellate jurisdiction of a case involving less than fifty dollars where the construction of a statute is in question. Stults v. Allen Coun- ty (Ind.), 11-1021. The supreme court of Indiana has no au- thority to review on the merits an action to recover coroner's fees amounting to less than fifty dollars, but only the qlnestion of the con- struction of the statute involved. Stults r. Allen County (Ind.), 11-1021. Proceeding to sell decadent's real estate. — In a proceeding in the county court to sell the land of an insolvent estate of a decedent. Where the court proceeds under the Tennessee statute according to the forms of chancery and does not follow the peculiar form of procedure provided by the Tennessee statute for the distribution of decedents' estates, an appeal lies directly from the county court to the supreme court, notwith- standing the fact that the county court has exclusive jurisdiction of the proceeding on account of the value of the estate. Key j). Harris (Tenn.), 8-200. Statute enacted after judgmenti -' For the purpose of determining whether the amount in controversy in a cause is sufficieiit- ly large to confer a right to take an appeal or to sue out a writ of error, a statute in force at the end of the term at which, a judg- ment is rendered is controlling, though it has been passed since the rendition of Sie judg- ment. Allison V. Wood (Va.), 7-721. Appeal by both parties, — The Iowa supreme court will not ordinarily strike an argument from the file because -it does not strictly comply with the rules of that court, nor will the appeal of one party be dismissed because involving less than $100, when both parties have appealed and the entire amount involved is about $600. Schultz v. Ford (Iowa), 12-428. c. Federal courts. ,(1) In general. Source of po-wers and practice. — The power and practice of the federal apffellate courts are derived exclusively from the con- stitution, the acts of congress, the common law, the ancient English statutes, and , the rules and practice of the courts of the Uni^d States, and they are neither controlled nor affected by the statutes of the states or tl!,e pra,ctice of the state courts. Francisco v. Chicago, etc., R. Co. (U. S.), 9'-628. The federal statute providing that the pro- cedure in the federal circuit and district courts sl;all conform to the procedure in the state courts has no application to the prac- tice or procedure of the federal appellate courts, or to matters relating to bills of ex- ceptions, motions for new trials, or any other means adopted to secure a review of the judgr ments or decrees of the federal circuit or district courts, but its effect is limited to the practice and proceedings in the trial courts to secure the judgments of such courts. Francisco v. Chicago, etc., E. Co. (U. S.), 9-628. (2) United States supreme court. Exhaustion of remedy in state courts. — Where the action of a state trial court in refusing to quash an indictment or a jury panel caimot under the state laws be re- viewed by the state court of last resort, though the motion to quash was passed on APPEAL AND EREOR 28'r federal grotinds, and where the accused is not elititled to remove the cause to the fed- eral circuit court on the grounds of denial of equal Qivil rights, he has his remedy by a wTit of error which will rUn from the supreme cdUrt of tlie United States to the highest state court in which a decision can be had after the state coUrt of last resort has finally disposed of the matter of which, under the local law, it may take cognizance. Kentucky r. Powers (U. S.), 5-692. Cases inVolviiis constitntioUHl qnes- tions. — On a writ of error from the United States supreme court to review the decision of a state court upholding the constitution- ality of a state statute, while the mere rejec- tioYi in the state court of offer of proof does not strictly present a federal question, the exclusioii of evidence upon the ground Of the incompetency or immateriality under the stat- ute may be regarded as showing What in the opinion of the said court is the sCope and iKeanifig of the statute. Jacobson v. Com. (U. S.r, 3-f6S. Denial of due process of law. — The decision of a State court on a question of law, however wrong and however contrary to j)TeH6us decisions, is not an infraction of tM fourteeUth amendment of the United States constitution merely because it is wroig, or because earlier decisions are reversed. Patterson v. Colorado ex rel. Attorney-Gen- eral (U. S,), 10-689.^ Reasonableness of f Feigbt rates. — On writ of error from the United States supreme court to a state court in a case involving the question whether a state court has power to grant a shipper relief upon a finding that the rate of freight charged for an interstate shipment is unreasonable* where it appears that such rate has been filed and promul- gated by the carrier under, the interstate commerce act, there is a federal question presented which is, sufficient to confer juris- diction upon tlip supreme court. Texas, etc., B. Co. V. Abilene Cotton Oil Co. (U. S.), 9-1075. Denial of f nil faith and credit. — The federal supreme court has jurisdiction to review; a decision of a state court of last re- sort denying a claim distinctly made by the defendant that giving full faith and credit to the judgment of a court of another state would prevent a recovery. American Express Go, V. Mullins (U. S.), 15-536. Denial of federal immunity.— The fail- ure of thp ?tate court to pass upon a federal right of immunity specially set up of record is not conclusive, but the Supreme Court of the United States will decide the federal question if the necessary effect of the judg- ment is to deny a federal right or immunity specially set up or Claimed, and Which, if recognized and enforced, would require a judgment different from one resting upon some ground of local or general law. Chi- cago, etc.. Ft. Co. r. People (U. S.), 4-1175. Where a proposed action of a state drain- age commission in requiring a railroad com- pany to remove a bridge or culvert over a Strenm and replnce jt with another is sus- tained by a judgment of the state court upon some ground of general or local law, without passing Upon the questions whether the rail- road company will be deprived of property without due process of law or will be denied the equal protection of the laws, as con- tended by the railway company, the supreme court of the United States has jurisdiction to re-examine the final judgment of the state court so far as it involves the federal right or immunity specially set up by the railway company. Chicago, etc., E. Co. v. People (U. S.), 4-1175. Compliance with state constitution.—' Where the supreme court of the United States, in reviewing a decision of a state court, de- termines that the provisions of the state con- stitution or laws involved in the cause do not contravene the constitution or the laws of the United States, it will not review a decision of the state court that the local pro- visions have been complied with. Eawlins V. Georgia (U. S.), 5-783. Where the condemnation of land is held by the highest court ' of the state in Which the land is situated to be authorized by the constitution and laws of the state, that aspect of the decision of the state court cannot be reviewed by the United States supreme court. Sairston v. Danville, etc., E. Co. (U. S.), 13-1008. Matters of state cognizance. — The United States supreme court, in passing upon a writ of error to review a judgment of a state court granting a divorce, will con- sider federal questions only, and will not consider matters' of state cognizance, such as the alleged fraud in contracting the marriage and the subsequent laches of the spouse seek- ing the divorce. Nor will the court consider the question whether it was erroneous for the state court to exclude from the evidence a record of a foreign divorce set up as a defense. Haddock v. Haddock (U. S.), 5-1. Questions of local law. — On writ of error from the United States supreme court to review a judgment of a state court upon an information for contempt consisting in the publication of articles reflecting upon the motives and conduct of a state court in cases pending therein, objections that the informa- tion for contempt was not supported by an affidavit until after it was filed, that the cases referred to in the article complained of were not pending, and that the articles did not constitute a contempt, will not be considered by the supreme court, as they raise questions of local law purely. Patter- son V. Colorado ex rel. Attorney-General (U. S.), 10-689. Federal question not decisive of issues. — Where the judgment of a state court rests upon an independent separate ground of local or general law, broad enough or sufficient in itself to cover the essential issues and control the riglits of the parties, regardless of how a federal question raised on the record might be determined, the su- preine court of the United States will affirm or dismiss as the one course or other may be appropriate, without considering that ques- 2»» AJNJN. CAS. UiGEBT, VULS. 1-2U. tion. Chicago, etc., R. Co. v. People (U. S.), 4-1175. Direct appeal from circuit court.— In a suit brought by a waterworks company in a federal circuit court to enjoin a munici- pal corporation from depriving the complain- ant of its rights under an existing contract between tlie two corporations, which is not inherently invalid and which has not been broken by the complainant, an appeal from the decree of the circuit court may be taken directly to the supreme court of the United States. Vicksburg r. Vicksburg Waterworks Co. (U. S.), 6-253. Where a jurisdictional question is certi- fied to the federal supreme court from a decree of a federal circuit court dismissing a bill for want of jurisdiction, and the com- plainant in addition appeals from such de- cree directly to the supreme court on the ground that the case involves a constitutional question, the latter court is not limited in its decision to the question of the jurisdic- tion of the circuit court, but may decide the case on its merits. North American Cold Storage Co. v. Chicago (U. S.), 15-276. A motion to quash an attachment in a United States circuit court on the groimds that the property is not subject to attach- ment and that the defendant has not been served with process, presents a question of jurisdiction which, under the circuit court of appeals act (Act March 3, 1891, c. 517, § 5; 4 Fed. St. Ann. 398), may be taken direct to the supreme court for review. Davis V. Cleveland, etc., E. Co. (U. S.), 18-907. Effect of vrrit of error from circuit court of appeals. — The suing out of a writ of error from the circuit court of ap- peals to a circuit court is not a bar to a writ of error fom the supreme court to the circuit court on the ground that the jurisdic- tion of the circuit court was in question. Davis V. Cleveland, etc., R. Co. (U. S.), 18-907. Direct appeal from district court. — A decree of a district court of the United States dismissing a libel for salvage services, alleged to have been rendered in extinguish- ing a fire on a vessel in process of repair in a dry dock, on the ground that the vessel in question was not a proper subject of salvage services at the time when the services sued for were rendered, and was not rescued from any sea peril, is a decree dismissing a cause for want of jurisdiction within the meaning of the fifth section of the act of March 3, 1891 (4 Fed. St. Ann. 398), allowing a direct appeal to the supreme court of the United States. The Steamship Jefferson (U. S.), 17-907. The jurisdiction of the United States su- preme court of a direct appeal from a decree of a district court in admiralty dismissing a libel for contribution brought by a joint wrongdoer who had paid a judgment recov- ered against him in a suit at common law, founded on the wrong, to which suit the other wrongdoer was not made a party, cannot be defeated on the theory that the dismissal, though expressed to be for want of jurisdici tion, was really on the merits, b«c«^U89 pay- ment of a judgment at common law is not ground for contribution from a wrongdoe not a party to the suit. The Ira M. Hedge (U. S.), 20-1235. I^ffldency of certificate of Jnrlsdio tion. — The informality or insufficiency o a certificate of jurisdiction under the statut authorizing a writ of error directly to th supreme court from a circuit court (Ac March 3, 1891, c. 517, § 5; 4 Fed. St. Ani 398) is immaterial, where the record show that the only question tried and decided r the circuit court was one of jurisdictioi Davis V. Cleveland, etc., R. Co. (U. S.) 18-907. On a direct appeal from a federal distric court to the supreme court of the Unite States, where it is apparent on the face o the record, irrespective of the recitals in th order allowing the appeal, that the onl; question decided below was one of jurisdic tion, and where the decree appealed froi shows on its face that the cause was dii missed for want of jurisdiction, the questio 01 jurisdiction, if of such a character aa t sustain the appeal, is sufficiently certifie xmder the fifth section of the act of Marc 3, 1891 (4 Fed. St. Ann. 398), without separate certificate. The Steamship Jeffei son (U. S.), 17-907. (3) United States circuit court of appeali Diversity of citizenslilp. — A Unite States circuit court of appeals has jurisdii tion of an appeal from a circuit court c the United States, where the suit is basei upon diversity of citizenship as well as upo an alleged violation of the federal constiti tion and where other than federal questior are involved. Meridian v. Farmers' Loai etc., Co. (U. S.), 6-599. Appeals from interlocutory orders.- A United States court of appeals has jurii diction of aa appeal from an interlocutor order of a circuit court granting a prelin inary injunction, though the cause is of sue a nature that an appeal from the final decn will lie directly from the circuit court i the United States supreme court. Graing( V. Douglas Park Jockey Club (U. S.), 8-99 Appeals from territorial courts.— federal circuit court of appeals has jurisdi tion to entertain a writ of error to revie a judgment of the supreme court of a ter: tory affirming a conviction for a crime oth than a capital offense, whether the offen consists of a violation of a federal or a ten torial statute. Miller v. Oklahoma (U. S. 9-389. Determining jurisdiction of oiron courts. — Federal circuit courts of appea have no authority to pass upon questio: challenging the jurisdiction of the circu courts, as the statute creating the cirei courts of appeal does not give them su authority. Boston, etc., R. Co. v. Gok (U. S.), 9-384. d. Appeals from intermediate appellate cour To Nexr Tork court of appeals. — T New York court of appeals haa no jurisd APPEAL AND EEEOE. 289 tion of appeal from a decision of tlie appel- late division on the law and facts where a material question of fact is involved; but where inferences from the vmcontradicted evi- dence all point in one direction so that no reasonable mind could reach other than one conclusion, there is no question of fact and the court of appeals has jurisdiction of the appeal. Matter of Totten (N. Y.), 1-900. Where a judgment in an action for dam- ages has been unanimously affirmed by the appellate division of the supreme court of New Yorli, it is sufficient to give the court of appeals jurisdiction of an appeal there- from for the appellate division to certify that a question of law is involved which ought to be reviewed by the court of appeals without specifying the question for review. Kurz V. Doerr (N. Y.), 2-71. The New York court of appeals may review a ruling by a trial court denying a defend- ant's motion to dismiss the complaint for a failure to state facts sufficient to constitute a cause of action, though the ruling has been unanimously affirmed by the appellate divis- ion of the supreme court. Kelly v. Security Mut. Life Ins. Co. (N. Y.), 9-661. To Illinois supreme court. — Under the Illinois practice act, where an appellate court has rendered a judgment reversing the trial court without remanding the cause and has recited in its judgment the facts as found by it different from the finding of the facts by the trial court, such judgment is final and conclusive so far as the supreme court is concerned as to all matters of fact in con- troversy. Malkan v. Chicago (111.), 3-1104. To Indiana supreme court. — A case which is transferred from the Indiana ap- pellate court to the Indiana supreme court is pending in the latter court in like man- ner and to all intents and purposes as though it had been appealed directly to such court. Kraus v. Lehman (Ind.), 15-849. A petition to transfer a case from the Indiana appellate court to the Indiana su- preme court is sufficient if it appears there- from that the opinion of the former court contains wrong declarations of legal princi- ples upon points decided which contravene ruling decisions or precedents of the latter court. Kraus v. Lehman (Ind.), 15-849. An objection to the sufficiency of a petition to transfer a case from the Indiana appellate court tp the Indiana supreme court cannot be made upon a motion for the rehearing of the decision of the supreme court. Kraus V. Lehman (Ind.), 15-849. e. Rules of appellate court. Change pending appeal. — A change in the rules of an appellate court in respect to the manner in which errors claimed to have been committed at the trial should be specified in a motion for a new trial has no effect upon a ease in which it is not pos- sible to comply therewith by reason of the case having passed beyond the stage of a motion for a new trial. Missouri, etc., E. Co. V. Smith (U. S.), 10-939. Abolition or impairment by legisla- VoLs. 1-20 — AfTN. Cas. Digest. — 19. ture. — A party to an appeal who seeks the benefit of the Indiana statute providing for a review of the evidence on appeal of cases not triable by a jury must take it subject to the rules of the appellate tribunal regulat- ing the conduct of its business, which rules cannot be abolished or impaired by the legis- lature. Parkinson v. Thompson (Ind.), 3-677. f. Termination of jurisdiction. Transmission of record to lower court. — Under the Wisconsin statute providing that the clerk of the supreme court shall within sixty days after judgment transmit the papers " unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such party to move for a rehear- ing," the jurisdiction of the supreme court is terminated, where the clerk transmits the record in less than sixty days without dis- obedience of any order or rule of court. Ott V. Boring (Wis.), 11-857. The jurisdiction of an appellate court over a given cause terminates whenever, regularly, without inadvertence or fraud, it returns the record to the court from which the record came; and the appellate court thereafter has no power to vacate or modify its judgment, though it may correct the record so as to mal<:e it express that judgment properly. Ott V. Boring (Wis.), 11-857. Under rule 42 of the Wisconsin supreme court, the right to a litigant to move to modify a final determination of that court is, like a motion for a rehearing, limited to the thirty days during which in all cases the records are required to be retained, although it is within the power of the court to enlarge the time within which any act may be done. Ott V. Boring (Wis.), 11-857. 4. Appealable Judgments and Obdebs. a. In general. Ex parte orders. — An appeal does not lie from an ex parte order, such as an order dismissing a cause without prejudice on an ex parte application of the plaintiff. Wilson V Martin (Wash.), 10-37. Order denying motion to court ver- dict. — The Wisconsin statute does not authorize an appeal to the supreme court from an order of the circuit court denying the plaintiff's motion to correct a verdict and enter a judgment in his favor. Wolfgram v. Schoepke (Wis.), 3-398. Order refusing leave to amend. — The refusal to allow the amendment of a pleading on the ground of want of power is appealable. Lassiter v. Norfolk, etc., R. Co. (N. Car.), 1-4.56. Orders relating to receivers. — No appeal lies from the refusal of a court of equity to vacate an order appointing a re- ceiver, such order being merely interlocutory, and there being no statute giving a right of appeal. Gillett v. Higgins (Ala.), 4-459. Order aivarding ivrit of assistance. — An appeal vvill lie from an order awarding a writ of .assistance in p foreclosure proceed- 290 A-N-N. CAS. DIGEST, VOLS. 1-20. ing after the sale has been confirmed and deed ordered, subject to the conditions of an appeal from an order confirming the sale. Escritt V. Michaelson (Neb.), 10-103&. Order dismissing action. — An order for the dismissal of an action is not an ap- pealable order under the statutes of North" Dakota, and an attempted appeal from such an order confers no jurisdiction on the su- preme court. Dibble v. Hanson (N. Dak.), 16-1210. An order dismissing an action as frivolous and vexatious is for the purposes of appeal an interlocutory order. In re Page (Eng.), 18-393. Order sustaining demurrer to evi- dence. — A ruling sustaining a demurrer to evidence is an appealable order; that is, one which may be reviewed by independent pro- ceedings in error begun immediately, with- out waiting for a final judgment to be ren- dered. White V. Atchison, etc., E. Co. (Kan.), 11-550. When a demurrer to a plaintiff's evidence is sustained, and thereafter a judgment is rendered in favor of the defendant for the costs of the action, in the absence of some special reason to the contrary this will be deemed a final judgment, although the entry neither refers to the defendant's going hence without day or to the plaintiff's taking noth- ing by his action nor contains any equivalent expression. White v. Atchison, etc., E. Co. (Kan.), 11-550. Order suspending default judgment. — An order by the superior court of Cin- cinnati, that a default judgment rendered by the same court at a previous term be sus- pended and execution thereon stayed uctil the case should be tried on its merits, and granting leave to defendant to file answer, is an order affecting a substantial right in a summary application after judgment, and is a final order within the meaning of sec- tion 6707, Eevised Statutes, from which error may be prosecuted. Van lugen v. Ber- ger (Ohio), 19-799. Refusal to require prosecution bond. — A refusal to require a prosecution bond is not a judgment upon the merits of the con- troversy materially affecting the ultimate result and is not appealable. Christian v. Atlantic, etc., E. Co. (N. Car.), 1-803. Void judgments. — A void judgment is reviewable on appeal. Oregon E., etc., Co. V. Eastlack (Ore.), 20^692. A party is entitled to appeal from and obtain a reversal of a void judgment brought to the supreme court on a case made. Flee- man v. Chicago, etc., E. Co. (Kan.), 20-276. Finality of decree. — A decree in equity which finally disposes of the entire merits of a cause is a final decree, and is not rendered interlocutory by the fact that it contains an order of reference to a master specifying the principles on which the accounts between the parties are to be stated; but a decree not complete in itself, but requiring further ju- dicial action on the part of the chancellor, is interlocutory and need not be appealed fro^l, lliough it contains an pv^^r ot ^e|«r-> ence specifying the basis on which the accounts are to be stated. Gray v. Ames (111.), 5-174. b. In habeas corpus proceedings. Order denying writ. — A person in cus- tody under a criminal charge is not entitled to have reviewed by appeal or error an order denying his petition for a writ of habeas corpus, as such order is not of final and conclusive character. People ex rel. Magee V. McAnally (111.), 5-590. Final order. — A writ of error does not lie from the supreme court of the United States to the supreme court of the Philippine Islands, or to the district or the circuit court of the United States, to review the final order in a habeas corpus proceeding, the only mode of review being by appeal. Fisher v. Baker (U. S.), 7-1018. Judgment awarding custody of child. — An appeal will lie from a judgment of the Kansas district court in habeas corpus pro- ceedings determining the rights of conflicting claimants to the custody of a child. Bleak- ley «. Smart (Kan.), 11-125. c. In bankruptcy proceedings. Interlocutory decree granting injunc- tion. — Under the provisions of the United States circuit court of appeals act that an appeal may be taken from an interlocutory order or decree of a district or a circuit court granting an Injimction, an appeal lies from an interlocutory decree of a district court, . exercising jurisdiction as a court of bank- ruptcy, awarding an injunction; and this is so though the appeal involves a question as to the jurisdiction of the district court to issue the injunction complained of, provided the circuit court of appeals would have juris- diction of an appeal taken from a final de- cree in the case. O'Dell v. Boyden (U. S.), 10-239. A petition by a trustee in bankruptcy to determine conflicting claims to an asset con- sisting of his bankrupt's membership in a stock exchange, is a hearing under " a pro- ceeding in bankruptcy " within the meaning of the provision of the National Bankruptcy Act that the circuit courts of appeal shall have jurisdiction " to superintend and revise a matter of law " in proceedings of inferior courts of bankruptcy, and is not " a contro- versy arising in bankruptcy proceedings " within the provision of the statute that the circuit courts of appeal shall have appellate jurisdiction " of all controversies arising in bankruptcy proceedings;" and therefore an interlocutory decree awarding an injunction in such proceeding is not rendered appealable by the provision of the circuit court of ap- peals act giving the circuit court of appeals jurisdiction of an appeal from an interlocu- tory order granting an injunction in a case in which an appeal from a final decree may be taken. O'Dell v. Boyden (U. S.), 10-239. d. In condemnation proceedings. Order appointing appraisers. — In an APPEAL AND EEEOE. 291 diana statute, where the trial court overrules the defendant's written lobjections to the right of the plaintiff to maintain the proceed- ing, and enters an interlocutory order ap- pointing appraisers, the defendant may take an appeal without first making a motion for new trial, as the statute makes no provision for such a motion. Morrison v. Indianapolis, etc., R. Co. (Ind.), 9-587. e. In election contests. Adjudication of no election. — In a local option election contest instituted by certain electors, an order by the contest board adjudging that " the return made by the board of canvassers in the matter of said election be, and it is, set aside, canceled, and held for naught," and further adjudging that "there was no election, and that no party is entitled to have any fact certified concerning said election," is a final order or judgment from which an appeal will lie under the Ken- tucky statute to the circuit court. Erwin V. Benton (Ky.), 9-264. f. In contempt proceedings. See also Contempt, 6. Decree dismissing petition. — A decree of the superior court denying and dismissing a petition to have trustees adjudged in eon- tempt for failure to pay to complainant a sum directed to be paid to him by a prior decree, is a final decree from which an ap- peal lies to the supreme court. Jastram v. McAuslan (R. I.), 17-320. g. In criminal cases. Judgment on plea of gnilty. — A judg- ment of conviction in a criminal case on plea of guilty by the accused, when properly en- tered, is equivalent to a judgment by con- fession, and, therefore, is not reviewable on appeal or writ of error. Before proceeding to make such a plea the foundation of a judgment, however, the court should see that it is made by a person of competent intelli- gence, freely and voluntarily, and with a full understanding of its nature and effect, and of the facts on which it is founded. Where this is not done, the judgment is improperly entered and may be reviewed on appeal. Lowe V. State (Md.), 18-744. Where a person accused of crime has been summoned and called by the state's attorney as a witness for the state against an alleged accomplice, and has testified fully, truth- fully, and at length on behalf of the state, and thereafter pleads guilty, and the court immediately enters judgment of conviction on such plea, without any investigation or consideration of the facts, it cannot be said that the judgment is properly entered and, therefore, nonappealable. Lowe v. State (Md.), 18-744. h. Judgments for costs. Case finally disposed of. — An appeal will lie in a ease finally disposed of by a peremptory instruction for the appellee and the deiiiaj of ^he fppeH(i,nt's motion im a new trial, although the only judgment entered is for the appellee's costs. Willis v. Maysville, etc., R. Co. (Ky.), 13-74. Decree for estraordinary costs.— Appeal lies from a decree in equity merely awarding as costs to the successful party the sums retained by the receiver from the trust fund for his compensation and for attorney's fees, as such costs are extraordinary and not discretionary. Nutter v. Brown (W. Va.), 6-94. i. Voluntary judgment of nonsuit. Writ of error. — No writ of error will lie at the suit of a plaintiflf to review a judg- ment of nonsuit or dismissal rendered in a federal court at his request or with his con- sent. Such a judgment, however, rendered on the motion of the defendant and against the objection and protest of the plaintiff, is reviewable at the latter's instance. Fran- cisco V. Chicago, etc., R. Co. (U. S.), 9-628. Where at the close of a trial the defendant moves the court to instruct the jury to re- turn a verdict in his favor, and the motion is granted, but before the instruction is given the plaintiff asks and is granted by the court leave to take an " involuntary " nonsuit, and judgment is rendered accordingly, the non- suit is entered with the consent and at the request of the plaintiff, and he cannot main- tain a writ of error to review it, as describ- ing the nonsuit by a false epithet does not change its character. Francisco v. Chicago, etc., R. Co. (U. S.), 9-628. 5. Paeties to Appellate Pboceedinqs. a. Who may appeal. Right of government to appeal, see Criminal Law, 5 a. From judgment against garnishee. — Appeal may be taken by the principal defend- ant in an action from judgment against the garnishee. Badger Lumber Co. v. Stern (Wis.), 3-802. From order against municipal coun- cil. —One of the members of the municipal council has a status to maintain an appeal from an order in the nature of a mandamus requiring the council to submit a local option law to the electors of the municipality. In re Williams (Can.), 14r-481. Party entering judgment. — The fact that the final judgment upon a verdict is entered on motion of the unsuccessful party does not preclude the latter from obtaining a review of errors in the court of last resort. Carlson 1J. Benton (Neb.), 1-159. Party not prejudiced by decree. — • When a bill for an injunction is dismissed upon the complainant's own motion at his own costs, the decree is wholly in favor of the defendant and he is not entitled to ap- peal. Williams v. Breitung (111.), 3-506. When a bill for an injunction is dismissed upon the complainant's own motion at his own costs, the right of the complainant to file another bill for the same matter is not sucJ^ preau4Jce to the right o^ tUf def^dftni 292 AISTK CAS. DIGEST, VOLS. 1-20. as to give Iiim the right to appeal from the decree, and the appellate court will dismiss the appeal without passing upon the merits of the case. Williams v. a:eitung (111.), .V.'506. Respondent iirho has obeyed man- damns. — A respondent in mandamus pro- ceedings against whom a writ has been issued and who has performed its commands, after t!ip allowance of a supersedeas and before his motion for a new trial has been disposed of, cannot review by appeal or proceeding in error the question whether the writ should have been granted, especially where the judg- ment complained of provides for his reim- burseraent for costs and where his official term lias meanwhile expired. Betts v. State ex rel: Jorgensen (Neb.), 2-625. Separate petitions in error. — On pro- ceedings in error to review a judgment for (:he plaintiff in an action, where it appears that each of the defendants made a separate motion for a new trial, and it further ap- pears from a fair interpretation of the record that all of the separate motions were ruled upon by the trial court, the reviewing court will not decline to consider separate peti- tions in error merely because the order over- ruling the motion used the singular noun " motion " instead of the plural noun " mo- tions." Goken v. Dallugge (Neb.), 9-1222. Separate appeals. — Where actions are tried together merely for convenience and the plaintiffs are not united in interest, but al- lege separate grievances, and the verdict ia substantially separate as to each, there should be separate appeals. Williams v. Carolina, etc., E. Co. (N. Car.), 12-1000. b. Joint parties. Persons not parties belox7. — A writ of error must be sued out in the names of the parties to the proceedings below and in no other names. Wuerzburger v. Wuerz- burger (111.), 5-628. A writ of error will be dismissed if it joins as defendants in error persons whom the record does not show to have been made parties below, or to have an interest in the subject-matter of the proceedings; and an appellate court will not hear evidence to show that such persons have an interest in the proceedings. Wuerzburger v. Wuerz- burger (111.), 5-628. One who was not a party in the court below to a proceeding and judgment from which an appeal is prosecuted need not be joined as a party upon the appeal. Carr v. Duhme (Ind.), 10-967. Hnsband and wife. — Where a bill filed against a husband and wife to foreclose a mortgage on their homestead is defended by the husband and wife on the ground that the certificate of acknowledgment is void, a de- cree of foreclosure is prejudicial to both, and on appeal therefrom the husband and wife may jointly assign the decree as error. Sandli'n r. Dowdell (Ala.), .5-459. Judgment against several jointly. — Where judgment in an action at law is rendered against several defendants jointly. one of them cannot appeal alone except upon permission granted by • the appellate court pursuant to his application for a writ of summons and severance. Oldenburg v. Dor- sey (Md.), 5-841. The Washington statute providing that upon an appeal the supreme court may af- firm, reverse, or modify any judgment or order appealed from, as to any or all of the parties, and the statute providing that any party not appealing or joining in the appeal of his codefendant shall not derive any bene- fit from the appeal, except from the necessi- ties of the case, have the effect of making every judgment which is capable of being re- versed a several judgment for the purposes of an appeal; and therefore where one of several defendants in an action for tort, wherein the liability of the several defend- ants is independent and not interdependent, appeals from a joint judgment against all the defendants, the revers&.l of the judgment as to the appealing defendant does not neces- sarily operate as a reversal of the judgment as to the defendants not appealing. Shreeder V. Davis (Wash.), 10-77. Joinder xrithout consent. — Under the Illinois statute it is permissible for a plain- tiff in error to join his coplaintiffs or co- defendants in the writ of error without their consent; and if the parties whose names are thus used choose to abide by an erroneous judgment or decree and refuse to appear and assign errors, they must be summoned and severed, and then, after the severance, the writ may be prosecuted in the name of the said coplaintiff or codefendant alone. Wuerz- burger V. Wuerzburger (111.), 5-628. Effect of improper Joinder. — The rule that a motion for a new trial is indivisible cannot be invoked to defeat the review of a meritorious petition in error filed by a minor defendant, whose guardian ad litem has inad- vertently joined her with the mere nominal defendant who had no rights involved in the controversy. Godfrey v. Smith (Neb.), 10-1128. Amendment to cure nonjoinder. — Where an administrator d. b. n. c. t. a. files in an equity court a petition for the construc- tion of a will and for directions as to pay- ment, stating that there are no debts and that the estate is ready for distribution, but that there are confiieting claims between per- sons claiming distributive shares under the will, the contest being between such persons, and after the verdict and decree some of the losing parties except and make defend- ants in error all in whose favor such verdict and decree are rendered, serving them with process, but not serving the other losing parties, such parties may, upon motion, be made plaintiffs in error, and upon such amendment a motion by the defendants in error to dismiss the writ of error because of the absence of such parties should be over- ri-led. Crossley v. Leslie (Ga.), 14-703. c. Substituted parties. Personal representative of decedent. — Where, in an action by a member of ^ APPEAL AND EEROB. 293 partnership of attorneys to recover for pro- fessional services, a judgment Is rendered against the plaintiffs on a counterclaim for breach of their duty as attorneys, and one partner dies thereafter, the personaJ repre- sentative of the deceased partner is a neces- sary party appellant to an appeal from the judgment on the counterclaim. Nevpman v. Gates (Ind.), 6-649. 6. Notice op Appeal. Sufficiency. — Notice of appeal held suf- Bcient. Estate of Sanders (Wis.), 5-50S. — error as to date of judgment. — A notice of appeal is not vitiated by the fact tliat it incorrectly states the date of the entry of the judgment, vphere no claim is made by tlie respondent that he has been misled or in any way prejudiced by the error. Price v. Western Loan, etc., Co. (Utah), 19-589. — description of judgment. — A notice of appeal shows that the appeal is from the judgment in the casp and not merely from the order denying a motion for a new trial, where it recites that, the appeal is " from the judgment and thf> whole thereof, made, rendered and entered ... on the 8th day of December, A. D. 1906, at which said time the court denied and overruled the defend- ant's motion for new trial; " the date given being that of the denial of the motion for a new trial, and not the date of the entry of the judgment which was Sept. 26, 1906. Price V. Western Loan, etc., Co. (Utah), ie-589. Time for filing. — The provisions of the Montana statute that, an appeal from a judg- ment of the justice of the peace to the dis- trict court shall be taken " by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party or his attorney," is mandatory, and therefore an appeal is not perfected unless the filing of the notice precedes or is contemporaneous with the service of the notice. State ex rel. Hall V. District Court (Mont.), 9-728. Parties entitled to notice. — Under the Idaho statute requiring notice of an appeal to be served upon the " adverse party," the " adverse party " meant by the provision is any party who has an interest that would be prejudicially affected by a reversal of the judgment. Nelson Bennett Co. V. Twin Falls Land, etc., Co. Udaho), 13-172. In an action to recover damages for tort brought against several defendants, where at the close of the evidence for plaintiff a mo- tion for a nonsuit is sustained as to one of the defendants, and the cause thereafter pro- ceeds against the other defendants and a ver- dict is rendered against such defendants; and the judgment of the court is written upon two separate pieces of paper in favor of the de- fendant upon the motion for a nonsuit and in favor of the plaintiff against the defend- ants, against whom the verdict is rendered; and sueli papers are filed in court at different dates and entered in the judgment dockets at different dates; and the defendants, against whom the judgment is rendered, appeal from the judgment or tluit part of the judgment rendered against them, and do not appeal from the judgment rendered on the motion for nonsuit, tlie defendant in whose favor the judgment of nonsuit is entered is not an ad- verse party as to that portion of the judg- ment from which the appeal 'a taken, and could in no way be prejudicially affected by a reversal of such part of the judgment, and need not be served with the notice of appeal. McClain v. Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. Persons made parties defendant in an ac- tion to foreclose a mechanic's lien who take no part in the case, file no pleading and make no claim that they are entitled to any lien or that any amount is due them, and , as to whom no finding is made for judgment ren- dered that either grants or denies them any- thing, are not adverse parties who are en- titled to notice of an appeal from the judg- ment, although they make a general appear- ance in the case. Nelson Bennett Co. v. Twin Falls Land, etc., Co. (Idaho), 13-172. 7. Time to Appeal. ii. In general. Effect of deatb of party. — When the six months' limitation for an appeal has commenced to run, the subsequent death of the judgment plaintiff and the nonappoint- ment of any personal representative until after the six months have expired will not permit the judgment defendant to appeal after such appointment is made. Ropes v. Goldman (Fla.), 7-393. Extension by court. — Under the On- tario Mining Act, when the time for lodging a certificate of the setting down of an appeal has expired, and no certificate has been lodged, the appeal will be quashed on motion, the court having no power to extend the time. In re Rogers (Can.), 16-476. Slaking or completing record. — The Connecticut statute providing that " all pro- ceedings to malce or complete the record on . . . appeal shall be suspended during the months of July and August " does not pre- vent either the court or counsel from filing the necessary papers to make or complete a record on appeal, during the months of July and August, to become operative upon the ex- piration of that period. Young v. Lemieux (Conn.), 8-452. Method of olijecting that time has expired. — The defense to a writ of error that the writ was not sued out until after the timfe limited by the statute for that pur- pose had expired, can be interposed only by plea. Peterson v. Manhattan Life Ins. Co. (111.), 18-96. h. When time begins to run. Rendition of judgment. — Under the Nevada statute providing that an appeal may be taken from a final judgment " within one year after the rendition of judgment," 294 ANN. CAS. DIGEST, VOLS. 1-20. the time is computed from tlie date tlie judg- ment is pronounced by the court, and not from the subsequent date of its entry by the cleric. Candler v. Washoe Lalce Reservoir, etc., Co. (Nev.), 6-946. Where a formal final judgment is rendered in writing and is not dated by a circuit judge, a writ of error thereto must be sued out within the statutory period from such date, and not from the date of the subse- quent entry or record of the judgment by the clerk of the court. Simmons v. Hanne (Fla.), 7-322. Entry of judgment. — Where a formal judgment on a verdict is entered on the mo- tion of the successful party, after a new trial has been refused, the ninety days within which an appeal may be taken under the Washington statute (Bal. Code, § 6502) runs from the date of the entry of such judg- ment and not from the date of the denial of the motion for a new trial, though the clerk enters judgment on the day that the verdict is rendered. Jemo v. Tourist Hotel Co. (Wash.), 19-1199. Passing of sentence and judgment. — A writ of error prosecuted within one year after the passing of sentence and judgment but more than a. year after the plea of guilty had been entered by the defendant, is within the statutory period. State v. Kelley (Mo.), 12-681. Notice of judgment. — When no notice is given or shown to have come to a person entitled to appeal, an appeal may be taken at any time within six months from the entry of the order or decree. Knutsen v. Krook (Minn.), 20-852. The thirty days within which an appeal may be taken from an order, judgment, or decree of a probate court under the Minne- sota statute (R. L. 1905, § 3874) commences to run from the time of notice of the order or judgment appealed from. Knutsen v. Krook (Minn.), 20-852. Intervening motion for neir trial. — — Under the Wyoming statute limiting the time to commence proceedings to reverse a judgment to one year after the rendition of the judgment, proceedings in error may be instituted within one year from the time a motion for a new trial is overruled, where such motion is necessary to the consideration of the questions involved in the appellate court. Conradt v. Lepper (Wyo.), 3-627. Where a demurrer to evidence is sustained, a motion for a new trial is neither necessary nor proper, and the fact that such a motion is filed will not enlarge the time within which a case may be made upon which to review the ruling on the demurrer. White v. Atchison, etc., R. Co. (Kan.), 11-550. c. Time for service of notice of argument. How computed. — In the computation of the ten days' notice of argument required by rule 8 of the Minnesota supreme court, the day of service should be excluded, and the first day of the term included. Excelsior v. Minneapolis, etc., R. Co. (Minn.), 17-550. 8. The Recoed on Appeai,. a. What constitutes record. Matters in bill of exceptions. — The final judgment rendered, the date of rendi- tion, motions for a new trial and in arrest of judgment, and the rulings thereon, and the exceptions thereto, are a part of the record without a bill of exceptions, and cannot be brought into the record by a bill of excep- tions. Such matters can be shown only by being copied into the transcript and duly certified by the clerk as a part of the record. Malott V. Central Trust Co. (Ind.), 11-879. Whatever is a part of the record proper without a bill of exceptions cannot be made a part of the record by a bill of exceptions, and if there is any conflict between the two as to such matters the record proper will con- trol. Malott V. Central Trust Co. (Ind.), 11-879. Iictter written by judge. — On appeal from an order granting a new trial, a, letter written by the trial judge to the appellant's counsel some months after the granting of the new trial is not a part of the record. Weisser v. Southern Pacific R. Co. (Cal.), 7-636. The effect of a general order granting the defendant a new trial, which is entered on the minutes of the trial court, cannot be limited by a letter written by the trial judge to the plaintiff's counsel and filed at the time of the granting of the new trial. Weisser v. Southern Pacific R. Co. (Cal.), 7-636. Copy of evidence. — Upon a crown case reserved to the Ontario court of appeals under section 1014 of the Canada criminal code, the court has no right to consider a copy of the evidence, and such copy is improperly placed before the court. Rex v. Beboning (Ont.), 13-491. Certified statement of facts. — An appellate court will not consider an affidavit made by an appellant's counsel on a motion for a new trial if it is not embodied in any statement of facts certified by the trial court. Taylor v. Modern Woodmen (Wash.), 7-607. Completion by entry of judgement.— With the entry of judgment non obstante veredicto, the record is complete, and by that record the case must be judged on appeal, especially where no exception is taken to the action of the trial court in refusing to allow the finding of an additional exception after the judgment is entered. Lewis v. Pennsyl- vania R. Co. (Pa.), 13-1142. b. Transcript of record. Duty to prepare properly. — It is the duty of a party resorting to an appellate court to see that his transcript of record is properly prepared, in compliance with the rules of court, and to make the errors com- plained of clearly to appear. Clinton V. State (Fla.), 12-1.50. Prior to the adoption of special rule 6 of the supreme court of Florida on March 2, 1905, rule 103, adopted at the April term 1873, governed in the preparation of tran- scripts and bills of exceptions in criminal APPEAL AND EREOE. 295 cases. Special rule 6 gives the plaintiff in error in criminal and habeas corpus cases the option to have the transcript of the record and bill of exceptions made up, settled, and certified, either in accordance with special rules 1, 2, and 3, adopted on March 2. 1905, or in compliance vfith such rule 103. The respective modes of procedure must not be blended, but one or other of such modes must be selected and followed. Clinton v. State (Fla.), 12-150. Striking out improper matter. — A motion by the defendant in error to strike from the transcript of record in the appellate court the original papers and a transcript of the journal entries in another case between the same parties will be granted. Union Stockyards Nat. Bank v. Maika (Wyo), 14-977. Snffioienoy of certificate. — A clerk's certificate appended to a transcript on ap- peal, stating that " the foregoing pages con- tain a true, correct, and complete transcript of all the proceedings had, documents filed, and evidence adduced upon the trial of the above entitled and numbered cause, instituted in this court and now in the record thereof," is sufficient. The words " and now in the record thereof " will be construed as modi- fying the word " cause," and not " all the proceedings had, documents filed, and evi- dence adduced." Houlton V. McGuirk (La.), 16-1117. Impeachment of certificate. — A cer- tificate that a transcript of the record is correct is not impeached by a statement in the record from which an omission may be inferred or unless the record shows affirm- atively that it is incomplete and incorrect. Piimey v. First Nat. Bank (Kan.), 1-331. Time to file transcript. — ' The computa- tion of time for filing a transcript in the supreme court of Nebraska on appeal from the district court, under section 675 of the code, requiring the transcript to be filed " within six months from the rendition " of the judgment is controlled by section 895 of the code which provides as follows : " The time within which an act is to be done, or herein provided, shall be computed by ex- cluding the first day and including the last; if the last day be Sunday, it shall be ex- cluded." Johnston v. New Omaha, etc., Elec. L. Co. (Neb.), 20-1314. Enlarging time to file. — By virtue of the liberal construction that will be given to the Oregon statute regulating the procedure for perfecting appeals, the trial court or judge may make an order enlarging the time in which to file the transcript after the notice of appeal has been given and before the ap- peal bond has been filed. Wolf v. City, etc., R. Co. (Oregon), 15-1181. c. Abstract of record. Sufficiency in general. — The rule of the Illinois supreme court requiring the party bringing a cause into court to furnish a com- plete abstract of the record, referring to the pages of the same by numerals on the margin, is not sufficiently complied with where the abstract does not state the substance of the declaration nor make any other reference to it than to state that there is a declaration on a specified page of the record. Christy v. Elliott (111.), 3-487. An appeal will not be dismissed on the ground that the printed abstract used in lieu of a transcript is insufficient to present the errors relied on for a reversal, where the appellant is permitted by statute to file such an abstract of the record as the rules of the appellate court require and the abridgment used is a sufficient compliance with the re- quirements of that court. Keen v. Keen (Ore.), 14-45. Setting out instruction complained of as erroneous. — Where an appellant con- tends that an instruction given by the trial court was erroneous, such instruction should be set out in hia abstract. St. Louis, etc., E. Co. V. Raines (Ark.), 17-1. Contradiction by appellant. — An ap- pellant cannot contend that certain of his requested instructions were refused or marked refused, where the respondent's ad- ditional abstract of record wherein is printed the whole bill of exceptions, including the signature of the judge, negatives this con- tention, and the appellant has failed to chal- lenge the abstract as required by a rule of the supreme court. Hunter v. Wethington (Mo.), 12-529. d. Amendment of record. Requiring amendment belo-w. — An ap- pellate court is justified in refusing to exer- cise the discretionary power conferred upon it by statute to compel a justice from whose decision an appeal has been taken to amend his record, where the record is verified by the oath of the justice, and the motion to amend is supported only by the bare state- ment of the appellant's counsel that the record is defective. Fortune v. Wilburton (Ind. Ter.), 5-287. A district court is without power to amend the docket of a justice's court. If the transcript does not speak according to the facts, and it becomes necessary to have it amended, the court should direct the justice to make the correction. State v. O'Brien (Mont.), 10-1006. Amendment of certification of ground of judgment after irrit of error and passing of term. — Where a judge of a. United States circuit court sustains a de- murrer to the plaintiff's plea to the juris- diction and renders judgment for the de- fendant, certifying that the judgment is based solely on the ground that the contro- versy is between citizens of different states, and a few days later, after a writ of error has been filed and a new term has begun, the judge undertakes to amend the certificate on the ground that it was signed inadvertently under a mistake as to its nature and con- tents, and to certify instead that the question of jurisdiction was not passed upon and that the ground of the decision was that the plain- tiff had no standing to maintain the action or file the plea, the alleged mistake is not 296 AWN. CAS. DIGEST, VOLS. 1-20. clerical, and it is extremely questionable whether the original certificate, which is an act of record, is on any different footing from judgments and the like when the term has passed, and whether the so-called amendment can he considered by the supreme court on the writ of error. Patch v. Wabash E. Co. (U. S.), 12-518. Effect of correction. — It cannot be con- tended on appeal that the appellant did not except to the action of the trial court in overruling his motion for a new trial, where this objection has been removed by the cor- rection of the record by a nunc pro tunc entry. Mitchell v. Young (Ark.), 10-423. Striking ont amendment. — A motion by an appellant to strike out an amendment to the abstract, filed by the appellee, on the ground that the same was not filed within the time prescribed by rule, and that it con- tains immaterial matter, will be overruled where the delay in filing was slight, and a sufiicieut excuse is presented therefor, and the amendment contains some matters ma- terial to the disposition of the case which are not discussed. Collins v. Collins (Iowa), 16-630. e. SuflSciency of recitals. Sn£Sciency to support assignments of error. — The question whether a judgment of a justice of the peace was properly re- viewable in the circuit court by a special ap- peal, or only by certiorari, cannot be deter- mined by the supreme court, where the pro- ceedings in the justice's court appear from the record to have been regular, and the affi- davit upon which the special appeal to the circuit court was based is not included in the record. Dunkley v. Marquette (Mich.), 17-523. Grand jury dnly svrorn. — A recital, in the record on appeal in a criminal case, that the grand jurors were " duly " sworn is suf- ficient to support the indictment, and it is not necessary that the record should show the particular form of oath that was admin- istered. O'Donnell v. People (111.), 8-123. Order extending tim.e for bill of exceptions. — An abstract on appeal need not contain in exact words an order extend- ing the time for filing a bill of exceptions, but is sufficient if it contains the substance only. Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. 9. Bill of Exceptions. a. In general. Necessity. — On appeal or writ of error to the supreme court, papers or documents used at the hearing in the court below cannot in strictness be examined unless they are made a part of the record by bill of excep- tions or in other proper manner. Basslng v. Cady (U. S.), 13-905. A petition in error will not be dismissed on motion of the defendant in error because of a failure to settle and file a bill of excep- tions, where the only question to be deter- mined is one of law, and it is properly pre- sented by a transcript of the record of the proceedings of the lower court. Joiinson v. Emerick (Neb.), 12-851. Eecord examined on appeal and held to show no error, in the absence of a bill of ex- ceptions and an assignment of error. State V. Coleman (La.), 8-880. Matters not controverted. — Where counsel during the trial of an action states that a certain witness has testified at a former trial of the cause without objection, and the statement is accepted as true by the court and is not controverted by the opposing counsel, the fact that the witness testified at the former trial without objection sufficiently appears upon the record for purposes of ap- peal; and it is not necessary that counsel, in order to preserve the point, should exhibit to the court and have incorporated in the record a bill of exceptions showing that the witness testified upon the former trial without ob- jection. Elliott V. Kansas City (Mo.), 8-G53. Time of giving leave to file. — Leave to file a bill of exceptions, given several days after a motion for a new trial has been over- ruled, is without authority and void, since the court can only grant such leave at the time and in the manner provided by the statute, which is at the time when the mo- tion is overruled; and a bill of exceptions filed pursuant to such leave, in vacation, and after the expiration of the term of court at which the case was decided, cannot be con- sidered as In the record. Rose v. State (Ind.), 17-228. Time of signing. — Bills of exceptions are required to be signed at the term at which the trial is had, or within thirty days after the adjoui'nment thereof, and after the expiration of such time there is no jurisdic- tion to sign such bills, nor can jurisdiction to do so be conferred by consent of parties. Crowe V. Charles Town (W. Va.), 13-1011. Certification Tjy bystanders. — A bill of exceptions certified by bystanders in accord- ance with the provisions of the Arkansas statute must, in the absence of controverting afiidavits, be taken to represent the true state of the record. Boone v. Holder (Ark.), 15-735. Identification. — A bill of exceptions is part of the record if by its own matter and character it identifies itself as the bill men- tioned in the order certifying its execution, though it bears no letter, number, or other mark of identification. Bank of Ravenswood V. Wetzel (W. Va.), 6-48. Inclusion of pleadings. — The fact that the pleadings are copied in the bill of ej- ceptions, which is accompanied by a state- ment that it includes all of the record, does not require a dismissal of the writ of error. Crossley v. Leslie ( Ga. ) , 14^703. Recording order showing execution. — Where a judge in vacation makes an order under the West Virginia statute showing that he has executed a bill of exceptions, and so certifies it to the clerk, the latter must record the order in the law order book and attest it, but it is not necessary that the bill, or any part of it, be literally recorded in said APPEAL AND ERROR. 291 book. Bank of Eavenswood v. Wetzel (VV. Va.), 6-48. Bef erence to annexed papers. — Where the stenographic report of the evidence 13 indorsed as a correct copy by the counsel for both parties to an action, is signed by the trial judge, and is securely attached by paper fasteners to the bill of exceptions, the bill and report are so articulated as to form one paper, and therefore a reference in the bill to the evidence will be construed as applying to the evidence contained in the report. Kecoughton Lodge v. Steiner (Va.), 10-256. Impeaclunent of indorsements. — On a motion for rehearing of an appeal, the court cannot consider affidavits impeaching the cor- rectness of statements indorsed upon the bill of exceptions by the trial judge, relative to occurrences on the trial. Cravens v. State (Tex.), 16-907. b. Time to file. How determined. — To determine the date when the final judgment was rendered and time given within which to file bills of exceptions, it is necessary to look to the record proper, which is controlling, rather than to the bill of exceptions. Malott v. Cen- tral Trust Co. (Ind.), 11-879. Recitals in bill. — The recital in a bill of exceptions of the day when it was pre- sented to or signed by the judge must be taken as correct, but the general statement therein that the same was presented to the judge within the time allowed will be dis- regarded. Malott V. Central Trust Co. (Ind.), 11-879. Inclusion of public holiday. — fhe fact that the first day of a term of court, until which an appellant has been allowed to file his bill of exceptions, falls on a public holiday, affords no legal excuse for the ap- pellant's failure to file the bill on or prior to that day. Cartwright v. Liberty Tel. Co. (Mo.), 12-249. Bill presented bnt not signed in time. — Under the Indiana Code of Civil Procedure, if a bill of exceptions is presented to the judge for his signature within the time al- lowed, and the date of presentation is shown in the bill of exceptions, such bill of excep- tions is in the record, although it is signed and filed after the expiration of the time allowed. Malott v. Central Trust Co. (Ind.), 11-879. Leave to file after term. — ■ Exceptions to the ruling of a court must be taken at the time the rulings are made, but time may be given by the court to a party taking the ex- ceptions to prepare and file a bill of exceptions showing such rulings and exceptions, but not beyond the term, unless by special leave of the court. Rose v. State (Ind.), 17-228. Necessity of order-book entry. — If time is given beyond the term for the prepara- tion and filing of a bill of exceptions, the fact must be shown by an order-book entry, and cannot be shown by a statement in the bill itself. Rose v. State (Ind.), 17-228. That leave was given during the term to file a bill of exceptions after the close of the term iiiust be sliown by an order-book entry. The fact that the bill of exceptions was filed in the clerk's office, and the date of filing, cannot be shown by recitals in the bill. Malott r. Central Trust Co. (Ind.), 11-879. Sufficiency of order-lsook entry. — Where the order-book entry of the same day's proceedings in a cause shows the overruling of a, motion for a new trial, and a proper exception to such ruling, and also shows that time was given beyond the term within which to file a, bill of exceptions, and the bill of exceptions is filed within the time limited, it is in the record, even though such order- book entry shows that other steps in the cause intervened between the ruling on the motion for a new trial and the exception thereto, and the giving of time to file the bill of exceptions. Such an entry shows not only that the appellant excepted at the time of the overruling of the motion for a new. trial, but that time was then given beyond the term, within which to file a bill of ex- ceptions. Rose V. State (Ind.), 17-228. Motion for ne-ar trial. — The rulings of a court which constitute causes for a new trial and the exceptions thereto, if such rul- ings are assigned as causes for a new trial, are carried forward by the motion for a new trial to the time of the ruling thereon, when time may be given by the court within which to prepare and file a bill of exceptions con- taining such rulings and exceptions. Rose r. State (Ind.), 17-228. Extension of time for filing. — An order made in vacation, extending the time for filing a bill of exceptions, is " entered of record " as required by the Missouri statute (Ann. St. 1906, p. 720), where the substance of it is recited in the record with the state- ment that the order " is now filed and made a part of the records in said cause." Though the order should be spread at length on the record, this is not absolutely necessary. Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. Where an appeal from the land court to the superior court is dismissed and excep- tions are taken to the dismissal, and the superior court orders the exceptions to be entered in the supreme judicial court on or before a certain day, in default of which the exceptions shall be overruled and the orders excepted to affirmed unless the court for good reason shall extend the time, and, the excep- tions having; been entered after the time speci- fied, the supreme judicial court dismisses them, on such dismissal the case is pending in the superior court, and it has power to revoke the order limiting the time for filing the exceptions and to enlarge the time there- for. Old Colony St. R. Co. v. Thomas (Mass.), 18-247. c. Inclusion of all the evidence. Necessity of statement or certificate. — Where a bill of exceptions is made up and authenticated under special rule 3 of the Florida supreme court and the bill of excep- tions does not contain an authenticated state- ment that all the evidence is included therein, 298 ANN. CAS. DIGEST, VOLS. 1-20. such bill of exceptions will under the rule be treated as not embracing all the evidence. Pope V. State (Fla.), 16-972. An assignment of error, based on the ground that no evidence was given in the trial court from which the jury could assess the damages awarded by them, will not be considered, where the bill of exceptions does not purport to set forth all the evidence given upon the trial and does not show that the evidence in question was wanting. Mercantile Trust Co. r. Hensey (U. S.), 10-572. The master's finding of facts upon evidence taken before him cannot be impeached in the absence from the record of his certificate, or other competent proof, either that the evidence presented is the entire evidence that was before him, or that it was all the evi- dence which was before him relative to the specific finding or findings challenged. Wheeler v. Abilene Nat. Bank Bldg. Co. (U. S.), 14-917. It is not necessary for a bill of exceptions to show aiBrmatively that it contains all the evidence, where it shows infereutially, and by natural implication from the language used, that it does contain all the evidence. Mitchell r. Young (Ark.), 10-423. Sufficiency of statement or certificate. — A bill of exceptions held substantially to comply with the requirement that it must show that it contains all the evidence. Rock- well V. Capital Traction Co. (D. C), 4-648. The certificate of the presiding judge at- tached to a bill of exceptions, to the effect that the bill contains all the evidence offered by either party on the trial of the cause, is a sufficient certification that the bill contains all the evidence received or offered. Sheibley V. Huse (Neb.), 13-376. Elimination of immaterial evidence. — Under the Montana statute providing for the settlement of statements and bills of ex- ceptions, it is the duty of the court in settling the same to cut out all immaterial evidence, so that if the bill of exceptions or statement appears to contain all material evidence or the substance thereof given on the trial and referring to the points pre- sented for review, the appellate court may consider the insufficiency of the evidence. Handley v. Sprinkle (Mont.), 3-531. Certification of unsigned bill. — An order in vacation showing the execution of a bill of exceptions, not signed by the judge, is certified as a part of the record. A paper is presented, certified by the clerk, showing the same order, having indorsed upon it, " Enter : I. C. Herndon," who is judge. The bill is good as part of the record. Fink v. Thomas (W. Va.), 19-571. d. Amendment. Designation of exceptant. —Although a bill of exceptions stating that "the represen- tatives of J. F. Hall & Co." excepted is not in itself a sufficient designation of the except- ants, yet where other portions of the bill of exceptions show to whom such designation is applied, a, motion to amend by naming the plaintiffs in error more specifically, as they appear in the pleadings set forth in the bill of exceptions, will be allowed. Crossley v. Les- lie (Ga.), 14-703. 10. Assignments op Ebbob. a. In general. Necessity. — The supreme court of errors will not search the record for errors which have neither been pointed out in the assign- ments of errors nor designated by counsel in their briefs or oral argument. State v. Burns (Conn.), 16-465. Although a federal circuit court of appeals may, in its discretion, take notice of and act upon a plain error in the absence of an assignment, it is not obliged to do so. Kelley V. MeNamee (U. S.), 16-299. The rule of the United States supreme court ( Rule 35 ) , that the court " may at its option notice a plain error not assigned," is not controlled by precedent, but gives the court discretion in each case to determine whether the point is of sufficient importance to require the application of the rule. Weems v. United States (U. S.), 19-705. The supreme court of the United States will exercise the option reserved by Rule 35 of noticing error not assigned as required hy the rules of practice, where the brief of the plaintiff in error specifies alleged errors, and the defendant in error makes no objection to the omission, but argues the case on the specifications of errors in the brief of the plaintiff in error. Columbia Heights Realty Co. V. Rudolph (U. S.), 19^854. The rules as to assignments of errors on appeals or writs of error from the United States circuit courts to the supreme court apply to eases brought up from the District of Columbia court of appeals. Columbia Heights Realty Co. v. Rudolph (U. S.), 19-854. Appeals from intermediate appellate conrts. — On an appeal from a decision of an intermediate appellate court affirming a judgment of the trial court, the assignments must allege error on the part of such appellate court, and not merely that the trial court erred. Gibson v. Bessemer, etc., R. Co. (Pa.), 18-535. Inclnsion in brief. — Under the rules of the Missouri supreme court the failure of an appellant to include in his brief a separate assignment of errors does not require a dis- missal of the appeal. Perry v. Strawbridae (Mo.)_, 14-92. Assignment of errors not referred to in the brief of counsel for the plaintiff in error will be considered as abandoned, .^tna Ins. Co. V. Lipsitz (Ga.), 14-1070. On a writ of error the reviewing court will not consider assignments of error made in a reply brief filed by counsel for the plaintiff in error, but not contained in the petition for the writ. American Locomotive Co. v. Hoffman (Va.), 8-773. Joint assignments by several parties. — On appeal by several complainants from a decree dismissing a bill in equity where all are interested in procuring the reversal, it APPEAL AND ERKOE. 299 is no objection that they assign errors jointly. Hall f. Alabama Terminal, etc., Co. (Ala.), 5-363. Assignments not filed in time. — Assigned errors going to the merits of the case and based upon a bill of exceptions not properly a part of the record, because filed after the time allowed by order of the trial judge when the final judgment was rendered, cannot be considered on appeal. Nashville E., etc., Co. i\ Trawick (Tenn.), 12-532. Ezoeptions to assignments. — Where no exception is filed or taken by the appellee to an assignment of errors filed by the ap- pellant, no formal joinder in error is neces- sary. Jones-Downes Co. v. Chandler (N. Mex.), 13-710. b. Sufficiency. Pointing ont particular errors. — Assignments of error which fail to point out the particular rulings excepted to are insuf- ficient. State r. Burns (Conn.), 16-465. An assignment of error that the court erred in charging the jury as certified to in the printed record does not sufliciently point out the particular errors complained of and raises no question for the appellate court. Chase v. Waterbury Sav. Bank (Conn.), 1-96. An as.signment of error that the whole charge as given is erroneous is too general and raises no question which the appellate court is boimd to consider. Dalton v. Knights of Columbus (Conn.), 11-568. Upon assignments of error which are in- sufficient for failure to point out the par- ticular rulings excepted to, the supreme court of errors may, in its discretion, revfew rul- ings which were duly excepted to below and which are pointed out by counsel in their briefs or oral arguments, hut it is not obliged to do so. State x\ Burns (Conn.), 16-465. On appeal to the Pennsylvania supreme court from a decision of the superior court affirming a judgment of the court of common pleas, an assignment that the superior court erred in overruling several assignments of error filed in that court violates the rule of practice (Rule 29) which requires each error relied on to be specified particularly and by itself. Gibson v. Bessemer, etc., R. Co. (Pa.), 18-535. When a defendant seeks a new trial upon the ground that the trial court erred in the admission of evidence against him, his coun- sel should, in their presentation of this ground for a new trial to the appellate court, point out the alleged improper evidence objected to, and also give the names of the witnesses, and so directly call the attention of the court to the ground of the objection that the error, if any, can be passed on intelligently; other- wise the court would not know what particu- lar objection counsel was relying upon. John- son V. State (Okla.), 18-300. In support of a motion for a new trial, upon the ground that the court erred in re- fusing to give the instructions requested by the defendant, or in misdirecting the jury as to the law of the case, counsel for the motion should, in their presentation of this ground, point out the specific errors com- plained of. Johnson t>. State (Okla.), 18-300. A ground of a motion for a new trial, assigning error on the admission of certain quoted testimony over the objection of the movant, without stating what the objection was on which the trial judge ruled, is so in- complete that this court cannot pass on it, although it may appear that a valid objec- tion might have been made to such testimony. McCray v. State (Ga.), 20-101. Stating name of appellate conrt. — A failure to state in an assignment of errors the name of the court to which the appeal is taken is irregular, but where the appellate court has jurisdiction nevertheless it will con- sider the case upon the merits. Emmons v. Harding (Ind.), 1-864. Quotation of record. — An assignment of error that the trial court did not affirm a point of the defendant asking for an in- struction to find for the defendant is defec- tive in not setting out either the point referred to or the answer totidem verbis. Boyce v. Union Dime Permanent Loan Assoc. (Pa.), 11-934. Reference to record. ^ A reviewing court will not consider assignments of error based on the misconduct of a trial judge in a crim- inal prosecution in making prejudicial re- marks, insinuations, orders, and rulings, if the assignments fail to specify the place in the record where the incidents complained of may be found. Miller v. Oklahoma (U. S.), 9-389. Quotation of instructions. — An ap- pellate court will not consider an assignment of error based on the giving of an instruction, if the assignment does not quote in so many words the portion of the instruction com- plaiijed of. Murtland v. English (Pa.), 6-339. Setting ont testimony referred to. — An assignment of error as to the admission of evidence will not be considered that does not set out the testimony referred to nor give the page of the paper or book where it is printed in its regular order. Boyce v. Union Dime Permanent Loan Assoc. (Pa.), 11-934. Inaccurate reference to pleading. — An assignment of error that the court erred in overruling the several demurrers to the " complaint " when the demurrers overruled were addressed to the " amended " complaint, sufficiently raises on appeal the question of the sufficiency of the several paragraphs of the complaint, where the record shows that the demurrers were presented to the only complaint ever on file and there is no possible chance for a mistake in the identity of the complaint demurred to. Chicago, etc., R. Co. V. Barker (Ind.), 14^375. Assignment not conforming to rules, — An assignment of errors not conforming to the rules of the appellate court either in form or substance is not cured by the brief and argument submitted in support of such er- rors, when not filed within the time required by the rules. Port v. Fort (Tenn.), 11-964. 300 ANX. CAS. DIGEST, VOLS. 1-20. En^oneous assuiuption of facts. — This was not a suit between two corporations chartered in the District of Columbia under the general incorporation act of May 5, 1870. Ijie incorporated supreme lodge of the plain- tiff's association was a party, but that of defendants' association was not bo. An as- signment of error based on a contrary hy- pothesis was without merit. Creswill v. Grand Lodge (Ga.), 18-453. Assisim^ents held sufficient. — A bill of exceptions setting forth the pleadings, and stating that no issue was presented except one of law involved in the construction of a will, that the presiding judge after directing a certain verdict made such verdict the de- cree of the court, and that certain named parties " except to the judgment and decree above set out, and now assign said judgment and decree as erroneous " on several grounds specifically stated, contains a sufficient as- signment of error to withstand a motion to dismiss the writ of error. Crossley v. Leslie (Ga.), U-103. In an action for the construction of a will, an assignment of error based on a decree directing the payment of a legacy authorizes the appellate court to determine whether the trial court has properly disposed of the fund, and if the appellate court is of the opinion that the trial court has erred, it may, upon remanding the case, determine what disposi- tion should be made of the fund. Mason v, Bloomington Library Assoc. (111.), 15-60-3. An assignment of error by the defendants in an action showing that the judge who heard the cause and rendered the judgments complained of was related in a specifled man- ner to the plaintiffsj and was thereby dis- qualifled to sit as judge and to hear and determine the matters involved in the case is sufUcient in form to raise the question of the disqualifications of the judge and the cbnse- quent invalidity of the judgments. Bliss v. Caille Brothers Cd. (Mich.), 12-S13. Assignments held insufficient. — The rule of the supreme court of Tennessee re- lating to assignments of error is not com- plied witli by assignments of error alleging that the chancellor erred in allowing one defendant to withdraw Jiis answer, in allow- inw a demurrer to be filed by both defendants before process was served on another person, and in sustaining the defendants' demurrer to the original and amended bills. Fort r. Fort (Tenn,), 11-964. 11. DlSHISSAI, OF ApflEAt. a. In general. Dismissal of writ of error on expiration Of tenn of office involved in quo warranto proceedings, see Qtro WABBANto, 6. Partial diimisdal. — Where an appeal is taken both from a judgment and from an order denying a new trial, the fact that the motion for a new trial did not contain a specification of errors is not ground for a dismissal of the appeal from the judgment even if sufficient to warrant a dismissal of the appeal from the order refusing a new trial. Bond v. Hurd (Mont.), 3-566. Effect of dismissal. — The dismissal of an appeal in the nature of a writ of error affirms the judgment of ttfe lower court, be- cause the appeal merely suspends the judg- ment pending the appeal, whereas the dismissal of a simple appeal in chancery leaves the effect of such dismissal, and the terms upon which it may be had, tp the sound discretion of tlie appellate court. Fort V. Fort (Tenn.), 11-964. Imposition of terms. — Where, from a money judgment in favor of either party, an appeal is prosecuted under the Tennessee statute requiring security for the judgment as well as costs, the supreme court, upon a dismissal, will award to the appellee as a condition precedent to such dismissal the bene- fit of the security given by the appellant; but where there is no money judgment, and the decree is simply in dismissal of the com- plainant's action or bill, the court may im. pose such terms as it deems proper. Fort v. Fort (Tenn,), 11-964. b. Grounds of dismissal. Amount in controvepsy insufficient. — When an appeal is taken froBi a personal judgment for a sum less than the jurisdic- tional sum provided by statute regulating appeals, the appeal must be dismissed for want of jurisdiction though the judgment is clearly erroneous. Chapman v. Haley (Ky.), Failure to join representative of decedent. ~ An appellate court will dis- miss for want of jurisdiction an appeal frotn a judgment against several plaintiffs on a counterclaim. Unless the personal representa- tive of a plaintiff who has died since the rendition of the judgment is joined as an appellant, provided the cause of action is one tiiat survives. Newman v. G&tes (Ind.), 6-649. Appeal not taken in time. — Where an appeal from an order denying a, motion fOr a new trial is taken more than sixty days after the making and entry of the order, the appeal is ineffectual and will be dis- missed on motion of the adverse party. Trull V. Modern Woodmen of America (Idaho), 10-53. The burden is on the party moving to dis- miss an appeal, which it is claimed should have been taken Within thirty days, to show notice of some kind to the appealing party of the entry of the order or judgment by the probate court. Knutsen v. Krook (Minn.), 20^852. Judgment compromised. — A motion to dismiss an appeal from a deficiency judg" ment rendered in an action to foreclose a. mortgage, which is based on the ground that no appeal lies because thd judgment has beefi compromised and settled by a stipulation between the parties, will be dismissed where the opposing counsel differ as to the terms of the stipulation. Goodale v. Wallace (8, Dak.), 9-545. Appeal ineffeotnal. — Where, pending an APPEAL AND ERROR. 301 appeal from an order denying an alternative writ of mandamus in a proceeding commenced against the clerk of the circuit court to com- pel the issuance of an execution on a, judg- ment alleged to have been rendered in the circuit court, it affirmatively appears from the petition filed in the proceeding that the time within which an execution could have been issued on the judgment has expired and that the judgment is dormant, the appeal will be dismissed. Norwood i'. Clem (Ala.), 5-625. Appellant a fugitive from justice. — If after appeal to the supreme court a de- fendant convicted of felony becomes a fugitive from justice, the appeal will be dismissed. State c. Scott (Kan.), 3-511. An appeal by the defendant in a criminal case will be dismissed where the defendant, pending the appeal, breaks jail and flees the jurisdiction of the court. State v. Keebler (N. Car.), 13-496. Failure of lo'wer court to make find- ings. — An appeal from the land court to the superior court will not be dismissed on the ground that the judge of the land court made no specific findings on the issues framed for the superior court, where the issues were not framed imtil after the findings had been made. Old Colony St. E. Co. v. Thomas (JIass.), 18-247. Report of lower conrt insufficient. — The report of the judge of the land court on appeal to the superior court from a de- cision in favor of the petitioner in a registra- tion case is sufiBcient to withstand a motion to dismiss the appeal where it briefly states the important matters that occurred at the hearing before him, and the failure of the report to deal with the issues in greater de- tail is due to the fact that the respondents had been twice defaulted and had failed to offer evidence of the matters averred in their answers. Old Colony St. E. Co. v. Thomas (Mass.), 18-247. Agreement not to appeal. — An agree- ment founded on a valuable consideration, not to appeal from the judgment to be ren- dered in a pending suit between the parties, is valid and binding. TJ. S. Consol. Seeded Eaisin Co. r. Chaddock & Co. (U. S.), 19-1064. An objection that the parties had agreed not to appeal from the judgment may be made for the first time in the appellate court where the agreement was not filed In the trial court, and the appeal was allowed by that court in ignorance of the agreement. U. S. Consol. Seeded Eaisin Co. v. Chaddock & Co. (U, S.), 10-1055. InsufSciency of bond. — An appeal will not necessarily be dismissed because the ap- peal bond is insufficient. By the Utah statute (Comp. Laws 1907, § 3319) the court may permit the appellant to file a new bond. Price V. Western Loan, etc., Co. (Utah), 19-589. Where a defendant, on conviction in a police court, offers an appeal bond signed only by himself, and the police judge ap- proves it and discharges him from custody. it is error for the district court to dismiss the appeal because the bond lacks the signa- ture of a surety, although the statute pro- vides that no appeal shall be allowed unless the appellant enters into a recognizance with good and sufficient security, to be approved by the police judge, for his appearance in the district court to answer the charge against him. Ottawa v. Johnson (Kan.), 9-707. c. Eight of appellant to dismiss. Appeal from justice's court. — A party who appeals to a circuit court from a. judg- ment rendered in the justice's court may dis- miss his appeal against an objection by the opposite party. Hart i\ Minneapolis, etc., E. Co. (VVi=.), 2-793. Payment of costs. — The appellant may, upon payment of costs, have his appeal dis- missed at any time while the cause remains within the jurisdiction of the appellate court, without the consent or over the objection of the appellee. Fort v. Fort (Tenn.j, 11-964. Iiimitation of right. — The right of an appellant to dismiss his appeal is limited to the appeal. The case cannot be dismissed after judgment is pronounced. Fort v. Fort (Tenn.), 11-964. 12. Examination op Case on Appeal. a. What is brought up by appeal. In absence of bill of eicceptions. — Where a bill of exceptions is not filed within the time allowed, nothing is presented for review on appeal except the record proper. Cartwright «'. Liberty Tel. Co. (Mo.), 12-249. Interlocutory orders. — In a, proceeding in error brought to procure the reversal of a final judgment the supreme court may examine and pass upon the correctness of a prior ruling which is itself an appealable order, provided it was made within a year preceding the filing of the petition in error, and such ruling may be preserved for review in this manner by a case made served within ten days after the rendition of such final judgment, or within an extension of time granted during that period. White v. Atchi- son, etc., E. Co. (Kan.), 11-550. An appeal from a judgment of conviction for crime rendered by a superior court does not bring up for review an order of that court quashing a writ to review a justice's judgment, from which order no appeal has been taken. State v. Bringgold (Wash.), 5-716. Order granting new trial. — On writ of error to an order granting a new trial, the only questions to be considered are those involved in such order. Owens r. Wilson (Fla.), 19-267. Order denying new trial. — An appeal taken from the denial of a new trial onl,\-, and not from the judgment, does not bring up for review the ,. sufficiency of thn findings to support the judgment. The appell.i'te court, on such an appeal, is limited to a con- sideration of the grounds on which the mo- 302 ANN. CAS. DIGEST, VOLS. 1-20. tion for a new trial was based. Fagan v. Lentz (Cal.), 20-221. Sufficiency of petition. — An objection that a petition does not state facts sufficient to constitute a cause of action raises a juris- dictional question reviewable on appeal although not raised by way of exception. Cartwright v. Liberty Tel. Co. (Mo.), 12-249. Sufficiency of indictment. — Under the provisions of the District of Columbia code, a demurrer to an indictment on the ground that it does not set forth an offense may be considered by an appellate court, notwith- standing the fact that the defendant, when such demurrer was overruled, pleaded over, and went to trial on the plea of not guilty. Crawford v. United States (U. S.), 15-392. Measure of damages. — The acceptance by the plaintiff from the defendant of the sum awarded by the decree of the lower court, the plaintiff's right to such sum not having been disputed by the defendant, is not a waiver of the plaintiff's right to have the appellate court determine whether he is en- titled to a larger sum. In re Youngerman (la.), 15-245. A question as to the proper measure of damages in an action of tort is not deter- minable on an appeal from a judgment of nonsuit, even though it is determined that the nonsuit was erroneous. McLeod v. Pacific Tel. Co. (Ore.), 16-1239. Argument of counsel. — Where a para- graph of an answer, which has been stricken out by the court before trial, contains allega- tions of some matters, which it would be competent for the defendant to prove, as well as other allegations which are incompetent, the action of the trial court in permitting defendant's counsel to read portions thereof in his opening address to the jury, and to state what he proposes to prove thereunder, will not be reviewed on appeal, unless the record points out the particular portions of the paragraph which were so read. Kansas City Southern R. Co. v. Anderson (Ark.), 16-784. Where it is alleged in a motion for a new trial that the court erred in permitting coun- sel for the plaintiff, in argument to the jury, to make certain specified statements, and this ground of the motion is supported by the affidavits of the defendant's counsel, and counter-affidavits are filed reciting the lan- guage used, the appellate court will not dis- turb the conclusion of the trial court on the issue thus presented. Cleveland, etc., E. Co. V. Hadley (Ind.), 16-1. Error in allowing improper remarks of counsel cannot be considered on appeal unless the matter is preserved in the motion for a new trial. State v. Tharanot (Mo.), 20-1122. Penial of motion to direct verdict.— A motion to direct a verdict raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict as against the party making the motion, and in the event of an adverse ruling and the submis- sion of the question of fact to the jury, an exception preserves the question of law for the consideration of the appellate tribunal. Wolf V. Chicago Sign Priming Co. (111.), 13-369. Validity of minute entries. — A ques- tion as to the validity and legality of the verdict and judgment of the court below, based upon the minute entries, can be con- sidered on appeal inasmuch as such entries are a part of the record without a bill of ex- ceptions. Nashville R., etc., Co. v. Trawick (Tenn.), 12-532. Qualification of Jurors. — Notwithstand- ing the fact that at the trial of a criminal case a juror was challenged by the defendant on the specific ground that such juror was a salaried officer of the government, the ap- pellate court will decide the question with reference to the general qualifications of the juror, for in criminal cases appellate courts are not inclined to be as exacting as in civil cases with reference to the specific character of objections. Crawford v. United States (U. S.), 15-392. Portions of judgment not appealed from. — The dismissal by the trial court of a petition in so far as it relates to certain matters need not be considered on appeal where the plaintiff serves no notice of appeal from the action of the court in that regard. Spiker v. Eikenberry (Iowa), 14-175. Questions raised by cross-bill of exceptions. — When the appellate court has before it both a main bill of exceptions and a cross-bill of exceptions, and the latter pre- sents a question which is controlling upon the case as a whole, it will be disposed of first; and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed. Chidsey V. Brookes (Ga.), 14-975. Questions certified. — A question certi- fied by a federal circuit court of appeals to the federal supreme court which does not propound a distinct issue of law, but in effect calls for a decision of the whole case, need not be answered by the latter court. The Folmlna (U. S.), 15-748. Questions reported. — Where a case comes to the Maine law court upon a report of the evidence, the necessity for a compliance with the rules of pleading must be considered as waived and the law court will consider the questions presented by the report. Rush v. Buckley (Me.), 4^318. Issues not raised below. — An appellate court will not consider issues not properly raised and relied upon below. Planters' Mu- tual Ins. Assoc. V. Hamilton (Ark.), 7-55. Judgments and orders rendered by a dis- qualified judge are not voidable merely but are void and subject to collateral attack, and the objection, although not taken before de- cision is rendered, is available on appeal; Bliss V. Caille Brothers Co. (Mich.), 12-513. In^ an action by a broker to recover com. missions on a sale of real estate the defend- ant cannot make the claim on appeal that the price at which the purchaser agreed to take the property was less than the broker APPEAL AND EKROE. 303 was authorized to ask, where that point was not raised in the trial court. Notkins v. Pashalinski (Conn.), 20-1023. Questions not decided beloir. — On appeal from a judgment denying an applica- tion for a habeas corpus in extradition pro- ceedings, where the appellate court upholds the legality of the arrest and the sufficiency of the affidavit for arrest, it will not decide questions that should be passed upon first by the judge of the lower court before whom the proceedings are pending and are to be prosecuted. In re Harsha (Ont.), 6-496. Questions not argued. — Where one of the errors assigned is based upon the over- ruling of a motion for a new trial, and said motion consists of a number of grounds, an appellate court will consider only such grounds as are argued. Spires v. State (Fla.), 7-214. Immaterial errors. — An assignment of error on the ground of the denial of the challenge of a biased juror need not be de- cided where a reversal of the judgment is required on other grounds. State v. Hen- nessey (Nev.), 13-1122. Findings not incorporated in decision. — Facts found by the trial court upon the request of the parties are, regardless of whether they are incorporated in the decision proper, for the consideration of the appellate court to enable it, in reviewing the case, to apply the proper principles of law. Elter- man v. Hyman (N. Y.), 15-819. Grounds of decision Tjelov. — On ap- peal from an order granting a new trial, an appellate court, in examining the record for the purpose of ascertaining whether the new trial should have been granted is not restricted to the grounds specified by the trial court in its order, except upon the single question as to sufficiency of evidence when the evidence is conflicting. Weisser v. Southern Pacific R. Co. (Cal.), 7-636. It is not a part of the duty of the supreme court to search for reasons to sustain an order of the trial court setting aside a ver- dict and directing a new trial, where neither the trial court nor the party in whose favor the ruling has been made has taken the trouble to make the grounds thereof a part of the record. Hensley «'. Davidson Bros. Co. (Iowa), 14-62. Assignments of error by appellee. — While a party granted a new trial by the trial court has no occasion to appeal, he is not precluded from showing by the record brought up on appeal by his adversary any and all errors committed in the trial of the cause, and all questions presented by the record, and necessary for the proper dispo- sition of the case, will be passed upon. Smart v. Kansas City (Mo.), 13-932. Conclusions of laiv. — A specification in a bill of exceptions, that the conclusions of law embraced in the findings are erroneous, is not available to the appellant on appeal from an order denying a new trial. The con- clusions of law are always merged in and superseded by the judgment, and, even if necessary thereto, they can be reviewed only on an appeal from the judgment, or from an order made under sections 663 and 663% of the California Code of Civil Procedure. Men- tone Irrigation Co. v. Redlands Electric Light, etc., Co. (Cal.), 17-1222. Pertinency of issues framed for ap- pellate court. — The official act of the judge of the land court in framing issues for the superior court on appeal establishes, prima facie, that the issues are pertinent and ought to be tried. Old Colony St. R. Co. v. Thomas (Mass.), 18-247. Theory of case. — In order to determine the theory of a case as presented to the trial court, the appellate court will look to the entire record and the briefs of counsel and will construe the pleadings on the theory most apparent, most clearly outlined by the facts stated, and according to their general scope and tenor. Knight, etc., Co. ■;;. Miller (Ind.), 18-1146. Where a plaintiff is not entitled to recover on the theory presented at the trial, he can- not sustain a judgment in his favor on appeal on a theory not so submitted, though the petition is broad enough to cover such theory, and, if the verdict had been based thereon, it might have been sustained. Woodson v. Metropolitan St. R. Co. (Mo.), 20-1039. b. Trial de novo. Appeal from justice's court. — The district court to which a cause is appealed from a justice's court tries the cause de novo, and the appellant cannot be heard to insist that the district court should confine its action to a review of the errors and irregu- larities in the proceedings of the justice and determine the case accordingly. State v. O'Brien (Mont.), 10-1006. Appeal from probate court. — Where an appeal is taken to the supreme judicial court from a decree of the probate court, the case involved in such decree is heard de novo in the appellate court. Ordinarily no answer is filed in the probate court by the respondent, but in cases where the appeal is taken by him the objections to the decree appealed from serve the same purpose as an answer. The purpose of such objections is to give notice to the adverse party of the issues which the appellant intends to raise, but it is not necessary to set out separately and particularly each error asserted and in- tended to be urged, as is the case under the eleventh rule of the United States circuit court of appeals. An objection that the de- cree appealed from is against the law gives the appellee notice that at least the appellant contends that the facts do not entitle appellee to any relief. Phillips v. Chase (jJlass.), 17-544. c. Examination of opinion of lower court. For irhat purpose proper. — In review- ing a judgment, the appellate court will examine the lower court's opinion only for the purpose of ascertaining the arguments 304 ANN. CAS. DIGEST, VOLS. 1-20. made and the reasons given in support of the lower court's rulings and determinations, as the opinion is not a part of the judgment roll. Morehouse v. Brooklyn Heights R. Co. (N. Y.), 7-377. d. Consideration of new evidence. Docnments not produced below. — An appeal to the supreme court of Canada must be decided solely upon the evidence contained in the case certified to the registrar by the clerk of the court whose judgment is appealed from, and therefore the supreme court will refuse an application by the respondent for leave to supplement the appeal case by th^ production of documents not produced at the trial below. Red Mountain R. Co. v. Blue (Can.), 9-949. e. Rehearing. Amendment to petition. — Where a petition for a rehearing on appeal is filed within the ten days' limit, and within six days after the filing of the petition counsel file a, motion for leave to assign an additional reason as a ground for rehearing, it is within the power of the appellate court to permit the amendment. Denver, etc., R. Co. v. Bur- chard (Colo.), 9-994. f. Second appeal. Questions determined on prior appeal. — Assignments of error stated and held to raise no question not determined on a former appeal the decision in which is held binding. Albright v. Territory (N. Mex.), 11-1165. Sufficiency of evidence. — Where an appellate court decides that certain evidence is insufficient to establish a fact in contro- versy, it will regard the question as res judicata on a, subsequent appeal from a new trial upon substantially the same evidence, notwithstanding the introduction on the new trial of additional but merely cumulative evidence of the same character. Westfall v. Wait (Ind.), 6-788. Sufficiency of complaint. — The decision of an appellate court upholding the sufficiency of a complaint based on a statute, the con- stitutionality of which is attacked, is bind- ing upon such court on a subsequent appeal in the same case. State v. Wisconsin Cen- tral R. Co. (Wis.), 14-1061. Examination of record on prior ap- peal. — On a second appeal, the appellate court, for the purpose of determining whether it is bound by its decision on the former appeal as to the sufficiency of the evidence, will look into the record upon the former appeal to ascertain what tacts were before it. Westfall V. Wait (Ind.), 6-788. g. Judicial notice of records. Reversal in another case. — An appel- late court in considering an appeal by a garnishee will take judicial notice of the fact that its records show that it has previously reversed the judgment in the principal action. upon which the garnishment is based. Chi- cago Herald Co. v. Bryan (Mo.), 6-751. h. Examination of questions of fact. (1) In general. In absence of general assignment of error. — An appellate court, in passing on the sufficiency of evidence to support a judg- ment, will consider such portions only of the evidence as refer to the particulars in which it is claimed the evidence is insufficient, where the assignments of error do not include any general assignment that the judgment is contrary to the evidence, but merely specify particulars in which it is alleged that " the evidence is insufficient to sustain the findings and decision of the court." Candler v. Washoe Lake Reservoir, etc., Co. (Nev.), 6-946. On appeal from order denying new trial. — The right of a party who has ap- pealed from an order denying a new trial, to have the evidence reviewed on such appeal, is not prejudiced by his failure to move under sections 663, 663% of the California Code of Civil Procedure upon the ground that the facts found do not support the judgment. J. F. Parkinson Co. v. Building Trades Coun- cil (Cal.), 16-1165. Where record does not contain all the evidence. — An appellate court will not review a question of fact determined by a master, in stating an account, and approved by the trial court, unless it has before it all the evidence upon which the master acted. McCourt V. Singers-Bigger (U. S.), 7-287. Where the return on an appeal on ques- tions of law alone from the judgment of a municipal court to the distriEt court does not purport to contain all of the evidence no ques- tion as to the sufficiency of the evidence to sxipport the verdict can be raised in the dis- trict court. Wellcome v. Berkner (Minn.), 17-366. In admiralty cases. — In an admiralty case the supreme court of Canada must weigh the evidence for itself unassisted by expert advice, and will, if the evidence requires itj reverse the judgment appealed from, on a question of seamanship or navigation. Nanna V. Mystic (Can.), 14-83. Evidence most favorable to appellee. — In determining an assignment of error that the judgment is not sustained by the evidence, the appellate court will be con- trolled by the evidence in the record that is most favorable to the appellee. Ohio Valley Bviggy Co. V. Anderson Forging Co. (Ind.), 11-1045. (2) Power of appellate court to weigh evidence. Illinois supreme court. — On appeal from a judgment for the plaintiff in an action by a servant against his master to recover for personal injuries, the appellate court, in con- sidering the questions whether the appellee assumed the risk of injury or was guilty of contributory negligence, cannot weigh the APPEAL AND EEROK. 305 evidence and determine the questions accord- ing to the preponderance thereof, but can only determine whetlier there is any evidence fairly tending to negative the appellant's con- tention with respect to these questions; and the court cannot treat the questions as ques- tions of law, unless it is prepared to say that inference of an assumption of the risk of con- tributory negligence is so clearly deducible from the facts that all reasonable minds would necessarily reach the same conclusion therefrom. Jones, etc., Co. v. George (111.), 10-285. The supreme court of Illinois cannot, on appeal, disregard testimony given on the trial because of its improbability. The trial judge and the appellate court are required by law, upon the question being properly raised, to take into consideration the element of im- probability in the evidence, and to grant a new trial if they regard the verdict as clearly against the preponderance of the evidence, but the supreme court cannot reject testi- mony, unless it is contrary to some natural law. O'Callaghan v, Dellwood Park Co. (111.), 17-407. On appeal from the allowance or disallow- ance by the probate court of a claim against a decedent's estate, the decision of the ap- pellate court as to the facts is conclusive on the supreme court, if the ease was such as did not require the probate court to exercise its equity powers ; but the supreme court must determine questions of fact as well as of law in any case where the equity powers of the probate court were involved. Zeigler v. Illinois Trust, etc.. Bank entirely silent on that subject. it will be assumed that the lower court had before it the record of the former conviction and sentence, in the alseuce of appropriate averments to the contrary. Rigor v. State (Md.), 4-719. Discharge of duty by official board. — Where a person is tried and convicted of a violation of an act licensing barbers, and a motion in arrest of judgment is afterwards sustained on the theory that the statute is unconstitutional, the validity of the statute and not the conduct of the board of exam- iners provided for by it is the only question presented upon appeal; and where the record on appeal does not disclose whether such board has promulgated suitable rxUes, the court will assume until the contrary appears that the board has properly discharged its duties in that regard. State v. Briggs (Ore- gon), 2-424. Presumption forbidden by statute. — An Alabama statute declaring the powers, etc., of the city court of Anniston provides that as to the conclusiveness and judgment of that court on evidence, " the supreme court shall review the same without any presump- tion in favor of the court below on the evi- dence," and this provision applies to crimi- nal as well as civil cases. Tony v. State (Ala.), 6-865. IS. Eevebsibli! Ebbob. a. In general. Erroneous exclusion of evidence. — Where, in an action contesting a will on the grounds of undue influence and want of men- tal capacity, it is sought to prove, by the testator's attorney, the contents of a former will, and the declarations of the testator at the time of the preparation of the last will, and the trial court sustains the witness in refusing to answer, so that no one knows whether the evidence would affect the result, the party offering the evidence is denied the right to present his whole case, and the ap- pellate court will not decline to interfere on the ground that no error can be committed in the exclusion of evidence which is not shown with certainty to be material. In re Young (Utah), 14-S96. Erroneous admission of evidence. — A judgment may be reversed for the errone- ous admission of evidence, notwithstanding the fact that the bill of exceptions does not contain all the evidence. Duggar v. Pitts (Ala.), 8-146. Improper instructions. — On an APPEAL AND ERROR. 313 from a judgment for the plaintiff in an action based on negligence, where it appears that the evidence was conflicting and that vital issues of facts were raised thereby, the judg- ment will not be sustained unless such issues were properly submitted to the jury, Den- ver, etc., R. Co. V. Burchard (Colo.), 9-994. Instrnctions invading province of jury. — A judgment will be reversed for the giving of an instruction invading the prov- ince of the jury to determine the weight of evidence, where tlie record shows a sharp conflict in some essential respects between the testimony of opposing witnesses, and there is nothing in the record to disclose that the instruction was not prejudicial to the appellant. Muncie Pulp Co. v. Keesling (Ind.), 9-530. Defects in indictment. — A judgment of conviction in a criminal prosecution under a fatally defective indictment will be reversed on appeal, though the defendant has not de- murred or moved in arrest of judgment. State V. Dolan (W. Va.), 6-450. Assumption of facts not proven. — \Vhen it appears that a trial court in de- ciding a material question has considered as evidence testimony not in fact given, a new trial will be granted. Stanley v. Steele (Conn.), 2-342. Insnii^ciency of special verdict. — Where the facts found in a special verdict are insufficient to support a judgment for the plaintiu by reason of the absence of find- ings on the matters in dispute essential to the complete determination of the issues, a new trial must be granted. Beare v. Wright (N. Dak.), 8-1057. Failure of defense because of deatb of sole witness. — Where it appears that the defense fails because of the death of the only witness by whom the defendant could prove an affirmative defense, an appellate court is without power to relieve against such misfortune. Higgins v. Evans (Mo.), 3-465. b. Error must be clearly shown. Neiv trial under Pennsylvania statute. — The statutory power of the supreme court of Pennsylvania to grant a new trial is ex- ceptional in its character and is to be exer- cised only in very clear cases of wrong or injustice which the court below should have remedied. Murtland v. English (Pa.), 6-339. Petition for -roTit of error. — While upon a petition for writ of error or appeal a reviewing court is required to grant the .writ prayed for unless the decision called in question is plainly right, it should not overrule a decision of a lower court refusing an injunction, unless it is manifest that the lower court erred in its refusal. Townsend V. Norfolk R., etc., Co. (Va.), 8-558. Judgment of nonsuit. — On appeal from a judgment of nonsuit, where the evidence in the case does not furnish the basis for a judgment in favor of- the plaintiff for any definite amount, the judgment will be af- firmed. Fitzpatrick v. Letten (La.), 17-107. Judgment setting aside verdict. — The supreme court will not revise a judgment of the trial court setting aside a verdict and granting a motion for a new trial unless the evidence plainly and palpably supports the verdict. Hervey v. Hart (Ala.), 13-1049. Determination of question of insanity. — A verdict of guilty, after the defense of insanity has been submitted to the jury as a question of fact on conflicting evidence, will not be disturbed on appeal as incorrectly de- termining the issue of insanity, where there is material evidence on that issue sustaining the verdict. Elias v. Territory (Ariz.), 11-1153. Zlxcessive damages. — Courts on appeal will not disturb a verdict on the ground of excessive damages unless the damages are so excessive as to indicate that the jury acted from prejudice, partiality or corruption. Malott V. Central Trust Co. (Ind.), 11-879. Exclusion of evidence.'— The court below held not to have erred in excluding evidence. Green v. Freeman (Ga.), 7-1069. Special verdict and findings. — Special verdict of the jury and findings by the trial judge in the case at bar examined and held to show no ground for entering judgment against certain defendants as to whom the judgment of the trial court is affirmed with coats. Tyler v. St. Louis Southwestern K. Co. (Tex.), 13-911. c. Error must be material. Wrong re.«sons for judgment. — The supreme court does not review the reason for judgments. A judgment will be allowed to stand although the reasons wholly fail to sustain it or would logically lead to a dif- ferent one. Corgan v. George F. Lee Coal Co. (Pa.), 11-838. Intermediate errors not affecting merits. — Where the judgment of the court below is clearly right, under the facts estab- lished and the law applicable thereto, it will be affirmed, without regard to intermediate errors not affecting the merits. Logansport V. Jordan (Ind.), 17-415. One cause of action not proved. — A general judgment on the whole evidence is unaffected by a failure to prove one or more causes of action where the others have been proven, and the judgment will not be re- versed for such failure. Leathe i). Thomas (111.), 4-79. One bad count in declaration. — Under the Maryland Code of 1904 providing that a judgment or verdict shall not be reversed " if there be one good count in the declara- tion," a judgment will not be reversed for any error in reference to one count of a declaration or the demurrer or plea thereto, where, for all that appears, the judgment may have been rendered by reason of matters offered under another count. Alvey v. Hart- wig (Md.), 14-250. Defects in bill of exceptions. — A judg- men of conviction in a criminal case will not be reversed on the ground that the bill of exceptions fails to disclose who subscribed the district attorney's name to the informa- tion, where the bill shows that the district attorney was present at the prosecution and 314 ANiT. CAS. DIGEST, VOLS. 1-20. assisted therein and thereby ratified the act of the person who subscribed his name to the information. State v. Guglielmo (Ore.), 7-976. d. Error must be prejudicial. (1) In general. Compelling defendant's counsel to make open- ing statement as harmless error, see Cbiminal Law, 6 i. Direction of verdict as harmless error, see Tbial, 6 b. Presumption of prejudice from excluding public from criminal trial, see Criminal Law, 6 e (2). No reversal in absence of prejudice. — A judgment will not be reversed for an error which has not in some way prejudiced the appellant's rights. Crescent Hosiery Co. V. Mobile Cotton Mills (N. Car.), 6-164. Errors without prejudice to a litigant will not work a reversal of a judgment otherwise supported by the evidence and the law. Hilligas t\ Kuns (Neb.), 20-1124. An appellate court will not disturb a judg- ment for errors which did not prevent the appellant from making out a case in the trial court, or for rulings which, had they all been in the appellant's favor, would not have entitled him to a judgment. Estate of Dolbeer (Cal.), 9-795. Errors relied upon to reverse a judgment must be prejudicial to the party complaining, and where, from an examination of the entire record, it is clear that the jury have disre- garded erroneous instructions, and have ren- dered substantial justice by their verdict, which is based upon sufficient evidence and is not affected by the other errors complained of, the judgment will be affirmed. Whitney V. Brown (Kan.), 12-768. In a negligence action for personal injuries, a verdict and judgment for the defendant, based on special findings of the jury that the defendant was not negligent and that the plaintiff was not in the exercise of due care at the time of the accident, will not be disturbed if either finding is supported by sufficient evidence and has been reached with- out error in the rulings, instructions, or admission of evidence, though there has been error in the other branch of the case. Pitcher V. Old Colony St. R. Co. (Mass.), 12-886. Prejudice not remediable on appeal. — Errors constituting a sufficient ground for setting aside a judgment and granting a new trial must be such that the appellant has been prejudiced, and the prejudice must be such as cannot be remedied on the appeal. New Orleans Terminal Co. v. Teller (La.), 2-127. Error not influencing jury. — A new trial cannot be granted in a criminal case for the purpose of presenting evidence show- ing a mistake of one of the state's witnesses when the alleged fact was known to the accused and counsel in time to have shown it at the trial, and the error could not have appreciably influenced the jury. State «. Quigley (E. I.), 3-920. Error in overruling oballenges to jurors. — A judgment of conviction will not be set aside because of alleged error in over- ruling a party's challenges for cause to ven- iremen, where it appears that none of said persons sat upon the jury, and it does not affirmatively appear that they were peremp- torily challenged by such party. Pumphrey V. State (Neb.), 18-979. Rejection of juror. — An appellate court will not consider an exception to a rejection of a juror, where it appears that the ex- cepting party did not exhaust his peremptory challenges. Hodgin V. Southern E. Co. (N. Car.), 10-417. Failure to find on immaterial issue. — The failure of the trial court to find on an immaterial issue does not warrant the grant- ing of a new trial. Puckhaber v. Henry (Cal.), 14-844. Failure to make unnecessary finding. — In an action on promissory notes where judgment must necessarily go against the plaintiff in view of a finding that the con- sideration is illegal, he cannot complain that the court failed to find on certain affirmative defenses tendered by the answer. Union Col- lection Co. V. Buckman (Cal.), 11-609. Variance between pleading and proof. — Under the Indiana statute, a reviewing court, on writ of error by a defendant to a judgment against him, will not reverse for a variance between the pleading and the proof, if it appears that the defendant was not in- jured or misled, especially if the defendant failed to call the trial court's attention to the variance. Indianapolis Traction, etc., Co. V. Lawson (U. S.), 6-666. If eiv trial ineffectual. — Where an action for permanent damage to real property is barred by limitation, and the statute is prop- erly pleaded, the appellate court will not reverse a judgment for the defendant for an erroneous instruction as to permanent dam- age, as no good will result from the award of a new trial. Cherry v. Lake Drummond Canal, etc., Co. (N. Car.), 6-143. Burden of showing prejudice. — Ex- ceptions will be overruled unless they affirma- tively show, without aid from extrinsic evidence, not only that the ruling was wrong, but that the party complaining was ag- grieved, so that if the ruling would be justi- fied or would be harmless to the complainant upon any possible but not improbable situation unexplained by the exceptions, the doings below will not be disturbed or con- demned. Purinton v. Purinton (Me.), 8-205. (2) Error in rulings on the pleadings. Special pleas overruled.^ Where special pleas have been erroneously overruled by the court upon demurrer, but the defendant has the benefit of them upon the trial, the error is harmless. Virginia Bridge, etc., Co. v. Jordan (Ala.), 5-709. Demurrer overruled. — The overruling of a demurrer to a count claiming damages is not reversible error when no evidence is admitted to sustain the claim. Columbia Nat. Bank v. MacKnight (D. C), 10-897. APPEx\L AND EEEOR. 315 If the defendant in an action for personal injuries, after me overruling of a demurrer on the grounds that the complaint did not allege the place of injury, pleads aa a de- fense facts arising by reason of the law of the place where the accident occurred, then he is in no way prejudiced by the ruling of the court on the demurrer. McClain ». Lewiston Interstate Fair, etc., Assoc. (Idaho), 20-60. Motion to strike denied. — A judgment will not be reversed for the refusal of the trial court to strike out irrelevant allegations in the petition, where it is not shown and it does not appear that the defendant was prejudiced thereby. lola V. Birnbaum (Kan.), 6-267. The refusal of a trial court to sustain a motion to strike nonrecoverable damages from the complaint will not be reversed on appeal. Woodstock Iron Works t). Stock- dale (Ala.), 5-578. Information sustained in part.— Error cannot be predicated upon a ruling of the court that certain counts in an affidavit and information were sufficient when the defend- .int was acquitted on these counts. Knox V. State (Ind.), 3-539. Refusal to qnasb defective counts of indictment. — The refusal to quash defective counts in an indictment is not reversible error, if there is a count sufficient to support the conviction. People v. McCann (111.), 20-496. Error cared by amendment. — An erroneous ruling overruling a demurrer is error without prejudice, where the pleading assailed is afterwards amended, and the cause submitted and determined on the amended pleading. Bro>vn v. Brown (Neb.), 8-632. A judgment will not be reversed for error of the trial court in sustaining demurrers to certain counts in the complaint where the plaintiff is thereafter permitted to file other cou«ts which substantially state the same cause of action, and under which all of the evidence which would have been relevant under the original counts is admissible. Carleton v. Central of Georgia R. Co. ( Ala. ) , 16-445. Refusal to require statement of de- fense in ejectment. — The refusal to re- quire the defendants in ejectment to file a statement of the grounds of defense, if errone- ous, is harmless where the plaintiffs are not thereby embarrassed, hindered, or prejudiced in prosecuting the action. Knight v. Grim (Va.), 19-400. Refusal to permit amendment to plea where evidence in support thereof ad- mitted. — The action of a referee in refusing to allow the defendant to file additional pleas during the trial of a case, if error, is with- out injury, where the defendant is permitted to introduce evidence to support the matters set up in the additional pleas proffered. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. Sustaining demurrer to count of complaint similar to others permitted to stand. — Error in sustaining a demurrer to a particular count of a complaint is harm- less where there are other counts so similar that evidence which would have supported or justified a verdict under such count would equally have supported the same verdict under the other counts. Whaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. (3) Error in admission of evidence. Harmless error in admission of irrelevant evidence, see Ceiminal Law, 6 m (8). No reversal in absence of prejudice. — The reception of incompetent evidence which it affirmatively appears did not preju- dice the party objecting thereto, does not con- stitute reversible error. Vindicator Consol. Gold Min. Co. v. Firstbrook (Colo.), 10-1108. A judgment will not be reversed on appeal because of the erroneous admissions of evi- dence on the trial, where it is clear that the error did not prejudice the appellant. Eaton V. Blackborn (Ore.), 16-1198. Evidence favorable to appellant. — The allowance by the trial court, over ob- jection, of an improper question to a witness is not prejudicial error if the answer is favor- able to the party objecting. Green v. State (Ala.), 15-81. Evidence not afPecting result. — A judgment will not be reversed on appeal be- cause of the erroneous admission of evidence on the trial, where it is apparent that the evidence in question did not affect the result. Haurigan v. Chicago, etc., E. Co. (Neb.), 16-450. A judgment will not be reversed because of the action of the trial court in overruling an objection interposed by the defeated party to one of a series of questions addressed to a witness for the adverse party, where it is clear that the answer to that particular ques- tion did not prejudice the party objecting, even though the series of questions, taken as a whole, was of such a character that it would have been the duty of the court to exclude them on proper objection being made. McCrorey v. Thomas (Va.), 17-373. Evidence on immaterial issue. — A re- viewing court will not consider assignments of error based upon the admission of evi- dence which was admitted and used solely upon the issue which has become immaterial by the verdict of the jury. Cunningham v. Springer (U. S.), 9-897. Proof of admitted fact. — The admission of incompetent evidence which merely goes to prove an admitted fact, and has no bear- ing upon any of the real issues of the case, is not ground for reversal. Western Union Tel. Co. V. Woodard (Ark.), 13-354. Evidence of undisputed or indisput- able fact. — Error cannot be predicated on the admission of evidence to establish a fact which is admitted in the pleadings or which is presumed to exist. Golden v. Northern Pacific R. Co. (Mont.), 18-886. Facts established by other evidence. — A judgment of conviction in a criminal case will not be reversed on appeal because of the improper admission of evidence on the 816 AKA^ CAB. DIGEST, VOLS. 1-20. trial, wliel-e tlie facts Bought to be established by such evidence are also clearly established by defendant's own testimonyi Skaggs v. State (AJ-k.), 16-622. Error in admitting expert testimony is harmless where there is other competent evi- dence to the same effect. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201. Vevdict warranted by otlier evidence. — The admission of irrelevant testimony is not prejudicial error where the party ob- jecting thereto offers no proofs and there is no conflict in the evidence received and the evidence sustains the verdict without the ir- relevant testimony. Waldner r\ Bowden State Bank (N. Dak.), 3-847. Anjr othep verdict itiipossible. — The appellate court is not obliged to determine the admissibility of evidence alleged by the appellant to have been erroneously received on the trial, where it appears from evidence properly in the record that the verdict of the jury could hot have been different from what it was if the evidence In question had been excluded. Carscallan V, Cojur D'Alene, etc., Transp. Co. (Idaho), 16-544. Decree siistaiued "by otlse* evidence. ." Where the competent evlflenoe in the record is sufficient to sustain the decree, it will hot be disturbed on appeal because incompetent evidence appears in the record. PAtrifck i). Kirkland (Fla.), 12-540. A decree in equity will not be reversed be- cause of the fact that the record contains some incompetent evidence, if it contains sufficient competent evidence to sustain the decree, and the decree recites that the chan- cellor's findings Were based upon the report of the master and the evidence contained therein, and the master's report states that he did not consider the incompetent evidence. Champion i). McCarthy (111.), 10-517. Where testimony made incompetent by statute appears in a record, and there is also sufficient competent testimony, including that of the defendant, to sustain the decree against the defendant, he is not harmed by the ap- pearance of such incompetent testimony in the record. Patrick V. Kirkland (Fla.)., 12-540. • Trial -wltliont jtiry. — An appellate court will not reverse a judgment for an erroneous admission of evidence, where the trial was without the intervention of the jury and the record shows that there was abundant com- petent evidence to justify the finding of the court. Pratt v. Davis (111.), 8-197. Bebttttil evidence. — It seems that where the judge at ft trial has allowed rebutting evidence to be given, the court of criminal appeal will not quash a conviction upon the ground that it does not agree with the way in which the judge at the trial exercised his discretion, unless there was something in the rebutting evidence in the nature of a trap, which resulted in an injustice to the pris- oner. Rex V. Crippen (Eng.), 20-6.5S. Hearsay evidence. — A conviction will not be reversed for the giving of hearsay evi- dence which was not responsive to the ques- tions asked, where the court instructed the jury not to consider it, and no prejudice therefrom appears. State v. Osborne (bre.)j 20-627. (4) Error in exclusion of evidence. Same evidejlce ^fter-nrards adxnittedi — - Error in sustaining an objection to a ques- tion is Without prejudice, it the same ques- tion is afterwards asked and answered. Ed- wards t>. State (Nev.), 5-312. Assuming that a ruling of the trial' court exfiluding certain questions addressed to a witness On cross-esaniination Is erroneous, the error is harmless Where counsel is after- wards permitted to interrogate the witness fully in regard to the same matters, upon making him his own witness. St. Louis, etc., R. Co. V. Raines (Ark.), 17-1. Same evidence previttnsly given by Witness. — A refusal to permit a witness to answer a propei' question Is not so prejudicial as to constitute reversible error Where the witness has testified to substantially the Same facts sought to be elicited by the question. Taylor v. Modern Woodmen (Wash.), 7-607. Facts fonbd by jnry. — The ruling of a trial court In sustaining an objection to a question put to a witness, even though con- ceded to be erroneous. Will be considered on appeal as harmless error where it appears that the jury found as a fact the conclusion sought to be established by the question ob- jected to. Indianapolis Tractibn, etc., Co. V. Kidd (lud.), 10-942. Testimony not affeeting result. — It is no ground to reverse a judgment of nonsuit that the court excluded evidence which, even if admissible, would not have materially changed the scope and effect of the evidence which Was admitted. Stewart v. Savannah Electric CO. (Ga.), 17-1085. Although proof of a foreign record was erroneously rejected by the trial court, such ruling may be held to have been without prejudice to plaintiff, where it appears that if such record proof had been received, he would have failed to substantiate his cause of action by a fair preponderance of the evi- dence. Miller v. Northern Pacific H. Co. (N. D.), 19-1215. Bill of esceptions not containing all evidence. — Upon a writ of error, where all of the evidence is not incorporated in the bill of exceptions, an appellate court is not war- ranted In holding that error was committed by the trial court in excluding proffered testi- mony. Unless the relevancy and materiality thereof are clearly made to appear. Palk H. Kimmerle (Fla.), 17-839. (5) Other errors in relation to evidence. Question allowed but not ansivered. — An appellant cannot base an assignment of error on a question asked at the trial of a cause, which was not answered though an objection thereto was overruled. District of Columbia v. Duryee (D. C), 10-675. It is not reversible error to overrule an objection to a question where the witness does not a^iswer, Birmingham R., etc., Co. i: Baker (Ala.), 18-477. APPEAL AND ERROR. 317 Evidence offered but not received. — It is no ground for a new trial in an action for assault and batterj' that the plaintiff's counsel persistently endeavored to prove the plaintiff's general reputation, where it ap- pears that no witness testified as to his repu- tation. Birmingham R., etc., Co. v. Mason. (Ala.), 6-929. Withdrawal of incompeteiit evidence. — The admission of evidence applicable to one only of the counts of an indictment does not become prejudicial to the defendant on the quashing of such count where the evi- dence is thereupon witlidrawn and the court Instructs the jury not to consider it. Rex V. Hughes (Can.), 19-534. Exclusion of evidence improperly ad- mitted. — In an action for personal injuries resulting in a hernia, wherein physicians are allowed to testify on redirect examination in reference to strangulated hernia although the question is not raised either on direct or cross examination, and the testimony is subse- quently stricken on the plaintiff's motion, the admission of such testimony and its subse- quent exclusion cannot improperly influence the jury. Gascoigne r. Metropolitan West Side El. R. Co. (111.), 16-115. Error cured by subsequent testimony. — A ruling by the trial court on the cross- examination of a physician on a trial for malpractice, that the witness need not give the technical names of certain muscles of the human body, to which he has referred in his testimony, does not constitujte revers- ible error, where the witness is permitted to describe such muscles fully, and where coun- sel conducting the cross-examination has previously stated that he does not desire the technical names but only a general descrip- tion. Burton v. Neill (Iowa), 17-532. (6) Error in instructions. Harmless error in general. — Harmless error in an instruction to the jury affords no ground for a reversal. State v. Martin (N. J.), 18-986. Verdict manifestly correct. — The giv- ing of an erroneous instruction is not reversible error where the evidence is undis- puted and the jury find a correct verdict. Woods V. Carl (Arlc), 5-423. A judgment for defendant will not be re- versed on appeal because of error in an in- struction given by the court below, when it is clear that a recovery by the plaintiff would have been unauthorized in any view of the case. Munier v. Zachary (la.), 16-526. Where, in a suit for the price of goods sold and delivered, the evidence justifies a per- emptory instruction for the plaintiff, and the verdict is for an amount warranted by the evidence, the defendant cannot complain of error in the instructions to the jury. Cun- ningham Mfg. Co. V. Rotograph Co. (D. C), 13-1147. Jury not misled. — A judgment of con- viction for murder in the first degree will not be rever=!pd for the giving of an instruc- tion as to the eredibilitj' of witnesses and the mode of impeaching them, though the instruction was technically erroneous, where it is not apparent that the jury could have been misled thereby, and it is obvious that the verdict was correct. State v. Fuller (Mont.), 9-648. Prejudicial error does not follow from an erroneous instruction where it is evident that no harm resulted therefrom. Thus where a correct statement of the law has been re- peatedly given in other instructions, a judg- ment of conviction in a criminal case will not be reversed because of the granting of an erroneous instruction that the jury shall not convict the defendant unless upon all the evidence " or want of evidence " the defend- ant's guilt is established beyond a reasonable doubt, the solecism in the language of the instruction being so obvious as to be im- possible for the jury to have been misled. Dillon V. State (Wis.), 16-913. Although the jury should conform to the Instructions of the court upon matters of law, yet if it appears to the appellate tri- bunal that an instruction was erroneous, it will not grant a new trial because the verdict was contrary to such erroneous instruction. O'Neill V. Thomas Day Co. (Cal.), 14-970. Error cured by otber instructions. — In a prosecution under an indictment for killing an officer, the failure of the trial court to give a requested instruction to the jury to disregard the characterization of the accused by the prosecuting attorney in argu- ment as " outlaw " is not prejudicial error where the instructions show the standing of the accused before the court and the nature of the offense with which he is charged. State V. Horner (N. Car.), 4-841. Instructions must be considered as a. whole, and when so considered, if they are substan- tially correct and could not have misled the jury to the prejudice of the accused, a judg- ment of conviction will not be reversed because some instruction considered alone may be subject to criticism. State 1). Megor- den (Ore.), 14-130. Instruction on abstract proposition of law. — An appellate court will not decide whether an instruction requested and refused embodies a correct statement of a proposition of law, where it seems that the refusal was based on the ground that the evidence did not show a state of facts that made the propo- sition determinative of the controversy, Pratt V. Davis (111.), 8-197. Instruction as to immaterial matter. — An erroneous instruction to the jury on a matter not involved in the issue being tried, and which could not have misled them or affected them in their determination of the questions before them for decision, affords no ground for a reversal. State v. Maioni (N. J.), 20-204. e. Error must appear from record. (1) In general. Denial of motion for nonsuit. — In an action for damages for negligent delay in delivering a telegram, an alleged ground of 318 ANl^. CAS. DIGEST, VOLS. 1-20. nonsuit that the plaintiff failed to show that any claim for damages was presented within the time stipulated upon the telegram, need not he considered on appeal where the stipu- lation relied on does not appear on the tele- gram printed in the record. Smith v. West- ern Union Tel. Co. (S. Car.), 12-654. Remarks by court. — A statement of the trial court to a witness held not reversible error, the ground of the objection not being sufficiently clear in the record. Lingerfelt v. State (Ga.), 5-310. Where the court expresses an opinion as to improper testimony sought to be elicited from a witness on the stand, such action on the part of the court will not be held to be reversible error, unless the appellate court can say that it probably influenced the ver- dict of the jury. Evers v. State (Neb.), 19-96. Remarks by prosecuting attorney. — On an appeal from a conviction for crime, an appellate court will not consider an assign- ment of error based upon alleged improper remarks made by the prosecuting attorney, where the remarks are not set out in the bill of exceptions, though they are assigned as a ground for a new trial. State v. James (Mo.), 5-1007. Conversation by attorney 'with juror. — In a prosecution for murder, alleged error in the admission of testimony and the con- duct of counsel for the state in conversing with a juror cannot be reviewed where the grounds of error are not verified by bill of exceptions. Schwartz v. State (Tex.), 11-620. Misapprehension of facts by trial court. — On appeal from the Pennsylvania superior court to supreme court in a cause originating in the court of common pleas, the supreme court will review the judgment in the light of the record and will not consider a specification of error based on the superior court's misapprehension of facts resulting from the inadvertence of counsel in present- ing the case. Philadelphia v. Pennsylvania Institution, etc. (Pa.), 6-437. Verdict excessive. — A reviewing court will not set aside a verdict for the plaintiflf in an action for damages for personal in- juries on the ground that it is excessive and is contrary to the law and the evidence, where the record fails to disclose the trial court's reasons for denying a motion for new trial based on those grounds. Bass v. Cleveland, etc., R. Co. (Mich.), 7-718. Judgment justified by record. — A judgment refusing in general terms to grant specific relief will be affirmed if the record shows that any valid objection was raised to the petition. Marietta Chair Co. v. Hen- derson (Ga.), 2-83. Summoning bystander as juror. — An objection to the summoning and impaneling of bystanders in the place of regular jurors who had been excused is not available on appeal where the record does not show that the defendant had exhausted his peremp- tory challenges, YoTk c, State (Ark,), 18- 944, (2) Error in rulings on the pleadings. Overruling of demurrer. — An appellate court will not review the overruling of a de- murrer where neither the demurrer nor its substance is set out in the brief of appel- lant's counsel. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. An assignment of error on appeal on the ground that the lower court improperly over- ruled a demurrer is bad where the record does not show that the demurrer was ever called up or acted upon by the lower court. Mobile, etc., E. Co. v. Ridley (Tenn.), 4-925. Denial of motion to strike out plea. — An appellate court will not consider an assignment of error based on the trial court's denial of a motion to strike out the pleas, unless the motion, pleas, and rulings thereon are set out in the bill of exceptions. Harri- son V. Alabama Midland R. Co. (Ala.), 6-894. Denial of motion to quash informa- tion. — The overruling of a motion to quash an information in a criminal prosecution will not be reviewed on appeal, where the ground upon which the motion was based is not ap- parent upon the face of the information and is not incorporated in the record by a proper bill of exceptions. Quillin v. Commonwealth (Va.), 8-818. (3) Error in rulings on the evidence. Admission of evidence. — An assignment of error in exceptions pendente lite or in a motion for a new trial, that the court erred in refusing to rule out the testimony of a witness does not present a question ■ for re- view when the testimony in question is not set forth in connection with the assignment of error and no statement thereof is attached as an exhibit. Georgia Co-operative F. Assoc. V. Borchardt (Ga.), 3-472. Exclusion of evidence. — An appellate court will not review a ruling excluding evi- dence where the record does not disclose the purpose for which the evidence was offered or the ground of objection to its exclusion. Lambert v. Hamlin (N. H.), 6-713. An appellate court will not review alleged errors in the exclusion of evidence, where the record neither points out any speeiiic evidence offered and excluded nor shows any exceptions to the action of the trial court, though the evidence is pointed out in the brief. Priddy v. Boice (Mo.), 9-874. (4) Error in instructions. Failure to instruct. — A judgment for the plaintiff in an action for damages for personal injuries will not be reversed for the failure of the trial court to instruct the jury on the question of contributory negli- gence, where the record fails to show any allusion to that question at the trial. Bass V. Cleveland, etc., R. Co. (Mich.), 7-718. Alleged error in failing to give an instruc- tion will not be reviewed where the instruc- tion is not referred to in the "points and authorities " portion of the party's brief, and it is not pointed put vl^at t^atJmpny ths APPEAL AND EREOE. 319 instruction could have applied to. Knapp t'. State (Ind.), 11-604. Where the bill of exceptions shows that all the charges given by the court to the jury are not brought to the appellate court, a mere refusal to give a requested charge will not be held error, since, even if the requested charge is correct in terms, a charge suf- ficiently covering the point may have been given. Thompson v. State (Fla.), 19-116. Giving or refusal of instructions. — An appellate court will not consider assign- ments of error based upon the giving or re- fusal of instructions, where the proper and specific exceptions to the trial court's rulings do not appear in the bill of exceptions; and this is so even though the record shows that such exceptions were incorporated in a motion for a new trial, and though the bill of exceptions contains a general exception to the denial of the motion, if it appears that some of the instructions complained of are correct statements of law. Koch v. State (Wis.), 5-389. The giving and refusal of instructions in a criminal prosecution will not be reviewed on appeal unless the instructions have been made part of the record by incorporation in the bill of exceptions, though they have been copied into the record by the clerk of his own motion. State v. Ruck (Mo.), 5- 976. An appellate court will not consider as- signments of error based on the giving and refusal of instructions where the record fails to show that all the instructions are em- braced in the transcript. Knickerbocker Ice Co. V. Gray (Ind.), 6-607. An appellate court will not review the action of the trial court in refusing instruc- tions, where the rejected prayers, though con- tained in the transcript, are not contained in the bill of exceptions. Phillips v. Washing- ton, etc., R. Co. (Md.), 10-334. An assignment of error based on the re- fusal of an instruction will be disregarded, where the record does not show what prayers were granted by the trial court, as the re- jected instruction may have been covered by the other instructions given. Kecoughtan Lodge V. Steiner (Va.), 10-256. On appeal, an instruction will not be held erroneous on the ground that it ignores a " paper writing " between the parties, if such instrument is not in the record. Oldenburg V. Dorsey (Md.), 5-841. Where evidence is admitted in the course of a trial for certain purposes, an exception to a paragraph in the charge of the court, which declares that this evidence was prop- erly admitted for these purposes, in the absence of any request to the court to ex- clude any specific evidence or to limit its effect, and in the absence of any objection or exception to its admission, or of any specifi- cation of the particular evidence challenged, is unavailing, because in such a ease the record fails to prove the error, and the pre; sumption that the action of the court below was right must prevail, \Y?^re v. Unite(^ States (U, S,), 12-83.^, Necessity for incorporating evidence. — To review the giving of an instruction which attempts to state the law applicable to facts which the court says are shown by the evidence, it is not necessary that the evidence shall be in the record. State ». Tillet (Ind.), 20-1262. f. Who may allege error. Assignment of cross-error by appellee. — On appeal by a complainant from a decree dissolving an injunction and allowing the defendant a certain sum for attorney's fees as damages on an injunction bond, where there is no cross-appeal by the defendant, the appellate court will not consider an assign- ment of cross-error based upon the amount allowed for fees. Griffith v. Vicksburg Waterworks Co. (Miss.), 8-1130. g. Errors not available. (1) Question not raised below. Defense of statute of limitations not raised below, see Limitation of Actions, 8 b (1). General mle stated. — A question not presented for the consideration of the trial court cannot be made the subject of argu- ment on appeal. Keil v. Wright (Iowa), 14-549. An appellate court will not reverse a judgment for an order to which the atten- tion of the trial court was not called. Gardner v. Metropolitan St. R. Co. (Mo.). 18-1166. Points not raised in the pleadings and not passed on by the trial judge cannot be made for the first time in the bill of exceptions. Whitney v. Central Georgia Power Co. (Ga.), 19-982. Irregularities not objected to below. — Irregularities which are capable of being corrected in the trial court must be called to the attention of that court, or they will be deemed to have been waived. They can- not be objected to for the first time on ap- peal. Hobbs V. State (Tenn.), 17-177. Fact assumed below. — In an action against a city and a street railroad company for the death of the plaintiff's decedent by an alleged obstruction on a sidewalk, where both the court and counsel for both parties at the trial assumed as a fact that the street on which the decedent fell was one of the public streets of the city and within its cor- porate limits, the defendants cannot object for the first time on appeal that there was no proof of such fact in the record. Wood- son V. Metropolitan St. Ry. Co. (Mo.), 20-1039. Matters not specified in objections to decree. — On an appeal to the supreme ju- dicial court from a decree of the probate court revoking a former decree of adoption on the ground of undue influence, the de- fenses of laches, the statute of limitations, and ratification of the adoption by the foster parent are not properly open to the appel- JftSt, \vberfi no ^bjep^ions ^q the decree (5t\ 320 A'^N. CAS. DIGEST, VOLS. 1-20. those grounds have been filed. Phillips i\ Chase (Mass.), 17-544. Constitutionality of statute. — The constitutionality of a statute permitting sub- stituted service of process cannot be ques- tioned for the first time on appeal. Hass v. Leverton (Iowa), 5-974. The court on appeal will not consider the constitutionality of a statute involved in the proceeding, unless a question as to its con- stitutionality has been raised. State v. Perkins (Iowa), 20-1217. The failure of the appellee to point out and rely upon a proposition, such as the un- constitutionality of a statute disclosed by the record, will not cause the appellate court to ignore such proposition if it will prevent a reversal of the judgment. ICraus v. Leh- man (Ind.), 15-849. Adoption of improper remedy. — The objection that the plaintiff has not pursued a proper remedy cannot be raised for the first time on appeal. Savannah, etc., E. Co. r. Talbot (Ga.), 3-1092. A judgment rendered on the pleadings be- cause the plaintiff's reply was frivolous will not be disturbed on appeal on the ground that the relief should have been in the form of an order striking out the reply as sham, where the propriety of the procedure was not questioned either in the trial court or on the argument of the appeal. Dahlstrom r. Gemunder (N. Y.), 19-771. Xiegal action treated as equitable. — Where in an action at law the answer of the defendant sets up an equitable defense but asks no affirmative equitable relief, the court does not err in treating the case as one in equity; and where the defendant fails to preserve an exception to this action of the court but proceeds with the case as if it were properly cognizable in equity, he cannot, on appeal, assign the action of the court as error. Kessner v. Phillips (Mo.), 3-1005. Suit by wrong party. — The objection that an action brought by a general guard- ian in his own name should have been brought in the name of the ward cannot be raised for the first time on appeal, as it is a matter of abatement. Randall v. Lonstrof (Wis.), 5-371. Defect of parties. — In an action for personal injuries caused by the bite of a vicious dog, the question of a defect of parties when not raised by either demurrer or answer is waived and cannot be taken ad- vantage of on appeal. Grissom i: Hofius (Wash.), 4-125. By answering over after his demurrer for defect of parties has been overruled, a party waives his right to raise the question on ap- peal. Adams v. Clark (Colo.), 10-774. Where the guardian of an infant is treated as the plaintiff by the parties and the lower court, he will be so regarded on appeal, and the parties will be held to that theory. Campbell 7'. Fichter (Ind.), 11-1089. Misjoinder of parties. — The question of misjoinder of parties, or of causes of action, or of defect of parties must be prop- erly taken advantage of in apt time in the trial court, or the same will be treated as waived in the supreme court. Kansas City, etc., R. Co. V. Shult (Okla.), 20-255. Appellant not a party belonr. — Where in the winding up of insolvent corporations, the receiver institutes proeeedingSi by peti- tion against certain stockholders for "the en- forcement of their liability for unpaid sub- scriptions to th3 extent required for the pay- ment of the claims of certain creditors, aiid the trial court holds the stockholders liable to the extent required for the payment of the claims of some of the creditors, but ex- cludes from the claims entitled to contribu- tion the claim of a person who is also a stockholder, and such person is a party to the record but only as a defendant stock- holder, and from the latter part of the decree such stockholder enters an appeal in due form and files his petition of appeal in the appellate court, and the respondents, who are the other delinquent stockholders, answer the petition of appeal but in their answers raise no question of the appellant's riQclit to appeal, an objection which is first raised at the hearing of the appeal that the appellant had no such status as a party in the trial court as would entitle him to ap- peal from so much of the decree as denied relief to the receiver in respect to his claim, comes too late. Easton Nat. Banlc v. Amer- ican Brick, etc., Co. (N. J.), 10-84. SiiSiciency of declaration, complaint or petition. — The objection that a declara- tion is not sufficient to authorize a recovery cannot be raised for the first time on appeal. Joliet Stove Works v. Kiep (111.), 12-227. An objection to the sufficiency of the alle- gations of the complaint is tpo late when made for the first time in the supreme court, where the complaint would be amended as a matter of course if objection had been made before. First National Bank r. Warner (N. Dak.), 17-213. Where no objections are pointed out or urged by an appellant in regard to the suf- ficiency of the complaint, any question rela- tive to its sufficiency will be considered as waived. Morrison v. Indianapolis, etc., R. Co. (Ind.), 9-587. When a complaint is attacked for the first time in an appellate court, it will be upheld if the facts alleged are sufficient to bar another suit for the same cause of action. Indianapolis Traction, etc., Co. (". Kidd (Ind.), 10-942. The question whether a petition states a cause of action or discloses grounds su.fficient for the granting of eqviitable relief may be raised at any stage of the proceedings in the appellate court up to and including the filing of a motion for a rehearing. Vila r. Grand Island Electric Light, etc., Co. (Neb.), 4-59. Complaint indefinite. — An indefinite allegation of a fact in a complaint cannot be first attacked on appeal, where the record shows that the evidence is positive as to the fact, and such evidence was not objected to. Mitchell v. Monarch Elevator Co. (N. Dak.), 11-1001, APPEAL AND EKROR. 321 Amendment improperly allowed. — The Maryland court of appeals will not re- view the action of the trial court in per- mitting the plaintiff in an action of assump- sit to file an amended declaration in trover, where no exception thereto is taken by the defendant. Swartz v. Gottlieb-Bauern- Sehmidt-Straus Brewing Co. (Md.), 16-1156. New matter pleaded in reply. — An assignment of error that the court permitted the plaintiff to plead new matter in the reply to the surprise and prejudice of the defendants will not be considered on appeal when the objection was not raised below. Allen V. Labsap (Mo.), 3-306. No replication to ans'wer. — A decree will not be reversed for want of replication to an answer, where the defendant has taken depositions as if there had been a replica- tion. Kirchner v. Smith (W. Va.), 11-870. Pleading filed too late. — The plaintiff in an eminent domain proceeding under the Indiana statutes will not be heard to com- plain on appeal that the defendant filed his written objections to the proceeding after the expiration of the time prescribed by the statute, where it appears that the plaintiff failed to object to the filing at the time it was made. Morrison v. Indianapolis, etc., R. Co. (Ind.), 9-587. Sufficiency of indictment or informa- tion. — A motion made by the defendant dur- ing or ^ after the close of a criminal trial, for a directed verdict of acquittal because the evidence is insufiScient to convict and because the crime charged has not been proven, chal- lenges the evidence merely and not the in- dictment, and an exception to the denial of the motion will not authorize a consideration upon appeal of the sufficiency of the indict- ment. People V. Weichers (N. Y.), 1-475. The objection that an information is in- sufiScient to support a conviction for murder in the first degree may be raised for the first time on appeal. State v. Lu Sing (Mont.), 9-344. Sufficiency of police court summons. — A summons issuing from a police court may be amended if defective, and will not be declared insufficient on appeal to the court of appeals where no question as to its suf- ficiency was raised in the police or in the circuit court. Commonwealth v. Price (Ky.), 13-489. Improper admission of evidence. — An appellate court will not review rulings admitting evidence, unless the record shows objections and exceptions by the appellant to the introduction and admission of the evi- dence. Priddy v. Boice (Mo.), 9-874. A verdict will not be disturbed on appeal because the jury considered improper evi- dence where such evidence was not objected to when offered and no motion to strike it out was made. Stockham v. Malcolm (Md.), 19-759. An objection to testimony as involving a transaction with a decedent cannot be raised for the first time on appeal. Alexander v. Tebeau (Ky.), 18-1092. Exceptions to the admission of evidence Vols. 1-20 — Ann. Cas. Digest. — 21. are waived if they are not urged on a mo- tion for a new trial made in the cause. Planters' Mutual Ins. Assoc, v. Hamilton (Ark.), 7-55. An appellate court will not consider an assignment of error based on the admission of evidence, where it appears that no objec- tion was made or exception saved at the trial. Little Rock R., etc., Co. v. Goerner (Ark.), 10-273. On writ of error a plaintiff in error will not be heard to complain of the admission of testimony in the trial court to which he made no objection or exception. Goken v. Dallugge (Neb.), 9-1222. Where no objection is made or preserved to the offer of testimony or to the introduc- tion or use of exhibits, no error can be predi- cated upon the admission of such evidence. State V. Eennick (Iowa), 4r-568. A party cannot complain in the appellate court of the testimony of a witness for the adverse party which was given without ob- jection and without any motion to exclude such testimony after its objectionable char- acter appeared on cross-examination. Graham V. Mattoon City R. Co. (111.), 14-853. Improper limitation of evidence. — A plaintiff in error will not be heard to complain in a reviewing court that evidence admitted for a limited purpose was admissi- ble for a broader purpose, where it appears that he failed to object in the trial court, either to the admission of the evidence for a limited purpose or to an instruction to the jury thus limiting it. Cunningham v. Springer (U. S.), 9-897. Failure of proof as to damages. — An assignment of error based on the ground that no evidence was given in the trial court to enable the jury to assess the damages awarded will not be considered, where it does not appear that the plaintiff in error made any point on the trial in regard to the absence of such evidence, or that he asked the trial court to direct a verdict for him on account of its absence. Mercantile Trust Co. V. Hensey (U. S.), 10-572. Improper question to 'witness. — A party who fails to object to a question pro- pounded to a witness and fails to move to strike out the answer waives his right to have the propriety of the question reviewed on appeal, and the fact that he objects to the same question when repeated at a later stage of the trial does not entitled him to complain of the admission of the answer to which he has failed to object. Graham v. Mattoon City R. Co. (111.), 14-853. Exception to deposition. — If a party wishes to rely upon an exception to a de- position, he must bring it to the attention of the trial court so that it may be acted on, and unless the record shows that this has been done it will be by the appellate court deemed to have been waived. Kirchner v. Smith (W. Va.), 11-870. Testimony incompetent by statute. — Objections taken to testimony before a mas- ter should be called to the attention of the court before final hearing and the record 322 ANN. CAS. DIGEST, VOLS. 1-20. should show the rulingi ther«on if it is de- sired to have the appellate court consider them; but testimony made incompetent by statute should be disregarded by the trial court and by the appellate court. Patrick v. Kirkland (Fla.), 12-540. Specific objection essential. — Only specific objections to the admission of evi- dence stated to the trial court are available on appeal. Malott v. Central Trust Co. (Ind.), 11-879. Changing ground of objection on appeal. — In order to be available on appeal, an objection to evidence must be interposed on the proper ground in the trial court. A party will not be permitted to make one ob- jection to evidence in the trial court and another objection in the appellate court. McCrorey v. Thomas (Va.), 17-373. Exception essential. — Where a witness is permitted to testify over the objection, but no exception is saved to the ruling of the trial court, no question is presented to the appellate court for decision. Cleveland, etc., R. Co. V. Hadley (Ind.), 16-1. Objection irithont esception. — The fact that no exception was taken to the action of the court in overruling an objection to an instruction precludes a review of the instruc- tion. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201. Exception iritliont objection. — An exception to an instruction without having made an objection thereto does not present any question for review. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201. Indefinite objection. — An objection on appeal, in a proceeding under the Indiana statute of 1907, to procure the seizure and destruction of intoxicating liquors, that the statute is unconstitutional as applied to in- toxicating liquors because it authorizes the taking of property without, due process of law, is too indefinite to present any question for review. Rose v. State (Ind.), 17-228. Variance. — When a question of variance between the allegation and proof is not raised in the trial court, it cannot be enter- tained for the first time on appeal. Ensley V. Mercantile Co. v. Otwell (Ala.), 4^512. An objection to a variance between the pleadings and the proof cannot be raised for the first time in the appellate court, and in the absence of an objection or a motion at the trial to exclude the objectionable evi- dence, a motion for a new trial grounded upon an alleged variance does not preserve the consideration of such variance as a ques- tion of law for review by the appellate court. Gascoigne v. Metropolitan West Side El. R. Co. (IlL), 16-115. Erroneous instructions in general. — Where an appellant has failed in the lower court to take exceptions to a charge of the court, alleged errors therein cannot be re- viewed. Kunkel v. Utah Lumber Co. (Utah), 4-187. A judgment will not be reversed for the giving of an erroneous instruction in the ab- ience of an exception th»r«to. Brown v. Stat* (Wii.), 7-258. In an action for damages for breach of a contract, it is too late for the defendant to object for the first time on appeal to an in- struction concerning the elements of the dam- ages recoverable. St. Louis Southwestern R. Co. V. James (Ark.), 8-611. In an action for damages for personal in- juries in which no evidence as to the expense of medical attention is offered, the inadvert- ent error of the trial judge in telling the jury that they can " take into consideration the general expenses and medical attendance " is not reversible error where the defendant's counsel fail to call the court's attention thereto. Worthy v. Jonesville Oil Mill (S. Car.), 12-688. Timely and proper exceptions must be taken in the trial court and properly reserved in the record on appeal before error predi- cated upon instructions will be considered on appeal. State v. Megorden (Ore.), 14-130. Erroneous instruction in criminal case. — The accused in a criminal action can- not for the first time on appeal raise the ob- jection that the court erred in instructing the jury as to the minimum punishment. Manning v. State (Tex.), 3-867. On appeal from a judgment of conviction in a criminal prosecution an appellate court will not consider an assignment that the trial court erroneously declared the law upon the facts developed at the trial, where the record discloses an entire absence of any objections or exceptions to the giving or refusal of the declarations of law. State v. Morgan (Mo.), 7-107. Charge too general. — It cannot be con- court was too general and therefore failed to direct the attention of the jury specifically to the issues involved, unless the appellant requested proper instructions of a more spe- cific nature. St. Louis, etc., R. Co. v. Jack- son (Ark.), 8-328. Rulings on requests for instructions. — An appellate court will not review rulings granting and refusing requests for instruc- tions, where the alleged errors in such rul- ings were not properly assigned in the mo- tion for new trial. Muncie Pulp Co. v. Kessling (Ind.), 9-530. Refusal of instructions. — Error predi- cated on the refusal of instructions will not be considered by an appellate court, where it appears that no request for such instructions was made. Murtland v. English (Pa.), 6-339. The supreme court is not bound to review the action of the trial court in refusing to instruct the jury as requested, when no ex- ception is taken to such refusal. Union Pa- cific R. Co. V. Meyer (Neb.), 14-524. Failure to give instructions. — Error cannot be predicated of a failure of a trial court to give an instruction on any given question or issue, in the absence of a showing of a request for the omitted instruction. Garrigan v. Kennedy (S. Dak.), 8-1125. An objection to the failure of the court to instruct the jury upon all the law of the case cannot be sustained on appeal when it does not appear from the record that the court's APPEAL AND EKEOR. 32J attention was called to the failure to do so at the time the instructions were read to the jury or that any exception was saved on that account. State v. Welch (Mo.), 4^681. In an action to recover damages for per- sonal injuries, where it appears that the plaintiff while sitting on the grand stand of an amusement field was struck by a bottle dropped from the band platform overhead, if the court instructs the jury that the defend- ant is liable for the negligence of its officers, but fails to instruct as to the negligence of the defendant's agents, servants, and em- ployees, the plaintiff, if he fails to call the court's attention to the omission, cannot predicate error thereof on appeal. Williams V. Mineral City Park Assoc. (Iowa), 5-924. Failure to direct verdict. — On appeal by a defendant in an action from a judgment rendered against him, the appellate court will not consider whether the evidence tends to support the plaintiff's cause of action, if the record fails to show that the defendant, at the close of the evidence, requested the in- struction that the jury should find for him. Godair v. Ham National Bank (111.), 8-447. Failnre to make mling. — An assign- ment of error cannot be based upon the fail- ure of the trial court to make a ruling which it is not asked to make. In re King- man (111.), 5-234. Improper remarks by judge. — An appellate court will treat an appellant's ob- jections to remarks made by a trial judge and to rulings admitting and excluding evi- dence as waived, where it appears that the objections were not sufficiently set forth in a motion for a new trial made in the cause. Miller o. Nuckolls (Ark.), 7-110. Improper argument by counsel. — For improper argument by counsel to be avail- able on appeal the opposing counsel must object thereto and save an exception to the overruling of the objection. State v. Jeffries (Mo.), 14^524. The failure of a party to except to the action of the court in overruling a motion to discharge the jury and withdraw the sub- mission of the cause on account of an im- proper statement by the opposing counsel, is a waiver of any right to challenge the cor- rectness of the ruling. Malott v. Central Trust Co. (Ind.), 11-879. Submission of interrogatories to jury. — A party who fails to object in the trial court to the submission of interrogatories to the jury may on appeal be presumed to have assented to such submission. Freedman v. New York, etc., E. Co. (Conn.), 15-464. Correctness of findings. — An appellate court will not go behind a trial court's find- ing of fact in an action at law, but will merely inquire whether the findings support the trial court's conclusions of law, where no exceptions to the findings were taken below. Snuffer v. Karr (Mo.), 7-780. Befnsal to find. — An appellate court will not reverse a judgment for a trial court's refusal to make a finding of facts, where the bill of exceptions contained in the abstract of the record discloses that no objections or exceptions were preserved to the refusal of the request for the finding, and it is expressly admitted by counsel for the appellant in their brief that there was no dispute at the trial about the facts. O'Connor v. St. Louis Tran- sit Co. (Mo.), 8-703. Failure to find. — An assignment of error that the chancery court of appeals failed to find certain facts, which it was not requested to include in its findings, will not be considered by the supreme court. Marion Mfg. Co. V. Buchanan (Tenn.), 12-707. Verdict excessive or insu£Bcient, — When no objection, by motion to set aside or otherwise, has been made in the trial court to a verdict rendered, subject to the action of the court upon a demurrer to the evidence, it cannot be disturbed in the appellate court on the ground of exeessiveness or paucity of damages. Uhl v. Ohio Eiver R. Co. (W. Va.), 3-201. Amount found by referee excessive. — By failure to raise the question in the trial court that the amount found by a referee exceeds the ad damnum of the pleading, the objection is waived and cannot be taken ad- vantage of on writ of error. Leathe v. Thomas (111.), 4^79. Judgment not supported by pleadings. — The objection that a judgment is not sup- ported by the pleadings or the findings of the trial court may be raised for the first time on writ of error. Nichols v. Board of County Com'rs (Wyo.), 3-543. Decree void for Tsrant of jurisdiction. — Where a motion has been made in the lower court to vacate a decree for alimony, not on the ground that it is void as rendered without jurisdiction but only on the ground that justice and equity require that it shall be vacated, the supreme court can- not, on appeal, go beyond the motion appealed from and vacate the decree on the ground that it is void for want of jurisdiction. Cohen V. Cohen (Cal.), 11-520. Irregularities in criminal prosecution. — It cannot be contended for the first time on appeal that a judgment of conviction for crime is void because of the failure of the foreman of the grand jury to indorse his name on the indictment, or because of the action of the trial court in ordering a special venire of petit jurors instead of causing the jurors on the regular list to be summoned. Beard v. State (Ark.), 9-409. Arrest of -witness for perjury. — The action of the trial court in a criminal case, in ordering, at the close of his testimony on the trial, tlie arrest of a witness for perjury, at the instance of the prosecuting attorney, does not present reversible error, where no objection is interposed by the defendant's eoimsel and no exception is taken. Skaggs V. State (Ark.), 16-622. Denial of motion for new trial. — The denial of a motion for a new trial will not be reviewed on writ of error, where the bill of exceptions does not show an exception to the ruling. Jacksonville Electric Co. v. Adams (Fla.), 7-241. Where a party moves for a new trial and 324 ANI^. CAS. DIGEST, VOLS. 1-20. sets up in his written motion the specific grounds upon which he relies, he will not be heard on appeal to assign error on grounds not specified in the motion. Lasher v. Col- ton (111.), 8-367. Property rights not triable in divorce. — A decree for divorce is not rendered void by the fact that it requires the payment of a certain fund by the complainant to the de- fendant; and the complainant cannot assert for the first time on appeal that property rights should not be tried in a suit for di- vorce. Carnahan v. Carnahan (Mich.), 8-53. Defects in abstract of title. — On appeal from a decree for the plaintiff in an action by the vendor for the specific per- formance of a contract to convey land, the appellate court will not consider objections to the abstract of title which were not called to the attention of the trial ourt. Ketter- ing v. Eastlack (Iowa), 8-357. Title of purchaser on foreclosure. — The title of a purchaser at a foreclosure sale cannot be attacked on appeal on the ground that the property was purchased for the holder of the mortgage lien where no ques- tion was raised concerning it in the plead- ings and proof in the lower court. First National Bank v. Waddell (Ark.), 4-818. Qualifications of public officers. — Where the board of trustees of a village make an order removing an officer without specifying any grounds for the removal, and thereafter apply to the court for a writ of mandate to compel the officer so removed to turn over to her successor in office the books, papers, and moneys in her hands belonging to the municipality, and allege that her re- moval was made upon the grounds that she had failed to make monthly reports as re- quired by law, they will not be heard upon appeal to the supreme court to urge, as a ground for the issuance of the writ, that the officer was not qualified under the constitu- tion to hold such office on account of her sex. Kendrick v. Nelson (Idaho), 12-993. Validity of stipulation in telegraph blank. — The validity of a stipulation printed on a telegraph blank and relied on in the argument before the appellate court to protect the telegraph company from lia- bility for the nondelivery of the message, will not be considered by that court where the question of its validity was not raised on the trial by any instruction requested by the de- fendant, and the instruction requested by the defendant proceeded on an entirely different theory. Western Union Tel. Co. v. Lehman (Md.), 14^736. (2) Sufficiency of objection or exception. General objection to evidence. — In a criminal prosecution, objections to questions asked the defendant on cross-examination that the evidence sought is "incompetent, irrelevant immaterial, and not cross-examina- tion," are too general to save anything for review, where it appears that the evidence is material. State V. Lu Sing (Mont.), 9-344. The objection to the admission of evidence that " it is Incompetent, irrelevant, and im- material, and does not tend to prove any issue in the case " and " does not tend to prove the earning capacity of the decedent in this case " is too indefinite, uncertain, and general to present any question for review. Malott v. Central Trust Co. (Ind.), 11-879. General objection to books of acconnt. — A general objection to the admission in evidence of the plaintiff's books of accoimt, without stating the specific ground of the objection, will not be considered on appeal. Andrew v. Haller Wall Paper Co. (D. C), 16-192. Objection to evidence as immaterial. — A ruling admitting evidence will not be reviewed on appeal where the only objection made to it was that it was immaterial. Stats 9. Kuck (Mo.), 5-976. Objection to competency of question. — An objection to the competency of a ques- tion asked an expert witness does not save for review on appeal the question as to whether the witness is qualified to express an opinion in answer to the questions asked. State V. Martin (Oregon), 8-769. An objection that a question propounded to a witness is " incompetent, irrelevant, and immaterial, upon the ground that a proper hypothesis or foundation had not been laid for asking the question," goes only to the competency of the question. State v. Megor- den (Ore.), 14-130. General exception to instructions. — A single general exception to several instruc- tions in gross will not be considered by the appellate court if any one of the instructions is good. Wells v. Parker (Ark.), 6-259. An appellate court will not consider a general exception to the giving of a series of instructions, where one of the instructions is good. Kansas City Southern R. Co. v. Morris (Ark.), 10-618. A general exception to the charge of the court upon the subject-matter of a number of requests is too vague to receive considera- tion on appeal. Specific exceptions to the particular propositions objected to are neces- sary to obtain appellate review. Kelly v. Rutland R. Co. (Vt.), 13-269. General exceptions to ruling on demurrer. — Where a ease was heard on general demurrer and the exceptions taken to the decision thereon do not show the par- ticular point or points raised below, the su- preme court will hear any question within reach of the demurrer. Cushman, etc., Co. V. Boston, etc., R. Co. (Vt.), 18-708. General objection to instruction as a whole. — A general objection to an instruc- tion as a whole is not sufficient to preserve for review on appeal the action of the trial court in giving the instruction, but the ob- jectionable feature should be specifically pointed out. Frazier v. Poindexter (Ark.), 8-552. Irrelevant objection to instruction. — Where, in an action for damages for neg- ligence, the issue as to the negligence "of the defendant has been submitted to the jury by instructions not objected to, an objection by APPEAL AND ERKOR. 32C the defendant to instructions as to the con- tributory negligence of the plaintiff for reasons which involve the question of the defendant's negligence is without relevancy and will not be considered upon appeal. Dubiver v. City, etc., R. Co. (Oregon), 1-889. General exception to refusals to charge. — Exceptions to the refusal of the court to comply with requests to charge, with- out designating any special requests claimed to have been refused, are too general to re- quire consideration on appeal. Dronin v. Wilson (Vt.), 13-93. An appellate court will not consider a gen- eral exception to the refusal of a series of instructions, where one of the instructions is bad. Kansas City Southern E. Co. v. Morris (Ark.), 10-618. Indefinite assignment of error. — Errors assigned and discussed but lacking the precision of specification in the exceptions on which they are founded, that is required by the rules of the District of Columbia court of appeals defining the practice in such cases, will not be considered by that court. Morgan V. Morgan (D. C), 13-1037. Striking out indefinite exception. — It is error to strike, on the ground that it is too general and indefinite, an exception of fact to an auditor's report in a, case at law which assigns a specified finding of the audi- tor as being " contrary to evidence " or " with- out evidence to support it." Anderson v. Blair (Ga.), 2-165. Time of making objections. — Objec- tions to alleged errors, committed during a, trial, must be made in apt time, so as to allow the trial court to rule upon the objections be- fore action is taken. It is too late to com- plain after the trial is ended. Johnson V. State (Okla.), 18-300. (3) Inconsistent attitude on appeal. General rule stated. — Where a party assumes a certain position in a legal proceed- ing, and succeeds in maintaining that position, he may not thereafter, simply because his in- terests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the posi- tion formerly taken by him. Hence, where a party assumes a position and asserts a legal right in the district court, and there asks the benefit of that position, he is estopped from denying the legality of that position on ap- peal to the supreme court. Morrison v. At- kinson (Okla.), 8-486. Questions involved in case. — An ap- pellant cannot raise on appeal a question which he expressly stated at the trial below was not involved in the cause. St. Louis Southwestern R. Co. v. White Sewing Machine Co. (Ark.), 8-208. Where, upon the trial of an action for eject- ment, it is admitted by the parties that the only question involved is the validity of cer- tain mortgages under which the defendant claims title, the plaintiff will not be heard to allege upon appeal, in support of the right to recover, a failure to show the legal foreclosure of the mortgages. Shreeves v. Caldwell (Mich.), 3-502. Existence of issues. — The trial of issues tendered by a, pleading as though they had been properly made, in the absence of any plea, answer, or replication which raises them, estops the parties from subsequently denying, on appeal or error, that the issues were duly made, and from taking any advantage of the lack of the plea, answer, or replication. Bank of Havelock V. Western Union Tel. Co. (U. S.), 5-515. A party accepting all the issues tendered by the petition and defending the case at the trial against all the theories presented will not be granted a new trial because such theories are inconsistent with one another. Provident Loan Trust Co. v. Mcintosh (Kan.), 1-906. Sufficiency of answer. — Where " plain- tiflf in an action treats an issue as properly tendered, and tries the case in the lower court on that theory without objection to the suf- ficiency of the answer, he will not be heard to say on appeal that the answer tenders no defense. Cook v. Bagnell Timber Co. ( Ark. ) , 8-251. Effect of demurrer. — A demurrer which is insufficient because not directed to the pleading as a whole will not be considered on appeal as a motion to strike out definite por- tions of the complaint where the demurrer was not submitted to the trial court on that theory. Plymouth Gold Mining Co. v. United States Fidelity, etc., Co. (Mont.), 10-951. Admissibility of evidence. — On an appeal in an eminent domain proceeding, the appellant cannot assume the position con- cerning the admission of evidence which is the reverse of the position which he assumed in the trial court. Yellowstone Park R. Co. v. Bridger Coal Co. (Mont.), 9-470. Evidence admissible for particular purpose. — Where there is a general objec- tion to evidence which is admissible for a particular purpose, it is not reversible error to admit such evidence without restricting it to that purpose. Schaubuch v. Dillemuth (Va.), 15-825. Fbonographio reproduction as evi- dence. — In a condemnation proceeding in- stituted by a railroad company to determine the necessity for laying its tracks along a city street, and to assess the damages to an adjoining owner, even if it is erroneous to permit a phonograph to be operated in the presence of the jury to reproduce the sounds claimed to have been made in the operation of trains in proximity to the re- spondent's hotel, the error is not a reversible one, as the instrument's mild reproduction of the sounds cannot seriously prejudice the petitioner. Boyne City, etc., R. Co. v. An- derson (Mich.), 10-283. Burden of proof. — In an action to re- cover damages for personal injuries sustained by the plaintiff in consequence of the defend- ant's negligence, where it appears that the plaintiff's injuries were aggravated by the malpractice of his attending physician, and that he has settled his claim against the 326 AXX. CAS. DIGEST, VOLS. 1-20. physician for tlie malpractice, the defendant, if he assumes without objection at the trial and in his motion for a new trial the burden of proving the amount of aggravation due to the malpractice, will not be heard on appeal to assert that this burden rested upon the plaintiff. Viou v. Brooks-Scanlan Lumber Co. (Minn.), 9-318. Sufficiency of proof. — An objection first raised on the argument of a writ of error that the plaintiff failed to produce at the trial below any evidence of the essential fact cannot prevail if it appears that at the trial such fact was assumed without evidence. West Shore E. Co. v. Wenner (N. J.), 1-790. In an action to recover damages for death by wrongful act, where the defendant has practically conceded on the trial that the accident complained of was due to its negli- gence, it will not be heard on appeal to con- tend that the instructions given by the trial court improperly enlarged the issues in the pleadings, and permitted a recovery by the plaintiff without proof of the particular negligence speeiiied in the petition. Macdon- ald V. Metropolitan St. E. Co. (Mo.), 16-810. Validity of ordinance. — In an action based on a city ordinance, where the defend- ant city alleges the validity of the ordinance in its pleadings and proceeds to trial on that theory, it will not be heard to say on appeal that the ordinance is invalid. Chicago v. University of Chicago (111.), 10-669. Iicgality of schedule of freight rates. — On writ of error from the United States supreme court to a state court to review a judgment for the plaintiff in an action by a shipper against a railroad company to recover damages for the exaction of unreasonable freight charges or interstate shipments, where the jurisdiction of the supreme court is dependent upon the fact that there is a federal question involved in that the rates charged had been filed and promulgated under the provisions of the interstate commerce act, and it appears that the state court, in decid- ing the case, expressly declared that the course of the argument and the briefs of counsel before it had confined the case to the issue of whether there was a, right to recover upon the hypothesis that a schedule of rates had been filed and published, the defendant in error cannot contend that what was conceded in the state court to be a law- ful schedule of rates was not such. Texas, etc., R. Co. V. Abilene Cotton Oil Co. (U. S.), 9-1075. Period of lease. — A lessee against whom an action is brought for the possession of the premises cannot insist on appeal that the period of the lease ran from the time pos- session was surrendered by the lessor rather than from the date of the lease, where that point was not made in the court below, and a wholly inconsistent contention was ad- vanced in that court by the lessee's counsel. Gensler v. Nicholas (Mich.), 14-452. Oxirnership of property. — Where in an action against two persons composing a part- nership an attachment is issued against one of the partners individually, and the wife of said partner claims the property attached, and agrees by her counsel that the issue shall be whether the property is owned by the part- nership or by her, and successfully resists the motion of the plaintiff's counsd to change such issue, she will not be heard to say on appeal that the instruction of the trial court to the jury to find that the partnership had no interest in the property subject to at- tachment should be sustained on the ground that there was no evidence of ownership in the claimant's husband as an individual. Pelzer Mfg. Co. v. Pitts (S. Car.), 11-665. (4) Error caused by appellant. Admission of improper evidence. — An appellant will not be heard to complain of the admission of improper evidence, if it appears that at the trial he resisted a mo- tion to exclude the evidence, which was made by the opposite party after the evidence had been admitted. Comer v. W. M. Ritter Lum- ber Co. (W. Va.), 8-1105. Improper consolidation of actions. — When actions have been consolidated, the legality of the consolidation cannot be re- viewed in the appellate court when the ap- pellant himself, by motion, caused the consolidation to be made. Handley v. Sprinkle (Mont.), 3-531. Erroneons instructions. — An appel- lant will not be heard to complain that the trial court erroneously modified instructions given at his request, where it appears that the instructions were erroneous in their origi- nal as well as in their modified form. Jones, etc., Co. V. George (111.), 10-285. Conilict betireen instructions. ^ The appellant will not be heard to complain that a proper instruction given by the trial court conflicted with erroneous instructions given at the appellant's request. United Fruit Co. V. New York, etc.. Transportation Co. (Md.), 10-437. Inconsistent instructions. — An appel- lant will not be heard to complain on appeal that some of the instructions given at his request upon the trial were inconsistent with instructions given at the request of the ap- pellee, where it appears that the latter in- structions were correct statements of law applicable to the facts established by the evidence and the appellant's instructions are not set out, either in full or in substance, in his brief. Indianapolis Traction, etc., Co. V. Kldd (Ind.), 10-942. (5) Error favorable to appellant. Improper admission of evidence. — A party to an eminent domain proceeding can- not complain on appeal of the ruling of the trial court admitting evidence, where the rul- ing was in his favor, whether or not the ruling was wrong. Yellowstone Park R. Co. V. Bridger Coal Co. (Mont.), 9-170. Order of proof. — The order in which evidence may be introduced on a trial is with- in the discretion of the court, and when from all the evidence it is manifest that the court's rulings were right, no prejudicial error can APPEAL AND ERKOR. 327 be asserted because at some time in the trial a ruling may not have been fully justified. Knox V. State (Ind.), 3-539. Judgment too favorable. — The rule that an appellant is not entitled to assign as error that the judgment is too favorable to him precludes a defendant, who has ap- pealed from a decree restraining him from using a trademark or trade name in certain specified states, from contending that the de- cree should have been rendered without geo- graphical limitations within the United States. Cohen v. Nagle (Mass.), 5-553. Conviction of lesser degree of crime. — The fact that the jury in a criminal action find the defendant guilty of a lower degree of offense than that established by the evi- dence is not a ground or cause for reversal on appeal from a judgment of conviction. State V. Phinney (Idaho), 12-1079. Instructions. — The defendant in an ac- tion ex delicto cannot complain of an in- struction limiting the plaintiff's right of recovery to one of the causes of action set up in the complaint instead of covering both. Grimes v. GreenWatt (Colo.), 19-608. The defendant in an action for false im- prisonment cannot complain of the action of the court in assuming, contrary to the fact, that the defense of justification has been interposed and in giving an instruction ap- plicable to that defense. Grimes v. Green- blatt (Colo.), 19-608. (6) Wrong reasons for correct decision. General mle stated. — It is the duty of an appellate court to affirm a. correct judg- ment regardless of the correctness of the rea- sons given for awarding it. Jeffries v. Fraternal Bankers' Reserve Soc. (Iowa.), 14-346. Order granting new trial. — An order of the trial court granting a, motion for a new trial will be affirmed on appeal if the whole record discloses that an error was com- mitted in the trial, even though the par- ticular reason assigned by the trial court for granting the motion is disapproved. Smart V. Kansas City (Mo.), 13-932. 16. Decision oe Judgment of Appellate CODET. a. In general. Decision of appellate court as res judicata, see JtTDGMENTS, 6 c. Effect of reversal, see Judicial Sales, 4. Where party dies pending appeal. — Where an appellant dies after the submis- sion of a cause to the appellate court, and that court finds that th« decision of the trial court is correct, the judgment and order ap- pealed from will be affirmed mtnc pro tunc as of the date of the submission. Estate of Dolbeer (Cal.), 9-795. Where it is brought to the attention of an appellate court, after it has reversed a judg- ment in a cause, that the appellee died after the taking of the appeal but before the ren- dition of the judgment of reversal, the court will set aside suck judgment and r6-»nter it as ef the date of the submission of the oaui*. Valparaiso v. Spaeth (Ind.), 8-1021. Where oourt changes pending appeal. — Where an appellate court consisting of three judges is succeeded by a new court con- sisting of seven judges selected under the constitutional provision requiring that each decision shall be concurred in by at least three judges, a decision in a case argued be- fore the old court but decided since the new court has come into existence is not valid if it is concurred in by but two judges. Den- ver, etc., E. Co. V. Burehard (Colo.), 9'-994. Where judges equally divided. — The case at bar being for decision by a full bench of six justices, and the justices being equally divided in opinion, the judgment of the lower court, holding the contract before the court to be illegal as in the nature of a lottery contract, is affirmed' by operations of law. Eussel V. Equitable Loan, etc., Co. (Ga.), 12-129. Effect of affirmance. — When a judg- ment is approved by the supreme court all questions raised by the assignments of error and all questions that might have been so raised are to be regarded as finally adjudi- cated against the appellant or plaintiff in error, and the judgment affirmed must he regarded as free from all error. People ex rel. Stead v. Superior Court (111.), 14-753. Effect of modification. — Where a judg- ment of the supreme court modifies and af- firms the judgment of the lower court, it becomes final and binding, regardless of whether the mandate is ever entered of record in the lower court. Smith v. Garbe (Neb.), 20-1209. Theory of cause. — Where a plaintiff is not entitled to recover on a theory on which the case is tried, but there is another theory on which a verdict for the plaintiff, under the facts, could be sustained, the judgment will be reversed and the cause remanded for a new trial after amendment of the petition to include such theory. Woodson v. Metro- politan St. R. Co. (Mo.), 20-1039. Ztavr of the case. — On appeal from a judgment of conviction in a criminal prose- cution, a judgment of the appellate court on a former appeal holding an indictment to be sufficient in substance is the law of the case. State V. Campbell (Kan.), 9-1203. b. Rendition of final judgment on reversal. When proper in general. — When an appellate court, in reversing a judgment for the defendant, will render judgment for the plaintiff instead of remanding the cause for a new trial. Big Horn Lumber Co. v. Davis (Wyo.), 7-940. Where there is no error in the amount fixed by the verdict of the jury, but the judgment is erroneous as to amount and as to the taxation of costs, the appellate court will not grant a new trial, but will vacate the erroneous judgment and enter the judg- ment which the trial court should have ren- dered. Blackwell, etc., K. Co. v. Bebout (Okla.), 14-1145. 328 ANJSr. CAS. DIGEST, VOLS. 1-20. Power of Philippines supreme court. — Under the Act of Congress establishing a civil government in the Philippine Islands and continuing the ordinary procedure in the courts of that country, the supreme court of the islands has the power to reverse a judg- ment of the court of first instance appealed from and itself convict the accused on appeal. Trono v. United States (U. S.), 4-773. Evidence all in vrriting. — In Indiana, the supreme court has power to render a final decree in a, cause in which the evidence is all written and which would have been of exclusively equitable cognizance under the law of the state prior to June 18, 1852. State ex rel. Davis v. Board of Commission- ers (Ind.), 6-468. Error in charge to jury. — When all the facts are before the appellate court, the case will not be remanded because of an error in the charge to the jury but will be finally disposed of. Shreveport v. Touree (La.), 3-300. Error in refusal to amend special verdict. — Where the trial court has erred in refusing to amend a special verdict by changing the answer to a question therein, the appellate court will make the change and render a judgment accordingly when it does not appear that a new trial is necessary. Ehleiter v. Milwaukee (Wis.), 2-178. Evidence insufficient to support re- covery. — An appellate court on reversing ' a judgment for the plaintiff and setting aside a verdict for the insufficiency of the evidence and for the refusal of the trial court to ex- clude the evidence from the jury and direct a verdict for the defendant, will not remand the case for a new trial, but will render judgment for defendant, when it does not ap- pear that injustice will be done thereby. Euffner v. Dutchess Ins. Co. (W. Va.), 8-866. c. Granting new trial. When verdict should have heen directed. — i When, in an action against a railroad company for personal injury to a passenger, the evidence is such that a verdict for the plaintiff should be set aside, the circuit court, if asked, should direct a ver- dict for the defendant, and if it refuses, the appellate court will reverse judgment and verdict, and remand the case for a new trial, unless this court can see clearly that the plaintiff cannot better his case upon another trial. Hoylman v. Kanawha, etc., R. Co. (W. Va.), 17-114». Sufficiency of evidence doubtful. — Where a trial court dismisses the complaint in an action notwithstanding a verdict for the plaintiff, and an intermediate court af- firms the judgment and expresses an opinion that the verdict is contrary to the evidence, the court of last resort, in reversing the judg- ment, will order a new trial instead of direct- ing judgment in favor of the plaintiff upon the verdict. Rand v. Iowa Central R. Co. (N. Y.), 9-542. Iiimitation of issues on neif trial. — It is within the power of a reviewing court to qualify its order for a new trial by limit- ing the retrial to that part of the case in which alone there is any error; and this power may be exercised in the case of a trial by jury when its exercise is necessary to the doing of justice between the parties. Smith V. Whittlesey (Conn.), 7-114. d. Remanding for proper judgment or sentence. Practice in Arkansas. — While the supreme court of Arkansas is empowered by statute to modify a judgment and render final judgment instead of reversing and remand- ing, the better practice is to reverse and re- mand with directions to the circuit court to enter judgment in conformity with the opin- ion. Lenon v. Mutual Life Ins. Co. (Ark.), 10-467. ITnanthorized sentence in criminal case. — Where there is no error affecting the merits of the trial of a criminal cause that will necessitate the grant of a new trial or vacation of the verdict found, but there is simply an unauthorized sentence imposed, an appellate court should reverse the judgment and sentence imposed, leaving the verdict to stand as a basis for a new and proper sen- tence, and should remand the cause for proper sentence. Irvin v. State (Fla.), 10-1003. Where on appeal from a judgment of con- viction in a, criminal case it is determined that the sentence imposed by the trial court was improper, the cause will be sent back for a new trial on that account, but will be remanded for a proper judgment. State v. King (Wash.), 16-322. e. Modification of judgment. Reduction of amount of damages. — Where the damages awarded by the jury are excessive, but there is no error in the record requiring an unconditional reversal, the court will require the plaintiff to remit a part of the damages as a condition of affirmance. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201. Where the jury in an action on contract, acting under an erroneous instruction by the trial court, have awarded the successful party damages to which he is not properly entitled, but the error does not affect the real con- troversy between the parties, and the amount of damages so allowed can be segregated from the rest of the verdict, the judgment will not be reversed absolutely, but will be af- firmed upon condition that the successful party remit the damages improperly awarded. Eaton V. Blackburn (Ore.), 16-1198. An appellate court is not authorized, in- stead of reversing a judgment, to enter a remittitur reducing the amount of the judg- ment to such a SUM as it may deem proper. Irvine v. Gibson (Ky.), 4-569. Where the verdict in an action to recover compensatory damages, the defendant's lia- bility being conceded, is in the opinion of the appellate court so excessive as to evince pas- sion, prejudice, and caprice on the part of the jury, the appellate court will require the plaintiff to enter a remittitur for such amount as will reduce the verdict to a proper sum APPEAL AND EKEOR. 339 as a condition to allowing the judgment to stand; but a compliance with this require- ment is optional with the plaintiff, and he may instead suffer a new trial. Alabama Great Southern E. Co. v. Roberts (Tenn.), 3-937. On appeal from a verdict for the plaintiff in an action of tort, the court of appeal has no power, without the consent of the defend- ant, to fix the amount of damages which it considers reasonable and order a new trial unless the plaintiff shall consent to reduce the recovery to such amount. Watt v. Watt (Eng.), 2-672. The practice of ordering a new trial of an entire case unless that part which is found to have been erroneously included in the judg- ment or verdict shall be remitted or surren- dered is a correct and proper one benefleial to both parties. Dunning v. Crofutt (Conn.), 14-337. Remission of judgment against one defendant.— Where the trial court enters judgment against one defendant for the en- tire amount of damages assessed by the jury against both defendants severally, the plain- tiff may, on appeal, remit the part of the judgment assessed against the other defend- ant and have judgment for the amount assessed to the defendant against whom judgment has been rendered. Nashville E., etc., Co. V. Trawick (Tenn.), 12-532. f. Imposing terms on successful party. Retaining judgment as security.— An appellate court, in reversing the judg- ment of the lower court, has no power to put the appellant upon terms, he being the administrator of the persons against whom the judgment was rendered, by requiring him to enter his assent that the judgment shall stand as security for whatever damages may be found for the appellee upon a second trial and thus prevent the abatement of the action upon its return to the lower court by reason of the death of the defendant. Irvine v. Gib- son (Ey.), 4-569. 17. Effect of Appeal. Suspension or vacation of judgment below. — An appeal in the nature of a writ of error as prosecuted from the judgment of a law court operates as a mere suspension of the judgment of the lower court, superseding an issuance of execution during the pendency of such appeal, but a simple chancery appeal, on the contrary, brings up the facts as well as the law for examination and vacates the judgment of the lower court. Fort v. Fort (Tenn.), 11-964. Tennessee statute. — The Tennessee stat- ute making a judgment or decree of a court of equity a lien upon the property of the de- fendant, notwithstanding an appeal there- from, to the same extent as a judgment at law, operates so to modify the common-law rule in respect to the judgments and decrees of chancery courts as to continue them in force upon an appeal where moneyed or other judgments are pronounced, but the effect of the statute does not extend to any other class of judgments or decrees than those that con- stitute liens. Fort v. Fort (Tenn.), 11-964. 18. SuPEBSEDEAS AND Bond. a. In general. On appeal in nature of writ of error. — Under the Tennessee statute the bond re- quired of appellants and the proceedings in the appellate court are the same on an ap- peal in the nature of a writ of error as on a simple appeal, but the distinction is main- tained that in the former case the judgment is merely suspended while in the latter case it is vacated. Fort v. Fort (Tenn.), 11- 964. In forcible entry and detainer. — Under the Oregon practice, an appeal from a judgment rendered in a justice's court in an action of forcible entry and detainer may be instituted and prosecuted to final deter- mination by either party, but if the defendant appeals he must, in addition to the undertaking for the appeal, also give an undertaking for the payment to the plaintiff of twice the rental value of the premises of which restitution has been awarded. Wolfer V. Hurst (Oregon), 8-725. In foreclosure suit. — The court making an order granting a writ of assistance in a foreclosure suit, after decree, sale, confirma- tion thereof and the execution of a sheriff's deed directing the sheriff to put the purchaser in possession of the premises, may in its discretion allow it to be superseded upon the condition that the appellant shall give a bond for the payment of a reasonable rent for the use and occupation of the premises during the pendency of his appeal. Escritt V. Michaelson (Neb.), 10'-1039. Validity of bond as contract. ^ A bond given in an attempted appeal to the Nebraska supreme court from an order of a district court awarding a writ of assistance in a mortgage foreclosure proceeding, con- ditioned for the payment of rent, is valid as a, contract where the obligor has by reason of the bond retained possession of the prem- ises pending such appeal. Escritt v. Michael- son (Neb.), 10-1039. Waste bond under Nebraska code. — An order granting a writ of assistance in a foreclosure suit, after decree, sale, confirma- tion thereof and the execution of a sheriff's deed directing the sheriff to put the pur- chaser in possession of the premises, is a final order and is appealable; but is not such an order, within the meaning of the third sub- division of section 677 of the Nebraska code, as may be superseded by giving the waste bond therein provided for. Escritt v. Michael- son (Neb.), 10-1039. To 'nrhom payable. — On an appeal by the defendant in an action, the appeal bond is properly made payable to the plaintiff who has died subsequent to the judgment, rather than to the plaintiff's personal representa- tives. Spencer v. Mtna, Indemnity Co. (111.). 12-323. 330 ANJSr. CAS. DIGEST, VOLS. 1-20. b. Suffici«^. Bnrdeii of proof as to insufficiency. — The onus of proof is with an appellee who seeks to have an appeal dismissed on the ground of insufficiency of the appeal bond. Fitzpatrick v. Letten (La.), 17-197._ Delay in objecting to sufficiency. — After the last bond for an appeal has been accepted, and when the ten days from the judgment have elapsed and a large part of the coats taxed in favor of the appellee has been paid, it is too late for appellee to affect appellant's right of appeal by calling the court's attention to the large amount of costs taxed and urging that the appeal bond is insufficient in amount. Fitzpatrick v. Letten (La.), 17-197. Effect of insufficient justification. — The failure of the sureties on an appeal bond to justify by a sufficient affidavit as to their property qualifications is not a defect which nullifies the bond and requires the dismissal of the appeal, in the absence of any show- ing that the sureties are not financially com- petent. Porter v. Western Union Tel. Co. (Iowa), 12-585. * c. Amount. In action urlieTe garnislinient bas issued. — On appeal by the plaintiff from a judgment in favor of the principal defendant in an action wherein a writ of garnishment has issued, the amount of the appeal and supersedeas bond is determined by the judg- ment in the principal action, without regard to the existence of the garnishment or the amount of the funds garnished. Kussell v. Graumann (Wash.), 5-830. Discretion of court. — It has always been held that the trial judge has discretion to fix the amount of the appeal bond, sub- ject to the limitation that such discretion must not be arbitrarily exercised; and when it has not been arbitrarily exercised, it is not subject to review. Fitzpatrick v. Letten (La.), 17-197. The trial court has discretion in the mat- ter of fixing the amount of an appeal bond, if the plaintiff's action be nonsuited, and he has not been condemned for any amount, and is not ordered to deliver the property. There is no decision denying the discretion of the trial judge under such circumstances. Fitz- patrick V. Letten (La.), 17-197. Inclusion of security for property sequestered. — In a judgment of dismissal, which does not order the delivery of any property or condemn the plaintiff to pay any- thing, the judge may fix the amount of the appeal bond without therein including an amount to secure the property which has been sequestered and attached, as the latter must be preceded by sufficient bond. Fitzpatrick v. Letten (La.), 17-197. d. Additional bond. Poirer of court to authorize. — An ad- ditional, supplemental, suspensive appeal bond may be authorized by > the trial judge. if timely offered. Fitzpatrick v. Letten (La.), 17-197. Where a justice takes and approves an appeal bond, and allows the appeal, though the penalty of the bond is less than double the amovmt of the judgment appealed from, as required by the West Virginia statute (Code 1906, § 2115) the court should not dismiss the appeal as improvidently awarded, or pronounce the judgment prescribed by stat- ute, without first ordering a new bond in suf- ficient penalty to be given by the appellant, within the time to be specified in such order, as provided by statute (Code 1906, § 2121). Smith V. West Virginia Central Gas Co. (W. Va.), 17-377. The Minnesota supreme court has jurisdic- tion, after an appeal to it has been perfected, to direct the appellant to give a new super- sedeas bond, and, in case of his default, to vacate the stay whenever it is made to appear that the original bond is clearly insufficient. Bock V. Sauk Center Grocery Co. (Minn.), 10-802. Neve undertahing on further appeal. — Under the Oregon statute providing that the defendant in an action for forcible entry and detainer cannot appeal from a judgment against him until he has given an undertak- ing for the payment of twice the rental value of the real property in question, a defendant who has given such an undertaking on ap- pealing from a justice's judgment need not give a new undertaking upon appealing from the circuit court judgment affirming the jus- tice's judgment. Wolfer v. Hurst (Oregon), 8-725. e. Actions on appeal bonds. Sufficiency of petition. — In an action on a supersedeas bond executed pursuant to appeal from a judgment of a trial court, and conditioned that the obligors shall pay what- ever judgment may be rendered by the court upon the dismissal or trial of said appeal, a petition which merely alleges that the origi- nal judgment of the lower court was affirmed and is luipaid, without alleging that a money judgment was rendered by the appellate court, fails to state a breach of the bond. German Nat. Bank v. Beatrice Rapid Transit, etc., Co. (Neb.), 5-88. What recoverable. — An appeal or su- persedeas bond in an ordinary civil action or will contest, which provides for the payment of " all damages " which the obligee may sus- tain by reason of the appeal, does not entitle the obligee to recover as part of such dam- ages attorneys' fees paid in resisting the ap- peal or writ of error. Williams v. Fidelity, etc., Co. (Colo.), 15-722. 19. Costs. See also Costs, 4. a. In general. On reversal for want of jurisdiction. — Under the rule of the District of Columbia court of appeals providing that in case of reversal costs shall be awarded to the appel- lant " unless otherwise ordered by this APPEAEANCES. 331 court," the court, im reversing a decree, will require each party to pay the costs incurred by him on appeal, where the reversal is for want of jurisdiction in the trial court but the question of jurisdiction was not raised by the defendant, as the complainant is at fault for having brought suit in a court with- out jurisdiction and the defendant is at fault in not having challenged the jurisdiction of the court. Columbia Nat. Sand Dredging Co. V. Morton (D. C), 8-512. The rule of the District of Columbia court of appeals that " in all cases where appeals shall be dismissed by this court, except where dismissal shall be for want of jurisdiction, costs shall be allowed to the appellee, unless otherwise agreed by the parties," has no ap- plication to a reversal of a decree rendered by a trial court which was without jurisdic- tion in the premises, as in such a case the court of appeals has jurisdiction of the ap- peal for the purpose of reversing the erroneous decree. Columbia Nat. Sand Dredging Co. v. Morton (D. C), 8-512. On dismissal for trant of jurisdiction. — An appellate court, on dismissing an ap- peal for want of jurisdiction, has no jurisdiction of power to render a judgment for costs of the suit. Bice v. Boothsville Telephone Co. (W. Va.), 13-1046. Additional abstract filed by appellee. — Upon the affirmance of a judgment by the appellate court, a motion to tax to the ap- pellant the cost of an additional abstract filed by the appellee in order fully and fairly to present "the questions at issue will be granted. Graham v. Mattoon City E. Co. (111.), 14-853. Expense of unnecessary printing. — Where an appellant has set forth the assign- ments of error at a greater length than is necessary for the proper presentation of ap- peal, the cost of printing such excess will be taxed to him, even though a reversal of the lower court is granted. Dorr Cattle Co. v. Des Moines Nat. Bank (Iowa), 4-519. Liability of party not appealing. — In an action against a railroad company and an insurer upon a contract of indemnity, under which both the indemnitor and the in- demnitee have the right of appeal, if either party desires to appeal and the other does not, the real party appellant must pay the costs of the appeal. Stephens v. Pennsylvania Casualty Co. (Mich.), 3-478. b. Damages for delay. Under Kentucky civil code. — Under the Kentucky civil code providing that ten per cent, damages shall be awarded against the appellant upon the affirmance of a judg- ment for the payment of money the collection of which has been superseded, an order re- quiring a party to pay a certain amount to an officer of the court and permitting the adverse party immediately to withdraw such amount is a judgment for the payment of money, upon the affirmance of which, if su- perseded, damages must be awarded against the appellant. J. M. Robinson, etc., Co. v. Corsioana Cotton Factory (Ky.), 14-802. Appeal frivolous. — Record examined and held to disclose a proper case in which to award the appellee damages on the ground that the appeal is frivolous and made only for the purpose of delay. Jones-Downes Co. V. Chandler (N. Mex.), 13-710. To whom payable in criminal case. — The penalty, in the shape of damages equal to ten per cent, of the judgment appealed from, which is imposed by statute in Ken- tucky upon unsuccessful appellants, belongs entirely to the state in penal and criminal cases, and the court officers have no interest therein. Commonwealth v. French (Ky.), 17-601. 20. Rehearing op Appeal. When properly denied. — An appellate court will not entertain an application for a rehearing, or for an amendment of its judg- ment on the ground of error of law apparent on the face of the judgment, where the error complained of was not called to its attention by the briefs or arguments on the hearing of the appeal. Hunter v. Nelson (N. Car.), 18-721. Grounds of motion. — A petition for re- hearing can be based only on points properly presented for decision at the original hearing. Indianapolis, etc., R. Co. v. Branson (Ind.), 19-925. 21. Mandate and Peoceedings Below. Restitution on reversal. — ^Where prop- erty is sold xmder a judgment which is subse- quently reversed, the judgment creditor is responsible for the amount of money which he has received from the sale, together with interest on such amount. Hess v. Deppen (Ky.), 15-670. Where property is sold under a judgment which is subsequently reversed, the judgment creditor may either allow the sale to stand and take the purchase money, or have the sale set aside and take the property itself. Hess V. Deppen (Ky.), 15-670. If such sale is set aside, the purchaser should be charged with waste and rents, and should be adjudged to have a lien for all sums expended by him in the payment of valid taxes as well as for necessary repairs and improvements. Hess v. Deppen (Ky.), 15-670. APPEARANCES. Withdrawal of appearances as ground for new trial, see New Tbial, 2 a (3). Waiver of process by voluntary appearance, see Summons and Process. Special appearance to contest attach- ment. — A nonresident whose property has been attached but who had not been served with process may appear specially to contest the attachment on the ground that the prop- erty was not subject to attachment. Davis V. Cleveland, etc., R. Co. (U. S.), 18-907. Determination of nature of appear- ance from record. — It is not necessary for a defendant in appearing in a court of record 332 ANN. CAS. DIGEST, VOLS. 1-20. to quash a defective writ commencing an ac- tion, to cause the record to recite that his appearance is for that purpose only, in order, to avoid a waiver of defect in the jurisdic- tion of the court. In such a case, whether the appearance is general or special is to be determined by the record as it stands at the time the motion is made. Fisher v. Crowley (W. Va.), 4r-282. APPELLATE COURTS. As to appellate courts generally, see Appeal AND Ebbob. Appeals from intermediate appellate courts, see Appeal and Ebbob, 3 d. APPELLATE JURISDICTION. See Appeal and Ebbob, 3. Allowance of alimony on appeal, see Alimony and Suit Monet, 3 c. APPLIANCES. Duty of master to furnish safe appliances, see Masteb and Sebvant, 3 c. APPLICATION. Membership in beneficial associations, see Benevolent oe Beneficial Associa- tions, 4. APPLICATION OF PAYMENTS. See Payments, 3. APPOINTING POWER. See Judges, 3 b. APPOINTMENT. Executors and administrators, see Executobs AND Administbatobs, 2. Guardians, see Guabdian and Waed, 1. Judges, see Judges, 1. Justices of the peace, see Justices of the Peace, 1. Mimicipal officers, see Municipal Cobpoba- TIONS, 13. Power of appointment, see Powees. Public officers generally, see Public Officees, 3 a. Receivers, see Receivebs, 1. School officers, see Schools, 2. Trustees, see Teusts and Teustees, 3 a. APPORTIONMENT. Apportioning local assessments, see Special OB Local Assessments, 6. Apportionment of debts on division of county, see Counties, 1. APPRAISEMENT. Distinction between appraisal and arbitration, see Aebiteation and Awaed, 1. Fixing amount of rent by appraisement, see Landloed and Tenant, 6 b. Fixing value of waterworks in proceeding for acquisition by municipality, see Waters and Watebcoubses, 4 e. Fixing price in suit for speciiic performance, see Specific Pebfoemance, 3 f (14). Provision for appraisement in fire insurance policy, see Insueance, 5 1 (4). APPRENTICES. Validity of statute. — When the state as parens patriw in a proper case, through its constituted officers or agencies, takes under its control an infant, the law authorizing such child to be bound to service under proper re- strictions is not a violation of those provisions of the constitutions of Georgia and of the United States which prohibit slavery and in- volimtary servitude except as a punishment for crime after conviction thereof. Kennedy V. Meara (Ga.), 9-396. The Georgia general assembly has author- ity to authorize a beneyolent institution, to which an infant has been committed under statutory authority, to bind out to service the child committed to its care, such institution reserving the right of supervision to see that the child is properly cared for. Keimedy n. Meara (Ga.), 9-396. Liability of apprentice on indentuTC, — The rule that an action will not lie to enforce a covenant in an apprenticeship deed entered into by an infant applies only to covenants which it is sought to enforce dur- ing the currency of the apprenticeship. A covenant to do or abstain from doing some- thing after the apprenticeship shall have ceased may, provided that the deed as a whole is for the apprentice's benefit, be en- forced against him by action. Gadd v. Thompson (Eng.), 20-777. A covenant by an apprentice not to engage in the business carried on by the master with- in ten miles of the master's place of resi- dence for ten years after the expiration of the apprenticeship is reasonable where in- struction in the business cannot be obtained on any other terms. Gadd v. Thompson (Eng.), 20-777. APPROPRIATION. Appropriating lost goods as larceny, see Laeceny, 1 b. County funds, see Counties, 2. Municipal funds, see Municipal Cobpoea- tions, 6. Payment of compensation of public officers, see Public Officees, 6. Eight of public officers to incur expenses in excess of appropriations, see PUBLIC Officees, 5 c. Right to appropriate water, see Ibriqation. State funds, see States, 5. APPROVAL — AKBITRATION AND AWAED. 333 APPROVAL. Approval of bills by executive, see Statutes, 1 e. Veto of bill after approval, see Statutes, 1 e. APPROXIMATION. Doctrine of approximation, see Chabities, 3. APPXTRTENANCES. Appurtenances to vessels, see Ships and Shipping, 1. Manure as appurtenant to leased farm, see Landlord and Tenant, 5 e. Things appurtenant to demised premises, see Landlobd and Tenant, 5 a. Bight of way as appurtenance, see Peivate Wats. ARBITRATION AND AWARD. 1. In General, 2. Stiptilation in Insurance Policies, Power of municipality to 'submit to arbitra- tion, see Municipal Corporations, 17. Provision for arbitration in fire insurance policy, see Insurance, 5, 1 (4). Statute of limitations as affected by arbitra- tion agreement, see Limitation of Actions, 4 b (6). 1. In General. Enforcement of agreement to arbi- trate. — Upon the failure of arbitrators to agree where there has been part performance of a contract and the arbitration was but an incident thereof, a court of equity will grant relief by substituting itself for the arbitra- tors. Cooke V. Miller (R. I.), 1-30. Onsting jurisdiction of courts. — A mere general stipulation in a lease that dif- ferences between the narties shall be referred to arbitration does not prevent either party from resorting to the courts without such reference. Lawrence ij. White (Ga.), 15-1097. Authority of arbitrator. — The appoint- ment of an arbitrator and agent by the owner of premises to settle a difference with a ten- ant as to the right of the latter to occupy a tenement house on the premises does not give the arbitrator authority to extend the ten- ancy. Mead v. Owen (Vt.), 13-231. Refusal of arbitrator to receive evi- dence. —A party to an arbitration, who is injured by the misconduct of the arbitrators in refusing to hear pertinent and material testimony, may maintain a suit in equity to have the award set aside. Cohn v. Wemme (Oregon), 8-580. Notwithstanding the Oregon statute au- thorizing the defendant to set forth by answer as many defenses as he may have, the de- fendant in an action to recover the amount of an award cannot set up as a defense the mis- conduct of the arbitrators in refusing to hear pertinent and material testimony, as the de- fense is an equitable one and there is no statute authorizing an equitable defense to be interposed to an action at law. Cqhn v. Wemme (Oregon), 8-508. Duty of arbitrator to observe rules of evidence. — Arbitrators are bound to observe the rules of evidence no less than judges. In re Enoch (Eng. ), 18-159. Amendment of pleadings. — An arbi- trator has a discretion as ji judicial officer to allow an amendment of pleadings delivered by the parties in compliance with a direc- tion given to them by him. In re Arbitration, etc. (Eng.), 20-600. Rebearing before third arbitrator. — Where a third arbitrator is appointed by the original arbitrators upon their failure' to agree, the parties in interest are entitled to notice of such appointment and of the time and place of the meeting of the original arbi- trators and the third arbitrator to hear and determine iinally the matter submitted, and to a reasonable opportunity to present their evidence and arguments to the third arbitra- tor, and unless such rights have been dis- tinctly and unequivocally waived by the agreement or conduct of the parties, a fail- ure to give the required notice or to afford such opportunity for the presentation of evi- dence invalidates the award. Bray v. Staples (N. Car.), 16-555. Distinction betireen appraisal and arbitration. — The distinction between ap- praisal and arbitration is that an appraisal is generally a mere auxiliary feature of a contract of sale, the purpose of which is not to adjudicate but to avoid controversy, and as long as the appraisers act in good faith they have a wide discretion as to their meth- ods of procedure and sources of information, while an arbitration presupposes a contro- versy to be tried and decided, the' investiga- tion of the arbitrators being in the nature of a judicial inquiry, and their failure to ob- serve strictly rules of procedure rendering their award void. Omaha Water Co. v. Omaha (U. S.), 15-498. 2. Stipulation in Insurance PoLiciEa. Arbitration as condition precedent to suit. — A provision in a policy of life insurance for submission to arbitration does not preclude the bringing of an action on the policy without such submission, where the agreement to arbitrate does not, either in ex- press terms or by proper construction, make the award a condition precedent to the right to sue. Chadwick v. Phoenix Accident, etc., Assoc. (Mich.), 8-170. A stipulation in a fire insurance policy for submission of the amount of damage to arbitration in case of a disagreement held to constitute a condition precedent to an action on the policy. Graham v. German American Ins. Co. (Oliio), 9-79. Burden of proving offer to arbitrate. — A stipulation in a fire insurance policy for submission to arbitration of the amount of loss in case of a disagreement held not to impose an obligation on the insurer to de- 334 A]!f]Sr. CAS. DIGEST, VOLS. 1-20. ^ mand an appraisal; but in the event of a disagreement between the parties, an ap- praisal is required by the terms of the eon- tract, and in a suit on the policy the burden lies upon the insured to show that he has, on his part, performed or oflFered to perform the condition as to appraisal. Graham v. German American Ins. Co. (Ohio), 9'-79. DisagTeement by arbitrators. — Where a dispute as to the insurer's liability under a policy of fire insurance has been submitted to arbitration pursuant to a provision in the policy requiring such submission in the event of a disagreement of the parties, but the ar- bitrators, without any fault on their part or on the part of either party to the submission, have disagreed and have failed to return an award, the absence of the award does not bar an action on the policy by the insured, if he has acted in good faith and endeavored to secure an award or a settlement, and the in- surer has not acted in good faith in that respect. Bernhard v. Rochester German Ins. Co. (Conn.), 8-298. ABBITBABY. Exercise of judicial discretion, see Specific Pebfoemance, 2. ABCHITECTS. Approval of work done by contractor, see CONTKAOTS, 5 b (3). Certificate of architect as condition precedent to recovery on building contract, see Contracts, 7 d. Compensation of architect, see Mastee and Sebvaht, 1 d. Right to lien, see Mechanics' Liens, 3. ABGUMENTS OF COUNSEL. In civil cases, see Teial, 4. In criminal cases, see Cbiminai, Law, 6 i. Time for service of notice of argument on appeal, see Appeal and IIbbob, 7 c. ABMS. See Weapons. Use of state arms as trademarks, see CoN- STITTJTIONAl LaW, 9 b. Use of state arms for advertising, see Con- stitutional Law, 8. AEMY AND NAVY. Acquittal by court-martial as bar to prose- cution in civil court, see Criminal Law, 5 b. Desertion from military service as disquali- fication as juror, see Juby, 2. Devise in restraint of entering military or naval service, see Wills, 9 d. Enlistment of principal in navy as exoner- ating bail, see Bail, 8. Forfeiture of citizenship by desertion, see Citizenship. Judicial notice of military reservations, see Evidence, I g. Land grants in aid of construction of mili- tary roads, see Public IjAnds. Review of judgment of court-martial, see Habeas Corpus, 2. State militia, see Militia. Enlistment of minors. — Although a minor under eighteen years of age, who has been enlisted in the army or navy without the consent of his parents or guardian, ia entitled to be discharged, he is, nevertheless, subject to the rules and regulations of the service until discharged by operation of law, and is liable to be tried and punished by a military or naval court for infractions of such rules and regulations prior to his dis- charge. Dillingham v. Booker (U. S ) 16-127. The civil courts should not interfere by habeas corpus to discharge a minor under eighteen years of age, who has been enlisted in either the military or naval service with- out the consent of his parents or guardian, if at the time of the presentation of the peti- tion for the writ such minor is under arrest and held on any charge cognizable by either a military or naval court. Dillingham v. Boqker (U. S.), 16-127. ABBAIGNMENT. See Criminal Law, 6 h. ABBEABS. Right to arrears of annuities, see Annuities. ABBEST. 1. Execution op Process, 335. a. Killing to effect arrest, 335. b. Breaking doors, 335. 2. Arrest without Waerant, 335. a. In general, 335. b. By peace ofiicers, 335. c. By private persons, 336. 3. Call for Assistance by Officer, 336. 4. Waiver of Illegal Arrest, 336. Arrest in civil actions, see Imprisonment fob Debt and in Civil Cases. Arrest in extradition proceedings, see Ex- tradition, 4 e. Determining validity of arrest, see Habeas COEPUS, 2. Discretion of magistrate as to issuance of warranty see Criminal Law, 3 Duty of sheriflF to re-arrest prisoner released without authority, see Sheriffs and Constables, 2. Exemption from arrest on civil process, see Extradition, 5. Killing in resisting arrest, see Homicide, 5 a. AREEST. 335 Liability of carrier for wrongful arrest of passeneer, see Caeeiebs, 6 b (4) (3). Prinoipal's liability for acts of agent, see Aqbnoy, 3 c. Bight of bail to arrest principal, see Bail, 7. Taking prisoner to prosecuting attorney's oflSce, see Cbiminai, Law, 3. Validity of warrant reciting offense under void amendatory statute, see CBIminal liAW, 3. Wrongful arrest, see False Impbisonment. 1. Execution or Peooess. a. Killing to effect arrest. Felon. — A peace officer has the right to kill a felon if it is necessary to do so to effect his arrest or prevent his escape, and also has the right to kill a person attempting to rescue the felon, if the rescue cannot be prevented in any other way, provided the killing is done solely for the honest and non- negligent purpose of effecting the arrest or preventing the escape. State v. Smith (Iowa), 4-758. Misdemeanant. — As a general rule an officer has no right, except in self-defense, to kill a mere misdemeanant in attempting to arrest him or to prevent his escape after arrest. State v. Smith (Iowa), 4^758. Person attempting to rescue misde- meanant. — A peace officer has the right to kill a person whom he is arresting for at- tempting to rescue a misdemeanant in his cus- tody, where there is a statute making it a fel- ony to attempt to rescue any person who is in the custody of any peace officer upon any crim- inal charge. State v. Smith (Iowa), 4-758. Plea of justification in action for killing. — In a civil action against a sheriff to recover damages for the killing of a human being, where the defendant interposes the defense that the person killed was a felon, and that he was shot and killed while fleeing from arrest, the plea of justification, in order to he siifficient as against a de- murrer, must either allege in terms that the officer attempting to make the arrest gave information to the fugitive of his authority to make the same, or aver such a state of facts as exempted the officer from imparting such information. Where the averments of the plea are consistent with the idea that the officer had ample opportunity to impart the required information before the person escap- ing attempted to flee, but made no effort to do so, the plea is insufficient. Eiohards v. Burgin (Ala.), 17-898. In such a case the plea, in order to be sufficient as against a demurrer, must also set forth facts sufficient to show that the killing of the fugitive was necessary in order to prevent his escape. An averment that the killing of the deceased "reasonably appeared to be necessary" in order to prevent his escape is insufficient, being a mere conclusion on the part of the pleader. Eichards v. Burgin (Ala.), 17-898. Question for jury. — The question whether a peace officer was justified in kill- ing a felon who was resisting arrest is one of fact for the jury, and not one of law for th» court. State v. Smith (Iowa), 4-758. b. Breaking doors. Private person attempting to recap- ture felon. — Under the Tennessee statutes, a private person seeking to make an arrest for a felony may break open an outer or inner door or window of a dwelling house of the person sought to be arrested, though he cannot break into the dwelling house of a, stranger; but in order to retake a person who has escaped from his custody after he has ar- rested him for a felony, a private person may, upon immediate and fresh pursuit, break openftthe outer or inner door or win- dow of any dwelling house in which the fleeing criminal has taken refuge, provided he has given notice of his intention and has been refused admittance. McCaslin v. Mc- Cord (Tenn.), 8-245. Sheriff acting as private person. — Where the sheriff of a county attempts to arrest in another county, without a warrant, a person who has escaped from the custody of officers in a third county, he and the per- son assisting him must be treated as private persons attempting to make an arrest with- out a warrant, and if they are not in fresh pursuit of the person sought to be arrested, they cannot break either an outer or an inner door or a window of the dwelling house of a stranger, in which they believe that the escaped prisoner has sought refuge. McCas- lin V. McCord (Tenn.), 8-245. 2. Abeest without Wabbant. a. In general. Misdemeanant after commission of offense. — A person charged with a misde- meanor cannot legally be arrested therefor after the commission of the crime, without a proper warrant. McCuUough v. Greenfield (Mich.), 1-924. Escaped prisoner. — The Tennessee stat- utes do not authorize either a private person or an officer to arrest without a warrant a person who has escaped from jail or from custody, when the pursuit is not immediate or fresh. McCaslin v. McCord (Tenn.), 8-245. Except where an escape itself is by law a felony, and with the further exception of an immediate pursuit for recapture, there is no authority conferred by the Tennessee statutes upon either an officer or a private person to make an arrest without a warrant for an escape. McCaslin v. McCord (Tenn.), 8-245. b. By peace officers. General rule stated — A police officer has no authority to make an arrest without a warrant except for a breach of the peace committed in his presence or when he has reasonable ground to believe that the person arrested is a felon or is about to commit a felony. Cook v. Hastings (Mich.), 13-194. For violation of town ordinance. — As a general rule, a municipal peace officer in whose presence a town ordinance has been violated has no lawful authority, without a 336 ANN. CAS. DIGEST, VOLS. 1-20. warrant, to arrest the offender, when he has had ample time and opportunity since the commission of the offense to procure a war- rant. Yates V. State (Ga.), 9-620. Policeman acting as special officer.— A regularly qualified and commissioned po- lice ofScer, while acting as special officer for a railway company at one of its railroad stations, may lawfully arrest, without a war- rant, a person found acting in a disorderly manner or in a state of intoxication on one of the company's trains while the same is standing at the station. Such arrest and detention does not constitute false arrest or false imprisonment. Erie E. Co. v. Reigherd (U. S.), 16-459. • Fresnmption as to official capacity. — A constable who, within his jurisdiction, arrests a person who has committed a felony, will, in making the arrest, be presumed and held to act in his official capacity, whether such arrest is made by him under or without warrant. And the law will not permit him to claim that an arrest made, pursuant to official duty, was made by him in his indi- vidual capacity as a private citizen. Somer- set Bank v. Edmund (Ohio), 10-726. c. By private persons. Escaped prisoner. — The Tennessee stat- utes do not authorize any private person to make an arrest for an escape, except where the escape itself is by law a felony. McCas- lin V. MeCord (Tenn.), 8-245. Under Tennessee statutes. — It is not within the contemplation of the Tennessee statutes that private citizens of one county shall take it upon themselves to go into another county without warrants in search of criminals, except in eases of fresh pursuit of a fleeing criminal endeavoring to avoid immediate capture in an original arrest, or in cases of immediate pursuit after arrest and escape. McCaslin v. McCord (Tenn.), 8-245. 3. Caix fob Assistance by Officer. Right of private person to respond. — Any person who hears the call of a police' officer for assistance in the arrest of a fleeing criminal may respond to that' call and aid in the arrest, without waiting for information as to the offense which the criminal has com- mitted. State V. Bertchey (N. J.), 18-931. 4. Waivee of Illegal Abeest. Pleading guilty. — Where a person who has been arrested on a charge of intoxication and disorderly conduct signs a stipulation in the police court, in a form prescribed by stat- ute, waiving the reading of the affidavit in the case, and also waiving the right to be personally present on the trial, and pleading guilty to the charge of intoxication, he thereby waives any right which he might otherwise have to question the legality of his arrest or detention by action for false arrest. Erie E. Co. v. Reigherd (U. S.), ia-459. ARREST OF JUDGMENT. See Judgments, 7. Effect of granting motion for new trial, see New Trtat,, 3 e. Motion in arrest of judgment as prerequisite to writ of error, see Appeal and Ebbob, 2 b; ARSON. 1. What Constitdi;s, 336. 2. Attempts to Commit Abson, 337. 3. Indictment oe Infobmation, 337. 4. Evidence, 337. 1. What Constittites. Burning unfinished dwelling house. — Where it appears in a prosecution for ar- son that the structure which was burned was unfinished, and, though intended for a dwell- ing house, had never been occupied; that it consisted of " one main big room with a piazza in front and a shed room on the rear; that the piazza and about half way up the rafters on the front part of the big room was covered; that the balance of the main big room was not covered; that there were win- dow openings and door openings to said building, but that the doors and windows had not been put in; that there was a cKLmney opening, but that the chimney had not been commenced; that they commenced to cover the house on the same Saturday evening that the house was burned," the defendant cannot be convicted, because such a structure is not a dwelling house within the meaning of the Alabama statute relating to arson. Davis v. State (Ala.), 15-547. Burning own house. — In Wisconsin the statutory offense of burning the dwelling house of another is the same as the common- law offense of the felonious burning of the dwelling house of another, in that it relates to the security of the habitation, regardless of the location of the title to the property. One may be guilty of the offense by burning his own house where it is the habitation of another, but not where it is his own habita- tion. Kopcyznski v. State (Wis.), 16-865. Burning property of spouse. — Neither husband nor wife can be guilty of arson in burning the dwelling house which they jointly occupy as a home, regardless of the status of the title; but it is otherwise where the house is the habitation of but one, the other having left it to reside elsewhere, although the marital relation still exists. Kopcyznski V. State (Wis.), 16-865. In the ease last suggested, the status of the title_ to the property is immaterial ex- cept as it may bear on the question of fact respecting joint occupancy of the property burned as a dwelling house. Kopcyznski v. State (Wis.), 16-865. Burning " shop." — A house used for the purpose of manufacturing woodwork is a " shop " within the meaning of the word as used in the North Carolina statute defining AESON. 337 the subject of arson. State v. Arthur (N. Car.), 19'-505. Under Ohio statute. — It is not essential to the crime of arson as defined by the Ohio statute, that the building be the sole prop- erty of the person who burns it, or that the value of his property in it be $50, but it is sufScient that he has an estate in it and that the building is of the value of $50. Jones V. State (Ohio), 1-618. 2. Attempts to Commit Aeson. Employing another to oommit. — A person who employs others to commit the crime of arson, gives them materials with which to do it, shows them how to start a slow-burning fire, pays them compensation for their services, furnishes a horse for one of them to ride, and starts them on their way, is guilty of an attempt to commit the crime of arson, within the meaning of the Oregon statute prescribing the punishment for attempts to commit crimes. State v. Taylor (Oregon), 8-627. 3. Indictment ob Infoemation. Description of property, — An informa- tion describing a house alleged to have been fraudulently burned by the defendant, " as the dwelling house of defendant," is not in- sufficient because the house was not actually used or occupied as a place of abode by the defendant. People v. Mix (Mich.), 12-393. Ownership of property. — In charging the offense of burning the dwelling house of another, it is proper to allege the dwelling house to be that of him who occupies the structure as a habitation, though he may have no property rights therein. Kopcyznski V. State (Wis.), 16-865. Sitns of property in connty. — ' An in- formation for arson, which alleges that the defendant, in a specified county and state, " then and there being, did then and there unlawfully, wilfully, and feloniously set fire to and burn a certain bam building" owned by a specified person, is not open to the ob- jection that it does not alleged that the situs of the barn was in the county named. State V. McLaln (Wash.), 10-321. 4. Evidence. Corpns delicti. — The corpus delicti of arson is sufficiently established to justify the admission in evidence of a confession of the defendant where the building described in the indictment is conceded to have been burned and there is evidence tending to show a criminal agency. State v. Rogoway (Ore- gon), 2-131. To prove the corpus delicti of arson it must be shown not only that the building was burned but also that it was burned by the wilful act of some person criminally responsi- ble, and not as the result of natural or acci- dental causes. State v. Pienick (Wash.), 13-800. In a prosecution for arson, evidence exam- ined and held insufficient to prove the corpus Vols. 1-20 — Ann. Cas. Digest. — 22. delicti beyond a reasonable doubt, and conse- quently insufficient to sustain a conviction by the verdict of a jury. State v. Pienick (Wash.), 13-800. Threats. — In a prosecution for arson, the defendant cannot introduce evidence to show that prior to the burning a third person had made certain threats against the owner of the building, and that after the burning the owner stated that he thought it had been done by such person, where no other evidence of any kind is offered tending to implicate the third person. State v. McLain (Wash.), 10-321. Motive. — Upon the trial for arson of the owner of the property destroyed by fire shortly after being insured for a large sum, a statement made by the accused under oath prior to the fire, placing the value of the property at an amount much smaller than the amount of insurance, is admissible in evi- dence to show a motive for the burning. Hooker v. State (Md.), 1-644. In a prosecution for burning a building with intent to defraud the insurance com- pany in which the defendant had insured it for more than it was worth, the proof of loss as sworu to by the defendant, describing the building and its contents, is properly ad- mitted in evidence as bearing upon the de- fendant's motive; and, as bearing upon the same question, evidence offered by the defend- ant that the fire destroyed certain other property not included in the proof of loss is improperly excluded. People v. Mix (Mich.), 12-393. Contents of building burned. — Under the Washington statute defining arson as " the wilful setting fire to any structure," and defining the word structure as " any . . . barn ... in which property is placed or stored," it is competent, in a prose- cution for burning a, barn wherein the evi- dence is purely circumstantial, to prove the contents of the building for the purpose of showing that it was a " structure " within the meaning of the statute; and the evidence is not incompetent as tending to inflame the minds of the jury against the defendant by showing that the fire destroyed or seriously endangered a large amount of valuable prop- erty. State V. McLain (Wash.), 10-321. Esperiments to ascertain cause of fire. — In a trial for arson the state will not be permitted to prove an experiment by a policeman to show that a candle placed about where the fire occurred produced a light of about the same sort as he had noticed on the night of the fire, where there is no evidence as to the presence of candles about the prem- ises at the time of the fire. Hooker v. State (Md.), 1-644. Sufficiency of circumstantial evi- dence—Evidence reviewed, in a prosecution for arson, and held, though purely circum- stantial, sufficient to justify the trial court in denying the defendant's motion for a di- rected verdict. State v. McLain (Wash.), (Wash.), 10-321. In a prosecution for burning a building with intent to defraud the insurance com- 338 ANN. CAS. DIGEST, VOLS. 1-20. pany in which the defendant had insured it for more than it was worth, a conviction is supported by evidence of a purely circum- stantial nature from which the jury might infer that the defendant endeavored unsuc- cessfully to procure others to burn the build- ing, and then stated that he would burn it himself, and that he placed a jug containing kerosene or gasoline in the house in such a manner that it could be readily ignited, and after the building burned, endeavored to di- vert suspicion by procuring false testimony, notwithstanding the testimony of other wit- nesses that the defendant was four miles away when the fire occurred. People v. Mix (Mich.), 12-393. aktici.es. Articles of association, see Cobfobations, 2 a. Partnership articles, see Pabtnebship. ABTIFICE. Admissibility of confession obtained by arti- fice as deception, see Cbiminae Law, 6n (11) (b). ARTIFICIAI. PERSONS. See COEPOBATIONS. Right to sue, see Actions. ASSAITLT AND BATTEBT. 1. As A CJeime, 338. a. Assault with intent to kill or murder, 338. b. Assault with dangerous or deadly weapon, 338. c. Indecent assault, 338. d. Indictment or information, 339. e. Defenses, 339. f. Evidence, 339. g. Instructions, 340. h. Verdict, 340. 2. As A Civn. Injitby, 340. a. Elements of cause of action, 340. b. Defense, 340. c. Pleading, 340. d. Evidence, 341. e. Instructions, 341. f. Measure of damages, 341. Assault on relatives as provocation for kill- ing, see Homicide, 4 a (3). Conviction of assault as bar to prosecution for murder, see Ceiminal Law, 5 b. Corporal punishment of prisoner as assault and battery, see Prisons. Liability of carrier for assaults on passen- gers, see Cabbiers, 6 e (4) (a). Liability of innkeeper for acts of guests, see Inns, Boabding Houses and _ Apaetments, 8. Liability of innkeeper for assaults by em- ployees on guests, see Inns, Boabdlng Houses and Afabtuents, 6. Liability of master for assault on servant by vice principal, see Masteb and Sebv- ANT, 3 f (1) (c). Operation by physician without consent of patient, see Physicians and Sdb- GEONS, 6 b. Right of vrife to sue husband for assault and battery, see Husband and Wife, 2 f. I. As A Cbiue. a. Assault with intent to kill or murder. Intent. — A specific intent to kill is an essential element of the offense of assault with intent to murder. State v. Bennett (Iowa) 5-997. To constitute the crime of assault "with intent to murder or kill" (Kirb. Dig. Ark., § 1588) a specific intent to take the life of the person assaulted is necessary, and there- fore it is error to instruct the jury that to constitute the offense the circumstances must be such that if death had resulted the de- fendant would be guilty of murder either in the first or the second degree, and that a specific intent to kill is not an element of murder in the second degree. Chownins v. State (Ark.), 18-529. ^ IVonnding one person in attempt to kill another. — Under the Missouri statute a person who, while shooting with intent to kill another, wounds a third person at whom he does not shoot and whom he has no in- tention of killing, is not guilty of an assault with intent to kill the third person. State V. Mulhall (Mo.), 8-781. Aotnal infliction of injnrjr. — In a prosecution for an assault with intent to kill, the woimding of the prosecuting witness is competent evidence for the jury to consider in determining the intent of the defendant, but such wounding is not an essential element of the offense, as the offense may be complete though the person assaulted is not wounded, and a wound inflicted on a person does not constitute an offense unless it is inflicted with the intent to kill him. State v. Mulhall (Mo.), 8-781. b. Assault with dangerous or deadly weapon. Pointing unloaded firearm. — A con- viction for assault with a dangerous weapon cannot be sustained upon evidence that the accused, without justification, drew a revolver and pointed it at the prosecuting witness within shooting distance, thereby putting the witness in fear, where it is admitted that the revolver was unloaded. Price v. United States (U. S.), 13-483. One who unlavrfully points, in a threaten- ing manner, an unloaded revolver at another who does not know the weapon is unloaded is guilty of a simple assault. Price v. United States (U. S.), 13-483. c. Indecent assault. Admissibility of the particulars of a com- plaint by the prosecutrix of an indecent a8- ASSAULT AND BATTEEY. 339 sault elicited by a queation. King v. Osborne (Eng.), 2-830. Admissibility of the complaint of an inde- cent assault by a prosecutrix under the age of consent. King v. Osborne (Eng.), 2-830. d. Indictment or information. Information for assault with intent to kill considered and held to charge every element of the offense under the Missouri statute. State r. Temple (Mo.), 5-954. e. Defenses. Self-defense. — A person who is assaulted with a deadly weapon on his own premises may, without retreating, use such force as is reasonably necessary to defend himself, al- though the assault does not occur within his dwelling. State v. Bennett (Iowa), 5-997. Intozicatioii. — Intoxication to the ex- tent of being incapable of forming an intent to take life is a defense to an indictment for an assault " with intent to murder or kill " (Kirb. Dig. Ark., § 1588), since a specific intent to take the life of the person assaulted is an essential ingredient of the offense. Chowning v. State (Ark.), 18-529. Provocation. — Opprobrious epithets do not excuse an assault and battery. Stock- ham V. Malcolm (Md.), 19'-759. f. Evidence. Reason for carrying arms. ^ In a prosecution for assault with intent to kill, it is not necessary for the prosecuting wit- ness to explain why he was armed, but it is not prejudicial error to permit him to make such an explanation. State v. Ruck (Mo.), 5-976. Description of iveapon by tritness. — In a prosecution for assault with intent to kill, where it appears that the assault was committed with a bottle, the fact that the state has been unable to procure the particu- lar bottle does not preclude the prosecuting witness from describing it. State v. Ruck (Mo.), 5-976. Other iireapons in defendant's pos- session. — In a prosecution for assault with intent to kill, where there is evidence of a confession by the defendant admitting the assault and stating its purpose, testimony by the arresting officer that he found in the de- fendant's room certain weapons other than that with which the assault was made, which the defendant said would be found there, is competent as tending to establish the motive and intent with which the assault was made. State V. Ruck (Mo.), 5-976. Natnre of weapon nsed. — In a prose- cution for assault with intent to kill, where it appears that the assault was made with a beer bottle, it is for the jury to determine whether a bottle is a deadly weapon within the meaning of the statute, and whether it was used with intent to kill. State v. Ruck (Mo.), 5-976. Arrest of accomplices. — In a prosecu- tion for assault with intent to kill, it is com- petent to prove that the persons who assisted the defendant in making the assault, but who have not been indicted, were arrested shortly after the assault and had in their pockets weapons similar to that used by the defend- ant. State V. Ruck (Mo.), 5-976. Frodaction of accomplices for iden- tification. — In a prosecution for assault with intent to kill, where only one of the assailants has been indicted and is on trial, it is competent to permit the defendant's ac- complices to be brought into court in order that the prosecuting witness may identify them. State v. Ruck (Mo.), 5-976. Identification of defendant. — In a prosecution for assault with intent to kill, it is competent to permit the state to have the prosecuting witness identify the defend- ant as his assailant, and for that purpose have the prisoner stand up. State v. Ruck (Mo.), 5-976. Fresnmption of intent to kill. — In a prosecution for assault with intent to com- mit murder, where the defendant admits the act but seeks to justify it on the ground of self-defense, a specific intent to kill may be presumed from the act. Such presumption is not conclusive, however, but is to be con- sidered with the other evidence in determin- ing the defendant's guilt or innocence. State V. Bennett (Iowa), 5-997. Sufficiency of evidence of intent. — Evidence reviewed in a prosecution for as- sault with intent to kill, and held sufficient to show that the assault was made with in- tent to kill. State v. Ruck (Mo.), 5-976. Natnre and extent of wound inflicted. — It is not error to permit the physician who attended the complaining witness, after he was stabbed by the defendant, to testify as to the nature and extent of the wound in- flicted, together with his treatment of the same. Stevens v. State (Neb.), 19-121. Collateral transactions. — It is proper in a prosecution for assault and battery to exclude evidence of collateral transactions which do not warrant or justify the defend- ant in making the assault. Stevens v. State (Neb.), 19-121. Comparative size and strengtb of parties. — Where one charged with assault and stabbing with intent to wound pleads and attempts to prove self-defense as a justifica- tion, the state may prove the relative size and physical strength of the parties, together with the weakened physical condition of the complaining witness, as tending to show that the defendant had no reason to believe him- self in imminent danger of death or great bodily harm at the time he committed the assault. Stevens v. State (Neb.), 19^121. Character of proseonting witness. — The defendant is entitled by way of justifi- cation to prove the general reputation of the prosecuting witness in the community where he resided as a violent, quarrelsome, and dangerous man; but he is not entitled to prove specific acts occurring more than ten years previous to the alleged assault, with which the defendant had no concern. Stevena V. State (Neb.), 19-121. 340 AATJvT. CAS. DIGEST, VOLS. 1-20. Character of defendant. — Where the defendant attacks the reputation of the prose- cuting witness, and introduces evidence tend- ing to show that his reputation, in the community where he resides, as a peaceable and law-abiding citizen is bad, the prosecu- tion is entitled to contradict such testimony by the evidence of competent witnesses. Ste- vens V. State (Neb.), 19^121. g. Instructions. Accidental shooting. — In a prosecution for an assault with a pistol with intent to commit murder, where the defendant claims that the pistol was discharged accidentally, it is erroneous for the court to instruct the jury that they should disregard the evidence as to accident unless they find affirmatively that the pistol was discharged accidentally, if the jury are not also instructed that evi- dence of accidental shooting is to be con- sidered in determining whether there is rea- sonable doubt of the defendant's guilt. State V. Matheson (Iowa), 8-430. Intent and malice. — Instruction in a prosecution for assault with intent to kill considered and held not open to the objec- tion that it eliminates the necessity of proof that the act was done " purposely " and " with malice aforethought." State v. Temple (Mo.), 5-954. Intoxication of defendant. — In a prosecution for assault with intent to com- mit murder, where the evidence shows that the defendant was drunk at the time of the assault, the court should instruct the jury as to the effect of such evidence as tending to show lack of a specific intent to kill. State 17. Bennett (Iowa), 5-997. h. Verdict. Conviction for assault \ritli danger- ous \peapon under indictment for assault with intent to kill. — An in- formation for shooting at a person with in- tent to kill includes the crime of assault with a dangerous weapon by shooting at a person with intent to injure, and will support a conviction thereof. State v. Eednar (N. D.), 20-458. 2. As A Civil Injury. a. Elements of cause of action. Intent to injure. — It is unnecessary to show in a civil action for assault and bat- tery that the defendant intended by the act complained of to injure the plaintiff. It is sufficient if it appear that the act was un- lawful. Mohr V. Williams (Minn.), 5-3D3. Running bicycle against pedestrian. — Even when the use of sidewalks for bi- cycles is tolerated by the failure to attach a penalty to such use, a person riding a bicycle on a sidewalk is invading the part of the street set apart for pedestrians, and takes upon himself the risk of injuring them so as to make himself liable for injuring a pedestrian who is in the proper exercise of his rights in coming upon or walking upon the sidewalk. Fielder v. Tipton (Ala.) 13-1012. In an action against the rider of a bicycle for injuries received by a pedestrian on a sidewalk in being struck by the defendant's machine, testimony by the defendant that he was traveling at the rate of four or four and one-half miles an hour in front of a shop in which he knew persons were constantly go. ing in and out, and that it was impossible for him to avoid striking the plaintiff after he saw the plaintiff step out of the shop, justifies a general charge in favor of the plaintiff. Fielder v. Tipton (Ala.), 13-1012. b. Defense. Trespass by plaintiff. — One may resist another trespassing upon his lands, whatever the motive for so resisting may be, it being not the design of the arrester but the act of the trespasser which is wrongful. Slinger- land V. Gillespie (N. J.), 1-886. Voluntary agreement to fight.— Where two persons engage volimtarily in a fight either can maintain an action against the other to recover the actual damages for the injuries he may receive, and the fact that the combat was by agreement or mutual consent of the parties to it is no defense. Morris v. Miller (Neb.), 17-1047. Right of recaption of property.— The right of recaption does not justify the owner of personal property in committing an assault on the person in possession thereof in order to retake the property, where the owner in possession has no knowledge of the ownership and has no intention of withhold- ing the property from the true ovTier. Stan- ley V. Payne (Vt.), 6-501. c. Pleading. Sufficiency of petition. — In an action for assault or for trespass, the petition must allege facts constituting such assault or tres. pass. Eeed «;. Maley (Ky.), 2-^53. _ Special plea of justification. — In a civil action to recover damages for an assault and battery, the defense of justification can- not be proven under the general issue, but must be specially pleaded. Morris v. Me- Clellan (Ala.), 16-305. Plea of self-defense. — In a civil action to recover damages for an assault and bat- tery, where the defendant pleads self-defense, the plea, to prevail against a demurrer, must aver every element or fact necessary under the law to constitute self-defense if the cause had been a criminal prosecution. Morris v. McClellan (Ala.), 16-305. Plea of defense of another. — Where the defendant in a civil action to recover dam- ages for an assault and battery interposes the defense that he struck in protection of another person, who was entitled to his pro- tection under the law, his plea must show not only freedom from fault on the part of the person whom he sought to protect, but freedom from fault on his own part, as well as a necessity to commit the battery. Mor- ris V. McClellan (Ala.), 16-305. ASSAULT AND BATTERY. 341 d. Evidence. Acts and declarations of parties.— In a civil action to recover damages for an assault and battery, although it is competent to show all that occurred at the time of the difficulty and was connected therewith, as forming a part of the res gestae, evidence in the nature of hearsay, concerning acts and declarations of the parties several minutes after the difficulty was over, is not admissible. Morris v. McClellan (Ala.), 16-305. In an action by husband and wife to re- cover damages for assaults alleged to have been committed on the wife by the defendant under circumstances which made them the criminal offense of an attempt to commit rape or an indecent assault, evidence by both husband and wife of complaints made by the latter to the former in the evening of each of the days on which the assaults were al- leged to have been committed, of what had been done to her, including the particulars of the complaints, is properly admitted. Hop- kinson v. Perdue (Ont.), 2-230. Hat trorn by person assaulted. — In a civil action to recover damages for an assault and battery, it is not error to receive in evi- dence the plaintiff's hat, showing a break or rent at a place which, when worn, would be over or near the point of injury upon the plaintiff's head, where such hat was picked up immediately after the encounter between the plaintiff and the defendant, • near where the plaintiff fell, and where its identity, con- dition, and possession are shown by evidence preliminary to its introduction. Morris V. Miller (Neb.), 17-1047. Evidence as to damages. — Upon the question of damages for assault upon a physi- cian it is competent to prove by another physician, shown to have a sufficient acquaint- ance with the plaintiff's practice to answer the questions put to him, the professional standing and reputation of the plaintiff and the nature and extent of his practice before and after the injury. Conklin v. Consoli- dated R. Co. (Mass.), 13-857. In an action to recover damages for an assault and battery, evidence of a report of the exact words constituting an insult by the plaintiff to the defendant's daughter, detailed to the defendant on the day after he had been informed of the insult and half an hour before he assaulted the plaintiff, is inadmis- sible in mitigation of punitive damages. Lovelace v. Miller (Ala.), 14^1139. An instruction that the jury in an action for an assault and battery may consider the defendant's condition in life and pecuniary circumstances in estimating compensatory damages is inconsistent with a refusal to charge that the plaintiff is entitled to recover punitive damages. Stockham V. Malcolm (Md.), 19-759. The use of offensive language by the plain- tiff may be shown in mitigation of damages in an assault and battery case. Stockham v. Malcolm (Md.), 19-759. Justification. — In an action for assault and battery, the defendant cannot testify as to knowledge that it was the plaintiff's prac- tice to carry a weapon, in order to sustain the theory of justification, where there is no evidence that the plaintiff had any weapon in his hand, or that he made any movement as if to draw a weapon from his person, or that he made any such demonstration as gave the defendant reasonable ground to suppose that he was in imminent danger. Stockham V. Malcolm (Md.), 19-759. Burden of proving justification. — In a civil action to recover damages for an as- sault and battery, the burden of sustaining a plea of justification by legal and competent evidence sufficient reasonably to satisfy the jury, rests upon the defendant. Morris v. McClellan (Ala.), 16-305. Burden of proving freedom from fault. — In a civil action to recover dam- ages for an assault and battery, where the defense of self-defense is interposed, the rule of evidence does not place the burden of prov- ing freedom from fault in bringing on the difficulty upon the defendant, and consequent- ly an instruction by the court which places such burden upon him is erroneous. Morris V. McClellan (Ala.), 16-305. Amount of evidence recinired, — A preponderance of the evidence is sufficient to prove an issue in a civil action for assault and battery. Clasen v. Pruhs (Neb.), 5-112. e. Instructions. Self-defense. — In an action for dam- ages for an assault and battery, wherein it is claimed by each of the parties that the other was the aggressor, and by the defendant that what he did was in self-defense, it is not error for the court to instruct the jury among other things that the right of self-defense does not imply the right to attack, or voluntarily to enter into an affray, or to use more force than is necessary for defense, and that the question as to who provoked the difficulty or made the first assault is for the jury to decide under the evidence. Morris v. Miller (Neb.), 17-1047. f. Measure of damages. Exemplary damages. — Under the North Dakota statute exemplary damages may be awarded for an assault where it is committed with malice either actual or presumed, and malice authorizing such a recovery may be presumed from the wanton and reckless man- ner in which the wrongful act was committed. Shoemaker v. Sonju (N. Dak.), 11-1173. Verdict for one cent. — In a civil action to recover damages for an assault and bat- tery, where the evidence clearly shows that two separate unprovoked assaults, accom- panied by grossly insulting language, were publicly made by the defendant upon the plaintiff, a verdict for one cent in favor of the plaintiff is manifestly inadequate, even though it is not shown that the plaintiff suf- fered any severe physical injury. Leavitt v. Dpw (Me.), 17-1072. In an action for assault and battery puni- tive damages cannot be found unless the act 342 AN'S. CAS. DIGEST, VOLS. 1-20. is unjustifiable, wilful, wanton, and reckless, manifesting malice. Fink v. Thomas (W. Va.), 19-571. ASSEMBLY. See Unlawful Assembly. Eight of people to assemble, see Constitu- tional Law, 3, 17. ASSESSMENTS. Assessing property for taxation, see Taxa- tion, 5. Damages in condemnation proceedings, see Eminent Domain, 7. Drainage assessments, see Deains. Local improvements, see Special ob Local Assessments. Levy by beneficial association, see Benevolent OB Beneficial Associations, 6. Mode of assessing damages in condemnation proceedings, see Eminent Domain, 9 i. Stock assessments, see Coepoeations, 8 a ( 1 ) . Suspension of member of beneficial associa- tion for nonpayment, see Benevolent OB Beneficial Associations, 5 a. ASSETS. Application of firm assets to liabilities, see Paetnebship, 5 c. Bankrupt's estate, see Bankeuptct, 11. Decedent's estate, see Executobs and Admin- isteatoes, 6. Marshaling, see Mabshaung Assets. ASSIGNMENTS. 1. What Mat be Assigned, 342. a. In general, 342. b. Executory contracts, 342. c. Rights of action, 343. 2. Consteuction and Effect of Assign- ment, 343. a. In general, 343. b. Priority between assignments, 344. 3. Actions, 344. See Assignments fob Benefit of Ceeditobs. Agreement by employee to assign invention to employer, see Mastee and Sebvant, 1 e. Assignment of chose in action as champerty, see Champebtt and Maintenance. Check as assignment pro tanto, see Checks, Conditions against assignment of fire insur- ance policy, see Insubance, 5 g (14). Discharge in bankruptcy as affecting assign- ment of unearned wages, see Bank- euptcy, 9. Enforcement of conditions in deed by grantor's assignee, see Deeds, 3 d. Liability of landlord's assignee on covenant for improvements, see Landloed and Tenant, 5 f. Necessity of recording assignment of mort- gage, see Recoeds, 3. Oral assignment of contract for purchase of,, land, see Feauds, Statute of, 4 a. ' | Oral assignment of equitable interest, se^ * Fbauds, Statute of, 4 b (3). Pleading in action by assignee in justice's court, see Justices or the Peace, 3. Reassignment of homestead on increase in value, see Homestead, 2. Eight of assignee of lease to benefit of cove- nants for renewal, see Landloed and Tenant, 3 d (2). Right of assignee to copyright, see Copt- eight, 3. Right of assignee to specific performance of contract, see Specific Peefoemance, 3 f (12). Set-off of assigned claim, see Set-Off and COUNTEBCLAIM, 1 a. Statutory prohibition of assignment of wages, see Constitutional Law, 9. Termination of lease by assignment, see Landloed and Tenant, 3 g. Transfer of warehouse receipts by indorse- ment, see Waeehouses, 2. Particular rights and things. Alimony, see Alimony and Suit Money, 4 a. Bills and notes, see Bills and Notes, 6. Contract in restraint of trade, see Monopolies and Cobpobate Tbusts, 2 d. Contract of sale of realty, see Vendob and PUBCHASEE, 3 f. Corporate stock, see Coepoeations, 8 b. Ferry franchise, see Feeeies, 1. Francnises generally, see Feanchises. Fire policy after loss, see Insubance, 5 i. Ground rents, see Gbound Rents, 2. Insurance contracts generally, see Insubanob, 3 f . Judgments, see Judgments, 11. Judgment for alimony, see Alimont and Suit Monet, 4 a. Leases, see Landloed and Tenant, 3 o. Legacies and devises, see Convebsion and Reconversion. Membership in stock exchange, see Ex- changes. Option to purchase demised premises, see Landloed and Tenant, 3 f. Pledged property, see Pledge and Collatebal Secueity, 5. Trademarks, see Teademaeks, Teade Names, and Unfaie Competition, 2. 1. What Mat be Assigned. a. In general. Ordinary business contracts. — As a general rule all ordinary business contracts are assignable unless expressly prohibited by statute or in contravention of some principle of public policy. Atlantic, etc., E. Co. e. Atlantic, etc., Co. (N. Car.), 15-363. b. Executory contracts. Contracts involving personal tmst and confidence. — The general rule that all ordinary business contracts are assignable is ASSIGNMENTS. 343 subject to the exceptions that executory con- tracts for personal services involving a per- sonal relation of confidence between the par- ties, and executory contracts imposing liabili- ties or duties which in express terms or by fair intendment from the nature of the liabili- ties themselves import reliance on the charac- ter, skill, business standing, or capacity of the parties, are not assignable without the assent of the other party to the contract. Atlantic, etc., E. Co. v. Atlantic, etc., Co. (N. Car.), 15-363. But such exceptions do not apply where the contract is entirely objective in its char- acter and gives clear indication that the per- sonality of the other contracting party was not considered. Accordingly an executory contract between a railroad company and an individual for the cutting of the company's timber lands and the delivery on its right of way of a definite quantity of cord wood, which is not to be performed by the con- tractor personally and which does not re- quire or import any special reliance on his skill 01 business qualifications, is assignable BO as to impose on the assignee the obliga- tion to pay for the wood when delivered. Atlantic, etc., E. Co. v. Atlantic, etc., Co. (N. Car.), 15-363. Contract for purchase of lands. — An agreement for the purchase of lands at the option of the purchaser, his heirs and assigns, the purchaser being the exclusive judge of the sufficiency of the title offered, is assignable if there be nothing in the nature of the transaction to justify the assumption that any particular trust or confidence is re- posed in the purchaser alone, and the as- signee has the right to pass upon the title ; and where the vendor furnishes a certificate of title for the inspection of an assignee he will be estopped thereafter to deny the right of the assignee to pass upon the title. Sim- mons V. Zimmerman (Cal.), 1-850. Unearned wages. — An assignment of wages to be earned in the future under an existing contract of employment is valid as an agreement, and takes effect as an assign- ment as the wages are earned; but an assign- ment of wages to be earned, without limit as to amount or time, is void, and cannot be enforced against a debtor after his discharge in bankruptcy, as to wages thereafter earned by him. Leitch v. Northern Pacific E. Co. (Minn.), 5-63. . An assignment of wages to be earned m the future under an existing employment is valid, though the contract of employment is not for a definite term. Eodijkeit v. Andrews (Ohio), 6-761. An assignment of future earnings which may accrue under an existing employment is a valid contract and creates rights which may be enforced in an appropriate forum. Citizens Loan Assoc, v. Boston, etc., E. Co. (Mass.), 13-365. Salary or fees of public officer. — An assignment of the salary or fees of a public offlctr to be earned in the future is contrary to public policy and void. First Nat. Bank V. state (Neb.), 4-423. An assignment of the unearned part of his salary by a public officer is against public policy and void. McGowan v. New Orleans (La.), 10-633. A voluntary assignment by an officer or employee of a municipal corporation, of salary or fees not yet earned by him, is void as against public policy. (See notes, 4 Ann. Cas. 423; 10 Ann. Cas. 636.) Dunkley v. Marquette (Mich.), 17-523. c. Eights of action. Personal injuries. — In the absence of a statutory provision to the contrary, the right of action for personal injuries resulting from negligence cannot be made the subject of assignment before judgment. Waller v. Jersey City, etc., St. E. Co. (N. J.), 6-442. A right of action for personal injuries re- sulting from negligence is not rendered assignable to a third person during the life- time of the person injured, by a statute pre- serving to the executor or administrator of a decedent a right of action for trespass com- mitted on the person of the latter during his lifetime, as such statute does not transpose the right of action into a property right. Weller v. Jersey City, etc., St. R. Co. (N. J.), 6-442. Injuries to property. — The rule that rights to damages for torts are not assign- able applies to a right of action against a, railway company for killing a horse. Mc- Cormack v. Toronto E. Co. (Ont.), 7-500. Cause of action for conversion of personalty. — A cause of action in favor of the owner of personalty, against a party wrongfully taking and converting the same to his use, is assignable. Kansas City, etc., E. Co. V. Shutt (Okla.), 20-255. Cause of action for destruction of personalty by fire. — A cause of action in favor of the owner of personalty, on account of the wrongful destruction of such property by fire, against the wrongdoer, is not assign- able. Kansas City, etc., R. Co. v. Shutt (Okla.), 20-255. 2. CONSTBUCTION AND EFFECT OF ASSIGNMENT. a. In general. Assignment collateral to lease. — Where it appears from the parol evidence in- troduced for the purpose of showing the circumstances under which a railroad lease for ninety-one years was made and the ob- jects which the parties had in view, that the locomotives used by the lessor were exclu- sively "wood burners," and that for the pur- pose of supplying such locomotives with wood the lessor had purchased timber lands and had made contracts for the cutting and de- livery on its rights of way of a certain quan- tity of wood, which contracts, being the only ones made in connection with such timber lands, were at the time of the lease in the course of performance and were brought to the attention of the lessee, a provision in the lease that it shall include " all lands, in- terests in lands, timber, timber rights, and contracts now owned by the lessor," will, ncrt- 344 ANN. CAS. DIGEST, VOLS. 1-20. withstanding the use of the words " demise " and "let," be held to amount to an assign- ment of such contracts. Atlantic, etc., R. Co. V. Atlantic, etc., Co. (N. Car.), 15-363. As between such lessor and lessee, the effect of such assignment is to establish a primary liability on the part of the latter for the performance of such contracts, and if the lessor is compelled to pay damages be- cause of the nonperformance or breach there- of by the lessee, there is an implied promise by the latter to reimburse the _ former for the amount paid, notwithstanding a pro- vision in the lease that the lessee shall not "be liable for any debts of the said lessor at said date." Atlantic, etc., E. Co. v. At- lantic, etc., Co. (N. Car.), 15-363. Such liability is, moreover, imposed by a stipulation in the lease that the lessee shall indemnify the lessor for the damages it may sustain by reason of the lessee's failure to perform its duties and obligations, and that the lessor shall notify the lessee of the in- stitution of any suit against the lessor; and where the lessor has notified the lessee of the institution of a suit for the breach of such a contract, and the lessee has failed to defend such suit, the lessor is entitled to recover the reasonable expenses of making such defense. Atlantic, etc., R. Co. v. At- lantic, etc., Co. (N. Car.), 15-363. Instrnment construed as assignment and not mortgage. — An instrument in form an assignment by a contractor of the balance due imder the contract for the erec- tion of a house, made to secure money ad- vanced and to be advanced by the assignee to enable the contractor to proceed with the work, and containing a direction to the owner to make payments maturing under the con- tract to the assignee, is not a mortgage, but an ordinary assignment. Spengler v. Stilea- TuU Lumber Co. (Miss.), 19-426. b. Priority between assignments. Notice to debtor. — Where several as- signments of a single fund or chose in action are made, they take effect as among the as- signees from the date when they are perfected by notice to the debtor, and not from the date of their execution. Lambert v. Morgan (Md.), 17-439. Notice to tmstees. — Where the terms of a will are such that an equitable conver- sion of all of the testator's real estate is effected at the time of his death, a life tenant under the will takes no interest in the real property which is capable of being mortgaged as such, and a mortgage executed by him, transferring and assigning all his interest in the estate, is in effect a mere assignment of a fund or chose in action, which takes effect, as against other assignees, from the date when notice thereof is given to the trustees in whom the corpus of the fund is vested, and not from the date when it is executed or recorded. Such an instrument is not within the registry act, and its mere recorda- tion does not create any lien, or operate as notice to the trustees. Lambert v. Morgan ,(Md.), 17-439. 3. Actions. Joinder of assignor and assignee ai plaintiff s. ^ The action was originally brought by the assignees of the persons who were tenants of the lower premises when the damage was done, but the assignors were added as plaintiffs: Held, that, both parties being before the court, a right of action was vested in either one or the other, and the effect of the assignment was immaterial. Powley V. Mickleborough (Can.), 18-532. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Property passing hy assignment — life insurance policies. — > Where a policy of life insurance is assignable, every right given by it to the insured passes under a general assignment by him of all his " estate, property, and effects, . . . also all claims, debts, choses in action owing to him . . . and all evidences thereof . . . also any and all other property, real or personal, of all belonging to him . . . except such property as is exempt" from execution. Blinn v. Dame (Mass.), 20-1184. Dividends of secured creditors. — A secured creditor of an assignor for the benefit of creditors may not prove and receive the dividends upon the face of his entire claim, but must credit the value of his collaterals on the debt and prove only for the balance. Union, etc.. Bank v. Duncan (Miss.), 2-272. Upon a general assignment for the benefit of creditors, without preference, a dividend for creditors is payable ratably on the debt of a secured creditor only after the reduction of the debt by the value of the securities held by him. Kretschmar v. First National Bank (Miss.), 13-1085. ASSIGNMENTS OF ERRORS. See Apfeal and Ebbob, 10. Sufficiency on motion for new trial, see New Tbiai, 3 b. ASSISTANCE. Assisting escapes, see Escape, Pbison Break- ing AND Rescue. Eight of peace oflicer to summon assistance in making arrest, see Abbest, 3. ASSISTANCE, WRIT OF. Review of order awarding writ of assistance, see Appeal and Ebbob, 4 a. ASSISTANT. Appointment of assistant prosecuting attor- ney, see Pbosecutino Attobnets. ASSOCIATIONS — ATTACHMENT. 345 ASSOCIATIONS. See Benevolent or Benepioiai, Associa- tions; Botlding and Loan Associa- tions; Exchanges; Labob Combina- tions; Societies and Unincoepobated Associations. Compelling action by mandamus, see Man- damus, 3 0. Employers' relief associations, see Master AND Servant, 3 j. Jurisdiction of controversy between members, see Courts, 2 a. Membership in association as affecting com- petency of jurors, see Jury, 5 b. Maintenance of railroad relief associations, see Railboads, 5 c. ASSUMPSIT. Enforcement of foreign decree for alimony, see Alimony and Suit Money, 4 h. Recovery of money loaned, paid or received, see Money Loaned, Paid oe Received. When proper form of action, see Actions. ASSUMPTION. Guilt assumed by instruction to jury, see Ceiminal Law, 6 q (1). Mortgage debt assumed by grantee, see Covenants, 3; Fbauds, Statute of, 8 b; Mortgages and Deeds op Trust, 8 b. Partnership debts assumed by one partner, see Partnership, 5 b; 6. Risks assumed, see Master and Servant, 3 g; Negligence, 8. Risks assumed by infant servant, see MASTER and Servant, Be (3). ASYI.UMS. See Hospitals and Asylums. Right of asylum, see Extradition, 3 d. ATHEISTS. Competency as witnesses, see Witnesses, 3 b (6). ATHLETIC ASSOCIATIONS. See Theatres and Public Resorts. ATTACHMENT. 1. In What Causes Attachment May BE Had, 345. 2. Nonresident Defendants, 345. 3. Grounds for Attachment, 346. 4. What May be Attached, 346. 5. Lien of Attachment, 346. 6. Pbocbdure, 346. a. In general, 346. b. Affidavit, 348. o. Dissolution, 347. d. Trial of title to property attached, 347. 7. Damages fob Wrongful Attaoh- -ment, 348. 8. Attachment Against National Bank, 348. Civil liability of thief as indebtedness to sus- tain attachment, see Labceny, 9. Dissolution of corporation as affecting at- tachment, see CoBPOEATiONS, 2 e (3). Effect of attachment as waiver of lien of chattel mortgage, see Chattel Mobi- GAGES, 7. Exemption of seaman's wages, see Seamen, 4. Fraudulent sale of merchandise in bulk, see Fbaudulent Conveyances, 3 b. Law governing liability for wrongful attach- ment, see Conflict of Laws, 6. Nature of proceeding as in rem, see Judg- ments, 17. Priority as to purchaser from debtor, see Sales, 1. Special appearance to contest attachment, see Appeaeance. Sufficiency of justice's judgment to sustain sale under attachment, see Justices of the Peace, 4. 1. In What Causes Attachment May be Had.. Proceedings in equity. ^ Although a proceeding to enforce the statutory liability of the stockholders of an insolvent bank is in its nature equitable, the plaintiff is entitled to a writ of attachment in aid thereof. Adams v. Clark (Colo.), 10-774. Action on contract for payment of money. — An undertaking whereby the surety is liable only upon default of the prin- cipal in the performance of his contract is not a contract for a " direct payment of money " within the statute authorizing the issuance of an attachment in an action upon such a contract. A. 0. H. Division No. 1 of Anaconda v. Sparrow (Mont.), 1-144. 2. Nonbesident Defendants. Constitutionality of statute. — A stat- ute authorizing the enforcement of the con- tract obligation of a nonresident who dies owning real estate in Kansas, by attachment and sale thereof in an action brought against the nonresident executor, is constitutional. Manley v. Mayer (Kan.), 1-825. Jurisdiction dependent on property. — Where a court obtains jurisdiction of a nonresident by virtue of an attachment of his property within the state, the jurisdiction and the validity of the attachment depend upon the defendant having property in the state, and if the title to the property attached has passed from the defendant to the plain- tiff, the attachment will be dissolved. Green- wood Grocery Co. v. Canadian County Mill, etc., Co. (S. Car.), 5-261. 346 Al^N. CAS. DIGEST, VOLS. 1-20. Deposit by plaintiff to defendant's OTcdit. — A person indebted to a nonresident cannot, by a deposit of the amount of the debt in a bank in defiance of the creditor's wishes, confer jurisdiction in attachment on the court where the bank is located. Saxony Mills v. Wagner (Miss.), 19-199. 3. Gbounds foe Attachment. Fraudulent conveyance by debtor. — If a debtor sells goods with the fraudulent intent of cheating, hindering, or delaying his creditors, the sale constitutes a ground for attachment by such creditors though it is made in the usual course of trade and busi- ness. Farris v. Gross (Ark.), 5-616. 4. What Mat be Attached. Equitable interest in personal prop- erty. — Under the South Carolina statute an equitable interest in personal property is subject to attachment. Pelzer Mfg. Co. v. Pitts (S. Car.), 11-665. Partnership property. — In an action against two persons composing a partnership, an attachment running against one of the partners individually is efficient to take part- nership property in the hands of a third party. Pelzer Mfg. Co. v. Pitts (S. Car.), 11-665. Negotiable promissory note. — Under a statute providing that all property not exempt from execution shall be subject to attachment, and that personal property capable of manual delivery and not in pos- session of a third person shall be attached by the taking thereof into possession by the sheriff, a negotiable promissory note in the possession of the owner thereof, and free from any liens, is subject to attachment and sale under execution, such note being embraced in the term "property." Fishburn v. Lenders- hausen (Ore.), 15-975. Real property of decedent. — Under the Massachusetts statutes real property be- longing to the estate of a deceased person may be attached under mesne process in any suit for a debt of the deceased properly brought against his executor or administra- tor. Herthel v. McKim (Mass.), 5-911. Cars used in interstate commerce. ^ Cars of a nonresident railroad company in which goods have been transported from an- other state, and amounts due such company under traffic agreements with local companies, are not exempt from attachment and garnish- ment in the state courts on the ground of interference by the state with interstate com- merce. Davis V. Cleveland, etc., E. Co (U. S.), 18-907. _ A freight car not only belonging to a for- eign corporation but actually in use as an instrumentality of interstate commerce, be- ing loaded with interstate freight not deliv- ered to the consignee, is not subject to attachment. Shore v. Baltimore, etc K. Co. (S. Car.), 11-909. Property in custody of bankruptcy court. — A state court hag no jurisdiction to attach property which is in the custody of a federal court as part of a bankrupt's estate; and an attempted attachment of such property and all proceedings based thereon are void. French v. White (Vt.), 6-479. Dividends in the hands of a trustee in bank- ruptcy are in the custody of the bankruptcy court and subject to its exclusive jurisdiction until they are actually distributed, and such dividends cannot be reached by attachment issuing from a state court, although checks therefor have been drawn by the trustee and countersigned by the referee and are ready for delivery. Rockland Savings Bank v. Al- ien (Me.), 13-806. 5. Lien of Attachment. In general. — Under the Idaho statute (Rev. Codes, § 4302), an attachment duly and regularly issued and levied becomes a lien on the property " as security for the satis- faction of any judgment that may be recov- ered." The attachment, therefore, is such a provisional remedy as reaches out and lays hold upon the property by proceeding in rem and subjects it to the payment of the debt for the recovery of which the action was in- stituted. Potlatch Lumber Co. v. Bimkel (Idaho), 18-591. Waiver by enlarging original claim. — An attachment is waived by including in the judgment causes of action other than those secured by the attachment. Beyer v. Dobeas (Wis.), 18-1019. 6. Fbocedtjbe. a. In general. What defects jurisdictional. — An at- tachment proceeding, in which there is no service of process upon the defendant, no levy of the writ upon the property, and no ser- vice upon any garnishee indebted to him or having property or effects belonging to him, is void, as the court acquires no jurisdiction of either the person or property of the de- fendant so as to be able to render any judg- ment. Pease v. Chicago Crayon Co. (Ill.)i 14-263. Practice where principal judgment is reversed on appeal. — Where a judg- ment in favor of the plaintiff, in an action wherein an attachment has been granted, is reversed on appeal, and the case is remanded for a new trial, the ancillary proceeding of the attachment must also be remanded with it, even though the appellate court is of the opinion that the evidence warranted the granting of the attachment. In such a case the court below will be instructed to sustain the attachment in the event that the plain- tiff is successful upon the new trial, and otherwise to dissolve it. Hogg v. Thurmaa (Ark.), 17-383. b. Affidavit. Allegation of grounds in altematlvei — Under the Utah statute which specifies the groimds for an attachment, an affidavit for attachment which alleges that the defendant has disposed of or is about to dispose of hia ATTACHMENT. 347 property, with the intent to defraud his credi- tors, is not bad for the reason that two grounds for the attachment are stated in the alternative, as the party making the affidavit for the writ may know that the defendant has disposed of or is about to dispose of his property by one or more methods enumerated in the statute, but may be in doubt as to, or unable to state, the specific manner in which he has placed or is about to place his prop- erty beyond the reach of his creditors. John- son V. Emery (Utah), 11-23. Averment of indebtedness. — An affi- davit in attachment that the defendant "is indebted to deponent " instead of that the defendant " is indebted to the plaintiff," as required by statute, is jurisdictionally defec- tive and not subject to amendment. Butcher V. Cappon, etc.. Leather Co. (Mich.), 12-169'. Statement of grounds. — An affidavit for an attachment, which states in the lan- guage of the statute, that the debtors " have sold, assigned, transferred, secreted, or other- wise disposed of, or are about to sell, assign, transfer, secrete, or otherwise dispose of their property with intent to cheat or defraud their creditors," states but one ground for attach- ment. McCarthy Bros. Co. v. McLean Coun- ty, et«.. El. Co. (N. D.), 20-575. Use of disjunctives. — The use of the disjunctive conjunction " or " in subdivision 4, section 6938, Rev. Codes 1905, is not to connect two grounds for an attachment, but said subdivision states one ground only, con- sisting of different phases of facts or condi- tions intimately related, pertaining to that one ground. McCarthy Bros. Co. i;. McLean County, etc.. El. Co. (N. D.), 20-574 Variance 'bet'ween affidavit and declaration. — Inconsistency between the claim stated in an affidavit for an attachment and the demand set up in the declaration con- stitutes a, variance fatal to the attachment. Simmons v. Simmons (W. Va.), 3-184. Upon a motion to quash the attachment for variance between the claim stated in an affi- davit and the demand set up in the declara- tion, the declaration may be resorted to to establish the variance, and a plea in abate- ment is not necessary. Simmons v. Simmons (W. Va.), 3-184. c. Dissolution. Oral motion to quash. — A plea in abatement to an attachment which sets up only matter of variance appearing from the declaration and affidavit without the aid of the plea, accompanied by an oral motion to quash, may be treated as a motion to quash. Simmons ». Simmons (W. Va.), 3-184. Beneival of motion to quash. — An order overruling a motion to quash an at- tachment is interlocutory and does not pre- clude a renewal of the motion. Simmons v. Simmons (W. Va.), 3-184. Setting aside levy on exempt prop- erty. — A court has the power to set aside a levy of a writ of attachment upon exempt property. Holmes v. Marshall (Cal.), 2-88. Bankruptcy of partner. — Where in an action against two persons composing a part- nership, an attachment is issiied against one of the partners individually, the fact that one member of the partnership is adjudged a bank- rupt, within four mouths after the attach- ment is issued, does not affect the right of creditors of the firm to hold the firm property under attachment. The contention that the attachment is annulled by the bankruptcy of a partner cannot be urged on appeal, in any event, where it appears that a motion to dissolve the attachment on that ground was refused by the trial court and no appeal was taken from the order refusing the notice. Pelzer Mfg. Co. v. Pitts (S. Car.), 11-665. Effect of giving bond. — The dissolution of an attachment by giving the statutory bond to pay any judgment that may be re- covered in the suit, operates as an appear- ance converting the suit from an action in rem into an action in personam and waives all defects in the affidavit for the attachment. Butcher v. Cappon, etc.. Leather Co. (Mich.), 12-169. d. Trial of title to property attached. IVho may claim title. — The South Carolina statute providing for the defense of attachment suits is designed not merely to allow an intervention by one in possession of the property claiming absolute ownership in his own right, but also by one in possession claiming a special property interest affected by the attachment. Shore v. Baltimore, etc., E. Co. (S. Car.), 11-909. Under the provisions of the Idaho statute (Rev. Codes, § 4111) which authorize a third person to intervene who has " an interest in the matter in litigation, in the success of either of the parties, or an interest against both," the owner or claimant of property at- tached in an action for debt has such an in- terest against both parties to the main action as entitles him to intervene for the purpose of asserting his right and title to the at- tached property. Potlatch Lumber Co. v. Eunkel (Idaho), 18-591. Burden of proof. — Under the South Carolina statute providing that " an issue shall be made up under the direction of the judge to try the question," the trial judge has the discretion, where attached property is claimed by a third person, to require the at- tachment plaintiffs to take the position of actors and bear the burden of proving that the ownership of the property is in the de- fendant rather than in the claimant. Pelzer Mfg. Co. V. Pitts (S. Car.), 11-665. Confusion of goods. — Where goods be- longing to two or more persons are inter- mingled and confused, with the knowledge of the owners, so that they are incapable of be- ing identified or distinguished, and part of the goods only are subject to attachment, the party claiming to be the owner of that part not subject to attachment must point them out and make demand for their return when seized under a writ of attachment; and if this is not done the officer serving the writ will not be liable for the seizure of the goods. 348 ANN. CAS. DIGEST, VOLS. 1-20. as in such case he is not deemed to be a tres- passer. Johnson v. Emery (Utah), 11-23. 7. Damages fob Wbonqfui. Attachment. In general.— Where an attachment is «ued out maliciously and without probable cause from a court which is without juris- diction, and damage results to the defendant from the levy of the attachment, the malicious suing out and levy can be made the basis of an action by the defendant for damages. Ailstock V. Moore Lime Co. (Va.), 7-545. Nominal damages. — While no recovery can be had in an action to recover for wrong- ful attachment, where no property rights of the plaintiff were interfered with by the is- suance of the writ and no special injury re- sulted therefrom, yet if the writ was sued out maliciously and vpithout probable cause, the law will presume some injury to have resulted from the wrong and will award nom- inal damages at least. Dorr Cattle Co. v. Des Moines Nat. Bank (Iowa), 4-519. Fnnitive damages. — In an action for wrongful attachment of property, proof that the attachment was sued out by the defend- ant wantonly, recklessly, and wilfully, for the purpose of coercing the plaintiff to pay money not owing, is equivalent to a proof of malice and entitles the plaintiff to punitive damages. Pittsburg, etc., R. Co. v. Wakefield Hardware Co. (N. Car.), 3-720. Damages for injury to credit and business. — As elements of damage for the wrongful suing out of an attachment on min- ing property, injury to the credit and busi- ness of the attachment defendant and the loss of property through sales under judgments secured by its employees for wages due at the time of the levy, are not proper elements of damage, where the defendant's possession and mining operations were not disturbed by the levy of the writ. Plymouth Gold Mining Co. V. United States Fidelity, etc., Co. (Mont.), 10^951. Connsel fees. — Under the Montana stat- ute providing in effect that where a court decides that the plaintiff in an attachment was not entitled to a writ, the plaintiff must pay all costs which may be awarded the de- fendant and all the damages the latter may have sustained by issuance of the writ, ex- penses for reasonable counsel fees incurred by the defendant in defending the attachment may be recovered on the attachment bond as an element of damages; and it is immaterial that the fees have not actually been paid. Plymouth Gold Mining Co. ». United States Fidelity, etc., Co. (Mont.,), 10-951. A contract between an attachment defend- ant and its counsel, as to the fee to be paid for the services rendered by the latter in re- sisting the attachment, is not conclusive as to the value of such services as an element of damages for wrongful attachment, but evi- dence of the contract is competent to go to the jury with other evidence tending to show what was in fact a reasonable compensation for services. Plymouth Gold Mining Co. v. United States Fidelity, etc., Co. (Mont.), 10-951. 8. Attachment against National Bane. Issnance before final judgment for- bidden. — Section 5242 of the U. S. Revised Statutes relating to national banking asso- ciations forbids the issuing of an attachment against a national bank or its property before final judgment in any suit, action, or pro- ceeding in any state, county, or municipal court whether the bank be solvent or in- solvent. Van Reed v. People's Nat. Bank (U. S.), 3-1154. Section 5242 of the U. S. Revised Statutes forbidding an attachment against national banks was not repealed by the Act of July 12, 1892, depriving national banks of the right to invoke the jurisdiction of the federal courts simply upon the ground that they were created by and exercise their powers under Acts of Congress. Van Reed v. People's Nat. Bank (U. S.), 3-1154. Effect of invalid attachment. — In an action against a national bank where there has been no personal service in the court of original jurisdiction, no jurisdiction is ob- tained by the issuing of an attachment in violation of section 5242 of the U. S. Revised Statutes. Van Reed v. People's Nat. Bank (U. S.), 3-1154. ATTAINDER. Disqualifying murderer from inheriting, see Descent and Distbibtjtion, 5 a. ATTEMPTS. Attempts to commit crime generally, see Aeson; Ckiminal Law, 1; Incest, 7. Attempts to commit suicide as crime, see Suicide, 1. Killing in an attempt to perpetrate another crime, see Homicide, 3. Charging attempt to commit crime, see In- dictments AND InFOBMATIONS, 4. Voluntary exposure in attempts to save life or property, see Negligence, 7 d. ATTENDANCE. Enforcing attendance of witnesses, see Wit- nesses, 1. Procuring attendance of jurors, see Jubt, 4. ATTESTATION. See Deeds, 1 b (3) ; Wills, 3 e. ATTESTING WITNESSES. Unauthorized addition of name of attesting witness, see Alteeation of Insteu- MENTS, 2. ATTORNEY-GENERAI.. Power of federal courts to restrain official acts by attorney-general of state, see Injunctions, 2 d (4). ATTORNEYS AT LAW. 349 Bight to appear in private litigation affecting public interests. — It is proper for the attorney-general, pursuant to notice served on him by order of court, to appear on behalf of the state and participate in the argument of a case involving the right of a corporation to practice law. Matter of Co- operative Law Co. (N. Y.), 19-87&. ATTORNEYS AT LAW. 1. Admission of Attokneys, 350. 2. Disbarment of Attorneys, 350. a. In general, 350. b. Power of court, 350. c. Grounds for disbarment, 351. (1) In general, 351. (2) Conviction of crime, 351. (3) Wrongful retention of client's money, 351. (4) Insulting language or con- duct toward court, 352. d. The accusation, 352. e. The hearing, 352. i. Review of proceedings, 353. g. Practicing after disbarment, 353. 3. Relation op Attorney and Cuent, 353. a. Notice to attorney as notice to client, 353. b. Authority of attorney, 353. c. Right to become surety for client, 354. d. Conveyance by client to attorney, 354. e. Summary jurisdiction to compel attorney to pay over client's money, 354. f. Termination of relation, 354. 4. Liability of Attorney to Client, 354. 5. Compensation of Attorneys, 354. a. Right to compensation, 354. b. Contingent agreements, 355. c. Retaining fees, 355. d. Proof of value of services, 355. 6. Lien of Attorneys, 355. a. Right to lien, 355. b. On what lien exists, 356. c. Enforcement of lien, 356. d. Settlement between parties, 356. 7. Law Partnerships, 356. a. Power of member to bind firm, 356. b. Death of member, 357. 8. Contract to Procure Business fob Attorney, 357. 9. Designation of Attorney to Defend OR Prosecute, 357. See Attorney-General; Pbosecutino At- torneys. Admissions by attorney, see Evidence, 10 d (2). Advice of counsel as defense to action for malicious prosecution, see Malicious Prosecution, 2 e. Advice of counsel as ground for equitable re- lief from judgment, see Judgments, 13. Affidavit by attorney for client, "see Affi- davits, 1. Arguments of counsel in civil cases, see Trial 4. Arguments of counsel in criminal cases, see Criminal Law, 6 m (4) ; 6 p. Comments in argument on failure to call wit- nesses, see Criminal Law, 6 m (4). Conduct of counsel in civil cases, see Trials, 4. Conduct of counsel in criminal cases, see Criminal Law, 6; 9 c (3). Consent of counsel to irregularities, see Jurors, 7 c. Contingent fee as constituting attorney party in interest, see Judges, 4 b ( 2 ) . Duty as to preparation of brief, see Briefs OP Counsel. Expression in title of subject of statute gov- erning attorneys at law, see Stat- utes, 3 b. Legal services as necessaries for infants, see Infants, 2 a. Liability of bankrupt for legal services, see Bankruptcy, 10. Limitation of actions for conversion by at- torney, see Limitation of Actions, 4 a (2) (a). Notary afterwards employed as attorney, see Affidavits. Privilege as to words spoken by counsel in judicial proceedings, see Libel and Slander, 3 b. Privileged communications between attorney and client, see Evidence, 17; Wit- nesses, 3 d (1). Review of rulings of trial judge as to con- duct of counsel, see Criminal Law, 9c (3). Right of corporation to practice law, see Corporations, 4 c. Special counsel in criminal cases, see Crim- inal Law, 6 i. Survival of cause of action against attorney for breach of duty, see Abatement and Revival. Testimony as to foreign law, see Foreign Laws. Verification of pleadings by solicitor, see In- junctions, 3 c (2). Attorneys' Fees. Allowance of attorneys' fees as costs gen- erally, see Costs, 8. Allowance in particular actions and proceed- ings, see Attachment, 7; Bills and Notes, 12 g; Eminent Domain, 9 n; Partition, 2 d ( 7 ) ; Special or Local Assessments, 8. Allowance in action for demurrage, see Car- riers, 3. Allowance in action on injunction bond, see Injunctions, 5 c (4). Allowance in action on replevin bond, see Re- plevin, 9. Allowance in action to recover penalty for failure of carrier to pay claim, see Carriebs. Allowance in foreclosure actions, see Mort- gages AND Deeds op Trust, 13 f. Allowance in suit to annul marriage, see Alimony and Suit Monet, 3 b. 350 ANN. CAS. DIGEST, VOLS. 1-20. Allowance to guardian ad litem, see In- fants, 3 f (3). Liability of bankrupt for attorney's fees, see Bankbuptcy, 10. Liability of personal representative for at- torney's fees, see Executobs and Ad- MTNISTRATOES, 8 C. Stipulations in contracts generally for pay- ment of attorneys' fees, see Con- tracts, 4 n. Stipulation for attorneys' fees in mortgage, see BrrrtDiNO and Loan Associa- tions, 5. Stipulation for attorneys' fees as affecting negotiability of note, see Bills anw Notes, 6 a. 1. Admission of Attoenets. Attorney as ofBcer of conrt. — An at- torney at law is an officer of the court, exer- cising a privilege or franchise, to the enjoy- ment of which he has been admitted not as a matter of right but upon proof of fitness through evidence of his possession of satis- factory legal attainments and a fair private character. In re Durant (Conn.), 10-140. Power of legislature to prescribe qualifications. — The admission of an ap- plicant to the practice of law is a judicial act, but the legislature by virtue of its police power has the right to prescribe the quali- fications which a person must possess in order to become a practicing member of the bar. In re Applicants for License (N. Car.), 10-187. Kesidence in state. — No one but a citi- zen of the United States and a resident of the state of Nebraska can be admitted to prac- tice generally in the courts of said state. In re Robinson (Neb.), 17-878. Constitutionality of statute regu- lating. — The North Carolina statute pre- scribing the qualifications for admission to practice law, which has been construed as not requiring applicants for licenses to show good moral character, is not unconstitutional, either as being an unwarranted exercise of judicial power by the legislature, or as being an unlawful attempt to deprive the judicial department of power which of right belongs to it. In re Applicants for License (N. Car.), 10-187. Investigation of moral character. — Under the North Carolina statute an ap- plicant for license to practice law who, on his examination, satisfies the court of bis competent knowledge of the law, is entitled to receive a license, and an investigation into his general moral character is neither re- quired nor permitted. In re Applicants for License (N. Car.), 10-187. Bight of court to reject applicant. — When the legislature of a state has by posi- tive enactment prescribed the qualifications which a person must possess in order to enter the legal profession, and a citizen presents himself for examination and is shown to pos- sess these qualifications, the courts must ad- mit him to the practice of law. The courts exercise their judicial functions in determin- ing whether an applicant possesses the re- quired qualifications, and there their power ends. In re Applicants for License (N. Car.), 10-187. 2. Disbabment of Attoenets. a. In general. Nature of proceedings. — A proceeding for the disbarment of an attorney is in no sense a criminal prosecution, nor is it in aid of a criminal investigation, but its purpose is to ascertain whether the accused is worthy of confidence and is possessed of that good moral character which is a condition prece- dent to the privilege of practicing law and of continuing in the practice thereof. In re Thresher (Mont.), 8-845. The action of the court in exercising its power to declare a forfeiture of the privi- lege or franchise of an attorney is judicial in its character, but the inquiry made is in the nature of an investigation by the court into the conduct of one of its own officers, and is not the trial of an action or suit; and the order entered is but an exercise of the disciplinary jurisdiction which the court has over its officers. In re Durant (Conn.), 10-539. Conviction of crime as condition precedent. — Where the conduct charged as a ground for disbarring an attorney falls within the sphere of his official duty, the court may disbar him without awaiting the result of a criminal prosecution or being con- trolled thereby, even though the judgment of disbarment may be in effect a finding that the accused is guilty of a crime. In re Thresher (Mont.), 8-845. Acquittal of crime as defense. — The acquittal of an attorney of the criminal charge upon which disbarment proceedings are based is no defense to such proceedings, People ex rel. Colorado Bar Assoc. ». Thomas (Colo.), 10-886. b. Power of court. Nature of poxrer in general. — The power to declare the forfeiture of the privi- lege or franchise of an attorney for his mis- conduct is a summary one, inherent in the courts, and exists, not to mete out punish- ment to the offender, but that the adminis- tration of justice may be safeguarded and the courts and public protected from the miscon- duct or unfitness of those who are licensed to perform the important functions of the legal profession. In re Durant (Conn.), 10-539. Constitutional provisions as to eligi- bility. —The provisions of the Oklahoma constitution, that all attorneys at law, licensed to practice in any court of record of the territory of Oklahoma, or in any of the United States courts for the Indian Territory, or any court of record of any of the Five Civilized Tribes, shall be eligible to practice in any court of the state without examina- tion, does not preclude the court from in- quiring into the moral qualifications or from disbarring those who fall within its terms, ATTOKNEYS AT LAM . 351 and who claim th« rights conferred thereun- der, when the contingency arises requiring the exercise of such power. In re Mosher (Okla.), 20-209. Power of appellate court. — An appel- late court has original jurisdiction to suspend or disbar an attorney who files therein a pe- tition for rehearing containing insulting, con- temptuous, and slanderous language. In re Robinson (Wash.), 15-415. Power of district courts in Icwa. ^ Though the supreme court of Iowa has the exclusive authority to admit attorneys at law to practice in the courts of the state, the district courts have jurisdiction to entertain and determine disbarment proceedings. State V. Mosher (Iowa), 5-984. c. Grounds for disbarment. (1) In general. Misconduct shoTring unfitness. — For the manner in which an attorney at law exer- cises his privilege or franchise he is con- tinually accountable to the court, and the privilege may at any time be declared for- feited for such misconduct, professional or nonprofessional, as shows him to be an unfit or unsafe person to enjoy the privilege and to manage the business of the others in the capacity of attorney. In re Durant (Conn.), 10-539. Moral delinquencies. — The license of an attorney at law may be revoked on the ground that he has ceased to be of good moral character, though the statute does not specify that ground as a cause for disbarment. The moral delinquencies must be such, however, as to unfit the accused for the proper dis- charge of the trust reposed in him, such as lack of common honesty and veracity in pro- fessional intercourse. State v. Mosher ( Iowa ) , 5-984. Suppression of fact of disbarment in anotlier state. — An attorney at law who had been disbarred in a sister state for fraud and deceit, and who within a short time therafter moved to the Indian Territory and was admitted to practice in the courts of that territory, and on such admission had himself enrolled in this court without disclosing such previous disbarment, is thereby guilty of practicing such fraud and deceit as to require his disbarment, when the same is properly brought to the notice of this court. In re Mosher (Okla.), 20-209. Solicitation of employment. — The Washington statute (L. 1903, p. 68) which provides that any attorney who seeks or ob- tains employment to prosecute or defend in any suit or case at law or in equity by means of personal solicitation of such employment for him, or who, by himself or another, seeks or obtains such employment by giving to the person from whom the employment is sought money or any other thing of value, shall be deemed guilty of barratry, and shall be dis- barred in addition to the other penalties prescribed thereby, is valid, and does not con- travene eithsr the Fourteenth Amendment to the Federal Constitution or article 1 of the state constitution. While the practice of law is a legel occupation in itself, it is not a natural right or a right guaranteed by the constitution, but rather a privilege granted by the state, which may be surrounded by whatever restrictions the legislature may in reason prescribe. State v. Rossman (Wash.) 17-625. (2) Conviction of crime. Conviction in another jurisdiction. — The North Carolina statute of 1907 (c. 941, § IJ relative to the disbarment of attor- neys, does not impose upon the court the duty or confer the power to disbar an attorney be- cause he has been convicted of a crime in the courts of another state of the United States. Matter of Ebbs (N. Car.), 17-592. The language of section 211 of the revisal disables the court from disbarring an at- torney because of his conviction of crime in another jurisdiction, in the exercise of its inherent power to deal with its attorneys. Matter of Ebbs (N. Car.), 17-592. Determination of guilt in disbar^ ment proceeding. — In a disbarment pro- ceeding under the statute of 1907, no ques- tion as to the attorney's guilt or innocence of the crime of which he has been convicted can be presented or determined. The statute is mandatory, and makes it the imperative duty of the court to disbar an attorney upon the production of the record showing his convic- tion. Matter of Ebbs (N. Car.), 17-592. (3) Wrongful retention of client's money. In general. .— An attorney who receives the purchase price of a tract of land, which he has sold for a client, and withholds there- from a certain amount, representing to his client that such amount is to be applied to the payment of arrears of taxes on the prop- erty sold, when in fact he has already exacted a like amount from the purchaser for the same purpose, and who, in the same trans- action, deceives his client with regard to a claim for damages made by the buyer of the property, and withholds from the purchase money, ostensibly on account of such claim, an amount larger than that which he after- wards pays in settlement thereof, is properly disbarred. Matter of Wilson (Kan.), 17-690'. Money not received in professional capacity. — In such a case it is no defense that the attorney was acting as a real estate agent and not as a lawyer. Whenever one who is in fact a lawyer accepts employment to act for some one else in a business transaction in the course of which he receives money be- longing to his employer, his ^vTongful reten- tion of the money is a suflScient ground for his disbarment, even though he may not have been called upon to give advice on legal ques- tions or to take part in litigation. Matter of Wilson (Kan.), 17-690. Conversion of client's money. — An attorney is guilty of misconduct justifying his_ removal under the Montana statute pro- viding for the removal of any attorney "who is guilty of any deceit, malpractice, crime, or 352 AKN. CAS. DIGEST, VOLS. 1-20. misdemeanor," where, without the knowledge of his client, he withdraws and appropriates to his own use money deposited in the court by the client as a tender in an action wherein he represents the client as attorney. In re Thresher (Mont.), 8-845. Where a defendant against whom judgment has been rendered by a justice of the peace gives his attorney a check payable to the jus- tice to be deposited in lieu of an undertaking on appeal, and the attorney, instead of tak- ing the appeal, forges or causes to be forged the indorsement of the justice on the check, and appropriates the proceeds of the cheek to his own use, he is guilty of misconduct jus- tifying his removal under the Montana stat- ute authorizing the removal of any attorney "who is guilty of any deceit, malpractice, crime, or misdemeanor," and it is immaterial whether his conduct is properly to be desig- nated as malpractice or as a crime. In re Thresher (Mont.), 8-845. (4) Insulting language or conduct toward court. Invective or scandalons innnendo. ^ Where an attorney indulges in invective or in scandalous innuendo that tends to degrade the court or to impair its respectability and usefulness, it is the duty of the court to take such steps as may appear to be necessary to preserve its dignity and good name, even to the expulsion of the offender from practicing before it. Pittsburgh, etc., R. Co. v. Mun- cie, etc., Traction Co. (Ind.), 9-165. Criticism of judicial rulings. — An attorney has a right to comment upon and criticise the rulings of a judicial officer in an action which has been finally determined, and can be disbarred for such comment and criti- cism, if at all, only when it is so base and vile as to establish clearly his bad character and his unfitness to remain a member of an honorable profession. State Board v. Hart (Minn.), 15-197. An attorney may not, however, insult the judicial officer by words written or spoken addressed to such officer personally because of the latter's official act, though in a matter finally ended; and if he does so, it may con- stitute a sufficient cause for his disbarment. State Board v. Hart (Minn.), 15-197. Personal letter impngning intelli- gence and integrity. — An attorney who writes a personal letter to the chief justice of the supreme court of the state, impugning both the intelligence and the integrity of the chief justice and his associates in the decision of appeals in which the attorney represented the defeated litigants, is guilty of professional misconduct, and may be suspended from prac- ticing in courts of the state. State Board v. Hart (Minn.), 15-197. Offensive personalities. — In a proceed- ing to disbar an attorney for using insulting language in a petition for rehearing, language examined and held to show that the attorney did not maintain the respect due to the court, that he indulged in offensive personalities, and that he attempted to intimidate the court into rendering a favorable decision. In n Kobinson (Wash.), 15-415. Apology for improper language. - An attorney who, upon being charged witl using insulting, contemptuous, and scandal ous language in a petition for rehearing, dis avows any intentional disrespect to the conri or any of its members and apologizes for hii conduct, will not be disbarred but will b( reprimanded or suspended. In re Robinsoi (Wash.), 15-415. d. The accusation. Statement of facts. — In disbarmeni proceedings under the Iowa statute the accusa tion need not state the facts upon which th( prosecution shall be founded. State v. Moshei (Iowa), 5-984. Requiring anstrer by counsel. _ Though the Iowa statute concerning disbar ment proceedings contemplates that the couri shall examine the accusation and pass upoi its sufficiency before ordering the accused t< answer, the statute is directory merely, ano an order which directs the drawing up oi an accusation and requires the accused b answer is without prejudice, especially wheT< the accused tests the sufficiency of the accusa tion by motion and demurrer and thereaftei answers. State v. Mosher (Iowa), 5-984. e. The hearing. Bight to bearing. — Where it is sough' to declare the forfeiture of an attorney's privi lege or franchise on the ground of his mis conduct, he is entitled to a fair hearing or ai opportunity to be heard, and to a fair de termination of the question at issue, in th( exercise of sound judicial discretion. In n Durant (Conn.), 10-539. Trial by jury. — The proceeding for dis barment of an attorney, prescribed by thi Washington statute (Bal. Code, §§ 4776 4777; P. C, § § 3198, 3199), is in the natur of a civil action, and the accused is not en titled to a trial by jury therein. State t Rossman (Wash.), 17-625. Reduction of evidence to -writing. - Where the evidence in disbarment proceed ings is taken down in shorthand, certified b; the judge and the reporter, filed with th clerk, and transcribed pursuant to an orde duly entered, and the transcript is also file with the clerk, there is a sufficient complianc with a statute requiring all the evidence t be reduced to writing, filed and preserve< State V. Mosher (Iowa), 5-984. Rigbt to be confronted by witnestei — In disbarment proceedings deposition against the accused may be read, as the pn ceeding is civil and not criminal in its ns ture, and the accused has no constitutions right to be confronted by witnesses againi him. State v. Mosher (Iowa), 5-984. In disbarment proceedings, depositioi against the accused are admissible in ev dence, as the proceeding is not a orimini prosecution and does not fall within tl class of cases wherein the accused has ft coi stitutional right to be confronted by the wi ATTOENEYS AT LAW. 353 neaaes against him. State ea rel. Kehoe v. McEae (Fla.), &-580. Opportunity to cross-esamine -wit- nesses. — In a proceeding to disbar an at- torney on the ground of his misconduct in inducing a woman to make a false statement to a client of his that she had been guilty of adultery with the client's husband, where it appears that such woman testified to that fact in a suit for support brought by the client against her husband, and that at the time of giving such testimony the attorney had full opportunity to cross-examine the witness in' his own interest, and that he availed himself of such opportunity, and it further appears that the witness has died since testifying in the suit for support, a transcript of her testimony may be admitted in evidence in disbarment proceedings, though the issues and the parties in the two pro- ceedings are different, and though the attor- ney cjaims that the cross-examination of the witness was not made in his behalf. In re Durant (Conn.), 10-539. Impeadunent of moral character of witness. — In a disbarment proceeding, where a deposition containing damaging state- ments against the attorney and given by a witness in another suit between different par- ties is admitted in evidence in connection with evidence of efforts on the part of the attorney to induce the deponent to retract or change his testimony, and the deposition is not of- fered or received as evidence of the truth of the facts therein stated, but solely for the purpose of showing the character of the evi- dence the attorney endeavored to suppress, it is not competent to ask the witnesses ques- tions designed to cast discredit upon the deposition, or designed to show that the de- ponent was a. burglar and that his moral character was bad. In re Durant (Conn.), 10-539. Attempt to intimidate witness. — In a proceeding to disbar an attorney on the groimd of his misconduct in inducing a de- tective to make false statements to a client of the attorney's, to the effect that her hus- band had been guilty of adultery, where it appears that in a suit by the client against her husband for support the detective gave a deposition testifying to the attorney's mis- conduct and his (the detective's) connection therewith, evidence that the attorney en- deavored to intimidate or corrupt the detec- tive into retracting the testimony he had given is admissible for the purpose of estab- lishing conduct on the part of the attorney tending to show a consciousness of guilt, and such deposition of the detective, if not of- fered or received as evidence of the truth of the facts therein stated, is admissible for the purpose of showing the character of the evidence which the attorney endeavored to suppress. In re Durant (Conn.), 10-539. Effect of Bvrorra denial lay counsel. — The fact that the accused in disbarment pro- ceedings makes a sworn denial of the accusa- tion does not entitle him to have the proceed- ings dismissed, leaving him to meet a prosecution for perjury, but merely raises an Vols. 1-20 — Ann. Cas. Digest. — 23. issue for the determination of the court. State V. Mosher (Iowa), 5-984. Sufficiency of evidence. — Evidence re- viewed in proceedings to revoke the license of an attorney at law and held to justify a judgment of revocation. State v. Mosher (Iowa), 5-984. f. Eeview of proceedings. Bight of appeal. — A disbarred attorney is entitled to have the proceedings which have resulted in his disbarment reviewed upon appeal, for some purpose at least; but his relation to the court and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the reviewing court will not set aside the action of the disbarring court. In re Durant (Conn.), 10-539. Trial de novo. —Disbarment proceedings are triable de novo on appeal. State v. Mosher (Iowa), 5-984. Conclusiveness of findings by trial court. — Where the evidence in a disbar- ment proceeding against an attorney is con- flicting, but there is evidence which, if believed, amply supports the charges against the accused, a finding by the trial court sus- taining such charges will not be disturbed on appeal. Matter of Wilson (Kan.), 17-690. g. Practicing after disbarment. What constitutes. — Any advice given to clients, or action taken for them, in mat- ters connected with the law is practicing law; and therefore it is practicing law to give advice as to the rights of a person com- mitted to the chain gang for failure to pay a fine, and to undertake to procure the ac- ceptance of the fine and the release of such person. In re Duncan (S. C), 18-657. Punishment. — Where a disbarred attor- ney is found guilty of practicing law by giv- ing advice to a client, the court, in iixing his punishment, will consider his disclaimer of any intended disobedience of the order of dis- barment. In re Duncan (S. C), 18-657. 3. Relation of Attobney and Client. a. Notice to attorney as notice to client. Knowledge acquired by an attorney that the grantee in a deed of land executed by a trustee is the trustee's wife, is attributed as notice to his principal, a subsequent mort- gagee of the same property. Scottish-Ameri- can Mortg. Co. V. Clowney ( S. Car. ) , 3-437. b. Authority of attorney. To prosecute proceedings for review. An attorney at law who is employed only to try a litigated issue in a trial court has no implied authority to appeal from or to sue out a writ of error to a judgment rendered against his client, and to bind his client to a contract to pay stenographer's fees for tran- scribing the testimony to be used in prosecut- ing such appeal or writ of error. Tobler v. Nfvitt (Colo.), 16-925. 354 AITN. CAS. DIGEST, VOLS. 1-20. To employ aisooiate oonnsel. — The mere fact of employment of an attorney by a client does not empower such attorney to contract with another attorney that the client shall pay the latter for his services as coun- sel. Bentley v. Fidelity, etc., Co. (N. J.), 15-1178. c. Right to become surety for client. Xionlslana statute. — The Louisiana statute forbidding any judicial or ministerial oflBcer of any of the courts of the state to go bail' for any prisoner or other person in any prosecution or criminal proceeding in their respective courts, or to become surety for the appearance of any prisoner or other person before their respective courts to answer any criminal charge, has no application to attorneys. State v. Babin (La.), 18-837. Effect of rule of court. — An attorney may go surety for his client in either a civil or a criminal case, notwithstanding a rule of court to the contrary. The qualification of sureties is a matter of statutory law, and a status cannot be changed by a rule of court. State v. Babin (La.), 18-837. d. Conveyance by client to attorney. Rebutting presumption of fraud. — The general rule that a party alleging and relying on the fraud of the other party as a ground of relief or defense takes on himself the burden of proof, and must clearly estab- lish every necessary element thereof, does not apply to a case arising out of dealings be- tween an attorney and his client; and there- fore where it appears that an attorney, in the course of transactions with his client as such, took a mortgage to himself from the client as fraudulent, the attorney has the burden of showing not only that he used no undue influence in procuring the mortgage, but also that he gave his client all the in- formation and advice that it would have been his duty to give if he had not been interested himself. Phipps v. Willis (Ore.), 18-119. Sufficiency of evidence to rebut pre- sumption of fraud. — In an action to can- cel a mortgage on the ground that it was pro- cured by the fraud and misrepresentation of the mortgagee, the plaintiff's attorney, evi- dence examined and held insufficient to show that the mortgage was for a valuable con- sideration and was not obtained by fraud. Phipps V. Willis (Ore.), 18-119. e. Summary jurisdiction to compel attorney to pay over client's money. Existence of relation. — Where suit is instituted to recover a money demand, and the fee of the attorney for the plaintiff is to be one-half of the recovery, which half is conveyed to him by his client, and such attor- ney employs another attorney to render ser- vices in obtaining a judgment in such suit and collecting the same, for which services the former agrees to pay the latter, who col- lects the judgment and refuses to pay the attorney employing Mm one-half of the col- lection, the attorney mailing the collection is not subject to be ruled by the attorney employing him, for his refusal on demand to pay the latter his fee of one-half of such col- lection, less the fee due the former for the services he has rendered. Haden v. Lovett (Ga.), 18-114. Where two persons employ an attorney to institute a suit for them for the collection of a debt due them, and the attorney brings the suit and makes the collection, and one of the plaintiffs in such suit files a petition alleging that one-half of the collection belongs to him, and asks for a rule against the attorney be- cause of his failure on demand to pay the petitioner such half, less one-half of the fee due such attorney for his services, it is error to dismiss the petition ou the ground " that plaintiff's remedy under the facts is not one by rule, but by action at law." Haden v. Lovett (Ga.), 18-114. f. Termination of relation. Right of client to discharge attorney. — It is a good cause for terminating a con- tract by which an attorney was employed so long as his services should be satisfactory, that the relation between the attorney and the managing oflBcer of the client (a corpora- tion) has become strained, and that each entertains feelings of distrust and ill will towards the other. Price V. Western Loan, etc., Co. (Utah), 19-589. 4. Liability op Attoestet to Client. Burden of proving negligence. — Where, in an action by an attorney against his clients on a promissory note given for legal services, the defendants admit signing the note with knowledge of what they were signing, the burden is upon them to prove by a preponderance of the evidence their plea that the plaintiff negligently and carelessly managed the business. Priest v. Dodsworth (111.), 14-340. Burden of proving damages. — In an action against an attorney for a wilful viola- tion of duty in settling a claim without au- thority, the damages recoverable are those shown to exist, and the burden of showing the amount of the damages suffered rests upon the plaintiff. Hence if the latter fails to prove that the claim was valid or worth more than the amount collected, he is not entitled to recover damages beyond such sum. Vooth V. McEachen (N. Y.), 2-601. 5. COMPEPrSATION OF Attoenets. a. Right to compensation. Necessity of employment. — The right of an attorney at law to demand payment for his services depends upon whether he was or was not employed. He cannot recover from one who did not employ him, however valuable the result of his services may have been to such person, and especially if the person was not even a party to the suit. For- man v. Sewerage, etc., Board (La.), 12-773. Necessity of express contract. '— In New Jersey the services of an attorney as" an ATTOENEYS AT LAW. 355 advocate, when such services are either re- quested or accepted by a client, are presumed to be gratuitous, unless there is an express contract to pay a specific amount for such services. Bcntley v. Fidelity, etc., Co. (N. J.), 15-1178. Forfeiture for soliciting employment. — An attorney who goes to the scene of a disaster and solicits persons having rights of action for injuries or death caused by such disaster to intrust him with the prosecution of their actions, is guilty of unprofessional conduct which bars his right to collect fees when such suits are compromised by the par- ties. IngersoU v. Coal Creek Coal Co. (Tenn.), 10-829. Compensation for services to receiver. — Compensation paid for services rendered to a receiver after the latter has taken pos- session of the assets of the defendant does not cover the services rendered by an attor- ney to the defendant both before and after the receiver's appointment. Trimble v. Kan- sas City, etc., E. Co. (Mo.), 1-363. Proof of value. — The fact that an attor- ney's services in foreclosing a mortgage are rendered in the presence of the court is evi- dence from which the court may find the value of such services, especially where the mortgage provided for an attorney's fee to the amount allowed. Larscheid v. Kittell { Wis. ) , 20-576. b. Contingent agreements. Validity in general. — If the doctrine of champerty was ever in force in Washing- ton as a part of the common law, it was repealed by a statute leaving the mode and measure of compensation of attorneys to the agreement of the parties. Smith v. Hogan (Wash.), 1-297. Contract for one-half of recovery. — A contract between attorney and client for the prosecution of a claim will not be de- clared void on the mere ground that it gives the attorney one-half of the recovery, unless it appears that it was induced by fraud or that in view of the nature of the claim the compensation provided for is so excessive as to evince a purpose on the part of the attor- ney to obtain an improper or undue advantage over his client. Morehouse v. Brooklyn Heights E. Co. (N. Y.), 7-377. Fairness a question of fact. — The question whether a contract between attorney and client which gives to the attorney for the prosecution of a claim one-half of the recovery is unconscionable, is one of fact de- pending upon the character of the claim and the amount of services to be rendered in prosecuting it to judgment. Morehouse v. Brooklyn Heights E. Co. (N. Y.), 7-377. Agreement to pay disbursements. — An agreement between attorney and client whereby the former is to pay the necessary court disbursements of the action and is to receive a percentage of the recovery as com- pensation, is legal. Smits v. Hogan (Wash.), 1-297. Stipulation prohibiting settlement by ellent. — A stipulation in a contract be- tween an attorney and his client prohibiting the client from making a settlement of his litigation in good faith without the consent of the attorney is void as against public policy. Matter of Snyder (N. Y.), 13-441. Where a contract employing an attorney to prosecute a claim for damages for per- sonal injuries resulting from negligence pro- vides that the client shall not settle or com- promise except with the consent of the attor- ney, the provision cannot deprive the tortfeasor of the right to compromise with his adversary, provided the compromise is made in good faith and without any attempt to defraud the attorney. Weller v. Jersey City, etc., St. E. Co. (N. J.), 6-442. Effect of invalid stipulation. — Where in a contract between an attorney and his client a stipulation fixing the value of the services at a certain percentage of the re- covery is connected with a stipulation that a settlement cannot be had without the con- sent of the attorneys, and the latter stipula- tion is invalid, both must fail, and in the event of a settlement by the client alone the attorney is not bound by the stipulated per- centage of the settlement, but may recover on the quantum meruit. Matter of Snyder (N. Y.), 13-441. Effect of compromise by parties. ^ Where a case in which the plaintiff has agreed to pay her attorney " a fee equal to fifty per cent, of any sum collected or recovered by suit, compromise, or otherwise," is compro- mised by the defendant's paying the plaintiff a certain sum, and agreeing to pay " the fee agreed upon " between the plaintiff and her attorney, the attorney is not entitled to an amount equal to that paid to the plaintiff, but only to one-half of that amount. Schmitz V. South Covington, etc., E. Co. (Ky.), 18-1114. c. Eetaining fees. Validity of promise to pay. — A re- taining fee from a client to his solicitor is a mere gratuity, and therefore a promise to pay such a fee is without consideration, and the solicitor has no right to deduct the amount from funds of the client that may come into the solicitor's hands. In re Solicitor (Can.), 19-488. d. Proof of value of services. Necessity of expert evidence. — Ex- pert evidence is admissible to prove the value of an attorney's services, but it is not neces- sary. The court or the jury may find the value from evidence showing the extent and nature of the services rendered. Spencer v. Collins (Cal.), 20-49. 6. Lien of Attoenets. a. Eight to lien. Constitutionality of statute creating. — The Missouri statute giving an attorney a lien upon his client's cause of action was enacted for the benefit of the honorable prac- ticing lawyers of the state, and it is not ren- 356 ANN. CAS. DIGEST, VOLS. 1-20. dered invalid by the fact that it may in some instances enable disreputable attorneys to commit unprofessional acts. O'Connor v. St. Louis Transit Co. (Mo.), 8-703. The Missouri statute giving an attorney a lien upon his client's cause of action is not unconstitutional as being class legislation. O'Connor v. St. Louis Transit Co. (Mo.), 8-703. The Missouri statute giving an attorney a lien upon his client's cause of action is not unconstitutional either as depriving the op- posite party to the client's action of his rights without due process of law, or as restricting or destroying the opposite party's right to contract and to effect a settlement of the action. O'Connor v. St. Louis Transit Co. (Mo.), 8-703. Statute not retroactive. — The Minne- sota statute giving an attorney a lien upon his client's cause of action from the time of the service of the summons in an action brought thereon, does not apply to actions brought prior to the time the statute went into effect. Northrup v. Hayward (Minn.), 12-341. Creation by contingent agreement. ^ A contract whereby a client agrees to pay and assign to his attorney a specified per- centage of such amount as may be recovered as damages for personal injuries sustained by the client is executory merely and gives to the attorney neither a legal nor an equit- able interest iii a cause of action either by way of assignment or lien. Weller v. Jersey City, etc., St. R. Co. (N. J.), 6-442. b. On what lien exists. Real property. — Under the Kansas stat- ute, an attorney may acquire a lien for his compensation upon money due his client from the adverse party in any action or proceeding in which the attorney is employed, but such lien does not extend to the land which is the subject-matter of the litigation. ■ Holmes V. Waymire (Kan.), 9-624. Money of executor or trustee. — An at- torney has a lien for his compensation for pro- fessional services and for his disbursements, upon money received by him on his client's behalf in the course of his employment, and this right of lien is not affected by the fact that the client is an executor or trustee and the services were rendered and money re- ceived on behalf of the estate. Burleigh V. Palmer (Neb.), 12-777. Judgment. — The Minnesota statute gives an attorney a lien upon a judgment procured as a result of his services to the extent of his agreed compensation from the time notice thereof is given the judgment debtor. North- rup V. Hayward (Minn.), 12-341. c. Enforcement of lien. Action at laiv. — Under the Missduri statute giving an attorney a lien upon his client's cause of action, an attorney may main- tain an independent action at law to recover the amount of his lien upon the failure of the opposing party to recognize the lien in making a settlement with the attorney's client; and such action may be brought be- fore a justice of the peace where the amount in controversy is within the justice's juris- diction. O'Connor v. St. Louis Transit Co. (Mo.), 8-703. Notice to judgment debtor, — Under the Minnesota statute giving an attorney a lien upon a judgment from the time notice thereof is given to the judgment debtor no special form of notice to the judgment debtor is required, and it is not necessary that the notice shall be given or served in any par- ticular way. Actual notice of the claim of the attorney, whether verbal or in writing, answers every purpose of the statute, and is sufficient to protect the rights of the attorney. Northrup v. Hayward (Minn.), 12-341. Execution on judgment. — The payment by the judgment debtor to the judgment creditor of a judgment upon which the at- torney has such a lien, with actual notice of the attorney's claim, is void as to the attorney to the extent of his lien, and the satisfaction of the judgment may be set aside and the judgment reinstated, to enable the attorney to proceed by execution to satisfy his claim. Northrup v. Hayward (Minn.), 12-341. Illegality of contract as defense. — In an action by an attorney to recover for services rendered his client in obtaining a verdict for damages against a railroad com- pany, and to enforce the plaintiff's lien against the company, where it appears that the company has paid damages to the client with notice of the attorney's lien, but it ia found as a fact that the payment has been made honestly, the company may set up a defense that the contract for the attorney's compensation is unconscionable, illegal and void. Morehouse v. Brooklyn Heights R. Co. (N. Y.), 7-377. Admissibility of evidence. — Where an attorney has filed a lien for professional ser- vices rendered in the case, and his client agrees to pay a certain amount in considera- tion of the release of the lien, and suit is brought upon such agreement, the question of the amount of services performed by the attorney or the terms of the original employ- ment are immaterial, and evidence respecting these matters was properly rejected by the court. Burleigh v. Palmer (Neb.), 12-777. d. Settlement between parties. Right of client to settle. — The party to an action may without knowledge or con- sent of his attorney stipulate with the oppos- ing attorney to dismiss the action without costs, and the court will enforce such stipu- lation to the extent that no costs may be taxed on dismissal in favor of the stipulating party. Paulson v. Lyson (N. Dak.), 1-245. 7. Law Partnerships. a. Power of member to bind firm. In general. — The act of one partner in a firm of lawyers is the act of all, if it is with- in the scope of the firm's business. Alley v. Bowen-Merrill Co. (Ark.), 6-127. ATTORNEYS AT LAW — AUTOMATIC OAR COUPLERS. 357 Furobase of books. — A partnership of practicing lawyers is bound by the act of one of its members in buying such law books as may be reasonably necessary for carrying on the partnership business. Alley v. Bowen- Merrill Co. (Ark.), 6-127. b. Death of member. Effect on contract for services. ^ Where a contract is made with an attorney and he alone is to render the services or his skill exclusively is depended upon, his death terminates the contract whether he be alone or a member of a firm. Clifton v. Clark (Miss.), 1-396. Where a contract is made with a firm of attorneys, and the consummation thereof does not depend upon the skill of either member, the death of one member does not terminate the contract, and the client may settle for services previously rendered and abrogate the contract; but if the client permits a sur- viving partner to complete the contract, he will be liable for the full amount of the com- pensation originally agreed upon, of which the estate of the deceased partner will be entitled to recover the proper proportion. Clifton V. Clark (Miss.), 1-396. When one member of a firm of general practitioners dies, a surviving partner must hold himself in readiness to complete all the executory contracts of the firm, and he can- not enter into a new contract with a client for the performance of the same services and defeat the claim of the estate of the deceased partner for the compensation under the original contract. Clifton v. Clark (Miss.), 1-396. 8. Contract to PBoctmE Business fob Attoenet. Fnlilic policy. — A contract between a layman and a lawyer, by which the former undertakes and agrees, in consideration of a division of the fees received by the latter, to hunt up and bring to the attorney persons having causes of action against railroad com- panies for personal injuries, is contrary to public policy and void. Holland v. Sheehan (Minn.), 17-687. Parties in pari delicto. — Such a con- tract is unenforceable, the parties thereto being in pari delicto. Holland v. Sheehan (Minn.), 17-687. 9. Designation of Attobnbt to Defend ob pROSECtlTE. \ Power to appoint attorney for injured de- fendant, see CoiJETS, 2 a. Compensation for defense. — In In- diana the professional services of an attorney cannot be demanded without just compensa- tion, and, consequently, an attorney cannot be compelled under penalty of disbarment or being in contempt, to render gratuitous ser- vices for a pauper defendant in a criminal ease. Board of Commissioners v. McGregor (Ind.), 17-333. Compensation for prosecution. — An attorney is in nowise bound to accept an as- signment by the court to aid in the prosecution of a criminal case, but may, at his pleasure, accept or decline such assignment. If he accepts, he is bound to know the limitations on the power of the court to make the ap- pointment and to allow compensation for his services, and if such authority is exceeded he cannot complain that his services have been required without compensation in vio- lation of the constitution. Board of Commis- sioners V. McGregor (Ind.), 17-333. AUCTIONS AND AUCTIONEERS. Contracts to suppress bidding, see Contracts, 4 f . Loan of funds by auction, see Bitildinq and Loan Associations, 3. Printed advertisement of sale as memorandum required by statute of frauds, see Frauds, Statute of, 3 e (3). Tax sales, see Taxation, 10. Effect of advertisement. — An an- nouncement, by advertisement or otherwise, that a person will sell his property at public auction to the highest bidder is a mere declara- tion of intention to hold an auction at which bids will be received. It is not an offer to sell which can be transferred into a contract binding upon the owner of the property by mere attendance and bidding at the sale. Anderson v. Wisconsin Cent. R. Co. (Minn.), 16-379. Effect of bid before acceptance. — A bid at auction is an offer to purchase which is accepted when the hammer falls, and until the acceptance of the bid is signified in some manner neither party assumes any legal obli- gation to the other. Anderson v. Wisconsin Cent. R. Co. (Minn.), 16-379. Withdrawal of bid or offer to sell. — At any time before the highest bid is ac- cepted, the bidder may withdraw his offer to purchase or the auctioneer his offer to sell. Anderson v. Wisconsin Cent. R. Co. (Minn.), 16-379. AUDIT. Claims against state, see States, 5. AUSTRALIAN BALLOT. See Elections. AUTREFOIS ACQUIT. See Criminal Law, 5. AUTOMATIC CAR COUPLERS. Statutory requirement of, see Master and Servant, 3 e (2). 358 ANN. CAS. DIGEST, VOLS. 1-20. AUTOMOBILES. See MoTOE Vehicles. AUXILIARY COURTS. Compelling production of evidence, see Depo- sitions, 4 e. AVERAGE. See Ships and Shipping, 4. AVOIDANCE. Avoidance of contract, see Conteacts, 6. Confession and avoidance, see Pleading, 4 a (5). AVULSION. Change of channel of stream as affecting boun- daries, see Waters and Watercoubses, 3 b (2). AWARD. See Aebitbation and Awaed. Amount of award for salvage services, see Salvage. Letting municipal contracts, see Municipal Coepoeations, 7 e. Suppression of award at exposition, see Equity, 2 f. AWAY-GOING CROPS. See Chops, 3. AWNINGS. See Stbeets and Highways. BAGGAGE. Duties and liabilities of carrier in respect to baggage, see Caeeibes, 6 i. Liability of innkeeper for baggage of guest, see Inns, Boaeding Houses and Apabt- MENTS, 5. BAIL. 1. In General, 358. 2. Power to Take Bail, 358. 3. Eight to Give Bail, 358. 4. consideeations goveeninq granting OP Bail, 359. 5. Deposit in Lieu of Bail, 359. 6. The Undeetaking, 359. 7. Eights and Liability of Bail, 359. 8. exonbbation of bail, 359. 9. Foepeituee op Bail, 359. 10. CoNTEAOT to Indemnify Bail, 360. Action on bail bond as civil proceeding, see Actions. Prohibition of requirement of excessive bail, see Constitutional Law, 1. Eelease on bail, see Habeas Coepus, 6 b. Eight of surety in bail bond to set aside fraudulent conveyance by principal, see Fraudulent Conveyances, 4 a. Eight to bail in extradition proceedings, see ■Extradition, 5. 1. In General. Federal statute constmed. — As used in the provision of the federal statute that the proceedings for the admission of offend- ers to bail are to be agreeable to the "mode of process " in the state wherein the bond or recognizance is taken, the words " mode of process" mean "mode of proceedings;" and the provision discloses an intention on the part of Congress to assimilate all proceedings for holding accused persons to answer before a court of the United States to proceedings had for similar purposes by the laws of the state wherein, the federal proceedings are had. United States v. Zarafonitis (U. S.), 10-290. 2. Power to Take Bail. 'Who may take under Oklahoma stat- utes. — Under the provisions of tne Okla- homa statutes bail is permitted to be taken only by the persons or courts authorized by law to arrest and imprison offenders. Terri- tory ex rel. Thacker v Wood'ring (Okla.), 6-950. Judges of superior courts. — Judges of superior courts of criminal jurisdiction, in- cluding the superior court of Quebec, have power to admit to bail persons accused of any crime whatsoever. King v. Fortier (Quebec), 1-10. Clerk of court. — In the absence of ex- press statutory authorization, the clerk of a district court of Oklahoma is not authorized to take bail in a criminal case, and hence any bond taken by him in such case is void. Territory ex rel. Thacker v. Woodring (Okla.), 6-950. 3. Eight to Give Bail. Distinction between felonies and misdemeanors. — As to indictable offenses which were formerly felonies, superior court judges may admit or refuse an application for bail within their discretion, while as to of- fenses which were formerly misdemeanors the accused is entitled to bail as a matter of right. King v. Fortier (Quebec), 1-10. Fending proceedings for revienr. — Where a person who was indicted for the crime of rape was found guilty with a recommen- dation to mercy, and was sentenced to the penitentiary for twenty years, and thereupon, after a refusal of a new trial, filed a bill of exceptions bringing the case to the supreme court of Georgia, he was not entitled as a matter of right to demand that he should be admitted to bail; but whether bail should be allowed him or not was a matter within the BAIL. 359 sound discretion of the presiding judge. Van- derford v. Brand (Ga.), 9-617. 4. CONSIDEBATIONS GOVEBNING GBANTINQ OF Bail. Doubt as to guilt of aoonsed. — In exercising discretion as to admission to bail, an application should be granted where a seri- ous doubt exists as to the guilt of the ac- cused, otherwise the application should be refused. King v. Fortier (Quebec), 1-10. Application not opposed. — In ad- mitting the accused to bail, a court may con- sider the fact that neither the public prose- cutor nor the private counsel opposes the application. Eling v. Fortier (Quebec), 1-10. 5. Deposit in LiEicr of Bail. Authority of justice to accept, — A justice of the peace has no authority to accept money in lieu of the bail required by the Nebraska statute, and in case he does so, his bondsmen are not liable for his failure prop- erly to account for the same. Snyder v. Gross (Neb.), 5-152. 6. The Undeetakinq. Effect of failure to comply trith stat- ute. — A bail bond which is void under a statute for want of authority to execute it, cannot be enforced as a common-law obliga- tion. Territory ex rel. Thacker v. Woodring (Okla.),. 6-950. Description of offense. — Under the federal statute providing that proceedings for fhe admission of defendants to bail are to be agreeable to the usual mode of process in the state wherein the bond or recognizance is taken, and the Texas statute providing that if a defendant is charged with an offense that is a misdemeanor the bond must " state that he is charged with a misdemeanor," a bond taken by a federal court sitting in the state of Texas sufficiently describes the offense where it describes it as " the offense of con- cealing property from his trustee in bank- ruptcy belonging to his creditors in violation of the bankruptcy act of the Revised Statutes of the United States," though it does not expressly designate the offense as a mis- demeanor and does not follow the exact language of the statute defining the offense. United States v. Zarafonitis (U. S.), 10-290. The purpose of describing in a recognizance or bail bond the offense with which the prin- cipal is charged is to identify the case and to inform the principal and sureties of the obligations to be assumed. United States v. Zarafonitis (U. S.), 10^290. 7. Rights and Liability of Bail. Right to arrest and deliver principal. — The rule stated as to the right of the sure- ties on a criminal bail bond to arrest and deliver the principal to the custody of the law after his discharge therefrom. State v. Seheneck (N. Car.), 3-928. Liability under federal statute. — Under the laws of the United States, a bail bond given in a criminal case is a. contract between the sureties and the government that if the latter will release the principal from custody the sureties will undertake that he shall personally appear at a specified time and place to answer. If the condition of the bond is broken by the failure of the principal to appear, the sureties become absolute debtors of the United States for the amount of the penalty. United States v. Zarafonitis (U. S.), 10-290. When liability terminates. — The sureties on a criminal bail bond held not to be exonerated by the appearance and con- viction of the principal who fails to appear for the purpose of submitting to the judgment. State V. Schenck (N. Car.), 3-928. A bail bond in a criminal case, requiring the principal to " appear and answer the information " and " not depart the court with- out leave," is not susceptible of the construc- tion that it requires the principal to abide the judgment and sentence of the court, and the appearance of the principal before the court and his entering a plea of guilty to the offense charged in the information, there- by putting himself in the power and control of the court, satisfies the conditions of the bond and discharges the- liability of the sure- ties. State V. Charles (Mo.), 13-565. If the term at which a person accused of crime is recognized to appear adjourns with- out his default having been entered of record, recognizance cannot thereafter be forfeited, and the recognizors will be discharged from liability thereunder. State v. Dorr ( W. Va. ) , 8-1016. 8. Exoneration of Bail. Enlistment of principal in navy. The sureties on a recognizance given in a criminal prosecution are not excused from surrendering their principal by the fact that he has enlisted in the United States navy without their consent. Lamphire v. State (N. H.), 6-615. 9. FOEFEITDEE OF BAIL. Entry of default as condition prece- dent. — A recognizance given in a criminal proceeding, conditioned that the accused will appear before a circuit court on the first day of a certain term thereof and that he will not depart thence without leave of the court, can be forfeited only by calling the accused upon the recognizance at some time during the term, and, if he fails to appear, by enter- ing his default of record. State v. Dorr (W. Va.), 8-1016. In a proceeding by scire facias upon a recognizance given in a criminal proceeding, oyer of the recognizance and of the record upon which it is founded may be demanded State V. Dorr (W. Va.), 8-1016. Bemission of penalty. — An application for a remission of the penalty for which judg- ment is rendered on a forfeited recognizance made under the federal statute (Rev St 5 1020, 1 Fed. St. Ann. 623), which giVes the 360 ANN. CAS. DIGEST, VOLS. 1-20. court power to remit the whole or any part of such penalty " when it appears to the court that there was no wilful default of the party," is not a motion to vacate the judgment, with- in the rule of the federal courts that a motion to vacate a judgment must be made before the expiration of the term at which the judg- ment is entered. U. S. v. Jenkins (U. S.), 20-1255. 10. CONTBACT TO INDEMNIFY BAIL. Validity. — A bond of indemnity given by a person under charge of felony to indemnify his bail in a recognizance for his appearance to answer the charge is not void aa against public policy. Carr v. Davis (W. Va.), 16-1031. BAILMEITTS. 1. In Genebal, 2. Liability of Bailee fob Loss, 3. Liability of Bailee fob Conversion. 4. Action by Bailob fob Injuby to Pbopeety, 5. Action by Bailee fob Injuby to Pbopebty. ■ 6. Estoppel to Deny Bailob's Title. See LivEBY Keepebs; Wabbhouses, 1; Pledge and Collateral Secubity. Right of bailee to sue for conversion, see Tboveb and Convebsion, 3. Injuries by animals to bailee thereof, see Animals, 2 f. Liability of innkeeper for effects of guest, see Inns, Boaedinq HorsEi and Apabt- MENTS, 5. 1. In GtENEEAl. Wliat eonstitutes bailment for hire. — A bailment is for hire, although no direct hire is paid therefor, where it is a necessary incident of a business in which the bailee makes a profit. Sulpho-Saline Bath Co. v. Allen (Neb.), 1-21. Distinction lietireen bailment and sale. — The distinction between a, bailment and a sale is that in the former the thing delivered or the proceeds after sale must be returned, whereas in the latter there is no obligation to return, but there is an agree- ment, express or implied, to pay money or its equivalent for the thing delivered. B. F. Sturtevant Co. V. Dugan (Md.), 14-675. Bailment for sale. — Where goods are consigned with the understanding that the consignees shall pay the freight on the con- signment, shall not sell the goods for less than the invoice price, shall retain all amounts in excess of such price, and shall guarantee the payment of the purchase price by the purchasers, the consignees not being required to remit the amounts due within a specified time, the transaction is not a sale, but a bailment for sale. B. F. Sturtevant Co. v Dugan (Md.), 14-675. 2. Liability of Bailee fob Loss. Presumption of negligence. — The burden of proof is upon the bailee for hire to show that property intrusted to his care was lost without his negligence. Sulpho- Saline Bate Co. v. Allen (Neb.), 1-21. Iioss by burglary. — The delivery of jewelry and coins to the cashier of a bank for deposit in the vault of the bank, no com- pensation being paid for the service or con- venience, constitutes a case of gratuitous bailment and the bank is not liable for loss of the property by burglary. Gerrish v. Mus- kegon Savings Bank (Mich.), 4-1083. Iiiability as Insurer. — The bailee of a horse under a special contract to return the horse in good condition or to pay its value is an insurer, and if the horse dies in the bailee's possession without his fault he is liable for its value. Grady v. Schweinler (N. Dak.), 15-161. In an action on such contract it is un- necessary to allege or prove negligence on the part of the bailee. It is sufficient if the contract and the bailee's refusal to comply therewith after demand are averred and proved. Grady v. Schweinler (N. Dak.), 15-161. Parol evidence of agreement. — If a warehouse receipt given by a bailee for goods stored specifies no particular place of stor- age, evidence is admissible to show a prior parol agreement which does so specify. Mc- Curdy v. Wallblom Furniture, etc., Co. (Minn.), 3-468. 3. Liability of BaiAe foe Convebsion. Conversion folloired by loss. — Where goods are stored in a warehouse specifically agreed upon and are removed therefrom to another place by the bailee without notice to or knowledge of the bailor and are destroyed by fire, the bailee is responsible to the bailor for the market value in an action of con- version or in the nature of a conversion. McCurdy v. Wallblom Furniture, etc., Co. (Minn.), 3-468. Agreement to store in particular place. — The facts that the parties to an agreement contract with reference to storage at a particular place and that the goods are there delivered by the bailor and stored by the bailee, show an agreement to store at such place. McCurdy v. Wallblom Furniture, etc., Co. (Minn.), 3-468. Conversion of borse and carriage. — A person who hires a horse and carriage for the stated purpose of driving to a certain place, but loans them to another to drive to a different place, is liable for an injury to the property while it is in the possession of the latter, although the latter is guilty of no negligence in handling it, and the one to whom the property is loaned is similarly liable although free from negligence, provided he knows the property is being used in viola- tion of the contract of hiring. Palmer v. Mayo (Conn.), 12-691. TTnauthorlzed use of photographs. — A person to whom photographs are loaned BAKEKIES — BANKEUPTCY. 361 for a particular purpose has no right to use them for any other purpose, in the absence of authority, express or implied, given him by the lender. Klug v. Sheriffs (Wis.), 9-1013. Measure of damages. — The measure of damages for the unauthorized use of the property of another by a bailee thereof is not the value that may be produced by the labor and investment of the bailee, combined with such use of the property, but is the value of the use itself and any damage that may be done to the property in so using it; or, if the use amounts to a conversion, then the measure of damages will be the value of the property. State v. State Journal Co. (Neb.), 13-254. 4. Action by Bailoe fob Injuby to Peopebty. Negligence of bailee as defense. — The negligence of a bailee for hire is not im- putable to the bailor, and therefore the right of a livery stable keeper to (Recover for in- juries to a horse while it was being driven by a customer is not affected by the fact that the negligence of the customer contributed to the injury. Gibson v. Bessemer, etc., E. Co. (Pa.), 18-535. 5. Action by Bailee fob Injtjby to Peopebty. Bight to sue for value. — A bailee of property having an interest therein under ex- press contract may maintain an action to recover the value thereof against one through whose negligence or failure of duty it is lost. Union Pacific E. Co. v. Meyer (Neb.), 14-634. 6. Estoppel to Deny Bailob's Title. A bailee is estopped to deny the bailor's title by asserting title in himself to the sub- ject of the bailment acquired by purchase from a third person. Jensen v. Eagle Ore Co. (Colo.), 19-519. BAKERIES. Statutory regulation of hours of labor in bakeries, see Labob Laws, 1 a. BAIiANCE. Conclusiveness of balance shown by bank pass book, see Banks and Banking, 5 b ( 1 ) . Eecovery of balance on account, see Accounts and Accodwting. BAZ.LOTS. See Elections. BANKRUPTCY. 1. CowsTEUCTioN OP Bankeuptcy Act, 361. 2. Who Liable to Bankeuptcy, 362. 3. What Constitutes Insolvency, 362. 4. Peovable Claims, 363. 5. JuBiSDicTiON of Bankeuptcy Coubbt, 363. 6. Examination op Bankeupt, 363. 7. Mattees Tbiable by Juey, 383. 8. Contempt Pbooeedings against Bankbupt, 363. 9. Debts Affected by Disghaeqe, 363. 10. Voidable Teanseebs and Peefee- ENCES BY Bankbupt, 365. 11. Assets op Bankbupt, 366. 12. Title to Peopebty of Bankbupt, 367. 13. PovTEBS and Duties of Tbustees, 368. 14. Composition, 368. 15. Deceee op Disohaege, 368. 16. Eevival op Debts, 368. 17. Ancbllaby Jubisdiction of Bahk- buptcy coubt, 368. 18. Appeals in Bankbuptcy, 369. See Insolvency. Appeal in bankruptcy proceedings, see Appeal AND Ebboe, 4 c. Attachment of property in custody of bank- ruptcy court, see Attachment, 4. Discharge of corporation as affecting liability of stockholders for corporate debts, see COEPOBATIONS, 8 g (3). Effect of bankruptcy of partner as ground for quashing attachment against firm prop- erty, see Attachment, 6 c. Effect of bankruptcy of purchaser of good will, see Good Will. Effect of bankruptcy on lien of execution, see Shebipps and Constables, 2. Effect on garnishment of bankruptcy of prin- cipal defendant, see Gabnishment, 3 a. Effect of mortgage given for antecedent debt, see MOETGAGES, 5. Husband's bankruptcy as barring right to dower, see DowEE, 2 g. Eecovery by trustee of property fraudulently transferred, see Fraudulent Convey- ances, 4. Title of trustee to shares of stock held by bankrupt, see Cobpobations, 8 b (II). I. CONSTBUCTION OP BANKEUPTCY ACT. Poxrer of state conrts to oonstrne. — While the construction of the bankruptcy act finally rests with the federal courts, and at last with the supreme court of the United States, and the construction adopted by the latter court is binding upon the state courts, still, where a particular provision of the act does not appear to have been finally con- strued by the federal supreme court, it is the duty of a state court to adhere to the rule laid down in its own prior decisions on the subject, in accordance with the rule of stare decisis. Stuart 1). Farmers Bank (Wis.), 16-821. Reqnirement of uniformity. — The re- quirement that a bankruptcy law shall be uniform has no bearing on the right of dower. That is a matter definable exclusively by the law of the state where the land lies. Thomas V. Woods (U. S.), 19-1080. 362 AN'N. CAS. DIGEST, VOLS. 1-20. 2. Who Liable to BAiresrrPTCT. Persons engaged prinoipally in farm- ing. — A person who, for a number of years prior to the institution of involuntary bank- ruptcy proceedings against him, has occupied a large farm of his own, and at the same time leased farming lands belonging to other persons, the whole amounting to about 1,700 acres of improved land, and who has devoted such land to cultivation and grazing, having and using thereon about twenty horses and an equipment of farming tools, wagons and ma- chinery in quantity corresponding to his operations, and who has employed from seven to fifteen men, and supervised and controlled all the operations of raising the ordinary crops of agriculture, and sold all of the crops so raised, excepting such portions thereof as were necessary for the maintenance of his live stock, of which he kept a large amount, and who has built silos on his farm and used them for storing and preserving forage raised thereon to be fed to his cows and other stock, and who has sometimes bought stock from others and fattened the same on produce of the farm and then sold it, is " a person engaged chiefly in farming or the til- lage of the soil," within the meaning of the bankruptcy act, and, therefore, not liable to involuntary bankruptcy proceedings. Gregg V. Mitchell (U. S.), 16-510. Such a person as above described is none the less a farmer, within the meaning of the bankruptcy act, because he also buys milk from other parties and sells the same. While a person whose principal business is that of buying and selling milk, or its prod- ucts, may be regarded as a dairyman, and, as such, subject to involuntary bankruptcy proceedings, it is otherwise with regard to a person whose principal business is that of farming, and who carries on a dairy simply as one of the departments of his farm. Gregg V. Mitchell (U. S.), 16-510. Mannfactnring corporations. — ' A cor- poration which .is principally engaged in building concrete arches and bridges and dressing stone is a manufacturing corpora- tion, and may be adjudged a bankrupt under section 45 of the bankruptcy law. In re First National Bank (U. S.), 11-355. The issue as to whether a corporation is subject to adjudication as a bankrupt is not jurisdictional, and is therefore concluded by the adjudication. In re First National Bank (U. S.), 11-355. There is no abuse of discretion in a denial by a bankruptcy court of a motion by cred- itors to vacate the adjudication in bank- ruptcy of a corporation and to permit them to answer and litigate the question whether the corporation is principally engaged in such a pursuit that it is subject to be ad- judicated a bankrupt where the motion is first made seven weeks after the petition was filed and receivers were appointed, and five weeks after the adjudication, where the cred- itors were aware of the filing of the petition within forty-eight hours thereafter, and the administration of the estate had proceeded without objection meanwhile. In re First National Bank (U. S.), 11-355. Petition against corporation. — A pe- tition for adjudication of involuntary bank- ruptcy alleging that the bankrupt is a, cor- poration " engaged in the business of manu- facturing concrete arches and bridges, man- ufacturing and dressing stone and selling the same, and railroad and ditch contracting," though not containing a complete statement that the corporation is principally engaged in a manufacturing pursuit, and therefore de- murrable and amendable before adjudication, states that fact substantially and is invul- nerable after adjudication. In re First Na- tional Bank (U. S.), 11-355. Wage earners. — A person who draws a salary of $900 a year as officer of a corpora- tion is not a wage-earner, within the bank- ruptcy act (Act July 1, 1898, c. 541, § 1, subd. 27, 30 St. L. 547; 1 Fed. St. Ann. 546) defining a wage-earner as an individual who works for wages, salary, or hire at a compen- sation not exceeding $1,500 a year, where he owns two-thirds of the stock of the corpora- tion and drew more than $2,000 from the cor- poration during the year preceding the insti- tution of the bankruptcy proceeding against him, and is also in the business of buying and selling real estate, owning $90,000 worth of property outside the corporation. Carpenter V. Cudd (U. S.), 20-977. 3. What Constitutes Insolvency. General rule stated. — A person 18 deemed to be insolvent within the provisions of the national bankruptcy act whenever the aggregate of his property, exclusive of any property which he may have conveyed, trans- ferred, concealed, or removed, or permitted to be concealed or removed, with intent to de- fraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts. Plymouth Cordage Co. V. Smith (Okla.), 11-445. Meaning of " fair valuation." — An instruction which charges the jury that " a fair valuation of the notes and accounts is the net sum that in your judgment, from all the evidence before you, could have been, with reasonable diligence, realized from the col- lection of such notes and accounts, within a reasonable time after Oct. 31, 1901, and not the amounts as shown by their face, unless their face value was in fact their fair value," is a correct rule by which to determine the fair valuation of this class of personal prop- erty. Plymouth Cordage Co. v. Smith ( Okla. ) , 11-445. IVhat property included in deter- mining solvency. — In a contested proceed- ing in involuntary bankruptcy, property exempt from execution should be included in determining the issue of the solvency of the respondent. Plymouth Cordage Co. v. Smith (Okla.), 11-445. Wben partnership is insolvent. — Under the national bankruptcy act of 1898 a partnership is insolvent if the partnership property is insufficient to pay the partner- BANKEUPTOY. 363 ship debts, because it is defined as a person by that act [section 1, (19')], and because any person is insolvent under that act whose property is insuflScient to pay his debts [sec- tion 1 (15)], and the only property a part- nership has or can convey or apply to the payment of its debts is partnership property, and the only debts it owes are the partner- ship debts. In re Bertenshaw (U. S.), 13-986. Under the bankruptcy act of 1867 and the Massachusetts insolvency law of 1838, a part- nership was an aggregation of partners and the insolvency or bankruptcy of the partners conditioned the bankruptcy of the partner- ship. This is not so under the national bankruptcy act of 1898, and therefore many of the rules of law applicable under the former acts do not obtain under the latter. In re Bertenshaw (U. S.), 13-986. When corporation is insolvent. — A corporation is to be deemed insolvent within the meaning of the New Jersey cor- poration act if it is unable to meet pecuniary liabilities as they mature, by means of either available assets or an honest use of credit. Empire State Trust Co. v. Trustees, etc. (N. J.), 3-393. 4. Pbovable Claims. What section of statute controlling. — In determining what claims are provable against a bankrupt under the national bank- ruptcy act, the section of the statute devoted especially to the subject must control, though there is a want of harmony between that sec- tion and the section regarding the effect of a discharge, and the latter section contains an amendment passed after the passage of the section specifying the claims provable. Brown v. United Button Co. (U. S.), 9-445. ITnliquidated claim for tort. — Under the national bankruptcy act, a claim for un- liquidated damages, resulting from an injury to the property of another and not connected with or growing out of any contractual re- lation, is not provable in bankruptcy. Brown V. United Button Co. (U. S.), 9-445. 5. JUEISDICTION OF BANKRUPTCY COTJBT. Property in another district. — The filing of a petition in bankruptcy gives the court jurisdiction of all the property of the bankrupt wherever situated, and on the ad- judication the court may determine all liens and interests affecting real property whether in the district or elsewhere. Thomas v. Woods (U. S.), 19-1080. 6. Examination of Bankrupt. Under section 2\a of the bankruptcy act (1 Fed. St. Ann. 587) authorizing the court to order the examination of a bankrupt " whose estate is in process of administra- tion," the court has no power to make such an order before an adjudication of bank- ruptcy. Skubinsky V. Bodek (U. S.), 19-1035. 7. Matters Triable by Jury. Under the provisions of the bankruptcy act (Aet July 1, 1898, c. 541, § 19, subd. a, 30 St. L. 551; 1 Fed. St. Ann. 586) that a per- son against whom an involuntary petition has been filed shall be entitled to a jury trial on the filing of the written application therefor at or before the time within which an answer may be filed, an alleged bankrupt has no right to a jury trial unless he makes seasonable application therefor. Carpenter v. Cudd (U. S.), 20-977. The bankruptcy act (Act July 1, 1898, c. 541, § 18, subd. d. 30 St. L. 551; 1 Fed. St. Ann. 584) entitled an involuntary bank- rupt to a jury trial as a matter of right only in respect to his insolvency and any act of bankruptcy alleged against him. As to any other issue of fact involved, such as whether the bankrupt is a wage-earner, the court may in its discretion submit it to a jury, but the finding of the jury thereon is only advisory. Carpenter v. Cudd (U. S.), 20-977. 8. Contempt Proceedings against Bankrupt. Where a bankrupt has been adjudged, after repeated hearing, to have in his possession a sum of money received from a particular source, which he has not turned over to his trustee, and he is ordered to turn it over, which order he neither obeys nor seeks to have reviewed, a sufficient prima facie case is made to warrant his commitment for con- tempt, unless he gives an adequate explana- tion of what has become of the money. In re Stavrahn ( U. S. ) , 20-888. The petition of a trustee in bankruptcy, asking that the bankrupt be adjudged in con- tempt for failing to obey an order to pay over money or to turn over property, is not re- quired to allege aflBrmatively that he was able to comply with the order; but when the record and moving papers show that the bankrupt has b'een adjudged, after a full hearing, to have concealed specific property, and has been ordered to turn it over, sufficient is charged to put him on his defense. In re Stavrahn (U. S.), 20-888. 9. Debts Affected by Discharge. In general. — Under the national bank- ruptcy act a discharge in bankruptcy releases the bankrupt from all debts and claims which are made provable against his estate and which existed on the day the petition was filed, except such debts as are excepted by the act from a discharge in bankruptcy. Euhl-Koblegard Co. v. Gillespie (W. Va.), 11-929. The effect of a discharge in bankruptcy is to extinguish a pre-existing debt and not merely to bar the remedy thereof. Needham V. Matthewson (Kan.), 19-146. Debt not scheduled in time. — Under the national bankruptcy act, if a debt is not duly scheduled in time for proof and allow- ance, and the creditor has no notice or actual knowledge of the proceeding, he is not af- fected by the discharge. Custard v. Wigder- son (Wis.), 10-740. Debt not sufficiently scheduled. — Under the strict rule which prevails respect- ing the scheduling of debts of a bankrupt as 364 ANN. CAS. DIGEST, VOLS. 1-20. required by the national bankruptcy act, a debt due to "A. Custard" is not siiififieiently scheduled by the appearance of the name "A. Custard" in the schedule. Custard v. Wig- derson (Wis.), 10-740. Claims for alimony. — A claim for past due alimony, including an allowance for the support of minor children, is not a provable debt from which the husband is released by a discharge in bankruptcy. Wetmore v. Markoe (U. S.), 2-265. A discharge in bankruptcy does not satisfy a money decree for alimony rendered in a proceeding for divorce and alimony. Lemert V. Lemert (Ohio), 2-914. An amendment to the bankruptcy act adopted in 1903 excepting from the operation of a discharge a decree for alimony or for support of the wife and children is not a legislative recognition of the fact that prior to the amendment judgments for alimony would be discharged. Wetmore v. Markoe (U. S.), 2-265. Liability of surety on bond. — A surety on an injunction bond, given in a suit brought to restrain the enforcement of a judgment, is not released from liability thereon by the discharge of his principal in bankruptcy. Stull v. Beddeo (Neb.), 15-950. The discharge in bankruptcy of a surety on an administrator's bond is a bar to an action against him to recover for a breach of the bond where such breach was committed and the administrator died prior to the filing of a petition in bankruptcy. Harmon v. McDonald (Mass.), 3-64. Assignment of unearned irages. — A duly recorded assignment of wages to be earned in the future in an existing employ- ment, executed to secure a valid subsisting debt, may be enforced by the creditor not- withstanding the subsequent discharge of the assignor in bankruptcy, as a lien is preserved to the creditor by section 67d of the national bankruptcy act of July 1, 1898. Citizens Loan Assoc, v. Boston, etc., R. Co. (Mass.), 13-365. Iiien for rent. — The lien obtained by a landlord by distraining on the goods of his tenant is not a lien " obtained through legal proceedings " within the meaning of the na- tional bankruptcy act, and such lien is there- fore not divested by the adjudication of the tenant as a bankrupt within four months after the lien is obtained. In re West Side Paper Co. (U. S.), 15-384. The above rule applies to the lien obtained by a landlord by distraining on goods belong- ing to one who occupies the leased premises by the tenant's permission, but without the landlord's consent, notwithstanding the fact that the owner of the goods is adjudicated a bankrupt on the following day, the right to distrain having been created by the lease more than four months before such adjudica- tion. In re West Side Paper Co. (U. S.), 15-384. Claim against agent for conversion. — Whether a debt due from an agent to his principal for rent collected and converted to his own use is one created by fraud, embezzle- ment, misappropriation, or defalcation, while acting in a fiduciary capacity, within section 17 of the national bankruptcy act of 1898, quwre. Stull v. Beddeo (Neb.), 15-950. Right of action for false representa- tion. —If a right of action for falsely repre- senting land to be unencumbered and selling it as such is treated as brought upon the lia- bility growing out of a subsequent promise to pay, the discharge of the defendant in bankruptcy is a complete bar to recovery. Nelson i;. Petterson (Ill.),'ll-178. Judgment for slander. — A judgment for slander is not a liability from which a bankrupt is discharged under the bankruptcy act of 1898. Sanderson v. Hun (Ky.), 3-168. Judgment for vilfnl and malicious injury. — Where a declaration in an action for tort contains three coimts, one for assault and battery, one for false imprisonment, and one for malicious prosecution, and there is a general verdict for the plaintiff upon which verdict a judgment is entered, the judgment is not released by the defendant's subsequent discharge in bankruptcy, as each of the counts is for a " wilful and malicious injury," within the meaning of the national bankruptcy act. McChristal v. Clisbee (Mass.), 5-769. A jail certificate in an action for injuries sustained while undergoing a surgical opera- tion at the hands of the defendant, finding that the cause of action " arose from the wil- ful and malicious acts of the defendant, and for wilful injuries to the person of the plain- tiff," brings the judgment within the pro- visions of the national bankruptcy act ex- cepting from the operation of a discharge judgments in actions " for wilful and ma- licious injuries to the person or property of another," although the provision of the bankruptcy law means something more than malice in the broader sense of the term, so that a, mere adjudication of malice would not bring a judgment within the exception relied on. Flanders v. Mullin (Vt.), 12-1010. As used in the provision of the national bankruptcy act (Act of July 1, 1898, c. 541, § 17; 1 Fed. St. Ann. 578), that a discharge in bankruptcy shall not release judgments " for wilful and malicious injuries to the person or property of another," the word ' " wilful " means nothing more than inten- tional, and the word " malicious " means nothing more than that disregard of duty which is involved in the intentional doing of a wilful act to the injury of another. Mc- Christal V. Clisbee (Mass.), 5-766. Judgment in action for fraud. — Sub- divison 2 of section 17 of the original bank- ruptcy act of 1898 (1 Fed. St. Ann. 758), providing "that judgments in actions for fraud or obtaining property by false pretenses or false representations " are not released by a discharge in bankruptcy, comprehends judg- ments rendered in actions the gist of which is the actual fraud of the defendants. In de- termining this question courts will look to the pleadings and judgment; and if the re- lief granted in the judgment is based upon actual, as distinguished from constructive, fraud of the bankrupt, the bankrupt shall not BANKKUPTCT. 365 be discharged from its obligations, notwith- standing the action may not be strictly ex delicto in form. Moodv v. Muscogee Mfg. Co. (Ga.), 20-301. Partnership debts. — Partnership credit- ors may pursue unadjudicated partners by actions at law and suits in equity before, during, and after proceedings in bankruptcy against the partnership. The discharge of the partnership where the partners are not adjudicated bankrupt does not discharge the partners from their liability for the partner- ship debts. In re Bertenshaw (U. S.), 13-986. In bankruptcy proceedings by one partner for a personal discharge, an indebtedness on a judgment against the partnership held sufficiently scheduled. Loomis v. Wallblom (Minn.), 3-798. The discharge of an individual partner in bankruptcy held to be a good defense in an action on a judgment against the partners. Loomis V. Wallblom (Minn.), 3-798. IndiTidnal liability of partner. — A full discharge of individual liability of one partner on a firm debt may be had in bank- ruptcy proceedings concerning that partner only. Loomis v. Wallblom (Minn.), 3-798. 10. Voidable Tbansfeks and Pkefeeences by Bankrupt. Distinction betureen fraudulent and preferential transfers. — There is a marked distinction between the provisions of the bankruptcy act regarding preferential transfers and its provision regarding con- veyances made with intent to hinder, delay, or defraud creditors. In a preferential trans- fer the fraud is constructive or technical, while in a fraudulent conveyance it is actual. In order to set aside a preference under sec- tion 606 of the act, it is only essential to show a transfer by an insolvent debtor to one who himself or by his agent knew of the intention to create a preference, but to make a con- veyance voidable under section 67e, on the ground that it was intended to hinder, delay, or defraud creditors, actual fraud must be shown. Coder v. Arts (U. S.), 16-1008. Transfer prohibited by state statute. — Under the provisions of the national bank- ruptcy act authorizing a trustee in bank- ruptcy to avoid a transfer by the bankrupt which a creditor of the bankrupt might have avoided, the trustee in bankruptcy of a New Jersey corporation may avoid a transfer by the corporation prohibited by the New Jersey statute relating to transfers by insolvent cor- porations. Empire State Trust Co. v. Trus- tees, etc. (N. J.), 3-393. Chattel mortgage recorded ivithin four months. ~ A chattel mortgage exe- cuted and delivered more than four months prior to the bankruptcy of the mortgagor is not voidable because not recorded until a sub- sequent date within such period of four months. First Nat. Bank v. Johnson (Neb.), 4-485. Transfer to secure or pay pre-esist- Ing debt. — Intentional transfers by in- solvents to secure or p'ay pre-existing debts, made within four months before the filing of a petition in bankruptcy, which are not void- able as preferences under section 67c of the national bankruptcy act of 1898 or violative of other provisions of law, and which are made without intent to hinder, delay, or de- fraud creditors more than such securities or payments necessarily have that effect, do not evidence an intent to hinder, delay, or de- fraud creditors within the meaning of that section of the act. It is not every intent to hinder, delay, or prevent creditors from col- lecting, but an intent to do so unlawfully, only, that is denounced by that section. Sar- gent V. Blake (U. S.), 15-58. Payment of fiduciary debt. — In an action on a promissory note given by a bank- rupt, where there is no evidence on which to base a hypothesis that the debt for which the note was given was of a fiduciary character, it is error for the court to charge the jury that if they believe that the debt for which the note was given was bona fide claimed to be a. fiduciary debt, that is, one against which a discharge in bankruptcy would not be a pro- tection, and that the attorneys of the bank- rupt, in view of that contention, advised him to pay the debt as a fiduciary one, and that thereupon he signed the note, and the fidu- ciary character of the debt was the moving consideration, then the note is valid. Espe- cially is such an instruction erroneous where a question fairly presented by the evidence, as to whether the note in suit was not given in consummation of an agreement for a secret preference in order to induce the creditor to whom it was given to join in a composition with creditors, has not been submitted to the jury by any portion of the charge. Dicks v. Andrews (Ga.), 16-1070. Paying individual debt from partner- ship property. — The application, within four months before the filing of a petition in bankruptcy, of the property of an insolvent partnership, with the consent of all the part- ners, to the payment of an individual debt, does not evidence an intent to hinder, delay, or defraud the partnership creditors within the meaning of section 67c of the national bankruptcy act of 1898; and where the cred- itor paid has no reasonable cause to believe that a preference is intended thereby, such payment is not void or voidable. Sargent v. Blake (U. S.), 15-58. Where it appears that within four months before the adjudication of a firm and its members as bankrupts, one of the partners, with the consent of the other, took for him- self a sum of money from the partnership funds; that in consideration thereof and of the other partner's covenant to assume and pay the partnership debts, he conveyed his interest in the remainder of the partnership property and the partnership business to the other partner; and that immediately there- after the other partner paid to his mother, out of the funds which had been partnership property, a sum of money which he had bor- rowed from her to invest in the partnership business, the mother having no reasonable 366 ANN. CAS. DIGEST, VOLS. 1-20. jause to believe that any preference was in- tended by this payment or that it was made with intent to hinder, delay, or defraud cred- itors of the firm or of the partners, and the partners having no intent to hinder, delay, or iefraud creditors to any greater extent than bhe payment to the mother would necessarily binder or prevent them from collecting their iebts, the trustee in bankruptcy cannot re- 30ver from the mother the amount paid to her. Sargent v. Blake (U. S.), 15-58. What constitutes nnlatrfnl pref- erence. — The reasonable ground of belief intended by section 60, subdivision h, of the bankruptcy act, which provides that a, pref- srence given by the bankrupt shall be void- able by the trustee if the person receiving it ' had reasonable cause to believe that it was intended thereby to give » preference," is the present knowledge of the creditor; and it is Dnly where the facts known to the latter ire such as would induce a present belief in m ordinarily prudent and intelligent busi- aess man that his debtor is insolvent and intends a preference, that he is prohibited by the bankruptcy act from collecting or securing his debt or a part thereof. Stuart V. Farmers Bank (Wis.), 16-821. In an action by a trustee in bankruptcy to recover alleged unlawful preferences, it is srror for the court to instruct the jury that although the facts which the defendant knew at the time when he received payment from the debtor may not have been sufficient to induce the belief that the latter intended to ^ve a preference, yet, if a reasonably pru- ient man would have been put upon inquiry thereby, and upon such inquiry might have learned other facts warranting such belief, then the defendant is chargeable with notice of the debtor's insolvency and intent to prefer. Stuart V. Farmers Bank (Wis.), 16-821. Secret preference in composition irith creditors. — If a bankrupt gives to one of his creditors a note for the balance of the debt due such creditor in excess of the amount which is to be accepted by creditors in a composition, iu consideration that such cred- itor will join in the composition and not op- pose it or its confirmation, and the trans- action is withheld from the knowledge of the other creditors, such consideration is illegal, and the creditor receiving the note cannot en- force its payment by suit. Dicks v. Andrews (Ga.), 16-1070. If such an agreement for a secret preference is made, and a note is given in consideration and consummation thereof, it is not rendered valid by being signed before the composition, but dated in advance and left with another person to be delivered after the composition is completed, and so delivered. Dicks v. An- drews (Ga.), 16-1070. 'When mortgage constitutes a pref- erence. — If a chattel mortgage is executed more than four months before bankruptcy which creates no lien on specific chattels, and afterwards within the four months, while the mortgagor is insolvent, he separates or identi- fies certain chattels and agrees that the mort- gage shall apply to them, the lien is created then for the first time and constitutes a pref- erence within the meaning of the national bankruptcy act. First Nat. Bank v. Johnson (Neb.), 4-485. Set-off of mutual debts. — A bank de- posit and a note of the depositor held by the bank are mutual debts which are subject to be set oflf against each other under section 68 of the bankruptcy act. Booth v. Prete (Conn.), 15-306. The setting off by such bank of the amount of the deposit against the amount due on the note is not a transfer of property by the bankrupt within section 1, subdivision 25, of the bankruptcy act, and such set-off, if made in good faith, does not give a pref- erence within section 60, subdivision a of the act even if the set-off is made within four months before the filing of the petition in bankruptcy. Booth v. Prete (Conn.), 15-306. The doctrine of set-off is not enlarged by the provision of the bankruptcy act (Act July 1, 1898, § 68a; 1 Fed. St. Ann. 696) that in " cases of mutual debts or mutual credits be- tween the estate of a bankrupt and a creditor . . . one debt shall be set off against the other; " and therefore a bank with which funds of a bankrupt have been deposited for a special purpose cannot set off against the deposit a debt due from the bankrupt. Wag- ner V. Citizens' Bank, etc., Co. (Tenn.), 19- 483. Payment of attorney's fees. — Legal services contemplated by the bankruptcy act for which an insolvent debtor contemplating bankruptcy proceedings may contract and pay. In re Habegger (U. S.), 3-276. A transfer of property by an insolvent debtor, in contemplation of bankruptcy pro- ceedings, to an attorney, in consideration of the latter agreeing to perform legal services in negotiating with the creditors of the debtor for a settlement of financial difficulties with- out resort to the bankruptcy court, is a void- able preference, and the property so trans- ferred may be recovered by the trustee of the bankrupt estate. In re Habegger (U. S.), 3-276. Who may sue to avoid transfer. — A creditor of one discharged in bankruptcy can- not maintain a suit to set aside an alleged fraudulent transfer of the property of the bankrupt, although such transfer may have been made more than four months prior to the filing of the petjition in bankruptcy. The right to sue for and subject such prop- erty to the payment of the bankrupt's debts is vested alone in the trustee, and the failure of the trustee to bring such suit within the time prescribed by law does not transfer to the creditor the right to do so. Euhl-Koble- gard Co. v. Gillespie (W. Va.), 11-929. 11. Assets op Bankbupt. Decree for payment of money. — A bankrupt and his trustee may join in pro- ceedings to enforce the payment of money due a bankrupt under a decree granting a divorce to his wife but requiring her to pay a certain fund to her husband. Camahan V. Carnahan (Mich.), 8-53. BANKEUPTCT. 367 Memberahip in stock exohanse. — A bankrupt's membership in a stock exchange is an asset in the custody and possession of the federal court in which the bankruptcy proceeding is pending, and therefore that court has jurisdiction of a petition by the bankrupt's trustee to determine the conflict- ing claims to such asset, though both the bankrupt and the adverse claimant are citi- zens of the state in which the proceeding is pending, though the membership is personal in its character, is not evidenced by any cer- tificate, and is incapable of being transferred except with the approval of the exchange, and though at the time of the filing of the peti- tion the membership has been sold and the proceeds are in the hands of the exchange for distribution in accordance with its rules. O'Dell V. Boyden (U. S.), 10-239. Where a membership in a stock exchange is personal in its character and is not evi- denced by any certificate, but the rules of the exchange provide that it may be transferred with the approval of the exchange's commit- tee on admissions, and prescribe the manner in which the proceeds of the transfer may be disposed of, the membership is a pecuniary estate which passes to the member's trustee in bankruptcy; and this is so though prior to the filing of the petition in bankruptcy the member executed a paper which purported to transfer his membership to another person, but which was ineflFectual for that purpose because of noncompliance with the rules of the exchange. O'Dell v. Boyden (U. S.), 10-239. Right of action for personal injuries. — A right of action for damages for personal injuries does not pass to the person's trustee in bankruptcy by virtue of the provisions of the national bankruptcy act, that "the trus- tee . . . shall ... be vested by opera- tion of law with the title of the bankrupt . . . to all (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, . . . ( 6 ) rights of action aris- ing upon contracts or from unlawful taking or detention of or injury to his property; " and the bankruptcy of a person having a right of action for tort for personal injuries is not a bar to an action by such person on his claim. Sibley v. Nason (Mass.), 12-938. The right of the plaintiflF in a personal in- jury action to recover, as an element of dani- age, wages which he would have earned ex- cept for disability caused by the accident, is not lost by his adjudication in bankruptcy subsequent to the accident, as the recovery in such a case is not, strictly speaking, for the wages, but for the loss of time. Sibley v. Nason (Mass.), 12-938. The right of the plaintiff in a personal in- jury action to recover, as an element of dam- age, the amount of bills for medical attend- ance, is not lost by his adjudication in bank- ruptcy, although the adjudication may be pleaded in bar of any recovery against him for such medical attendance. Sibley v. Nason (Mass.), 12-938. Individual property of unadjudioated partner. — Under the national bankruptcy act, 1898, a partnership is a, distinct entity separate from the partners who compose it. It owns its property and owes its debts apart from the individual property of its members which it does not own, and apart from the individual debts of its members which it does not owe. It may be adjudged bankrupt, al- though the partners who compose it are not so adjudicated. Accordingly the trustee of the estate of a bankrupt partnership is not the trustee of the individual property of the unadjudicated partners and has no right to administer that property, nor is he the trustee or the assignee of the claims of the partnership creditors or their agent or at- torney to collect those claims out of other than the partnership property, and, where no partner is adjudged bankrupt, he has no power to enforce such claims against any property except the partnership property, or against any unadjudicated partner or other person who has none of the partnership prop- erty. In re Bertenshaw (U. S.), 13-986. Where a partnership is adjudicated bank- rupt, but none of the partners is adjudged a bankrupt, and application is made to the court to order an unadjudicated partner to turn over his property to the trustee of the partnership estate for administration in bankruptcy, the court of bankruptcy is with- out jurisdiction summarily to take and ad- minister, in the proceedings against the part- nership, the individual estate of the solvent partner without his consent. In re Berten- shaw (U. S.), 13-986. Administration of partnership and individual property. — The provisions of the national bankruptcy act of 1898 that " the net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and net proceeds of the individual estate of each partner to the pay- ment of the individual debts," enunciates a rule of administration of partnership and in- dividual property, and governs only such partnership and individual property as the bankrupts own at the filing of the petition and such as has been previously transferred fraudulently or in such a manner as to create a voidable preference. Sergeant v. Blake (U. 8.), 15-58. 12. Title to Peopebty of Bankrupt. When bankrupt's title is divested. >— Under the national bankruptcy act, the ap- pointment of a trustee is essential to divest a bankrupt of the title to his property, and therefore an adjudication in bankruptcy does not divest the bankrupt of the title to a chose in action, where the adjudication is had without the appointment of a trustee. Rand V. Iowa Central R. Co. (N. Y.), a-542. In an action to recover a debt, where it appears that the plaintiff was adjudicated a bankrupt after the accrual of the cause of action and before the beginning of the suit, and that the adjudication in bankruptcy was had without the appointment of a trustee, a judgment for the plaintiff will protect the de- 368 ANN. CAS. DIGEST, VOLS. 1-20. fendant from liability to any trustee in bank- ruptcy who may be subsequently appointed. Rand v. Iowa Central R. Co. (N. Y.), 9-542. 13. PowEBS AND Duties of Tbustbbs. Folder to sue for partition. — A trustee in bankruptcy having legal title with no beneficial interest in undivided property and no duties with reference to the undivided property requiring partition for the benefit of a cestui que trust is not in general such a tenant in common as authorizes him to sue for partition. Hobbs v. Frazier (Fla.), 16-558. The federal bankruptcy statute contains no express authority to a trustee in bankruptcy to sue for partition of the property of the bankrupt, the title to which is by law vested in the trustee in bankruptcy for the pur- pose of paying the debts of the bankrupt, and the nature of the trustee's power and duties does not necessarily make the right to sue for partition exist by implication. A sale of tiie bankrupt's interest may be made without partition, and this may be sufficient for debt-paying purposes. Hobbs v. Frazier (Fla.), 16-558. Where a trustee in bankruptcy sues for the partition of property and merely alleges that he " is desirous of obtaining a partition and division of the said premises," and it does not in any way appear that partition is essential to the statutory duties of such trustee, or that the bankruptcy court has authorized the proceeding, or that it is necessary fully to protect the rights of those interested in the estate of the bankrupt, the right of the trus- tee in bankruptcy to sue for partition is not apparent. Hobbs v. Frazier (Fla.), 46-558. Duty to pay taxes. — Under the national bankruptcy act of 1898 it is the duty of a trustee to pay, in advance of dividends, all taxes due and owing by a bankrupt, includ- ing taxes assessed upon mortgaged property which the trustee has relinquished to the mortgagee creditors. Chattanooga v. Hill (U.S.), 3-237. 14. Composition. Effect as disoIiaTge. — Where a bankrupt offers, under the bankruptcy act, a composi- tion to his creditors which is accepted by the creditors, and . confirmed by the bankruptcy court, so long as the order con- firming the composition stands, it has the effect of a discharge and bars all remedies for the enforcement of claims by creditors, either against the debtor or his property. Turner v. Hudson (Me.), 18-600. Jnrisdiction. of state oonrt to annul. — When a debtor has been discharged from his debts on a composition in bankruptcy, a bill in equity by a creditor, charging that the debtor fraudulently concealed and omitted from his schedule of assets filed in the bank- ruptcy court money and property of his own which should have been included therein, and that the creditor relying upon the correct- ness of the schedules was induced thereby to accept the composition, does not lie, in the state court, at least, to reach the property thus concealed and omitted, and apply it to the pajqnent of the creditor's claim. Turner V. Hudson (Me.), 18-600. 15. Decree of Dibchaboe. Collateral attack. — A decree of dis- charge in bankruptcy under the national bankruptcy act, in due form on its face, can- not be attacked collaterally. Custard v. Wigderson (Wis.), 10-740. Annulment by state court. — A dis- charge in bankruptcy cannot be annulled or disregarded by a state court. It must be attacked for fraud in its procurement in the federal courts if anywhere. And the same rule applies to fraud in the proceedings for a bankruptcy composition. Turner v. Hud- son (Me.), 18-600. 16. Revival of Debts. Promise by debtor in general. — The effect of a discharge in bankruptcy is to ex- tinguish the bankrupt's debt; and a promise by a debtor to revive a discharged debt must be clear, express, distinct, unequivocal, and without qualification or condition before it will be enforceable against him. Moore v. Trounstine (Ga.), 7-971. In an action on notes given by a person afterwards discharged in bankruptcy under the national bankruptcy act, which is sought to be maintained on the ground that the bankrupt, subsequent to his discharge, prom- ised to pay the notes, it is error to direct a verdict for the plaintiff, where the evidence as to whether the promise was made is con- flicting. Custard v. Wigderson (Wis.), 10-740. Iietter to creditors. — A debt discharged in bankruptcy held to be revived by a letter, from the discharged bankrupt to the cred- itors, the promise being sufficiently clear, cer- tain, and explicit, and not conditional. Sundling V. Willey (S. Dak.), 9-644. Promise before discbarge. — A promise by a debtor to pay a previously existing debt to his creditor, made after the former's ad- judication as a bankrupt, but before his dis- charge, will not be impaired by a subse- quently acquired discharge. Moore v. Troun- stine (Ga.), 7-971. A promise to pay a pre-existing debt, made by a bankrupt after his adjudication as such, but before his discharge, will not be impaired by a subsequent discharge. Dicks v. An- drews (Ga.), 16-1070. Part payment. — The moral obligation to pay the former indebtedness is a sufficient consideration for a new promise, but in order to revive a liability upon a claim discharged in bankruptcy there must be an express prom- ise to pay the specific debt. A promise can- not be implied from the fact of part payment or other circumstances. Needham v. Mat- thewson (Kan.), 19-146. 17. Ancillary Jdbisdiotion of Banketjptcy Coubt. Compelling surrender of property of trustee. — Where a corporation or an in- dividual has been adjudicated a bankrupt in BANKEUPTOY. 369 a district court of tlie United States, a dfa- triot court in another district has power to compel the delivery of property within its jurisdiction, belonging to the bankrupt, to the trustees in bankruptcy, and, consequently, the dismissal of a proceeding to compel such delivery, on the ground that the court is without jurisdiction, is erroneous. In any case where the original court of bankruptcy could act summarily, another court of bank- ruptcy, sitting in another district, can do so in aid of the court of original jurisdiction. Babbitt v. Dutcher (U. S.), 17-969. 18. Appeals in Bankbitptcy. Appellate jurisdiction. — Under para- graph a of section 24 of the bankruptcy act, the supreme court of the United States and the circuit court (jf appeals of the United States have appellate jurisdiction of contro- versies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases; under paragraph & of the same sec- tion the several circuit courts of appeals have jurisdiction to revise in matters of law, upon petition, the proceedings of the several in- ferior courts of bankruptcy within their juris- diction; and under paragraphs a and 6 of sec- tion 25 the circuit courts of appeals and the supreme court, respectively, have jurisdiction of appeals in bankruptcy proceedings in cer- tain specified cases. The proceeding by peti- tion under section 246 is designed to enable the circuit court of appeals to review ques- tions of law arising in bankruptcy proceed- ings, and is not intended as a substitute for the right of appeal upon controverted ques- tions of fact under the right of appeal given in controversies arising in bankruptcy pro- ceedings by section 24a, or the special appeal given in certain cases under section 25. Coder v. Arts (U. S.), 16-1008. What constitutes proceeding in bankruptcy. — Where a creditor of a volun- tary bankrupt files with the trustee in bank- ruptcy a claim upon certain promissory notes, and asks that such notes be allowed as a proper claim against the assets in the hands of the trustee to be administered, and states, in his claim, that he holds a mortgage as security for payment of the debt, which it is his purpose to maintain and upon which he is entitled to priority in the distribution of the assets, the presentation of the claim must be considered as the institution of a proceeding in bankruptcy, as distinguished from a con- troversy arising in the course of bankruptcy proceedings, and consequently the appropriate appellate jurisdiction in such a case is to be determined by the provisions of the bank- ruptcy act governing appeals in bankruptcy proceedings. Coder v. Arts (U. S.), 16-1008. A proceeding instituted by petition and citation in a court of bankruptcy to determine ■adverse claims to property is a " controversy arising in a bankruptcy proceeding" (Bank- ruptcy Act 1898, § 24a; 1 Fed. St. Ann. 593) which may be reviewed on appeal, re- gardless of whether the petiton is filed by the trustee in bankruptcy or by an adverse claim- VoLS, 1-20 — Ann. Cas, Digest. — 24. ant of the property. Thomas v. Woods (U. S.), 19-1080. A proceeding instituted by a trustee in bankruptcy in the bankruptcy court to have certain liens on and claims to property of the estate declared void, and the property sold, is a " controversy arising in a bank- ruptcy proceeding" (Bankruptcy Act 1898, § 24a; 1 Fed. St. Ann. 593) and therefore is reviewable on appeal. Thomas v. Woods (U. S.), 19^1080. Appeal or petition for review. — In such a case as that above considered, where the amount of the claim exceeds $500, the proper remedy of the party aggrieved by a judgment of the district court allowing or rejecting the same is by appeal to the cir- cuit court of appeals under section 25a of the bankruptcy act, and not by petition for review under section 246. Such an appeal brings before the appellate court both the validity of the claim and the lien asserted securing the debt, the former directly and the latter incidentally. Coder v. Arts (U. S.), 16-1008. Appeal to federal supreme court. ^ In such a case, where the amount of the claim exceeds $2,000, a further appeal lies to the supreme court of the United States under subdivision 1 of section 255 of the bank- ruptcy act, without obtaining the certificate mentioned in subdivision 2 of that section, since the claim, together with the lien as- serted thereon, presents a case for the con- struction of the bankruptcy act which might be brought to the federal supreme court under section 709 of the Revised Statutes, were the case decided by the highest court of a state. Coder v. Arts (U. S.), 16-1008. Record on appeal. — Where an appeal has been taken to the supreme court of the United States from a judgment of the circuit court of appeals, under the bankruptcy act, the latter court has power to make its find- ings of fact and conclusions of law a part of the record by an order made within the time limited for taking an appeal, and to direct that the same be filed nilno pro tunc as of the date the judgment entertained. Coder v. Arts (U. S.), 16-1008. Conclusiveness of findings by circuit court of appeals. — On an appeal to the supreme court of the United. States by a trus- tee in bankruptcy from a judgment of the circuit court of appeals allowing a claim against the bankrupt estate and adjudging that a mortgage held by the claimant as se- curity is valid, the findings of fact made by the circuit court of appeals are conclusive, and consequently, where that court has found, , as facts, that neither the mortgagee nor any of his agents had reasonable cause to believe that the debtor intended to give a preference by making the mortgage, and that the debtor did not make the mortgage with any intent or purpose on his part to hinder, delay, or defraud his creditors, the judgment appealed from cannot be reversed on the ground that tlie mortgage in question was a fraudulent or preferential transfer. Coder v. Arts (U. S.), 16-1008. 370 ANN. CAS. DIGEST, VOLS. 1-20. BANKS AND BANKING. 1. Banking Business in Genebal, 370. 2. Regulation and Contbol, 370. 3. Officebs and Agents, 370. a. Powers, duties and liabilities in general, 370. b. Liability for making false reports, 371. 4. Stock and Stockhoidebs, 371. 5. Deposits, 371. a. Respective duties of bank and depositor, 371. b. Liability of bank, 371. (1) In general, 371. (2) Embezzlement by employee, 372. e. Recovery of money deposited, 372. 6. COLtECTlONS, 372. 7. Insolvency, 373. 8. Savings Banks, 373. a. Rules and by-laws, 373. b. Liability for payment to wrong person, 373. c. Savings bank trusts, 374. 9. National Banks, 374. a. False entries in books, 374. b. False reports to comptroller, 374. c. Misapplication of funds by officers, 374. d. Civil liability for false reports, 375. e. Suits by and against receivers, 375. f. Rights and liability of stock- holders, 375. See Bills and Notes; Checks. Cashier of bank as party to action by bank within rule as to testimony regarding transactions with decedents, see Wit- nesses, 3 c (1). Liability of surety of bank officer for defalca- tion after term of office, see Subett- SHIP, 3 c. Payment of debt to bank as agent of mort- gagee, see Mobtgages and Deeds of Tbust, 10 a. Running of statute of limitations against action by receiver of bank against di- rectors, see Limitation of Actions, 6 b (3). Set-off against assignee of stock in liquida- tion, see Set-Off and Countebolaim, 1 a. 1. Banking Business in General. Wliat oonstitntes. — A corporation en- • gaged in the general business of operating a department store, which receives moneys up to $500 from any one desiring to deposit with it, issues passbooks evidencing such deposits, pays interest on the amounts deposited, and pays the principal sum deposited, with inter- est thereon, on demand, in money or goods at the election of the depositor, is within the terms of the Wisconsin statute which de- clares the soliciting, receiving, or accepting of money on deposit as a regular business by a person or corporation to be a banking busi- ness, whether such deposit is made subject to check or is evidenced by a certificate of de- posit, a pass-book, a note, a receipt, or other writing. MacLaren v. State (Wis.), 18-826. Bigbt to engage in banking. — Bank- ing is a lawful business, in which it is the inherent right of every citizen to engage. Ex p. Pittman (Nev.), 20-1319. 2. Regulation and Contbol. Poxrev to reg^ilate. — The banking busi- ness may be regulated, but not prohibited, and it is not only within the power but it is the duty of the legislature to regulate the busi- ness so as to reduce failures to a minimum. Ex. p. Pittman (Nev.), 20-1319. Begnlations as to property. — The pro- visions of the Indiana statute regulating pri- vate banking which reqmre that "the real estate, bank furniture, and fixtures " of a private bank "shall not constitute more than one-third in amount and value of the entire capital of such bank," and that a private banker shall make oath that " the responsi- bility and net worth of the individual mem- bers of such firm, partnership, or individual is equal to an amount at least double the amount of capital paid into such bank," are not, in their application to bankers already in business, unconstitutional as taking the property of such bankers by law without just compensation, or as depriving them of their property without due process of law, or as denying them the equal protection of the laws, or as granting special privileges and immunities. State v. Richcreek (Ind.), 10- 899. Private banking. — The provision of the Indiana statute regulating private banking, which requires an individual, or one member of a firm, conducting a banking business under the act to be a resident of Indiana, is not unconstitutional. State v. Richcreek (Ind.), 10^899. Receipt of deposits by department istore. — Independent of any constitutional authority, there is no doubt of the right of the legislature to regulate banking, nor can there be any doubt of its power to regulate a business carried on by a department store corporation of receiving moneys on deposit, paying interest thereon, and paying the prin- cipal sum deposited, with interest, on demand, in money or goods, at the election of the de- positor, even though such business should be held not to constitute banking. MacLaren v. State (Wis.), 18-826. It is competent for the legislature to define such a business as that above described as banking, even though it is not such in fact, and to throw around it the general safeguards provided for the banking business proper. MacLaren v. State (Wis.), 18-826. 3. Officers and Agents. a. Powers, duties and liabilities in general. Limitation of actions against directors for making unlawful loans, see Limitatioii OP Actions, 4 a (2) (e). President. — Under an Iowa statute pro- viding that a state bank shall be mana BANKS AND BANKING. 371 by its board of directors, a state bank is bound by an act done by its president with- out express authorization, where the president has for several years performed similar acts with the full acquiescence of the directors, irrespective of whether the act is one in- herently pertaining to the office of president. Griffin v. Erskine (Iowa), 9-1193. Cashier. — The indorser of a promissory note held by a bank is not released from lia- bility by the action of the bank's cashier in receiving money for interest in advance on the note and agreeing to extend the time of payment, unless such action is expressly au- thorized or is ratified by the bank, as the cashier has no implied authority to release the bank's security. Bank of Ravenswood v. Wetzel (W. Va.), 6-48. Directors. — The powers and duties of the directors of a bank and the liability for acts of the employees stated. Mason v. Moore (Ohio), 4^240. Impntatioa of knoTvIedge of bank's condition. — The directors of a bank are not held, as a matter of law, to know of its affairp, or what its books and papers would show, and such knowledge cannot be imputed to them for the purpose of charging them with liability. Mason v. Moore (Ohio), 4-240. b. Liability for making false reports. In a criminal prosecution against an officer of a bank for making a false report to the state bank examiner, preceding reports made by the defendant are admissible for the pur- pose of showing his intention in making the report in question. State v. Jackson (S. Dak.), 16-87. In such a case a ruling of the trial judge fixing one year from the report in question as the period covering the dates of such other reports is a proper exercise of his discretion. State V. Jackson (S. Dak.), 16-87. In such a case an instruction that " an overdraft arises when a customer of a bank draws from that bank more money than is standing to his credit in his account with the bank, and such a sum so appearing from the deposit account to be withdrawn in an over- draft, and would be so reported to the public examiner in such a repor'' as the one involved in this case," is correct. State v. Jackson (S. Dak.), 16-87. The report made by a bank officer to the state bank examiner must agree with the books of the bank in the statement of assets and liabilities and in the names by which such assets and liabilities are called. State V. Jackson (S. Dak.), 16-87. 4. Stock and Stockholdebs. A by-law of a national bank, enacted pur- suant to an Act of Congress necessitating the production of an old certificate of stock be- fore the issuance of a new certificate to take its place, will not impair the authority of the chancellor to order the bank to issue a new certificate of stock where the person who is in possession of the old certificate after service of constructive process fails to appear. Letcher v. German Nat. Bank (Ky.), 20'-815. 5. Deposits. a. Respective duties of bank and depositor. Duty of bank to depositors. — ' A bank is the debtor of its depositors, and is under obligation to keep careful and faithful ac- coimts with them, to scrutinize checks, and to exercise proper care and skill to prevent or discover fraud. Brown v. Lynchburg Na- tional Bank (Va.), 17-119. Duties of depositor. — A bank deposi- tor is under obligations to the bank to ex- amine, within a reasonable time and with ordinary care, the account rendered in the pass book and vouchers returned by the bank to him, and to report any errors discovered with- out unreasonable delay. The examination need not be so minute as to exclude any pos- sibility of error, but it should be made in good faith and with ordinary diligence, and such care should be used as is required by the circumstances of the particular case. Brown v. Lynchburg National Bank (Va.), 17-119. b. Liability of bank. (1) In general. Unantborized deposit of public funds. — Where a county treasurer, acting in excess of his authority, sends tax receipts to a bank and authorizes it to receive the money there- on and deliver the receipts to the taxpayers, the deposit of the money in the bank, or its retention by the bank, is wrongful, and the bank holds the money charged with a trust in favor of the county. Page County v. Rose (Iowa), 8-114. Where a county treasurer sends a bank specific tax receipts and authorizes it to col- lect the taxes and deliver the receipts to the taxpayers, the bank is chargeable as a trus- tee of the moneys thus collected, and the county may establish the trust against the insolvent estate of the bank in the hands of its receiver or assignee. Page County v. Rose (Iowa), 8-114. Improper withdra-wal of trust funds. — If a bank has notice or knowledge that a breach of trust is being committed by the improper withdrawal of deposited funds, it becomes responsible for the wrong done, and may be made to replace the funds. Accord- ingly where funds of an insolvent corporation are deposited in a bank by the receiver of the corporation appointed by an order of court, of which the bank has knowledge, pro- viding that the funds shall be paid out only on checks signed by the receiver and counter- signed by the judge, and the bank pays out the funds on checks not countersigned as pro- vided, the creditors of the corporation to whom the receiver sustains a fiduciary rela- tion may hold the bank liable for loss sus- tained by reason of such unauthorized pay- ment of the funds. American Nat. Bank v. Fidelity, etc., Co. (Ga.), 12-666. Where in such a case the creditors or the 372 ANN. CAS. DIGEST, VOLS. 1-20. obligee in a bond given by the receiver for the faithful performance of his duties relat- ing to the funds upon a breach of trust by the receiver, participated in by the bank, bring suit and recover judgment against the receiver and the surety on the bond, and the surety pays the judgment, such surety is subrogated to the rights of the creditors to enforce the liability incurred by the bank on account of its participation in the breach of trust by the fiduciary. American Nat. Bank V. Fidelity, etc., Co. (Ga.), 12-666. Refusal to pay cbeck. — The liability of a bank for refusal to pay a cheek where the bank has set off a deposit against the debt. Callahan v. Bank (S. Car.), 2-203. Conclasiveness of balance shoivii by book. — A balance struck in a pass book is, in effect, an account stated between the bank and the depositor, which will operate as an estoppel against the bank unless impeached for fraud or error. Greenhalgh Co. v. Farm- ers' Nat. Bank (Pa.), 18-330. Individual dealings between de- positor and cashier. — In an action to re- cover the amount of certain checks alleged to have been deposited by the plaintiff with the defendant bank in the usual course of banking business, and claimed by the defend- ant to have been loaned by the plaintiff to the defendant's cashier individually, it is proper for the court to refuse to charge that if the plaintiff's treasurer and the defend- ant's cashier made an arrangement whereby the amount of the checks was intended as an individual loan to the cashier and was re- ceived by him as such, there can be no re- covery, because those officers of the parties might have made such an arrangement with- out authority. Greenhalgh Co. v. Farmers' Nat. Bank (Pa.), 18-330. (2) Embezzlement by employee. Negligence as question for jury. — In an action against a bank to recover a bal- ance alleged to be due to the plaintiff on a deposit account, where the evidence shows that the amount sought to be recovered was embezzled by an employee or employees of the bank, and charged by such employee or employees to the plaintiff's account; that the embezzlement covered a period of about three years, the money being taken from time to time in small sums; that during such period the bank rendered monthly statements to the plaintiff, consisting of his canceled checks for the month, a machine-made slip purporting to contain a list of such checks, and a state- ment showing the totals of debits and credits and the balance to the credit of the plaintiff; that the plaintiff examined such statements to a certain extent, but failed to discover the embezzlement until he was notified by the bank that he had overdrawn his account; and that upon such notification he made a further examination of the monthly statement and discovered, without difficulty, that the lists of cheeks returned therewith contained false entries aggregating the amount of the em- bezzlement, the question whether the plaintiff has been guilty of such negligence as to pre- clude his recovery should be submitted to the jury, and it is error for the court to direct a verdict in favor of the defendant. Brown V. Lynchburg National Bank (Va.), 17-119'. c. Recovery of money deposited. Limitation of actions to recover deposits, see Limitation of Actions, 4 a (2) (a). Set-off of unmatured notes against balance of depositor, see Bankbuptct; Gabnish- MENT, 3 b.' Demand as condition precedent. ^ A mere oral request for payment is not a sufficient demand to enable a depositor to maintain an action against a bank to recover money deposited. Stapf v. First National Bank (Ind.), 6-631. Set-off of claim against depositor. — In an action by a depositor against a bank to recover money deposited, the defendant is entitled to set off a certificate of deposit, issued by another bank and deposited by the plaintiff, which it has been unable to collect by the exercise of due diligence in forward- ing for collection and bringing suit for non- payment, especially where it appears that the bank issuing the certificate has had no property subject to execution at any time since tlie deposit of the certificate by the plaintiff with the defendant. Stapf v. First National Bank (Ind.), 6-631. The rule that a bank may set off a deposit against the depositor's indebtedness does not apply to a special deposit or a deposit for a specific purpose; and therefore where money is deposited with a bank to the credit of an insolvent corporation, to be distributed among all the creditors, pursuant to a meeting of creditors at which the bank was represented by its president who assented to the plan, the bank is estopped to assert the right of set-off in respect to such deposit. Wagner v. Citizens' Bank, etc., Co. (Tenn.), 19-483. 6. Collections. Title to money collected. — The title to the proceeds of a check forwarded for col- lection under a general indorsement in blank. Continental Nat. Bank v. First Nat. Bank (Miss.), 2-116. Iiien on money collected. — Where a bank has collected a sight draft sent to it by a correspondent bank with instructions to " return at once if not paid," it is not de- prived of its lien on the proceeds of the collection by the fact that it held the draft for several days before collecting it, awaiting the arrival of the goods for which it was drawn, if in so doing it acted in accordance with the established course of dealing be- tween it and the correspondent bank. Garri- son V. Union Trust Co. (Mich.), 5-813. Where a bank receives for collection from a correspondent bank a draft bearing an un- qualified general indorsement with no notice that the latter is not the real owner thereof, the collecting bank is entitled to a lien on the proceeds of the collection for the balance which it has on deposit with the correspond- BANKS AND BANKING. 373 ent bank; and it is entitled to this lien as against the real owner of the draft. Garri- son V. Union Trust Co. (Mich.), 5-813. Where a bank sends to another bank for collection a draft bearing unqualified general indorsements, the fact that the draft has a " collection number " stamped upon it is not of itself sufficient to charge the collecting bank with notice that the forwarding bank does not own the paper, but holds it for col- lection merely. Garrison v. Union Trust Co. (Mich.), 5-813. Mingling collections nith general assets. — The right of a bank to which a paper is forwarded for collection to mingle the proceeds with the general assets. State ex rel. North Carolina Corp. Commission v. Merchants', etc., Bank (N. Car.), 2-537. Sending instrument to payor. — It is negligence for a bank with which a note or certificate of deposit or other obligation is deposited for collection to send it directly to the payor for collection, unless it acts in obedience to the depositor's instructions. First National Bank v. Bank of Whittier (111.), 5-653. Liability for acts of correspondent. — Where a bank to which a certificate of de- posit is given for collection forwards it to another bank with instructions which amount to a direction to send the certificate directly to the payor, the forwarding bank is liable to its depositor for a, loss resulting from the action of its correspondent in sending the cer- tificate to the payor, though it does not in- struct its correspondent in express terms to adopt such a course. First National Bank V. Bank of Whittier (111.), 5-653. Validity and effect of custom. — A person intrusting a paper to a bank for col- lection may be bound by a custom which is reasonable and which is sufficiently general to justify the presumption that it is known. Farley Nat. Bank v. Pollock and Bernheimer (Ala.), 8-370. A bank to which a check is intrusted for collection cannot send it to the bank upon which it is drawn, receive such bank's check on New York in payment, and, when the lat- ter check is protested on account of the fail- ure of the bank drawing it, escape liability on the ground of a custom to transact busi- ness in that way. Farley Nat. Bank v. Pol- lock and Bernheimer (Ala.), 8-370. 7. Insolvenct. The legislature as an exercise of police power can impose a penalty for the conduct of business by an insolvent bank. Ex parte Pittman (Nev.), 20-1319. The Nevada statute (St. 1907, c. 189) mak- ing it a crime to receive bank deposits know- ing the bank to be insolvent, is not unconstitutional as being a special law for the punishment of offenses; nor is it objec- tionable as class legislation. Ex parte Pitt- man (Nev.), 20-1319. Prior to the Nevada statute (St. 1907, e. 189) making it a crime to receive bank de- posits when the bank is known to be insol- vent, the general laws making it a crime for any one wrongfully to convert property of another to his own use applied to bank offi- cers who embezzled bank funds, the same as to other embezzlers. Ex parte Pittman (Nev.), 20-1319. The purpose of a statute making it a crime to receive deposits when a bank is known to be insolvent is not only to protect innocent depositors, but to deter bank officers from so conducting a bank as to endanger its sol- vency. Ex parte Pittman (Nev.), 20-1319. 8. Savings Banks. a. Rules and by-laws. Assent by depositor. — A depositor in a savings bank is bound by the reasonable rules to which he assents by an agreement in writing. Langdale v. Citizens' Bank (Ga.), 2-257. A savings bank depositor accepting and using a deposit book containing printed by- laws assents to them and is bound thereby. Chase v. Waterbury Sav. Bank (Conn.), 1-96. Presentation of pass book as condi- tion of payment. — By-laws of a savings bank, which require the presentation of the deposit book, or due notice to the bank in case of the loss of the book, as conditions precedent to payment to the depositor or to another on his written order, are reasonable conditions and become a part of the contract between the bank and the depositor, when brought to the notice of the latter. Hough Avenue Savings, etc., Co. v. Anderson (Ohio), 14-479. Payment to any person presenting pass booh. — The rule as to the payment made to a person presenting a pass book, held reasonable and binding on the depositors. Langdale v. Citizens' Bank (Ga.), 2-257. b. Liability for payment to wrong person. Payment on forged check. — The lia- bility of a savings bank under its rules for the payment of a forged check in good faith. Langdale v. Citizens' Bank (Ga.), 2-257. The effect of the rule requiring a written order when a pass book is not presented per- sonally, on the liability of a bank for the payment of a forged check made in good faith. Langdale v. Citizens' Bank (Ga.), 2-257. Duty of bank to use ordinary care. — . A stipulation by a savings bank against lia- bility for fraud by means of forged signa- tures or the presentation of a bank book without the depositor's knowledge, to which stipulation the latter impliedly assents, will not relieve the bank from the duty to exer- cise ordinary care in payment. Chase v. Waterbury Sav. Bank (Conn.), 1-96. The question whether a savings bank has failed to use reasonable care in paying money to the wrong person is for the jury. Chase V. Waterbury Sav. Bank (Conn.), 1-96. Notwithstanding a by-law of a savings bank requiring the depositor to give notice that his pass book has been lost or stolen, 374 ANN. CAS. DIGEST, VOLS. 1-20. and that " in all cases a payment upon pre- sentation of a deposit book shall be a dis- charge to the company for the amount so paid," the bank is at least bound to act in good faith and to exercise reasonable care to avoid payment to the wrong person, and for a failure to exercise reasonable care to avoid payment to a person not entitled thereto it will be liable to pay again to the rightful owner of the deposit. Hough Avenue Sav- ings, etc., Co. V. Anderson (Ohio.), 14-479. Where a savings bank pays a deposit to a person other than the depositor on presenta- tion of the deposit book and a forged order purporting to have been written by the de- positor, evidence that the paying teller was not acquainted with the depositor or familiar with his signature, and paid out the money without comparing the signature to the order with the genuine signature of the depositor, is sufficient to raise a question for the jury on the question of good faith and reasonable care on the part of the bank, and supports a judgment for the plaintiff. Hough Avenue Savings, etc., Co. v. Anderson (Ohio), 14-479. Contriliatory negligence of depositor. — A savings bank negligently paying money upon a forged order not excused from liabili- ty by the contributory negligence of the de- positor. Chase v. Waterbury Sav. Bank (Conn.), 1-96. c. Savings bank trusts. Deposit in savings bank as gift, see Gifts, 1 a. A deposit by one person of his own money in his own name as trustee for another, stand- ing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by an unequivocal act or decla- ration, such as delivery of the pass book or notice to the beneficiary. If the depositor dies before the beneficiary without revoca- tion, the presumption arises that an absolute trust was created as to the balance on hand at his death. Matter of Totten (N. Y.), 1-900. A mere savings bank deposit made by a person in her own name as trustee for an- other, who is a mere friend, over which de- posit the depositor exercises complete control during her life, is insufiicient to establish a gift inter vivos or to create a trust entitling the supposed beneficiary to the deposit as against the depositor's administrator. Nick- las V. Parker (N. J.), 14-921. Where a person deposits money in a sav- ings bank in her own name as trustee for certain persons who are dead at the time the accounts are opened, the deposits pass after her death intestate to her administrator. Nicklas v. Parker (N. J.), 14-921. 9. Natioital Banks. a. False entries in books. Llaliility for false entries made by third person. — On a charge against an officer of a national bank of making false en- tries in the books of the bank, it is immaterial whether the defendant made the entries in person or caused them to be made by a clerk or bookkeeper. Morse «. U. S. (U S ) 20-938. Evidence of frandnlent intent. — Entries in the books of a national bank show- ing loans to persons named, on the security of stocks deposited as collateral, when in fact the transactions were purchases of the stock by the bank, the supposed borrowers being merely dummies wholly irresponsible for the amount of the notes which they gave without any intention of paying the same or any knowledge of the actual transactions, are false entries, and when they are made by the di- rection of an officer of the bank who conducted the transactions, a jury is justified in find- ing that they were fraudulent and made with intent to deceive the bank examiner and his agents in violation of the federal statute (Rev. St. § 5209, 5 Fed. St. Ann. 145) . Morse V. U. S. (U. S.), 20-938. Instructions. — In the prosecution of a person under the federal statute (Rev. St., § 5200'; 5 Fed. St. Ann. 145), charged as the officer of a bank with having made false en- tries in the books of the bank and in reports to the comptroller, with intent to injure and defraud the bank and deceive its officers and the examiner, it is not error to charge the jury that if they find that such false entries were made, they are authorized to presume therefrom, in the absence of any explana- tion, that the defendant knew them to be false, and that if the natural and probable consequence of such entries was to defraud or deceive, they may presume, in the ab- sence of explanation, that such was the de- fendant's intention. Morse v. U. S. (U. S.), 20-938. b. False reports to comptroller. _ A report to the comptroller made by a na- tional bank is false if it fails to include in the list of securities held by the bank shares of its own stock which it has purchased. Such purchase, though prohibited by statute (Rev. St. U. S., § 5201; 5 Fed. St. Ann. 140), is not a nullity, nor does it extinguish the stock. Morse v. U. S. (U. S.), 20-938. A report made by a national bank to the comptroller accurately stating the facts as shovni by the books does not prevent such statements from being false, where the books themselves do not correctly show the actual transactions or condition of the bank. Morse V. U. S. (U. S.) 20-938. c. Misapplication of funds by officers. In the prosecution of an officer of a nation- al bank under the federal statute (Rev. St., § 5209; 5 Fed. St. Ann. 145) for misappli- cation of funds with intent to injure and de- fraud the association, general language used in the charge in explaining the statute, stat- ing that a misapplication of funds, in order to constitute an offense, must be with intent to injure or defraud the bank "or to deceive any officer of the bank or any agent appointed BAPTISMAL RECOEDS — BASTAEDS. 375 pursuant to law to examine the affairs of the bank," is not misleading, where the jury are subsequently charged specifically on the precise issue presented by the indictment and that an intent to defraud the bank must be shown. Morse v. U. S. (U. S.), 20-938. d. Civil liability for false reports. The liability of the directors of a national bank to one purchasing bank stock in re- liance on a false report of the condition of the bank. Mason v. Moore (Ohio), 4-240. e. Suits by and against receivers. The federal law gives the receiver of a national bank the legal title to the assets thereof and 'he may maintain an action in his own name in a state court to recover such assets. Fish v. Olin (Vt.), 1-295. f. Bights and liabilities of stockholders. Enforcement of liability of stockholders, see Limitation of Actions, 4 a (2) (c). Limitation of actions to recover assessment on stock, see Limitation of Actions, 3. Bight of married woman to hold stock, see COBFOBATIONS, 8 g (2) (c). Bight of stockholders to inspect books, see COBPOEATIONS, 8 6 (3). Taxation of stock, see Taxation, 2 c. BAFTISSIAI. RECORDS. Admissibility in evidence, see Evidence, 9 a. BAR. Admission to bar, see Attobneys at Law, 1. Operation and effect of statute of limitations, see Limitation of Actions, 7. Pleas in bar, see Pleading, 6. BARBERS. Barber shop as place of public accommoda- tion, see Civil Eights Acts. Expression in title of subject of statute for licensing barbers, see Statutes, 3 b. Statutory regulation of, see Constitutional Law, 9. Validity of statute prohibiting barbering on Sunday, see Sundays and Holidats. BARTER. Contracts of barter within statute of frauds, see Frauds, Statute of, 9 a. BASEBAI.L. Baseball grounds as nuisance, see Nuisances, 1 b. BASTARDS. 1. Bastardy PEOCEasDiNos, 375. 2. Eecoqnition of Bastaed by Putative Father, 376. 3. Legitimation of Child, 376. 4. Eight to Custody of Child, 376. Bastardy proceeding as civil action, see Actions. Marriage to stop prosecution for bastardy as procured by duress, see Maeeiage, 3 a. Proof by wife of nonaccess of -husband, see Evidence, 2. Relationship of bastards within law of incest, see Incest, 1 a. Eight to inherit, see Descent and Distribu- tion, 5 b. 1. Bastardy Proceedings. Right of mother to institute. — The right of the mother to institute bastardy pro- ceeding is not affected by the fact that the child is born dead. No bond to indemnify the county against the expense of support and maintenance can be required, but it is proper to order an allowance to the mother to re- imburse her for expenses for medical attention and medicine for herself, and the burial ex- penses of the child. State v. Addington (N. Car.), 11-314. Right of married woman to maintain proceeding. — Only an unmarried woman may maintain a bastardy proceeding under the Mississippi statute (Code 1906, § 268) which describes the person who may make complaint as " any unmarried woman." Welch «. Cliburne (Miss.), 19-388. Child born in another state. — A non- resident mother of a bastard child may main- tain filiation proceedings against a resident of the state, though the child was begotten and born in another state. Eoy v. Poulin (Me.), 18-573. Jurisdiction of mayor. — The mayor of a city is invested with the jurisdiction of a bastardy proceeding against a resident of the city by the Indiana statute providing that he " shall have, within the limits of said city, the jurisdiction and powers of a justice of the peace in all matters, civil and crimi- nal, arising under the laws of this state." Evans v. State ea; rel. Freeman (Ind.), 6-813. Waiver of objection to jurisdiction. — The defendant in a bastardy proceeding brought before the mayor of a city waives his right to question the mayor's jurisdiction over his person if he fails to interpose a proper plea to the jurisdiction before plead- ing to the action. Evans v. State ex rel. Freeman (Ind.), 6-813. Venue. — Filiation proceedings by a non- resident mother are properly entered in the county where the defendant resides. Eoy v. Poulin (Me.), 18-573. Competency of married woman to testify to nonaccess of husband. — In a prosecution for bastardy, where the relatrix is a married woman, she may testify to the 3Y6 ANN. CAS. DIGEST, VOLS. 1-20. nonaccess of her husband. Evans v. State ex rel. Freeman (Ind.), 6-813. Corroboration of testimony of re- latriz. — Under the Indiana statute making the relatrix in a bastardy proceeding a com- petent witness against the defendant, her testimony may prevail though it is not cor- roborated by the other evidence. Evans v. State ex rel. Freeman (Ind.), 6-813. Commitment of defendant. — Under the North Carolina statute, authorizing the court to commit the defendant in a bastardy proceeding to the house of correction until he has performed the order of the court, com- mitment can only be made to the county jail where there is no house of correction, and the court has no authority to require the defendant to work on the public roads. State V. Addington (N. Car.), 11-314. Validity of contract to discontinue. — Where the defendant in bastardy proceed- ings instituted by a father on behalf of his minor daughter procures a third person to execute a mortgage to secure the support of the daughter and her unborn child in con- sideration of the discontinuance of the bas- tardy proceedings and the marriage of the parties, such contract of mortgage is founded upon a good consideration and is valid. Jan- graw V. Perkins (Vt.), 2-492. 2. Recognition of Bastaed by Putative Father. Sufficiency of evidence to show. — Evidence reviewed in an action to construe a will and held insufficient to show a general or notorious recognition by the putative father of an illegitimate child alleged to be his. Brisbin v. Huntington (Iowa), 5-931. 3. Legitimation of Chuj). Oklahoma statute. — Under the stat- utes of Oklahoma the father of an illegiti- mate minor child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts or legitimates such child, and it acquires the legal status of a legitimate child from birth. Allison V. Bryan (Okla.), 17-468. Consent of mother. — Such father, de- siring so to legitimate or adopt such child, may do so without the consent and against the will of the mother. Allison v. Bryan (Okla.), 17-468. 4. Right to Custody of Child. Under Oklahoma statute. — ' Under the statutes of Oklahoma, the mother of an il- legitimate unmarried minor is entitled to its custody, service, and earnings; but where an illegitimate child has been legitimated or adopted by its father in the manner prescribed by the statute, all the reciprocal responsibili- ties and duties between a father and a legi- timate child obtain between him and such adopted or legitimated child, and he is charged with its support and education, and is entitled to its custody, services, and earn- ings. Allison V. Bryan (Okla.), 17-468. BATHING RESORTS. Liability of proprietor for injury to persons or loss of property, see Theatres and Public Resobts, 3. Using bath house at seaside inn as creating relation of guest, see Inns, Boahdinq Houses and Apabtments, 2. BATTERY. See Assault and Batteby. BAWDY HOXJSB. See DisoEDEELT Houses. Carnal knowledge in bawdy house of girl under age of consent as statutory rape, see Rape, 2 b. BEGGARS. False pretenses by beggar, see False Pee- TENSES and Cheats, 1 a. BELIEF. See Infoemation and Belief. Denials on information and belief, see Plead- ing, 4a (3). BENEFICIAI. ASSOCIATIONS. See Benevolent oe Beneficial Associa- tions. BENEFICIARIES. See Benevolent ob Beneficial Associa- tions, 8. Designation of beneficiaries, see Chaeitees, 4. Power of trustee to select beneficiaries, see Tbusts and Teustees, 3 b f4). Rights of beneficiaries under life insurance policies, see Insueance, 7 b (2). BENEFITS. See Benevolent ob Beneficial Associa- tions. Acceptance of benefits as ratifying agent's authority, see Agency, 3 e. Allowance in condemnation proceedings, see Eminent Domain, 7 c (4). Deduction of improvements in condemnation proceeding, see Eminent Domain, 7 c (7). Presumption from acceptance of benefits, see Agency, 3 a (1). Right of members of labor unions to receive weekly benefits during strike, see Labob Combinations, 3. BEisTEVOLENT, ETC., ASSOCIATIONS. 37T b£N£;voi.£;ht ob beneficial associations. 1. Powers of Association, 377. 2. Propekty of Association, 377. 3. Construction of Contract, 377. 4. The Application, 377. 5. Constitution and By-Laws, 378. a. Validity, 378. b. Construction, 378. c. Operation, 378. d. Penalties for violation, 378. e. Amendments, 378. (1) In general, 379. (2) Validity as applied to ex- isting members, 379. 6. Assessments, 379. a. Notice of assessments, 379. b. Forfeiture of certificate for failure to pay, 379. c. Personal liability for assessments, 380. 7. Suicide of Member, 381. 8. Beneficiaries, 381. a. In general, 381. b. Meaning of terms descriptive of beneficiaries, 382. c. Change of beneficiary, 382. 9. Actions to Recover Benefits, 382. a. In general, 382. b. Evidence, 383. Death benefit as subject to garnishment, see Garnishment, la. Eight to trademark and name of association, see Trademarks, Trade Names, and Unfair Competition, 1. 1. Powers of Association. Extent of power to insure. — A fra- ternal beneficiary society has no power to insure the lives of its members except to the extent that it is authorized by statute, either expressly or by necessary implication. State eco rel. Supreme Lodge v. Vandiver (Mo.), 15-283. Power to issue paid-up policies. — The Missouri statute defining and regulating fraternal beneficiary societies, which provides that such societies shall make provision for the payment of death benefits, that the fund from which such payments shall be made shall be derived from " assessments or dues," and that they may create and disburse a " reserve or emergency " fund, does not au- thorize such societies to issue nonforfeitable and twenty-year paid-up policies or death benefit certificates. State ex rel. Supreme Lodge V. Vandiver (Mo.), 15-283. 2. Pbopebtt of Association. Ownersliip as bet-ween councils. — A fund raised by the voluntary contributions of the member* of a subordinate council or lodge of a fraternal benefit society for sick and funeral benefits, belongs to the subordinate association for distribution to the parties for whose use and ibenefit it^ was contributed, and cannot be recovered by the superior upon the revocation of the charter of the subordinate body, especially where the fund has been paid out in good faith to the persons and for the purposes for which it was contributed, prior to a court decision sustaining the revocation of the charter of the subordinate body by the superior body. State Council, etc., v. Emery (Pa.), 12-870. 3. CONSTEUCTION OP CONTRACT. Strict construction against insurer. — A benefit society's contract of insurance must be construed strictly against the insurer and liberally in favor of the insured, and where two equally reasonable interpretations are possible, that one should be adopted which will enable the beneficiary to recover. Grand Legion, etc., v. Beaty (111.), 8-160. Ambiguous stipulations in a benefit certi- ficate will be construed in favor of the bene- ficiary and against the insurer. Clemens v. Eoyal Neighbors (N. Dak.), 8-1111. Self-executing provision for forfeit- ure. — A condition in a fraternal benefit certificate that " if the member . . . shall . . . become so far intemperate in the use of alcoholic drinks or the use of drugs, to such an extent as to permanently impair his health, or to produce delirium tremens . . . then this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and bene- fits which may have accrued on account of this certificate shall be absolutely forfeited," is self-executing. Modern Woodmen v. Breck- enridge (Kan.), 12-636. 4. The Application. Answers to questions as xrarranties. — Where an application for membership in a beneficial association contains certain ques- tions as to the state of the applicant's health, which questions he answers and warrants to be true, the truth of the answers is a con- dition precedent to the validity of the benefit certificate, but in an action on the certificate the application is sufiBcient evidence to sup- port the truth of the answers for the purpose of submission to the jury. Taylor v. Modern Woodmen (Wash.), 7-607. Ans-wers incorrectly reported by ex- aminer. — A benefit certificate will not be avoided on the ground that the member false- ly represented in his application for member- ship that he had never suffered from a certain disease, where it appears that the member, when questioned by the medical examiner, answered truthfully that he had had a slight attack of the disease, but the examiner, who W.13 writing down the answers, incorrectly in- serted a negative answer, unless it also ap- pears that the member when he signed the application had actual knowledge of the fact that the answer had been incorrectly written; and oral evidence is admissible to show that the member in fact answered truthfully. Lyon V. United Moderns (Cal.), 7-672. 378 ANN. CAS. DIGEST, VOLS. 1-20. Warranty as to o,tlier applications. — A fraternal association which issues death benefit certificates is not a " company " within the meaning of a question in an application for membership in other fraternal associa- tions as to whether any proposal or applica- tion to insure the life of the applicant has " ever been made to any company, or agent, or medical examiner, upon which a policy has not been issued." Lyon v. United Moderns (Cal.), 7-672. Warranty as to qualification of bene- ficiary. — Where a member of a beneficial association declares that a person whom he designates as a, beneficiary in his benefit cer- tificate comes within one of the clauses speci- fied in the by-laws, the statement amounts to a warranty and is one upon the truth of which the validity of the contract depends. Caldwell v. Grand Lodge (Cal.), 7-356. Warranty of sound bodily bealth. — The signing by a, pregnant married woman, who is a member of a fraternal association, of a certificate stating that she is in sound bodily health, such certificate being required for the purpose of making effective her death benefit certificate, is not a false representa- tion if the certificate signed by her is other- wise true. Merrimai v. Grand Lodge, etc. (Neb.), 15-124. Duty to report subsequent illness. — A married woman who is an applicant for a death benefit certificate in a fraternal asso- ciation which issues such certificates on the lives of married women is not required to in- form the association of evidence of pregnancy discovered subsequently to her application and physical examination. Merriman v. Grand Lodge, etc. (Neb.), 15-124. 5. CONSTITXJTION AND BT-LAWS. a. Validity. Terms and conditions of membersbip. ■ — Fraternal beneficiary associations can im- pose such terms and conditions upon mem- bership, not contrary to law, as they may choose, and members must comply with those terms and conditions in order to be entitled to the benefits of membership. Gifford v. Workmen's Benefit Assoc. (Me.), 17-1173. Suspension for non-payment of as- jessments. — A rule of a fraternal bene- ficiary association that a member failing to pay an assessment on or before the last day of the month in which the call is dated " shall stand suspended from all rights, benefits, and privileges of this association without further notice," is a valid rule and self-executing. Gifford V. Workmen's Benefit Assoc. (Me.), 17-1173. Forbidding disposition of benefit by (rill. — A benevolent association may pro- vide by its constitution that no will shall be permitted to control the appointment or dis- tribution of, or rights of any person to, any benefit payable by the association, and such provision is binding upon a member whose benefit certificate contains stipulations that he is bound by the laws, rules, and regula- tions of the association. Thomas v. Covert (Wis.), 5-456. Probibiting resort to courts. — A law of a fraternal benefit society prohibiting the members from resorting to the courts for redress of alleged injuries until they have exhausted remedies provided by the laws and rules of the order is valid and binding on the members, and compliance with such law by a member is a condition precedent to his right to sue in the courts for injunctive re- lief and for damages for his alleged suspen- sion from the society. McGulnness v. Court Elm City, No. 1, etc. (Conn.), 3-209. b. Construction. By-latr regarding probibited occupa- tions. — The by-law of a benefit society pro- hibiting members from engaging in certain occupations or kinds of employment must be held to refer to a vocation or calling to which a member devotes himself with some degree of permanency for hire or profit, and not to acts which are simply incidentally con- nected with regular employment. Stevens v. Modem Woodmen (Wis.), 7-566. Occasional acts of performing the duties of a bartender and of selling liquor to be used as a beverage, performed for his employer as a matter of accommodation by a person who is regularly employed to do work of a differ- ent nature, cannot be treated as being an employment as a bartender, or as being en- gaged in the sale of liquors within the mean- ing of a prohibition in the by-laws of a benefit society. Stevens v. Modern Woodmen (Wis.), 7-566. By-law adopted without knowledge of member. — Where an application for membership in a beneficial association enu- merates the occupations classified as extra hazardous, and contains a promise by the ap- plicant to respect the regulations of the asso- ciation, such promise is deemed to be made with respect to the information thus given; and therefore there is no forfeiture of benefits because the applicant engages in an occupa- tion not mentioned in such enumeration, but declared hazardous by a by-law adopted prior to the application, where the applicant does not know of the by-law. Gienty v. Knights of Columbus (N. Y.), 20-928. c. Operation. Wbether retroactive or prospeotiTe. — A by-law of a mutual benefit association which restricts the classes of persons who may be designated as beneficiaries will be presumed not to apply to beneficiaries desig- nated prior to adoption. Dolan v. Supreme Council (Mich.), 15-232. d. Penalties for violation. Waiver of forfeiture. — A subordinate lodge of a mutual benefit association which has the power to discipline and expel a mem- ber for violating the by-laws of the associa- tion, and possesses knowledge that a member has forfeited his benefit certificate by violat- ing the by-laws of the association, waives the BENEVOLENT, ETC., ASSOCIATIONS. 379 right of the association to insist upon the forfeiture by continuing to receive his dues and in all other respects treating him as a member until his death. Modern Woodmen V. Breckenridge (Kan.), 12-636. e. Amendments. (1) In general. Filing under Nebraska statute. — The Nebraska statute, providing that before any amendment to or alteration in the con- stitution or by-laws of a beneficial associa- tion shall take effect, a copy of the amend- ment or alteration duly certified must be filed with the auditor of public accounts, applies to beneficial associations organized under the laws of other states as well as to those or- ganized under the laws of Nebraska. Knights of Maccabees v. Nitsch (Neb.), 5-257. (2) Validity as applied to existing members. Implied condition of reasonableness. — The general consent and agreement of a member of a mutual fraternal benefit society in his application and certificate to be bound by any changes in the constitution, by-laws, and rules that the society may enact in the future are subject to the implied condition that the changes must be reasonable. Olson i;. Court of Honor (Minn.), 10-622. Where a benefit certificate is conditioned upon compliance of the member with all the by-laws of the order thereafter to be enacted, the condition must be construed as referring only to reasonable by-laws and amendments adopted in furtherance of the contract and not to such as would overthrow it or ma- terially alter its terms. O'Neill v. Supreme Council American Legion of Honor (N. J.), 1-422. Regulating benefit in case of suicide. — An amendment of a benefit society's by- laws limiting the benefit in case of suicide to five per cent, of the face of the certificate for each year the member " shall have been continuously a member of the society," is void as to an existing member who received his certificate at a time when the society's by-laws provided that it would not pay the benefit of a member who committed suicide, whether sane or Insane, unless he was at the time under treatment for insanily. Olson v. Court of Honor (Minn.), 10-622. Increasing assessments. — It is within the statutory and charter power of a fra- ternal beneficiary association, organized under the laws of Massachusetts, so to amend its by-laws as to increase the assess- ments made against members to provide for the payment of death benefits, where the amendments are necessary to insure the pay- ments of the sums named in the associa- tion's benefit certificate; and it is no objec- tion to such amendments that they classify the members according to age. Reynolds v. Supreme Council (Mass.), 7-776. An amendment to the by-laws of a fra- ternal beneficiary association does not violate the contract rights of pre-existing members. though it increases the amounts of the assess- ments which they are required to pay, where the amendment is necessary to enable the association to pay the sums named in its benefit certificates, and the members, at the time of joining the association, expressly agreed to be bound by the laws and rules of the association then in force or thereafter adopted. Reynolds v. Supreme Council (Mass.), 7-776. Changing qualifications of benefi- ciaries. — Where a member of a beneficial association who, upon joining the association, agreed specifically to abide by and conform to the by-laws then in force or subsequently to be adopted, voluntarily surrenders his benefit certificate and has a new one Issued, he cannot designate in the new certificate a beneficiary not contemplated By a valid and reasonable subsisting by-law, though at the time he joined the association the by-laws then existing permitted the designation of " any person or persons selected by the mem- ber." Caldwell v. Grand Lodge (Cal.), 7-356. Placing occupation in extra hazard- ous class. — The fact that an amendment to the by-laws placing the occupation of " switchmen " in the list of extra hazardous risks is not in . terms retroactive does not indicate an intention of the society to ex- clude from its operation those who are mem- bers when it is passed and who have agreed to be bound by future amendments. Gilmore V. Koiights of Columbus (Conn.), 1-715. A member of a fraternal benefit society who • agrees in his application for member- ship not to engage in any occupation deemed by the society at the time or thereafter to be extra hazardous, and also to be bound by the reasonable by-laws of the society then in force or thereafter adopted, will be bound by an amendment of the by-laws adopted after he becomes a member and adding cer- tain occupations to extra hazardous risks. Gilmore v. Knights of Columbus (Conn.), 1-715. An amendment to the by-laws of a fra- ternal benefit association placing the occu- pation of " switchmen " in the list of extra hazardous risks is reasonable. Gilmore v. Knights of Columbus (Conn.), 1-715. 6. Assessments. a. Notice of assessments. Publication in ne-nrspaper. — Where the constitution of a benefit society provides that printed notices of assessments shall be sent to the members and that the oflScial or- gan of the society shall be " an official notice of assessment to each member," the publica- tion of the notice of assessment in a news- paper is not a. notice to a member unless a copy of the paper is sent to him. Grand Legion, etc., v. Beaty (111.), 8-160. b. Forfeiture of certificate for failure to pay. General rule stated. — Where the by- laws of a beneficial society and a contract 380 ANN. CAS. DIGEST, VOLS. 1-20. between the society and a member so pro- vide, the failure of a member to pay an assessment within the time stipulated oper- ates to disconnect him from the society and to forfeit all claims of the member and the beneficiaries named in the certificate to the benefit fund of the society. Supreme Com- mandery v. Bernard (D. C), 6-694. Application of advance payment. — Until an advance payment exacted of a mem- ber of a mutual benefit association prior to his initiation has been duly applied to some assessment, the member cannot be held to be in arrears as to an assessment or sub- jected to a forfeiture for its nonpayment. Trotter v. Grand Lodge (Iowa), 11-533. Wrongful refnsal to accept payment. — Where a member of a beneficiary associa- tion ofifers to pay dues to an officer whose duty it is to receive them, and such officer re- fuses to accept the same, the association can- not base the forfeiture of the promised benefit on the nonpayment of dues. Foresters of America v. Hollis (Kan.), 3-535. Survival of right to reinstatement. — The right of a disconnected member of a beneficial society to reinstatement upon the payment of overdue assessments is personal to him and does not survive his death. Su- preme Commandery v. Bernard (D. C), 6-694. When the rules of a fraternal beneficiary association provide that a suspended member to be reinstated shall within thirty days from his suspension pay all arrears of assess- ments, such payment must be made during the life of the applicant for reinstatement. Payment of such arrears after his death, by some other person, will not effect the rein- statement, unless such payment is accepted by the association with knowledge of the death. Gifford v. Workmen's Benefit Assoc. (Me.), 17-1173. IVaiveT of forfeiture in general. — Where the by-laws of a beneficial society pro- vide that a member who fails to pay assess- ments " shall ipso facto stand disconnected from his commandery and from the order, without sentence by the commandery," the fact that the officers of the local command- ery fail to give prompt notice to the supreme commandery of the disconnection of the member does not amount to a waiver of the condition of disconnection. Supreme Com- mandery V. Bernard (D. C), 6-694. Waiver ly receiving overdue assess- ments. — Where the by-laws of a beneficial society and the benefit certificate issued there- under provide that the failure of a member to pay an assessment shall operate to dis- connect him from the society and to forfeit the benefit certificate, but the member has an absolute right to pay overdue assess- ments within a specified time after the dis- connection, the society does not waive the conditions of disconnection and forfeiture by receiving the overdue assessments within such time. Supreme Commandery v. Bernard (D. C), 6-694. A beneficiary association will not be per- mitted to assert a forfeiture because assess- ments were not paid at the times stated in the by-laws where, by the adoption of a cus- tom, or a course of conduct, it has led the insured members to believe that the assess- ments may be paid and will be received at other times. Foresters of America v. Hollis (Ean,), 3-535. A mutual fraternal benefit insurance asso- ciation may waive a forfeiture of a certi- ficate of insurance by the customary acceptance of overdue assessments, just as is the case with ordinary insurance com- panies. If there is any difference in the de- gree of strictness with which the insured shall be held to pay premiums and assess- ments promptly on time, it is in favor of members of mutual fraternal associations. Trotter v. Grand Lodge (Iowa), 11-533. Notwithstanding a provision of the laws of a mutual benefit association that any mem- ber of a, lodge " in arrears in the payment of assessments or dues on the 28th day of the month upon which the same has been called shall, from that date, stand suspended from all rights and benefits under his or her cer- tificate of membership," a member does not become suspended by automatic operation of this provision, for failure to pay an assess- ment by the day specified; and if the asso- ciation acting through its local agent has adopted a custom by which assessments are habitually received several days after the day on which the laws require payment to be made, without declaring a suspension or for- feiture, and the member is thus led to believe that literal compliance with the laws in this respect is not insisted on, a waiver of for- feiture may arise where the member dies on the 6th of the month without having paid an assessment for the previous month, the assessment being subsequently paid to the local secretary and duly forwarded by him to the grand secretary. Trotter v. Grand Lodge (Iowa), 11-533. Foiver of subordinate ofBcers to waive. — The secretary of a subordinate lodge of a mutual benefit association, charged with the duty of collecting and forwarding assessments of members, is the agent of the grand lodge, and may pursue a course of conduct in accepting the overdue assessments which will operate as a waiver of a for- feiture for the nonpayment of an assessment at the time required by the laws of the asso- ciation. Trotter v. Grand Lodge (Iowa), 11-533. Whether waiver will be found in any par- ticular case depends, not on the intention of the party against whom it is asserted, but on the effect which his conduct or course of business has had upon the other party. Trotter v. Grand Lodge (Iowa), 11-533. c. Personal liability for assessments. Recovery by action. — A member of an unincorporated mutual insurance association is not personally liable for an assessment for the death benefit of another member at the suit pf the latter's beneficiary where the only provision in the contract of membership as BENEVOLENT, ETC., ASSOCIATIONS. 381 to compelling payment of assessments is for- feiture of membership for nonpayment. Cochran v. Boleman (Ind.), 1-388. Where a member of an incorporated bene- ficial association has been expelled for non- payment of dues in accordance with the by-laws, the unpaid dues are not debts re- coverable at law at the suit of the associa- tion. L'Union St. Jean Baptiste de Paw- tucket V. Ostiguy (R. I.), 1-401. 7. Suicide of Membee. Effect 'where certificate is silent. — The action of a member of a fraternal bene- fit society in intentionally taking his own life while he is sane does not defeat the right of his wife, who is a beneficiary in his bene- fit certificate, to recover the benefit, where the contract of insurance is silent as to the effect of suicide on the rights of the parties. Grand Legion, etc., v. Beaty (111.), 8-160. Although the insurance certificate of a fra- ternal beneficiary order contains no provision in regard to the death of the insured by sui- cide, a provision against suicide is implied, and no action can be maintained on the cer- tificate by the legal representative of the insured if the death of the latter was inten- tionally caused by himself when of sound mind. Davis v. Supreme Council (Mass.), 11-777. Snicide ivhile insane. — Where the death of the insured is the result of his volition, he having the conscious purpose to end his life, and the intelligence to adopt means to that end, it is his own act, and avoids the certificate sued upon, even though he was so far insane as not to be morally responsible for his conduct. Davis v. Su- preme Council (Mass.), 11-777. Under a benefit certificate providing that it shall be void " if the member holding this certificate . . . shall die . . . by any means or act which if used or done by such member while in the possession of all natviral faculties unimpaired would be deemed self- destruction," a death by suicide avoids the policy, whether the insured is sane or insane at the time of the act. Clemens v. Royal Neighbors (N. Dak.), 8-1111. Legality of rule redncing benefit. — A provision in the certificate of a benefit in- surance to the effect that the beneficiary shall be entitled to recover thereunder, in case of suicide of the assured, only one-third of the amount otherwise due, is legal and bind- ing and in no wise affected by a subsequent incontestable clause in the certificate. Chil- dress V. Fraternal Union of America (Tenn.), 3-236. 8. Benepiciabies. a. In general. Interest of member in benefit. — A member of a fraternal or beneficial associa- tion has no such interest or property in the proceeds of the certificate therein as will im- press such proceeds with a trust in favor of his estate or his creditors. Warner v. Modern Woodmen of America (Neb.), Z- 660. Bight to benefit upon failure of beneficiaries. — Where a certificate in a beneficial association provides that payment thereof shall be made only to certain persons as beneficiaries, and the by-laws of the asso- ciation and a state statute contain the same provision, the death of such member, without the existence of any one entitled to be made a beneficiary under his certificate, creates no interest in his estate to the fund mentioned therein, and his administrator cannot recover against the association on such certificate. Warner v. Modern Woodmen of America (Neb.), 2-660. ■ Where a certificate of a beneficial associa- tion, together with the by-laws and a state statute, provide that payment thereof shall be made to certain persons only as bene- ficiaries, and the certificate is payable to the legal heirs of the member, who dies leaving no heirs, and without designating any other beneficiary, and it appears that no one is in existence who could legally become such bene- ficiary, no equitable rights accrue to either creditors or to the estate of the deceased member, and the fund contemplated by the certificate will revert to the society. War- ner v. Modern Woodmen of America (Neb.), 2-660. Vested interest in certificate. — The designated beneficiary of a certificate of bene- fit insurance, where the beneficiary may be changed at any time by the insured, has no vested interest in the insurance, and no greater rights under the certificate as against the defense of suicide, than the legal repre- sentatives of the insured. Davis v. Supreme Council (Mass.), 11-777. Estoppel of association to deny qual- ifications. — A mutual insurance associa- tion cannot resist payment of its insurance certificate on the ground that the member's sister-in-law, who is the designated bene- fiaiary, is not a proper person to be so desig- nated, where the relationship appears upon the face of the certificate issued by the asso- ciation to her and the association has re- ceived the payment of dues thereon. Stronge V. Supreme Lodge (N. Y.), 12-941. Where the name of a person who does not belong to the class of persons who may be designated as beneficiaries, under the rules of a beneficial association and the statute regulating such associations, is inserted in a benefit certificate, such person has no right to receive any part of the benefit fund, and the acceptance by the association of assess- ments paid after his name has been so in- serted does not confer such right. Modern Woodmen v. Comeaux (Kan.), 17-865. Necessity of insurable interest. — The rule of public policy which forbids one from insuring for his own benefit a life in which he has no insurable interest does not pre- vent a person who secures a death benefit certificate on his own life and pays the premium thereon from designating as bene- ficiary one who has no insurable interest. Dolan V. Supreme Council (Mich.), 15-232. 382 ANN. CAS. DIGEST, VOLS. 1-20. b. Meaning of terms descriptive of bene- ficiaries. Legal heirs. — The term " legal heirs," when used to designate the beneficiaries in a benefit certificate issued by a benevolent asso- ciation, means the persons designated as dis- tributees by succession statutes, and there- fore includes the widow of the insured if she is included among the distributees by the statute of the state where the certificate is issued and where the insured lives and dies. Thomas v. Covert (Wis.), 5^56. Member of family. — The stepfather of a married woman, who is not a member of her household, is not a member of her family within the meaning of a statute designating and restricting the classes of persons who may be beneficiaries in a, benefit certificate issued by benefit societies. Supreme Lodge V. Dewey (Mich.), 7-681. Immediate family. — Where the charter of a mutual fraternal benefit association de- fines one class of persons to whom the death benefit of a member is payable as " such person or persons of the immediate family of said member as by him designated," the words " immediate family " should be inter- preted as meaning a group of persons, of which the insured member is one, connected as one family, and including all persons bound together by ties of relationship, as parents and children living together as mem- bers of one household under one head. The words do not exclude from the class of desig- nated beneficiaries every person whom the head of the family is not legally bound to support, such as an adult daughter who re- sides at her father's house, as her home, and has no other place of residence. Dalton v. Knights of Columbus (Conn.), 11-568. In an action by the adult daughter of a member of a mutual benefit association to recover, as his designated beneficiary, his death benefit, a requested charge that the daughter was not her father's legally desig- nated beneficiary, in view of the charter provision of the association limiting the beneficiaries to the member's " immediate family," if at the time of his death she had separated herself from his household, is prop- erly refused as an incorrect statement of law and as an insufiicient and improper state- ment on which to base a finding of fact, in view of the evidence, where the court in its charge has fairly stated the conflicting claims as to the facts proved upon which the jury must find whether the daughter remained, at her father's death, a member of his house- hold. Dalton V. Knights of Columbus ( Conn. ) , 11-568. Dependent. — The term " dependent," as used to designate a beneficiary in a benefit certificate defined. Caldwell v. Grand Lodge (Cal.), 7-356. A married woman, whose husband is ca- pable of supporting her, held not to be de- pendent upon another man within the mean- ing of the term as used to designate a bene- ficiary in a. benefit certificate. Caldwell v. Grand Lodge (Cal.), 7-356. Where D., who is an unmarried man with- out living relatives and a member in good standing of the order of Modern Woodmen of America, being sick and without a home, enters into an agreement with a neighbor, who is keeping a hotel, for the purpose of securing a place where he can live and be cared for, whereby it is agreed that the name of such hotel keeper shall be inserted in D's benefit certificate as beneficiary, and that he shall have all of the property which is owned by D., in return for which he shall furnish D. with a home at Eis hotel, as a member of his family, during D.'s lifetime, and, in pursuance of such agreement, the name of the hotel keeper is inserted in the benefit certificate, he being designated therein as a " dependent," and D. makes a will be- queathing his property to the hotel keeper's wife, and then goes to the hotel to live and remains there until his death, which occurs a few months afterwards, the hotel keeper has no valid claim against the order as a bene- ficiary, since he is not a dependent upon D. within the meaning of the law relating to fraternal associations. Modern Woodmen v. Comeaux (Kan.), 17-865. c. Change of beneficiary. When original beneficiary may pre- vent. — The designation of the beneficiary of a mutual benefit certificate of insurance in pursuance of a contract fully performed by the beneficiary, cannot be revoked and a new beneficiary named at the pleasure of the in- sured, even though the by-laws of the asso- ciation provide that a change of beneficiary may be made at any time without the con- sent of the existing beneficiary. Stronge v. Supreme Lodge (N. Y.), 12-941. 9. Actions to Eecovee Benefits. a. In general. Rights of member on repudiation of certificate. — Where a beneficial organiza- tion issues to a member a certificate entitling the beneficiary to a stated sum on the death of the member in good standing, on condition of paying the periodical assessments and complying with the by-laws, the member has such an interest in the enforcement of the certificate as entitles him to maintain an action to recover damages for its repudiation. O'Neill v. Supreme Council American Legion of Honor (N. J.), 1-422. Where a certificate issued by a beneficial organization is repudiated by it during the life of the member, the latter need not con- tinue the payment of the assessments or further perform the conditions precedent in order to sue for damages. O'Neill v. Supreme Council American Legion of Honor (N. J.), 1-422. Where a beneficial organization attempts by an unauthorized by-law to make a ma- terial modification of a certificate previously issued, a member must exercise his option to treat such by-law as a repudiation of the contract within a reasonable time, an'd ordi- BENEVOLENT mSTITUTIONS — BEST, ETC., EVIDENCE. 383 narily what ia reasonable time is a question for the jury. O'Neill v. Supreme Council American Legion of Honor (N. J.), 1-422. Necessity of pleading insurable in- terest. — In an action to recover insurance procured by a member of a beneficiary asso- ciation on his own life for the benefit of another, it is not necessary for the bene- ficiary to allege that he had an insurable in- terest in the life of the insured, and if the association relies on the defense of no in- surable interest it must plead and prove it. Foresters of America v. Hollis (Kan.), 3-535. Snffiolenoy of proofs of death. — A provision in a benefit certificate that the benefit shall be paid within a specified time after " satisfactory proof of death of said member, and of the identity and right of claimant, and of the validity of the claim," does not require a claimant as a prerequisite to the bringing and maintenance of an action on the certificate to show that the beneficial association has no good defense against the claimant on the ground of misrepresentation by the member in his application for mem- bership, and therefore a proof of death which is otherwise sufficient to make out a prima facie case for the claimant is not rendered insuflScient by the fact that it shows material misrepresentations in the application. Lyon V. United Moderns (Cal.), 7-672. Lack of insurable interest as defense. — Where a benefit society files a bill of in- terpleader to determine the title to the pro- ceeds of a benefit certificate issued subject to the provision that if the designated bene- ficiary proves to be an unlawful one, the benefit shall be payable to the husband of the member, the husband, inasmuch as he has a direct interest in the contract which he is entitled to enforce, may show a want of in- surable interest in the designated beneficiary. Supreme Lodge v. Dewey (Mich.), 7-681. b. Evidence. Cause of disease. — In an action on a benefit certificate, where the witness has tes- tified that the insured told him he thought that he had a certain disease, it is not erro- neous to refuse to permit the witness to answer a further question as to the cause to which the insured attributed the disease. Taylor v. Modern Woodmen (Wash.), 7-607. Prior application to another com- pany. — In an action on a benefit certificate where the defense is interposed that a false date of birth was given In the application for membership, a prior application for life insurance in another company made under circumstances of a nature to vouch for the truthfulness of the statements and repre- sentations therein contained, in which the date of birth is different from that given in the application involved in the action, is com- petent evidence tending to establish the true date. Taylor v. Grand Lodge (Minn.), 11- 260. Declarations and admissions of de- oeased. — Declarations and admissions of a person, since deceased, made ante litem motam respecting the date of his birth, are admissible in evidence against his beneficiary in an action to recover upon a mutual benefit certificate issued to him in hia lifetime, in which action the defense interposed is that a false date of birth was given in the ap- plication for membership, the basis for the in- surance. Taylor v. Grand Lodge (Minn.), 11-72. In an action on a benefit certificate, a written report made by the examining phy- sician at the time of the examination of the insured upon his application for membership is the best evidence of the disclosures made at that time by the insured as to the state of his health, and therefore it is not errone- . ous to refuse to permit the examining physi- cian to testify orally as to such disclosures. Taylor v. Modern Woodmen (Wash.), 7-607. Parol testimony regarding contents of books. — Where in an action on a cer- tificate of a benefit society the defendant, in order to show that the insured took his own life to escape punishment for crime, intro- duces evidence tending to show that for a long period of time preceding his death the insured had been engaged in a series of em- bezzlements, it is error to permit witnesses to testify on the subject of these embezzle- ments as to what the books of account of the insured show, without producing the books themselves. Davis v. Supreme Council (Mass.), 11-777. Burden of proof. — Where in the peti- tion in a suit on a certificate issued by a benefit society, containing a contract of life insurance, the plaintiff alleges, in one para- graph that the insured was a member in good standing and the certificate was in full force at the time of the death of the insured, and in another paragraph, that the plaintiff had furnished the defendant with proof of the death and performed all the conditions of the contract, and in still another paragraph, that all assessments and dues were duly paid, and the answer of the defendant denies that the insured was a member in good standing at the date of his death, and that the certifi- cate was in full force, and also denies, in a general way, the allegations in the other paragraphs, the denial of the defendant is in due form, and the effect of the same is to place upon the plaintiff the burden of proving the allegations as made, notwithstanding they are genral in their nature. Supreme Lodge V. Grenshaw (Ga.), 12-307. BENEVOIiENT INSTITUTIONS. Commitment of wayward children, see In- fants, 4 e. BEQUESTS. See Wills. BEST AND SEOONDART EVIDENCE. See EyiDENCE, 5. 384 ANN. CAS. DIGEST, VOLS. 1-20. BETTERMENTS. See Impbovements. BETTING. See Gaming and Gaming Houses. BEVERAGES. See Intoxicating Liquoes. BIAS. Disqualification of judge, see Judges, 4 c. Disqualification of jurors, see JuBT, 5 b. Ground for change of venue, see Change of Venue, 1 d. Exhibition of bias by jurors, see JUBY, 7 d (9). Impeachment of witneaa for bias, see Wit- nesses, 5b (2) (c). BIBLE. Beading Bible in public schools, see Schools, 6. BICYCLES. Duty of municipality to make highways safe for bicycles, see Streets and High- ways, 7 d. Riding bicycle on railroad track as trespass, see Injunctions, 2 a. BIDS. See Auctions and Auctioneers. Advertising for bids for public work, see Municipal Corporations, 7 d. Chilling or puffing bidding at judicial sales, see JcTDiciAL Sales. Defective title as affecting liability of bidder at sheriff's sale, see Executions, 8. BIGAMT. 1. What Constitutes. 2. Indictment. 3. Defenses. 4. Evidence. 1. What Constitutes. Place of second marriage. — The pro- vision of the Canadian statute which defines bigamy as " the act of a person who, being married, goes through a form of marriage with another person in any part of the world," is intra vires of the Dominion Parlia- ment, when it is read in connection with the limitation imposed by the provision of the statute that " no person shall be liable to be convicted of bigamy in respect of having gone through a form of marriage in a place not in Canada, unless such person, being a British subject resident in Canada, leaves Canada with intent to go through such form of marriage." Rex v. Brinkley (Ont.), 10-107. The North Carolina statute (Revisal, 1905, § 3361) making it a crime for a person having a lawful husband or wife living to marry a second time, whether the second marriage is in " North Carolina or else- where," is unconstitutional in so far as it relates to second marriages outside the state. State V. Ray (N. Car.), 19-566. Cobabitation under foreign Mgamons marriage. — Where the wife of a domiciled Canadian obtains in one of the United States a divorce which is invalid in Canada, and therafter the husband, acting under legal advice that the divorce is valid and that he is at liberty to marry again, goes through a form of marriage with another woman in such state, after having gone there for the purpose of contracting such marriage, he is guilty of bigamy under the Canadian statute. Rex V. Brinkley (Out.), 10-407. The Missouri statute making it a penal offense for persons to cohabit within the state who have contracted a bigamous marriage in another state is constitutional, though it de- nominates the offense as " bigamy " instead of as a " felony," as it is within the power of the legislature to make such cohabitation bigamy, and the statute is not directed against the act of contracting the void mar- riage. State V. Stuart (Mo.), 5-963. ■ Cohabiting under a foreign bigamous mar- riage is not within the purview of the North Carolina statute (Revisal, 1905, § 3361) making it a felony for a person having a lavirful husband or wife living to marry a second time, and providing that an offender may be prosecuted in any county in which he may be apprehended. State v. Ray (N. Car.), 19-566. 2. Indictment. SnfBciency nnder Missouri statute. — An indictment held suflScient . under the Missouri statute making it a penal offense for persons to cohabit within the state who have contracted a bigamous marriage in another state. State v. Stuart (Mo.), 5-963. Averments as to former marriage. — An indictment for bigamy must distinctly aver a former marriage, and must allege the name of the former wife or husband. An indictment which merely alleges that the de- fendant did unlawfully marry a named woman, "he, the said defendant, then and there having a lawful former wife then liv- ing," is fatally defective. Bryan v. State (Tex.), 16-515. 3. Defenses. Belief in death of former spouse. — It is bigamy for a married person, whose spouse is absent from the state or from the country, but is alive, to marry a third per- BIGAMY — BILLS AND NOTES. 385 son before the expiration of the time pre- scribed by the statute, even though the spouse contracting such second marriage does so under an honest belief, based upon reason- able grounds, that the absent spouse is dead. State V. Ackerly (Vt.), 8-1103. Belief in validity of divorce. — It is no defense to a charge of bigamy that the defendant entered into the second marriage under an honest but. mistaken belief that the first wife was dead or had obtained a divorce. People !'. Spoor (111.), 14-638. 4. Evidence. Abienoe of criminal intent. — Under the Illinois bigamy statute providing that " whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife . . . shall be guilty of bigamy," but pro- viding that the act shall not extend to mar- riages entered into under the belief that the former spouse, who has been continually absent and unheard of for five years, is dead, or to marriages entered into after a lawful divorce, a divorce relied on as a defense to a prosecution for a second marriage must be shown to have been legally granted, and evi- dence that the defendant had no criminal in- tent in entering into a second marriage or believed in good faith that the former spouse had obtained a divorce is not admissible. People V. Spoor (111.), 14-638. Validity of prior marriage. — To sus- tain a prosecution for bigamy the evidence must show beyond a reasonable doubt that the former marriage of the parties was a valid legal marriage. MeCombs v. State (Tex.), 14-72. Presumption as to validity of prior marriage. ^ In a prosecution for bigamy it is not necessary for the prosecution to show, in addition to the fact of the first marriage of the accused, that there were no impedi- ments to such marriage, as a valid marriage is presiuned and the burden of showing the illegality thereof is on the accused. State v. Kniffen (Wash.), 12-113. Where a person, legally married, enters into a second marriage which in its inception is. bigamous and void, the fact that the parties to the second marriage continue to live together as husband and wife after the dissolution of the first marriage by divorce, without any new contract of marriage or knowledge by the innocent party of the fact of the former marriage or divorce, does not create any presumption of a valid marriage by cohabitation or render bigamous a third marriage contracted by the party to the first and second marriages after the dissolution of the first marriage. McCombs v. State (Tex.), 14-72. Admissibility of marriage license and certificate. — In a prosecution for bigamy in the state of Washington a copy of a mar- riage license and certificate of marriage from another state is not a record of a court which under the Washington statute may be authenticated by the clerk " or other officer haying charge of the records of such court," yois. 1-20 — Ann, Cas. Dwkst, — 25. but is a public record of a county, and to be admissible in evidence must be certified as required by section 906 of the revised stat- utes of the United States. State v. Kniffen (Wash.), 12-113. BII.L BOARDS. Effect as violation of building restrictions, see Deeds, 3 c. Begulation of billboards in municipalities, see Advertisements; Municipal Cobpoba- TIONS, 5 f (2). BILLS. See Statutes, BILLS AND NOTES. 1. FOBM, 386. 2. Considebation, 386. 3. Capacity op Pasties, 386, 4. Execution and Deijveby, 387, 5. Acceptance, 387. 6. Negotiability and Transfeb, 387. a. Effect of various provisions upon negotiability, 387. b. Method of negotiation or transfer, 387. 7. Maturity, 388. 8. Pbesentment and Demand, 388, 9. Pbotest and Notice, 388. a. Who may protest, 388. b. Right to notice, 388. c. Sufficiency of notice, 388. d. Waiver of protest or notice, 388. 10. DiSCHAEGE and PAYMENT, 389. 11. Eights and Liabilities of Parties, 389. a. In general, 389. b. Assignee of legal title, 390. c. Bona fide purchasers, 390. (1) Who are, 390. (2) What defenses available against, 390. d. Purchasers with notice, 391. e. Transfer in violation of contract, 391, f. Forged instruments, 391. g. Stolen instruments, 392. h. Conflict of laws, 392. 12. Actions, 392, a. Who may sue on note, 392, b. Jurisdiction, 392, c. Plaintiff's pleadings, 393, d. Defendant's pleadings, 393, e. Evidence, 393. f. Instructions, 394. g. Recovery of attorney's fees, 394, See Checks, Accepting promissory note for premiums as waiver of breach of condition in policy, see Insurance, 3 c (4), Accommodation notes made by married women, see Conflict ot La^^s, 386 AKN. CAS. DIGEST, VOLS. 1^20. Alteration, see Altebation of Instruments. Authority of agent to receive check or draft ih payment, see Agency, 3 a (2). Anthority of officers to bind corporation, see COBPOBATIONS, 7 b. Bona fide holder of note given by munici- pality for money borrowed without au- thoritV, «fefe MtjNteiPAt COBPOBATIONS, 8 d. COttstructibh of note and mortgage as parts of one transaction, see MOBfOAOES and DEEDS OF TBdST, 7. Destription of stolen bank notes in indict- ment, see Laeceny, 5 a. Effect of intermarriage between parties, see Husband and Wife, 2 i. Execution by partngtship, see Pabtneeship, 5 a. Law governing validity and construction, see Conflict of Laws, 3d (2). Liability of principal on indorsement by agent, see Agency, 3 g (2). Liability to attachment, see ATTAdHitErfT, 4. Limitation of action on demand note, see Limitation of Actions, 4 a ( 2 ) ( a ) . Limitation of action on foreign note, see LllttfATION OP ACTIONS, 2 a. Merger of notes in judgment, see Judg- ments, 5- a. Obtaining note by false pretenses, see False Pbetensbs and Cheats, 1 e. Payment by negotiable paper, see Pay- ment, 1. Promissory note after payment as subject of conversion, sea Tboveb and Conveb- SION, 2. Taxation of bills aud notes, see TAxAtioN, 2 c; 3 b. Transfer, see Conflict of Laws, 3 d (2). Validity of note by parent to child without consideration, sco Advancements, 1. Verbal guarantee by transferrer, see Fbauds, Statute of, 6 0.. Warehouse receipts as negotiable instru- ments, see Wabehouses, 2. 1. FOBM. What conititntes negotiable bill of «tte&ailge. — A VPrittefl order directing the payment of a certain amount of money " on account of eofltf act " between the drawee and the drawer, although it states no specific time of payment, is a negotiable bill of ex- change, payable absolutely on demand, and the words' quoted are not a direction to charge a particular fund but merely to indi- cate the fund to which the drawee is to look for reimbursement. First National Bank v. Lightner (Kan.), 11-596. Omission of amotant fa^om body of in- strument. — Where the amount for which a promissory note is given is omitted from the body thereof, the marginal figures may be referred to to supply the omission. Kim- ball V. Costa (Vt.), 1-610. Where the amount for which a promissOIfy note is giteil is omitted from the body thereof, no recovery can be had upon the in- strument until the blank is filled in, though the amount is stated in the margin of the note in words as well aa in figures. Chest- nut V. Chestnut (Va.), 7-S02. Notes given for patent or patented rights. — Books and the right to sell books are not patents or patented rights within the meaning of the Arkansas statute (Kjrby'a Digest, §§ 513, 514), which requires notes given for patents or patented rights to be in a certain form and to contain certain state" ments on their face. Hogg v. Thurman (Ark.), 17-383. Joint maker as indorser. -~ Where a note runs, " we jointly and severally promise to pay," and is signed by A and B on its face, and B prefixes to his signature the word " indorser," it is deemed to be the note of A indorsed by B. Hence, in default of protest for nonpayment and of notice thereof, B is discharged from liability on the note. "Tap- ley i: Paquet (Can.), 19-569. 2. CONSIDBBATION. Effeet of absence between nominal paieties. — If a notfe is iiiade and delivwed to an attorney for hiS Client, and deliirered by him to the Client, being payable oa its face to the attorney or bearer, the absehce of a tOtisideration between the Motoef pet' sohally aiid the makisr of the note Will Uflt affect its statute, but the question will tUi-h upon whether there is a valid considetatiott as between the clitot and the maker. Ditikg I. Andrews (Ga.), 16-1O70. Effect of pavttal failn»e. — A partial failure of consideration taay be shbWn in re- duction of damages in an action upofl a proBiissorv note. Hathofii v. Wheelwright (Me.), 2-428. The holder of a note given in consideration of services to be raidei^d by the pAfke, which services are never fully "perfotfUedC IS entitled to recover only such a propol'tiott of the face of the note as the amount of Ser- vices rendered bears to the amouftt of sef- vi. SttlliVan (Ont.). 4-72D. 3. CaPaOITt of Partiks. VaUdlty of note indorsed by Innatle. — In an action against the maker of a prom- issory note by one to whom the payee has in- BILLS Al^t) i^OTES. 38Y dOfsed aftd tt-attsfel'i'ed tlie sattio, it is a good defense to tlrt action seeking a »e(Sov«»-y on the tote that the payee was at the time of the indorsement and transfer insane. Walker V. Winn (Aia.), 4-537. In an action against the maker of a proiji- issory note by one to whom the payee has indorsed aftd transferred the same while in- sane, it is no defense that the consideration for the transfer of the note to the indorsee Was grossly inadequate and that the transfer was a fraud on the payee. Walker r. Winn (Ala.), 4-537. 4. Execution and Deliveky. EktHusit! evidence of eicecittioii. '— Where the execution of a note is denied by a plea of Mn est foicfam, the note Will not be received in evidence until some extrinsic «vi' deuce of its execution has been submitted. Slight evidence iS SUlficient to lay the founda- tion for adtnission, but the suiSciency of the evideaee is for determination bv the court. Patton r. Bahk of La Fayette ("G-a.), 4^39. Recitals ia mortgage as proof «f «se- oution. — The recitals in a mortgage as to the date, amount, etc., of a note which the mortgage was given to secure, though suf- ficient evidence that there was such a note outstanding, do not identify any particular note as the one deseribed, and therefoi-e do not dispense with proof of execution in an action on a note corresponding to the one described in the mortgage. Matter of Pirie (X. Y.), 19-672. Parol evidence of conditional de^ livery. — Parol evidence is admissible to show that a promissory note not under Seal was delivered merely as security for the per- formance of a collateral oral agreement and that it has been discharged by the perform' ance of such agreement. Oakland Cemetery Assoc. V. Lakins ( Iowa ) , 3-559. WJien deliveiry is not essential. — It seems that delivery of a negotiable instru- ment is not essential to its validity in the hands of an innocent holder for value, even though the maker has lost possession by theft. Worsham v. State (Tex.), 18-134. 5. ACXDEPTANCE. ITeglect or failure to retui^n insttil- ment. — tender the Arkansas statute pro- Tiding that " every person upon Whotn a bill 6f exchange is drawn, and to whom the same toay be delivered for acceptance, who shall deStlrsy such bill, 6r refuses within twenty- four hoUrs aftelr such delivery, or within such time as the holder may allow, to return the bill, accepted or nonaccepted, to the holder, shall be deetofetl to have accepted the Same," the mere ftfeglect or failure to return does not iotstitute an ateeptawee. St. Louis Soathwestem fe. Co. ij. James (Ark.), 8-611. Where there is a statute requiring that an acceptance of a bill of exchange shall be in writing, the mere failure of a drawee to re- turn a bill delitered to him for accetitiUftce does not, in the absence 'of any demand or re()iie8t for return, bind hirti as aeceptor, St. Louis Sotithwestei-n R. Co. % James (ArlSi), 8-61iv 6. NebotiabiliTy and TbansfeB. a. Effect of various provisions upoh negotia- bility. Argument to pay eKofaange. — A prom' iesory note is not rendered nonnegotiaWe by an agreement to pa^ the sum named with exchange on a point other than that at which it is payable. Haslach r. Wolf (Neb.), 1-384. Argument to pay costs and espebses. — A note which provides, in case of collec- tion through an attorney or by legal pro- ceedings, for the payment of costs and ex- penses Including a certain per centt for attorney's fees, the expenses not being speci- fied, is nonnegotiable. Green r. Spires (S. Car.), 4-261. Stipulation for attorney's f eesi — Under the Utah statute (Cbnip. Laws 1907, § 1554), declaring that a provision in a note for an attorney's fee does not ma.ke the amount to be paid uncertain, a provision in a note by which the maker agtees to pay a reasonable sum as an attorney's fee does not render the note nonnegotiable. McCormick V. Swem (Utah), 20-13^8. Clause retainii^ title te property sold. — Under the Idaho negotiable instru- ments statute a promissory note containing a stipulation that the title to property for which the note is given shall, until payment, be retained by the payee, is non-negotiable, and, although transiferred before maturity, is subject to all the equities between the maker and the payee. Kimpton v. Studebaker Bros. Co. (Idaho), 14-1126. A note in the ordinary form of a negotiable instrument, Which contains the provisions that it is given, subject to the approval of the payee, for a stock of merchandise received of the payee, and that the title thereto shall remain in him until the note is paid, is a nonnegotiable instrument. Worden Grocer Co. V. Blanding (Mich.), 20-1332. Agreement tor extension of time of payment. — The negotiable quality of a promissory note is not destroyed by » pro- vision therein thai the makers and indorsers thereof severally Waive presentment of pay- ment aftd notice of protest, and consent that the time of payment may be extended with- dtlt ilotie^, when by its terms it is made pay- able on of before a day named. First Nat. Bank V. Buttery (N. Dak.), 17-62. b. Method of negotiation Ol- transfer. Instrument payable to offieer of baflk. — Under the Iowa negotiable instruments act, where an instrument is dra^vn Or ifldorfeed to a person as " cashier " or othter fiscal ofScef of a bank, it is deemed prima fatU to be piy able to the bank of which such person is officer, and it oaay be negotiated eithst by the indorsement of the bank or by the inderee- ment of the biffleer. Gfrlffiii v. Efsiiine (Iowa), O'^nes. X>eUv«»y 6f itiiitrttmebt ^ayalile to otAhtf, - Within thfe hegotiWlfe Instruments S88 ANN. CAS. DIGEST, VOLS. 1-20. aw a mere delivery of a negotiable instru- nent payable to order vests title in the trans- eree and carries with it the right to compel ;he indorsement of the transferrer. Swenson !. Stoltz (Wash.), 2-504. Effect of indorsement aa assignment. — The indorsement of a non-negotiable prom- ssory note operates as an assignment therof, vhich under the Massachusetts statute of 1897 enables the assignee to sue on the note n his own name. MacKeown v. Lacey [Mass.) 16-220. Indorsement and delivery of non- legotlable note. — Where the payee of a lonnegotiable note indorses it, and then de- ivers it to the president of a corporation vho purchases the note for the corporation, ;he note is sufficiently assigned to the cor- )oration. Worden Grocer Co. v. Blanding (Mich.), 20-1332. Payment by stranger as purchase. .— The payment of a note by a stranger to the contract represented by the note, and the de- ivery thereof to him, will be held to be a )urchase of the note until an intention to the contrary is shown. Johnston v. Schnabaum I Ark.), 15-876. 7. Matubitt. Default in payment of interest. ^ Nhere a promissory note made payable two rears after date provides that the interest ;hereon shall be paid annually, and default n the payment of the first instalment of in- ;erest is made, the note does not become >verdue merely because the payment of the nterest is in default. Union Investment Co. ;. Wells (Can.), 11-33. Where a promissory note, due five years TOm its date, with interest payable annually m a fixed day, contains a provision that if ;he interest is not paid when due, the payee nay declare the entire debt due; and, after :he failure of the debtor to pay an instal- nent of interest, the attorneys for the cred- tor give notice to the administrator of the leceased debtor of an intention to bring suit )n the note at the next term of court, and m the return day of such term bring suit for he entire amount of the note, this is evidence )f an election to declare the whole debt due or nonpayment of the interest. Harris v. 'owers (6a.), 12-475. Such circumstances furnish evidence of an ntention to declare the whole debt due for lonpayment of interest, although the maker >f the note has died and an administrator las been appointed, and although the creditor loes not bring a separate suit on the note, )ut joins with other creditors in an equitable letition praying to have his right enforced md also for the administration of the estate )y a court of equity. Harris v. Powers [Ga.), 12-475. 8. Pbesentment and Demand. When unnecessary. —Where a promis- lory note is payable on demand at a partic- ilar place, no demand or presentation at the )lMe named is necessary in wder to entitle the holder to maintain an action upon the note against the maker thereof. Farmers National Bank v. Venner (Mass.), 7-690. 9. Pbotest and Notice. a. Who may protest. Notary Indirectly interested in note. — The indirect pecuniary interest of a notary in a note does not render him incompetent to protest it for nonpayment. Patton v. Bank of Lafayette (Ga.), 4-639. Stockholder of bank. — ' A notice of pro- test to the indorser of a dishonored promis- sory note held by a bank is not rendered in- valid by the fact that the note is protested and the notice given by a stockholder of the bank. Bank v. Eavenswood v. Wetzel (W. Va.), 6-48. b. Right to notice. Bight of surety on note. — A surety on a promissory note is not entitled to notice of its dishonor, as he is not an indorser, but is primarily liable. Rouse v. Wooten (N. Car.), 6-280. c. Sufficiency of notice. In general. — . A notice of protest is suf- ficient which by express terms or by neces- sary implication informs the indorser of the identity of the paper, of due demand, of its protest, and of its dishonor. Mistakes and omissions in such notice which obviously could not have misled or prejudiced the in- dorser are not fatal. Derham v. Donohue (U. S.), 12-372. Where a certificate of deposit dated Janii- ary 25, 1904, and due January 25, 1905, is duly presented for payment on the latter date, and payment is refused, a notice of the presentment, demand, and dishonor, sent to and received by the indorser, though errone- ously dated January 25, 1904, instead of January 25, 1906, and omitting to recite the clause in the certificate "no interest after six months," nevertheless identifies the cer- tificate and sufficiently notifies the indorser of the due presentment, demand, and dis- honor, as he obviously could not be misled or prejudiced by the mistake and omission. Derham i\ Donohue (U. S.), 12-372. Notice delivered to administratrix of decedent. — A notice of the protest of a dishonored note is sufficient to charge the estate of a deceased indorser, where it is duly delivered to his administratrix, though it is addressed to the indorser as though hp were living. Bank of Ravenswood v. Wetzel (W. Va.), 6-48. Certificate as prima facie evidence. — A certificate of protest by a notary affords prima facie evidence of the fact therein re- cited. Patton V. Bank of La Fayette (Ga.), 4-639. d. Waiver of protest or notice. Waiver without consideration. — An accommodation inddrser of a promissory note, who, eighteen months after its maturity, wjth "■ biLLS ANt) NOTES. 389 knowledge that there has been no demand of payment or notice of dishonor, indorses there- on the words, " I hereby waive protest or de- mand of payment," is liable on his indorse- ment, though there is no consideration for the waiver. Burgettstown Nat. Bank v. Nill (Pa.), 5-476. Waiver by parol. — Subsequent to the indorsement of a negotiable instrument, de- mand, protest, and notice may be waived by parol. Dewey v. Sibert (S. Dak.), 16-151. The provisions of the South Dakota Re- vised Civil Code, relating to notice of dis- honor, do not change the above rule. Dewey V. Sibert (S. Dak.), 16-151. 10. Discharge a;^d Payment. Discharge of surety. — The fact that a bank which is the owner of a note upon which there is a surety is, at its maturity, indebted, upon general deposit account, to the princi- pal upon the note in a sum larger than that due upon the note, and fails to exercise its right to set off the amount of the note against this deposit indebtedness, and allows the de- posit to be checked out by such depositor, does not discharge the surety on the note. Davenport v. State Banking Co. (Ga.), 7-1000. Discbarge of accommodation joint maker, — Under the negotiable instru- ments law providing in effect that all per- sons signing a negotiable instrument shall be liable, whether the execution is for a valu- able consideration or as an accommodation maker, and then specifying that when the liability is secondary, it may be avoided by an agreement extending the time of pay- ment, an accommodation joint maker of a note is not discharged by an extension of time to the co-maker. Cellers V. Meachem (Ore.), 13-997. Discbarge of Joint maker by failnre to make a claim against estate of other maker. — One of the makers of a joint note is not relieved from liability by the failure of the holder of the note to make claim against the estate of the other maker within the time limited bv statute. Newhall v. Field (N. Mex.), 12-979. Sufficiency of payment to bank. — The fact that a note is made payable at a par- ticular bank does not of itself make the bank the agent of the payee or holder to receive payment; and payment to a bank of the amount due on a note made payable there, when the bank does not have possession of the note or authority to collect it, does not discharge the maker, as the bank will be treated as the agent of the maker and not of the holder. State National Bank v. Hyatt (Ark.), 5-296. Presnmption of authority to reoelTO payment. — If the person to whom payment shall be made is not designated in a note, the designation therein of the place of pay- ment does not raise a presumption of au- thority to receive payment in the person in charge of such place, unless he has posses- sion of the note, properly indorsed. Hoff- master v. Black (Ohio), 14-877. The acceptance by the legal holder of a note of interest payments from a person un- authorized to collect such payments dops not confer implied authority upon such person to receive payment. Hoffmaster v. Black (Ohio), 14-877. Burden of proving payments. — In an action on a promissory note which is in the possession of the plaintiff, the burden of proving payments is on the defendant. Ol- son V. Day (S. D.), 20-516. Burden of proving authority. — When payment has been made to a person who was not in possession of such note, properly in- dorsed, the burden of showing that such per- son was authorized to receive payment rests upon the party who makes the claim of pay- ment. Hoffmaster v. Black (Ohio), 14-877. Payment to nnauthorixed agent. — The rule that the maker of a negotiable promissory note can satisfy it only by pay- ment to the present owner or to such own- er's authorized agent, and that if the recipient of the money is not actually au- thorized to receive payment such payment is ineffectual, unless induced by unambiguous direction from the owner or justified by actual possession of the note, applies to a note secured by a mortgage. Marling f. Nommensen ( Wis. ) , 7-364. Beoovery bach of amount paid. — The maker of a non-negotiable promissory note who, with full knowledge of the facts and without fraud, duress, or extortion, pays the amount of such note to the assignee thereof without deducting a credit to which he is entitled against the original payee, cannot recover such credit from such payee. Kimp- ton V. Studebaker Bros. Co. (Idaho), 14-1126. 11. Rights and Liabilities op Parties. a. In general. Iiiabilty of accommodation maker. — The fact that one of two makers of a promis- sory note executed the note solely for the benefit of the other, and that this circum- stance is known to the purchaser of the note, does not relieve the accommodation maker of his primary liability. Cellers v. Meachem (Ore.), 13-997. Ziiablllty of maker signing as surety. — The word " surety," appended to the name of a maker of a note, cannot alter his lia- bility as to the owner thereof, and only shows that, as between the promisors, one is a principal and the other a guarantor, and both are primarily liable. Cellers r. Meachem (Ore.), 13-997. Liability of surety signing as joint maker. — Persons who, though sureties for the maker, appear on the face of a note as joint makers, are primarily liable to the holder of the note, notwithstanding any ir- regularity in the indorsement thereof. John- ston V. Schnabaum (Ark.), 15-876. Liability of indorser as joint maker. — Where a person, for the purpose of giving the maker of a promissory note credit with the payee, writes his name on the back of the note before delivery and acceptance thereof, 380 ANN. GAS. DIGEST, VOLS. 1-20. he is to be otmaidered a. joint maker &i the Dote and liable as such sa far as the holder sf the note is concerned, even though be states at the time that hia signature is an indoTseinent. Lake v. Little Eock Trust Co. (Ark.), 7-394. Iiiabilitjr of offices' on corporate note. — Where the name of a corporation is at- kached to a promissory note as maker and La followed by the names of two of its officera, ivith the designation of their respective offices, neither of the officers is liable personally; and the officer whose name appears last ia not rendered liable personally by the fact that the corporation's name appears but once. English, etc.. Mortgage, etc., Co. v. Globe Loan, etc., Co. (Neb.), &-W9. IiialiUltjr of bank on special indorse- ment, -n VVhere a promissory note indorsed and delivered to a bank is thereafter indorsed and delivered to the president of the bank for the special purpose of collection, and he subsequently redelivers the note to the bank, the bank by reissuing the note, without strik- ing out its former indorsement to its presi- dent, but without accident or mistake, be- eomea liable to the transferee as indopser, whether the reissue is before or after ma- burity of the note. Moore v. First National Bank (Colo.), 12-268. b, Assignee of legal title. Right to sue. — The holder of the full legal title of a note by assignment may sue the maker thereon though he has no benefjeial interest in the proceeds, the assignment hav- ing been made to enable him to realize on the claim in the interest of the original payee;. Manley v. Park (Kan.), 1-832. c. Bona iide purchasers. ( 1 ) Who are. Bank discounting note. — The transfer of a negotiable note to a bank in considera- tion of credit upon its books, which credit is not absorbed by an antecedent indebted- ness or exhausted by subsecjuent withdrawals, is not ordinarily a purchase of the note so as to constitute the bank an innocent holder in due course. McNight v. Parsons (la.), 15-665. A bank, by purchasing or discounting a note for a depositor and giving him credit for the proceeds on his deposit account, does not, so long as no part of the deposit is drawn out or the balance of the account ex- ceeds the amount of the proceeds of the dis- count, become a bona fide purchaser of the note for value, so as to be protected against infirmities in the paper. Union National Bank v. Winsor (Minn.), 11-204. Fniicltaser for nominal or iaadeqnate Eonslderatioa. — In order that one may claim to be a bona fide holder of a negotiable inftrument, it roust appear that he has paid a valuable consideration for its transfer to him. Any substantia) consideration is suf- ficient, but a purely nominal epnsideration is not; and even though not purely nominal, (ib« eoRsideration may still be so inadequate as to make it a question for the jur<^ whether the purchaser is a bona fide holder. Hogg' <;. Thurman (Ark.), 17-383. Notice tkat eonsidecation is ezecn> tory. -^ Knowledge by an indoi'see that the note was given in consideration of an execu- tory agreement of the payee which has not been performed does not deprive the indorsee of his character as a bona fide holder, unless he has also notice of the breach of that agree- ment. MoNioeht V. Parsons (la.), 15-663. Constmctive notice of default in in- terest. — Where a negotiable promissory note which provides for the periodical pay- ment of interest thereon is transferred after a default Ji; the pfiyment of the first instal- ment; o| interest, but before the princip£\l is due, the transferee is not charged with con- struc^ve notice of the failure to pay the interest, as the doctrine of constructive no- tice is not applicable to current Jiotes trans- ferred for value. Union Investment Co. v. Wells (Can.), 11-33. (2) What defenses available against. Usury. — The New York banking law places state banks on ap equality with na- tional banks as regards the subject of usury, and, there^forg, promissory notes, voi^ for usury as between the original parties, arg collectible ip the hands of a state bank whicb has discounted them for value before ma- tiirity and in due course without notice of the usury. Schlesinger v. Gilhoojy (N. Y,), 12-1138. Absence of consideration. — A &o);(i fide holder takes negotiable paper free from all equitable defenses, including the defense of absence of consicieration between the origi- nal parties to the instrument. Hogg v. Thurman (Ark.), 17-383. When accommodation makers may not set up the, wapt of consideration in an actios by the holder of the accopimodation paper who has acquired the same in good faith after maturity. Mersick v, Alderman (Conn.), 2-254. Paypieq.t to original payee. — An in- dorsee of a negotiable note taken as collateral security for a pre-existing debt without a new considerfition ia a, holder for value and in due course of business and in the' absence of notice is protected against a claim of pay- n^ent made to the original payee. Birket v. Edward (Kan.), 1-272. Violation of statute. — A negotiable promissory note, void between the parties because given in violation of statute, hut having nothing on its face to indicate the consideration or that it was given in viola- tion of the statute, is valid and enforceable in the hands of an innocent holder for value- Amd V. Sjoblom (Wis.), 11-1179. Though the making of a contract be pro- hibited and made fi crime by atatute, yet if the contract take the form of negotiable paper it will be valid in the hands of a iona fide holder for v^lue. Union Trust Co, v. Preston Nat. Bank (Mich.), 4-347. Negotiable paper in the hands Qf a bonct fi4? holder for value is not subject to a defense BILLS AND NOTKS. 391 vhioii would avoid it in the hands of the wiginai holder, unless some statute, either expressly or by neceasary implication, so de- clares; henoe, a check certified in viQlation of the Michigan statute making it an offense to certify a check unless the amount stands to the credit of the drawer is euforoeaWe by a Iwnd. fid* holdeT, Union Trust Co, v. Pres- ton Nat. Bank (Mich.), 4-347. In N^braaksi a statute will not be con- strued so as tp make a negotiable instrument void i» the hands of a ftono fide purchaser unless the act apecificially so declares. Citi- zens' State Bank v. Nore (Neb,), 2-604, A note §iven for medical services rendered by an unlicensed practitioner may be recov- ered PR by a Sono fidf, purchaser notwith- standing the Nebraska statute prohibiting the practice of medicine without a license- Citizens' State Bank v. Nore (Neb.), 2.-^604. 7'aiisfer prooared by tvand. — Where thp owner of an oyerdue negotiable paper, dated before the passage of the negotiable instruments aet, transfers it under cirqum- gtance^ which enable the transferee to deal ^jth ■ it as if be were the true owner, no equity attaches to the paper in favor of the true owner as against an innocent purchaser for value and without notice from the trans- feree, though the original transfer is pro- euTcd hy th§ trausferee by means of false and fraudulent representations. Gardner v. Bea- con Trust Co, (Mass.), 5-58,1. Where the guardian qf the infant owner of an overdue note and mortgage, dated before the passage of the negotiable instruments act, transfers the instruments to one who fraudulently and falsely represents that the owner of the equity wishes to pay off the nv>rtgage, and the assignee assign^ the wort- gage and n^te to a trust company as collat- eral security for money borrowed, and the trust cornpany takes the assignment iq good faith for value and without notice of the assignee's fraud or of any defect in his title, the trust conpipany acquires a good title as against the true owner. Gardner v. Beacon Trust Co. (Mass.), 5-581. Fr^ndnl^At delivery «f Tuotea signed in lianlKt — Where a person places his sig- nature to blank forros of promissory notes and delivers them to another person as cus- todian with instjuctions to. keep them until the signer shall by letter or telegram give instructions to the custodian to issue them as promissory notes for amounts to be nanjed in the instructions, and the custodian with- out receiving any instructions, and in fraud of the signer of the notes, fills in the blanks for considerable sums and sells the notes to a purchaser for value, who takes them in good faith and without notice of the fraud, the signer of the notes is rievertheless not estopped from denying the validity of the notes as a^inst the purchaser. Smjth v. Prosser fEng.), 11-191. Natice aS inflrmltleB after acqnlre- pieitt* ■» In an action agafnst the indorser of a note, the rights of the parties do not depend on the fcnowledgo of the plaintiff at the time of the trial, but on what the latter knew at the time of discounting the note. Chemical National Bank v, Kellogg (N. Y.), 5-158. d, Purchasers with notice. Not l^ona fide purchaser. — 4. purchaser of a note who is told before purchasing that the maker refuses to pay it is not a iona fide purchaser. Old National Bank v. Marcy (Ark.), 9-33h). Rigbts on repurchase. — If the payee of a promissory note, which he has procured by fraud, sells it to an innocent third person and then repurchases it, he does not thereby acquire any better right against the maker than he had in the first instance. Aragon Coffee Co. v. Rogers (Va.), 8-623. Knowledge of infirmities in prior notes. — In an action by the purchaser to enforce payment of a series of promissory notes, evidence that the plaintiff, at the time he purchased the last notes of the series, knew that they were part of a series and that the payment of the flrst notes had been refused, and that he had knowledge of facts which were sufficient to justify the conclusion that all of the notes were given for a single consideration, is sufficient to sustain a ver- dict that the plaintiff was not an innocent purchaser. Old National Bank v. Marcy (Arte.), 9-3S9, Rights of indorsee after maturity. — An indorsee of promissory notcB who takes them after maturity, and is charged with notice of a decree rendered upon them, suc- ceeds only to the rights of his indorser. Bank of Fayetteville v. Lorwein (Ark.), 6-202. Failure of consideration, — Where the sole consideration for a promissory note and mortgage, given by the owner of real property to a building contractor, is the promise of the contractor to erect and complete a build- ing upon the real property, and it is under- stood between the parties, whgn the note is given, that the maker shall not be liable to pay the same unless and until the house is completed, the failure of the contractor to complete the house, and his abandonment of his eontraet for its erection, render the note and mortgage void in the hands of a third person who has purchased the same with notice of the agreement between the parties. Tlce V. Moore (Conn.), 17-H3. e. Transfer in violation of contract, RQwedy of mahflv. — . The remedy of the maker of promissory notes which have been sold by tb* payee to an innocent purchaser for value, in djwet violation ol the contract of the parties, derived firom a conatruetion of the terms oSf the notes and a contempora- neous written agreemeikt, is an aetion for damages for the amount of the notes with ipteresfc Myrick i;, Purcell (Minn.), &t148. f. Forged instruments. Rule Inhere part of signatiirQV 4re genuine. — Where a joint note purporting to have been signed by a number gf persons 392 ANN. CAS. DIGEST, VOLS. 1-20. is put afloat before maturity and passes into tlie hands of a bona fide holder, the actual signers of the note are liable, although it turns out that some of the signatures are forged. First ^Jat. Bank v. Shaw (Mich.), 12-437. Xiiability in case of negligent ezecu- ition. — A person who indorses and delivers a promissory note that is obviously incom- plete because of its failure to specify any amount whatever will be held liable to a hona fide holder for the amount subsequently filled in, even though such amount is in excess of the amount agreed upon at the time of the indorsement; but this rule has no application where the instrument is apparently complete as to amount at the time when it is indorsed and delivered. National Exchange Bank v. Lester (N. Y.), 16-770. Iiiability in absence of negligence. — Where a promissory note apparently com- plete at the time of its indorsement is subse- quently raised in amount by means of a forg- ery, the indorser cannot be held liable thereon, even to a hona fide holder, for the increased amount, merely because there were spaces left in the instrument which made the forgery easy or possible. There is no presumption that those into whose hands such a note may come will commit a forgery, and consequently the failure of the indorser to provide against the contingency by completely filling up spaces in the instrument does not constitute negli- gence. National Exchange Bank v. Lester (N. Y.), 16-770. 'When bank paying forged check may recover. — The rule that he who accepts a negotiable instrument to which the drawer's name is forged is bound by the act and can neither repudiate the acceptance nor recover the money paid, has no application in behalf of one who has acquired the paper in the absence of any consideration whatever there- for either present or past, and consequently, where a trust company has paid a forged check, purporting to be signed by a depositor, in the belief that the signature was genuine, and it appears that neither the depositor whose name was forged nor the forger was indebted to the person in whose favor the check was drawn, there is nothing in the law of commercial paper which prevents the trust company from recovering the amount of the check. Title Guarantee, etc., Co. v. Haven (N..Y.), 17-1131. g. Stolen instruments. Rights of bona fide pnrchaser. — The rule that one who steals personal property cannot convey to a purchaser, however inno- cent, any title to the property as against the true owner, does not apply to a stolen nego- tiable instrument which, when acquired By a purchaser in good faith before maturity and without notice, may be held by the purchaser against the world. Ehrlich v. Jennings (S. Car.), 13-1166. h. Conflict of laws. Validity of accommodation indorse- ment. — A married woman who is an ac- commodation indorser of a note in a state where such a contract is unenforceable, the note being dated and made payable in the state where such a contract is authorized, is estopped to deny that the indorsement is a contract of the latter state in an action by a hona fide holder without notice. Chemical National Bank v. Kellogg (N. Y.), 6-158. Presumption as to place of Indorse- ment. — The place where the note was dated and made payable is presumed, in the absence of notice to the contrary, to be the place where it was indorsed. Chemical National Bank v. Kellogg (N. Y.), S-158. Where a note is presented for discount, a bank has the right, under the provision of the negotiable instruments law that "ex- cept where the contrary appears, every in- dorsement is presumed prima facie to have been made at the place where the instrument is dated," to presume that such note was in- dorsed at the place where it was dated. Chemical National Bank v. Kellogg (N. Y.), 5-158. Iiaw of place where bill is drawn. — The rights and obligations of the drawer of a bill of exchange are fixed by the law of the place where he draws it, and he is discharged by failure to protest the same in accordance with the laws of that place, although such failure is due to different laws or customs prevailing in the country where the bill is payable. Amsinck v. Rogers ( N. Y. ) , 12-450. A written order drawn by a business house in New York upon a business house in Vienna, Austria, requiring the latter to pay on de- mand to the order of the former a stated amount of money and charge the same to freight being shipped to the drawee in a designated steamship, is a foreign bill of ex- change within the New York negotiable in- struments law. Amsinck v. Rogers (N. Y.), 12-450. The failure of the collecting agent in Vienna to demand payment of such bill of exchange, to protest the same, and to give notice of dishonor as required by the laws of New York, discharges the drawer, although in Austria, where the bill is payable, it is only a " commercial order," requiring no protest or notice of dishonor. Amsinck v. Rogers (N. Y.), 12-450. 12. Actions. a. Who may sue on note. Oimer. — The owner of a promissory note in which a third person by mistake or inadvertence is named as payee, may sue on it without indorsement on proof of such own- ership by evidence other than the note. Spreng v. Juni (Minn.), 18-222. b. Jurisdiction. Magistrates' courts. — Under the South Carolina code providing that magistrates shall have civil jurisdiction in actions aris- ing on contracts for the recovery of money only, if the sum claimed does not exceed $100, a magistrate has jurisdiction of an action on a promissory note wherein the amount claimed is $100, though the amount of the note with BILLS AND NOTES. 393 interest exceeds $100, as it is the amount claimed and not the amount due which deter- mines his jurisdiction. Brunson v. Furtick (S. Car.), 5-307. c. Plaintiff's pleadings. Complaint on note Iield as security. — In an action upon a note held as security, the complaint may be in the ordinary form of one on behalf of an indorsee of a nego- tiable note against the maker, though the judgment can be only for the amount se- cured by the note. Mersick v. Alderman (Conn.), 2-254. Complaint In action for cancellation. — In an action to have a note and mortgage surrendered for cancellation on account of fraud, the complaint does not state facts en- titling the plaintiff to the relief demanded when there is no allegation of the insolvency of the defendant, or that the plaintiff has not an adequate remedy at law, or that the defendant has threatened to dispose of the note before maturity to a hona fide purchaser. The most that could be said of such allega- tions is that the plaintiff claims and alleges failure of the consideration of the note. Handley f. Sprinkle (Mont.), 3-531. Complaint in magistrate's conrt. — A complaint in an action in a magistrate's court upon a promissory note held sufficient to withstand a demurrer. Brunson v. Fur- tick (S. Car.), 5-307. Replication containing repugnant defenses. — Where in an action on a prom- issory note given for legal services the de- fendant files a plea of failure of consideration and avers that the note was given in con- sideration of the plaintiff's agreement to defend successfully the title to certain of defendant's property and to return the note if he failed to do this, and that by reason of the negligence of the plaintiff the con- sideration of the note has wholly failed, a replication by the plaintiff denying that the consideration for the note has failed, but also alleging a compromise by mutual consent of the parties of the controversy in which the plaintiff was employed, is both a traverse and a confession and avoidance and is demurrable as embracing two repugnant defenses. Priest V. Dodsworth (III.), 14-340. d. Defendant's pleading. Affidavit of defense. — Where the de- fendant in an action on a promissory note has not filed the affidavit required by the Vir- ginia statute, it is proper for the trial court to refuse to permit him to prove that he did not make the note declared on. Chestnut v. Chestnut (Va.), 7-802. If an accommodation indorser, when sued on his indorsement, desires to invalidate his waiver of protest on the ground that it was procured by fraud, he must aver such fact clearly and explicitly in his affidavit of de- fense, and not leave it to Be inferred from the statements therein contained. Burgetts- town National Bank v. Kill (Pa.), 5-476. Denial of protest and notice. — In an action against the indorser on a promissory note where the declaration alleges protest and notice, the plaintiff is not required to prove these facts unless they are put in issue by a. proper plea. Bank of Ravenswood v. Wet- zel (W. Va.), 6-48. Denial of plaintiff's title. — Under a sworn plea to the complaint in an action on a promissory note by one to whom the payee has indorsed and transferred the same, deny- ing that the plaintiff is really interested in the note sued on, evidence that the payee of the note was insane when he transferred it to the plaintiff is competent. Walker v. Winn (Ala.), 4-537. Admission of plaintiff's title. — In an action on a promissory note, brought by a person claiming as indorsee thereof, the answer admits the plaintiff's ownership of the note where it avers that the defendant tendered the amount due to one M. who was in possession of the note, and that M., for himself and the plaintiff herein for whom he was acting as agent at that time, refused, etc. Hornstein v. Cifuno (Neb.), 20-1267. Denial of execution. — An affidavit filed by one of twenty defendants in an action on their joint promissory note, denying the exe- cution of the note, is sufficient to justify a requirement that the plaintiff must show the execution of the note before placing it in evi- dence, and to admit the defense of forgery as to some of the signatures. First Nat. Bank V. Shaw (Mich.), 12-437. e. Evidence. Parol evidence to vary terms. — In an action at laiy on a promissory note parol evidence is inadmissible to show that the rate of interest agreed upon was different from that specified in the note. Cochran v. Zach- ery (la.), 15-297. Parol evidence varying indorsement. — As against a person who purchased a note with notice that it was indorsed for collec- tion only, parol evidence is admissible to show that an unrestricted indorsement on the note was intended merely for the purpose of collection. Johnston v. Schnabaum (Ark.), 1.5-876. Parol evidence of conditional de- livery. — As between the original parties to a promissory note, or as between the maker and one who is not a bona fide holder, parol evidence is admissible to show that the note was delivered upon condition that it should not be negotiated until a chattel for which the note was given should be ascertained to be as represented. The negotiation of such note in violation of the condition is a fraud upon the maker, which casts upon the indorsee the burden of showing that he or some one through whom he claims acquired the note for value in good faith and before maturity. McNight V. Parsons (la.), 15-665. In such a case the testimony of the maker as to the conditional delivery of the note is sufficient to require the submission of the question to the jury, and to cast such burden of proof upon the indorsee. In order to war- rant the direction of a. verdict for such in- 394 ANN. CAS. DIGEST, VOLS. 1-20. dorsee, it must appear thai lie has estab- lished the good faith of the transfer either to himself or to a prior indorsee by evidence of such K^lear and undisputed eharacter that no •question of fact is left for the finding of the jury. McNight v. Parsons (la.), lS-'665. In such a case the testi«iony of the cashier . Boardman (Me.), 13--673. Effect af boundary on private ^ay.-,-. A deed describing the premises conveyed as bounded on a private way theretofpre laid out over the land of the grantor does not pass the fee to the middle of the way. Seery t). Waterbury (Cenn.), 18-73. 2. Agbeembnts as to Boundaries. Iiong continued acquiescence. -•- Where adjoining owners or their grantors have ac- qt^eseed in a certain boundary line as the tiue one for ten ye^rs or more, the law will treat that line as the correct one. Kjtchen V. Ciiantland (Iowa), 8-81. Belief in equity o^ ground of mistake- — Evidence reyiewed, in a contro- versy over a boiindary line, and held to show that one of the adjoining owners was not entitled to be relieved in equity, on the grpun4 of mistake, from an a,greement fixing t%e line, Kitchen «, Chantland' (loyraj, 8-81. 3, Evidence, Declaration of deceased persons gen In a count on a promise to marry generally in a declaration in assumpsit for breach of the contract, the dates of the promise and re- quest for performance need not be so stated as to show' the lapse of a reasonable time be- tween them for performance. Being imma- terial and merely formal, the dates may be laid under a videlicet, and the proof may vary therefrom. Connolly v. Bollinger (W. Va.), 20-1350. e. Evidence. Seduction. — Evidence of seduction is not admissible in aggravation of damages in an action for a breach of promise of marriage. Wrynn v. Downey (E. I.), 8-912. In an action for a breach of promise to marry, evidence of seduction is not admis- sible to prove either a contract to marry or a breach of that contract. Wrynn ». Downey (R. I.), 8-912. Attempt to compromise. — In an action for a breach of promise to marry, it is not competent to introduce evidence showing an attempt by the defendant to compromise the BREACH Oi'^ PllOillSE OF MARRIAGE. 401 plaintiff's claim. Wrynn v. Downey (R. I.), 8-912. CiroumstaiioeB antecedent to promise. — In an action for a breach of promise of marriage, allegations and proof of circum- stances antecedent to the promise, which tend to show the relations of the parties and the state of feeling between them at the time of the alleged promise, are permissible. Ander- son r. Kirby (Ga.), 5-103. Wealth of defendant. — Where, the breach of a marriage contract occurred but a few months before the action therefor was begun, evidence is admissible as to the de- fendant's financial ability at the time of trial. Fisher r. Kenyon (Wash.), 20-1264. Wealth of defendant's parents. — In an action for the breach of a promise of marriage, evidence as to the financial con- dition of the defendant's father is inadmis- sible. Spencer i;. Simmons (Mich.), 19-1 12G. Proof of promise to marry. — Indefinite and indirect conversation between the plain- tiff and the defendant in an action for the breach of a promise of marriage, capable of being interpreted as relating to marriage and aided by a course of conduct indicative of betrothal, is sufficient to sustain a finding of the marriage contract, without proof of an express or formal engagement. Connelly v. Bollinger (W. Va.), 20-1350. d. Arguments of counsel. Inflaming prejudices of jury. — A judgment for the plaintiff in an action for breach of promise of marriage will be re- versed, where the plaintiff's counsel persists in the use of extravasant language calculated to inflame the prejudices of the jury against the defendant. Spencer v. Simmons (Mich.), 19-1126. e. Instructions. Attack on plaintiff's character. — In an action for breach of promise of marriage in which lewdness on the part of the plain- tiff is set up as a defense, it is error for the court to charge without qualification that in assessing damages the jury may consider the nature of the defense set up. Such a de- fense may be considered as showing malice and wantonness, but the plaintiff in such an action is not entitled to recover independent damages for the defamatory charges. Spen- cer V. Simmons (Mich.), 19-1126. f. Damages. Sednotion aa element of aggravation. — Seduction of the plaintiff by the defendant under a promise of marriage may be alleged and proved in aggravation of the damages sustained by the breach of the contract to marry. Anderson v. Kirby (Ga.), 5-103. In an action for damages for the breach of a promise of marriage the fact that the plain- tiff was seduced under promise of marriage, and that such seduction was followed by pregnancy, is admissible in evidence in ag- gravation of damages. .Johnson v. Levy (La.), 16-978. VotB. 1-20 — Ann. Cas. Digest. — 26. In action against decedent's estate. — Compensatory damages may be recovered against the heirs of a decedent for his breach of a promise of marriage, where the obligor has been put in default as provided by law. But exemplary damages are not allowable in such a case. Johnson v. Levy (La.), 16-978. Excessive damages. — A verdict for $20,- 000 in favor of the plaintiff in an action for damages for the breach of a promise of mar- riage instituted against the heirs of the other party held to be excessive under the facts and circumstances of the case. Johnson v. Levy (La.), 16-978. A judgment "for $6,000, for breach of a marriage promise, held not excessive under the evidence. Fisher v. Kenyon (Wash.), 20-1264. g. New trial. Improbable evidence as ground. — Evidence in support of plaintiff's action for breach of promise of marriage examined and held 80 doubtful of merit, and in many re- spects so improbable, that a new trial should have been granted. Hill v. Jones (Minn.), 18-359. h. Abatement and revival. Death of defendant. — The obligation to fulfil a marriage engagement is personal, and the obligation to respond in damages, in the event of its nonfulfilment, is incidental there- to, from which it follows that, if the obligor dies before fulfilling the engagement, and without being put in default, the right of action to recover damages for the nonfulfil- ment perishes with him, and cannot be ex- ercised against his heirs. But, where the obligor is put in default, as provided by law, his right to fulfil his engagement is thereby forfeited, and his obligation in premises is merged in his obligation to respond in dam- ages, which latter obligation thereby acquires an independent status, becomes heritable, and may be enforced against the heij-s of the obligor. Johnson v. Levy (La.), 10-722. In an action for damages for the breach of a promise of marriage the fact that the plaintiff's father, after the discovery of her pregnancy, killed the other party to the prom- ise of marriage on the occasion of his refusal to marry the plaintiff, does not bar her claim for damages against the estate of the dece- dent. Johnson v. Levy (La.), 16-978. i. Appeal and error. Sufficiency to support verdict. — Where, in an action for damages for the breach of a promise of marriage, the evidence is conflicting, a verdict in favor of the plain- tiff on the question of contract vel non will not be disturbed, except where it is clearly erroneous. Johnson v. Levy (La.), 16-978. The finding of the jury as to the existence of a contract of marriage is conclusive on re- view. Fisher v. Kenyon ( Wash. ) , 20-1264. 402 ANN. CAS. DIGEST, VOLS. 1-20. BREAD. See Food, 5 a. Coafiwing on bread and water diet, see Crim- inal Law, 7 a (1>. 4s element of burglary, see ?i?BGi.AiBy,, I, Eight to br^ak door in making arrest, see bb;[bebt. 1. What Constitutes. 2. PEOSBCUTIOir. Bribing government officers, see Conspiracy, 1 b; Bribing witness not to testify, see Embeacbey. Effect of paynjent of benefits, to members of labor unions during strikes, see Labob Combinations, 3. 1. What Constitutes. Payment to induce nltva vires con- tract. —A person wbo, aa ai v^mkev qf tjie common council of a, city, coi;ruj)tly accents a sum of money to vote in f ayor of the city's entering into a certaiif, contract, is gUiUty of accepting a brJbfc thougfc the contract is on^ wh|ch tii^ qi,t^ b*s no autlioiity tp make, if the measure is one. whiph may come before the common couuoil for oftcial afitipn. People V. Mol {Mich,J,'4r960. A member qf a board which is. charged, with, the care and custody of. school build; ings,, who has accepted money as a bribe to, influence hi? opinion, judgment, q,nd aiction in favpr q5 letting or ca,usif).g to he Igt » contjact for cleaning the gchopl buildings, is guilty of bribery, under the. Kansas stet- ute, notwithstanding the fact, that the board had by a 'resoliu^ion, r,eferxed the matter qf cleaning suph buildings to the superintendent of the buildings, wIjlo was an eHiployee but; not a tperob^i; Pf the- board, if i:t appears that the member charged, with the ogense let the contract with, tjhe approval, of the superin- tendent of tjie builjdjugs. Statfi v. Campbell (Kan.),. 9-1203, Officers, ak(}tiag wit]>,oiut, j?]^ri,s4icti, 14-243. Promise by candid'ate for public oiGlce. — A promise by the candidate for the, office of eoianty judige that he ^ill '• draiir alll papers necessary in the settltemen't of estates and give tlie necessary advice free of charge," although not to be commended', does not snow that he " indulged- or procured"* such electors "to vote for him for such office by biflierjr,"' within the- statitte forfeiting the office fbr such cause, and does not warrant the rejec- tion of votes cast for such candidate or the ousting him from office. St^te ex- r^l. Dith- mar v. Bunnell (Wis.), 11-960. Rej^eal •* statntes. — The provision of* Grim. Godie 111-., § Si, enacted in 1874, mpk: ing it an offense for a municipal officer to receive a bribCj an4 prescribing tbe punish- ment therefor, repeal's by implication the pcovisipni on the same sabjeot in- tine. Ciities ami Viillagesi Act,, enactedl im I872i. Peoplfi ®; McCaBsn (,Ill.)-, 2@:-4m. 2U PfiOSECUTMNi Evidence of intent. — In> a prosecution for accepting a br-Jbe-, wherei the- gravainei;. of, the charge is receiving money as a brite to influence the opinion,, jwdgpient, and action of the defendant as a. member of the boEij-d of education in causing' a contriact to be let, testimony showing tihat the co^t^E^ctpl;• who paid the defendant the bribe soon ^fterwaj;d took a similar contract with an individual at 3r much lower price is material and' competent- evidence- of the intent wifh whicli the rhoney was received. State V; Campbi^ll ('Ean.)'„ 9^112081 Checks as evidenc.e of receijpf' of^ money. — In a prosecutibn for acceptiiigj a bribe, where the defenda,Tift is shown to' ftscve cashed a check payable to his order fbr the amount he is charged wjijbi receiving, drawn by the person from whom it is charged he received: the bribe, t^re^ ofaeck itself-' rs' eem- petent evidence against himi to> estafilish' 13ie receipt of the raoney. State- ■».- (EampbeH' (Kan.), 9-1203'. Evidence of othei!' oflenses. — 'Wnd^ an indictment which charges- tha^ defendant with being' an aceessory tov tlt»' bnbepy of himself, evidence' off other- brilJerieB' i6' ad- missible if suchi evidence- woulfl' b«' admifesible' under an indictmen* direirfiy (^rgiiig iSHe- defendanfr with> briberj*; and' tHe sufi^^nejp of! the- indictment' ib' not open to attacJi- i>i aift appeal taken by the state. State- »; Bu Lkuiey/ (Arly,),. 15rm. BEIDGES — BEIEFS OF COUNSEL. 403 la a criminal i^roseculion against the chair- man of a legislative committee for aoeepting a bribe for voting against a certain telephone bill, the testimony of a witness that at the beginning of the legislative session he had made an agreement with the defendant that in consideration of sums of money to be paid to the defendant all bills affecting corpora- tions in which the witness was interested which might be referred to such committee should be looked after by the defendant in the interest of the witness, that sums of money had been paid to the defendant pur- suant to such agreement, and that the wit- ness was interested in the telephone bill, is, notwithstanding the fact that there is no eTidenoe to show that the defendant knew that the witness was interested in such bill, admissible for the purpose of showing a scheme by the defendant to commit bribery. State r. Du Laney (Ark.), 15-192: Proof of immaterial averments. — Where an indictment charges that the de- fendant corruptly received a bribe of " fifteen dollars, lawful money of the United States," a conviction can be sustained only by proof that the money so received was " lawful money of the United States," although the allegation as to the kind of money received might be omitted from the indictment with- out affecting its sufficiency. Value l\ State (Ark.), 13-308. Sufficiency of evidence. — Evidence ex- amined and held sufficient to sustain the con- viction of a police officer for taking a bribe. People V. McCann (111.), 20-49«. Averring pendency of cause. — No er- ror is made to appear in overruling a motion to quash certain counts in an information, based upon section 3476 of the general stat- utes of 1906, charging the defendant with the crime of bribery of a judicial officer, when such information substantially complied with the requirements of such statute. Such in- formation is not fatally defective when it distinctly alleges that the defendant offered the bribe to the judge of a designated court for the purpose of and in order to influence him " to modify and reduce the sentence " imposed upon a certain named defendant on a prior day of the same term of court, be- cause it does not affirmatively allege that the prosecution against such convicted defend- ant was still pending in such court at the time such bribe was offered. Tillman v. State (Fla.), 19-91. BBIPGES. Bridge over highway a,s nuisance, see Stbeets AND HiGHWATS, 5 C. Compelling reniova,! of fridge as taking there- of, see JlMiJfTfNT JJoiyiAiN, 6. Coastructioji of bridge as infringement of ferry franchise, 9ee Fibeies, 1. Duty of canal conip?iny to maintain bridge, see Caj!U,i^., \, IJxpressipn in title of suliject of statute In- corpoTfttii^g bridge company, see Stat- utes, 3 b. Liability of defective bridges in streets, see Streets and Highways, 7 c (4). Liability for obstructing stream by bridge, see Watebs and WATSBCOUBSiia, 8 b (4). Liability of municipality for injuries in op- eration of lift bridge, see Municipal CORPOEATIONS, 9 b (1). Right of railroad to reimbursement of cost of bridge made necessary by the high- way, see RAiLBaiVBS, 3 a (2). Dut^ to k^p toU bridge in repair. — The proprietor of a toll bridge is not a com- mon e^rrier and is lijitile only for negligence in failing to keep the bridge in a reasonably safe condition for travel. Gibler v. Terminal K. Assoc. (Mo.), 11-1194. An instruction defining the degree of care required by the operator of a toll bridge as to keeping the bridge safe for travel, as " such care as a prudent operator of a toll bridge would exercise " instead of " such care as a person of ordinary prudence would exercise," althovigh unhappily worded, is not misleading or ground for reversal. Gibler v. Terminal R. Assoc. (Mo.), U-1194. In an action against a toll-bridge company for negligence in allowing snow, ice, and slush to accumulate on its bridge whereby the plaintiff was caused to fall and was in- jured, a part of an instruction given for the plaintiff which, without qualification, might be construed as allowing the plaintiff to re- cover if he stepped on the ice and slush on the sidewalk of the bridge, without requiring the jury to find first that such ice and slush forqied a dangerous phstyuction to pede^tT-i^ns in passing over said sidewalk, is not qbjeei tionable where the instruction goes furthe? and makes the liability of the defendant de-; pend or; a finding "that the defendant did not exercise ordinary care in so maintaining, said sidewalK with said ice and slush therepn, and in so pernjittlng said ice and slush to \^ on said sidewalk," especially where the con^ ditions of tlie defendant's liability are fully stated in an instrnction given at the jnstanee of the defendant. Gibler v. Terminal R, Assoc. (Mo.), 11-1194. In an action against a toll-bridge company for negligence in allowing snow, ice, and slusii to accumulate on its bridge whereby the plain- tiff was caused to fall and was injured, evi- dence examined and held to require subnjissipn to the jury of the issues of negligence and contributory negligence. Gibler v. Terminal R. Assoc. (Mo.), 11-1194. BRIEFS OF COUNSEL. Improper language In brief. — A brief ean in no case be used as a vehicle for ex- pressing hatred, contempt, insults, disrespect; or professional discourtesy of any nature for or to the court of review, trial judge, or op- posing counsel, and a brief which is so used will be stricken from the files of the court. Pittsburgh, etc., R. Co. i'. Munoie, etc., Trac- tion Co. (Ind.), »-165. 404 ANIS. CAS. DIGEST, VOlS. 1-20. BROKAGE. See Bbokebs. Marriage brokage contracts, see Contbacis, 4 a. BBOKEBS. 1. Beal Estate Bbokebs, 404. a. Employment, 404. b. Authority, 404. c. Right to compensation, 404. d. Failure to secure license, 405. e. Actions for commissions, 405. 2. Merchandise Bbokebs, 406. 3. Stock Bbokebs, 406. See Factors. Employment of broker to purchase or sell as within statute of frauds, see Frauds, Statute of, 4 c; 10. Marriage brokage contracts, see Contracts, 4 a. Stockbroker as pledgee of stock purchased for customer, see Pledge and Collateral Secubity, 1. Ticket brokers, see Carriers, 6 c (2) ; Thea- tres AND Public Resorts, 2 a. Ticket brokers, regulation of, see Constitu- tional Law, 5 c; Municipal Corpora- tions, 5 f (2). 1. Real Estate Brokers. a. Employment. Consideration of contract. — Where one employs another as agent to sell land for remuneration on performance, the con- tract is based on a consideration and is mu- tually binding. Rowan v. Hull (W. Va.), 55-884. Necessity of signature by agent. — A written proposition to employ one as agent to sell land, signed by the proposer and ac- cepted by the agent, though not signed by the latter, makes a binding contract of agency enforceable against both parties. Rowan v. Hull (W. Va.), 2-884. b. Authority. Anthorlty to make agreement of sale. — A real estate broker who has lands listed with him for sale is only authorized to find a purchaser and submit a proposition, and cannot make an agreement of sale unless au- thorized in writing. Halsell v. Renfrew (Okla.), 2-286. A real estate broker who is employed Jo find a purchaser for land, or with whom land is listed for sale at a specified price, has no implied authority to execute a contract of sale. Larson v. O'Hara (Minn.), 8-849. A broker employed to sell real estate is not entitled to his agreed commission, unless he procures a purchaser on the terms speci- fied in his contract of employment. Stouten- burgh V. Evans (Iowa), 19-1048. Authority to give option. — A power to sell land does not include the power to give an option unless so expressed. Tibbs v. Zirkle (W. Va.), 2-^21. An option, not authorized by written power to sell, is not binding on the landowner or a co-agent under such power to sell with- out express ratification. Tibbs v. Zirkle (W. Va.), 2-421. A co-agent under a power to sell is not bound by an unauthorized option not given or ratified by himself, and if he purchase the land for himself he cannot be held as a trus- tee for the claimant under such option. Tibbs V. Zirkle (W. Va.), 2-421. Agent to find buyer. — An agent em- ployed to sell real estate, and not authorized to execute a contract of sale or to execute an instrument of conveyance, is only an agent to find a buyer. Manker v. Tough (Kan.), 17-208. Exclusive authority to sell. .— A pro- vision in a contract for the sale of property between the owner thereof and a real estate agent that the contract is to " continue in force until ten days' notice is given in writing withdrawing the same from market," does not confer upon such agent the exclusive right to sell the property, especially where the con- struction placed upon such contract by the correspondence of the parties shows that such exclusive right is not contemplated, and if such agent procures a purchaser for the prop- erty, after a sale thereof has been consum- mated by another agent, the former is not entitled to recover commissions from the owner. Henning v. Parsons (Va.), 15-765. Revocation of authority. — Where the owner of real estate confers authority upon an agent to sell the real estate at a certain price, an agency for that particular purpose is established which is presumed to continue until the sale is effected, and upon suit by the agent for his commission for making the sale, the burden is upon the principal to show that the agency had been terminated by re- vocation or otherwise, and this burden is not sustained by proof of the lapse of ten years between the beginning of the agency and the accomplishment of its purpose. Hartford V. McGillicuddy (Me.), 12-1083. Agency coupled -nith interest. — Mere commission or reward to be earned by an agent in executing an agency to sell land does not alone make the agency one coupled with an interest. Rowan v. Hull (W. Va.), 2-884. c. Right to compensation. In general. — To entitle a real estate broker to his commissions for making a sale of property, not only is it necessary for him to produce a purchaser who enters into a valid and binding contract for the purchase of the property, but such purchaser must be ready, willing, and able to perform his con- tract. Riggs V. TumbuU (Md.), 11-783. A real estate broker must find a purchaser able, ready, and willing to complete the pur- chase on the terms agreed, before he is en- titled to his commissions. Notkins v. Pasha- linski (Conn.), 20-1023. BEOKERS. 405 Broker to find pnrcliaser merely.— A broker whose undertaking merely is to find a purchaser for property at a price fixed by the vendor or at a price which shall be satisfactory to the vendor when he and the purchaser meet, is in reality only a middle- man whose duty is performed when the buyer and seller are brought together. Johnson v. Hayward (Neb.), 12-800. Sale not consuiuiuated. — When a real estate broker is entitled to commissions for a sale not actually consummated. Colburn v. Seymour (Colo.), 2-182. Sale prevented by fault of oirner. — Where a real estate broker procures and pro- duces a purchaser, ready, willing, and able to complete the purchase on the authorized terms, and through the fault of the owner the sale is not consummated, the broker is entitled to his commission. Hartford v. Mc- Gillicuddy (Me.), 12-1083. Refusal of seller to complete sale. — Where a real estate broker has found a pur- chaser able, ready, and willing to buy on the terms agreed, the capricious refusal of the seller to consummate the sale will not deprive the broker of his commissions. Notkins v. Pashalinski (Conn.), 20-1023. Purchaser unable to perform con- tract. — A real estate broker who has under- taken the sale of property is not entitled to recover his commissions where the person pro- cured as a purchaser, after signing a written contract of purchase and paying a part of the consideration in cash, declares his total inability to perform the contract, which is thereupon canceled. Riggs v. Turnbull (Md.), 11-783. Sale made by oxraer. — Where the owner of real property who has listed prop- erty with an agent for sale at a defiiiite price, but who has not given the agent exclusive agency, sells the property to a person who has been induced to purchase by the eflForts of the agent, but the sale is made in good faith and in ignorance of those efforts, and is made for a price less than that named to the agent as the selling price, the owner is not liable for the commission which he agreed to pay the agent for the production of a pur- chaser who was ready, able, and willing to buy. Quist v. Goodfellow (Minn.), 9-431. Secret contract uritli vendees' agent. — A contract between a real estate agent act- ing for the vendor and similar agents acting for the vendee to share between them the dif- ference between the price paid by the vendee and the price received by the vendor,^ such contract being unknown to the vendee, is not enforceable. Howard v. Murphy (N. J.), 1-671. Sale under option in lease. — Where a real estate broker, employed to make a sale of land, effects a lease of land under a con- tract whereby the lessee is given an option to purchase, and the lessor agrees to pay com- missions as for a sale in the event the option is exercised, the broker is entitled to his com- mission upon a sale of the land to the lessee. Coates V. Locust Point Co. (Md.), 5-895. Right as between different brokers. — As a general rule, where an owner puts his property in the hands of several real estate agents to sell, the agent who first pro- cures a purchaser is entitled to his commis- sions to the exclusion of the other agents. Henning v. Parsons (Va. ), 15-765. d. Failure to secure license. Effect on validity of contract. — Where, under a statute which authorizes cities of the third class to impose a license- tax upon " real estate agents," the council of such city enacts an ordinance imposing a license-tax on the business of " real estate," and a real estate agent thereafter continues to conduct his business within such city with- out a license and in such business makes a contract to find a buyer of real estate for a compensation, such ordinance does not render the contract illegal and void. Manker v. Tough (Kan.), 17-208. Effect on right to commissions. —> A real estate broker is not prevented from re- covering his commissions on sales by the fact that he has not taken out the license required by the Maryland statute, as the purpose of that statute is to raise revenue, and not to invalidate contracts. Coates v. Locust Point Co. (Md.), 5-895. d. Actions for commissions. Statute of limitations. — Where a real estate broker, employed to sell land, leases it under a contract giving the lessee the option to purchase, and the lessor agrees to pay commissions as for a sale in the event the option is exercised, the statute of limitations does not begin to run against the right to re- cover the commissions until the option is exercised. Coates v. Locust Point Co. ( Md. ) , 5-895. Action against purchaser. — Where a real estate broker enters into a contract with a prospective purchaser of land to go with him to see the land and the owner, and it is agreed that the broker is to look to the own- er of the land for his commission in case a, purchase is made, and a contract for the pur- chase of the land is accordingly entered into, the vendor agreeing in the presence of the purchaser to pay the agent a certain commis- sion when the purchaser fully pays for the land, the agent may maintain an action against the purchaser for breach of his con- tract and recover damages in the sum of the commission he was to have received from the vendor. Eells v. Parsons (Iowa), 11-475. Burden of proof. — The burden of proof as to the financial ability of a purchaser pro- duced by a real estate broker when the prin- cipal has refused to consummate the sale. Colburn v. Seymour (Colo.), 2-182. Sufficiency of evidence to sanction recovery. — In an action by a real estate broker' for a commission for effecting a sale of property, evidence examined and held to support special findings of the jury that the plaintiff was authorized to sell the land in question for the price obtained and that he 406 ANN. CAS. DIGEST, VOLS. 1-20. had profcuted a ^urchasei' At Buch price. Hartford «. MeGiilieaddy (Me.)* 12-1083. Measure of reooTery. — In an a«tion hy a real estate broker to recover coffi«iiSsl6ns for the sale of Und brought about by him, he is entitled tt> recover cOihnliSBiOns bn the pbr- tlon of the jJutchase (jtice *hich was pAid before the commencement of the action, whether or not he is entitled to i-eeover on the portion which was ilot due and paySible and was not pa.id at that time. Coates v. Locust Point Coi (Md.), 5-895. 2; MBRCflANDISE BbOKEBS. Who itte Meteha,ndi6e Bl^okers. — A pierson Wh'o negotiates the sAle of mefthah- dis6 of which he has not detual or Construc- tive pOSSeSsidn is a iherchattdise broker and not k factor. J. M. Robinsbn, etc., Co. v. Cttrsieaha Cottbii Factory (Ky.), 14-80^. Where a particultlr trahsaetion coiiSlituteS a person a merchandise broker his relation to such tl-AiisaCtlbii i§ not tifFCCted by the fkct that Oh his Ifetlet heads he stales himself " commission merchant." J. M. Robinson, ete.j Co. t>. Cbrsieanft Cotton Factory (Ky.), 14-802. AathbMtjr ttt t^eceiv^e payment. — tn the abseace of e*^i*Ss of implied authbi-ity to receive payment for merchandise sbld by a merchandise broker for his principal, pay- ment by the purchaser to such broker does hot dischafge the purchaser from liablli'fy to the principal: J. M. Robinson, etc.. Co. v. 004-feieana CtJtlbh I'actoi'y (Ky.j, 14-802. 3. STobK Beokeks. OiriieTsbip of stock purchased on margiid. — A stockbroker who purchases and fearfies fetoclc for his customer on margin is essentially a, pledgee and not the owner of such stock. Richardson v. Shaw (U. S.), 14-^1. All agteelnellt between a stockbroker and his customer that all stock purchased for the latter bn margin may be pledged by the brokef foi- his own henefit and may be sold for his fifotedtioh does not convert the broker into An corner of the stock. Richardson v. Shaw (U. ^.), 14-'98l. The redeihptlon by the stoekWoker, while insolvent, of stock _pledged by him pursuant to such an agfeeinent, and the delivery of such Stock to his customer upon demand, does hot have the effect of making the customer a prefet-red creditor within the meaning of the bahkrupt'ey law. Ilichardson v. Shaw (1J. 8.), 14^1981. BROTHER. Jteaning of word brother in statute, see Statutes, 4 d. ftight of illegitimates to inherit, see Desckwt AND Distribution, 5 bi BUCKET SHOPS. Sie ©Akittt; ANb CSaming Houses. avuiVBR. IfiSbrable interest in builditig, see Indun'- ANClE, 5 d (1). BUirDtNG ASSOCIA^ AND IiOAN TIONS. 1; Dues. 2. WiTHDBAWALS. 3. Loans. 4. USUST. 5. Insolvency and Dissolution. 1. Dues. Waiver of by-law jreg:aTding payment. — A building ahd loan association may, by a course of dSaliilg within the power of its di- rectors to authoriite ind known to and ac- quiesced ih by theih, depart from a by-law adbjited by it retjuiriiig the payhleht of dueB to be made to a specMed committee at a stated time and place, tolidhheim v. Somer- set B. & L. Assoc. (i»a.), 3-728. Bnrden of proving waiver of by-law. The burden of proof is upon a person as- sertihg that a by-law requirement as to the payment of dues has been waived by a build- ing and loan dfesociation to show such circum- stances cOveribg a lohg p61-Iod of time ahd knowh to ahd sanctioned by the directors as will justify the pl-esunlption that the require- taient as to the tihie and place of the payment and the person to whom the dues shall be paid ha^ betii waived. Lotlchheim v. Somer- set B. & L. Assoc. (Pa.), 3-728. iSn&elency 6i evidence to ishbw waive*. T.i Evidence held sufficient to show a waiver of a building and loan association of A by-law requil'ing tlie payment Of dues to be made to A, specified cpmihittee at a specified time and {jlace. LoUchheiin r. Somerset B. & L. Assoc. tPa.), 3-728. 2. WithdBawals. Right of mritlidra'wal after insolv enoyi — Though the chslrtei- and by-ldws of A building and loaU association authorize the stockholders to withdraw from the associa- tion, the association's insolvency suspends the right of the withdrawal^ in the absence of an express |)rovision to the contrary. Aldrich v. Gray (U. S.), 8-832. Where the charter and by-laws of a build- ing and loan association do not pernlit the withdrawtil of the Stockholders alter the as- sociation has becbtne insolvent, a withdra*al after the insolvency is not validated by it& subsequent ratififcation Hy the associfttioh's ijoard of directors. Aldrich v. Gray (U. S.), 8-832. Action againrit withdrawing stoek'^ holders. -4 It cannot bfe objected thtlt a re- ceiver of a building and loan association i8 not a proper pslrty tb bring suit b^inat the stockholders of art asSofeiation who have With' drawn since the assdciatibh has become in- solvent, where it appears that the court ap- BUILDING AND LOAN ASSOCIATIONS. 40'; peStatili^ the Ksefeiver directed him to Oake possession of tlie assiseiatian's assets, includ- ing its «hOs«B in actionv and to toing awcK suits as were necessary for their recoveiry, and that the •court fulther directed the receivrtr " to file this bill, aiid pwseente thte suit theretta ia Ms own inaine," AidriBh v. 'Qtny (U. S.), 8-832. 3. Loans. By-lav regulating auction of funds. — The hy-hM of a buiMfcg and Win asso- ciation, providing for making ioans t/y auc- tioning its funds, on a certain night in each month, to the bidder of the highest premium, and that no lo&n shall Ibe made to a second bidder on the same evening for a premium tt)\iet thah the sticeesstul bid, does ifet pre- vent a second auction of funds on the same evening. Spithover v. Jefferson Bldg, etc., Assoc. (MS.), SO-1241 4. USTJBT. Coiilitl«attasin on suoh l£tnd, is not ultra vires. Dawson r. Western Maryland R. Co. (Md.), 15-678. Duty to ii;a,intain bi-idges, — A canal company required by a charter to make good and sufBcient bridges across a canal and keep the same in repair cannot relieve itself of such duty by leasing the canal, property, and franchises to a railroad company. Eyerson V. Morris Canal, etc., Co. (N, J.), 2-859. Injnry to adjoining land. — ' It is an actionsible wrong for the oyiwx of a canal to damage adjoining real property by throw- ing sand and mud thereon; and when the damage is of a permanent character recovery for the entire wrong may be had in one action. Ch?iry V. liake Drunynon^ Canal, ete-, Co. (N. Car.), 6-143. 3. Canals as Navigapw Watbbs. Canal connecting navigable streams. — In view of the various statutes of the state of South Carolina relative thereto, which show that the Columbia canal was con- structed by the state and used for many years as an impfQveiljent of the navigation of two navigable streams, the Broad and Con- garee rivers, it must be held that such canal is a navigable body of water. Conceding that a, stream not naturally navigable but made so by artificial means is not navigable in a legal sense, i]i^ rule, nevertheless, is that a canal constructed to improve the navi- gation of navigable streams is navigable wa- ter, although artificial \n its construction. State V. Columbia Water Power Co. (S. Car.), 17-343. Estoppel to de^y- navigability. — The contractual obligations assumed from time to time by the various lessee? and trans- ferees of the canal above mentioned, to keep the same open for navigation, estpp them, ajid all parties cl'aiming under them, from deny- ing the navigable character of the canal and from claiming the right to obstruct the same. State r. Columbia Water Power Cq. (S. Car.), 17-343. SJCect of ceasfitipn q* w»ev. — The fact that such canal has not been used for navi- gfttiw fw a wniber of years does not affect its character as a navigable body of water. The nsvigabjlity of water Aom wt depend Wpon its actual use for navigation, but upon its capacity for such use. State v. Columbia Water Power Cp. (S. Car.), 17-^43. Effect of charging tolls. — The char- acter of such canal as navigable water ift not sheeted by the faet that at one time tolls were charged for its use. State v, Columbia Water Power Co. (S. Car.), 17-343. Enjoining obstruction. ^ In a proceed- ing by the state, on the relation of the at- torney general, to enjoin the obstruction of such canal, it is no defense that the canal }s unfinished, or that there is no navigation thereon except by pleasure boats and t^at no commercial use is to be anticipated. State V, Columbia Water Poweic Co. (S. C^r.), 17-343. In such a proceeding, it is no defense that the obstruction pf tlie canal will be nothing n;ore than a public nuisance, and that the state has an adequate refljedy therefqr by indictment. The remedy by indictment, while always available for the abatement of a piiblic nuisance, is not exclusive, nor is it, in general, an adequate remedy. Morecjver, the qbstvuction of such a canal is not merely a nnisauce, but constitutes an invasion pf a property right of the state, namely, the right qf unobstructed navigation of its navigable waters, which it holds in trust for the peopje of the state and of the United States, and where an invasion of such right is clearjy shown, a court of equity wiU not hesitate to grant an injunction, State v. Columbia Water ?ower Co. (S. Car.), 17-343. <3ANCZ;^LATION A?«? RESCISSION. 1. Grounds of Remedy, 412, 2. Ri^iTs TO Reljeb, 413. Assignment of decree for alimony, see Al-i- MONY AND Suit Mqi^ey, 4 a. Bond given to stay prosecution for seduction, see SispucTiONj 2 c (4). Cancellation of policy as waiver of breach of ccmditions, aee Insuranqe, 3 c (4). Charter party, ?ee Ships and Sbippjhq, 2 e. Contracts for sale of real estate, see Vjindob and Pu^q^ASER, 3 j. Contracts of infants, see Infants, 2 b, Conveyance by executor, see EXEOUTona and ApMINISTJtATORS, 10 f, FJre insurance policy, see Insurance! 5 j, Misrepresentations by vendee as to intended use of property as ground for rescission, see Fraud and Deceit, 1. Nonpayment of premiums, as ground fpr can- celling insurance policy, see lN^T;mANPE, 3 e. Oral rescission of written contraiflt, aee Fhavds, Statute of, 4 a. Partial canoellatipn of power ojf attorney, see Agency, 1 b. Release, see Release anp DiacBAKQE, 5. 412 Ann. CAS. DIGEST, VOLS. 1-20. Revocation of will by cancellation, see Wills, 6 b (6). Right of seller to rescind sale, see Sales, 5 a. Sale of patent rights, see Patents, 2. Sales of shares of stock, see Cobpobations, 8 b (3). Stock subscriptions, see Cohpobations, 8 a (1). Tax sales, see Taxation, 10 e. Venue of action to cancel contract for sale of land, see Venue, 1. 1. Grounds of Remedy. Breach of contract. — A deed convey- ing land in consideration of marriage will be canceled and a reconveyance directed, by the court of equity, where the grantee has refused to consummate the marriage. Lam- bert V. Lambert (W. Va.), 19-537. Innocent mlsreprcBentation. — Re- scission of an executed contract for the sale of a chattel or chose in action will not be granted on the ground of innocent misrepre- sentation, actual fraud not being shown. Seddon v. Northeastern Salt Co. (Eng.), 1-514. 2. Rights to Relief. Plaintiff in default. — Money paid on a contract induced by fraud cannot be re- covered unless the contract may be rescinded, and a rescission will not be decreed to one who was himself in default at the time of the dereliction of which he complains. Provi- dent Loan Trust Co. v. Mcintosh (Kan.), 1-906. Adeqnate remedy at law. — The prin- ciple that equity only supplements legal remedies, making up for their infirmities, precludes a person, who has an adequate de- fense at law to an obligation in writing against him which is ostensibly valid but in fact void, from maintaining a suit in equity to quiet the controversy and obtain a can- cellation of the instrument, except where snrae special circumstances exist which ne- cessitate a resort to equity to prevent irre- parable injury; and fraud does not of itself necessarily satisfy the call for special cir- cumstances. Johnson v. Swanke (Wis.), 8-544. It cannot be said, cither that the element of fraud entitles the injured party to a written instrument, as a matter of right, to the use of equity jurisdiction to cancel the instrument, where his defense at law would be full and adequate, or that under such circumstances the granting or denial of permission to use equity jurisdiction is a matter within mere judicial discretion. It is a matter to be determined by judgment as regards whether there are special circum- stances rendering the legal remedy not wholly adequate to the case; and the determination reached by the trial court in the exercise of its discretion should not be reversed unless clearly wrong, but where the special circum- stances are found to exist, the use of equity jurisdiction should be regarded as a matter of right. Johnson v. Swanke (Wis.), 8-544. Where the purchaser of a horse has a good defense to any action at law that may be brought against him on a note given by him for the purchase price, he cannot invoke the jurisdiction of equity to cancel the note on the ground that the horse is a useless animal and will continue to be a source of expense to him, as, after he has offered to return the animal, and the offer has been refused by the seller, he may sell it for the best price fairly obtainable, reimburse himself out of the proceeds, and hold the balance for the use of the seller. Johnson v. Swanke (Wis.), 8-544. Restoration of benefits. — ' A party seeking to rescind a contract is not relieved of the obligation to restore the benefits re- ceived by him merely because of his inability to do so, and it is not sufficient, under such circumstances, to offer to set ofiF the amount against what is claimed from the other party. Babcock v. Farwell (111.), 19-74. CANDIDATES. See Elections. Criticism of candidate as privileged, see Libel AND Slander, 3 c. Waiver of right of privacy by candidate for public office, see Pbivacy, Right of. CANVASSING. Canvassing ballots, see Electiotts, 7 e. CAPACITY. Depreciated earning capacity as element of damage, see Damages, 9 c. Mental capacity generally, see Insanity. Nonexpert opinion evidence as to mental ca- pacity, see Evidence, 8 c. Parties to contracts, see Conflict of Laws, 3 c (3) ; Contracts, 2 a. Testamentary capacity, see Wills, 4. CAPRICE. Exercise of judicial discretion, see Specific Performance, 2. CAPTION. Certificate of acknowledgment, sufficiency, see Acknowledgments. OAR. See Carriers; Railboads; Street Rail- ways. Garnishment of railroad car, .see Gabnish- ment. Motor car, see Motor Vehicles. Power of municipality to require fenders on street cars, see Municipal Corpora- tions, 5 f (2). CAK COUPLERS — CAERIERS. 413 CAB COUPLERS. Liability for defective car couplers, see Mas- TBai AND Sebvant, 3 c (1). Statutory requirement of automatic couplers, see Master and Sebvant, 3 e (2). CARBON COPIES. Admissibility in evidence, see Evidence, 5. CARE. See Negligence. Degree of care required in using electricity as motive power, see Stbeet Railways, 8 a (2). Degree of care required in supplying natural gas, see Gas and Gas Companies, 5. Degree of care required of railroad to pre- vent fires, see Fibes, 2 b. CABNAL KNOWLEDGE. See Rape; Seduction. As element of incest, see Incest, 1 b. CABPENTEBS. Carpenter as expert witness, see Evidence, 8 b (2). CABRIERS. 1. Who Abe Common Cabriebs, 415. 2. Regulation and Control of Common Cabriebs, 416. a. In general, 416. b. Regulation of rates, 417. c. Interstate commerce act, 418. 3. Duty to Fubnish Transportation and Shipping Facilities, 418. 4. Cabbiebs of Goods, 419. a. Delivery of goods to carrier, 419. b. Transportation and delivery to consignee, 420. (1) What constitutes deliv- ery, 420. (2) Delay in transportation, 420. (3) Delivery to wrong per- son, 420. c. Bills of lading, 420. d. Loss of or injury to goods, 420. (1) In general, 420. (2) Perishable goods, 421. (3) Failure to furnish suit- able cars, 422. (4) Loss by fire, 422. (5) Termination of liability, 422. e. Liability as warehouseman, 423. f. Limitation of liability, 423. ( 1 ) In general, 423. (2) Validity of particular limitations, 423. (3) Estoppel to enforce limii tation, 425. f. Lien for charges, 426. , Diseriinin^ion. 426. i. Connecting carriers, 426. (1) Duties and liabilities in general, 426. (2) Presumption in locating negligence, 427. (3) Concurrent negligence, 427. (4) Liability for refusal to deliver goods, 427. j. Actions against carriers, 427. (1) Actions for loss, injury or delay, 427. (a) Defenses, 427. (b) Evidence, 427. (c) Question of law and fact, 428. (d) Measure of dam- ages, 428. (2) Actions for breach of contract of affreight • ment, 428. (3) Actions for penalty for refusal to re- ceive goods, 428. (a) In general, 428. (b) Evidence, 428. (4) Actions to recover over- charges, 429. 5. Cabbiebs op Live Stock, 429. a. Transportation and delivery, 429. (1) Delay in transportation, 429. (2) Deviation from direct route, 429. (3) Delivery to wrong person, 429. b. Stoppage in transitu, 429. c. Loss of or injury to live stock, 430. d. Limitation of liability, 430. 6. Cabbiebs of Passenoebs, 431. a. Duty to receive for carriage, 431. (1) In general, 431. (2) Persons with contagious or infectious diseases, 431. (3) Feeble or infirm persons, 431. (4) Carrier's right to desig- nate car or train, 432. (5) Duty to stop train to re- ceive passenger, 432. b. Statutes requiring separation of white and colored passengers, 432. c. Tickets and fares, 432. (1) Payment of fare, 432. (2) Sale of tickets, 432. (3) Validity and effect of tickets in general, 432. (4) Terms and conditions of tickets, 433. (5) Connecting carriers, 433. (6) Discrimination, 433. i. Who are passengers, 433. (1) In general, 433. (2) Person intending to ride, 434. (3) Person impliedly invited on sta^iqn platform, ««, ^ 414 ANN. CAB. DIGEST, VOLS. 1-20. (4) fiersoh attettding or vis- iting passenger, 434. (5) Public officer on train in disbhwge of duty, 434. (8) Tetmination of relation df cartSer and passen- ger, 435. ( 1 ) Person tiding gratuitous- ly, in general, 435. (8) Emateyees, 485. (9) Children tiding free with parents, 436. (10) Pfetson riding on free pass, 436. (11) Express messengers, 436. U2) Newsboy or news agent, 436. (13) Railway mail agents or clerks, 436. (14) Person riding on ticket or pass fraudulently pwcurefl, 436. (15) Person riding on loco- motive, freight or spe- cial train, 437. e. Ihlty In Carriage of passengers, 43*?. (1) Duties and liabilities in geheM, 437. (2) To tlrAhSport promptly, 43«. (3) To provide safe cars and pVetnises generally, 439. (4) To ptdlfect passengers, 439. (a) Ftom eartier's ser- vants, 439. (b) From fellow pas- sengers or third persons, 439^ (c) From irrest, 440. (5) To Supply drinking wa- ter, 440. (6) To heat cars, 440. (7) To carry to point indi- cated by sign on car, 441. (6) To announce station and ftwaken passenger, 441. (9) To stop at passenger's destination, 441. ( 10 ) To provide «4iting room, 441. (11) To light stations and platfofmB bility, 449. (4) Actions for damages, 449. (a) Pleading, 449. (b) Admissibility of evidence, 449. (c) Sufficiency of evi- dence, 449. (i) Instructions, 450. (e) Measure of dam- ages, 430i j. Contributory negligence, 450. ( 1 ) In general, 4S0. (2) Intoxication of passen- ger, 450. (3) Riding or standing on running board of Street cat, 451. (4) Riding on pMttOrta, 451. (5) tejlVing seat before train or car stops, 451. (6) Part Of IsMy protruding from car, 452. (T) Boarding or alighting from moving train, 452. {&) IJi general, 452. (b) Boarding, 452. (e) Alightingj 452. (8) Walking oil station prem- ises in dark, 452. (9) Alighting from car and erossing track, 452. k. Conaeeting carriers, 452. 1. Actions by pateseAgers against car- tiets, 452. (1) Jurisdiction, 452. (S) Statute of liftiitationa, 454. (3) Plaintiflf'S pleadings, 454. (a) fotm of action, 454. (b) Allegations, 454. (c) Amendment, 455. (4) Pl^SUftptiOtt of negli^ g«fic&, 4Sd. CARRIEES. 415 (5) Burden of pMof, 456. 1 6) Admissibility of evidfence, 456. (7) SUffieiehcy of evidence, 457. (8) Vftrianee, 458. (9) Question* foi- jury, 458. (10) Instructions, 459. (11) Dilmages, 461. (12) Verdict and judgment, 462. 7. Sleepino Cab Coin-ANIES, 462. See Eailroads; Ships and Shipping. Action for ejection of passenger, competency of plaintiff to testify to transactions with deceased conductor, see Witnesses, 3 c (1). Carriers by water, see Ships and Shipping. Delivery of gooda to carrier as acceptance by purchaser, see Frauds, Statute op, 9 b (2). Delivery of liquor to carrier as delivery to infant consignee, see Intoxicating LiQCOBSj 5 h. Delivery of goods to carrier as delivery to purchaser, see Sales, 2. Expression in title of subject of statute to prev«bt fraudulent sale of railway tickets, see Statutes, 3 b. Ferry company as common carrier, see Fbr- BIBS, 3. Goods taken from carrier by owner as lar- ceny, see Labcbnt, 4 b. Liability for injuries by wild animal in tran- sit, see Animals, 2 a. Liability for transportation of liquors, see Intoxicating Liquobs, 6 a. Liability of carrier for death by wrongful act, see Death by Wrongful Act, 2, Limitation of liability, authority of shipper's agent, see Agency, 3 a (2). Livery stable keeper as common carrier, see LivHBY StABtB Keepers, Power of federal courts to paas on validity of state statutes regulating freight rates, see Injunctions, 2 d (4). Prohibiting ticket brokerage as impairing obligation of contract, eee Constitu- tional Law, is. Bailrood car as subject to garnishment, see Garnishment, 1 e. Reasonableness of ordinance for licensing ticket brokers, see Municipal Gobpoba- TIONS, 5 f (2). Receiving goods from carrier as acceptance by purohaeer, see Fsacds, Statute Of, 9 b (1). Regulation of interstate carriers, see InTer- 8TATB Commerce. Requiring railroad companies to make re^ ports to state officers as interfering with interstate commerce, see InTObstate COM»U»CE, fi b ( 1 ) . Shipment of eJcploeives, liability of shipper, see Explosions awd BxpIiOSives, 8. Statutory prohibition of ticket brokerage, see CONSTITUTIDNAL liAW, 6 Ci B b. Statutory regulation of hours of labor, see Labor Laws, la. Subrogation of carrier to benefit of insurance on property injured in transit, see Subrogation, 1 g. Telegraph companies as common carriers, see TelegKAphs ANb Telephones, 2. Toll bridge keepers as common carriers, see Bridges. Transportation ticket as sxibject of larceny, see LaRCEJ^V, 2 c. 1. Who are Common Carriers. Corpoiratioa farnishing messenger as oarrier of money. — There is no presump- tion that a Common carrier engaged in the business of transporting parcels within a city by means of messengers assumes to act as a common carrier in the transportation of money, and one alleging the assumption of that status must affirmatively prove it. White V. Postal Tfel., etc., Co. (D. C), 4-767. If a common carrier engaged in the busi- ness of transporting parcels within a city by means of messengers does not customarily transport money, it will not be liable, in the absence of notice, for the loss of money con- tained in an envelope delivered to a messen- ger in its employ; and the acceptance by the carrier of a fee for the service of its messen- ger is not sUch a ratification of the messen- ger's act in undertaking to transport the money safely as will make it liable. White ■V. Postal Tel., etc., Co. (D. C), 4-767. A corporation engaged in the business of furnishing messengers in a city for hire, but which does not assume any control of the work in whicli the messengers are to be em- ployed, is not a common carrier, and is not, in the absence of a special contract, liable to a person to whom it furnishes a messen- ger for the latter'S failure to return money which he is sent to collect, unless the cor- poration fails to exercise due care in the se- lection of the messenger. Haskell *>. Boston District Messenger Co. (Mass.), 5-796. ■ Traa«pottati-' The common carrier of goods which transports live stock is as to the latter property also a common carrier. Central of (Jeorgia S. Co. V. Hall (Ga.), 4-128. Railroad company carrying ekpress matter. "- A railroad company does not sus- tain the relation Of common carrier to an express company, but the right of the latter company to the transportation furnished it depends solely on the contract between the two, and a messenger of the express com- pany, by accepting his employment with knowledge of the provisions of a contract be- tween the express company and the railroad company whereby the latter is released from liability for injuries to the employees of the former, assents to such contract, though he does not by that act alone waive his right to assert a liability against the railroad eom- pEiny. Robinson v. St. Johnsbury, etc., R. Co. (Vt.), 12-1060. Passenger elevator in prifate biiild- Uig, x. A landlord who maintains a passen- ger elevator in his private building is' not a common carrier, and is not an insurer of tlie 416 ANN. CAS. DIGEST, VOLS. 1-20. safety of persons using the elevator. Ed- wards V. Manufacturers' Bldg. Co. (R. I.), 8-974. 2. Requu^tion and Contbol of Common Cabbiebs. a. In general. Constitntlonal regnlatlon. — The pro- vision of the Utah constitution that " all rail- road and otlier transportation companies are declared to be common carriers, and subject to legislative control; and [that] such com- panies shall receive and transport each other's passengers and freight without discrimina- tion or unnecessary delay," requires merely that transportation companies shall not show favoritism to their own passengers or ship- pers over the passengers and freight com- ing from other lines, and does not prohibit n, carrier from protecting its passengers from annoyance and interference by others who may desire to solicit the business and patron- age of such passengers, or prevent the carrier from providing means by which a passenger may make arrangements for the transporta- tion of himself or his property beyond the end of the carrier's railroad. Oregon Short Line R. Co. v. Davidson (Utah), 14-489. Dnty to pnbllo. — While a discretion is allowed a common carrier corporation in the means and manner of the discharge of the duties it owes to the public, such discretion must he exercised in good faith and with rea- sonable regard for the requirements of the public service. When all the necessary facili- ties are furnished and operated so as to reasonably meet the just requirements of the public service the law in that regard is satis- fied. State ex rel. Ellis v. Atlantic Coast Line R. Co. (Fla.), 12-359. The power and duty of a state to require the property of a common carrier corpora- tion devoted to the public service within its borders to be maintained in a reasonably safe and adequate condition, and to be properly operated for rendering the public service to which the property is devoted by its corpor- ate owner, are inherent and reserved in the state for the necessary protection and bene- fit of the lives and property within its terri- tory. State ex rel. Ellis v. Atlantic Coast Line R. Co. (Fla.), 12-359. Separate classiflcation of railroads. — The legal duties of persons, firms, or cor- porations operating railroads may be of a peculiar nature and essentially different from the duties of other common carriers, and as to such matters they may be separately clas- sified for purposes of legislative regulation. Seaboard Air Line R. v. Simon (Fla.), 16-1234. Where the subject of legislative regulation, as in the Florida statute, is payment for goods lost in transit by a common carrier, a subject as to which the legal duties of all common carriers are similar, and there ap- pears to be no reasonable basis for imposing the burden of the regulation upon railroads only, the statute provides for an unreason- able classification that in effect denies to those operating railroads due process of law and the equal protection of the laws in vio- lation of constitutional rights, and is in- operative. Seaboard Air Line R. v. Simon (Fla.), 16-1234. Frobiblting crowding of cars. — A statute making it an offense for a street rail- way company to fail to supply a sufficient number of cars to accommodate all persons desirous of using the cars " without crowd- ing said cars," but which does not define "crowding" (Act Cong. May 23, 1908, § 16) is too indefinite and uncertain to be enforced, since an indictment under it would not com- ply with the constitutional requirement (Const. U. S., Amendment 6) that the ac- cused shall " be informed of the nature and cause of the accusation." United States v. Capital Traction Co. (D. C), 19-68. Prohibiting solicitation of business on trains, etc. — The Arkansas statute (Acts 1907, p. 553) which prohibits the so- licitation of business of certain kinds on the cars, etc., and at the stations of common carriers of passengers, is not in derogation of the right of personal liberty, but is a valid exercise of the police power. Williams v. Arkansas (U. S.), 18-865. Such statute, in forbidding the soliciting of business for any " hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner," be- ing applicable alike to all persons similarly situated, is not subject to the objection that it denies the equal protection of the law to persons engaged in the occupations men- tioned. Williams li. Arkansas (U. S.), 18-865. Statutory penalty for refusal to re- ceive goods. — The North Carolina statute (Revisal 1905, § 2361) imposing a penalty on a common carrier which refuses to accept freight tendered for shipment, is not invalid as unlawfully regulating, or imposing a bur- den on interstate commerce, but is a valid regulation in direct and reasonable enforce- ment of the duties incumbent on common carriers. Reid v. Southern R. Co. (N. Car.), 17-247. It seems that a statute imposing a penalty upon common carriers for refusal to receive freight tendered for shipment, and permitting no defense and no excuse however just and reasonable, would be invalid as authorizing a taking of the property of the carrier with- out due process of law. Murphy Hardware Co. V. Southern R. Co. (N. Car.), 17-481. Penalty for failure to pay claims. — The Florida statute (Acts 1907, c. 5618) im- posing a penalty on " all common carriers " in the state for failing to pay certain claims within a specified time after presentation is valid as making a classification in accord- ance with the constitutional requirements as to due process of law and equal protection of the laws. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. The constitutional provision for equal pro- tection of the laws ( Bill of Rights i'la., § 1 ; Const. IJ. S., Amendm. 14) is not violated by the Florida statute (Actg 1907, o. 5618) CARRIERS. 417 which makes common carriers liable for . in- terest and attorneys' fees in any case where a shipper has recovered a judgment for loss of or injury to goods shipped after refusal by the carrier to pay the claim therefor, but which gives no such right to the carrier if it prevails in the action. There is a dis- similarity in the situations of carrier and shipper respectively in that the shipper as- sumes no duty to the public. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. The court cannot say beyond a reasonable doubt that the penalty of fifty per cent, per annum interest on the principal sum of a claim for freight or express lost or damaged by a common carrier, imposed by the Florida statute (Laws 1907, e. 5618) for failure to pay the claim within sixty days from its filing with or presentation to the common car- rier, is so exorbitant and unreasonable as to render the statute unconstitutional. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. Liabilty dependent on amount of re- covery. — Under a statute imposing a penal- ty on a common carrier for refusing to pay a claim for injury to goods, with a provision that unless the consignee recovers judgment for the " full amount claimed," no penalty shall be recovered, but only the actual amount of damages with interest from the date of the filing of the claim, the carrier is liable for the penalty, if the total amount of the recovery, including interest, equals the amount of the claim filed. B. & M. White Laundry Co. v. Charleston, etc., R. Co. (S. C), 18-690. Under a statute making a common carrier liable to a penalty for refusing to pay a claim within a certain time, if the claimant sues for and recovers the " full amount claimed," a carrier is liable for the penalty, though the recovery is for half a cent less than the amount of the claim, the maxim de minimus non curat lea; being applicable to such a case. B. & M. White Laundry Co. v. Charleston, etc., R. Co. (S. C), 18-690. Attorneys' fees in action for penalty. — The maximum sum allowed by the statute as a reasonable attorney's fee in a suit against a carrier on a claim for freight or express lost or damaged where the carrier has failed to pay said claim in sixty days after its pre- sentation is fifteen per cent, on any amount recovered greater than the sum of one hun- dred dollars. The amount recovered means the amount of the claim recovered and not that amount plus the fifty per cent, per an- num interest also allowed by the statute. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047._ In a suft against a railroad company for injuries to live stock, the question whether one of the aniinals was thrown down in the car and injilred by thS negligent moving of the cai", is one of fact for the referee acting as the jury. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. Vols. 1-20 — Ann, Gas, Pjgest, — 27. b. Regulation of rates. Carriage of pupils of public schools. — A statute requiring street railway com- panies to carry school children at less than regular fare is not unconstitutional because not applying to all street railway companies in the state, nor because discriminating be- tween the pupils of public schools and other persons. Com. v. Interstate Consol. St. R. Co. (Mass.), 2-419. Discriminating regulations. — The pro- vision of the New Jersey general railroad law limiting the rates of fare for passengers to three cents per mile, in the case of rail- road companies organized under that statute, and to three and one-half cents per mile in the case of railroads operated under special charters, must be construed as fixing' the maximum charge which may be made by a railroad operating under a prior special char- ter authorizing it to charge a higher rate of fare; and as so construed the statute is not unconstitutional, as the legislature may altei: the charters of railroad companies, and a dis- crimination between railroad companies or- ganized under the general law and thosfe operated under special charters is one *hieh it is within the power of the legislature to make. Shelton v. Erie R. Co. (N. J.), 9-883. Special rates for particular classes of individuals. — While a state may pre- scribe the maximum scale of rates for the carriage of passengers, it cannot compel a railroad company to contract with any in- dividual or class of individuals for carriage at a charge less than the established or regu- lar scale of fares. Commonwealth v. Atlantic Coast Line R. Co. (Va.), 9-1124. Mileage boohs. — The Virginia statute requiring railroad companies to keep on sale at each and every station mileage books of five hundred miles and over, which shall be sold for no greater sum than two cents per mile, is a violation of the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution. Commonwealth i-. Atlantic Coast Line R. Co. (Va.), 9-1124. Prohibition of free passes. — A eon- tract between a railroad company and a phy- sician, by the terms of which he is to receive for his professional services to be rendered by him for the company, at its request, the sum of twenty-five dollars a month and an annual pass over its lines of road, where the physician does not spend a major portion of his time in the employment of the company, is prohibited by the Nebraska statute (Ann. St. 1907, §§ 10664, 10665) commonly called the anti-pass law, and the acceptance and use of such a pass by the physician renders him guilty of a violation of those sections. State V. Martyn (Neb.), 17-659. The provisions of said "anti-pass law," prohibiting the issuance, acceptance, and use of free transportation, are a proper and rea- sonable exercise of the police power of the state, and the power of the legislature to regulate the business of common carriers by preventing unjust discrimination, and are not il8 ANN. CAS. DIGEST, VOLS. 1-20. Lineonstitutional. State v. Martyn (Neb.), 17-659. Powers of state corporation commis- sion. — Under the provision of the Vir- ginia constitution that in all matters per- taining to the public visitation, regulation, or control of corporations which are within the jurisdiction of the state corporation com- mission the commission shall have the pow- ers and authority of a court of record, the commission, in a proceeding instituted by the commonwealth to compel a railway company to obey a statute fixing the maximum rate to be charged for passenger tickets, must pass judicially on any questions properly raised, including questions as to the constitutional- ity of the statute. Commonwealth v. Atlantic Coast Line R. Co. (Va.), 9-1124. Excessive fines and penalties. — The Minnesota statutes fixing the freight and pas- senger rates of railroad companies and mak- ing each violation by a railroad company of the freight rate act a misdemeanor for which the ofiBcers, directors, agent, and employees of the company are subject to imprisonment in the county jail for a period not exceeding ninety days, and making the sale of each ticket in violation of the passenger rate act a felony for which the offending agent is sub- ject to a fine not exceeding five thousand dol- lars or Imprisonment in the state prison for a period not exceeding five years, or both fine and imprisonment, and also rendering the company itself liable to large fines, deny the company the equal protection of the laws and operate as a taking of its property with- out due process of law, since the statutes allow a hearing upon the constitutionality of the rate regulations only upon a violation thereof, in which case the company and its agents would incur the risk of being subjected to the severe fines and penalties provided by the statutes in case the regulations should be sustained. Ex p. Young (U. S.), 14-764. Presumption of validity of statute. — An act of a state legislature fixing freight and passenger rates for railroads is to be regarded as prima facie valid, and the burden rests upon a railroad to prove the contrary. In re Young (U. S.), 14^764. c. Interstate commerce act. Prohibition of preferences. — The in- terstate commerce act doe.? not prohibit the giving of all preferences and advantages, or the production of all prejudices and disad- vantages, but only those that are undue and unreasonable. Gamble-Eobinson Commission Co. V. Chicago, etc., R. Co. (U. S.), 16-613. Prejudice not undue or unreasonalile. — The fact that a carrier, for the purpose of injuring the business of a, consignee, or harassing it, subjects it to a prejudice or disadvantage which is neither undue nor un- reasonable, does not change the nature of the prejudice or disadvantage or create any cause of action therefor. Gamble-Robinson Com- mission Co. r. Chicago, etc., R. Co. (U. S.), 16-613. PemnnA for prepayment qf tvei0x%. — A common carrier has the right under the common law to demand the prepayment of charges for freight of one, and to give credit for them to another similarly situated; and an interstate common carrier is free to exer- cise all his rights under the common law to the full extent to which such exercise has not been made unlawful by the interstate commerce act. Gamble-Robinson Commis- sion Co. V. Chicago, etc., E. Co. (U. S.), 16-613. An interstate carrier does not subject a consignee to an undue or unreasonable preju- dice or disadvantage under section 3 of the interstate commerce act by exacting, after due notice to such consignee, the prepayment of charges for transportation of all property consigned to it, while it does not require charges to be paid in advance on freight consigned to others similarly situated. Gam- ble-Robinson Commission Co. v. Chicago, etc., R. Co. (U. S.), 16-613. A complaint alleging that the plaintiff is a corporation engaged in buying, selling, and dealing for commissions in fruit, vegetables, and dairy products at Minneapolis, and hav- ing offices at St. Paul, Rochester, and Man- kato in Minnesota, and Aberdeen in South Dakota; that the defendant is a. common carrier having railroad stations at those towns, and lines of railroad through those states and adjoining states; that it is the custom and usage of such carriers, and of the defendant, for the terminal carrier to advance the charges of connecting lines upon freight consigned to parties at those stations, to transport the freight and deliver it to the consignees, to receive freight at its stations and to transport and deliver it to the con- signees, to hold the bills until the questions regarding the correctness of the charges on its lines and on the' connecting lines have been adjusted, and then to collect the bills of the consignees; and that from a bad mo- tive the defendant, after notice, refused to advance charges to connecting lines, and to receive and transport freight consigned to the plaintiff, unless the charges upon it for transportation were prepaid, while it con- tinued to give credit to other consignees simi- larly situated, according to the usage and custom, does not show that the plaintiff has been subjected to undue or unreasonable prejudice within the meaning of the inter- state commerce act. Ramble-Robinson Com- mission Co. V. Chicago, etc., R. Co. (U. S.). 16-613. 3. Dttty to PtJBNiSH Teanspoetation and Shipping Facilities. Accommodations for steerage pas- sengers on vessels. — Steerage passengers are entitled to recover damages from the owner of the vessel where they are not fur- nished with sleeping accommodations or proper food, and are compelled to occupy the .iteerage with a large number of drunk and disorderly persons who keep the place in a filthy condition, which the officers of the vessel make iio effective effoTt tp remedy, CARRIEES. 419 Northwestern Steamship Co. v. Kansom (U. S.), 20-1015. Contract to furnisli oars. ^ A conver- sation between a shipper and the agent of a carrier amounting to an agreement that the carrier will furnish the shipper a, cattle car at a certain time and place to be used for the transportation of the former's live stock, is not merged in or superseded by the written live stock contract of the carrier, the subject- matter of which is the extent of the obliga- tions of the carrier after the delivery of the animals to it for conveyance to their destina- tion, and whicli is designed solely to limit the liability of the carrier after the business of transportation has begun. Clark v. Ulster, etc.. R. Co. (N. Y.), 12-883. Mutuality of obligation. — The request of a shipper to the agent of a carrier that the carrier will furnish him a live-stock car at a certain time and place and the promise of the agent to comply with such request is a contract which is not void for want of mutuality, on the theory that such request imposes no legal obligation on the shipper to furnish the stock for shipment or com- pensate the carrier for its trouble and ex- pense in furnishing the car in case he fails to make use of it. Clark v. Ulster, etc., E. Co. (N. Y.), 12-883. Freight congestion as excuse for failure to fumisb oars. — It is a ques- tion for the jury whether in a given case a freight company made it impossible for a railroad company to furnish a shipper with cars under the Minnesota statute (Laws 1907, c. 23, § 11) making railroad companies liable in damages for failure to furnish cars unless the failure results from a cause " not within the power of the railroad company to prevent." Hardwick Farmers El. Co. v. Chicago, etc., K. Co. (Minn.), 19-1088. Reciprocal demurrage. — The Minne- sota statute (Laws 1907, c. 23, § 11) pro- viding for reciprocal demurrage for failure to furnish railroad cars is a valid exercise of the police power, and is not an unlawful attempt to regulate interstate commerce in the absence of legislation by Congress on the subject. Hardwick Farmers' El. Co. v. Chicago, etc., E. Co. (Minn.), 19-1088. Under the Mississippi statute providing that the railroad commission "may fix all charges and shall supervise and regulate all . . . car service associations or other asso- ciations governing or controlling cars or rolling stock of railroads," the commission has power to make rules originating charges for demurrage and reciprocal demurrage, with a view to the interest of the public at large in facilitating the handling of freight, independent of any support in the common- law doctrine of demurrage. Yazoo, etc., R, Co. V. Keystone Lumber Co. (Miss.), 13-960. The rule of the Mississippi railroad com- mission that " when cars are properly loaded, and shipping instructions given, the railroad agent must immediately issue tfills of lading therefor; and if said car or cars are detained or held, ?ind not carried forward within twenty-four hours thereafter, said railroad company shall be liable to said shipper for the payment of one dollar per car for each day, or fraction of a day, that said car or cars thus detained or held," was adopted with reference to car associations operating in tlie state of Mississippi, and not elsewhere, and raises no question of interference with inter- state commerce. Yazoo, etc., R. Co. v. Key- stone Lumber Co. (Miss.), 13-960. Attorneys' fees in action for demur- rage. — The provision of a statute for re- ciprocal demurrage for failure to furnish railroad cars, and that railroad companies shall be liable for attorney's fees in actions by shippers under the statute, is not invalid because it imposes a charge on carriers and not on debtors generally, the statute being a proper exercise of the police power of the state, and not a denial of equal protection of the laws. Hardwick Farmers' El. Co. v. Chicago, etc., E. Co. (Minn.), 19-1088. 4. Cabbiebs of Goods. a. Delivery of goods to carrier. Duty of carrier to receive goods. — The common-law obligation of a carrier by sea is to receive goods which it is able and accustomed to carry, in the order of their tender, without preference to any shipper. Ocean Steamship Co. v. Savannah Locomo- tive, etc., Co. (Ga.), 15-1044. A common carrier by sea cannot lawfully reject some goods which it professes to carry, and afterwards receive and transport other goods, where at the time of the tender there is room in the vessel for the rejected goods, and the safety of the vessel will in no wise be imperiled. Ocean Steamship Co. v. Savan- nah Locomotive, etc., Co. (Ga.), 15-1044, Goods in excess of capacity. — At common law a carrier's duty to carry is limited to its facilities for transportation. A navigation company, whose charter con- fers no power of eminent domain, and im- poses no public duties, is not to be classed as a public or g«asi-public institution, and is not bound to provide sufficient facilities to carry all goods which may be offered to it. It may decline to receive goods for transpor- tation in excess of its carriage capacity. Ocean Steamship Co. v. Savannah Locomo- tive, etc., Co. (Ga.), 15-1044. Booking of freigbt in advance. — The carrier's common-law obligation of serving the public impartially in the receipt and transportation of goods does not inhibit a carrier by sea from making " bookings " of freight — that is, from mailing specific ar- rangements for the transportation of goods by a particular vessel, in advance of its sell- ing day — 'provided this privilege is extended impartially to all patrons, or if the grant of this privilege to shippers of one commodity does not interfere with the carrier's discharge of duty to the shippers of other commodities with respect to the receipt and transporta- tion of their goods. The same niles wliich govern a carrier by sea in the reception of goods for transportation apply to the car- rier's engagements to transport by a partici\-. 420 ANN. CAS. DIGEST, VOLS. 1-20. l.ar vessel, or within a specified limit of time. Ocean Steamship Co, v. Savannah Locomo- tives etc., Co. (6a.), 15-1044. Bight to select oharaoter of goods. — A carrier which is not a public institution may select the character of the goods it pro- poses to earryj or discontinue to carry a par- ticular commodity. Ocean Steamship Co. v. Savannah Locomotive, etc., Co. (Ga.), 1. 5-1044. Right of carrier as against owner. — If a person not the owner of property or en- titled to its possession takes it and delivers it to a railroad for shipment, the true owner, who is no party to the contract, may, before delivery by the carrier, demand and reclaim his property; and as against an acti=on of trover brought for that purpose against the carrier by the true oWner; it furnishes n'o defense tlftt the carrier refused to recognize his title or right and carried and delivered the property in accordance with the ship- ment. Georgia R., etc., Co-, v. Haas (Ga.), 9-667. b. Transportation and delivery to consignee. ( 1 ) Wh'at constitutes delivery. When merchandise has been brought to the place of its destination by a common carrier, and the consignee or his agent presents the bill of lading to the carrier and receipts for all the merchandise, there is a delivery to the consignee of all the merchandise, though a part of it is left on the premises of the carrier. State t-. Intoxicating Liquors, (Me.), 20-668, (2) belay in transportation. Duty t* transport promptly. — It is the duty of a common carrier to whom goods are delivered for transportation to forward them promptly and without unreasonable delay to their destination. Bibb Broom Corn Co. r. Atchison, etc., R. Co. (Minn.), 3-450. At times of extraordinary demand. — A railroad company, as a common carrier, mvist furnish such facilities for the transpor- tation of freight as will meet the ordinary demands of the public, but it is not bound to anticipate or provide in advance for an un- usual iiiflux of freight such as arises froto an excessive crop of Cotton greater than the estimates made eithter by the railroad or by experts most fakniliar with crop conditions; and in an action for damages against a car- rier for failing promptly to transport cottdii accepted for shipment, the exclusion of evi- dence showing the extraordinary demands made upon the defendant's facilities ard the defendant's efforts to meet them is erroneous. Yazoo, etc., E. Co. v. Blum (Miss.), 11-272. Notice of probahle injury. — Common ca»Tiers are supposed to ta!:e' notice of such natural events as fire familiar to ordinary people." They will be held to a knowledge of see'd'time and harvest, and of the general customs relating thereto in the territory \*'here they do business. Hence, in an action against a carrier for delay in the deliv(. Jarvis Terminal Cold Storage Co. (N. J.), 7-960. Where a carrier delivers goods to a con- signee upon his promise to retain possession of them until the freight charges are paid by the consignor, if the delivery and promise are to be considered as making the consignee the agent of the carrier, so far as the posses- sion of the goods is concerned, then the lien for freiglit charges is terminated upon their 426 AN^S. CAS. DIGEST, VOLS. 1-20. payment by the consignor to the consignee, as payment to the agent is payment to the principal. Lembeck v. Jarvis Terminal Cold Storage Co. (N. J.), 7-960. h. Discrimination. Discrimination as to shipping facil- ities. — In an action by a shipper of lumber to enjoin a carrier by sea from discriminat- ing against shipments of lumber in favor of shipments of cotton, held that there was evi- dence authorizing a finding that the defend- ant discriminated against the plaintiff in the reception and transportation of lumber tendered for shipment, and that the trial court did not abuse its discretion in granting an ad interim injunction. Ocean Steamship Co. V. Savannah Locomotive, etc., Co. (Ga.), 15-1044. Discrimination as to rates. — A com- mon carrier cannot discriminate between shippers of freight over its lines by charging lower rates of carriage to the shippers agree- ing to reship the manufactured product of the freight by the same line. Hilton Lumber Co. V. Atlantic Coast Line E. Co. (N. Car.), 1-52. Under the Nebraska statute forbidding dis- crimination in freight rates, which provides that no railroad company within the state shall " directly or indirectly charge to or receive from any person or persons, or asso- ciation or corporation, any greater or less sum, compensation, or reward than is charged to or received from any other person or per- sons, association or corporation, for like and contemporaneous service in the receiving, transporting, storing, delivering, or handling of freight," and which also provides penal- ties for the violation of any of its provisions, and makes the offending railroad company liable to the party injured for all damages sustained, a contract between a railroad com- pany and a shipper to transport merchandise for less than the usual and regular freight rates is void, even though it is entered into by mistake on the part of the railroad com- pany and without any intention of discrim- inating against other shippers; and when a railroad company which has entered into such a contract discovers its mistake and exacts and is paid the regular rate, the ship- per cannot recover back the difference between that rate and the contract rate. Haurigan V. Chicago, etc., E. Co. (Neb.), 16-450. i. Connecting carriers. ( 1 ) Duties and liabilities in general. Statutes regnlating liability between carriers. — A statute providing, in the case of several connecting railroads under dif- ferent companies, where goods are to lie transported over more than one railroad, that each company shall be responsible to its own terminus only, and until delivery to the con- necting road, that the last company receiving the goods in good order shall be liable for damage thereto, and that such companies shall settle among themselves the question of ultimate liability, is not, as applied to ship- ments from beyond the state, repugnant to the interstate commerce clause of the fed- eral constitution. Kavanaugh v. Southern E. Co. (Ga.), 1-705. The South Carolina statute providing that in the case of a through shipment of goods over the lines of connecting carriers each car- rier shall be deemed to be the agent of the other carriers, and further providing that in any court of the state " any through bill of lading, waybill, receipt, check, or other in- strument, issued by either of such carriers, or other proof showing that either of them has received " such goods for through shipment or transportation, shall be prima facie evidence of the liability of the carrier issuing it, for the loss or damage to the goods in course of transportation, is not, as applied to interstate shipments, violative of the commerce clause of the federal constitution. Skipper v. Sea- board Air Line Ry. (S. Car.), 9-808. The South Carolina statute providing that " in case of the loss of or damage to any arti- cle or articles delivered to any railroad cor- poration for transportation over its own and connecting roads, the initial corporation . . . shall, in every case, be liable for such loss or damage, but may discharge itself from such liability by the production of a receipt in writing, for the said article or articles from the corporation to whom it was its duty to deliver such article or articles in the regular course of transportation," and further pro- viding that in such an event " the said con- necting road or roads shall be severally so liable, but may in succession and in like man- ner discharge themselves respectively there- from," is not, as to interstate shipments, vio- lative of the commerce clause of the federal constitution. Skipper v. Seaboard Air Line Ey. (S. Car.), 9-808. Statutes reciniring tracing of freight. — The Georgia statute imposing upon an initial or connecting carrier the duty of trac- ing freight and informing the shipper as to the facts connected with the loss thereof is, in its application to shipments of freight to points outside of the state, violative of the interstate commerce clause of the federal con- stitution. Central of Georgia R. Co. r. Mur- phey (U. S.), 2-514. The South Carolina statute making an initial, delivering, or terminal carrier liable for the loss or destruction of goods on the line of a connecting carrier if it fails to trace the goods and inform the shipper or con- signee, within a specified time after receiving notice of the loss or damage, when, where, and by which carrier the goods were lost, but further providing that the initial, terminal, or delivering carrier shall be excused from liability upon proof that by the exercise of due diligence it has been unable to trace the line upon which the loss or damage occurred, is not, as to interstate shipments, violative of the commerce clause of the federal constitu- tion. Skipper v. Seaboard Air Line Ry. (S. Car.), 9-808. Dntjr to transport beyond oxm line. — A carrier is under no common-law obliga- tion to transport goods beyond its own line. CAEEIERS. -1-27 Allen, etc., Co. r. Canadian Pacific R. Co. (Wash.), 7-468. Conflict between shipping receipt and bill of lading. — Where merchandise is delivered to a railroad company under a shipping order directing its delivery to a steamship company for transportation to its final destination by a specified route, and a shipping receipt is delivered to the consignor accordingly, and the consignor forwards the receipt to the steamship company specified therein, and the steamship company prepares a bill of lading designating a different route of transportation from that specified in the receipt, and transmits it to the consignor, who, without noticing the route mentioned therein, annexes it to a draft for the price of the merchandise and deposits it in a bank, the bill of lading and not the shipping order or shipping receipt constitutes the contract between tue consignor and the steamship com- pany. In such a case the rule that when a binding contract for the shipment of goods has been made between a consignor and a common carrier, and the execution of it has begun, delivery by the carrier to the con- signor of a bill of lading different from the original contract in its provisions will not supersede the original contract, has no appli- cation, since the shipping order given to the railroad company and the shipping receipt delivered by it do not constitute a contract between the consignor and the steamship com- pany. Waltham Mfg. Co. v. New York, etc., Steamship Co. (Mass.), 17-837. Which carrier liable. — Upon a pre- sumption of actionable negligence for delay in the transportation of goods handled by connecting carriers, a prima facie right of action exists against any one of the con- necting carriers in whose possession the goods are proven to have been. Harper Furniture Co. V. Southern Express Co. (N. Car.), 12-924. Waiver of statntory remedy. — The remedy afforded by statute providing for the liability of connecting railroads for, ship- ments made thereby may be waived by a special contract between the consignor and the initial railroad, and in such case the con- signee's remedy is upon the common-law lia- bility of the carriers over whose lines the shipment is made. Kavanaugh t'. Southern E. Co. (Ga.), 1-705. Burden of proof. — In an action against the initial carrier of two or more connecting carriers the burden of proof is on the plain- tiff to show that the damage occurred on that line, whereas, if the suit is against the last or delivering carrier the burden is upon it to show that the damage was not done on its line; but in an action against the initial carrier there is no presumption that the dam- age occurred on the line of the last carrier. St. Louis, etc., E.' Co. v. Pearee (Ark.), 12-125. (2) Presumption in locating negligence. Receipt in good ord^r. — When goods for shipment over several connecting lines are received in good order by the initial carrier, the law presumes that each successive carrier between the initial and the last carrier re- ceived them in good order and, in the absence of evidence locating injury to goods, that the last carrier is the negligent one. This pre- sumption may be overcome by evidence show- ing that one of the preceding carriers is the negligent one. St. Louis, etc., E. Co. r. Coolidge (Ark.), 3-582. (3) Concurrent negligence. Iiiability of initial carrier. — Where in an action against the initial carrier for injury to freight by delay it appears that its negligence was the efiicient and proximate cause of the injury, the fact that the last carrier is shown to have been equally guilty of negligence does not relieve the initial carrier from liability. St. Louis, etc., E. Co. V. Coolidge (Ark.), 3-582. (4) Liability for refusal to deliver goods. Non-payment of freight as defense. — The rule stated as to the liability of the last of the connecting carriers for a refusal to deliver goods to the consignee except upon the payment of freight charges greater in amount than those fixed by the bill of lading issued by the initial carrier. Goodin v. Southern E. Co. (Ga.), 5-573. j. Actions against carriers. (1) Actions for loss, injury or delay. (a) Defenses. Insanity of agent. — A common car- rier, having a limited liability for goods shipped by contract so as to be liable only for fraud or gross negligence, held to have the rigbt to plead, in defense of an action for the loss of goods carried, that the agent sud- denly became insane and caused the loss; and held to be for the jury to say whether the carrier exercised due diligence. Central of Georgia E. Co. v. Hall (Ga.), 4-128. (b) Evidence. Messengers intrusted ivlth money. — In an action against a corporation engaged in the business of furnishing messengers lor hire, to recover money collected but not re- turned by the messenger supplied by it, it is proper to exclude evidence that the defend- ant knew that its messengers were some- times intrusted with money by the persons to whom they were supplied, as such evidence does not tend to establish the liability of the defendant as a common carrier. Haskell v. Boston District Messenger Co. (Mass.), 5-796. Loss by fire — burden of proof. — On the trial, based on a declaration which al- leges only the common-law liability of defend- ant as a common carrier, by reason of the loss of plaintiff's goods by fire; and where it appeared as part of plaintiff's case that the liability was qualified by the introduc- tion of a bill of lading, by the terms of which loss " by fire or by flood " excused the car- rier from performance — held, that it was 428 ANlii. CAS. DIGEST, VOLS. 1-20. incumbent on the plaintiff to show as a basis for recovery, not only a loss by fire, but also that the. fire was attributable to some act of negligence on defendant's- part. Johnson v. West Jersey, etc., E. Co. (N. J.), 20-228. (c) Questions of law and fact. Good faith of valuation. — Where there is an issue of fact as to whether there was an actual hona fide valuation of the goods shipped or a mere arbitrary effort to limit the liability of the carrier, the question is one for the jury, but where the written con- tract shows that it falls within the latter description and there is no issue of .fact on the Subject, it is proper for the court to construe th« evidence. Central of Georgia R. Co. V. Hall (Ga.), 4-128. (d) Measure of damaiges. Price of goods at destination. — A stipulation in a bill of lading that the value of tiie goods at the point of shipment shall determine the measure of damages in the event of a loss is void when based upon no Consideration, and in an action to recover for an injury to the goods, the measure of dam- ages is governed by the price thereof at the destination at the time they were due there. St. Louis, etc., R. Co. v. Coolidge (Ark.), 3-582. In an action for the conversion of agricul- tural machinery, brought against a carrier of goods by the consignee, where it appears that the plaintiff had sold the machinery as agent for the consignor, and that he was en- titled to receive out of the proceeds of the sale a commission on the selling price, and it further appears that the carrier negligently delayed the delivery of the goods until the sales were for that reason canceled and the commission thereby lost, and it further ap- pears that the carrier has converted the ma- chines to its own use, the price for which the machines were sold at the place of delivery is the proper measure of damages. Missouri Pacific R. Co. V. Peru-Van Zandt Implement Co. (Kan.), 9-790. Profits lost by delay. — In an action against a carrier of goods for negligent de- lay in the transportation of scenery and other theatrical properties, where it appears that the carrier had full knowledge that the prop- erty had been widely advertised to be used in an exhibition at the place of destination and that the owner of the property was under heavy expenses in the use of it, the measure of damages is tbe ordinary gross earnings of the property for the time that the owner was deprived of its use for exhibition pur- poses, less such expenses, if any, as the depri- vation of the use of the property saved himi Weston r. Boston, etc., R. R, (Mass.), 5-82.5. Allegations of loss of profits which would have accrued to the plaintiffs upon the ful- filment oi a collateral contract, in consequence of the delay on the part of a common ca.rrier in the delivery of freight, are properly stricken upon demurrer, where it does not appear that the contract, from the fulfilment of which profits would have accrued, was in the con- templation of the parties at the time the carrier received the freight for transporta- tion. Goodin v. Southern R. Co. (Gra.), 5-573. (2) Actions for breach of contract of af- freightment. Allegations and prooi. --^ In an actioii to recover damages for the alleged breach of a contract of affreightnleilt, in which the com- plaint is in the form prescribed by the Ala- bama code in general terms for suits on a bill of lading of a common carrier, damage's resulting from a breach of the contract may be recovered, though 'the evidence shows a special contract. Southern R. Co. v. Webb (Ala.), 5-97. (3) Actions for penalty for refusal to receive goods. (a) In general. Existence of strike as defense. — In ah action against a railroad company to re- cover penalties for its refusal to receive a drove of cattle tendered to it for shipmenti under the North Carolina statute (Revisal of 1906, § 2631) which imposes a penalty upon common carriers for such a refusal, it is a valid defense that the defendant was pre- vented from furnishing cattle cars to the plaintiff by a strike of the machinists on its road, numbering several thousand men, which strike it could not control, and in consequence of whicli a large part of its motive power got out of order and could not be used. To hold that a carrier must receive freight for ship- ment under such circumstances, and thus ren- der itself liable to the further penalty, pre- scribed by section 2632 of the same statute, for delay in shipping, would be unreasonable. Murphy Hardware Co. v. Southern R. Co. (N. Car.),'l7^4Bl. Pecuniary injury to shipper. — In an action against a carrier of goods to recover a statutory penalty for refusal to receive goods tendered for shipment, it Is no defense that no pecuniary injury resulted to the ship- per from the wrongful act of the carrier. The penalty is given not solely for the pur- pose of making pecuniary compensation to the person injured, but for the more import- ant purpose of enforcing the performance by the carrier of its duties. Reid v. Southern R. Co. (N. Car.), 17-247. (b) Evidence. rVoods billed to point on independent line. — In ah action against a railroad com- pany to recover a Statutory penalty for re- fusal to receive goods tendered for shipment, evidence on behalf of the defendant company that the point designated as the destination of the goods was located on an independent line of railroad, is not sufficient to prevent a vterdict for the plaintiff. Where the evidence also shows that the line in question is oper- ated by the defendant company, all the money beiing sent to its treasurer, the reports being made to its auditor, and all salaries of em- ployees being paid by it. Under such eir- CAliKlEES. 4ay cumstanoes the defeiulant's agents should know the location of tlie siding and the rate thereto, or sli,ould be able to ascertain the same in the exercise of reasonable care. Eeid V. Southern R. Co. (N. Car.), 17-247. Tender of goods. — In such a case, a tender of the goods from day to day until the 5hipni,ent is made may be inferred fropi the plaiCi'ig °t tlie goods in the car with the permission of the agent, tlie deniand for sliip- ment, and the oontinuoius offer of prepayment of freight. Eeid v. Southern E. Co. (N. Car.), 17-247. Siiffioiency tq support recovery. — In an action against a railroad company to re- cover the penalty imposed by the abQve stat- ute, where the evidence shows that the plain- tiff applied to the ag^nt of the defendant at a certain station in Xorth Carolina for a freight car, which was furnished to him and which he loaded with goods; that a few days later 'he directed the agent to ship the goods to a certain person at a designated point in Tennessee, and Ijendered prepayment of the freight and demanded a bill of lading; that the age;it thereupon refused to giye the bill of lading or ship the goods, giving as his reason for such refusal that he did not know where the place designated by the plaintiff as the destination of the goods was located, or the rates thereto; that the plaintiff there- upon repeated his demand that the goods be shipped, and told the agent that he would prepay any additional amount found to be due, and asked to be notified over the tele- phone when the agent was ready to ship the goods so that he could pay the freight; that the ageut failed to ship the goods for a period of fifteen days, at the end of which time he was replaced by another agent; that the latter agent, within two days after his arrival, shipped the goods to the point desig- nated by the plaintiff, where they arrived in safety; .and that the poipt so designated was not a regular station on the defendant's road, but a siding to which freight was rebilled from a regular station some two miles distant, the jury is justified in finding a verdict in favor of the plaintiff. Eeid v. Southern E. Co. (N. Car.), 17-247, (4) Actions to recover overcharges. A shipper cannot maintain an action in a state court against a parrier of goods to re- cover damages on account of the exaction of unreasonable freight charges from hipi on interstate shipments, where the rate charged has been filed and promulgated by the car- rier under the interstate commerce act and has not been found by the interstate comrnerce commission to be unreasonable. Texas, etc., E. Co. V. Abilene Cotton Oil Co. (U. S.), 9-1075. 5. Caeriers of Live Stock. a. Transportat^Qii and delivery. ( 1 ) Delay in transportation. ' Pelay caused by 4ick|iefs$ of auimnl, — A dejay of twelve hours iij the transporta- tion of live stock' on account of the sickness of one is not negligence, where the remaining animals are sent forward by the next; train. Lewis V. Pennsylvania E. Co. m. J.), 1-1^6. Burden of proof. — In order to i^ecoyer damages for an alleged delay in the shippjent of live stock, it is necessary to introduce SOPJe competent evidence tending to sho\j>' tl\e le^l^h of time ordinarily required to transport the shipment from the place where received tp the point of delivery, and that a longer time was actually consumed than was necessary foi^ that purpose. Cleve v. Chicago, etc., it. Co. (Neb.), 15-33. SufiSoiency of evidence. — In an action against a carrier for injuries to, ^Ye stock resulting from the alleged negligent delay of the carrier in the transportation thereof^ e^i" dence examined and held to be insuSlcient to show that the carrier was negligent. Cleve V. Chicago, etc., E. Co. (Neb.), 15-3^. Penalty for delay. — The plaintiff in an action against a carrier for delay in the transportation of live stock need upt nega- tive the exception in a statute whicii re- quires railroads to run their trains at a cer- tain speed, provided, however, that on certain branch lines " the time consumed in picking up and setting out, loading or nnlpa(iing stpck at stations, shall not be included in the time required." Such exception is a matter- of defense. Cram v. Chicago, etc., E. Co. (Neb.)., 19-170. '■ (2) Deviation from direct route. Necessary deviation. — A carrier of live stock who, in case of necessity, deviates frpm the direct route, and is not negligent ^n the selection of the other route, is not liable simply by reason of the deviation for injuries to the live stock caused by a flopd. Enipire State Cattle Co. v. Atchison, etc., E. Co. (U. S.), 15-70. (3) Delivery to wrong person. A contract of affreightment of stock, con- taining a stipulation that the owner or hie agent shall ride upon the freight train on which the stock is transported, does not put upon the shipper the obligation of seeing tljat the stock is delivered to tlie consignee and not to a stranger, and . the carrier is liable for the misdelivery. Southern E. Co. ■;;. Webb (Ala.), 5-97. measure of damages. — Damages re- coverable from a common carrier for misde- livery of stock. Southern E. Co. v. Webb (Ala.), 5-97. b. Stoppage in transitu. A carrier of a shipment of live stock ac- cepted under a contract to carry the stock to a , certain point is not liable for refusal to stop the property in transitu on the demand of a l^hird person not a party tq the contract, and who notifies the carrier that the con- signor had obtained :the property" by #. fraud- ulent gale ^yhich, was rescinded, e^ecially wljere the oaj-rier gives, the claimant jiptiee "■^d PBPOrti^njty tp protect, his r.ights by legal prpceedingp. Switzler f. JJortWia. Pacific E. Cp. (Wash.), 13-357. 430 ANX. CAS. DIGEST, VOLS. 1-20. c. Loss of or injury to live stock. Injuries caused by natural propen- sities of animals. — A carrier of live stock is not liable for injuries caused by the natural propensities of the animals. Lewis v. Penn- sylvania E. Co. (]Sr. J.), 1-156. Failure to feed and water. — A con- tract between a carrier of live stock and a shipper that the latter will feed and water the stock, whether delayed in transit or not, is valid, and the carrier is not liable for in- juries arising from failure to feed and water the stock. Lewis v. Pennsylvania R. Co. (N. J.) 1-156. Burden of proving negligence. — In an action to recover damages from a carrier for injuries sustained in transit by live stock which were accompanied by the owner or his agents, the burden is on the owner to prove that the loss was occasioned by the carrier's negligence. Cleve l'. Burlington, etc., K. Co. (Neb.), 15-33. Presumption as to cause of injury. — Where injuries received by animals in tran- sit may have been caused by the nature of the animals or by the negligence of the car- rier, there is no presumption that the in- juries were due to the latter cause. Lewis V. Pennsylvania E. Co. (N. J.), 1-156. Fraudulent representations as to value. — Evidence held not sufficient to show a, perpetration of fraud by a shipper on the carrier as to special value of horses shipped. Central of Georgia E. Co. v. Hall (Ga.), 4-128. Sufficiency of evidence. — In an action against a carrier to recover for injuries to a shipment of live stock caused by a flood, evi- dence examined and held that the carrier was not negligent in delaying the shipment, in deviating from the direct route, in sending the live stock to the place where- the flood occurred, or in failing to move them from such place before the arrival of the flood. Empire State Cattle Co. v. Atchison, etc.. Cattle Co. (U. S.), 15-70. Recovery of interest. — A shipper whose property is injured by the negligence of the carrier is entitled to recover interest at the legal rate from the time the loss is sustained, on the amount of damages found in his favor. Fell f. Union Pacific E. Co. (Utah), 13-1137. Damage suffered on connecting line, — In an action against a railroad for dam- ages for injuries to live stock, it is not error to permit an amendment to the complaint changing the alleged place of destination of the shipment from Omaha, at which the de- fendant's road ended, to Chicago, which was the actual destination of the shipment, where the court confines the damages strictly to the loss occasioned by the neglect of the de- fendant on its own line of road. Fell v. Union Pacific E. Co. (Utah), 13-1137. Allegations put in issue by plea of not guilty. — In an action against a car- rier for injuries to live stock in transporta- tion a plea of not guilty does not put in issue an allegation in the declaration that the con- signee was the plaintiff's agent, and there- fore the court will not consider an objection that such allegation is not supported by the evidence. Atlantic Coast Line E. Co. v. Coachman (Fla.), 20-1047. d. Limitation of liability. Right to limit. — A carrier of live stock may by a special contract so limit its lia- bility for loss or damage that it will be liable only for gross negligence. Central of (Jeorgia R. Co. V. Hall (Ga.), 4-128. Matter of contract. — In the absence of evidence to the contrary, it is to be assumed that property accepted by a carrier for trans- portation is taken under the responsibility cast on it by the common law, except as modi- fied by statute; and, if lost under circum- stances rendering the carrier liable by the general rule of law, it must respond, unless it can show a contract, or a special accept- ance equivalent to a contract, which exempts it from the ordinary liability of common car- riers. The transaction must amount to a contract on the subject, wherein the minds of the parties meet as in the making of other contracts. Atlantic Coast Line E. Co. v. Coachman (Fla.), 20-1047. Iiimitation not favored. — Contracts limiting the common-law liability of carriers are not favored by the courts. Exemptions from liability will not be presumed, but must be found clearly expressed in the contract. Atlantic Coast Line E. Co. v. Coachman (Fla.), 20-1047. Limiting time for presentation of claim. — A clause in a contract of affreight- ment for transportation of stock, that a notice in writing of a claim for loss or injury must be given before the stock is removed from the place of destination, does not apply to a claim for damages for delivering prop- erty to persons other than the consignee. Southern R. Co. v. Webb (Ala.), 5-97. Valuation of property and corre- sponding freight rates. — Under the rules and regulations of the Eailroad Com- mission of Florida prescribing the maximum valuation in the shipment of horses and mules at seventy-five dollars each for a certain re- leased rate, and that for every increase of one hvmdred per cent, or fraction thereof in valuation there shall be an increase of fifty per cent, in rate, the shipper has the option to ship at his own or the carrier's risk, and he will not be bound, in the limit of his re- covery, by the payment of the released rate unless he knows the rate paid is a released rate and there is a fair meeting of the minds of the shipper and the carrier that, by pay- ment of the released rate, the recovery of the shipper will be limited to a certain maximum sum clearly agreed on. Atlantic Coast Line E. Co. V. Coachman (Fla.), 20-1047. If by a rule of a carrier of live stock car- ried or a published schedule of tariff rates its_ liability .is fixed by the rate of freight paid, and for the purpose of obtaining a cer- tain rate of freight the shipper reports to the carrier a valuation on live stock shipped, CARRIERS. 431 having notice or actual knowledge of these terms at the time or before the delivery of the stock by him to the carrier to be trans- ported and assenting thereto, the liability of the carrier is fixed by such agreement. If, however, the shipper has no notice of the rule or tariff rates of the carrier and does not assent thereto, the rule is different. At- lantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. Where the evidence is not so clear as to forbid any other inference than that a shipper consented to a specified valuation, the ques- tion must be left to the referee's determina- tion acting as a jury in a trial of the case. Atlantic Coast Line E. Co. v. Coachman (Fla.), 20-1047. Where a, shipper and a carrier fairly enter into a contract whereby the parties agree on a valuation of the property, with a rate of freight based on the condition that the car- rier assumes liability only to the extent of the agreed valuation, such contract will be upheld as simply fixing the rate of freight and liquidating the damages, a proper and lawful mode of securing a true proportion between the amount for which the carrier may be responsible and the freight it receives, and also of protecting itself against extrava- gant and fanciful valuations. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. 6. Cabeiers of Passengees. a. Duty to receive for carriage. (1) In general. Regard for safety and convenience of other passengers. — The general rule that a common carrier of passengers is bound to accept anybody and everybody who pre- sents himself for transportation and pays the regular fare, has its limitations. Where the carrier has reasonable cause to believe, and does believe, that the safety or conve- nience of its other passengers will be en- dangered by a person who presents himself for transportation, it has the right to refuse to accept such person as a passenger, and is not bound to wait until events have justi- fied its belief in that regard, provided reason- able grounds for such belief exist. Nor is the right to refuse to accept a person as a pas- senger confined to cases where the safety or convenience of other passengers would be en- dangered. Such right may arise from other circumstances. Connors v. Cunard Steamship Co. (Mass.), 17-1061. (2) Persons with contagious or infectious diseases. Dnty arising ont of contract. — Where, by a contract made between a county coiirt and a railroad company, for the mutual ad- vantage of the parties thereto in preventing the spread of a contagious disease, the car- rier agrees, in consideration that the county court shall provide and maintain a pesthouse for the care and treatment of persons in- fected with such disease, to furnish and equip properly a car therefor and transport such persons to the pesthouse, one of the class of persons therein designated in whose interest the contract is made may maintain in his own name an action against such carrier, either in assumpsit upon contract or in tort, for damages resulting from a breach of its duty to him under the contract, or arising out of the relation of carrier and passenger after he has been accepted as a passenger. Jenkins v. Chesapeake, etc., R. Co. (W. Va. ), 11-967. (3) Feeble or infirm persons. Person requiring medical attendance dnring ocean voyage. — Subject to the general qualification that the safety or con- venience of other passengers shall not be endangered, a common carrier of passengers is bound to take as passengers all who offer themselves, ill or well, provided it can fur- nish the necessary accommodations and the passenger is willing to pay for what he de- mands. Where, however, a person who pre- sents himself to a steamship company as a passenger for an ocean voyage is so ill as to require medical attendance during the voy- ' age it is his duty to state that fact to the carrier, and to make special arrangements for his transportation as a passenger in need of medical attention, and if he fails to do so he has no cause of action in tort against the steamship company for refusing to transport him as a passenger and removing him from the vessel, upon discovery of his condition by the ship's surgeon, before the vessel sails. Nor does it alter the case that the proposed passenger is accompanied by another person, where there is nothing to show that such other person is possessed of any medical knowledge or skill. Connors v. Cunard Steamship Co. (Mass.), 17-1051. Ship carrying surgeon. — The fact that . Consolidated R. Co. (Conn.), 9-l'99. Carriage on train w^ith passenger. — A passenger who, in proper season, delivers a trunk to the bajggageinan at a railway station, has the right to rtquire that it shall be carried on the same train which he takes. Conheim r. Chicago Great Western E. Co. (Minn.), 15-389. (3) Liability for injury, loss or delay in delivery. (a) In general. Delay in delivery. — Knowledge by a carrier that a trunk offered for transporta- tion is a salesman's trunk of samples taken with him on a business trip includes knowl- edge that delay in its delivery will result in interruption of his business and loss of time and custom. Webb i'. Atlantic Coast Line R. Co. (S. Car.), 11-834. Articles not ordinarily regarded as baggage. — A bagga^ agent of a carrier has implied authority to receive for transpor- tation as baggage articles of a passenger not ordinarily regarded as baggage, and if he does receive such articles for transportation, the carrier will be bound by his act and liable for the loss of the property, unless the pas- senger is advised that the agent is exceeding his authority. Bergstrom v. Chicago, etc., R. Co. (Iowa), 13-239. Property not belonging to passenger. — Where a passenger carries as baggage property belonging to another person the carrier, as regards such property, is a gratu- itous bailee only, and is liable only for the loss of the property by gross negligence or wilful misconduct. Brick v. Atlantic Coast Line R. R. (N. Car.), 13-328. Whei-e a passenger carries as baggage the property of arjothev not » member of the passenger's family or traveling W'ith him, an action against the carrier for the loss thereof can only be rnaintainedj by the owner. Brick V. Atlantic Coast Line R. R. (N. Car.), 13-328. Baggage left at station. — The liability of a railroad company as a common carrier, for loss of or injury to the checked baggage of a passenger, which has been left by the passenger with tlie company's baggage master at one of its stations on the passenger's ar- rival there by train, with directions to keep it tmtil called for, depends upon whether such baggage is called for within a reasonable time. Tallman i\ Chicago, etc., R. Co. (Wis.), 16-71 L. What constitutes a reasonable time de- pends on the facts and circumstances of each particular ease, and no general rule can be laid, down upon that polnti Tallman v. Chi- cago, etc., R. Co. (Wis.), 16-711. Baggage under control of passenger. — In the absence of 'a special agreement, a carrier of passengers does not assume a com- mon carrier's liability of an insurer for bag- gage of which it does not take full posses- sion and which remains under the control of the passenger, but the carrier is only boimd to exercise reasonable cate to protect from loss or injury siich iKiggage or property as the passenger has a right to bring with him into the ear. Sperry v. Consolidated E. Co. (Conn.), 9-199. In order to make a carrier liable for bag- gage as a common carrier, there must be either actual or constructive delivery of such baggage to the carrier. Southern R. Co. r. Bickley (Teiin.), 14-010. Until the entire and exclusive custody of baggage has been given to a common carrier, no responsibility rests upon it in that char- acter. Southern R. Co. v. Bickley (Tenn.), 14-910. What eontititntes custody by carrier. — In an action by a female passenger against a street railway company to recover damagfes for the loss of her baggage, evidence tha't when the plaintiff boarded the car she handed her satchel to the conductor, and that the conductor for the purpose of assisting her took the satchel and placed it in the car with in the sight and control of the plaintiff, does not justify the inference that the con- ductor assumed the custody of the satchel. Sperry «;. Consolidated R. Co. (Conn.), 9-199. fielivery of chech to connecting car- riei-. — The mere delivery of a baggage check of one railroad to the station agent of another railroad for baggage in the custody of the former at a point twelve or fourteeii miles distant, upon such agent's agreement to forward the baggage to the passenger's destination, is, in the absence of express or implied authority of the agent to make such an agreement, and in the absence of evidence of the willingness of the former railroad to surrender the baggage, not a constructive de- livery to the latter railroad, notwithstandiiig the fact that its line extends to the station of the forme*- railroad, where the baggage is located and that such station is used in com- CARRIERS. 449 mon by both railroads, the agent therein transacting business for both; and unless the baggage comes into the actual possession of the latter railroad, it is not liable for the destruction thereof by fire two weeks there- after at the common station. Southern R. Co. V. Bickley (Tenn.), 14-910. Connecting carriers. — In an action by a passenger against two connecting street railway companies to recover damages for the loss of the plaintiff's baggage, the plaintiff is not entitled to a verdict unless there is suf- ficient evidence to justify the jury in finding, either that the defendants, or one of them, ac- cepted the baggage under a contract, express or implied, to carry and deliver it as common carriers, or that the loss of the baggage was due to the negligence of the defendants, or one of them. Sperry v. Consolidated R. Co. (Conn.), 9-199. (b) Limitation of liability. Effect of provision in ticket. — A provision in a ticket for passage on an ocean steamship that neither the steamship com- pany, its agents, nor the ship shall be " in any way liable for loss of or injury to or delay in delivery of baggage or personal ef- fects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon," precludes a pas- senger from recovering more than the stipu- lated amount for a loss occasioned by the negligence of the steamship company, though the ticket contains no provision expressly ab- solving the company from liability for its own negligence. Tewes ». North German Lloyd Steamship Co. (N. Y.), 9-909. (4) Actions for damages, (a) Pleading. Amendment of complaint. — In an action by a traveling salesman against a car- rier for failure to deliver his baggage, it is proper for the trial judge to change the words in the complaint alleging loss of time " and business," to loss of time " from his business," where the change does no more than to make the complaint consistent after certain por- tions have been stricken out. Webb v. At- lantic Coast Line R. Co. (S. Car.), 11-834. Striking out allegation. — In an action by a traveling salesman against a railroad company for damages for failure to deliver promptly the plaintiff's trunks containing samples, where the complaint charges that the defendant's agent who checked the trunks " knew that said trunks contained samples and that it was necessary for him [the plain- tiff] to have them along with him for the sale of goods in his regular business," it can- not be insisted that the trial court should strike out of the complaint allegations that the failure to deliver the trunk was " in utter disregard of the plaintiff's rights " and Vols. 1-20 — Ann. Cas. Digest. — 29. " through defendant's wanton and wilful neg- ligence, carelessness, and recklessness " and that the plaintiff " was not able to sell any dry goods in consequence of the delay . . . thereby causing him to lose much time and business," such allegations not being objec- tionable as relating to damages " special, re- mote, and speculative " and not in the con- templation of the parties. Webb v. Atlantic Coast Line R. Co. (S. Car.), 11-834. (b) Admissibility of evidence. Iioss of business. — In an action by a traveling salesman against a carrier for fail- ure to deliver his baggage it is not reversible error to admit evidence to show that the time of the failure to transport the trunks was during one of the plaintiff's two seasons of business activity, the knowledge by the de- fendant that the plaintiff was a traveling salesman imparting knowledge of periods of activity in his business. Nor is the admis- sion of evidence of the Joss of sales to certain customers error, the verdict of the jury evi- dently not being based upon the failure to make particular sales. Webb v. Atlantic Coast Line R. Co. (S. Car.), 11-834. Production of articles in court. — In an action for injury to or loss of baggage, it is not an abuse of discretion for the trial court to refuse to compel the plaintiff to obey a subpoena requiring him to produce in court the principal articles claimed to have been injured, where it appears that the de- fendant's witnesses were permitted to inspect the articles before the trial. Withey v. Pere Marquette R. Co. (Mich.), 7-57. (c) Sufficiency of evidence. Negligence of defendants. — Evidence reviewed, in an action by a female passenger against connecting street railway companies to recover damages for the loss of her bag- gage, and held insufficient to show that the initial railway company assumed the custody of the baggage, and insufficient to justify a finding that the plaintiff's loss was occasioned by the negligence of the defendants, or either of them. Sperry v. Consolidated R. Co. (Conn.), 9-199. In an action by a passenger against a street railway company to recover damages for the loss of her baggage the question whether the defendant exercised reasonable care to pre- vent the loss is ordinarily one of fact for the jury, but where the evidence is clearly insuf- ficient to sustain a verdict for the plaintiff upon that question, it is not erroneous to re- fuse to submit the question to the jury. Sperry v. Consolidated R. Co. (Conn.), 9-199. Amount of damages. — In an action to recover damages for delay in delivering a traveling salesman's trunk containing sam- ples which had been checked as baggage, evi- dence examined and held to be too indefinite and speculative to form a basis for estimat- ing the amount of the damages. Conheim r. Chicago Great Western R. Co. (Minn.), 15-389. Wantonness or recklessness of de- fendant. — Evidence in the case at bar ex- 450 ANN. CAS. DIGEST, VOLS. 1-20. amined and held to Wftrrant a finding of indifference to manifest duty in the trans- portation of the plaintiff's trunk from which wantonness or recklessness might be inferred. Webb V. Atlantic Coast Line R. Co. ( S. Car. ) , 11-834. Iiialiility of defendant as oommon carrier. — In an action against a railroad company to recover damages for the loss of baggage, where the evidence shows that the plaintiff was a passenger on one of the de- fendant's trains on a Sunday; that on his arrival at his destination, about five o'clock in the afternoon of that day, he looked for a conveyance to carry to his home a grip which he had checked on the train and which was too heavy for him to carry, but could find none; that he thereupon gave the check for the grip to the defendant's baggage master at the railroad station, telling the latter to keep the grip and that he woiild call for the same that evening or the next morning; and that on the following morning, about eight- thirty or nine o'clock, plaintiff sent a con- veyance for the grip, a finding by the trial court that the defendant's liability as com- mon carrier continued until the baggage was called for will not be disturbed on appeal. Tallman v. Chicago, etc., E. Co. (Wis.), 16-711. (d) Instructions. Limitation of liability. — In an action by a passenger against an ocean steamship company to recover damages for the negligent destruction of the plaintiff's baggage, it is erroneous to instruct the jury that the plain- tiff was not bound by a condition in his passage ticket limiting the liability of the defendant to a specified amount, if that con- dition was not called ,to the attention of the plaintiff, and he knew nothing about it, and by the exercise of reasonable attention would not have known it, as there is a just and logical .distinction between an ordinary rail- road ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which are usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to as- certain and understand. Tewes v. North German Lloyd Steamship Co. (N. Y.), 9-909. Comments on testimony. — In an action by a traveling salesman against a carrier for failure to deliver his baggage a remark by the trial judge, in admitting certain evidence, that the testimony was that the plaintiff told the defendant's agent to check his sample trunks, and that the defendant must have known why he was traveling, is not error. Webb V. Atlantic Coast Line R. Co. ( S. Car. ) , 11-834. (e) Measure of damages. For delay in delivery. — The measure of damages for delay in delivering a travel- ing salesman's trunk containing samples, which was checked as baggage, is the value af tha use cf th* prcpArty- during (he i»l»f, including sueh incidental expenses and dam- ages as were in the contemplation of the par- ties when the contract of carriage was made. Conheim v. Chicago Great Western R. Co (Minn.), 15-389. Fnnitive damages. — Punitive damages may be recovered by a traveling salesman for the failure of a carrier to transport the trunks containing his samples. Webb v. At- lantic Coast Line R. Co. (S. Car.), 11-834. j. Contributory negligence, (a) In general. Riding on unsuitable part of train. — A person riding on an unsuitable or ex- posed part of the train, even if a passenger, is guilty of such contributory negligence as to bar a recovery by him for injuries sus- tained. Radley v. Columbia Southern R. Co. (Oregon), 1-447. Alighting at place other than plat- form. — Whether a passenger is guilty of contributory negligence in alighting from a street ear elsewhere than at the platform is a question of fact for the jury, where the evidence shows that the appearance of the place of alighting was deceptive and that an invitation to alight was clearly implied by the conduct of the conductor. Topp v. United Railways, etc., Co. (Md.), 1-912. Falling doivn stairs on station prem- ises. — The act of a passenger who has alighted from a railroad train in the day- time, at a station which he has previously visited, in opening by mistake a door in the station building, which is not marked as a place of entrance for passengers and which leads to a basement stairway, and entering the same without looking where he is going, constitutes contributory negligence, and if he is injured by falling down the stairway, under such circumstances, he cannot recover dam- ages against the railroad company because of the injury. Speck v. Northern Pacific R. Co. (Minn.), 17-460. (2) Intoxication of passenger. Prosimate cause of injury. A pas- senger cannot recover damages from a carrier for personal injuries sustained by him, if his voluntary intoxication was a direct and proxi- mate cause of the injury. Black v. New York, etc., R. Co. (Mass.), 9-485. Intoxication not proximate cause of injury. — In an action by a passenger against a carrier to recover damages for in- juries sustained by the plaintiff, where it appears that though the plaintiff was intoxi- cated at the time of the injury his intoxica- tion was not a cause of the injury, but was a mere condition which was well known to the defendant's servants, and it further appears that the acts of such servants were a direct and proximate cause of the injury, with which no other act or omission had any causal connection, the plaintiff is entitled to recover. Black v. New York, »to., R. Co (Mass.), 9-485. CARRIEKS. 451 (3) Riding or standing on running board of street ear. Using Tunning board for passage. — A passenger on a street car containing an inside aisle, who voluntarily and unneces- sarily uses the running board of the car in- stead of the aisle, to go from one part of the car to another, is guilty of contributory neg- ligence precluding him from recovering for an injury caused by his collision with a trol- ley post while on the running board. Bridges I'. Jackson Electric R., etc., Co. (Miss.), 4^662. Trolley post near track. — It cannot be said as a matter of law that a trolley post thirty-three inches distant from the track is dangerously near the track or that its main- tenance shows gross negligence on the part of the street railway company, though it is nearer the track than the adjacent posts are, and a passenger riding on the running board is injured by colliding with it. Bridges v. Jackson Electric R., etc., Co. (Miss.), 4-662. Gnard rail np. — The fact that the guard rail on a street car next to the trolley posts is, contrary to custom, up instead of down, does not justify a passenger in exposing him- self to danger knowingly and voluntarily by riding on the running board of the car next to the trolley posts. Bridges v. Jackson Elec- tric R., etc., Co. (Miss.), 4^662. Assent by conductor. — In an action by a passenger against a street railway company to recover damages sustained by the plaintiff by coming in contact with a trolley pole while using the running board of an open car for the purpose of going from one part of the car to another, where it appears that the defendant's tracks, poles, and cars were prop- erly constructed, maintained, and operated, and it does not appear that the plaintiff was ignorant of the conditions surrounding him, evidence that the conductor of the car gave a simple assent when the plaintiff expressed his desire to change his location in the car, and that the conductor failed to give the plaintiff any warning or intimation of danger involved in using the running board while the car was in motion, is not sufficient to show that the conductor was guilty of negligence rendering the defendant liable for the injury. Tietz V. International R. Co. ( N. Y. ) , 9^1020. Standing temporarily on running board. — A person who passes ten feet in front of an approaching dray and takes his stand temporarily upon the running board of a street ear has a right to assume that he need pay no further heed to such dray and is not guilty of contributory negligence in fail- ing to look out and avoid being struck by a hub of the dray. Sibley v. Nason (Mass.), 12-938. (4) Riding on platform. Passenger unnecessarily on platform, — Standing or riding upon a platform, when unnecessary, constitutes such contributory negligence as will preclude a recovery for in- juries received: and whether it is necessary to stand upon the platform becauae of the crowded condition of the oars is a question for the jury. Rolette v. Great Northern H. Co. (Minn.), 1-313. Passenger necessarily upon platform. — The mere fact that a passenger is injured while necessarily standing upon the platform is not itself a cause for an action against the railroad company, as there must be some in- tervening act attributable to the company and not to the plaintiff himself or another passenger, to make the company liable. Re- lette V. Great Northern R. Co. (Minn.), 1-313. No seats inside. — The fact that there are no seats in railroad cars does not justify Where a passenger is warned by the con- a passenger in riding on the platform while the train is in motion, it being his duty to use reasonable effort to find standing room inside. Rolette v. Great Northern R. Co. (Minn.), 1-313. Passenger -warned by conductor. — ductor of the danger of standing on the plat- form and ordered to go inside the car, his failure to comply with the order or to at- tempt to find standing room inside will pre- clude a recovery from the railroad company for injuries received. Rolette v. Great North- ern R. Co. (Minn.), 1-313. Platform of street car. — It is not contributory negligence per se for a pas- senger to ride, without objection by the rail- way company, upon the platform of a street car, although there is room inside the car and although there is a notice posted in the car warning passengers that it is danger- ous to ride upon the platform. Capital Trac- tion Co. V. Brown (D. C), 10-813. (5) Leaving seat before train or car stops. Railroad train, in general. — The lia- bility of a carrier for injuries to a passenger leaving a seat before the train stops. Illinois Central R. Co. v. Jolly (Ky.), 4-748. Freight train. — A. passenger on a freight train who while the train is slowly moving rises from his seat and stands for a very short time is not for that reason guilty of contributory negligence as a matter of law. Pasley v. St. Louis, etc., R. Co. (Ark.), 13-121. Where a passenger riding on a drover's pass in the caboose of a long and heavy freight train, who is accustomed to riding on freight trains, voluntarily leaves his seat while the train is moving and is injured by a jar or jerk naturally resulting from the stopping of the train at a station, he cannot hold the railroad company liable for injury in the absence of a showing of negligence on the part of the servants in the management and control of the train or in the stopping of the train at an improper place or in an im- proper manner. Hedrick v. Missouri Pacific R. Co. (Mo.), 6-793. Electric car. — In an action by a pas- senger against an electric railway company to recover damages for personal injuries, the declaration is not rendered demurrable, aa showing contributory negligence on its face, by an allegation that as the car was ap- 452 ANN. CAS. DIGEST, VOLS. 1-20. preaching the plaintiff's destination and had slowed down so as to make it reasonably prudent for him to leave his seat and go out upon the platform for the purpose of alight- ing as soon as the car should come to a full stop, he went out on the platform for that purpose. Washington, etc., R. Co. v. Chap- man (D. C), 6-721. Instructions reviewed in an action by a passenger against an electric railway com- pany to recover damages for personal injuries sustained by the plaintiff while standing on the platform of the defendant's car as it was slowing down on approaching his destination, and held to be, when considered as a whole, a just and fair statement of the law of the case. Washington, etc., R. Co. v. Chapman (D. C), 6-721. Evidence reviewed in an action by a pas- senger against an electric railway company to recover damages for personal injuries sus- tained while standing on the platform of the defendant's car as it was slowing down on approaching his destination, and held to justify the submission to the jury of the questions of negligence and contributory neg- ligence. Washington, etc., R. Co. v. Chap- man (D. C), 6-721. (6) Part of body protruding from oar. Arm out of -window. — It is negligence as a matter of law for a passenger traveling on a rapidly moving railroad car to project, intentionally and needlessly, his arm or a part thereof out of the window of the car. Interurban R., etc., Co. v. Hancock (Ohio), 8-1036. In a suit against an interurban electric railway company for injury to a passenger by reason of his arm being struck by a car passing upon the adjoining track, an instruc- tion as to the contributory negligence of the plaintiff approved. Interurban R., etc., Co. V. Hancock (Ohio), 8-1036. The fact that a passenger was riding with part of his arm protruding from the car window is sufficient to require the submission of the question of contributory negligence to the jury, in an action for injuries caused by an object near the track striking the pas- senger's arm. (See note, 1 Ann. Cas. 710.) Gardner v. Metropolitan St. E. Co. (Mo.), 18-1166. Head outside of open street car, — A passenger on an open street car is not as a matter of law guilty of contributory neg- ligence in putting his head out ten inches beyond the side of the car. Cummings v. Wichita R., etc., Co. (Kan.), 1-708. ( 7 ) Boarding or alighting from moving train, (a) In general. Negligence per se. — To get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it. Boulfrois v. United Traction Co. (Pa.), 2-938. Burden of proof. — The act of getting on or off a moving train is evidence of con- tributory negligence, and imposes upon one who is injured in doing so the burden of proving that the peculiar circumstances of the case justified him in such course. Hoyl- man v. Kanawha, etc., R. Co. (W. Va.), 17-1149. (b) Boarding. Injury received after boarding. — Where a person attempts to board a moving car, and before his attempt to get on is com- plete is thrown off and injured by a sudden jerk of the car, he i? not entitled to damages; but if, though negligent in getting on, his attempt is completed in safety and he is thrown off by a jerk of the car before seated, the railroad company is answerable. Boul- frois V. United Traction Co. (Pa.), 2-938. ( c ) Alighting. General rule. — The general rule is that passengers getting off a moving railroad train are chargeable with contributory negligence and cannot recover for injury received there- from. Hoylman v. Kanawha, etc., R. Co. (W. Va.), 17-1149. The fact that in stepping from a moving train the plaintiff may not have been guilty of negligence defeating his right to recover does not entitle him to a verdict unless it also appears that the carrier was guilty of negli- gence which was a proximate cause of the plaintiff's injury. Simmons v. Seaboard Air Line Ry. (Ga.), 1-777. By advice or command of carrier's servant. — Where it appears that a passen- ger alighted from a train at a particular point upon the invitation of the conductor or other employee on the train, or under the belief that the train was not in motion, and the cir- cumstances show that there was a reasonable ground for such belief, these facts may be taken into consideration by the jury in de- termining whether the plaintiff was guilty of contributory negligence. Baltimore, etc., R. Co. V. Mullen (111.), 3-1015. The circumstances under which a passenger alighted from a moving train held to author- ize a recovery of damages against a railroad company for negligence. Baltimore, etc., R, Co. V. Mullen (111.), 3-1015. Where, in an action against a street rail' way for damages it appears that the con- ductor of the car, while the same was moving slowly, called out to a passenger to change cars and then jumped from the car and began putting up the rear fender and that the pas- senger stepped from the car and was injured, such facts do not show as a matter of law either that the railroad company was free from negligence or that the passenger was guilty of contributory negligence. Elwood r. Connecticut E., etc., Co. (Conn.), 1-779. Jumping from car to avoid accident. — A passenger on an electric car which is running away rapidly down a dangerous grade, who has a well-grounded fear of im- minent danger, is justified, in obedience to the instinct of self-preservation, in jumping from the car, if that seems to Ije the best method of escape. Lehner v. Pittsburg E. Co. (Pa.), 16-83. CARRIERS. 453 (8) Walkiug on station premises in dark. Unnecessarily walking for exercise. — Where, on an unusually dark night, a pas- senger awaiting the arrival of u train, who has been permitted to occupy us a waiting room » car which is well lighted and is pro- vided with necessary accommodations, leaves the car for the mere purpose of getting exer- cise, with the result that he is injured while walking on the station premises in the dark, he is guilty of contributory negligence pre- cluding him from recovering for injuries sus- tained. Abbot V. Oregon E., etc., Co. (Ore- gon), 7-961. (9) Alighting from car and crossing track. Vie'W obstmcted. — It is contributory negligence, barring a recovery for injuries inflicted by a negligently operated car, for a passenger on alighting from an electric street car and passing to the rear thereof to at- tempt to cross a parallel track before the car from which he has alighted has moved for- ward sufficiently to give him an unobstructed view of cars coming from the opposite direc- tion on the parallel track, though he looks and listens in vain before crossing. Horn- stein V. United E. Co. (Mo.), 6-699. Where one who has alighted from a trol- ley car in which he has been a passenger passes behind the car and proceeds to cross the track on which cars run in the other di- rection, making no observation for his own safety except to " look up " at a time when the car from which he has alighted pre- vents his view of the other track, and, with- out waiting until that car has passed suf- ficiently far to permit observation, enters on that track and is struck by a car thereon not running at excessive speed, he is guilty of contributory negligence as a matter of law. Eagen v. Jersey City, etc., St. R. Co. (N. J.), 12-911. The fact that a person crossing behind a street car and struck by a car on the parallel track has been a passenger, does not relieve him of the duty to take reasonable care for his own safety. Eagen v. Jersey City, etc., St. R. Co. (N. J.), 12-911. Crossing intervening track to sta- tion. — A passenger alighting from a train separated from the station by an intervening track has a right to assume that his safety will not be endangered by a train passing upon the intermediate track while he is creas- ing to the station, and he is not required to observe the rule which compels a person cross- ing the tracks of a railroad on a highway to stop, look, and listen before attempting to cross, though he is required to exercise ordi- nary care under the circumstances. Besecker V. Delaware, etc., R. Co. (Pa.), 14-21. Where, as a train approaches a station, the passengers are notified of that fact, and the doors of the cars are thrown open to permit the exit of passengers, and the speed of the train is reduced, a passenger for that station who, as the train reaches the usual place for discharging passengers, alights from the slowly moving train and in crossing an inter- vening track betwooii tlie train and the sta- tion is sti-uck and injured by another train on that track, is not guilty of contributory neg- ligence in alighting from liis train before it has stopped, as the fact that his train has not entirely stopped is not notice to pas- sengers that the carrier will fail to perform its duty to keep the intervening track clear. Besecker v. Delaware, etc., R. Co. ( Pa. ) , U-21. k. Connecting carriers. Presumption of agency. — Where a railroad company issues and sells a ticket with a coupon attached good over a connect- ing line, the presumption is, in the absence of other evidence, that the company acts as the agent of the connecting carrier in making the sale. Pennsylvania Co. v. Loftis (Ohio), 3-3. Contract arising from sale of ticket. — A mere sale by a railroad company of a coupon ticket for transportation of a passen- ger over its own and a connecting line does not import a contract of the company to be- come responsible for the safety of the passen- ger beyond its own line. Pennsylvania Co. v. Loftis (Ohio), 3-3. Pleading in action for expnlsion from station, — In an action by a passen- ger against two railroad companies operating connecting lines, to recover damages for ex- pulsion from a station at the junction of such lines, where the plaintiff alleged generally that she purchased a ticket over both rail- roads between two points, by special demurrer she could be required to allege whether she purchased it from one company or the other, or its agents, or from an outsider. Riley i\ Wrightsville, etc., R. Co. (Ga.), 18-208. Parol evidence of contract. — Where a railroad sells a coupon ticket good over a con- necting line, it is competent to prove by parol evidence, aside from the ticket sold, the con- tract made between the carrier and the pas- senger. Pennsylvania Co. v. Loftis (Ohio), 3-3. Joint liability. — Where two railroad companies, jointly operating their properties through the agency of a common lessee be- tween two points connected by their roadbeds and tracks, undertake in the discharge of their duty as common carriers to carry a passenger over their tracks between such points, they are jointly liable for an injury sustained by the passenger in consequence of the negligence of the lessees' servants, and therefore the complaint in a joint action against the two lessor corporations to recover for the injury is not demurrable for mis- joinder, whether the cause of action is for a breach of contractual duty or for a tort aris- ing out of the breach of contract. Carleton V. Yadkin E. Co. (N. Car.), 10-348. 1. Actions by passengers against carriers. ( 1 ) Jurisdiction. As to actions for wrongful ejection, see ante, 6g (5). As to actions for loss of or injury to passen- gers' baggage, see ante, 6 h (4). 454 ANN. CAS. DIGEST, VOLS. 1-20. Action for failure to heat cars. — The plaintiff's petition showing that the car in which she was transported as a passenger over the defendant's railway was not heated, although the weather was extremely cold, that in consequence of the failure of the defend- ant's employees to heat the car she contracted a severe illness., that she began her journey over the said railway at Albany in the county of Dougherty and that she suffered as a re- sult of the cold " in a few minutes after the train left Albany, and while in said county of Dougherty," a suit to recover damages for injuries which resulted from the exposure to the cold was properly brought in that county; and it was not error for tlie court to overrule a demurrer to the petition based upon the want of jurisdiction on the part of the city court of that county, although the hurtful effects resulting from the failure to heat the car may have been increased by the continua- tion of the journey through other counties. Atlantic Coast Line R. Co. v. Powell (Ga.), 9-553. (2) Statute of limitations. Common-law action for negligence. — An action to hold an electric railway com- pany liable as a common carrier of passen- gers for personal injuries sustained by the plaintiff while traveling on an unconditional free pass issued to him, the injury resulting from a head-on collision between the cars, is based upon the defendant's breach of its com- mon-law duty as a common carrier to carry the plaintiff safely as a passenger, and is not governed by the Ontario statutes limiting the time within which an action may be brought against the railroad company for an injury sustained " by reason of the railway." Eyek- man v. Hamilton, etc., R. Co. (Ont.), 4-1126. (3) Plaintiff's pleadings, (a) Form of action. Assanlt by servant. — A passenger may maintain an action ex contractu against a carrier to recover damages for an assault com- mitted on him by a servant of the carrier. Busch V. Interborough Rapid Transit Co. (N. Y.), 10-460. Breacli of contract to carry. — A declaration in assumpsit, by one entitled to the benefit of a contract between a county and a railroad company whereby the latter has agreed to transport persons suffering from an infectious disease to the county pest house. Which properly impleads the railroad company thereon and for a breach of its duty to him thereunder, is good upon demurrer. Jenkins v. Chesapeake, etc., R. Co. ( W. Va. ) , 11-967. Contract or tort. — Petition examined, in an action for damages against a carrier of passengers, and held not to state either a cause of action ex contractu against a com- mon carrier, or a cause of action at common law for the carrier's negligence. Fremont, etc., R. Co. V. Hagblad (Neb.), 9-1096. (b) Allegations. Assanlt by employees. — In an action by a passenger against u, carrier, the com- plaint states a good cause of action ex con- tractu, where it alleges that on a specified date " plaintiff became a passenger of de- fendant for the purpose of being carried upon one of its cars; " that in consideration of the payment of fare by the plaintiff to the de- fendant " the defendant promised and agreed safely to carry the plaintiff and to treat him properly and carefully; " and that "the de- fendant through its agents and employees, wrongfully, illegally, and in violation of the terms of the said contract, assaulted the plaintiff," etc. Busch v. Interborough Rapid Transit Co. (N. Y.), 10-460. Relation of carrier and passenger. — In order to state a cause of action upon the statutory duty of a railroad company to a passenger who has not actually taken passage upon the train, it is necessary that the facts stated shall show that the person suing is one of the class of persons to whom the remedy is afforded by the statute. To plead that he is a passenger, in a case where the exist- ence of such a relation to the carrier is at issue, pleads a mere conclusion of law and is not sufficient. Fremont, etc., E. Co. v. Hag- blad (Neb.), 9-1096. Petition examined, in an action for damages against a carrier of passengers, and held not to set forth facts sufficient to constitute the plaintiff a passenger so as to bring him within the provisions of the Nebraska statute pro- viding that " every railroad company . . . shall be liable for all damages inflicted upon the person of passengers while being trans- ported over its road." Fremont, etc., R. Co. r. Haglilad (Neb.), 9-1096. General allegation of negligence. — In an action by a passenger against a, street railroad company for injuries received through a derailment of the car, it is suf- ficient to allege generally that such derail- ment was caused by the negligence of the company or its servants without more par- ticiilar specification. Hebert v. Portland R. Co. (Me.), 13-886. Failure to stop train at station. — In an action against a railroad company for breach of its common-law duty to provide a waiting-room at a station, a paragraph in the complaint which counts on a special agree- ment between the parties that the defendant would stop the train in question at the sta- tion where the plaintiff was waiting, suf- ficiently states a cause of action. Draper v. Evansville, etc., R. Co. (Ind.), 6-569. In an action against a railroad company for damages alleged to have resulted from the failure of the defendant to stop a passenger train at a flag station on signal, an averment in the petition that the plaintiff, " in accord- ance with the rules of the company and the custom, flagged said train and tried to wave the same down to a stop for the purpose of getting on said train," is not demurrable as failing to specify in what way the train was flagged, or what custom or rule of the com- CARRIERS. 455 pany was violated. Southern R. Co. v. Wallis (Ga.), 18-67. Failure to keep 'waiting room open. — Complaint in an action against a railroad to recover damages for its violation of the statute requiring it to keep a waiting-room at a station open for a certain period held not to allege facts bringing the plaintiff within the statute. Draper r. Evansville, etc., E. Co. (Ind.), 6-569. Failure to heat oars. —A petition in an action by a passenger against a carrier for damages for the failure of the carrier to heat the cars held not open to attack by general de- murrer. Atlantic Coast Line R. Co. v. Powell (Ga.), 9-553. Where a petition in an action by a passen- ger against the carrier for damages for a failure to heat the cars alleges that the atten- tion of the agent of the company was called to the condition of the car, and requests were made to have the same heated, such allega- tion is open to a special demurrer on the ground that it fails to show what agent of the company had his attention called to the condition of the car, and whether said agent was connected with the operation of the train or had anything to do therewith. Atlantic Coast Line R. Co. v. Powell ( Ga. ) , 9-553. Nature of train. — Where a petition in an action by a passenger against the carrier for damages for the failure to heat its cars fails to show whether the plaintiff was a pas- senger upon a freight or passenger train, the defendant is entitled, upon a special demurrer, to have information in regard to that par- ticular feature of the case. Atlantic Coast Line R. Co. v. Powell (Ga.), 9-553. Mitigation of injuries by passenger. — In an action by a passenger against the carrier for damages for the failure to heat the cars, the trial court held not to have erred in overruling a special demurrer to that paragraph of the petition which set forth the means adopted by the plaintiff to mitigate her suffering, it being competent for her to allege and prove that she resorted to the ex- pedients in her power to avoid or lessen the injuries resulting from the alleged negligence of the defendant. Atlantic Coast Line R. Co. V. Powell (Ga.), 9-553. ( c ) Amendment. Changing cause of action. — In an action against a railroad company for per- sonal injuries to the plaintiff alleged " to have been caused proximately by the negligence of defendant in and about carrying plaintiff as a passenger," it is not a departure in pleading to amend the complaint by adding counts al- leging that the plaintiff's injuries were " proximately caused by the negligence of the servant or agent of defendant while acting within the line and scope of his employment," and that the injuries were proximately caused by the " wanton, wilful, or intentional con- duct of the defendant's servants or agents," since the amendments as well as the original complaint are in case. Birmingham E., etc., Co. V. Jung (Ala.), 18-557. (4) Presumption of negligence. From happening of accident, in gen- eral. — The presumption of negligence which arises in favor of a passenger from the mere fact of an accident exists only where the in- jury can be attributed reasonably to some defect in the carrier's track, ears, or ma- chinery, or to the movement of the train, or to the conduct of the servants in charge of the train. Woas v. St. Louis Transit Co. (Mo.), 8-584. In an action by a passenger against the proprietor of a scenic railway to recover for personal injuries alleged to have been caused by the defendant's negligence, evidence tend- ing to show that the plaintiff was using due care at the time of the injury, and that the injury was caused by apparatus wholly under the control of the defendant and furnished and managed by him, and that the accident was of such a character that it would not ordinarily have occurred if due care had been used by the defendant in the management of his rail- way, constitutes sufficient prima facie proof of negligence to impose upon the defendant the onus of rebutting it. On such proof the law raises a presumption of negligence. O'Callaghan v. Dellwood Park Co. (111.), 17-407. From Tvrecking of train. — Where an injury is inflicted upon a passenger by the breaking or wrecking of a part of the train on which he is riding, it is presumably the result of negligence on the part of the carrier. Morgan v. Chesapeake, etc., R. Co. (Ky. ), 16-608. From collision. — In an action to hold an electric railway company liable as a com- mon carrier of passengers for personal in- juries sustained by the plaintiff while travel- ing on an unconditional free pass issued to him, evidence of a head-on collision between the car on which the plaintiff was riding and another car on the same track is prima facie evidence of gross negligence on the part of the defendant sufficient to render it liable for the injury. Ryckman v. Hamilton, etc., R. Co (Ont.). 4-1126. In an action for damages for persiual in- jury to a passenger on a street car resulting from a collision between the car and a wagon, the wagon and the driver not being under the control of the street car company, the burden of proof is upon the plaintiff who is reauired to establish his case by a preponderanf^e of the evidence, since no presumption of negli- gence necessarily arises because of the col- lision. Chicago Union Traction Co. v. Mee (111.), 4-7. From derailment of car. — Where an injury is sustained by a passenger in a st^'eet railway car by reason of the derailment of the car there is a presumption or prima facie case of negligence on the part of the carrier, but if the carrier shows that there was no defect in the track, car, or the method of operation, the derailment will be attribi'+ed to some independent cnuse called an accident, and the carrier will not be liable. Overcash v. Charlotte Electric R., etc., Co. (N. Car.). 12-1040. 456 ANN. CAS. DIGEST, VOLS. 1-20. In an action for damages against a street car company for personal injuries received while the plaintiff was occupying the defend- ant's car as a passenger, evidence that while the plaintiff was sitting in her seat, the car being operated by the defendant became de- railed and came into collision with a tele- graph pole on the side of the street, whereby the plaintiff was injured, makes out a prima facie case of negligence against the defend- ant, and a demurrer to such evidence is prop- erly overruled. O'Gara v. St. Louis Transit Co. (Mo.), 11-850. From jolt in stopping freight train. — It cannot be said as a matter of law that negligence, rendering a railroad company liable for an injury to a passengeri, can be predicated on the mere fact that a jar or jerk results from the stopping of a long freight train. Hedrick v. Missouri Pacific B. Co. (Mo.), 6-793. (5) Burden of proof. IXTIien specific acts of negligence are alleged. — The doctrine that a passenger makes out a, prima facie case against the carrier for personal injuries when he shows that he was injured by a collision and was himself free from negligence, does not apply where he specifically pleads the negligent acts which caused the injury. Gardner v. Metro- politan St. R. Co. (Mo.), 18-1166. Iiatency of defect. — Where a passen- ger on a railroad train has been injured by reason of a latent defect in one of the cars of the train, whether it was the particular car in which be was riding or not, it is in- cumbent upon the carrier, in order to avoid liability, to show that the accident was due to a cause or causes which neither it nor the builders of the car could have discovered in the exercise of the utmost human skill and foresight. Morgan v. Chesapeake, etc., R. Co. (Ky.), 16-608. Contribntory negligence, — In an action against a carrier of passengers to re- cover damages for personal injuries, where the plaintiff makes out a, prima facie case show- ing that the injuries were inflicted upon him while he was a passenger and that they were the result of the defendant's negligence, the burden is cast upon the defendant of explain- ing the cause of the accident, and if contrib- utory negligence is set up, of showing that the plaintiff's negligence caused the injuries or contributed to them. Washington, etc., E. Co. V. Chapman (D. C), 6-721. 6. Admissibility of evidence. Alighting on wrong side of car. — Where it appeSirs, in an action by a passenger against a carrier to recover damages for per- sonal injuries, that the plaintiflT received the injuries sued for while alighting from the de- fendant's train on the opposite side of the track from the passenger station, it is error to permit him to show the amount of freight business done by the defendant at that point and that the freight ofSce was on that side of the traok, it further appearing that the plaintiff had no business to transact at the freight ofBce and did not know at the time that the freight office was so situated. Louis- ville, etc., R. Co. V. Payne (Ky.), 19-294. Prior accidents of same nature — Upon the question whether the derailment of a street car was the result of the negli- gence of the street railway company in per- mitting an alleged " dip " or depression to exist in the track at the point of derailment, evidence that other cars at other times ran off the track at the same place is not ad- missible when it is not shown that the con- dition complained of was the same at or near the time it is alleged the other cars left the track, or that the other cars and appliances and the mode of operation were of the same character and in the same con- dition as the car in question. Overcash v. Charlotte Electric R., etc., Co. (N. Car.), 12-1040. Oconpation of person hilled. — In an action against a railroad company for the death of a postal clerk, the admission of evi- dence that the deceased had been assigned temporarily to fill a certain vacancy, which assignment was to take effect in the future and involved no increase of salary, is not error, especially as such evidence shows no probable increase of salary and could not affect the amount of damages. Malott v. Central Trust Co. (Ind.), 11-879. Competency of carrier's employees. — In an action for injuries to a passenger in an elevator alleged to have resulted from neg- ligence in operating the elevator, it is re- versible error to admit evidence that the operator was incompetent. Minot v. Snavely (U. S.), 19-996. Amount of conductor's salary. — In an action by a passenger against a carrier of passengers for a personal injury caused by the falling of the window-sash of a car upon her arm, it is not an abuse of the dis- cretion of the trial court to permit ths plain- tiff, on cross-examination, to inquire as to the amount of monthly salary received by the defendant's conductor. Cleveland, etc., R. Co. V. Hadley (Ind.), 16-1. Custom to carry children free, — In an action against a street railway company to recover damages for personal injuries sus- tained on one of the defendant's cars by a child four years of age, for whom no fare had been paid but who at the time of the accident was accompanied by his mother, who had paid her fare, it is competent for the plaintiff to show a general custom on the part of the de- fendant not to charge fare for the carriage of a child of the plaintiff's age. Ball v. Mobile Light, etc., Co. (Ala.), 9-962. Condition of injured limb. — Where a person's arm has been injured by the falling of a window-sash of a railroad car, and it is important to determine whether the injury is permanent or curable, and a witness has testified to the condition of the injured person at the times covered by the question, it is not error to allow the witness to answer the ques: tion whether the condition of the person's arm is better or worse at the time of the trial' CAKEIEES. 457 than it was six moKths »rior thereto. Cleveland, etc., E. Co. v. Hadl«y (Ind.), 16-1. Effect of medical treatment. — Where a person's arm has been injured by the fall- ing of a window-sash of a railroad car, a wit- ness who has observed the medical treatment administered and its visible effects, if any, is properly permitted to answer the question as to what effect the treatment had upon the injured arm, if any. Cleveland, etc., R. Co. V. Hadley (Ind.), 16-1. Free pass exempting carrier from liability. — Under the Mississippi code, where the defendant railroad company in an action by a passenger for personal injuries caused by the negligence of the defendant pleads the general issue only, it is proper to exclude from evidence a letter of the plain- tiff requesting a pass, and the pass issued in compliance therewith, exempting the defend- ant from liability for injuries under any cir- cumstances. Yazoo, etc., R. Co. i;. Grant (Miss.), 4-556. Delay in bringing snit. — In an action by a passenger against the carrier for dam- ages for the failure to heat the cars, where several months have elapsed between the time of the alleged injuries and the bringing of the suit, it is competent for the defendant's counsel to inquire of the plaintiff, while a witness on the stand, why she had delayed so long in bringing the suit. Atlantic Coast Line E. Co. v. Powell (Ga.), 9-553. Custom of permitting baggage in aisles of car. — In an action against a street railway company for injuries received by a passenger in falling over the baggage of a fellow passenger placed in the aisle of the car evidence offered by the defendant that it was customary not to have racks for bag- gage or parcels in street cars, and that there was a custom allowing passengers to put hand baggage and dress suit cases on the floor, is admissible, not for the purpose of proving a custom as such, but as bearing upon the ques- tion whether the defendant exercised the de- gree of care required of it. Pitcher v. Old Colony St. E. Co. (Mass.), 12-886. Inspection of car by jury. — In an action by a passenger against an electric street railway company to recover damages, it is not erroneous to permit the jury to inspect one of the defendant's cars and the controller thereon, where the mode of operating the controller is a. pertinent issue, and there is testimony showing that all the controllers on the defendant's cars were "built exactly alike " and that " the controllers were the same; the same mechanism." Dobbins v. Little Eock E., etc., Co. (Ark.), 9-84. Materiality to issues. — Where the pe- tition in an action by a passenger against a carrier to recover damages for personal in- juries specifies the negligence relied on as the sudden starting of the train as the plaintiff was alighting at his destination, it is preju- dicial error to admit evidence that the station platform was not properly lighted at the time. Louisville, etc., R. Co. v. Payne (Ky.), 19-294. (7) Sufficiency of •vidence. Of carrier's negligence, in general. — In an action against a railroad company to recover damages for the wrongful killing of plaintiff's intestate, where there is evidence tending to show that the deceased, a white man, was riding in a coach with colored pas- sengers, contrary to the regulations of the railroad company adopted in pursuance of the statutes of the state, and that the con- ductor, or person who was acting as conduc- tor, ordered him to leave such car and go into another, while the train was in rapid motion at night, and also caught him by the shoulder and pushed him out of the door and shut the door behind him, and that deceased fell from the train as he was stepping across the coupling between the cars, the giving of a general affirmative charge in favor of the defendant constitutes reversible error. Carle- ton V. Central of Georgia E. Co. (Ala.), 16-445. In an action by a passenger against a rail- road company for personal injuries, received after alighting from a train, evidence exam- ined and held to show that the railroad com- pany was negligent in failing to call or an- nounce the station; in failing to stop a rea- sonable length of time to permit passengers to disembark and embark; in not lighting its platform; in permitting a dangerous obstruc- tion to remain upon the platform at a, point where passengers ought to have been able to embark and disembark with reasonable safety; and in permitting the train to leave the station without the exercise of reasonable care in observing whether pjissengers had safely disembarked and embarked; and held to show further that the injury sustained by the plaintiff was not due to the independent wrongful act of a responsible human agency, but was solely due to the negligence of the railway company and its servants and em- ployees. Atchison, etc., E. Co. v. Calhoun (Okla.), 11-681. In an action against a railroad company for the death of a postal clerk a verdict for the plaintiff is sustained by evidence that the defendant was engaged in carrying the mails on its train under an arrangement with the federal government, that the decedent was a postal clerk in the service of the United States in charge of such mail on defendant's train and was being carried as a postal clerk on such train, and received injuries from which he died by a head-end collision of two of the defendant's trains. Malott v. Central Trust Co. (Ind.), 11-879. Evidence reviewed in an action against a railroad company to recover damages for per- sonal injuries sustained by one riding on a drover's pass in the caboose of a freight train, • and held to show that the negligence of the defendant was not established either by the positive testimony of the witnesses or by any presumption of negligence arising out of the facts developed. Hedrick v. Missouri Pacific R. Co. (Mo.), 6-793. Negligence in premature starting of train. — In an action by a passenger to recover for personal injuries sustained by the 458 ANN. CAS. DIGEST, VOLS. 1-20. premature starting •f a train while alight- ing therefrom, evidence reviewed and held to be sufficient to require the submission to the jury of the question of the defendant's negli- gence. Hall V. Northern Pacific K. Co. (N. Dak.), 14-960. As to canse of accident. — Where in an action brought against a street railway company to recover damages for injuries sus- tained by a passenger in jumping from an electric car to avoid an apprehended danger it is shown that the plaintiff as well as other passengers pressed to the rear platform of the car, and that directly afterwards she was seen lying upon the street, the evidence is suf- ficient to enable the jury reasonably to infer that her injuries were the natural and proxi- mate result of jumping from the platform in her effort to escape the effect of the railway company's negligence. The fact that more than one inference may be drawn from the evidence is unimportant. Lehner v. Pittsburg E. Co. (Pa.), 16-83. Safety of station exits. — In an action against a street railway company by a passen- ger who was injured while passing through a turnstile which afforded means of egress from the defendant's terminal station to the street, evidence to the effect that the lowest re- volving arm of the turnstile was at least eight and a half inches above the floor and that the plaintiff's foot was caught between such arm and the floor, is sufficient to sustain the allegation of the declaration that the defend- ant constructed an unsafe means of egress for its passengers. Gascoigne v. Metropolitan West Side El. E. Co. (111.), 16-115. Evidence of notice of dangerous con- dition. — In an action for damages for in- juries received by a passenger in an electric elevator, a letter identified as having been received by the proprietor of the elevator from his agent, and stating that the janitor reported that the elevator was out of repair, and that a certain electrician condemned the whole machine, is admissible for the limiljed purpose of showing that the proprietor was notified of the elevator's being out of repair. Ferguson v. Truax (Wis.), 13-1092. Relation of carrier and passenger. — In an action for damages for injuries re- ceived by a passenger in an elevator evidence examined and held not insufficient as a matter of law to support a finding that the plaintiff, at the time of the accident, was riding in the elevator on his way to the office of a tenant in the defendant's building to see if he was wanted by the tenant to run an errand. Fer- guson V. Truax (Wis.), 13-1092. Evidence reviewed in an action against a railroad company to recover damages for the death of a person killed while riding on a drover's pass, and held to justify the jury in finding that the deceased was a " bona fide employee " of the shipper within the meaning of the pass. Weaver v. Ann Arbor E. Co. (Mich.), 5-764. (8) Variance. Relation of carrier and passenger. — In an action by a free passenger against a street railway company to recover damages for personal injuries, where the complaint charges the defendant with liability as a com- mon carrier of passengers, but the court in- correctly instructs the jury that the defendant can be held liable only as a private carrier and that it is not charged with lia- bility as a common carrier but only for fail- ure to exercise ordinary care, the defendant, on judgment against it, cannot complain that there is a variance between the pleading and the proof, and cannot object to the instruction on the ground that under the pleadings it can be held liable only as a common carrier and not as a private carrier. Indianapolis Traction, etc., Co. v. Lawson (U. S.), 6-666. Nature of contract of carriage. — In an action by a charity patient against a, rail- road company for breach of a contract be- tween the county court and the railroad com- pany whereby the latter agreed to transport persons suffering from an infectious disease to the county pest-house, a declaration, which counts as upon a special contract for car- riage between the plaintiff and defendant for hire and reward, is not supported by proof of the contract between the county court and the defendant company, or by the implied con- tract between the carrier and passenger, the variance being fatal. Jenkins v. Chesapeake, etc., R. Co. (W. Va.), 11-967. A writ of error awarded the defendant in such a case does not bring up the action of the trial court in sustaining a demurrer to a eovmt in assumpsit in the declaration, and the appellate court cannot look to such count to support the verdict and judgment for the plaintiff. Jenkins v. Chesapeake, etc., E. Co. (W. Va.), 11-967. (9) Questions for jury. Existence of relation of carrier and passenger. — In an action against a street railway company to recover damages for per- sonal injuries sustained by a child under four years of age, who was riding without payment of. fare but who was accompanied by his mother who had paid her fare, where the witness testifies that " there were about seven or eight passengers on the car, and this little boy . . . was one of the passengers," the question whether the child was a passenger is one for the jury. Ball t). Mobile Light, etc., Co. (Ala.), 9-962. In an action by a passenger against a car- rier to recover damages for personal injuries, where the evidence is uncontroverted that after the plaintiff had become a passenger by entering the defendant's street car and pay- ing his fare, he was assaulted by the con- ductor of the car, but the evidence is conflict- ing as to whether the assault occurred before or after the plaintiff had left the car, and therefore whether the defendant was liable for the assault by the conductor, that ques- tion is for the jury. Jackson v. Old Colony St. E. Co. (Mass.), 19-615. Negligence in stopping oar. ^ In an action against a street railway company to recover damages sustained by a child under four years of age while riding with his mother CARRIERS. 459 on one of the defendant's cars, where there is evidence tending to show that the car was stopped with unusual suddenness and with a jerk, and that hy the sudden stopping of the car the child was thrown from the seat and injured, it is for the jury to determine whether the defendant was guilty of negligence in the manner of stopping the car. Ball v. Mobile Light, etc., Co. ( Ala. ) , 9-962. Contribntory negligence. — In an action by a passenger to recover for personal injuries sustained by the premature starting of a train while alighting therefrom, evidence reviewed and held to show that the question whether the passenger was guilty of contribu- tory negligence was one for the determination of the jury. Hall v. Northern Pacific R. Co. (N. Dak.), 14-960. Evidence reviewed, in an action against a street railway company to recover damages for personal injuries sustained by a female passenger while alighting from one of the de- fendant's cars, and held to show that the question whether the passenger was guilty of contributory negligence was one for the de- termination of the jury. Mobile Light, etc., Co. V. Walsh (Ala.), 9-852. Evidence reviewed, in an action by an in- toxicated passenger against a carrier to re- cover damages for personal injuries sustained by the plaintiff, and held sufficient to require submission to the jury of the question whether the plaintiff was free from any negli- gence that was a direct and proximate cause of the injury. Black v. New York, etc., R. Co. (Mass.), 9-485. In an action against a carrier of passen- gers to recover damages for personal injury to an intoxicated passenger, held to be for the jury to determine whether the plaintiff was guilty of contributory negligence or the defendant was free from negligence. Fox v. Michigan Cent. R. Co. (Mich.), 5-68. (10) Instructions. Dnty of carrier toward passenger. — In an action by a passenger against a street railway company, an instruction which tells the jury that if the plaintiff became a pas- senger he " was entitled to courteous treat- ment," and that if he was without fault and " not treated with care and courtesy he was entitled to recover," but which does not define the duty of the defendant to use ordinary care to protect the plaintiff as a passenger from insult and injuries, is erroneous in that it allows the jury to generalize and speculate as to what is " courteous treatment," and leaves them to say what " care anu courtesy " was due from the defendant to the plaintiff. Little Rock R., etc., Co. v. Goerner (Ark,), 10-273. Duty to keep aisles of cars clear. — In an action against a street railway com- pany for injuries received by a passenger in falling over the bag of a fellow passenger placed in the aisle of the car, a requested instruction " that under all conditions the aisles, entrances, and exits shall be kept free from all obstructions by the use of the high- est possible degree of care and caution " on the part of the company, is erroneous and properly refused. Pitcher v. Old Colony St. R. Co. (Mass.), 12-886. Duty to watch for obstructions on track. — In an action by a passenger against a street car company for personal injuries, alleged to have resulted from the derailment of the car in which plaintiff was riding, owing to the action of a small boy in placing a brick upon the track, where it appears that chil- dren were playing upon or near the track and that there was an ordinance requiring a vigi- lant lookout in such cases, a requested in- struction calling attention to the engrossing duty of the motorman under such circum- stances and amounting to no more than an argument why the motorman did not see the boy place the brick on the track is properly refused, there being nothing in the ordinance in question that exonerated the motorman from the duty to keep his eye upon the track and see if there were any obstructions there- on. O'Gara v. St. Louis Transit Co. (Mo.), 11-850. In such an action it is proper to refuse a, requested instruction making the negligence of the motorman and the plaintiff's right of recovery depend on whether the motorman saw the brick in time to have avoided the accident, and give instead an instruction that the plaintiff could not recover unless the mo- torman either saw or by exercise of reasonable diligence could have seen the brick on the track in time to avoid the accident. O'Gara V. St. Louis Transit Co. (Mo.), 11-850. Degree of care required from carrier. — -In an action for injuries to a passenger on a street car, where the plaintiff is alleged to have been injured by a beam projecting from one of the trolley poles along the track, he is entitled to an instruction that if the end of the beam extended near enough to the track to endanger passengers on the car, and nearer the track than a very careful and prudent person would have permitted under the cir- cumstances, and the defendant knew, or by the exercise of a high degree of care and cau- tion might have known, of the condition of the beam in time to have changed it and thereby to have prevented the injury to the plaintiff, then the defendant was negligent in that particular. Gardner v. Metropolitan St. R. Co. (Mo.), 18-1166. Liability for fall of car window. — In an action by a passenger against a carrier of passengers for a personal injury caused by the falling of the window-sash of a car on her arm, where the defendant does not found its defense upon the ground that it is not liable for recent breaks or latent defects, or offer any evidence of an inspection of the car or its appliances previous to the accident, but insists that the window catch was suitable and proper, and in good condition, it is not im- proper to instruct the jury, at the request of the plaintiff, that if she was a passenger on the defendant's car, and, for the purpose of throwing out fruit parings, or for other rea- sonable cause, raised the window until the same was locked or caught, and such window. 460 ANN. CAS. DIGEST, VOLS. 1-20. on account of the broken, weak, or defective lock or catch thereon, fell and injured the plaintiff's arm, without fault or negligence on her part, the defendant would be liable. Cleveland, etc., R. Co. v. Hadley (Ind.), 16-1. Duty of passenger to exercise care. — In an action by a passenger against a carrier of passengers for a personal injury caused by the falling of the window-sash of a car upon her arm, it is proper to refuse to instruct the jury that passengers upon the cars or car- riages of a common carrier must exercise the highest degree of care to protect themselves from injury. Cleveland, etc., R. Co. v. Had- ley (Ind.), 16-1. In such an action it is proper to refuse to instruct the jury that if the passenger, while on a rapidly moving car, raised the window and protruded her arm, and while she was in the act of withdrawing her arm the window fell, inflicting the injury complained of, she was guilty of contributory negligence and cannot recover. Cleveland, etc., R. Co. v. Hadley (Ind.), 16-1. In an action by a passenger against a car- rier of passengers for a personal injury caused by the falling of a window-sash of a car upon her arm, it is not improper to refuse to in- struct the jury that the fact that the win- dow fell shortly after the starting of the train constituted a warning to the plaintiflF, and that the subsequent protrusion of her arm from the window was contributory negligence. Cleveland, etc., R. Co. v. Hadley (Ind.), 16-1. In an action against a railroad company for refusing on a proper signal to stop a pas- senger train at a flag station to receive the plaintiff as a passenger, an instruction that the plaintiff must " show that his injury, if any, was not caused by his ovm negligence, and that he could not have avoided the in- jury by the exercise of ordinary care and diligence," is not prejudicial to the defendant as blending two separate and distinct rules of law applicable to the defense. Southern R. Co. V. Wallis (Ga.), 18-67. Status of person refusing to pay fare. — In an action against a street railway com- pany to recover damages for the death of the plaintiff's husband, where the plaintiff's theory of the case, as shown by her plead- ings and proof, is that the deceased was a passenger on one of the defendant's cars, and that he was wrongfully assaulted and thrown from the car by the conductor, an instruction that the deceased was not a passenger, in the contemplation of law, if he boarded the car with the intention of not paying his fai-e or refused to pay the same when the conductor demanded payment, is proper. Garrett v. St. Louis Transit Co. (Mo.), 16-678. Theory of case controlling recovery. — In an action by a passenger against a street railway company, where the cause is tried solely on the theory of an unlawful ejection, but evidence that the conductor used abusive and insulting language is introduced in ag- gravation of the damages, it is not erroneous to instruct the jury that if the evidence shows that there was no ejection there can be no recovery for the insulting and abusive lan- guage. Dobbins v. Little Rock R., etc, Co. (Ark.), 9-84. Failure to prove special contract alleged. — In an action for breach of a spe- cial contract to carry, an instruction for the defendant which tells the jury that the plain- tiff, having alleged in his declaration that the defendant agreed to carry him for hire and reward and having failed to prove such alle- gation, is not entitled to recover in an ac- tion of assumpsit, is improperly refused. Jenkins v. Chesapeake, etc., R. Co. (W. Va.), 11-967. Ignoring special contract alleged. — In an action by a charity patient against a railroad company for breach of a contract be- tween the county court and the railroad com- pany whereby the latter had agreed to transport persons suffering from an infectious disease to the county pest-house, where the declaration alleges a special contract between the plaintiff and the defendant, instructions for the plaintiff based upon the theory of an implied contract, and which ignore the spe- cial contract alleged in the declaration, are inapposite and should be refused. Jenkins v. Chesapeake, etc., R. Co. (W. Va.), 11-967. Passenger attacking conductor. — In an action against a street railway company to recover damages for the death of the plaintiff's husband, where there is evidence tending to show that the deceased was fighting with the conductor at the time when he was ejected from the car, an instruction to the effect that the defendant is not liable if the deceased was the aggressor and started the fight with the conductor, and during such fight was thrown or pushed from the car, is proper. Garrett V. St. Louis Transit Co. (Mo.), 16-678. Presumption of negligence from hap- pening of accident. — In an action by a passenger against a carrier of passengers to recover damages for personal injuries where it does not appear that the question of the plaintiff's contributory negligence is so in- volved as to take the case out of the general rule that a passenger injured without his fault, by a defective appliance of the carrier, has a prima facie right of recovery, it is not improper to instruct the jury, at the request of the plaintiff, that if an injury is suffered by a passenger on account of the weak, broken, or defective condition of the car in which such passenger is riding, ors,any of the equip- ments and appliances cotmected therewith, the mere happening of such accident and injury is prima facie evidence of negligence of the carrier owning, controlling, and using such car. Cleveland, etc., R. Co. v. Hadley (Ind.), 16-1. Presumption of negligence from de- railment of car. — In an action for dam- ages for personal injuries by a passenger on a street car by reason of the derailment of the car, instructions by the court that the fact of a derailment raises a presumption of negligence which, if not rebutted, is "evi- dence of negligence," sufficiently imposes upon the defendant the duty of persuading the jury, from the evidence introduced by the plaintiff or by going forward with independent proof, that there was no negligence on its part, al- CAERTEES. 461 though the court refuses to instruct specifical- ly that after the fact of derailment is shown the burden is upon the defendant to satisfy the jury that the derailment was not caused by its negligence. Overcash v. Charlotte Elec- tric E., etc., Co. (N. Car.), 12-1040. Burden of rebutting presumption of negligence. — In such an action, wherein the court has properly instructed the jury, at the request of the plaintiff, that if a pas- senger receives an injury on account of the weak, broken, or defective condition of any ap- pliance connected with a car owned, controlled, and used by the carrier, and in which such passenger Is being transported, the happening of the accident is prima facie evidence of the negligence of the carrier, it is not improper to instruct the jury that the carrier has the burden of proving, in order to rebut the presumption of negligence, under the circum- stances, that the accident could not have been avoided by the exercise of the highest degree of practical care and diligence. Cleveland, etc., E. Co. V. Hadley (Ind.), lfr-1. In an action against a street car company for damages for personal injuries to a pas- senger, an instruction that if, while the plain- tiff was a passenger of the defendant, the car became derailed and struck a post causing her to be thrown from her seat and injured, she is entitled to recover unless the defend- ant has shown by the greater weight of evi- dence that it could not have prevented the derailment of the car by the exercise of the high degree of care that a very careful rail- road would employ und«r similar circum- stances in maintaining its track in safe con- dition and in the management and control of the car, is a correct statement of the law and properly given. O'Gara v. St. Louis Transit Co. (Mo.), 11-850. Burden of explaiiiing accident. — In- structions reviewed in an action against a carrier of passengers to recover damages for personal injuries sustained by a passenger and held not open to the objection that they im- pose upon the defendant the burden of ex- plaining to the jury the manner in which the plaintiff received her injuries. Standen v. Pennsylvania E. Co. (Pa.), 6-408. Burden of proving criminal intent. — Where an action against a street railway com- pany to recover damages for the death of the plaintiff's husband is brought under a statute which requires proof of " criminal in- tent" on the part of the defendant, it is not error for the trial court to instruct the jury that the burden is on the plaintiff to show that the act of the conductor in ejecting de- ceased from the car was " an act of criminal conduct." Garrett v. St. Louis Transit Co. (Mo.), 16-678. (11) Damages. Refusal to carry. — In an action against a sleeping-car company for its refusal to carry the plaintiff after he had purchased a ticket, the plaintiff, if he is entitled to recover at all, is entitled to at least the amount paid for the ticket, and this amount, though small, constitutes substantial as distinguished from nominal damages. Pullman Car Co. r. Krauss (Ala.), 8-218. In an action against a sleeping-car com- pany for its refusal to carry the plaintiff after he had purchased a ticket, where it appears that the plaintiff, at the time he presented himself for passage on the defendant's car, was afflicted with a contagious or infectious disease, the measure of damages is the amount paid for the ticket, together with interest to the date of the recovery. Pullman Car Co. V. Krauss (Ala.), 8-218. Carrying beyond destination. — In the absence of other inculpatory facts, such as wantonness, violence, or insulting or oppres- sive conduct on the part of its employees, the act of a railroad company in carrying a pas- senger beyond his destination amounts to a mere breach of contract, and the damages re- coverable therefor must be limited to com- pensation for loss of time and expenses in- curred, together with a fair and reasonable compensation for any substantial incon- venience that may be suffered. Dalton v. Kansas City, etc., E. Co. (Kan.), 16-185. In an action by a passenger against a rail- road company to recover damages for being carried beyond his destination, where there is any evidence of substantial inconvenience, the question of damages should be left to the jury, under proper instructions; and where, in such a case, the jury, by a special finding, award the plaintiff a designated sum as dam- ages for inconvenience, it is reversible error for the trial court to reduce the verdict by striking out the entire amount so awarded. Dalton V. Kansas City, etc., E. Co. (Kan.), 16-185. In an action by a passenger against a rail- road company to recover damages for being carried beyond his destination, where the evidence shows that the inconvenience suf- fered by the plaintiff was very slight, an award by the jury of three hundred dollars damages for inconvenience is excessive. Dal- ton V. Kansas City, etc., E. Co. (Kan.), 16-185. Failure to stop at flag station. — A railroad company failing to stop its train on appropriate signal to take up passengers at a flag station is liable for actxial damages if the failure to stop is due to the negligence of the engineer in not keeping a proper look- out, and for punitive damages if the failure to stop is due to the wilful refusal of the engineer to obey the signal. Williams v. Carolina, etc., E. Co. (N. Car.), 12-1000. Persons for whom a railroad company negligently fails to stop its train on signal at a flag station are not bound to wait for the next train to take them to_ their destina- tion a mile and a half away, but may pro- ceed on foot, and are entitled to recover for the personal annoyance, inconvenience, dis- comfort, and physical exertion incident to their doing so. Williams v. Carolina, etc., E. Co. (N. Car.), 12-1000. A verdict for $250 for the refusal of a railroad company to stop a regular passenger train on a proper signal at a flag station is not excessive where the plaintiff, a physician, in consequence of the refusal, was obliged to 462 ANN. CAS. DIGEST, VOLS. 1-20. walk seven miles on h, winter night over dark and muddy roads, causing an illness wliich confined him to his bed for some time and from which he had not entirely recovered at the time the action was brought. Southern E. Co. V. Wallis (Ga.), 18-67. Personal injuries. — The amount of the verdict in an action against a street oar com- pany for damages for personal injuries to a passenger is held not excessive in view of the evidence of the plaintiff's injuries and the right of the jury to determine the amount of damage, so long as' their verdict is free from bias or prejudice and not unreasonable. O'Gara v. St. Louis Transit Co. (Mo.), 11-850. Punitive damages. — In an action by a passenger against a carrier to recover dam- ages for personal injuries, where there is some evidence of wantonness on the part of the engineer in hacking the train suddenly, violently, and without warning at a place where passengers might be expected to alight, it is not erroneous to refuse the defendant's request for an instruction that there is no evidence to sustain a verdict for punitive damages. Hiers v. Atlantic Coast Line R. Co. (S. Car.), 9-1114. Nominal damages. — In an action by a passenger against a street railway company to recover damages for an assault committecl on the plaintiff by the defendant's servant, the plaintiff held not restricted to nominal damages under the evidence. Ford v. Min- neapolis S. R. Co. (Minn.), 8-902. (12) Verdict and judgment. Effect of special findings. — ' In an action by a passenger against a railway com- pany to recover for injuries which it is claimed were caused by the negligence of the company in starting its train without giving him sufficient time to get off in safety, where the jury finds generally for the plaintiff, a special finding by the jury that the train stopped the usual and ordinary length of time will not warrant the court in rendering judgment for the railway company non obstante veredicto. Chicago, etc., E. Co. v. Wimmer (Kan.), 7-756. 7. StEEPiNG Cab CoMPApnES. Statutory regulations as to berths. — A law providing that the upper berth in a sleeping car shall, when unoccupied, at the option of the occupant of the lower berth, be closed, is not for the promotion of public health and comfort, in the judgment of the legislature, in that the option is given in each instance where the regulation is appli- cable to say whether it shall operate or not, manifestly suggesting it is for private rather than for public interests. State v. Redmon (Wis.), 15-408. If it were legitimate to give the occupant of a lower berth in a sleeping car control of the upper berth in case of its not being occu- pied, it would not be reasonable to confer such control by confiscating for his benefit the use of such berth. State v, -Redmon (Wia.), 15-408. A law absolutely giving to the occupant of a lower berth in a sleeping oar control, at his option, of the upper berth in case of its not being occupied, is an unconstitutional appropriation of the property of one for the benefit of another, and an infraction of sev- eral constitutional safeguards. State v. Redmon (Wis.), 15-408. Iiiability for passenger's effects. — A sleeping-car company is not liable to a pas- senger for the loss, by theft of the porter or otherwise, of jewelry carried in a hand bag by the passenger without any purpose or in- tention of using the same during the jour- ney, but solely for the purpose of transpor- tation. Bacon v. Pullman Co. (U. S.), 14- 516. A sick passenger on a sleeping car who by the wrongful act of the porter is deprived of a hand bag containing medicines that would have relieved the physical pain and mental distress incident to the diseased condition, is entitled to recover from the sleeping-ear com- pany compensatory damages for the suffering and distress caused by the deprivation of the medicines, although such suffering is caused by the sickness concurring with the wrong complained of. Bacon v. Pullman Co. (U. S.), 14^516. The physical suffering and mental distress suffered by a sick passenger in a sleeping oar as the result of the wrongful taking by the porter of the passenger's hand bag containing medicines adapted to the relief of the sick- ness, is not such a remote and unforeseeable consequence of loss of the bag as to relieve the company of liability for compensatory damages. Bacon v. Pullman Co. (U. S.), 14-516. In an action against a sleeping-oar com- pany for the loss of a passenger's personal effects, a complaint alleging the contract be- tween the plaintiff and the company, and setting out as a gravamen of the action a breach of duty on the part of the company through the wrongful act of its porter in taking and carrying away the plaintiff's hand bag containing the property in question, al- leges by implication a duty on the part of the defendant and by reasonable intendment supports an action ex delicto, although it does not contain a direct affirmative allega- tion of the duty on the part of the defendant company arising out of the contract to fur- nish sleeping-car facilities. Bacon v. Pull- man (U. S.), 14r-516. It is the duty of a sleeping-car company to exercise reasonable care to guard the per- sonal effects of a passenger from theft; and if, through want of that care, such effects as the passenger may properly carry with him on the journey are stolen, the company will be liable therefor. The personal effects which a passenger may properly carry with him on a journey may include articles of personal adornment, such as jewels and the like. Pull- man Co. V. Green (Ga.), 10-893. Person -with contagious or infectious disease. — It is not only the right but the duty of a .sleeping-car company to make rules and regulations to insure the safety and com- fort of its patrons; and the reaaonableneas CARRYING WEAPONS — CELLARS. 4-63 of any given rule or regulation is a, question of law to be determined by the court. Pull- man Car Co. V. Krauss (Ala.), 8-218. A rule of a sleeping-car company providing that " persons known to be afflicted with any contagious or infectious disease will not be permitted in the cars " of the company, is, as a matter of law, a reasonable one. Pull- man Car Co. V. Krauss (Ala.), 8-218. A sleeping-car company may refuse to con- tract with a person afflicted with a loathsome contagious or infectious disease to carry him as a passenger or to furnish him a, berth in its cars. Pullman Car Co. v. Krauss (Ala.), 8-218. Rescission of contract to carry. — Where a sleeping-ear company, after receiv- ing a person as a passenger or making a con- tract to carry him, becomes aware that he is afflicted with a loathsome contagious or infec- tious disease, it may, in view of the duty it owes to other passengers, put an end to the contract and refuse to carry him as a pas- senger; but in order to perfect the rescis- sion so that it will be a defense to an action for breach of the contract, the company must offer to return the purchase price of the ticket. Pullman Car Co. v. Krauss, (Ala.), 8-218. Relation betiveen railroad company and employee of sleeping car company. — It is not a part of the duties of a railroad company as a common carrier to haul a sleeping car of a sleeping-car company, and an employee of the sleeping-car company rid- ing in such car is not a passenger of the rail- road company. Denver, etc., E. Co. v. Whan (Colo.), 12-732. Liability of railroad company for acts of employee of sleeping car com- pany. — A railroad company is not liable to a passenger riding in a sleeping car for any act of an employee of the sleeping-car company in regard to the passenger's berth accommodations, as distinguished from his right to safe and comfortable accommoda- tion, unless there is evidence connecting the railroad company with the special contract between the passenger and the sleeping-car company. Taber v. Seaboard Air Line Ry. (S. Car.), 19-1132. CASE. See Tbbspass on the Case. When proper form of action, see Actions. CASE MADE. See Agreed Case. CASHIER. Authority of bank cashier, see Banes and Banking, 3 a. CATTIiE GtJARDS. On railroads, see Fences, 3. CAUSA MORTIS. Gifts causa mortis, see Gifts, 2. CATTSE. Probable cause, see Malicious Peosecution. Rule to show cause in contempt proceeding, see Contempt, 3 a. CAUSE OF ACTION. Accrual of cause of action, see Actions. Conclusiveness of judgment as to existence of cause of action, see Judgments, 6 b (1). Identity of cause of action as affecting con- clusiveness of judgment, see Judg- ments, 6 b ( 3 ) . Joinder of causes, see Actions. Merger in judgment, see Judgments, 5 a. Splitting causes, see Actions. CAUSE OF DEATH. See Insubance, 7 f (4). CARRYING WEAPONS. See Weapons. CAUTIONARY INSTRUCTIONS. Propriety of refusal, see Criminal Law, 6 q (1). CARS. See Cabriebs; Railroads; Street Rail- ways. Car couplers, see Master and Servant, 3 e (l),3e (2). Garnishment of railroad cars, see Garnish- ment. Motor cars, see Motor Vehicles. Power of municipality to require fenders on street cars, see Municipal Corpora- tions, 5 f (2). CAVEAT EMPTOR. Application of rule to judicial sales, see Ju- dicial Sales, 4. Application of rule to tax sales, see Tax- ation, 10 f (3). CELLARS. Right to construct cellars under sidewalks, see Streets and Highways, 6. 464 ANN. CAS. DIGEST, VOLS. 1-20. CEMETERIES. 1. Dedication and Abandonment. 2. Advebse Possession of Cemetebtt Lands. 3. Injunction to Pbevent Obstbuction OF Use. 4. Validity of Stattjtobt oe Munici- pal Regulations. Cemetery as nuisance, see Nuisances, 1 b. Partition of cemetery lots, see Pabtition, 2 c. Trust for care of burial lot as charity, see Chabities, 1. 1. Dedication and Abandonment. Common-laxr dedication. — Land may be devoted by » common-law dedication to the use of the public as a cemetery. Tracy V. Bittle (Mo.), 15-167. Where an owner stakes off and fences part of his land in order that it may be used by the public as a cemetery and puts in a gate on the side which adjoins a public road, and such land is accepted and used as a cemetery by the public with the acquiescence of the owner and his successors in title, there is a valid common-law dedication of the land for cemetery purposes. Tracy v. Bittle (Mo.), 15-167. Notice to purchaser of land. — Al- though the deed of an owner of land does not contain a reservation of a part thereof which has been dedicated for the purpose of a cemetery, yet where one of the deeds of record in his chain of title contains such a reservation, neither he nor his grantor can disclaim such notice as would at least have put him upon inquiry. Tracy v. Bittle (Mo.), 15-167. Non-user as abandonment. — If the bodies interred in a public cemetery remain therein, the fact that for a number of years the graves are entirely neglected and no new interments are made, does not operate as an abandonment of such cemetery. Tracy v. Bittle (Mo.), 15-167. Reverter on abandonment. — An owner of land which has been dedicated to the pub- lic for the purpose of a cemetery has a right of reverter which takes effect if the ceme- tery is subsequently abandoned. Tracy v. Bittle (Mo.), 15-167. 2. Advebse Possession op Cemetebt Lands. Missouri statute. — The exemption from the Missouri statute of limitations of land used for "public, religious, or charitable" purposes includes land dedicated to the public for the purposes of a cemetery, and title to such land cannot be acquired by adverse pos- session. Tracy v. Bittle (Mo.), 15-167. 3. Injunction to Pbevent Obstbuction op Use. Who may sue. — A person who has near relatives buried in a public cemetery has a peculiar right in the maintenance of a ceme- tery as a public use, and may maintain an action for an injunction to prevent the ob- struction of such public use. Tracy v. Bittle (Mo.), 15-167. 4. Validity of Statutoby ob Municipal Regulations. Ordinance prohibiting further inter- aients. — An ordinance which has the effect of prohibiting further interments in existing cemeteries situated in densely populated por- tions of the municipality is a reasonable exer- cise of the police power of the municipality. Laurel Hill Cemetery v. San Francisco (Cal.), 14-1080. The owner of the cemetery which, when originally dedicated, was one mile from any habitation, but which, by the growth of the municipality wherein it is situated, has be- come surrounded by a thickly settled portion of such municipality, is not deprived of its property without due process of law by an ordinance, which is to take effect eighteen months after its passage, prohibiting further interments within the limits of the munici- pality. Laurel Hill Cemetery v. San Fran- cisco (Cal.), 14-1080. The fact that a municipality has made a grant of land for the purpose of a cemetery and has for many years acquiesced in the existence of such cemetery does not estop the municipality from exercising its police power by prohibiting further interments therein for the purpose of preventing apprehended injury to the public health. Laurel Hill Cemetery V. San Francisco (Cal.), -4-1080. The fact that a municipality has acquiesced in the establishment of a cemetery and in the expenditure of large sums of money in its im- provement does not estop the municipality from prohibiting further interments in such cemetery when the growth of the municipality has changed its relation to the cemetery. Laurel Hill Cemetery v. San Francisco (Cal.), 14-1080. The fact that a particular cemetery situ- ated in a densely populated neighborhood may not, on account of the nature of its soil, be detrimental to health, does not affect the validity of such ordinance or exempt such cemetery from the operation thereof, because the courts take judicial notice of the fact that such cemeteries are likely to be injurious to the public health, and are therefore, as to further use, within the control of the legis- lative authority. Laurel Hill Cemetery v. San Francisco (Cal.), 14^1080. The incorporation of a cemetery association under a statute authorizing .the incorpora- tion of rural cemetery associations and the purchase by such association of land for cem- etery purposes within the limits of a munici- pality is not a contract, the obligation of which is impaired by an ordinance prohibit- ing further interments within the limits of the municipality. Laurel Hill Cemetery ». San Francisco (Cal.), 14-1080. CENSUS. Reports as evidence. — Properly certi- fied copies of the United States census re- CEEEMONY — CERTTOEARI. 465 ports are adraiasible in evidence on an issue as to the age of a person. Priddy v. Boice, 9-S74. CEKEMONY. Religious ceremony as essential to marriage, see JIaeriage, 1 b. CERTAINTY. Requirement of contract in suit for specific performance, see Specific Performance, 3 f (2). Test of certainty in indictment, see Indict- ments AND Informations, 4. CEBTIFICATES. See Acknowledgments. Amendment of certification of ground of judgment after writ of error, see Appeal and Error, 8 d. Certificate of election, see Elections. Certification of bill of exceptions, see Appeal AND Error, 9 a. Certification of transcript on appeal, see Ap- peal AND Ereor, 8 b. Foreign certificate of incorporation, see Cor- porations. Certificate of marriage as evidence in bigamy case, see Bigamy. 4. Liability of municipality on assessment certi- ficate, see Special or Local Assess- ments, 8. Stock certificates, see Cobpoeations, 8 a (1). CERTIFIED CHECKS. See Checks, 8; Evidence, 9 a. CERTIORARI. 1. When Writ Will Issue, 465. 2. Who May Maintain, 465. 3. Time for Application, 466. 4. Petition for Writ, 466. 5. The Hearing, 466. Review of acts of governor, see States, 2 b. Review of search warrant proceedings, see Searches and Seizures. 1. When Writ Will Issue. To revieip verdict in justice's court. — A petition for certiorari from a justice of the peace should be granted when it appears that the verdict in that court was for a greater amount than claimed by the plaintiff. Kenyon v. Brightwell (Oa.), 1-169. In aid of appellate jurisdiction. — While the supreme court may only direct the issuance of the writ of certiorari as aux- iliary to, or in aid of, or to protect its ap- - Vols. 1-20 — Ann. Cas. Digest. — 30. pellate jurisdiction, the writ is preperly is- sued to prevent the illegal act of a judge in interfering by habeas corpus proceedings with the execution of a judgment in a criminal case which the supreme court has affirmed, and has directed the lower court to carry into effect, as such use of the writ is protective to the appellate jurisdiction. People esc rel. Stead V. Superior Court (111.), 14-753. Determination of speculative ques- t^n. — The writ of certiorari will not be is- sued unless it will avail to relieve some act- ual and substantial wrong or injury of the applicant; and where, upon a writ to review the action of the governor in removing the applicants from office, it appears that between the day of the issuance of the rule and the day of the hearing the legislature adopted an act abolishing the office, the proceeding raises merely a speculative question which the court is not required to consider, the title to the office and the accrual of the emoluments there- of not being involved in the proceeding. State ex rel. Rawlinson v. Ansel (S. Car.), 11-613. Existence of other remedy. — The fact ■ that there is a remedy by appeal does not pre- clude a party from maintaining a certiorari proceeding to test the validity of an .order granting a temporary injunction prohibiting the use of voting machines at an election, where it is claimed that the order was made in excess of the jurisdiction of the court, and where an appeal would postpone any test of the validity of the order until after the elec- tion in question. United States Standard Voting Machine Co. v. Hobson (Iowa), 10-972. 2. Who May Maintain. Person not party. —The widow of a judg- ment debtor is not entitled to prosecute a writ of certiorari to review the judgment where she was not a party to the proceeding in which the judgment was rendered and it does not appear that she has any interest in the reversal of the judgment or that she can be in any manner injuriously affected by it. State ex rel. Sullivan v. Drake (Wis.), 10- 860. Persons Krithout interest in proceed- ings. — When it appears that petitioners for the writ of certiorari, who are not parties to the record, have no direct, legal, statute interest in the proceedings complained of, they have not shown such an interest in the pro- ceedings sought to be quashed as entitles them to maintain the writ. Lord r. County Commissioners (Me.), 18-665. To quash proceedings laying out highway. —Where petitioners prayed for the writ of certiorari to quash the proceedings of the county commissioners in Cumberland county in laying out a town way in the tovm of Naples in that county, and it appeared that the only ground for their claim of right to petition for the writ was that they were "citizens and taxpayers of said town of Naples," held that they had no legal right to petition for the writ. Lord i\ County Commissioners (Me.), 18-665. 466 A^vTX. CAS. DIGEST, VOLS. 1-20. 3. Time foe Application. Pending ezecntion of order. — An ap- plication for a writ of certiorari to annul an order of the court adjudging the applicant to be in contempt is not premature if it is made after the court has finally disposed of the pro- ceeding, though the execution of the order has been suspended to a day certain to allow the applicant to attend to a business matter of importance. State ex rel. Carlton v. District Court (Mont.), 8-752. Before final judgment or order. — Where a judge of an inferior court acts with- out jurisdiction in issuing the writ of habeas corpus to test the validity of a judgment of conviction which the supreme court has affirmed, the latter court will issue the writ of certiorari to review the proceeding without awaiting a final judgment or order therein. People ex rel. Stead v. Superior Court (111.), 14-753. 4. Petition fob Wbit. Sufficiency of allegations. — When a petition for certiorari, brought to review a , judgment rendered in a municipal court, as- signs error upon the judgment of that court on the ground that the same is contrary to the evidence, and the existence of the ordi- nance alleged to have been violated is admit- ted in the petition, but the provisions of the ordinance are not set out, it is impossible to tell whether any error has been committed, and the judge of the superior court may refuse to sanction the petition. Hill v. Atlanta (Ga.), 5-614. Effect of granting petition. — Al- though it has been the uniform practice in Maine to hear the whole case upon a petition for the writ of certiorari, nevertheless, the judgment upon the petition granting the writ and ordering the record sent up is not a judg- ment that the record when sent up in response to the writ is to be quashed, but when the rec- ord has been certified up as directed in the writ the question whether the petitioners are entitled to have the record quashed is then to be determined upon the record as certified. Lord V. County Commissioners (Me.), 18-665. 5. The Heabing. Admissibility of evidence ontside of record. — When the writ of certiorari is- sues and in response thereto the record is sent up, the court can only act upon such record. No evidence outside of the record is receivable to show any error therein. If the record is incorrect and amendable it should be amended before being sent up. Lord V. County Commissioners (Me.), 18-665. CESTUI QUE TRUST. See Teusts and Tetjstees. CHAIN GANG. Punishment for violating municipal ordin- ance, see Ceiminal Law, 7 a ( 1 ) . CHAINS. Bequiring convict to wear chain and ball as cruel and unusual punishment, see Cbiminal Law, 7 a (1). CHALLENGE. Challenge to fight duel, see DuiEXlNO. Challenging jurors, see Jubt, 6. Objections to grand jurors, see Gband Jubt, 2. Questioning right to vote, see Elections, 7d. CHAMFERTT AND MAINTENANCE. Contract encouraging litigation, see CoN- TBACTS, 4 d. IVhat constitutes. — A contract by a cit- izen to assist a city in an action to test the validity of certain liquor licenses is not cham- pertous where one of the essential elements of champerty, namely an agreement to divide the proceeds of the litigation, if successful, is wanting. Brush v. Carbondale (111.), 11-121. The Illinois statute providing that any person shall be guilty of maintenance who shall officiously intermeddle in any suit that in nowise belongs to or concerns such per- son, by assisting either party with money to prosecute or defend such suit with a view to promote litigation, is not violate'd by a contract on the part of the citizen with a city to pay all costs in a suit which the city is prosecuting to test the validity of certain liquor licenses, provided the city will carry the suit to a final hearing in the supreme court; and the city having violated a part of the contract by having the appeal to the supreme court dismissed before final deci- sion, an action by such citizen to recover from the city the moneys expended by him in the prosecution of the litigation cannot be resisted on the ground of maintenance. Brush V. Carbondale (111.) 11-121. Where a manufacturer of certain appli- ances induces customers of a rival manufac- turer to break their contracts with the rival and to use its own appliances, and enters into an agreement to indemnify such customers against any claims by the rival against them for breach of their contracts, such contract of indemnity is made by the manufacturer in the legitimate defense of its commercial interests, and does not render it liable to the rival for maintenance. British Cash, etc., Conveyors v. Lamson Store Service Co. (Eng.), 14-554. Assistance rendered by persons of means to poor persons in defending a suit brought by an institution to recover children that had been committed to its custody and removed because of the religious instruction it gave, is within the exception to the law against maintenance founded on the interest arising out of charity, though such assistance is ren- dered by reason of charity induced by a com* CHA^^CE — CHANGE OF VENUE. 467 mon religious belief. Holden r. Thompson (Eng.), 11-68. An assignment of a money claim which authorizes the assignee to sue for the amount, and out of the proceeds to pay costs and divide the balance between the assignor and assignee, is champertous and void. Colville V. Small (Can.), 19-515. As civil injury. — A defendant against whom a lawsuit has been successfully prose- cuted cannot recover the costs incurred for his defense as damages for the unlawful main- tenance of the suit by a third person who has not thereby been guilty of maliciously prose- cuting unnecessary litigation. Newswander V. Giegerich (Can.), 9-860. As affecting contracts. — The fact that a plaintiff has made a, champertous agree- ment with a third person for the maintenance of the action is no bar to his right to recover. Eockwell V. Capital Traction Co. (D. C), 4-648. Action by cbantpertous assignee. — In an action by the assignee in a champer- tous assignment the court will not grant leave to amend by substituting the assignor as plaintiff, but will dismiss the action. Colville V. Small (Can.), 19-515. CHANCE. See Gaming and Gaming Houses; Lot- TEBIES. Last fair chance, see Negligence, 7 b. Verdict arrived at by chance, see Ceiminai, Law, 6 r (7). CHANCERY. See Equity; Mastees in Chanceey. CHANGE. Changing grades of streets, see Stbeets and Highways, 3 b. Changing position of employee as breach of contract, see Masteb and Seevant, 1 e. Changing words in construction of statute, see Statutes, 4 e. Change of channel or affecting boundaries of land, see Watee and Watbrcoueses, 3 b (2) Change of circumstances as defense to enforce- ment of building restrictions, see Deeds, 3 c. Change of conditions as affecting liability on contract, see Sales, 5 d ( 1 ) Change of conditions as affecting right to specific performance, see Specitio Pee- foemanoe, 3 f (11). Change of judge, see Judges 5; Ceiminal Law, 6 k. Change of location of railroad, see Eailboads, 2 b. Change of name of person, see Name. Change of name of railroad, see Raileoads, 5 b. Change of possession, see FsAUDUiyENT Con- veyances, 1 a. Power of legislature to change rules of evi- dence, see EviDBNCEj 22. CHANGE OF VENUE. 1. Civil Cases, 467. a. Constitutional and statutory pro- visions, 467. b. Nature of cause, 468. c. Stage of cause, 468. d. Grounds for change, 468. e. Discretion of court, 468. f. Change from one division to an- other of same court, 468. g. Hearing and determination, 468. h. Effect of change, 468. 2. Ceiminal Cases, 468. a. Constitutional and statutory pro- visions, 468. b. Right to change, 468. c. Stage of cause, 469. d. Discretion of court, 469. e. To what county venue may be changed, 469. f. -Affidavits and other proofs, 469. g. Hearing and determination, 469. h. Effect of change, 470. Review on appeal, see Appeal and Ebeoe, 13. 1. Civn, Cases. a. Constitutional and statutory provisions. The provision of the Idaho constitution that " right and justice shall be adminis- tered without sale, denial, delay, or preju- dice " is self-executing, and the legislature cannot, by failing to provide by proper legis- lation that the prejudice of the judge is a cause for a change of the place of trial, nulli- fy the constitutional provision, and thus compel the trial of the case before a preju- diced judge. Day «. Day (Idaho), 10-260. The provision of the Idaho constitution that " right and justice shall be adminis- tered without sale, denial, delay, or preju- dice " makes the prejudice of a judge a ground for his disqualification; and the pro- vision of the state statute that " the court may on motion change the place of trial . . . when from any cause the judge is disqualified from acting," is broad enough in its terms to include disqualification on the ground of the prejudice of the judge, though the statute was enacted before the adoption of the constitution. Day v. Day (Idaho), 10-260. The provision of the constitution of Utah that " all civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken in such cases as provided by law," does not grant or limit jurisdiction, or change the common- law practice in respect to venue, or destroy the universal distinction between local and transitory actions, but relates merely to the subject-matter of a change of venue and pro- ■±68 ANIsT. CAS. DIGEST, VOLS. 1-20. hibits a change of venue except as authorized by law; and notwithstanding this provision of the constitution, a transitory action, such as an action for negligence, can be instituted in any county in which the defendant can be served with process, and the defendant in such action has no right to insist that it shall be tried in the county where it arose. Sanipoli v. Pleasant Valley Coal Co. (Utah), 10-1142. b. Nature of cause. Garnisliineiit. — The Washington stat- ute authorizing a change of venue applies to a garnishment proceeding. State ex rel. Wyman v. Superior Court (Wash.), 5-775. Mandamus.— Mandamus proceedings are civil actions within the meaning of the Michigan statute regulating changes of venue in civil actions. Woodworth v. Old Second National Bank (Mich.), 8-310. c. Stage of cause. Under the Oregon statutes providing for a change of judge or a change of place of trial " at any time before the day appointed or fixed for the hearing or trial " of any " action, motion, or proceeding," an affidavit imputing bias and prejudice on tTie part of the trial judge as ground for a change of judge or of the place of trial may be filed after the rendition of judgment and before the day set for the hearing of a. pending mo- tion for a new trial; and it is not contempt to file such an affidavit. State ex rel. Carle- ton V. District Court (Mont.), 8-752. d. Grounds for change. Bias or prejudice cannot be imputed to a judge merely because, in a will contest which is decided for the caveatees on the ground of the testamentary capacity of the testa- trix, the judge makes a formal finding based on the legal presumption of the absence of undue influence, there being no allegation or proof on the subject, and such finding is not ground for a change of venue in a subse- quent contest of the same will on the ground of undue influence. Estate of Dolbeer ( Cal. ) , 15-207. The alleged bias or prejudice of a judge, not against a litigant, but against a par- ticular will contest because a contest of the same will has been determined by a jury in his court adversely to the contestant, is not a basis for a motion for a change of venue or for the amotion of the judge. Estate of Dolbeer (Cal.), 15-207. e. Discretion of court. Under the Pennsylvania statute a court is bound to grant the plaintiff's petition' for a change of venue in an action against the county, where the plaintiff makes an oath " that local prejudice exists, and that a fair trial cannot be had in such county." Brit- tain V. Monroe County (Pa.), 6-617. f. Change from one division to another of same court. Where the trial court of a county is com- posed of several divisions and in an action pending in one of the divisions a change of venue is granted on the ground of prejudice, the change should be made to another of the divisions of the court instead of to another county, in the absence of evidence tending to show prejudice on the part of the judges of the other divisions. Priddy v. Boice (Mo.), 9^874. g. Hearing and determination. Under the Pennsylvania statute, where the plaintiff's petition for a change of venue al- leges that a large number of the inhabitants of the county in whict the case is pending " have an interest in the question involved therein adverse to the plaintiff," it is the duty of the court to hear evidence in sup- port of and against the allegations of the petition. Brittain v. Monroe County (Pa.), 6-617. h. Effect of change. A trial court loses jurisdiction of an ac- tion by granting a change of venue, and any steps taken in the court after the change has been granted are of no effect. Priddy v. Boice (Mo.), 9-874. 2. Cbiminal Cases. a. Constitutional and statutory provisions. The Indiana statute authorizing a court to change the venue of an indictment does not conflict with any other provision of the Indiana Code of Criminal Procedure. Welty V. Ward (Ind.), 3-556. The system of trial by jury in criminal cases which existed in the territory now con- stituting the state of North Dakota prior to the adoption of the constitution gave the state as well as the defendant the right to have the place of trial changed to. another county when necessary, and it is the right thus known and understood which is secured by the constitution. Barry v. Truax (N. Dak.), 3-191. The North Dakota statute providing for a change of place of trial to another county in a criminal case on the application of the state's attorney when a fair trial cannot be had in the original county merely perpetuates the right known when the constitution was adopted, and existing at common law, and does not violate the right of trial by jury as secured by the state constitution. Barry V. Truax (N. Dak.), 3-191. The Indiana statute authorizing a court to change the venue of an indictment is not unconstitutional because giving power to the court to amend the indictment. Welty v. Ward (Ind.), 3-556. b. Right to change. At common law the right of trial by a jury of the county where the offense was committed was a general right, not uncondi- tional, but subject to the exception that the indictment and trial might be removed to another county on the application of either the prosecution or the defendant when CHANGE OF VENUE. -1-69 necessary to secure a fair trial. Barry v. Truax (N. Dak.), 3-191. The Indiana statute providing that a court may order the venue of an indictment changed in a proper case, does not violate a provision of the state constitution that in criminal prosecutions the accused shall have the right to a public trial by an impartial jury in the county in which the offense shall have been committed. Welty v. Ward ( Ind. ) , 3-556. e. Stage of cause. Under the Wisconsin statute a person who has been convicted of a criminal offense, but whose conviction has been reversed on a writ of error, is entitled to a change of venue on a new trial, provided his moving papers sat- isfy the statute, notwithstanding the fact that he procured the change of venue before his conviction in the first instance. State ex rel. Schutz v. Williams (Wis.), 7-303. Under the Wisconsin statute where a judg- ment against the defendant in a criminal prosecution is reversed by the supreme court and the cause is remanded for a new trial, the defendant on filing an affidavit that he has good reason to and does believe that he cannot have a fair trial on account of the prejudice of the trial judge should be granted a change of venue. State ex rel. Schutz v. Williams (Wis.), 7-303. d. Discretion of court. The granting of a change of venue in a criminal action on motion of the defendant is a matter within the discretion of the court, and the denial of such motion will not au- thorize a reversal of a judgment when it appears that the defendant had a fair and impartial trial by an impartial jury. State V. Gilbert (Idaho), 1-280. The granting or denial of a motion in a criminal case for a change of venue on the ground of popular feeling against the accused is within the sound discretion of the trial court. Strong v. State (Ark.), 14-229. An application for a change of venue is addressed to the sound discretion of the trial judge, and, in the absence of an abuse of this discretion, his judgment is not subject to review. Johnson v. State (Okla.), 18-300. Under the constitution of Maryland the allowance of a change of venue in all crimi- nal cases, except where the offense is pun- ishable by death, rests in the discretion of the court to which the application is made, and the exercise of such discretion will not be interfered with by an appellate court ex- cept in a case of manifest abuse. Downs v. State (Md.), 18-786. e. To what county venue may be changed. When a change of place of trial is obtained by the defendant in a criminal prosecution because of local prejudice, the duty of se- lecting the place for trial rests exclusively on the presiding judge, in the exercise of sound judicial discretion. Murphy v. Dis- trict Court (N. Dak.), 9-170. Under the North Dakota statutes regu- lating changes of place of trial in criminal cases on the defendant's application, because of prejudice which precludes a fair aad im- partial trial in the county where the indict- ment or information is laid, the presiding judge is not limited, in selecting a place for trial, to adjoining counties or judicial dis- tricts, as the single statutory requirement is that he shall send the case " where the cause complained of does not exist." Murphy V. District Court (N. Dak.), 9-170. f. Affidavits and other proofs. On an application for change of venue in a criminal case, facts must be shown from which the court can deduce the conclusion that the ground relied on for the change actually exists; and, as a rule, mere belief, opinions or conclusions will not be sufficient to warrant the court in exercising its power, unless the information on which the belief is founded, or the grounds on which the opinions or conclusions are based, are suf- ficiently shown. Downs v. State (Md.), 18-786. Newspaper articles denunciatory of the ac- cused in a criminal case are not, in them- selves, sufBcient to evidence the existence of such prejudice against the accused as will justify a change of venue. Downs v. State (Md.), 18-786. On appeal from an order denying a motion for a change of venue in a prosecution for larceny of public funds, based on the ground that public opinion had been so inflamed against the accused by denunciatory articles in the newspapers that he could not have a fair and impartial trial in the county where the indictment was found, aifidavits exam- ined and held insufficient to show that the denial of the motion by the trial court con- stituted an abuse of discretion. Downs v. State (Md.), 18-786. g. Hearing and determination. Before a court is justified in sustaining an application for a change of venue in a homicide case on account of the prejudice of the inhabitants of the county it must af- firmatively appear that there is such a feel- ing of prejudice prevailing in the community as will be reasonably certain to prevent a fair and impartial trial. The intemperate expressions of a mass of people congregated on the streets at the time of the killing and the contemporaneous publication in daily papers of two inflammatory articles, nearly a year prior to the trial, might properly be considered by the trial judge insufficient to show the impossibility of a fair trial in a large county containing a city of more than ten thousand inhabitants. Elias v. Terri- tory (Ariz.), 11-1153. Under the Arkansas statute requiring the petition for a change of venue to be sup- ported by the affidavits of two credible per- sons, the only question before the court is whether the affiants are credible persons, and while the court may permit the witnesses themselves to be examined to determine that question, it is not permissible to inquire into the truth or falsity of the affidavits, and 4T0 ANN. CAS. DIGEST, VOLS. 1-20. therefore, on an application for a change of venue by a person charged with murder, tes- timony by the sheriff "that feeling against the defendant in the county was so strong that he (the sheriff) deemed it advisable to take him to an adjoining county for safe keeping, to keep him from being mobbed," is properly excluded. Strong v. State (Ark.), 14-229. Where there are no compurgators in con- nection with a motion for a change of venue on the ground of prejudice against the ac- cused and a formidable combination adverse to him in the county in which he is being tried, it is not incumbent on the court to consider the motion. Smith v. State (Tex.), 15-357. The burden is on the defendant to show clearly, on an application for a change of venue, his inability to obtain a fair and impartial trial in the county in which the offense was committed. Johnson v. State (Okla.), 18-300. h. Effect of change. The Indiana statute authorizing a court to change the venue of an indictment gives the court of the county to which the venue is changed jurisdiction of the person of the defendant and of the prosecution against him as if he had been indicted and arrested in such county. Welty v. Ward (Ind.), 3-556. CHANNEI.. Artificial channel as watercourse, see Wa- ters AND Wateecoubsbs, 3 b (4). Change of channel as affecting boundaries of lands, see Watbbs and Watkbcoueses, 3 b (2). Eight of riparian owners to value of water in natural channel, see Watbbs and Watebcoubses. CHARACTER. See Evidence, 4. Attacking character of witness, see Wit- nesses, 5 b (2) (g). Bad character of parent as affecting right to custody of child, see Pabent and Child, 1 b. Instructions as to character evidence in criminal cases, see Ceiminai Law, 6 q (6). Parties in assault and battery case, see ASSATXLT AND BATTERY, 1 f. Prerequisite to right to naturalization, see Nattjbalization. Proof of character of accused, see Cbiminal Law, 6 n (3); Homicide, 6 a (2). CHARGE. Charging jury in civil cases, see Tbial, 3. Charging jury in criminal cases, see Cbimi- nal Law. Charging offense in indictment, see Indict- ments AND INFOBMATIONS, 4. CHARITIES. 1. What Institutions ob Pueposes abe Charitable, 470. 2. What Law Govebns, 472. 3. The Cy Pbes Doctbine, 472. 4. Tebms and Validity of Gift, 470. 5. Exemption peom Taxation, 473. 6. Accumulation of Income, 473. 7. Enfoeobment of Trust, 473. 8. Liability of Charitable Institu- tion foe Negligence, 473. Duration of annuity to charitable corpora- tion, see Annuities. Exemption of charitable institutions from succession taxes, see Taxation, 13 a. Limitation of amount bequeathable to charity, see Wills, 9 a. Eailroad hospital as charitable institution, see Master and Servant, 3 j. Works of charity within exceptions to Sun- day laws, see Sundays and Holidays, 1 b. I. What Institutions ob Pueposes abb Chabitablb. In general. — A charity, in the legal sense, may be defined as a gift, to be applied consistently with existing laws, for the bene- fit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Estate of Graves (111.), 17-137. Motives of donor. — In determining whether a gift is charitable, the courts will look to the nature of the gift and the object which will be attained by it, rather than to the motives of the donor. A gift which is charitable in its nature is not rendered any the less so by the fact that there is a condition attached thereto that the name of the donor shall in some manner, by inscrip- tion or otherwise, be identified therewith and perpetuated thereby. Estate of Graves (111.), 17-737. Incorporated nniversity. — A univer- sity which is organized as a private corpora- tion without power to declare dividends and is dependent upon the income from the prop- erty and upon endowments apd gifts for the funds to carry out the purpose for which it was created, i e., the dissemination of learn- ing, the benelits of the institution being .sc- oured to all persons of good moral character who have made sufficient preliminary ad- vancement, is a charitable institution. Parks i\ Northwestern University (111.), 4-103. Schools requiring payment of tuition. — Under the statute of charitable uses. CHARITIES. 471 which is a part of the eomrasm lair of Illinois, " schools of learning, free schools," etc., are charitable objects, and their character as such is not altered hj the- fact that their students are required to pay tuition. Parks V. Northwestern University (111.), 4-103. Free school for boys. — A bequest to trustees for the establishment and support of a school for the free education of boys who reside within the state of the testator's domicil " and who are unable to educate themselves " is a valid charitable use, and is not rendered void for indefiniteness by the fact that the class to be benefited by the charity is not restricted in any way by the capacity, color, or condition of the bene- ficiaries, or by the fact that the public school system is maintained by the states Tinoher V. Arnold (U. S.), 8-917. Where a bequest to a charitable use dis- closes the main charitable purpose with rea- sonable clearness, the directions of the testa- tor relating to the management of the trust, which are not intended as limitations, will be regarded as directory and not mandatory, if such a construction is necessary to preserve the trust and carry out its purpose, as in such a case it will be presumed that the specified details of the management were meant by the testator to be governed by circumstances. Tincher v. Arnold (U. S.), 8-917. TTnincorporated home for destitute boys. — A home which is maintained under a trust for the sole purpose of affording free education and maintenance to destitute boys is a valid public charity, even though it is unincorporated. Farrigan v. Pevear (Mass.), 8-1109. Home for orphans and indigents. — A trust for the establishment, maintenance, and support of a home for fatherless or motherless and indigent children residing in certain specified states, and for elderly indi- gent widows residing in such states, is valid. Eader v. Stubblefield (Wash.), 10-20. Devise for benefit of church. — A de- vise to the vestry of a church for the benefit of the church is a charitable use. Biscoe v. Thweatt (Ark.), 4-1136. A devise for charitable use to the vestry of a church will be sustained though the church is unincorporated and not capable in law of holding and transmitting property. Biscoe V. Thweatt (Ark.), 4-1136. Fund for widows and orphans of de- ceased clergymen.— A gift to a church for the creation of a fund for the benefit of the widows and orphans of the deceased clergymen of a particular church of a speci- fied denomination, which is made with the proviso that if the accumulations be- come sufficiently large the money is to be devoted to such other uses in connection with the church as the wardens and vestry thereof may in their judgment deem fit and advis- able, is a good gift to a charitable use, and the fund may, on a proper case being made out, be directed by the court to be applied cy pres. Sears v. Attorney-General (Mass.), &-1200. Gift for masses. — The bequest of a sum of money for the purpose of celebrating masses for the testator's soul is not a be- quest for a charitable use within the Cali- fornia civil code restricting devises and be- quests for charitable uses, and is therefore valid. Estate of Lennon (Cal.), 14-1024. Perpetual trust for care of burial lot. — A perpetual trust for the care of a private burial lot is for a purely private and secular purpose and is not a gift to any public use. Such a trust is therefore repugnant to the rule against perpetuities, and is void unless its creation is authorized by statute. Mason V. Bloomington Library Assoc. (111.), 15-603. The creation of such a trust is not author- ized by a statute providing for the creation of trusts in the hands of boards of directors for the purpose of providing for " the proper care and management of county cemetery grounds." Mason v. Bloomington . Library Assoc. (111.), 15-603. Gift for benefit of animals. — The motives which prompt bequests intended to relieve the suffering or increase the comfort or enjoyment of animals should be, and are, regarded as charitable, and should receive the same favorable consideration accorded to like sentiments when manifested in behalf of human beings. Estate of Graves (111.), 17-137. Fire insurance patrol. — The associa- tion known as the fire insurance patrol, or- ganized under the Louisiana statute, which is composed of insurance companies doing business in New Orleans, and has authority to maintain a corps of men and suitable apparatus to save life and property at and after fires, and which is supported by assess- ments levied on all persons, natural or arti- ficial, engaged in the fire insurance business is said city, is a private association, whose main purpose, as appears from a reason- able construction of the law under which it is established, is to minimize the losses and promote the pecuniary interests of its mem- bers. Such association is neither a public corporation nor a public charity, and it is liable in damages for injuries sustained by a member of the fire department, engaged in the discharge of his duties, as the result of the negligence of its servants in driving one of its vehicles through the streets of the city; and this notwithstanding that the stat- ute referred to includes the saving of life among the purposes for which such associa- tions may be established, and prohibits them from charging for their services or from dis- tinguishing between insured and uninsured property. Coleman v. Fire Ins. Patrol (La.), 16-1217. Public charities — Masonic orphan asylum.— A testamentary trust to estab- lish and maintain an orphan asylum for the maintenance and education of the orphan children under seventeen years of age of members of a secret society is a " public charity," and valid, within the Kentucky statute (St. c. 317) relating to gifts to charity. Green v. Fidelity Trust Co. (Ky.), 20-861. 472 ANN. CAS. DIGEST, VOLS. 1-20. 2. Wkat Law Govebns. A charitable trust will be administered according to the law of the donor's domicil, and the fact that it is to be administered abroad does not make the gift void, when it does not appear that it is not a valid charity in the foreign country, and a bequest to a charity or on a trust to be administered in another state, when lawful in the place of the testator's domicil, may be sustained in the state in which the fund is to be admin- istered, though it contravenes the statute of the state against perpetuities, since it is not the policy of one state to interdict perpetu- ities in other states. Green v. Fidelity Trust Co. (Ky.), 20-861. Where a testator who resides in Kentucky devises his property, situated in Kentucky, in trust to establish and maintain in another state an orphan asylum for the nurture and education of orphans under the age of seven- teen years of members of a secret society of such other state, the courts of equity of Kentucky will administer the trust in Ken- tucky, and require the trustee in Kentucky to protect the trust by paying the income over to a trustee appointed by the courts of the other state, on its being found neces- sary to have two trustees to carry the trust into effect. Green v. Fidelity Trust Co. (Ky.), 20-861. 3. The Cy Pees Docteine. Beneficiary not in existence. — Where a charitable corporation named in a will ceases to exist legally before the death of the testator, because consolidated, the court will not apply the ey pres doctrine unless a general charitable intent can be inferred from the will as distinguished from a mere charitable purpose limited to a particular object or institution. Gladding v. St. Mat- thew's Church (R. I.), 1-537. Beneficiary incapacitated to take. — Although a charitable corporation may for some reason be incapacitated to take under a will and to carry out the intent of the tes- tator, the bequest or devise will not be void for this reason, as the court will apply the doctrine of cy pres and will appoint a trus- tee to act in its place. Hubbard v. Wor- cester Art Museum (Mass.), 10-1025. Doctrine of approximation. — While the doctrine of cy pres, as indicative of pre- rogative authority on the part of the courts in dealing with charitable uses, does not pre- vail in Illinois, the " doctrine of approxima- tion " gives the courts the right to deal by liberal rules of construction with a trust having a designated particular purpose ex- pressed in general terms, and to enforce the trust within the limits of such purposes, sup- plying trustees if necessary. Tincher v. Ar- nold (U. S.), 8-917. Use of income for incidental pur- poses. — Where a bequest to trustees for the establishment of a free school, which pro- vides that the income shall be used for the purpose of paying teachers, discloses clearly that the dominant purpose of the testator was to found a school and furnish the means of free education, a court of equity will ap- ply the doctrine of cy pres or the " doctrine of approximation" and hold the trust to be valid and enforceable as a charitable use, though the enforcement of the trust will re- quire the diversion of a portion of the in- come to the payment of expenses other than teachers' salaries which are necessary to ths maintenance of the school, such as the ex- penses of heating, lighting, etc. Tincher v. Arnold (U. S.), 8-917. Substitution of beneficiary, — Where it appears that a library association, in con- nection with which a public art gallery and studio, for the advancement of education in art, was to be established under the pro- visions of a, testamentary trust, has trans- ferred its property to a public library and has ceased to exercise its charter powers, a court of chancery has, under the doctrine of cy pres, the power to substitute as the administrator of such charitable trust the public library in the place of the library as- sociation. Mason v. Bloomington Library Assoc. (111.), 15-603. 4. Teems and Validity op Gift. Massacliusetts rule. — In Massachusetts the power of a testator to dispose of his property by will is unlimited except where a limitation is placed on the right for the protection of the statutory rights of a hus- band or wife. Hence a testator is not re- strained from giving free course to his charitable inclinations as long as he is in possession of a sound and disposing mind; nor is the making of a charitable gift against public policy. Hubbard v. Worcester Art Museum (Mass.), 10-1025. Policy of law to npbold validity.— It has always been the policy of the law to uphold charitable bequests and give effect to them whenever possible, and the fact that the statute now exempts such bequests from the payment of the Illinois inheritance tax is no reason for departing from or modifying this ancient rule of construction favoring such gifts. Estate of Graves (111.), 17-137. Bequest in evasion of statute. — Where a testator devises and bequeaths all the residue of his estate to charities which, under a statute limiting devises and bequests to charities, cannot take under the will in the event of the death of the testator within thirty days from the date of the will, and then provides in the will that in case of his death within thirty days the estate is devised and bequeathed absolutely to a certain indi- vidual who has no acquaintance with the tes- tator and on whom no trust is imposed, the disposition of the property to such individual is valid, although the wish of the testator is that if his charitable disposition fails by his death within thirty days his estate will reach the charities through the individual devisee, and the devisee regards himself bound in conscience, but not in law, to appropriate the estate to the charities named in the will. Flood r. Eyan (Pa.), 13-1189. CHARITIES. 473 Gift with condition of inalienability. — A condition of inalienability attached to a donation for pious uses is void, and reputed not written — both as creating a tenure of property not provided for by our code, and therefdre impliedly forbidden; and as put- ting property out of commerce, and there- fore contrary to public policy. Female Or- phan Society v. Y. M. C. A. "(La.), 12-811. Wlio may question validity. — Where a charitable corporation is limited by_stat- ute in the amount of property which it may hold, such limitation does not prohibit it from holding property in excess of the speci- fied amount except as against the objection of the state, as the limitation is for the benefit of the state only. Hubbard v. Wor- cester Art Museum (Mass.), 10^1025. A petition in the nature of a qiu> loarranto will not lie at the instance of the heirs of a testator to declare void a bequest or devise to a charitable corporation in excess of the amount of property which it is authorized to hold. Hubbard v. Worcester Art Museum (Mass.), 10-1025. Waiver of riglit to qnestiou. — Where a charitable corporation is limited by stat- ute in the amount of property which it may hold, and it receives by will real and per- sonal property in excess of such amount, the passage of another statute after probate of the will authorizing it to hold property in an amount greater than that received will be deemed to be a waiver by the state of the right to object to its taking property in ex- cess of the first limitation. Hubbard v. Worcester Art Museum (Mass.), 10-1025. Bill to determine validity. — A bill in equity by a legatee to determine whether his testator's will creates a, valid charitable use will not be dismissed on the ground that the complainant's delay in bringing the suit con- stitutes laches, as the validity of the be- quest is to be determined by the will, and if the bequest is valid the delay is of no con- sequence, while if it is void the laches of the complainant cannot make it valid. Tineher v. Arnold (U. S.), S-O'lT. Designation at beneficiaries. — A tes- tamentary trust to establish and maintain an orphan asylum for the maintenance and education of the poor orphan children under seventeen years of age of members of a cer- tain secret society is not void for indefinite- ness, and the beneficiaries are named with sufficient certainty. Green v. Fidelity Trust Co. (Ky.), 20-861. Powers of trustee. — A testamentary gift to an incorporated hospital in trust to provide free medical treatment for sick, in- jured, or infirm poor persons, the object of which is "to benefit as many such poor persons as practicable," does not make it an imperative duty of the trustees to maintain a ward for the treatment of contagious dis- eases, but leaves it to the discretion of the trustees to decide whether the expressed ob- ject can be attained more successfully _ by excluding persons afflicted with contagious diseases than by treating them; and an erroneous decision of this question will not constitute a breach of trust. Stearns v. Newport Hospital (R. I.), 8-1176. \}se of principal of fund. — Where a testamentary gift in trust to a hospital is of " the whole residue and remainder of said trust property," as well as "the proceeds, rents, issues, profits, and income thereof," for the purposes of the trust, and the will states that the object is " to benefit as many . . . poor persons as practicable, and at the same time to provide and secure the permanent source of aid, remedy, and relief," and provides that " the employment of said trust funds and property for the general support and maintenance of said hos- pital is hereby authorized, so far as may be requisite, to uphold it and preserve it, and perpetuate the charity hereby created and designed," the trustee has authority to ex- pend part of the capital in case of necessity. Stearns v. Newport Hospital (R. I.), 8-1176. 5. Exemption fbom Taxation. Succession tax. — A bequest to the park commissioners of a city for the erection, in a public park, of a drinking fountain or drinking basin for horses, and in connection therewith of a bronze statue of a horse formerly ovnied by the testator, is a charit- able bequest, and therefore not subject to taxation under the inheritance tax law of Illinois, which exempts beqeusts for benev- olent or charitable purposes. Estate of Graves (111.), 17-137. 6. Accumulation op Income. Charitable gifts are not exempt from the provisions of the New York statutes pro- hibiting the accumulation of income except for the benefit of minors. St. John v. An- drews Institute (N. Y.), 14-708. 7. Entgecement of Teust. Parties. — The mayor of a city is not, either in his capacity as mayor and as ex- officio trustee of a charitable institution or in his individual capacity as a taxpayer, a proper party plaintiff to a bill against the institution and its trustees for an injunction and accounting. Stearns v. Newport Hos- pital (E. I.), 8-1176. Pleadings. — In a suit against an incor- porated hospital and its trustees to compel them to render an account of their admin- istration of a testamentary gift to the hos- pital in trust for the benefit of sick and in- firm poor persons, allegations as to the use made by the defendants of the moneys given to the hospital by charitable persons other than the testator are not relevant. Stearns 1'. Newport Hospital (R. I.), 8-1176. 8. Liability op Chabitable Institution fob Negligence. In general.—. A corporation administer- ing a charitable trust is, like all other cor- porations, subject to the laws of the land, and cannot claim exemption from responsi- bility for the torts of its agents except by 474 ANN. CAS. DIGEST, VOLS. 1-20. contract with the person injured by such tort. Bruce v. Central M. E. Church (Mich.), 11-150. Incorporated churcb. — In an action against an incorporated church for an in- jury received by the plaintiff while at work on its church building, a declaration alleging that while the plaintiff was so at work for a contractor of the defendant the scaffolding on which he stood, and which was furnished by the defendant, was defective so that it broke and caused the plaintiff to be thrown to the floor and injured, is not demurrable on the ground that the defendant as a cor- poration administering a charitable trust is not liable for the neglect or default of its agent or servant having the care or custody of its property. Bruce v. Central M. E. Church (Mich.), 11-150. University. — The funds and property of a university which is a charitable institution cannot be diverted to pay damages to a stu- dent caused by the negligence of an employee of the institution. Parks v. Northwestern University (111.), 4-103. Home for destitute boys. — Where the trustees of an unincorporated charitable in- stitution, such as a home for destitute boys, have used reasonable care to select competent servants, they are not liable for personal injuries resulting from the negligence of such servants. Farrigan v. Pevear (Mass.), 8-:1109. CHABIVABI. Liability of municipality for damage done by charivari party, see Mitnicipal COBPOEATIONS, 9 d. CHARTER. See CoBPOBATiONS ; Municipal Cobpora- TIONS, 2. CHARTER PARTY. See Ships and Shipping, 2. CHASTISEMENT. Eight to chastise children, see Pabent and Child, 2 a; Schools. CHASTITY. Presumption of, see Sedxtction, 2 c (3). CHATTEL MORTGAGES. 1. Nature and Effect, 474. 2. To Secure Future Advances, 474, 3. Description of Property, 475. 4. Lien, 475. a. In general, 475. b. How affected by removal of prop- erty, 475. 5. Who Mat Question Validity, 475. 6. Unfaib Sale by Mobtgaoee, 475. 7. Waiveb op Mortgage Security, 476. 8. foreclosube, 476. Conditional sale or chattel mortgage, see Sales, 8 a. Effect of preference of creditor, see Bank- BUPTCY, 10. Effect of subsequent bankruptcy of mort- gagor, see Bankeuptct, 10. Giving chattel mortgage on stock of mer- chandise as within sales in bulk acts, see Fbaudulent Conveyances, 3 b. Instrument in form of assignment, see As- SIQNUENTS, 2 a. Lien on young of mortgaged animals, see Animals, 1 a. Partial illegality, see Contracts, 4 a. Real estate mortgages, see Mobtoaoes. 1. Nature and Eppect. No transfer of title. — A chattel mort- gage creates a lien only and does not pass title to the mortgagee. Demers v. Graham (Mont.), 13-97. Parol reservation of title. — Under the Texas statute providing that reservations of title to chattels as security for the purchase price shall be held to be chattel mortgages, a verbal reservation of title, made at the time of the sale of personal property to secure tha payment of the purchase money, constitutes, as between the parties, a valid chattel mortgage. Crews v. Harlan (Tex.), 13-863. Equitable mortgage. — A working eon- tract which provides that the contractor shall furnish his own tools, but that in the event of his failure to carry out the con- tract the other party shall have the right to take possession of such tools for the pur- pose of completing the work, is not a mort- gage, equitable or otherwise. Lewman & Co. V. Ogden Bros. (Ala.), 5-265. 2. To Secure Future Advances. Validity and efFeot. — A chattel mort- gage may be made to secure future advances which are contemplated by the parties at the time of the making of the mortgage; but when the indebtedness secured, including the advances contemplated, has been fully satis- fied and discharged, the mortgage is can- celed and extinguished by the operation of the law. Wright v. Voorhees (Iowa), »-1149. Construction. — A mortgage on two horses and " future acquisitions to the above- described property," which provides that it is given to secure payment of certain speci- fied notes, "together with any future ad- vances made or indebtedness owing by said mortgagor to said mortgagee, including all renewals thereof until this mortgage Is can- celed," cannot be given a construction which would make it cover all future acquisitions of property and all future indebtedness, re- CHATTEL MOETGAGES. 475 gardless of the contemplation of the parties at the time the mortgage was executed that any such indebtedness should be incurred. Wright V. Voorhees (Iowa), 9<-1149. Advances not contemplated at time of execution. — A chattel mortgage exe- cuted to secure future advances contemplated by the parties at the time of its execution cannot, by a subsequent arrangement between the parties, be made to cover other advances not in contemplation at the time the mort- gage was executed, unless perhaps the new agreement amounts to a new mortgage in parol. Wright v. Voorhees (Iowa), 9-1149. 3. Description op Propebtt. SnfScienoy as betveen parties. — A chattel mortgage which would be invalid as against creditors and purchasers in good faith by reason of defective description of the property mortgaged may be good as be- tween mortgagor and mortgagee where the property in fact mortgaged is identified. Such a case differs from one where no spe- cific chattels are mortgaged but there is an attempt to mortgage a certain number out of a mass without separating or identifying them. First Nat. Bank v. Johnson (Neb.), 4-^85. Separation or identification of cbat- tels. — No lien upon specific chattels is created by a, mortgage on a certain number of chattels out of a mass until such chattels are separated or identified and it is agreed that the mortgage shall apply to them. First Nat. Bank v. Johnson (Neb.), 4-485. Question for jury. — Evidence in a case examined and held to present a question for the jury whether the specific chattels in con- troversy were mortgaged in the first in- stance or were afterwards agreed upon as the mortgaged property. First Nat. Bank v. Johnson (Neb.), 4-485. 4. Lien. a. In general. On real estate.— An attempt to mort- gage real estate on a chattel creates no lien thereon. Beeler v. C. C. Mercantile Co. (Idaho), 1-310. Priority over lien of livery-stable keeper.— The lien of a valid recorded chat- tel mortgage will take precedence over the subsequently acquired lien of a livery-stable keeper or agistor upon animals placed in his charge, unless such animals were delivered to such lienholder to be kept and cared for by him with the consent of the mortgagee. National Bank of Commerce i;. Jones (Okla.), 11-1041. JEstinguishment by tender after de- fault. — A tender made after default and before sale is sufficient to extinguish the lien of a chattel mortgage; and it is not necessary that such tender should be kept good or that the money should be brought into court. Thomas v. Seattle Brewing, etc. .(Wash.), 15-494. b. How affected by removal of property. Removal to another county. — Where the owner of chattels covered by a valid re- corded mortgage removes the chattels with- out the knowledge or consent of the mort- gagee to another county, it is not necessary for the mortgagee in order to preserve the lien to file the mortgage or a copy thereof for the registry in the county to which the property is removed. National Bank of Commerce v. Jones (Okla.), 11-1041. Removal to foreign state. — A chattel mortgage good in the place where executed and recorded and where the property is sit- uated will be good in any state to which the property may be removed by the mortgagor without the consent of the mortgagee, in the absence of a statute of the latter state to the contrary; and this is true as against an in- nocent purchaser for value from the mort- gagor. Creelman Lumber Co. v. Lesh (Ark.), 3-108. California statute. — Under the Cali- fornia statute providing that when mort- gaged property is removed by the mortgagor from the county in which it is situated the property shall be exempt from the operation of the mortgage unless the mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property is removed or takes pos- session of the property, the mortgage on property removed to another county remains for thirty days a valid and subsisting lien, of which the original record is constructive notice to the world, although neither of the steps prescribed by statute to preserve the lien are taken. Hammels v. Sentous (Cal. ), 12-945. 5. Who May Question Vauditt. Administrator of deceased mort- gagor.- The administrator of an insolvent decedent, as representing general creditors, whose interest in the estate attaches at the decedent's death, may resist the enforcement of a chattel mortgage given by the deceased to secure a valid indebtedness but not re- corded, or possession of the property taken thereunder until after his death. Blackman V. Baxter, Eeed & Co. (Iowa), 2-707. 6. Unpaib Sale by Mortgagee. Iiiability for value of property. — A mortgagee who has taken possession of the animals included in the mortgage and has not legally foreclosed the mortgage, but has converted the property and put it out of the power of the mortgagors to redeem by suppressing competition at the sale and buying in the property himself, afterwards selling the property in small lots to different persons, is chargeable with the value of the property at the time of the seizure, and can- not be allowed the net expense of keeping the animals between the time of seizure and sale, nor be credited with the value of an animal which died after he took possession. Kellogg V. Malik (Wis.), 4r-893. 476 Al^N. CAS. DIGEST, VOLS. 1-20. 7. WaITEB of MoETGAOE SECtrBITT. other proceeding; to collect debt. — Tlie holder of a promissory note which is secured by a chattel mortgage does not waive or lose his mortgage security by attempting to collect the note by proceedings in attach- ment or other recognized process provided by law for the collection of debts. Kansas City Live Stock Commission Co. v. Hamlin Bank (Kan.), 17-956. Attempt to collect debt by attach- ment.— Where the holder of a promissory note secured by a chattel mortgage com- mences an action on the note before it is due, and takes certain steps to obtain an attachment therein, but afterwards, when the note has matured and is past due and while a motion by another attaching creditor to dissolve the proceedings so taken is pend- ing, dismisses his action without prejudice, and files an interplea in the attachment action brought by such other creditor, claim- ing a lien upon the attached property by virtue of his mortgage, it is error for the court to dismiss such interplea on the ground that the remedy under the mortgage is in- consistent with that sought to be obtained in the former action of attachment. Kansas City Live Stock Commission Co. v. Hamlin Bank (Kan.), 17-956. Attachment as iraiver. — A mortgagee of chattels does not waive or lose his lien by causing an attachment to be levied upon the mortgaged property. First Nat. Bank v. Johnson (Neb.), 4-485. 8. FOEECLOSDBE. Conversion by mortgagee pending ac- tion. — Where, pending an action to fore- close a chattel mortgage upon grain, a war- rant is issued under the provisions of the North Dakota statute (Rev. Codes 1905, § 7513), and all of the grain grown on the land described in the mortgage is seized by the plaintiff pursuant thereto, and wrongfully converted by him, by sale, before the trial of the action, the lien of the mortgage is thereby extinguished, and the plaintiff's cause of action for foreclosure ceases to exist. Strehlow v. McLeod (N. Dak.), 17-423. Deficiency judgment. — The Washing- ton statute authorizing a deficiency judg- ment on the foreclosure of a chattel mort- gage (Ball. Code, § 5880) is not affected by the later enactment (Laws 1899, p. 85) lim- ited by its title to " the sales of property under execution, decrees, and orders of sale, and the confirmation of sheriffs' sales, and redemption therefrom." Bradley Engineer- ing, etc., Co. (Wash.), 18-1072. A decree foreclosing a chattel mortgage without giving a deficiency judgment as re- quired by the Washington statute (Ball. Code, § 5880) is res judicata as to the plain- tiff's right of recovery, and he cannot after- wards bring a separate action for the defi- ciency, but his only remedy is to appeal from the decree of foreclosure to correct the omis- sion therein. Bradley Engineering, etc., Co. (Wash.), 18-1072. Injunction. — In an action to enjoin a money-lender from taking possession under a bill of sale, on the ground that the agreement for the loan, the advance of the money and the taking of the security were all trans- acted at the borrower's private residence, in violation of the statute requiring the money- lending business to be carried on at the reg- istered address or addresses of the money- lender and at no other address, evidence ex- amined and held to call for the discharge of an interim injunction granted by the court of appeals. Kirkwood v. Gadd (Eng.), 18-25. CHATTEI^S. See Fixtures; Peopebtt. CHAUFFEUR. See MoTOB Vehicles. Negligence of chauffeur imputable to pas- sengers, see Negligence, 7 e (2). CHEATS. See False Peetenses and Cheats. CHECKS. 1. Natdee and Effect op Instrument, 477. 2. Presentment for Paym:ent, 477. a. Parties residing in same place, 477. b. Forwarding for collection, 477. c. Circumstances making presenta- tion impossible, 477. 3. Acceptance, 477. 4. Stopping Payment, 477. 5. Payment by Mistake, 478. 6. Forged Checks, 478. a. Signature forged, 478. b. Amount raised, 478. 7. Lost Checks, 478. 8. Certified Checks, 478. 9. Actiow for Wrongful Dishonor, 479; a. Eight to damages in general, 479. b. Defenses, 479. c. Evidence, 479. d. Measure of damages, 479. Authority of agent to receive check in pay- ment, see Agency, 3 a (2). Criminal liability for giving worthless checks, see False Pretenses and Cheats, 1 b. Drawing checks as embezzlement of money, see Embezzlement, 5 b. Forgery of checks, see Forgery. Giving check as gift causa mortis, see Gifts, 2 a. Liability of bank far refusing to pay check, see Banks and Banking, 5 b ( 1 ) . Payment by check, see Payment, 1. Payment of forged check by savings banlc, . see Banks and Banking, 8 b. CHECKS. 477 statutory prohibition of payment of wages by check, see Master and Sbbvant, 1 d. Undelivered check as subject of larceny, see Larceny, 2 b. 1. Nature and Effect of Instrument. As assignments pro tanto. — A check operates as an assignment pro tanto of the drawer's funds on deposit with the bank upon which it is drawn; and a bona fide holder may maintain an action against the bank for its wrongful refusal to pay the check. Turner v. Hot Springs National Bank (S. Dak.), 5-937. A check drawn in the ordinary form does not constitute an assignment of the funds of the drawer; therefore, if the holder of the check fails to present it properly for pay- ment he cannot claim priority over a third person who has attached or garnished the drawer's funds in the bank since the draw- ing of the check. Love v. Ardmore Stock Exchange (Ind. Ter.), 5-183. Signature of drairer as notice of trust relation. — A person who receives a check with the words " deputy sheriff " ap- pended to the signature of the drawer is hereby affected with notice that the funds upon which the check is drawn were de- posited by the drawer to his credit as deputy sheriff, and is put upon inquiry as to whether such funds belong to the drawer individually or to the state and county. If he fails to make such inquiry, and the funds in fact belong to the state and county, he takes the amount of the check impressed with a trust in their favor. Hill v. Fleming (Ky.), 16-840. 2. Presentment for Payment. a. Parties residing in same place. Wliat constitutes reasonable time. — Where the drawer, drawee, and payee of a check all reside in the same city or town, the check, to be presented for payment within a reasonable time, should be presented at some time before the close of banking hours on the day after it is issued. Gordon v. Levine (Mass.), 10-1119. EfFect of delay.— Where the drawer, drawee, and payee of a check reside in the same city or town, and the check is not pre- sented for payment before the close of bank- ing hours of the day following its issuance, and a loss is thereby incurred, the loss falls upon the holder thereof. Gordon ?'. Levine (Mass.), 10-1119. Estension of time for presentment. — Where the drawer, drawee, and payee of a check all reside in the same town, and pre- sentment for payment thereof should be made before the close of banking hours on the day following in order to be presented within a reasonable time, its circulation from hand to hand will not extend the time of present- ment for payment to the detriment of the drawer. Grordon v. Levine (Mass.), 10-1119. b. Forwarding for collection. Effect of delay. — Where a debtor sends his creditor, in payment of his debt, a third person's check made payable to the creditor and not signed or indorsed by the debtor, the creditor is bound to forward the check for collection on the day following its receipt, and if he holds it for several days, and it is dishonored when presented, while it would have been paid if presented at the proper time, he is guilty of such negligence as will convert the provisional payment into abso- lute payment of the debt. Under such cir- cumstances the South Dakota statute pro- viding for the exoneration of the drawer and indorsers of a bill of exchange not presented for payment within ten days is not ap- plicable. Manitoba Mtg., etc., Co. v. Weiss (S. Dak.), 5-868. Question for jury. — The question as to the time a check forwarded by mail was re- ceived by the addressee of the letter is one of fact for the jury. Manitoba Mtg., etc., Co. V. Weiss (S. Dak.), 5-868. c. Circumstances making presentation im- possible. A person is relieved from a failure to per- form an obligation imposed on him by law, e. g. the presentation of a check for payment, when the performance is rendered impossible by causes for which he is not responsible, al- though he would not for similar reasons be relieved from the performance of express contract stipulations. First National Bank V. McConnell (Minn.), 14-396. 3. Acceptance. What sufficient to bind drawee. — The drawee of a bank check cannot be held liable upon a claimed contract of acceptance external to the bill unless the language used clearly and unequivocally imports an abso- lute promise to pay. Such a promise is not made by returning to the telegraphic inquiry, " Is J. iF. McDonald's chech on you for $350 good ? " the telegraphic response, " J. F. Mc- Donald's check is good for sum named." First National Bank v. Commercial Savings Bank (Kan.), 11-281. 4. Stopping Payment. Sufficiency of telegram. — A telegram by a depositor notifying a bank to stop pay- ment of a check, and which through the neg- ligence of the servants of the bank is not brought to the attention of the bank man- ager in time to notify him of the depositor's desire to stop payment, is not an effectual countermand within the meaning of section 75 of the English Bills of Exchange Act of 1882. Curtice v. London Citv, etc.. Bank (Eng.). 1.3-466. A telegram countermanding a cheek may reasonably be acted upon by a banker, at least to the extent of postponing the honoring of the check until further inquiry can be made, but a banker is net bound to accept an unauthenticated telegram as sufficient auth- 47b ANN. CAS. DIGEST, VOLS. 1-20. ority for refusing payment. Curtice v. Lon- don City, etc., Bank (Eng.), 13-466. 5. Payment by Mistake. After payment stopped. — The pay- ment of a check cannot be said to have been made by mistake where the alleged mistake consists in having overlooked the fact that the payment of the check had been stopped. National Bank of New Jersey v. Berrall (N. J.), 1-630. Recovery by banh of amount paid. — Where the payee of a check after indorsing it generally deposits it to his account in his OAvn bank by which it is forwarded to the bank upon which drawn for collection, and the latter pays it by mistake, there is no privity between the paying bank and the payee to support an action by the former against the latter to recover the amount of the check as for money paid by mistake. National Bank of New Jersey v. Berrall (N. J.), 1-630. 6. FoEGED Checks. a. Signature forged. Presumption as to knowledge of sig- nature. — In the case of payment by a bank of a forged cheek drawn upon it, the presumption that the bank knows the signa- ture of its depositor is conclusive only when the person receiving the money has in no way contributed to the success of the fraud or to the mistake of fact under which the payment has been made. In the absence of actual fraud on the part of the drawee, its construc- tive fault in not knowing the signature of the drawer and detecting the forgery will not preclude it from recovering from one who took the check under suspicious circumstances without proper precaution, or whose con- duct has been such as to mislead the drawee and induce it to pay the check without the usual security against fraud. Ford i'. Peo- ple's Bank (S. Car.), 7-744. Unrestricted indorsement as war- ranty of genuineness. — An unrestricted indorsement of a draft on a bank is calcu- lated to mislead the drawee into the belief that the paper is what it purports to be. Ford V. People's Bank (S. Cal.), 7-744. b. Amount raised. Duty of drawer to fill blanks. — What- ever duty a customer may owe to his banker in reference to the drawing of checks, the mere fact that he draws a check with such spaces that a forger can utilize them for pur- poses of altering the check by inserting ad- ditional words and figures in the statement of the amount for which it is drawn does not of itself constitute a violation of that duty. Colonial Bank v. Marshall (Eng.), 5-771. Liability of bank to depositor. — In an action by depositors against a bank to recover the excessive amount negligently paid out by the defendant on raised checks, the evidence of fhe plaintiiT's negligence held not to be sufficient to go to the jury. Colo- nial Bank v. Marshall (Eng.), 5-771. 7. Lost Checks.. Liability of drawer to owner. — Whether or not a bank check not accepted as an unconditional payment operates as an equitable assignment of that part of the drawer's deposit as between the drawer and the payee, the drawer is liable to the owner where by reason of the loss of the check pre- sentment to the bank for payment is rendered impossible. First National Bank v. McCon- nell (Minn.), 14^396. Requirement of indemnity bond. — The owner of a bank check which has been lost without his fault before presentment to the bank upon which it was drawn, may re- cover thereon against the drawer of the same upon filing a proper indemnity bond, as re- quired by the Minnesota statute. First Na- tional Bank v. McConnell (Minn.), 14-396. 8. Certified Checks. Effect of certification in general. — A certificate by a bank that a check is good is equivalent to acceptance, and raises an im- plication that it is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. Blake i\ Hamilton Dime Savings Bank Co. (Ohio), 210. Certiiication for indorsee. — The cer- tification of a check on presentation by the indorsee is equivalent to payment although the drawee bank has no funds with which to make payment. First National Bank i). Cur- rie (Mich.), 11-241. Where the indorsee of a check procures its certification by the bank upon which it is drawn, an indorser of the check is thereby discharged, especially where the indorsee thereupon parts with the value of the check, and a demand by the indorsee for payment instead of certification would have protected all the parties. First National Bank v. Cur- rie (Mich.), 11-241. Effect of transfer. — The transfer of a certified check is an assignment of money to meet it, and the bank which made the cer- tification is liable therefor to the holder. Blake v. Hamilton Dime Savings Bank Co. (Ohio), 210. Right to stop payment. — ' The object of certifying a cheek is to enable a holder to use it as money. The drawer or indorser of a certified check cannot, after its delivery revoke it or stop payment upon it by notice to the drawee not to pay, and a bank that has received a certified check for deposit and has credited the depositor with the amount of it, is a hona fide holder and may enforce payment of it notwithstanding the ifact that it may, before payment to the depositor, have received notice that the check was fraudu- lently obtained by the depositor. Blake v. Hamilton Dime Savings Bank Co. (Ohio), 210. CHECKS — CHILDKEX. 4Y9 9. AcnoN na WMTraetn, BtsvcitrM. a. Right to damages in gentral. Dishonor by mistake. — Where a bank, upon presentation of a check drawn upon it, erroneously informs the payee that while the drawer has funds to his credit sufficient to pay the check, such funds are deposited in the savings department of the bank, the rules of which require that all checks pre- sented for payment shall be accompanied by the depositor's pass book, the action of the bank is tantamount to a refusal to pay the check, and the drawer of the check is entitled to recover temperate damages for such re- fusal. Loriek v. Palmetto Bank, etc., Co. (S. Car.), 7-818. Depositor not engaged in mercantile pnrsnits. — The wrongful refusal of pay- ment of a cheek by a bank entitles the depos- itor to recover substantial damages, although he is not engaged in mercantile pursuits, but is a professional man. If no special dam- age is proved, the jury may give such tem- perate damages as they may conceive to be a reasonable compensation for the injury which must have been sustained. Bank i'. Mac- Knight (D. C), lft-897. b. Defenses. Check dravm to order of attorney. .— In the action for the wrongful dishonor of a check, the fact that the check was drawn to the order of the plaintiff's attorney is no de- fense to the action. Columbia Nat. Bank v. MacKnight (D. C), 10-897. Depositor convicted of crime. — In an action to recover for the wrongful dishonor of a check, the fact that the depositor has been convicted of a crime constitutes no de- fense to the action. If the man has served one or more sentences in a penitentiary, and is a depositor in the bank, the refusal to pay his check may operate even more injury than similar treatment might inflict upon a better citizen. Columbia Nat. Bank v. Mac- Knight (D. C), 10-897. c. Evidence. Repeated refusals to pay. <— A depos- itor need not sue a bank after the wrongful dishonor of his check, but may repeatedly draw checks demanding the payment of his money, and evidence of each wrongful refusal of the bank to pay is admissible. Columbia Nat. Bank v. MacKnight (D. C), 10-897. Financial credit and standing of de- positor. — In a suit by a customer against a bank to recover damages for the wrongful dishonor of his check, evidence relating to the customer's financial credit and standing is allowable, though there is no claim for special damages. Hilton v. Jesup Banking Co. (Ga.), 10-987. d. Measure of damages. Reasonable compensation for injnry. — ^In a suit by a customer against a bank to recover damages for the wrongful dishonor of his check, the ia m a g f m riMTVAkle are sueh temperate damages as would be a rea- sonable compensation for the injury. Hilton V. Jesup Banking Co. (Ga.), 10-987. CHICKENS. Kestraining trespass by, see Animals, 2. b. CHII.DBEN. Adoption, see Adoption of Children; Ad- vancements ; ApPBENTICES ; GUABDIAN AND Wabd; Infants; Kidnapping; Pabent and Child. Allowance for support in action to annul marriage, see Alimony and Sxht Money, 4 c. Appeal from award of custody of child, see Appeal and Ebeor. Awarding custody of children, see Habeas CoBPUS, 6 b. Birth of child as essential to estate by curt- esy, see CcBTESY^ 3. Birth of child as evidence of intercourse, see Eape, 2 d (2). Capacity to commit rape, see Rape, 1 b. Chastisement of children, see Pabent and Child, 2 a; Schools. Child labor laws, see Infants, 4 b. Children riding free with parents as passen- gers, see Cabbiebs, 6 d (9). Compensation for services rendered to parent, see WoBK and Labob. Competency as witnesses, see Witnesses, 3 b (5). Contract for custody of child, see Contbacts, 4 1. Contributory negligence of children, see Neg- ligence, 7 c. Custody, see Bastabds; Contbacts, 4 b; Di- vorce, 7; Judgments, 18; Habeas Cob- pus, 6 b. Duty of master to warn and instruct youth- ful employees, see Masteb and Seb- VANTS, 3 b (2). Duty to fence against children, see Fences, 3. Foreign judgment awarding custody of chil- dren, see Judgments, 18. Habeas corpus to obtain custody of children, see Habeas Corpus, 2. Injuries to child on turntables, see Rail- boads, 8. Injuries to children on street car tracks, see Stbeet Railways, 8. b. Injuries to trespassing children, see Explo- sions AND Explosives, I a; Negli- gence, 3; Railboads, 8 d (3) ; Water- courses, 4 d. Legitimacy of children of slave parents, see Slaves. Liability of water company to child falling in reservoir, see Waters and Water- courses, 4 d. Negligence of parent imputable to child, see Negligence, 7 e (1). Permitting attendant to accompany infant witness on witness stand, see Wit- nesses, 6 m (12). Power to commit wayward children, see JuBT, lb (2). 480 AiN^iSF. CAS. DIGEST, VOLS. 1-20. Privilege of naming child as consideration for contract, see Conteacts, 2 d. Prohibiting sale of cigarettes to children, see Health, 2 c. Proof of paternity, see Evidence, 7. Punishment of children, see Cbiminal Law, 7 a (1); Pabent and Child, 2 a; Schools. Revocation of will by subsequent birth of children, see Wills, 6 b (7) Eight of parent to sue for death of cTiild, see Death bt Wrongful Act. Sale or gifts of liquor to infants, see Intoxi- cating LiQTJOBS, 3 c (2), 5 h. Singleness of subject of statute relating to delinquent children, see Statutes, 3 b. Special punishment for delinquent children, see Criminal Law, 7 a ( 1 ) . Support of children after divorce, see Divorce, 7. Unborn child, damage for loss of, see Dam- ages, 1. CHILLING BIDDING. Construction of words "keep" and "own" in construction of statute, see Statutes, 4 d. Power of states to prohibit importation of cigarettes, see Interstate Commebce, 2 b (2). Prohibiting sale of, see Constitutional Law, 25 c. Regulating sale of cigarettes, see Health, 2 c. CIPHER. Use of cipher in telegrams, see Telegraphs AND Telephones, 7 a. CIRCUIT JUDGE. See Judges. CIRCULARS. Circulars as false representations, see Fraud AND Deceit, 4. See Judicial Sales. CIRCULATION. CHINESE. Competency as witnesses, see Witnesses, 3 b (7). CHOSES IN ACTION. Assignability, see Assignments, 1. CHRISTIAN SCIENCE. Treatment of sick persons as practicing medi- cine, see Physicians and Surgeons, 1 a, 3 a. CHURCHES. See Religious Societies. Churches as charitable institutions, see Char- ities, 1. Exemption of churches from limitation as to height of buildings, see Constitutional Law, 10. Exemption of church property from taxation, see Taxation, 12 c (4). Sale of liquor in vicinity of church, see In- toxicating Liquors, 4 d (1). CIDER. See Intoxicating Liquors, 2. CIGARETTES. Cigarettes as legitimate articles of commerce between the states, s»e Interstate Commerce, 3 c. See Newspapers. CIRCUMSTANCES. Change of circumstances as defense to en- forcement of building restrictions, see Deeds, 3 c. CIRCUMSTANTIAL EVIDENCE. See Arson, 4. Action for damages caused by fire, see Fires, 6. Proof of agency, see Agency, 1 c. Proof of identity of stolen money, see Lar- ceny, 6 a (3). Sufficiency to support conviction, see Crim- inal Law, 6 n (1). CITIZENS. See Naturalization. Diverse citizenship as affecting appellate jurisdiction of United States circuit court of appeals, see Appeal and Eeroe, 3 c (3). Diverse citizenship as ground for federal jur- isdiction, see Courts, 2 b (3). Diversity of citizenship as ground for-removal of causes, see Removal of Causes, 3 a. Privileges and immunities of, see Constitu- tional Law, 16. Removal of disabilities, see Paedon, Re- prieve and Amnesty, 2 a. Forfeiture by desertion from army. — The penalty of loss of citizenship imposed by the federal statutes upon a deserter from the United States army does not teke effect CITY — CLERKS OF COURTS. 481 until the rendition of a judgment of deser- tion by a competent tribunal, and a mere record of desertion in the office of the ad- jutant-general of the commonwealth is not conclusive proof of actual loss of citizenship. Com. V. Wong Chung (Mass.), 1-193. CITY. See Municipal Corpobations. CIVU. ACTIONS. Character of proceeding as civil or criminal, see Actions. CLAIMS. Against decedents' estate, see Executors and Administrators, 9. Mining claims, see Mines and Minerals, 7. Penalty for failure of carrier to pay claim, see Carriers. Presentment of notice of claims against muni- cipality for damages, see Municipai. Corporations, 9 f. Priority of claims of states, see States, 8. Provable claims in bankruptcy, see Bank RUPTCY, 4. Set-off of unmatured claims in garnishment, see Garnishment, 3 b. Statement of claim for mechanic's lien, see Mechanics' Liens, 6 a. CIVU. DAMAGE ACTS. See Intoxicating Liquors, 8. CliAMS. See Fish and Fisheries. CIVIL BIGHTS. Denial of civil right as ground for removing cause to federal court, see Removal of Causes, 3 b. Deprivation as cruel and unusual punishment, see Criminal Law, 7 a ( 1 ) . Suspension of civil rights by sentence to peni- tentiary, see Criminal Law, 7 b (6) (c). CIVrL RIGHTS ACTS. Barber shop accommodations. — A barber shop is not a "place of public ac- commodation" within the meaning of the Connecticut statute giving a colored person a right of action against any other person who shall deprive him, on account of his color, of the "full and equal enjoyment of the advantages, facilities, accommodations, or privileges of any place of public accommoda- tion." notwithstanding the facts that a bar- ber cannot ply his business without a license and that all barber shops are under sanitary regulation and are subject to sanitary inspec- tion by the state board. Faulkner v. Solazzi (Conn.), 9-67. CLASSES. Gifts to classes, see WiLLS, 7 c (5).. CLASSIFICATIOir. Crimes, see Criminal Law, 1. Prescribing punishment as classification of crime, see Criminal Law, 2 a. Railroads classified for purpose of regulation, see Carriers, 2 a. Subjects classified for taxation, see Taxa- tion, 1 b. Uniform operation of statute as to all persons similarly situated, see Game and Game Laws, 3 b. CLASS LEGISLATION. See Constitutional Law, 10, 19. CLERGYMAN. Imputations on clergyman, see Libel and Slander, 2 i. Priviliged communications with parishioners, see Witnesses, 3d (3). CIVIL SERVICE. See Municipal Corporations, 14; Public Officers, 3 a (3). CIVIL WAR. Veterans of civil war preferred in appoint- ment of public ofScers, see Public Of- ficers, 3 a (3). CLAIM OF TITLE. See Adverse Possession. Vols. 1-20 — Aw. Cas. Digest. — 31. CLERKS OF COURTS. See Courts. Authority to admit to bail, see Bail, 2. Authority to take acknowledgments, see Acknowledgments. Liability in respect to acknowledgments, see Acknowledgments. Taking deposition by clerks, see Depositions, 4 c. Right to require advance payment for services. — A party requiring the ser- vice of the clerk of the supreme court may lawfully be required to make payment there- for at the time the request for the service is 482 ANN. CAS. DIGEST, VOLS. 1-20. made, and the clerk may lawfully decline to render the service until reasonable compensa- tion is tendered therefor. Bohart v. Ander- son (Okla.), 20-142. Iiiability for interest on funds paid in court as tender. — Where the clerk of a court receives interest on money in his cus- tody which has been paid into court as a tender, he is liable for the amount of such interest to the party entitled to the money tendered. Khea v. Brewster (Iowa), 8-389. Statutory regulation of fees. — The sections of the act of the legislature of Okla- homa contained in chapter 15, page 160, Laws 1897, relating to the fees of the clerk of the supreme court and the payment thereof, are void: following Pitts v. Logan County, 3 Okla. 719, 41 Pac. 584, and United States v. MacMillan, 165 U. S. 504, 17 Sup. Ct., 395, 41 L. Ed. 805. Bohart v. Anderson (Okla.), 20-142. Section 13 of the Organic Act (Wilson's Rev. & Ann. St. 1903, § 73) and chapter 16, title "Judiciary," section 833, of the Kevised Statutes of the United States (4 Fed. St. Ann. 120), relating to the fees and compensa- tion of the clerk of the supreme court of the territory of Oklahoma, are inconsistent with and repugnant to the schedule of the consti- tution, as well as locally inapplicable; hence they were not extended to nor did they re- main in force in the state. Bohart v. An- derson (Okla.), 20-142. CLOGGING EQtJITY OF REDEMP- TION. See MOBTQAQES AND DEEDS OF Tbust, 12 b. COASTING. Liability of municipality for injuries caused by coasting in streets, see Stbeets and Highways, 5 b. CODE. See Statutes. "EfSect of use of code words in telegrams, see TeLEQBAPHS and TELEPHON3S, 7 a. CODICIIiS. Eevocation of will by codicil, see Wills, 6 b (4). Revival of will by codicil, see Wills, 6 c. Validity and requisites, see Wills, 3 h. CODIFICATION. Effect of verbal changes in codification of statutes, see Statutes, 4 a. Order of arrangement of statutes, see Stat- utes, 4 h. COERCION. Coercion of jury, see Juby, 7 a; Chimin AL Law, 6 r (6). Coercion of employers, see Laboe Combina- tions, 6. Impeaching confession by proof of coercion, see Ceiminal Law, 6 n (11) (c). CLOSE SEASON. See Game and Game Laws. CLOUD ON TITLE. Removal of cloud, see Quieting Title — Re- moval OP Cloud. CLUBS. Licensing social clubs to sell intoxicating liquors, see Licenses, 2 b. Sale of liquors by clubs, see Intoxicating LiQUOES, 5 b. COAL. Burning soft coal as nuisance, see Nuisances, 1 b. Subject of monopoly, see Monopolies and COBPOBATB TEUSTS. COAL HOLES. Liability of municipality for injuries caused by insufficiently covered coal holes, see Stbeets and Highways, 7 o (1). COHABITATION. See Husband and Wife. Distinguished from occasional acts, see FoB- NICATION. COLLATERAL ATTACK. Annexation of territory to city, see Munici- pal COEPOBATIONS, 3. Appointment of personal representatives, see Executors and Administeatoes, 2 f. Decree of adoption, see Adoption of Chil- deen. Discharge in bankruptcy, see Bankeuptcy, 15. Foreign decree of probate, see Wills, 7 e. Franchises, see Cokpobations, 10 a. Judgments, decrees and orders, see Adoption op Childeen; Executobs and Adminis- tbatobs; Insanity; Judgments, 10. Judicial sales, see Judicial Sales, 5. Legal existence of school district, see Schools, 1. Married woman's warrant to confess judg- ment, see Husband and Wife, 1 b. Order of commitment to insane asylum, see Insanity, 2. Title to office; see Judges, 1. CO'LLATEEAL EVIDENCE — COLLISION. 483 COLLATERAIi EVIDENCE. Proof of motive for crime, see Cbiminal Law, 6 m (8). COLLATERAL PROMISES. Promise to answer for debt, default or mis- carriage of another, see Fbadds, Stat- ute OF, 1 a. COLLATERAL SECURITY. See Pledge and Collatebal Secukity. COLLECTION. See Checks, 2 b ; Fines, 1 ; Special oe Lo- cal Assessments, 8; Taxation, 7. Liability of bank for money collected, see Banks and Banking, 6. COLLISION. Collisions between street cars and vehicles or persons in streets, see Stbeet Rail- ways, 8. Jurisdiction in admiralty, see Admiralty. Presumption of negligence from fact of col- lision, see Railroads, 7 c (4). Runaway horse colliding with street car, see Animals, 2 c (2). Failure to take timely precautions. — Where a steam vessel proceeding out of a harbor through a narrow channel at a speed of six miles an hour fails to reverse her en- gines when an incoming vessel is sighted about three hundred feet away and the danger of collision is imminent, but tries to cross the bows of the incoming vessel and is injured in a collision, the outgoing vessel is guilty of negligence causing the accident, and the failure of those on the incoming vessel to hear the signals of the outgoing vessel is not negligence contributing in any material degree to the accident. Rosalind V. Steam- ship Senlac Co. (Can.), 13-445. Display of signal lights. — Where there is no statute, municipal ordinance, port or harbor regulation requiring the displaying of a signal light on a steamer, vessel, or craft at particular times or under given circum- stances, it is not negligence per se not to dis- play such light, but the necessity will be a question of fact to be determined by the jury under the particular facts and circumstances of each separate case. Carscallen v. Cceur d'AIene, etc., Transp. Co. (Idaho), 16-544. Where a vessel is moorpd in a, place of usual and ordinary safety and where but few vessels are plying, and at a point where other vessels are not likely to be running, and out of the way of incoming and outgoing ves- sels, and there is no law or harbor rule or regulation requiring the displaying of a signal light, it is not negligence to fail to display such light. Carscallen t'. Coeur d'AIene, etc., Transp. Co. (Idaho), 16-544. Test of negligence. — In an action for damages caused by a collision between two boats, the test of negligence is not whether the pilot might have done any one of a number of things other than what he did do under the particular oireumstanoes and thereby have avoided the accident, but whether he was negligent and careless in doing the par- ticular thing he did do at the time and under the circumstances as they confronted him. His acts and conduct must be judged in view of the dangers, emergency, and conditions as they surrounded him at the time and place, when and where, the accident occurred. Car- scallen V. Coeur d'AIene, etc., Transp. Co. (Idaho), 16-544. Measure of damages. — In a proceed- ing to recover damages for a vessel totally lost by a collision at a time when she was proceeding from a, home port with cargo under a charter to a foreign port, thence to proceed under the charter to another port, and thence home under the charter, the meas- ure of damages is her value on the date when she would have accomplished the homeward voyage, together with such sum as will repre- sent the profit which would have been real- ized under the three successive charters, less a reasonable percentage for contingencies. The Racine (Eng.), 6-129. Where a combination steamboat and pile driver is shown to have been engaged in regu- lar work and to have had such employment as would have kept it employed until the bay in which it was working froze up, and it ap- pears clearly and satisfactorily what its net earnings were per diem at the time, it is not erroneous in an action for damages caused by a collision to allow the owners of the in- jured vessel to recover the per diem shown to have been its net earnings for the number of days the vessel was being raised and was undergoing repairs. Carscallen v. Cceur d'AIene, etc., Transp. Co. (Idaho), 16-544. Instructions. — In an action to recover damages for a collision between two boats, whereby the plaintiffs' boat was caused to sink, an instruction given by the court of its own motion, that in order to find for the plaintiffs the jury must be satisfied that the defendant caused the plaintiffs' boat " to sink without any fault on the part of the plaintiffs or either of them," while not entirely ac- curate, is sufficiently favorable to the defend- ant on the question of contributory negli- gence, in the absence of any request by the defendant for a correct instruction on that point. Carscallen v. CiEur d'AIene, etc., Transp. Co. (Idaho), 16-544. Failure to hear fog signals. — Not- withstanding the alleged unwillingness of the court to infer negligence from the fact that fog signals proved to have been sounded in the vicinity were not henrd. failure to hear such signals may be sufficient, by itself, to justify a finding that tliose in charge of the vessel concerned were not keeping a good lookout. The Curran (Eng.), 18-526. iS-k AXN. CAS. DIGEST, VOLS. 1-20. COIiONIAIi GRANTS. See Public Lands. COLOR. Subject of trademark, see Tbademabks, Tbade Names, and Unfaie Competi- tion, 1. COLOR OF TITLE. See Adveese Possession. COLORED PERSONS. Charging white person to be a negro as libel- ous, see Libel and Slandek, 2 g. Efifect of litigation between colored persons and negroes, see Constitutional Law, 10. " Improper and disreputable characters " within covenant against subletting, see Landlobd and Tenant, 5 b. Marriage between colored and white persons, see Miscegenation. Race prejudice as evidence of bias, see Juby, 5 b. Right to have negroes on jury, see JuEY, 4 c. Separation of white and colored passengers, see Cabbiebs, 6 (b). Separation of white and colored races in pub- lic schools, see Schools, 4 a. COMBINATIONS. See CoNSPiBACT; Labob Combinations; Monopolies and Coepoeate Tbusts. COMITY. State and federal courts, see Coubts, 2 c ( 1 ) . Enjoining actions in foreign states, see In- junctions, 2 e (1). Recognition of foreign decree of adoption, see Adoption of Childeen. COMMENCEMENT. See Actions. One year contracts to commence in futuro, see Frauds, Statute or, 8 a (2). New action commenced after dismissal of former action, see Limitation of Ac- tions, 4 b (2). COMMENTS. C'omments by counsel during trrnl, see Trial 4. Comments by trial judge on evidence, see Crtmtnal Law. 6 o; Trial, .5. COMMERCE. See Interstate Commerce. Combinations in restraint of trade, see Monopolies and Corporate Trusts. Water as subject of commerce, see Waters and Wateecourses, 3 b (3). COMMERCIAL TRAVELERS. See Agency, 3 b (1), 3 f. COMMISSIONERS. Assessment of damages by commissioners in condemnation proceedings, see Eminent Domain, 9 i. Authority of county commissioners to offer reward for arrest of criminals, see Re- wards. County commissioners, see Counties, 5. Duty of jury commissioner performed by dis- trict judge, see Judges, 3 a. Failure of jury commissioners to take oath of office, see Jury, 4 a. Findings by commissioners as res judicata, see Judgments, 6 d (2). Highway commissioners, see Streets and Highways, 2 c. Investigation of fires by insurance commis- sioners, see Fires, 8. Legislative power delegated to public service commissions, see Constitutional Law, 10. Liability of state commission for costs, see Costs, 3. Power to fix rates of public service corpoi'a- tions as legislative power, see Constitu- tional Law, 20. Powers of railroad commissioners, see Rail- roads, 3 a. Regulation of price of gas by public service commission, see Gas and Gas Com- panies, 4. COMMISSIONS. Compensation of personal representatives, see Executors and Administrators, 13. Deduction of broker's commissions from amount of loan as usury, see Usury, 1 a. Insurance agents' commissions on renewal premiums after termination of agency. see Insurance, 2 b. Real estate agents' commissions, see Brok- ers, 1. COMMITMENT. Bastardy proceedings, see Bastardy. Collateral attack on commitment to in?ane a.sylum. see Insanity, 2. Correction of defective commitment on halecs cmpii.f. see Habeas Corpus, 2. Illegality of appointment of magistrate, see Habeas Corpus. 2. Wayward children, see Infants, 4 c. COMMITTEES — COMMITXIOATION. 485 COMMITTEES. Appointment of legislative committees, see States, 3. Delegation of municipal functions to commit- tees, see Municipal Corporations, 5 f (1). Delegation of power to party committed, see Elections, 1 c. COMMON. Common walls, see Party Walls. COMMON CARRIERS. See Carriers. COMMON EXPERIENCE. Judicial notice of matters of common experi- ence, see Evidence, 1 i. COMMON LAW. 1. In General. 2. To What Extent in Force. Common law marriage, see Marriage, 1 b. Criminal statutes as superseding common law relating to crimes, see Criminal Law, 1. Common law actions, see Actions. Defective statutory bond good as common law bond, see Sitretyship, 2. Effect of statute prescribing punishment for common-law offense, see Criminal Law, 2 b. Implied repeal of common law, see Criminal Law, 2 b. Joinder of common law and statutory causes of action, see Master and Servant, 3 n (2). Recourse of common law in interpreting con- stitution, see Constitutional Law, 26 a. Rule in Shelley's case as part of common law, see Shelley's Case, Rule in. Statutes in derogation of common law, see Statutes, 4 b. 1. In General. Meaning of term in Nebraska stat- utes. — Construction of the term " common law " as used in the Nebraska statutes. Wil- liams V. Miles (Neb.), 4-306. Repeal of declaratory statute. — When a statute that is declaratory of the common law is repealed, the common law is not thereby repealed but remains in force. Harper v. Middle States Loan, etc., Co. (W. Va.), 2-^2. Presumption as to common lair of foreign state. — In an action on a con- tract made in a foreign state, where the laws of the foreign state are not proved, the con- tract must be construed by the principles of the common law; and in the absence of plead- ing and proof to the contrary, the court will presume that the common law in a foreign state is the same as it is in the domestic state. Southern Express Co. v. Owens (Ala.), 9-1143. English decisions as evidence of com- mon law. — The English decisions rendered prior to the war of the Revolution are evi- dence of what the common law is; but in order to be binding here, these decisions must be clear and unequivocal. Ex parte Seville (Fla.), 19-48. 2. To What Extent in Force. In Georgia. — The common law in force prior to May 14, 1776, was adopted as the law of the state of Georgia by the Act of Feb. 25, 1784, except where modified by stat- utes or not adjusted to the conditions or sys- tem of government existing in that state. Harris v. Powers (Ga. ), 12-475. In Indiana. — The common law, together with acts passed by the British Parliament in aid thereof, prior to the fourth year of the reign of James I., is, by adoption, in force in the state of Indiana in so far as applicable and not inconsistent with the state or federal constitutions or statutes. Sopher v. State (Ind.), 14-27. In Nebraska. — By statute in Nebraska, so much of the common law of England as is applicable and not inconsistent with the con- stitution of the United States or the consti- tution and statutes of the state is in force in that state. Kinkead v. Turgeon (Neb.), 13-43. In New York. — The adoption by the people of the state of New York of such parts of the common law as were in force on April 20, 1777, does not compel the courts to in- corporate into the system of jurisprudence of the state principles which are inapplicable to cases arising within the state and incon- sistent with a just consideration of their de- mands, especially where no vested rights are involved. Brookhaven v. Smith (N. Y.), 11-1. In Tesas. — Since the passage of the Texas statute adopting the common law of England " so far as it is not inconsistent with the constitution and laws of this state," the common law is as much a rule of decision in Texas as in those states wherein it was the law from the beginning of their political ex- istence. Swayne v. Lone Acre Oil Co. ( Tex. ) , 8-1117. In West Virginia. — Svich parts of the common law as are not displaced by existing statutes and have not been expressly repealed are still in effect in West Virginia. Harper V. Middle States Loan, etc., Co. (W. Va.), 2-42. COMMUNICATION. Communication to person defamed as publi- cation of libel, see Libel and Slander. 1 a. 48fi ANN. CAS. DIGEST, VOLS. 1-20. Effect of eommunication between court and jury, see Jijbt, 7 b. Privileged communications, see Libel and Slander; Witnesses. COMMUNITY PROPERTY. See Husband and Wife, 2 h. Legality of religiovis society having commu- nity property, see Eeligious Societies. COMMUTATION. See Paedon, Reprieve and Amnesty. Good behavior as reducing length of sentence, see Cbiminal Lav?, 7 a ( 1 ) . COMPARATIVE INJURY. As affecting right to injunction, see Injunc- tions, 1 b. COMPARATIVE NEGLIGENCE. See Negligence, 9. COMPENSATION. Abutting owner's right to compensation for destruction of shade trees in streets, see Streets and Highways, 3 d. Award of compensation in bill for specific per- formance, see Specific Peefobmance, 4. De facto officers, see Public Opficebs, 8. Guardian ad litem, see Infants, 3 f ( 3 ) . Illegal agreement as to compensation of deputy sheriff, see Sheriffs and Con- stables, 3. Jurors, see Jury, 4 e. Members of city council, see Municipal Cor- porations, 12 c. Officers and agents of corporations, see Cor- porations, 7 c. Owner of property taken for public use, see Eminent Domain, 7. Partner's right to compensation for services to firm, see Partnership, 4 a. Public officers generally, see Public Officers, 6. Real estate agents, see Brokers, 1. School teachers, see Schools, 7 d. Salvage services, see Salvage. Servants, see Master and Servant, 1 d. Secretary of state acting as governor, see States, 2 a. Surviving partner's right to compensation for services, see Partnership, 7. Particular persons and officers, see Attorneys AT Law, 5; Clerks of Courts; Execu- tors AND ADMINISTKATORS ; .lUDGES, 2; Justices op the Peace, 5; Physicians AND Surgeons, 4; Witnesses, 1. COMPETENCY. See Infants; Insanity. Jurors, see Jury, 5. Parties to contracts, see Conflict of Laws, 3 c ( 3 ) ; Contracts, 2 a. Testators, see Wills, 4. Witness, see Witnesses, 3. COMPETITION. Preventing competition in trade, see Monopo- lies AND COEPORATB TRUSTS. COMPILATION. See Statutes. COMPLAINTS. See Indictments and Informations; Plead- ing, 3. COMPOSITIONS. Effect as discharge in bankruptcy, see Bank- ruptcy, 14. Effect of preferences, see Bankbuptcy, 10. COMPOUND INTEREST. See Usury, 1 f. • COMPOUNDING DEBTS. Power of guardian to compound debts of ward, see Guardian and Ward, 2. COMPOUNDING OFFENSES. Validity of collateral contract. ^ Where a mortgage is given to secure a valid existing indebtedness between the parties, the indebtedness is a sufficient consideration, and the mortgage is enforceable notwithstanding the fact that it is induced by the promise of the mortgagee, made before the commence- ment of any prosecution, not to prosecute the mortgagor for the violation of a labor eon- tract if the mortgage shall be paid within a certain time. Bankhead v. Shed (S. Car.). 15-308. Sufficiency of indictment. — A con- viction for compounding a felony cannot be sustained where the indictment fails to allefje that the person with whom the defendant i^i alleged to have made the corrupt agreement was guilty of the felony charged against him. State V. Hodge (N. Car.), 9-563. COMPOUNDS. Medical compounds as alcoholic liquors, see Intoxicating Liquors, 2. COMPEOMISE, ETC. — CONCUKKEKT JUEISDiCTiON. 487 COMFBOMISZ; AND SETTLEMENT. Agent's authority to compromise disputes, see Agency, 3 a ( 2 ) . Attempt to compromise criminal charged as evidence of guilt, see Cbiminal Law, 6 n (11) (a). Dismissal of prosecution pursuant to com- promise as termination, see Maijcious Pbosectjtion, 1 d. Power of county commissioners, see Counties, 5 a. Power of guardian ad litem to compromise claims, see Infants, 3 f (4). Power of guardian to compromise claims against ward, see Guabdian and Wabd, 2. Power of insurance agents to compromise claims for premiums, see Insxjkancb, 2 b. Power of parent to compromise cause of ac- tion in favor of child, see Pabent and Chuj), 1 d. Proof of attempt to compromise, see Bbeaoh OP Peomise op Mabeiage, 2 e. Suppression of facts. — Where there is no such relation of trust and confidence between the parties to a compromise and set- tlement as imposes upon one an obligation to give full information, and no artifice for a fraudulent purpose is employed which lulls the other into repose, the latter cannot, not- withstanding his failure to make any inquiry or investigation, afterwards complain that the former did not disclose information in his possession. Multnomah Coimty v. Dekum (Oregon), 16-933. There is no such fiduciary relation between a coimty and an owner of property which has been sold to the county for taxes, and where the complaint in a proceeding to set aside a, compromise and settlement whereby the coun- ty surrendered the tax certificates to the owner does not negative the county's knowl- edge of the aflarmanee of a decree dismissing a suit for tne cancellation of such certificates, the owner's failure to inform the county of the afBrmance of such decree does not war- rant the setting aside of the compromise and settlement. The county, having been a. party to such suit, is chargeable with knowledge of the decree which had been rendered and is bound to know what the record discloses. Multnomah County v. Dekum (Oregon), 16-933. Admissibility of evidence. — Where it does not appear that a defendant made any offer to compromise or authorized any one to do so for him or knew that such offer was made, evidence of a compromise is properly rejected. Marks v. Hardy (Ky.), 4-814. Consideration. — A denial by a street railway company of any liability to a city on account of the cost of repaving the streets occupied by the railway, and the promise by the company to make certain changes in its tracks, constitute a sufl!icient consideration to support an agreement by the city to accept from the company a less amount than was claimed in full satisfaction of the obligation of the eompanj for street paving. McKenna V. OhftriottwiTille, ete., R. Co. (Va.), 18-1027. COMPTROLLER OF 01TBRENCY. False reports by national banks, see Banks and Banking, 9 b. COMPULSION. See Dubess. Recovery of payments made under compul- sion, see Payment, 4 b. COMPXTLSOBY EDUCATION. See Schools, 4 c. COMPULSORY PARTITION. See Paetition, 2 b. COMPUTATION. See Inteeest, I ; Time. Computing time imder statute of limitations, see Limitation op Actions, 4. Interest as affected by computation of time, see UsuEY, 1 g. CONCEALED WEAPONS. See Weapons. CONCEALMENT. Concealment by accused as evidence of guilt, see Ceiminal Law, 6 n (4). Concealing cause of action as affecting time for commencement of suit, see Limita- tion op Actions, 3 ; 4 b ( 5 ) . CONCLUSIONS. Conclusions in pleadings, see Indictments AND InFOEMATIONS, 3; INJUNCTIONS, 3 c ( 1 ) ; Pleading, 3 a ; Raileoads, 7 b. Conclusions of witness, see Evidence, 8. Striking out answer of witness as stating mere conclusion, see Witnesses, 4 f. CONCLUSIVENESS. Effect of judgment, see Judgments, 6. CONCURRENT CAUSES. See Negligence, 4. CONCURRENT JURISDICTION. Waters dividing atatee, sea States, 1. 488 ANN. CAS. DIGEST, VOLS. 1-20. OONCUKBENT NEOI^IOENCX:. Right to comment on conduct of public officer, see Pbivact, Right or. See Cabbiebs, 4 i (3) ; Nequgence, 4. Trial judge, see Tbial, 5. CONCUBItENT REMEDIES. CONFEDERATE STATES. Mandamus and injunction, see iviANDAMUS, 1. Exemption of Confederate soldiers and sailors from occupation taxes, see Licenses, 3. CONCUSSION. CONFEDERATION. Liability for concussion caused by blasting, see Explosions and Explosives, 4. See Conspibact. CONDEMNATION PROCEEDINGS. See Eminent Domain. CONFESSION AND AVOIDANCE. See Pleading, 4 a (5). CONDITIONAL BEQUESTS. See Wills, 7 c (4). CONFESSION OF JUDGMENTS. See Judgments, 15. CONDITIONAI. GIFTS. See Wills, 9 f. CONDITIONAL SALES. See Sales, 8. CONDITIONS. See Bonds; Covenants. Breach of conditions in insurance policy, see Insubance, 3 c (3)., Conditional pardons, see Pabdon, Refbieve, AND Amnesty, 2 b. Conditions precedent to action for conversion, see Teovee and Conversion, 5 a. Effort to purchase as condition precedent to condemnation proceeding, see Eminent Domain, 9 d. Implied conditions as to termination of con- tract of employment, see Mastee and Sebvant, 1 c (2). Inalienability of donation for pious uses, see Chabities, 4. Terms and conditions of railroad ticket, see Cabbiebs, 6 c (4). Use of property conveyed, see Deeds, 3 d. CONDONATION. As affecting right to divorce, see Divorce, 3. CONDUCT. Counsel during trial, see Tbial, 4. Inference of guilt from conduct of accused, see Ceiminal Law, 6 n (4). Indecent conduct as nuisance, see Nuisances 2 b. Jurors, see Jury, 7. CONFESSIONS. See Cbiminal Law, 6 n (11). Instructions as to weight to be given to con- fessions, see Cbiminal Law, 6 q (7). CONFIRMATION. See Judicial Sales. Appointment of public oflScers subject to con- firmation, see Public Ofpicebs, 3 a (2). Verdict on inquisition of insanity, see In- sanity, 3. CONFISCATION. Effect of fixing price of gas, see Gas and Gas Companies, 4 a. CONFLICTING PROVISIONS. See Statutes, 4 h. CONFLICT OF LAWS. 1. Public Policy as Affecting Appli- cation OF FoBEiGN Laws, 489. 2. Immovables, 489. 3. Contracts, 489. a. In general, 489. b. Construction, 489. c. Validity, 489. (1) In general, 489. (2) Usurious contract, 490. (3) Capacity to contract, 490. d. Particular contracts, 490. ( 1 ) Contracts relating to realtv. 490. ■ (2) Bills and notes, 490. (3) Insurance contracts, 490. 4. Mabbiage and Divobce, 490. CONFLICT OF LAWS. 489 5. Wills, 491. a. Wills of personalty, 491. b. Wills of realty, 491. 6. Torts, 491. 7. Penalties and Foefeitubes, 491. 8. Remedies, 491. 9. Pleading and Proof, 491. Inheritance of property, see DESCENT AND Distribution. Law governing charities, see Charities, 2. Law governing fixtures, see Fixtures, 2. Limitation of carrier's liability, see Cabbiers, 4f (1). Place of contract of telegraph company, see Telegraphs and Telephones, 7 a, 7 f. Statutes of limitation, see Limitation op Actions, 2. Survival of action for death by wrongful act, see Abatement and Revival. Validity of promissory notes, see Bills and Notes, 11 h. 1. Public Policy as Affecting Application OF Foreign Laws. Removal of disabilities of married women. — The general legislative policy of Wisconsin as to relieving married women from common-law disabilities to contract, and other considerations, negative the idea that full right in that regard would involve anything inherently bad and would warrant a refusal by the courts of Wisconsin to enforce the foreign contract of a married woman as ac- commodation maker of a promissory note on grounds of public policy. International Har- vester Co. [•. McAdam (Wis.), 20-614. Accommodation notes made by mar- ried tromen. — The contract of a married woman as accommodation maker of commer- cial paper not having been judicially declared against the public policy of the state where it was sued, nor prohibited by legislation as pernicious, is enforceable in the courts of such state in case of its having been made in another state where such contracts are valid, unless such contrMts are, in fact, in- herentlv bad. International Harvester Co. v. McAdam (Wis.), 20-614. 2. Immovables. The division of property into movable and immovable is called into operation only when the English courts have to determine rights between a domiciled Englishman and a person domiciled in a country which does not adopt the English division of property into real and personal. It does not apply where the law is the same in the two countries. Per Far- well, L. J., In re Hoyles (Eng.), 20-713. Iilens on real estate. — Liens on real estate and on immovables are governed by the law of the situs of the things on which the liens are sought to be enforced; and a. lien on the roadbed, buildings, and equipment of a railroad is a lien on the immovables within this rule, though the lien also extends to the personal property and to the corporation's franchise, as the railroad must be considered as an entirety, ilidland Valley R. Co. v. Moran Bolt, etc., Co. (Ark.), 10-372. 3. Contracts. a. In general. "Place of contract" defined. — The intent as to the place of the contract in any case is generally determinable by presump- tion of fact that the place of the contract was intended to be that where it was actually made, unless the place of performance was elsewhere, and then the presumption is that the latter was intended; but such presump- tions are rebuttable. The term " place of the contract " means the place mutually intended for reference as to validity and interpretation. International Harvester Co. v. McAdam (Wis.), 20-614. Place of contract governed by intent of parties. — As to mere personal con- tracts, their validity and interpretation is referable to the lex loci contractus, unless the parties intended they should be governed by the lex loci solutionis or that of some other place, the real place of the contract be- ing a matter of mutual intention, except in exceptional circumstances evincing a purpose in making the contract to commit a fraud on the law. International Harvester Co. v. Mc- Adam (Wis.), 20-614. Place of contract fixed by agreement. — A building and loan association is domi- ciled in and subject to the laws of the juris- diction in which its principal office is located, and in which its books are kept and its busi- ness is transacted, although its charter was obtained in another state; and a contract with the association, to be performed in the state of its domicil, by parties who do not reside in the state granting the charter, is subject to tlie usury laws of its domicil, not- withstanding a stipulation in the contract that it shall be governed- by the laws of the state granting the charter of the association. Washington Nat. Bldg., etc., Assoc, r. Pifer (D. C), 14-734. Performance in several jurisdictions. Where a single contract is to be performed in different jurisdictions, the law of each jurisdiction enters into the essence of the per- formance in the respective jurisdictions. Midland Valley R. Co. v. Moran Bolt, etc., Co. (Ark.), 10x372. b. Construction. A building and loan contract, payments under which are to be made at the home office of the corporation in another state, is to be construed according to the laws of the latter state, as the place of performance. Colum- bian B. & L. Assoc. V. Rice (S. Car.), 1-239. c. Validity. (1) In general. A contract valid by the law of the place thereof is valid everywhere. International Harvester Co. v. McAdam (Wis.). 20^614. A contract made in one jurisdiction to be 490 ANN. CAS. DIGEST, VOLS. 1-20. performed in another is regulated by the law of the place of performance as to the nature, validity, interpretation, and effect, unless a contrary intention appears. Brown v. Gates (Wis.), 1-85. (2) Usurious contract. See also Ustjby, 1 b. Where a loan is made by a building and loan association organized in Missouri, but negotiations are had with an agent in Kansas and the bond and mortgage are executed in Kansas by residents thereof, and the mort- gage is on land in Kansas and the money borrowed is paid back to the agent in Kan- sas, and the recitals in the mortgage as well as the actions of the parties indicate an in- tention to treat the transaction as a Kansas contract, the contract is governed by the usury laws of Kansas. Koyal Loan Assoc, v. Forter (Kan.), 1-794. (3) Capacity to contract. Married women. — The capacity of a married woman to contract is governed by the law of the place where the contract is made, and not by the place of her domicil. Forsyth v. Barnes (111.), 10-710. The rule that the law of a place of a con- tract governs, as to its validity and inter- pretation, applies in the capacity, including that of married women, to contract. Inter- national Harvester Co. v. McAdam (Wis.), 20-614. d. Particular contracts. ( 1 ) Contracts relating to realty. Contract secured by mortgage on land, — A contract made and to be per- formed in a certain state and secured by a mortgage on lands in that state is a contract of that state and subject to interpretation by and enforcement under its laws. Stack v. Detour Lumber, etc., Co. (Mich.), 14-112. A contract with a building and loan asso- ciation is ordinarily governed by the law of the place of performance, and this rule is not changed by the fact that the contract is se- cured by a mortgage on land situated in an- other state. Washington Nat. Bldg., etc., Assoc. V. Pifer (D. C), 14-734. Contract to give mortgage. — An English contract to give a mortgage on for- eign land, although the mortgage has to be perfected according to the lex situs, is a con- tract to give a mortgage which, inter partes, is to be treated as an English mortgage sub- ject to such rights of redemption and other equities as the law of England regards as necessarily incident to a mortgage. British So. Africa Co. v. De Beers Consol. Mines (Eng.), 20-461. (2) Bills and notes. Validity of notes made on Sunday. — Promissory notes executed on Sunday in ons jurisdiction and made payable in anothftr where the law makes void executory con- tracts for the payment of money made and delivered on Sunday, are not enforceable, since the law of the place of payment pre- vails. Brown v. Gates (Wis.), 1-85. Transfer of bills and notes. — The rule that the validity of the transfer of chat- tels must be governed by the law of the country in which ,the transfer takes place applies to the transfer of bills or checks by indorsement. Embiricos v. Anglo-Austrian Bank (Eng.), 2-703. Intention of parties. — The fact that a note is made payable at the domicil of the payee is persuasive evidence of the intention of the parties that the contract should be governed by the law of the place of payment. Brown v. Gates (Wis.), 1-85. (3) Insurance contracts. See also Instjbance, 3 b. Parties in. different jurisdictions. — Where the parties to an insurance contract are in different jurisdictions, the place where the last act is done which is necessary to the validity of the contract is the place where the contract is entered into. McElroy v. Metro- politan Life Ins. Co. (Neb.), 19-28. Forfeiture for non-payment of pre- miums. — Insurance business transacted in this state by New York insurance companies without any provision that the New York laws shall govern is not subject to the pro- vision of the New York statute requiring a notice to be mailed to the policyholder in that state as a condition of forfeiture for nonpayment of premiums. McElroy v. Met- ropolitan Life Ins. Co. (Neb.), 19-28. 4. Mabblvge and Divobce. Capacity of parties. — The capacity or incapacity of parties to marry depends on the law of the place where the marriage is celebrated and not on that of the domicil of the parties. In re Chace (R. I.), 3-1050. Dissolution by absence of spouse. — The Tennessee statute providing that a first marriage shall be regarded as dissolved for the purpose of enabling the contracting of » second marriage, " if either party has been absent for five years and is not known to the other to be living," has no extraterritorial force, and therefore cannot in any way change the status of a husband who has absented himself from the domestic state and acquired a domicil in a foreign state. Snuffer v. Karr (Mo.), 7-780. If the Tennessee statute providing that a first marriage shall be regarded as dissolved for the purpose of enabling the contracting of a second marriage, " if either party has been absent for five years and is not known to the other to be living," is valid at all, it must be limited to the confines of the domestic state, and must be construed there to operate only for the benefit of the injured and in- nocent party to the marriage contract, or at least of one shown to have acted with the best of faith. Snuffer v. Karr (Mo.), 7-780. CONFLICT OF LAWS. 491 5. Wills. a. Wills of personalty. See also Wills, 3 b. A will bequeathing personal property is valid if it is executed according to the law of the place where the testator is domiciled at the time of his death, though it does not conform to the requirements of the law of the place where it was executed and where the testator was domiciled at the time of its execution. Bc-.umont's Estate (Pa.), 9-42. b. Wills of realty. See also Wills, 3 b. A will conveying real property executed in a foreign state by a citizen of that state, and attested by only two witnesses, which is sufS- cient under the laws of that state, cannot be probated in Georgia so far as the realty is concerned, nor can it be used as a conveyance of the real estate devised. Castens v. Mur- ray (Ga.), 2-590. A will disposing of real property must be governed as to its execution, sufficiency, and construction according to the intent of the testator, by the laws of the state where the property is situated, and not by the laws of a foreign country or sister state where the maker may have resided at the time of its execution. Peet v. Peet (111.), 11-492. The validity of a will made in Louisiana by a citizen of Louisiana, bequeathing real estate situated in Mississippi, must be tested by the laws of Mississippi. Hasting v. Martin (La.), 3-861. A devise of real estate is governed by the lex loci rei sitoe, and therefore the question whether a vested or a contingent remainder is created by a will executed at the testator's domicil in Pennsylvania devising real estate in Massachusetts is to be determined with reference to the law of Massachusetts. Jacobs V. Whitney (Mass.), 18-576. The validity of the provisions of a will re- lating to the holding, investment, accumula- tion, and application of property devised to a corporation is for the determination of the courts of the domicil of the corperation. St. John V. Andrews Institute (N. Y.), 14-708. 6. TOETS. Character of act in general. — The general and almost universal rule is that the character of an act as lawful or unlawful must be determined by the law of the country where the act is done. American Banana Co. V. United Fruit Co. (U. S.), 16-1047. Injuries to servant by negligence of master. — In an action for negligence by a servant against his master, the contract of employment having been entered into in another state and the employment carried on there, and the act complained of as negligent committed there, the liability of the defend- ant must be determined by the laws of such latter state. Fogarty v. St. Louis Transfer Co. (Mo.), 1-136. In an action against a master to recover damages for personal injuries sustained in a foreign state by a servant during the course of his employment there, the law of the for- eign state controls in determining the ques- tion whether the servant is entitled to re- cover, where the contract of employment was made in that state. Christiansen v. William Graver Tank Works (III.), 7-69. In an action against a master to recover damages for a personal injury sustained in a foreign state by a servant during the course of his employment there, the defendant may, under the general issue raised by his plea of not guilty, introduce in evidence as part of his defense the law of the foreign state, in so far as it is material to show that he is not liable for the injuries sustained by the plain- tiff. Christiansen v. William Graver Tank Works (111.), 7-69. Fellow servants. — In the absence of a state statute on the subject, the federal court regards the question who are fellow servants as one of general law to be determined by reference to all the authorities and considera- tion of the principles underlying the relation of master and servant, and not as a question of local law to be settled by the decisions ef the highest court of the state in which the cause of action has arisen. Jones v. South- ern Pacific Co. (U. S.), 7-256. Delay in delivery of telegram. — The addressee of an interstate telegram may re- cover damages for mental anguish alone, in an action brought by him in the state where the telegram was delivered, for negligent delay in delivery, if the laws of that state permit such recovery, though no such re- covery is permitted by the laws of the state whence the telegram was sent, and though the negligence gccurred in the latter state. Howard V. Western Union Tel. Co. (Kv.), 7-1065. ^ The fact that damages for mental anguish alone are not recoverable under the laws of a state from which a telegram was sent vrill not preclude the recovery of such damages in the state to which the message was directed, where the laws of the latter state permit such recovery, particularly it it appears that the negligence complained of occurred mainly in the state where the action is brought. Howard v. Western Union Tel. Co. (Ky.), 7-1065. ^ ' Where a telegram is sent from one state to another for delivery in the latter, the law of the place of delivery governs as to the right of the addressee to recover damages for mental anguish caused by delay in the de- livery of the telegram. Western Union Tel. Co. V. Hill (Ala.), 19-1058. Wrongful attachment. — Under the Iowa code, providing that in an action for wrongful attachment, actual damages may be recovered in an action on the bond if the writ was wrongfully sued out without prob- able cause, and if sued out maliciously, ex- emplary damages may also be recovered, in- jury to credit is too remote and speculative to form an element of damage, whether the action be on the bond or on the case, and the fact that the cause of action arose by the 492 ANN. CAS. DIGEST, VOLS. 1-20. suing out of the attachment in another state in which the injury to credit is a proper element of damage does not aflFect the appli- cation of this rule. Dorr Cattle Co. v. Des Moines Nat. Bank (Iowa), 4-519. Death by wrongful act. — The law of the state where the injury and death occurred governs in determining whether the right of action of the widow of a man whose death was caused hy the wrongful act of another is defeated by an agreement by the decedent to waive liability for his injury or death. Weir V. Eountree (U. S.), 19-1204. 7. Penalties and Foefeitubes. The courts of one jurisdiction will not en- force the penal statutes of another. Raisor V. Chicago, etc., K. Co. (111.), 2-802. • A Missouri statute providing for the for- feiture of a fixed sum as a penalty for negli- gence without proof of damages is a penal statute and will not be enforced by the Illi- nois courts. Raisor v. Chicago, etc., R. Co. (111.), 2-802. 8. Remedies. The statutes of the state wherein an action upon a foreign judgment is brought control as to what character of set-off, if any, may be pleaded. Leathe v. Thomas (111.), 4-79. The decisions of a court as to the meaning of the substantive provisions of a statute of the domestic state are binding on the courts of other jurisdictions, but the mode of pro- cedure and the practice in giving the reme- dies provided by such statute depend on the law of the place where the remedy is sought. Clark V. Knowles (Mass.), 2-26. The affording of remedies in one country for enforcing a contract which would not be valid if made in such country, but is valid by the law of the place where it was made, depends on judicial comity of nations; and this comity is uniformly extended, unless such contracts as the one sought to be en- forced are contrary to the public policy of the country of the forum. International Harves- ter Co. V. McAdam (Wis.), 20-614. The law as to manner of performance of a contract is referable to the place of perform- ance, while remedies for nonperformance are referable to the law of the forum where per- formance is sought to be enforced. Inter- national Harvester Co. v. McAdam (Wis.), 20-614. 9. Pleading and Peoof. Place of making contract. — In an action on an oral promise to indemnify against loss by reason of suretyship on an official bond, which promise is void under the statute of frauds of the forum, the plaintiff can derive no benefit from the fact that the promise is valid under the law of a foreign state where the bond was executed, if his declaration does not aver that the promise was made in the foreign state. Craft r. Lott (Miss.), 6-670. Law of place of contract. — In an action on a contract made in a foreign state, the doctrine of lex loci confrarlu/s can be in- voked only by appropriate pleading and proof of the laws of the foreign jurisdiction, and the court cannot take judicial notice of the decisions of the courts of the foreign state. Southern Express Co. v. Owens (Ala.), 9-1143. CONFORMITY. Amendment to conform to proofs, see Plead- ing, 9 e (1). Conformity of judgment in pleadings, sec Judgments, 3. CONFRONTING WITNESSES. Right of accused to confront witness, see Cbiminal Law, 6 c (6). CONFUSION OF GOODS. See Attachment, 6 d; Executions, 4. Deposit of grain in warehouses, see Wabe- HOUSES, 1. Mingling collections with general assets of bank, see Banks and Banking, 6. Remedies — replevin. — Where the identity of specific articles is lost by the wrongful act of another taking possession thereof, and commingling the same with his own of the same nature and character, the owner may recover in replevin from the mass a quantity equal to the amount he owns, without identifying the property as his orig- inal property. Nashville Lumber Co. v. Bare- field (Ark.), 20-968. Extent of recovery. — A plaintiff in re- plevin may show by facts that the defendant has taken his property and has commingled it with property of his own of the same na- ture and character, and by facts trace the possession thei'eof to the defendant, and re- cover from the mass a quantity equal to the amoimt he owns. Nashville Lumber Co. »". Barefield (Ark.), 20-968. CONGRESS. Powers of, see Constitutional Law, 3. CONJECTURE. Conjectural testimony, see Eminent Domain- CONJUNCTIVE WORDS. See Indictments and Infoemations, 4^. CONNECTING CARRIERS. See Cabbiebs. CONNIVANCE. Defense to divorce, see Divobce, 3 c. COXSANGF I XITY — CONSORTIUM. 493 CONSANGUINITY. Inference of fidiici.uy relntion, sec FBAtrD and Deceit, 4. Belationship to parties as disqualifying judge, see Judges, 4 b (2). CONSENT. Accepting jurisdiction of federal court, see Eemoval of Causes, 5. Arrest by consent, see False Impbison- MENT, 1. Assignment or subletting by lessee, see Land- lord AND Tenant, 3 c (2). Carnal knowledge of girl under age of con- sent, see Rape, 1 d. Killing with consent of victim, see Homi- cide, 1. Marriage of minor without parent's consent, see Mabbiage, 1 b. Physician operating without consent of patient, see Physicians and Sdb- QEONS, 6 b. Property owner's consent to granting of liquor license, see Intoxicating LiQUOBS, 4 f. Want of consent as element of rape, see Rape, 1 d. Want of consent as element of robbery, see Robbebt, 1. CONSEQUENTIAX INJITBT. Necessity of pleading, see Damages, 10 b. CONSERVATION. Natural resources of state, see Mines and Minerals, 9. CONSIDERATION. See Bills and Notes, 2; Contbacts; Guar- anty, 2. Accepting part of sum due in full satisfac- tion, see Payment, 3. Adequacy of consideration for option, see Vendob and Pubchaseb, 1 e. Assignment of ground rent, see Ground Rents, 2. Employment of real estate broker, see Bbokebs, 1 a. Excessiveness of consideration as fraud, see Fbaud and Deceit, 1. Failure of consideration as defense to specific performance, see Specific Pebfoem- ANCE, 5 c. Forbearance to sue on gambling debt as new consideration, see Gaming and Gaminq Houses. Inadequacy of consideration as ground for refusing specific performance, see Spe- cific Peeformancb, 2, 3 f ( 10 ) . Inadequacy of price as ground for setting aside sale of pledged property, see Pledge and Collateral Secubity, 5. Inadequacy or excessiveness of consideration as fraud, see Fraud and Deceit, 1. Marriage as consideration for mutual release of marital rights in property of parties, see Husband and Wife, 2 a (2). Mortgage for antecedent debt, see Mortgages AND Deeds of Teust, 5. Necessity and sufficiency to support contract, see Contbacts, 2 d. Oral consent to sublet by lessee, see Land- LOBD AND Tenant, 3 c (2). Parol evidence to prove consideration for written contract, see Evidence, 14 d. Payment of rent as consideration for option to lessee to purchase premises, see Landloed and Tenant, 3 f. Marriage promise, see Breach of Pbomise of Mabbiage. Promise to pay debt discharged in bank- ruptcy, see Bankruptcy, 16. Re-employment as consideration for release from liability for personal injuries, see Release and Discharge, 2. Recital in memorandum required by statute of frauds, see Fbauds, Statute of, 3 e (3). Return of consideration as condition prece- dent to avoidance of release, see Re- lease AND Discharge, 5 b. Return of consideration as essential to dis- affirmance of infant's contract, see In- fants, 2b (5). Sufficiency to support compromise, see Com- promise and Settlement. Transfer of promissory notes, see Bills and Notes, 11 c. Void patent as consideration for note, see Patents, 2. Want of consideration as ground for restrain- ing enforcement of judgment on con- tract, see Injunctions, 2 e (2). CONSIGNEE. See Cabbiers, 4. Persons receiving goods from railroad cars as licensees on railroad grounds, see Railroads, 8 e (3). CONSOLIDATION. See Actions; Cobpoeations, 2 f. Allowance of costs on consolidation of actions, see Costs, 9. Consolidating city and town, see Municipal Cobpoeations, 3. Consolidating warrants for violating Sunday laws, see Sundays and Holidays, 1 c. Effect of consolidation ai to amount in con- troversy, see Appeal and Ebbob, 3 b. Power of churches to unite, see Religious Societies. Rights and powers of consolidated corpora- tion, see Cobpoeations, 4 a. See Actions. CONSORTIUM. Loss of consortium, see Husband and Wife, 6. 494 ANN. CAS. DIGEST, VOLS. 1-20. CONSPIRACY. 1. Ckiminal Conspieacy, 494. a. What constitutes, in general, 494. b. Conspiracy to defraud United States, 494. c. Who may be guilty, 495. d. State of limitations, 495. €. Indictment, 495. f. Evidence, 495. g. Instructions, 496. 2. Civil Liability, 496. Conspiracy to burn insured property as in- crease of risk, see Instjeance, 5 g (7). Conspiracy to do acts in foreign country, see Intebnatiokal Law. Declarations of co-conspirators in evidence, see Homicide, 6 a (1). Inciting defendant to incestuous act as de- fense, see Incest, 3. Inducing breach of contract, see Inteefeb- ENCE with Contract Relations, 1. Killing by co-conspirator, see Homicide, 3 b. Mutual agreement to commit suicide, see Suicide. Right to organize in pursuit of trade or call- ing, see Labor Combinations, 4. 1. Criminal Conspiracy. a. What constitutes, in general. Definition. — A criminal conspiracy is a confederation to do something unlawful either as a means or an end. State v. Eastern Coal Co. (R. L), 17-96. A conspiracy is a combination of two or more persons to accomplish by concerted ac- tion a criminal or unlawful purpose, or a lawful purpose by criminal or unlawful means. J. F. Parkinson Co. v. Building Trades Council (Cal.), 16-1165. Overt act. — The gist of the offense of conspiracy at common law is the combination, and therefore no overt act pursuant to it need be proved. Knight, etc., Co. v. Miller (Ind.), 18-1146. Combination to acquire po-nrer. — A charge of conspiracy to exercise a certain power presupposes the acquisition of the power, but the gravamen of the ofifense con- sists in combining to acquire the power. Prosecutions for conspiracy are preventive rather than curative. State v. Eastern Coal Co. (R. L), 17-96. Acts lawful when performed by in- dividual. — Whatever a person may law- fully do, a number of persons may unite with him in doing without rendering themselves liable to the charge of conspiracy, provided the means employed be not unlawful. State V. Eastern Coal Co. (R. I.), 17-96. Inducing husband to desert wife. ^ Under the Wisconsin statutes it is a crim- inal conspiracy for several persons to combine for the purpose of inducing maliciously a husband to desert his wife, and of prevent- ing maliciously the wife from performing her marital duties and enjoying her marital rights. Randall v. Lonstorf (Wis.), 5-371. Intimidation of employer. — An in- dictment for a criminal conspiracy charging that the defendants, pursuant to an agree- ment, notified the prosecutor that he could not be considered in sympathy with organized labor if be employed other than union men, and that upon his refusal to discharge non- union men the defendants published in a newspaper a statement that the prosecutor had been placed on an unfair list by the vinion, is properly quashed as charging no act amounting to a conspiracy. State r. Van Pelt (N. Car.), 1-495. Preventing exercise of trade or call- ing. — The members of an association of theatre managers who exclude by their volun- tary individual action a dramatic critic from their places of amusement, pursuant to a statement made at a meeting of their associa- tion by one of the members thereof disavowing any desire to interfere with dramatic criti- cism but calling the attention of the members to the fact that the critic in question had made certain scurrilous, libelous, and malic- ious attacks on the members of the associa- tion, affecting their personal integrity and holding their religion up to ridicule, and sug- gesting that such continued attacks demanded action for the protection of their business interests, are not guilty of a violation of a penal statute directed against a conspiracy to prevent another from exercising a lawful trade or calling. People ex rel. Burnham v. Flynn (N. Y.), 12-^20. b. Conspiracy to defraud United States. Obtaining cotton crops reports. ^ In order to establish a conspiracy to de- fraud the United States, under section 5440 of the revised statutes (2 Fed. St. Ann. 247), it is not necessary to allege or prove that the acts constituting the conspiracy were intended to or did result in a direct pecuniary loss to the government. Assuming that the statis- tical work of the department of agriculture in preparing cotton crop reports is the exer- cise of a function within the purview of the constitution, it follows that any conspiracy which is calculated to obstruct the work of the department, and destroy the value of its operations and reports as fair, impartial, and reasonably accurate, such as a conspiracy to falsify such reports or to obtain knowledge of their contents in advance for speculative purposes, would result in defrauding the United States by depriving it of its right and duty of promulgating or diffusing the infor- mation so officially acquired in the way and at the time required by- law or departmental regulation, and, therefore, would constitute a conspiracy under the statute. Haas v. Hen- kel (U. S.), 17-III2. Bribing official to give information regarding cotton reports. — A conspiracy to bribe an official or employee of the de- partment of agriculture to give out advance information regarding the contents of the cotton crop reports of the department, in vio- lation of a department rule, constitutes a con- spiracy to defraud the United States, even though there is no statute whieh prohibits the CONSPIRACY, 495 giving out of such information in advance. Haas V. Henkel (U. S.), 17-1112. c. Who may be guilty. Corporations. — A corporation may be guilty of the crime of conspiracy. State v. Eastern Coal Co. (R. I.), 17-96. d. Statute of limitations. Overt acts within statutory period. — Where a conspiracy has been formed and an overt act has been done in execution of it more than three years before the filing of an indictment, a prosecution for that conspiracy and overt act is barred by the statute of limi- tations; but where there is proof that subse- quent overt acts have been committed under the old conspiracy within the three years, and that the defendant has consciously partici- pated therein, a prosecution for the con- spiracy may be maintained. Ware v. United States (U. S.), 12-233. e. Indictment. Showing criminal object or means. ■ — An indictment for conspiracy must show that the object of the conspiracy was crim- inal, or, if the object itself was not criminal, that the means employed to accomplish it were criminal. State v. Eno (Iowa), 9'-856. Description of nnla^vfal means. — An indictment for conspiracy to obtain real prop- erty by false pretenses is insufficient, if it fails to set forth with particularity the un- lawful means by which the object of the con- spiracy was accomplished. State v. Eno (Iowa), 9-856. Duration of nnlairfal agreement. — If an indictment for conspiracy is sufficient in other respects, it will not be held defective merely because it fails to state how long the unlawful agreement between the defendants was to continue. In such a case, the duration of the illegal contract is not of the essence of the crime. State v. Eastern Coal Co. (B. I. ) , 17-96. Use of -words, " with others." — Where an indictment against a person for conspiracy charges that he " conspired with others," the words "with others" are tautological and unnecessary; and the indictment is not rend- ered insufficient by the fact that it fails to charge that the " others " are " to the jurors unknown." State v. Lewis (N. Car.), 9-604. Frandnlent concealment of property by bankrupt. — An indictment charging a bankrupt, his trustee in bankruptcy, and another person, with a conspiracy to commit the statutory crime which consists of the fraudulently concealing by a bankrupt of part of his property " from his trustee," is fatally defective in that it charges the trustee witifi participation in and knowledge of a transac- tion which can only be an offense against the law when it is concealed from him. Johnson V. United States (U. S.), 14-153. Combination to regnlate and fix prices. — An indictment which charges, in separate counts, that the defendants have un- lawfully and fraudulently combined, confed- erated, and conspired together, unlawfully to regulate and fix the price at which coal shall be sold in a certain city; that said defend- ants have unlawfully created, entered into and become members of and parties to a trust agreement, combination, confederation, and understanding with each other, wrongfully and unlawfully to regulate and fix the price of coal in said city; and that defendants have conspired and agreed together to do an illegal act injurious to public trade, to wit, unlaw- fully to regulate and fix the price of coal in said city, and have unlawfully and fraudu- lently fixed and regulated the price of coal therein, does not charge, except by implica- tion and inference, that the defendants have conspired to create a monopoly in order to regulate and fix the price of coal, and in the absence of any direct averment of the latter fact, and of any averments showing that the defendants have power to regulate and fix the price of the commodity in question, it charges no offense. State v. Eastern Coal Co. (E. I.), 17-96. Conspiracy to defraud government. — An indictment against a representative of a corporation furnishing supplies to a de- partment of the government, for conspiring to defraud the government by making an arrangement with an officer thereof whose duty it was to determine the quantity needed and the satisfactoriness and the price of the supplies furnished, whereby such officer was to have a secret interest in the contract be- tween the corporation and the government, is sufficient although there is no allegation therein that the interest was given to such officer to influence his official conduct, and it is not specified whether the purpose of the conspirators was to have the government pay more for supplies or for more or for inferior supplies than it would pay but for such con- spiracy. Crawford v. United States (U. S.), 15-392. Indictments for conspiracy to defraud the United States by procuring advance informa- tion regarding the contents of cotton crop reports, by falsifying such reports, and by bribing an official of the department of agri- culture to give advance information concern- ing the same, examined and held to be suffi- cient to sustain a proceeding to procure the removal of the accused to another district for trial. Haas v. Henkel (U. S.), 17-1112. f. Evidence. Declarations and acts of oo-oon- spirators. — When a conspiracy is estab- lished, declarations and acts of the co-con- spirators before the conspiracy was abandoned are competent evidence. People v. Mol (Mich.), 4-960. Admissibility in evidence of the declara- tions and acts of the co-conspirator in a trial for conspiracy. Knox v. State (Ind.), 3-539. In a criminal prosecution involving an al- leged conspiracy to commit the crime charged, the declarations of one of the defendants, made in the absence of his co-defendant, are not admissible in evidence against the latter until the prosecution has shown that such 496 ANN. CAS. DIGEST, VOLS. 1-20. declarations were made pending the conspir- acy and before the object was accomplished for which the conspiracy was entered into. In such a ease the admission of declarations made before the conspiracy is claimed to have been entered into constitutes reversible error. Gill V. State (Tex.), 17-1164. Acts or statements prior to con- spiracy. — Where the guilt of one of several defendants, jointly indicted for a felony, is sought to be established by evidence showing or tending to show a conspiracy between him and the others for the commission of crime, evidence as to acts or statements of the others must be confined to such statements as were made, or acts done, at times when the proofs in the case permit of a finding that a con- spiracy existed, and the acts or statements of one of the defendants prior to the formation of the conspiracy are inadmissible as evidence against others. Driggers v. U. S. (Okla.), 17-66. Conversation after abandonment of conspiracy. — A conversation between co- conspirators devising means to avoid expos- ure, though occurring after the abandonment of the conspiraicy, is admissible in evidence in the separate prosecution of one conspirator, notwithstanding the general rule that the acts and declarations made after the consumma- tion or abandonment of the conspiracy are in- admissible. People ?;. Mol (Mich.), 4r-960. Evidence of conspiracy on indict- ment for assault. — In a prosecution for assault with intent to kill, it is competent for the state to prove that others not indicted had conspired with the defendant to commit the assault, though the information 'does not charge conspiracy and does not charge that the assault was committed by the defendant and others jointly. State v. Ruck (Mo.), 5-&76. Acts barred by statute of limita- tions. — In a prosecution for conspiracy, proof of the formation by the defendant and others, more than three years before the in- dictment, of such a conspiracy as that charged in the indictment and of an overt act thereunder prior to the three years, is insufficient to sustain the charge of a con- spiracy within the three years; but, in con- nection with evidence aliunde of the existence of the conspiracy and of the defendant's con- scious participation in it within the three years, it is competent evidence for the con- sideration of the jury in determining the issue presented by the indictment. Ware v. United States (U. S.), 12-233. In a prosecution for conspiracy, evidence of an overt act committed by one of the alleged coconspirators within three years prior to the filing of the indictment, pursuant to a con- spiracy between him and the defendant formed and followed by an overt act more than three years prior to the filing of the indictment, without the defendant's consent or agree- ment within the three years to the continued existence and execution of the conspiracy, is incompetent to establish its existence and his participation therein within the three years. Ware v. United States (U. S.), 12-233. Former conspiracy. — In a prosecution for conspiracy, the same rules of law and evi- dence govern the trial and decision of the issue whether a defendant jointly with others consented or agreed to the existence of a former conspiracy within three years prior to the filing of the indictment and the sub- sequent execution of it, as govern the issue whether the conspiracy was originally formed. Ware v. United States (Fed. Rep.), 12-233. g. Instructions. Evidence of declarations of con- spirator. — Standing alone, an instruction in a conspiracy case that the declarations of a conspirator made during and in furtherance of the conspiracy are admissible in evidence against a co-conspirator, and that such dec- larations " when so proven and so admissible, if made against interest, are presiuned in law to be true by reason thereof," though correct as an abstract proposition of law, is subject to the objection that it invades the province of the jury; but the objection is obviated by a further instruction making a correct appli- cation of such abstract proposition to the facts of the case. Ausmus v. People (Colo.), 19-491. 2. Civil Liability. TVhat constitutes actionable con- spiracy, in general. — An actionable con- spiracy defined. Randall v. Lonstorf (Wis.), 5-371. Acts laTvfnl if performed by one person. — Persons guilty of a criminal con- spiracy are liable civilly in damages for their acts, though such acts, if done by one person, would not render him liable for an action for damages. Randall v. Lonstorf (Wis.), 5-371. Whatever one man may do all may do, and whatever all may do singly they may do in concert, provided they act lawfully and the sole purpose of combination is to advance the proper interest of its members. Karges Fur- niture Co. V. Amalgamated Woodworkers Local Union (Ind.), 6-829. Necessity of purpose to injure anotber. — A combination is not a conspir- acy unless its purpose is to injure anpther by force, fraud, intimidation, or other artificial means. Karges Furniture Co. v. Amalga- mated Woodworkers Local Union (Ind.), 6-829. Combination to damage business of anotber. — A combination which is lawful within itself may become a conspiracy when the purpose in view is to ruin or damage the business of another because of his refusal to do some act against his will or judgment. Everett Waddey Co. v. Richmond Typograph- ical Union (Va.), 8-798. Separate or joint liability. — In an action for conspiracy a recovery cannot be had against one of the defendants alone, where the injury is such as could have been caused only by two or more of the defendants acting in concert. St. Louis, R., etc., Co. v. Thomp- son (Tex.), 19-1250. Inducing employees to break con- tract. — A combination of several persons to COXSTABLES — COXSTITUTIOXAL LA\Y, 497 injure one in bis trade by inducing bis em- ployees to break their contract oi employment is an actionable wrong if it results in damage. Employing Printers Club r. Dr. Blosser Co. (Ga.), 2-694. CONSTABLES. See Shebiffs and Constables. Liability of municipality for acts of con- stable, see JIUNICIPAL CORPOBATIONS, 9 a. CONSTITUTIONAX LAW. 1. Preamble to Federal Constitution, 499. 2. FntST Ten Amendments to Federal Constitution, 499. 3. Powers of Congress in General, 499. 4. Power of State Legislatubes, in General, 499. 5. Police Power of States, 500. , a. In general, 500. b. Scope of the power, 501. c. Regulation of business, 501. d. Building regulations, 502. e. Municipal ordinances, 502. f. Taxation under guise of police power, 502. 6. Judicial Poweb of United States, 502. 7. poweb of congbess to establish Post Offices and Post Roads, 503. 8. Interstate Commebce Clause of Federal Constitution, 503. 9. Deprivation of Liberty or Property Without Due Process of Law, 503. a. Deprivation of liberty, 503. b. Deprivation of property, 504. 10. Equal Protection of the Laws, 505. 11. Right to Speedy Trial, 507. 12. Immunity from Searches and Seiz- UBES, 507. 13. Republican Fobm of Government, 508. 14. Interference with Vested Rights, 508. 15. Impairment of Obligation op Con- tracts 508. a. In general, 508. b. Franchises as contracts, 509. 16. Privileges and Immunities, 509. 17. Liberty of Sp^ch, Press and As- semblage, 510. 18. Uniform Operation of General Laws, 510. 19. Special Legislation, 510. 20. Delegation of Legislative Poweb, 511. 21. Statutes Conferring Judicial Func- tions, 512. 22. Amendatory Legislation, 512. 23. Unwise, Unjust ob Impolitic Legis- lation, 512. Vols, l-20 — Anx Car, DnT:=iT. — ??, 24. Self-Exiccuting Constitutional Pro- visions, 513. 25. Gbnbbal Principles Governing De- termination AS to Constitu- tionality of Statutes, 513. a. Who may raise constitutional question, 513. b. Duty of courts to maintain con- stitution, 513. c. Presumption in favor of constitu- tionality, 513. d. Declaring statute unconstitu- tional in part, 514. 26. Interpretation and Construction of Constitutions, 514. a. In general, 514. b. Proceedings of constitutional con- vention, 515. u. Contemporaneous legislative con- struction, 515. 27. Amendment of Constitutions, 515. 28. Pleading and Practice, 516. Abridgment of right to appeal, see Appeal AND Ebror, 2 e. Adoption of state constitution as amendment of municipal charter, see Municipal Cobpobations, 2. Appellate jurisdiction dependent on consti- tutional questions, see Appeal and Ee- bob, 3 a. Arrest under unconstitutional statute, see Habeas Corpus, 2. Carriers regulated by constitutional provis- ions, see Caebiees, 2 a. Commitment of inebriates, see DeunkennESS AND Intoxication. Consolidation of city and town by special act as creation of corporation, see Municipal Corporations, 3. Constitutionality of statute as ground for federal jurisdiction, see Courts, 2 b (4). Cruel and unusual punishments, see Crim- inal Law, 7; Game and Game Laws, 3 b. Full faith and credit to judgments of other states, see Alimony and Suit Money, 4 i. Involuntary servitude by making breach of •contract of employment a crime, see Master and Servant, 2 c. Legislative power to create public office, see Public Officers, 1. Legislative power to define qualifications of public officers, see Public Officers, 4, Limitation of actions without making excep- tions, see Limitation of Actions, 1 b. Manufacture of clothing in tenement houses, see Health, 2. Penalty for conducting business by insolvent bank, see Banks and Banking, 7. Provisions governing enactment of statutes, see Statutes, 1 a. Restraining enforcement of unconstitutional statute, see Injunctions, 2d (4). Restricting power of taxation, see Taxation, 1 b. Right to jury trial, see Jury, 1. Special law for punishment of offenses, see Banks and Banking, 7. 498 ANN. CAS. DIGEST, VOLS. 1-20. Special or local laws, see Game and Game Laws, 3 a (2). Stare decisis doctrine applied to constitution- al questions, see Stake Decisis, 2. Stockholders' right to inspect books, see CoB- porations, 8 e (3). Test of constitutionality of statutes, see Criminal Law, 2 a; Habeas Cobpds, 6 a. Time to question constitutionality of crim- inal statute, see Criminal Law, 2 a. Rights of accused. Allowance of time for argument to jury, see Criminal Law, 6 i. Application of federal constitution to state courts, see Criminal Law, 5 a. Placing witness under rule as denying right of accused to be confronted with his accusers and witnesses, see Criminal Law, 6 m (3). Presence during trial, see Criminal Law, 6 c (4). Public trial, see Criminal Law, 6 o (2). Right to be confronted by witnesses, see Crim- inal Law, 6 c (6). Self-crimination by trying on garment, see Criminal Law, 6 n ( 1 ) . Speedy trial, see Criminal Law, 6 c ( 1 ) . Trial by jury of vicinage, see Criminal Law, 6 b. Particular ordinances construed. Civil service rules, see Municipal Corpora- tions, 14. Hard labor for violating municipal ordinance, see Criminal Law, 7 a ( 1 ) . Milk inspection ordinances, see Food, 3. Ordinance requiring property owner to re- move snow from sidewalk, see Streets and Highways, 3 d. Particular statutes construed. Admission of attorneys to practice, see At- torneys at Law, 1. Appointment of board of equalizers by cir- cuit judge, see Judges, 3 b. Attachments against nonresident's real estate authorized, see Attachment, 2. Automobile regulations, see Motor Vehicles, 1 b. Bigamy defined, see Bigamy. Breach of contract of employment made criminal, see Master and Servant, 2 c. Cattle guards required on railroads, see Fences, 3. Change of venue authorized, see Change of Venue, 2 a. Changing rules of evidence, see Witnesses, 3 b (2). Combinations in restraint of trade prohibited, see Monopolies and Corporate Trusts, 3 a. Commutation of sentence, see Criminal Law, 7 a (1). Condemnation proceedings, see Eminent Do- main, 1. Construction of bridge over highway cut through railroad embankment at ex- pense of railroad company, see Rail- roads, 3a (2). Creation of counties, see Counties, 1. Crowding of street cars prohibited, see Car- riers, 2 a. Election laws, see Elections, 1 a. Employment of children regulated, see In- fants, 4 b. Exemption laws, see Taxation, 12. Exemptions from operation of usury laws, see Building and Loan Associations, 4. Fellow servant rule abrogated, see Master and Servant, 2 d. Fence laws, see Fences, 2. Game laws, see Game and Game Laws, 3. Habitual criminal statutes, see Criminal Law, 7 a. Jurisdiction as to delinquent children de- fined, see Infants, 4 c. Labor laws, see Labor Laws, 1. Labor unions regulated, see Labor Combina- tions, 1 d. Lessor made liable for water and light fur- '■ nished to tenant, see Landlord and Tenant, 5 g. Liability for injuries by dogs imposed on owners, see Animals, 2 d. Liability imposed on municipalities for dam- age done by mobs, see Municipal Cor- porations, 9 d. Liability imposed on railroads for fire com- municated by locomotive, see Railroads, 3 a (2). License tax acts, see Licenses. Licensing horse racing, see Gaming and Gam- ing Houses, 1 e. Licensing peddlers, see Hawkers and Ped- dlers. Licensing physicians, see Physicians and Surgeons, 1. Liquor laws, see Intoxicating Liquors, 3. Local assessments authorized, see Special or Local Assessments, 1. Mechanics' lien laws, see Mechanics' Liens, 1. Patent laws, see Patents, 3. Prescribing duration of judgment lien, see Judgments, 5 b. Prevention of cruelty to animals, see Ani- mals, 5. Railroads required to construct private switches, see Railroads, 3 a (2). Safety devices required at railroad crossings, see Railroads, 3 a (2). Sales in bulk acts, see Fraudulent Convey- ances, 3 a. Separate accommodations for white and col- ored passengers, see Carriers, 6 b. Special punishment for delinquent children, see Criminal Law, 7 a (1). State regulation of corporations engaged in interstate business, see Corporations, 3 d. Taxation of franchises, see Taxation, 11a. Taxation of inheritances, see Taxation, 13. Taxation of oleomargarine, see Revenue Laws. Taxation of peddlers, see Hawkers and PeD" DLERS, 3. CONSTITUTIONAL LAW. 499 Trading stamps prohibited, see Trading Stamps. Waste of mineral waters prohibited, see Mines and Minerals, 9. 1. Prramble to Federal Constitution. As source of poirer to federal goT- ernment. — The preamble of the United States Constitution is not the source of any substantive power conferred on the federal government or any of its departments, and a state statute cannot be held unconstitu- tional as being in derogation of the rights secured by the preamble unless the right so derogated is also secured expressly or by im- plication in the body of the Constitution. Jacobson v. Massachusetts (U. S.), 3-765. 2. First Ten Amendments to Federal Constitution. Operation confined to national gov- ernment. — The first ten amendments to the Federal Constitution operate on the na- tional government only, and were not intended to and do not limit the powers of the states in respect to their own people. Jack v. Kan- sas (U. S.), 4-689. The Eighth Amendment of the Constitution of the United States, which provides that " excessive bail shall not be required nor excessive fines imposed, nor cruel and un- usual punishments inflicted," refers to powers exercised by the government of the United States, and not to those of the individual states. Loeb v. Jennings (Ga.), 18-376. 3. Powers of Congress in General. Begnlating performance of contracts with United States. — The fact that Con- gress does not have general control over the conditions of labor, or does not possess the general power of legislation possessed by the legislatures of the states, does not make un- constitutional a law otherwise valid or limit the power of Congress over the manner in which contracts with the United States shall be performed. Ellis v. United States ( U. S. ) , 11-589. Making breach of contract a crime. — The United States government by enter- ing into a contract does not waive its sov- ereignty or surrender its power to enact a law which declares a breach of the contract to be a crime. Ellis v. United States (U. S.), 11-589. Interference xrith powers of states. — By the provisions of the Federal Constitu- tion, the sovereignty of each of the states is as carefully 'guarded as that of the United States. Each is to remain free to maintain its own executive, legislative, and judicial magistrates. Nothing can be done by Con- gress to impair this right in any state so long as it preserves a republican form of government. The power to maintain a ju- dicial department is one incident to the in- herent sovereignty of each state, in respect to which the state is as independent of the general government as that government is independent of the states. As to that power the two governments are on an equality. Hoxie V. New York, etc., R. Co. (Conn.), 17-324. 4. Power of State Legislatures, in Gen- eral. Constitutional limitations. — There are no limits upon the constitutional power of the legislature of a state, except such as may be found in the state and federal con- stitutions. Ratclifi" V. Wichita Union Stock- yards Co. (Kan.), 10-1016. The legislature of Maine has by the con- stitution of Maine " full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state, not repugnant to this constitution, nor that of the United States." Opinion of Justices, 13-745. A state constitution is a limitation upon and not a grant of power to the legislature, and the legislature has a right to exercise any power not prohibited by the state or federal constitutions. Harder's Fire Proof Storage, etc., Co. v. Chicago (111.), 14^536. Powers not reserved to federal gov- ernment. — The legislature has the su- preme power in all matters of government not prohibited by constitutional limitations, and while the powers of the federal govern- ment are restricted to those delegated, those of the state government embrace all not for- bidden. Eco parte Boyce (Nev. ), 1x66. Constitution the supreme law. — The constitution is the supreme law for the legis- lature and the court alike, and in declaring any act of the legislature unconstitutional the court does not proceed upon any theory of superiority over the legislature, but simply adjudges that it will follow the organic law, which creates both the legislature and the court, and is alike binding upon each. Chi- cago, etc., R. Co. V. Gildersleeve (Mo.), 16-749. Opposition to spirit of constitution. — Where the meaning of the words of sections of the Federal Constitution which it is claimed are infringed by a state statute is obvious, the court will not pass upon the suggestion that the statute is opposed to the spirit of the constitution. Jacobson v. Massachusetts (U. S.), 3-765. Laws regulating titles to land. — The state has full control of the mode of trans- ferring titles to property within its limits, and has power to provide a special proceed- ing in the nature of a proceeding in rem to fix the status of land and declare the nature of the titles and interests therein and the persons in whom such titles and interests are vested. Robinson v. Kerrigan (Cal.), 12-829. Iia^vs regulating right to assemble. — The right to assemble, guaranteed by the Wisconsin constitution (art. 1, § 4), is sub- ject to reasonable regulations. State V. Frear (Wis.), 20-633. 500 AIS^N. CAS. DIGEST, ^'OLS. 1-20. 5. Police Poweb of States. a. In general. Destruction of private property, see Health, 1. Enactment of criminal statutes, see Criminal Law, 2 a. Inspection of factories, see Labob Laws, 1 a. Prohibiting contracts in restraint of trade, see Monopolies and Cokpobate Trusts, 3 a. Reciprocal demurrage for failure to furnish railroad cars, see Cabbiebs, 3. Regulation of commerce, see Interstate COMMEBCE, 2 b { I ) . Regulation of keeping and selling of articles of food, see Food. Sales in bulk acts, see Fbaudulent Convey- ances, 3 a. Summary seizure and destruction of gambling implements, see Gaming and Gaming Houses, 4. Authority of state supreme. — With respect to its internal police, the authority of each state is supreme and exclusive. State r. Hyman (Md.), 1-742. Constitntional limitations. — Legisla- tion under the police power, as in any other field, is subject to constitutional limitations, some of which are expressed and others im- plied. State V. Redmon (Wis.), 15-408. Regulations incidentally affecting constitutional rights. — A police regu- lation, obviously intended as such, and not operating unreasonably beyond the occasions of its enactment, is not rendered invalid by the fact that it may aflFect incidentally the exercise of some right guaranteed by the con- stitution. In re Anderson (Neb.), 5-421. Regulations invading letter of con- stitution. — Police regulations which are reasonable are not Inhibited by the constitu- tion, though invading its letter, since the ex- ercise of the police power is so essential to the public welfare that it is presumed that such exercise within reasonable limits was not intended to be prohibited, but on the contrary guaranteed by the general declared purposes of civil government and the mani- fest purpose of the constitution. State v. Redmon (Wis.), 15-408. Presumption as to validity of regu- lations. — The inquiries as to an enactment respecting its legitimacy include these: " Does a danger exist ? Is it of sufficient magnitude? Does it concern the public? Does the proposed measure tend to remove it? Is the restraint or requirement in pro- portion to the danger? Is it possible to se- cure the object sought without impairing essential rights and principles?" the judg- ment of the legislature to be taken as correct unless it appears to be wrong beyond reason- able controversy. State v. Redmon (Wis.), 15-408. Real intent to he considered. — A legislative declaration respecting the charac- ter of a law, as that its purpose is to pro- mote public health, is not absolutely binding on the courts. It is their function to deter- mine the real intent of the law and, if its ostensible is not the real purpose, to give effect to the constitution of condemning the enactment. State v. Redmon (Wis.), 15-408. Validity as dependent upon neces- sity. — The doctrine that the police power is a law of necessity may well be said to furnish the key to what is within and what is without the boundaries of such power; not that a police regulation to be legitimate must be an absolute essential to the public wel- fare, but that the exigency to be met must so concern such welfare as to suggest, rea- sonably, necessity for legislative remedy; the legislature to be the primary judge and the supreme judge as well as to interferences not so unreasonable as to be excessive beyond reasonable controversy. State v. Redmon (Wis.), 15-408. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference, and that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. State V. Redmon (Wis.), 15-408. It is fundamental law that no constitu- tional guaranty is violated by an exercise of the police power of the state when mani- festly necessary and tending to secure gen- eral and public benefits. State v. Mayo (Me.), 20-512. Discrimination. — Though the police power may be exercised by discriminating against minors, or places used exclusively by minors, yet a, discriminating statute will not be upheld merely because minors among others resort to the place in question. Peo- ple V. Wilber (N. Y.), 19^626. Effect of fourteenth amendment. — The legitimate exercise by a state of its police power is not controlled or affected by the provisions of the Fourteenth Amendment to the Federal Constitution. Shreveport v. Schulsinger (La.), 2-69. Respective functions of courts and legislature. — It is a judicial function to determine the proper subjects for police regu- lation, and a legislative function to deter- mine, primarily, the expediency of regulation and the character thereof, subject to judicial supervision to the extent of determining, in eases as they arise, whether the boundaries of reason have been so clearly exceeded as to violate some constitutional prohibition, ex- press or implied; the judgment of the legis- lature being Controlling unless it appears beyond reasonable controversy that the in- ference is unreasonable. State v. Redmon (Wis.), 15-408. Surrender of the poiver. — Neither the state, nor a municipality to which it has delegated the right to exercise police power, can, by affirmative action or by inaction, per- manently divest itself of the right to exercise such power. State ex rel. Minneapolis v. St. Paul, etc., R. Co. (Minn.), 8-1047. The power of a state to protect the lives, health, and property of all persons within its CONSTITUTIONAL LAW. 501 limits, exists at all times, and its proper ex- ercise cannot be restricted by any previous attempt to grant to any person, natural or artificial, immunity from its exercise. Ven- ner v. Chicago City E. Co. (111.), 20-607. b. Scope of the power. In general. — The legislature cannot, properly, by police regulations deal with a matter not in reason forming a proper sub- ject therefor nor deal with a proper subject by means which are clearly unreasonable. State V. Eedmon (Wis.), 15-408. By the exercise of the police power of the state, through legislative enactments, in- dividuals may be subjected to restraints, and the enjoyment of personal and property rights may be limited or even prevented, if manifestly necessary to develop the resources of the state, improve its industrial condi- tions, and secure and advance the safety, com- fort, and prosperity of its people. State v. Mayo (Me.), 20-512. Promotion of pnblic safety and wel- fare. — The legislature has authority under the police power to enact laws for the pro- motion of the health, safety, and welfare of the people. Ex p. Boyce ( Nev. ) , 1-66. The police power of a state embraces regu- lations designed to promote the public con- venience or the general prosperity or the public welfare. Atlantic Coast Line Rail- road Co. V. Coachman, 20-1047. The police power extends to the enactment of all laws which in contemplation promote the public welfare. " It has been not in- aptly termed ' the law of necessity.' " State V. Redmon ( Wis. ) , 15-408. Compnlsory vaccinaticm. — The au- thority of a state to enact a statute author- izing the boards of health of municipal corporations to compel the citizens to sub- mit to vaccination is referable to the police power. Jacobson v. Massachusetts (U. S.), 3-765. Promotion of public convenience or prosperity. — The police power of a state embraces regulations designed to promote the public convenience or the general prosperity as well as regulations designed to promote the public health, public morals, or the pub- lie safety. Chicago, etc., R. Co. v. People (U. S.), 4-1175. Prevention of fraud. — The police power of the state is not limited to regula- tions necessary for the preservation of good order or the public health and safety. The prevention of fraud and deceit, cheating and imposition, is equally within the power. People V. Freeman (111.), 17-1098. Reasonable legislative regulations regard- ing the adaptability of things placed on sale for human consumption, such as the prod- ucts of mineral oil, and the proper keeping and handling thereof, for the prevention of fraud, are as well within sovei-eign police authority, as such regulations for conserva- tion of public safety. Wadhams Oil Co. v. Tracy (Wis.), 18-779. Summary abatement of nuisance. — The police power of the state extends to everything necessary or essential to the due and ample protection of the public morals and the maintenance of the peace and quiet of the state, as well as to the protection of life and property, and in the exercise of that power the state may authorize its officers summarily to abate and destroy nuisances and those things specifically designed and prepared for the commission of crime. Mul- len V. Moseley (Idaho), 13-450. Restriction of liberty of contract. — In the reasonable exercise of the police power for the protection of the public health, mor- als, safety, and welfare, the state may re- strict the general right of contract. Knight, etc., Co. V. Miller (Ind.), 18-1146. Suppression of business. — The power to regulate does not include the power inten- tionally to suppress, but where the police power is exercised with the iona fide inten- tion to regulate a business, it is lawfully ex- ercised, though such business may thereby be made unprofitable and perish for lack of support. Shreveport v. Schulsinger (La.), 2-69. c. Regulation of business. Ticket brokerage. — The California stat- ute making it a misdemeanor for any person to sell or offer for sale " any ticket or tickets to any theatre or other public place of amusement at a price in excess of that charged originally by the management of such theatre or public place of amusement," is not a valid exercise of the state's police power, but is void as infringing upon the rights of property guaranteed by the state constitu- tion and existing in the individual. Ex p. Quarg (Cal.), 9-747. The Oregon statute prohibiting ticket brokerage is a valid exercise of the state's poljce power, and is not, as to interstate tickets, an unlawful interference with inter- state commerce. State v. Thompson (Ore.), 8-646. The legislature of a state has the power, for the purpose of protecting travelers from fraud, to prohibit ticket brokerage, notwith- standing the fact that the business is in itself legal and may be honestly conducted. State V. Thompson (Ore.), 8-646. The Washington statute making it unlaw- ful for any person to sell railway tickets un- less he has a certificate from the railway company showing his authority so to do is a valid exercise of the state's police power, and is not, as to a ticket broker who had an established and lucrative business prior to the passage of the statute, imconstitu- tional as depriving him of his business and property without due process of law or as interfering with his liberty as a citizen in the pursuit of his business. In re O'Neill (Wash.), 6-869. Employment agencies. — The New York statute (L. 1904, c. 432) entitled "An act to regulate the keeping of employment agen- cies in the cities of the first and second class where fees are charged for procuring employment or situations," and requiring such agencies to procure licenses before doing business, being intended to regulate employ- 502 ANN. CAS. DIGEST, VOLS. 1-20. ment agencies in large cities and to prevent fraud, and probably to suppress immorality, is within the police power of the state, and therefore constitutional, notwithstanding that it may interfere in some respects with one's right to follow a lawful employment. Peo- ple V. Warden of City Prison (N. Y.), 5-325. A statute defining the duties and liabili- ties of employment agents and prescribing the rate of compensation for services is un- constitutional, as the business of an employ- ment agent is not dangerous to the public health and cannot be subjected to a police regulation which does not fall within the power of taxation for revenue. Ex p. Dickey (Cal.), 1-428. Manufacture and sale of imitation bntter. — The Iowa statute regulating the manufacture and sale of imitation butter is a valid enactment within the police power of the legislature. ■ State v. Armour Packing Co. (Iowa), 2-448. Fnblic stockyards. — The carrying on of stockyards at a, commercial centre, with which all the railroads entering the city con- nect, and which is the only available market in the city and for a large scope of the coun- try around it, for the selling, feeding, rest- ing, and shipping of live stock, is a business affected with a public interest, and is sub- ject to public regulation and control in re- spect to rates. Ratcliff v. Wichita Union Stockyards Co. (Kan.), 10-1016. The Kansas statute defining public stock- yards and regulating the charges thereof is not repugnant to the Kansas constitution. Eatcliff V. Wichita Union Stockyards Co. (Kan.), 10-1016. Slanghterbonses. — Section 624 Wil- son's Eev. & Ann. St. 1903, prohibiting the maintenance of a slaughterhouse within one- half mile of the corporate limits of a city of the first class, etc., is a legitimate exercise of the police power upon the part of the legislature. Kuchler i'. Weaver (Okla.), 18- 462. Payment of wages. — A statute defin- ing certain classes of employers to pay their employees their wages in lawful money every week to a day not more than six days prior to such payment, is not unconstitutional as an unwarranted interference with the right of contract; such right of contract not being absolute, but subject to such reasonable re- straint as the public good may require. Lawrence v. Rutland R. Co. (Vt.), 13-475. A statute prohibiting the payment of wages by check or order not redeemable in money and making a violation thereof pun- ishable as a misdemeanor is invalid as a police regulation in respect to a corporation and its adult employees, where such corpora- tion is not pursuing a public business and has not devoted its property to a public use. State V. Missouri Tie, etc., Co. (Mo.), 2-119'. " d. Building regulations. Statutory regulation of height. — > It is within the police power of a state to regu- late the height of buildings in a city, pro- vided the regulations are reasonable in their character and are adapted to accomplish the purposes for which they are designed. Coch- ran V. Preston (Md.), 15-1048. Where the purpose of a statute restricting the height of buildings in a particular dis- trict of a city is to protect from destruction by fire the handsome buildings and their con- tents as well as the works of art located with- in such district, such statute is a valid ex- ercise of the police power of the state. Cochran v. Preston (Md.), 15-1048. e. Municipal ordinances. Health regulations. — Reasonable mu- nicipal health regulations under the au- thority of a state are not void as taking pri- vate property without due process of law, or as taking private property without just com- pensation. State V. Robb (Me.), 4-275. Foirer of courts to determine reason- ableness. — When the police power has been delegated by the legislature to a muni- cipal corporation, the courts may inquire into the reasonableness of the measures enacted by the municipality. State v. Hyman ( Md. ) , 1-742. f. Taxation under guise of police power. What constitutes. — A legislative en- actment under the police power cannot be condemned as a taxing measure and out of harmony with the constitutional rule of uni- formity in that regard, unless the fees ex- acted are so clearly excessive that the legis- lature could not reasonably have had in con- templation an equivalent for the mere ex- pense of executing the law. Wadhams Oil Co. V. Tracy (Wis.), 18-779. An allegation in a complaint, challenging the legitimacy of an ostensible police regula- tion on the ground that the fees provided for are so large as to show, clearly, that the ob- ject thereof was revenue, does not tender an issue of fact for confession or denial by the adverse party, when it can be clearly seen Irom the face of the pleading, in the light of common knowledge and established judicial rules, that the fees are within reason as mere expenses of executing the law. Wadhams Oil Co. V. Tracy (Wis.), 18-779. Validity of statute. — The oleomar- garine tax, beeause so large as to destroy the business of manufacturing oleomargarine, does not violate the fundamental rights pro- tected by the due process of the Fifth Amend- ment, as the tendency of the product to deceive the public is such that even the states may in the exercise of police powers and without violating the due process clause of the Fourteenth Amendment absolutely pro- hibit its manufacture. McCray v. United States (U. S.), 1-561. 6. Judicial Powee op United States. Jurisdiction of supreme court of United States in eases involving constitutional questions, see Appeal and Ereob, 3 c (2). In what tribunals vested. — The ju- dicial power of the United States is, by the CONSTITUTIONAL LAW. 503 first section of their constitution (Art. Ill), vested in one supreme court, and in such in- ferior courts as the Congress may from time to time ordain and establish, and, by the second section, extends, among other things, to all cases arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. The first section grants the en- tire judicial power of the nation, and the second is neither a limitation nor an enu- meration, but a, definite declaration that the judicial power shall include the several mat- ters particularly mentioned, leaving unre- stricted the general grant of the entire judicial power. All the judicial power which the nation is capable of exercising is vested in the tribunals described in the first section. Eoxie V. New York, etc., E. Co. (Conn.), 17-324. 7. PowEB OF Congress to Establish Post Offices and Post Roads. Regulation of right of action for personal injuries. — The Pennsylvania statute providing that any person sustaining injury or loss of life, while lawfully engaged or employed on or about a railroad, though not employed by the railroad, may recover against the railroad only as if he were its employee, but exempting passengers from its operation, is not, when applied to railway postal clerks in the employ of the federal government, unconstitutional as conflicting with the power of Congress to establish post offices and post roads. Martin v. Pittsburg, etc., R. Co. (U. S.), 8-87. 8. Intebstate Commebce Clause of Federal Constitution. Prohibiting use of state arms or seal for advertising. — The Massachusetts stat- ute prohibiting the use of the state arms or seal for advertising purposes is not in con- flict with the interstate commerce clause of the Federal Constitution. Commonwealth v. E. I. Sherman Mfg. Co. (Mass.), 4-208. Regulating right of actions for in- juries on railroads. — The Pennsylvania statute providing that any person sustaining injury or loss of life while lawfully engaged or employed on or about a railroad, though not employed by the railroad, may recover against the railroad only as if he were its employee, but exempting passengers from its operation, is not repugnant to the commerce clause of the Federal Constitution. Martin V. Pittsburg, etc., R. Co. (U. S.), 8-87. Police regulations. — A valid police regulation is not subject to successful attack under the commerce clause of the national constitution. Wadhams Oil Co. v. Tracy (Wis.), 18-779. 9. Depeivation of Libebty oe Pbopebtt Without Dub Peocess of Law. a. Peprivation of liberty. Liberty of contract in general, see also CoN- tbaots, 4 a. Prohibiting contracts in restraint of trade, see Monopolies and Corpobate Trusts, 3 a. Prohibiting discrimination against members of labor unions, see Labor Combina- tions, 1 b. Prosecution by information without indict- ment, see Indictments and Inpobma- TIONS, 1. Regulation of hours of labor, see Labob Laws, 1. Sales in bulk acts, see Fraudulent Convey- ances, 3 a. Sentence to chain gang without jury trial, see Ceiminal Law, 7 a (1). What included in right of personal security.— Personal security includes the right to exist and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a depri- vation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the in- dividual. Pavesich v. New England Mut. L. Ins. Co. (Ga.), 2-561. Right to purchase, hold and sell property. — The word " liberty " in a con- stitutional provision against deprivation of liberty without due process of law includes the right of an individual to purchase, hold, and sell property in the same way as any other individual. Block v. Schwartz (Utah), 1-550. Right to make contracts. — The general right to make a contract in relation to his business, including the right to purchase or to sell labor, is part of the liberty of the in- dividual protected by the due process clause of the Federal Constitution. Lochner v. New York (U. S.), 3-1133. The provision of the New Jersey constitu- tion establishing the inalienable right of all men to acquire property and to pursue and obtain safety and happiness includes the right of making contracts for personal services as a means of acquiring property, and it is therefore the right of every man to engage in such lawful business or occupation as he may choose, free from hindrance or obstruc- tion by his fellow men, except such as may result from the exercise of equal or superior rights on their part. Brennan v. United Hatters, etc. (N. J.), 9-698. Regulation of payment of xrages. — A statute regulating the payment of wages does not deprive the employers of liberty or property in contravention of the Fourteenth Amendment of the Federal Constitution, be- cause it requires weekly payments of wages in lawful money. Lawrence v. Rutland R. Co. (Vt.), 13-475. A statute, in providing that the employer shall pay wages weekly in lawful money and that no future assignment of such wages by the employee shall be valid, is not uncon- stitutional as restricting the right of em- ployees to contract with the employer. Lawrence v. Rutland R. Co. (Vt.), 13-475. A statute prohibiting the payment of wages by checks or orders not redeemable in cash 504 A^3. CAS. DIGEST, VOLS. 1-20. is unconstitutional as abridging the freedom of contract. State v. Missouri Tie, etc., Co. (Mo.), 2-119. The Indiana statute regulating the time and mode of the payment of wages does not profess to restrict or abridge the right of employers and employees to contract, except in so far as it requires that the amounts due the employees for labor shall be paid "in lawful money of the United States;" and this requirement is constitutional. Seelyville Coal, etc., Co. v. McGlosson (Ind.), 9-234. The Texas " store order " statute providing that "it shall be unlawful for any person, firm, association of persons, corporations, or agent of either, to issue any ticket, check, or writing obligatory to any servant or em- ployee for labor performed, redeemable in goods or merchandise," is an interference with the right of contract between citizens of the state in relation to their private matters, not warranted by the police power, and there- fore in violation of the state and federal con- stitutions. Jordan v. State (Tex.), 14r-616. Regulation of bartiering. — The Wash- ington statute regulating the occupation of barbering tends to promote the health, safety, and comfort of the public, and is not imcon- stitutional as an abridgment of the liberty and natural rights of the citizens. State v. Walker (Wash.), 15-257. But the section of such statute which pro- vides as a prerequisite to obtaining a cer- tificate of registration that the applicant shall have " studied the trade for two years as an apprentice under or as a qualified and practicing barber " is unreasonable and ar- bitrary, and such requirement is void. The invalidity of such provision does not, how- ever, affect the validity of the statute as a whole. State v. Walker (Wash.), 15-257. Compnlsory vaccination. — The Massa- chusetts compulsory vaccination law is not unconstitutional as being an unreasonable in- vasion of the liberty of the citizen. Jacobson V. Massachusetts (U. S.), 3-765. What persons protected. — The liberty referred to in the due process of law clause of the Fourteenth Amendment of the Federal Constitution is the liberty of natural, and not artificial, persons. Northwestern Na- tional Life Ins. Co. v. Riggs (U. S.), 7-1104. b. Deprivation of property. Abrogation of fellow servant rule, see Master AND Servant, 2 d. Administration on estates of absent persons, see ExBCUTOES and Administbatobs. Imposing liability for injuries by dogs, see Animals, 2 d. Imposing liability on lessor for water and light supplied to tenant, see Landlord AND Tenant, 5 g. Requiring railroads to construct private switches, see Railroads, 3 a (2). Right to acquire and hold property, see also Game and Game Laws, 3 b. Sales in bulk acts, see Fraudulent Convey- ances, 3 a. Security as to property rights, see Cobpoea- tions, 4 a. Statute of limitations as denial of due pro- cess of law, see Limitation op Actions, lb. Business or occupation as property. — A person's business, occupation, or calling is property within the meaning of the law and entitled to constitutional protection. Gray v. Building Trades Council (Minn.), 1-172. Bigbt to sell. — The constitutional guar- anty securing to every person the right of " acquiring, possessing, and protecting prop- erty " refers to the right to acquire and pos- sess the absolute and unqualified title to every species of property recognized by law, with all the rights incidental thereto, and, in con- nection with the right of personal liberty, includes the right on the part of the owner to dispose of his property in such innocent manner as he pleases, and to sell it for such price as he can obtain in fair barter. Eai p. Quarg (Cal.), 9-747. Things not the subject of private, property. — The first section of the bill of rights contained in the New Jersey constitu- tion, which declares that all men have cer- tain inalienable rights, among which are those of acquiring, possessing, and protecting property, etc., does not guarantee to any man the right of acquiring property in anything that is not the subject of private property by law, or the right of disposing of property that has not been duly acquired under the law of the land. Carter v. Hudson County Water Co. (N. J.), 10-116. Fines imposed for contempt of court. — The provision of the Vermont statute re- quiring corporations to produce their books and papers, for punishment for contempt by fine in case of noncompliance with the order to produce the books and papers called for, is not in conflict with the Fourteenth Amend- ment of the Federal Constitution as depriving the corporation of its property without due process of law. In re Consolidated Render- ing Co. (Vt.), 11-1069. Statute requiring production of documents. — The failure of the Vermont statute requiring corporations to produce their books and papers, to provide compen- sation for the time, trouble, and expense of bringing books and documents from other states does not amount to a taking of prop- erty without due process of law in violation of the Fourteenth Amendment of the Federal Constitution, the injury, if any, being inci- dental to the legitimate exercise of the pow- ers of government. Jn re Consolidated Ren- dering Co. (Vt.), 11-1069. A state statute requiring corporations to produce books and papers in court and pro- viding no compensation for the time, trouble, and expense imposed upon a corporation in a foreign state or country in collecting and sending the documents to the state demanding them does not operate, in this respect, to take private property for public use without com- pensation, where the general law of the state COWSTiTUTIONAL LAW'. 505 in reference to the compensation of witnesses has been construed as applicable to this stat- ute. Consolidated Rendering Co. r. Vermont (U. S.), 12-658. Proceedings under the Vermont statute re- quiring corporations to produce their books and papers are not unconstitutional because no tender is made to the corporation to cover its fees and expenses for appearing before the court with its books and documents, a witness having no right to refuse to attend because his fees are not tendered. In re Consoli- dated Rendering Co. (Vt.), 11-1069. A state statute requiring corporations to produce books and papers before a court or grand jury upon notice, does not deny the due process of law guaranteed under the Fourteenth Amendment of the Federal Con- stitution, where a hearing is given before any proceeding to enforce the production of papers is concluded, and in case a production before the grand jury is required, any ob- jection made before that body must be re- ported to the court for its action. Consolidated Rendering Co. v. Vermont (U. S.), 12-658. Such a statute does not deny due process of law in requiring a corporation doing busi- ness in the state to produce books and papers in its custody and control though tempor- arily outside the borders of the state. Con- solidated Rendering Co. i'. Vermont (U. S.), 12-658. Confiscation of dead animals. — A municipal ordinance which, immediately upon the death of a domestic animal and before it becomes a nuisance, deprives the owner of the property therein and invests it in a pub- lic contractor, is a taking of private property without due process of law and unconstitu- tional. Richmond r. Caruthers (Va.), 2-49-5._ Statute prohibiting ticket broker- age.— The Oregon statute prohibiting ticket brokerage does not deprive purchasers of tickets of their property without due process of law, as it merely limits the manner in which they shall use the tickets. State v. Thompson (Ore.), 8-646. Regulation of charges of pnblio ■tockyards. — The averments of an answer examined, in an action against a stockyards company to recover for overcharges on stock, and held not to show that the rates pre- scribed by the Kansas statute defining public stockyards and regulating the charges there- of are so palpably unreasonable and unjust when applied to the defendant as to amount to a taking of private property without just compensation or due process of law. Ratcliff V. Wichita Union Stockyards Co. (Kan.), 10-1016. Federal employers' liability act. — The provision of section 5 of the Federal Em- ployers' Liability Act of 1908 (Act of April 22, 1908, c. 149, 35 St. L. 65, Fed. St. Ann. Supp. 1909, p. 584) that any contract be- tween an interstate carrier and any of its employees in such business, intended to enable it to exempt itself from any liability vested by the act, shall to that extent be void, and the provision of section 3, which, in effect, sanctions a recovery where the injured em- ployee lias been guilty of gross negligence, and the carrier of slight negligence or none at all, are also unconstitutional, as arbitrary and unlawful deprivations of property within the meaning of the Fifth Amendment to the Constitution of the United States. Hoxie V. Xew York, etc., R. Co. (Conn.), 17-324. Use of arms or seal of state as trade- mark. — The Massachusetts statute pro- hibiting the use of the arms or great seal of the state for advertising or commercial pur- poses is not unconstitutional as interfering with a trademark alleged to have been ob- tained by one in the arms of the state, for as against the state nobody can claim a trademark in its arms or great seal. Com- monwealth V. R. I. Sherman Mfg. Co. (Mass.), 4-268. Use of flag for advertising purposes. — The Nebraska statute making it a mis- demeanor for any one to sell, expose, oflFer for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed for the purpose of ad- vertising a representation of the flag of the United States, is not unconstitutional, either .as relating to a subject exclusively committed to the national government, or as depriving citizens of any privilege of citizenship or of any right of personal liberty or of any right of property. Halter v. Nebraska (U. S. ), 10-525. When court can declare laiv invalid. — A court has no right to invalidate or over- throw legislation depriving a person of his liberty or property or making a discrimina- tion as to the person to whom it is appli- cable, unless it is palpably clear that the legislation has no real or substantial relation to the public welfare, and it is not sufficient cause for overthrowing such legislation that the coiirt believes to a certain degree that it has no real or substantial relation to the public welfare. Grainger i\ Douglas Park Jockey Club (U. S.), 8-997. 10. Equal Protection of the Laws. See Game and Game Laws, 3 b. Abrogation of fellow servant rule, see Mas- ter AND Servant, 2 d. Compelling production of documents, see Dis- covery. Different punishment for different persons for same offense, see Criminal Law, 7 a (1). Imposing penalty on carrier for failure to pay claim, see Carriers. Making breach of contract of employment a crime, see Master and Servant, 2 e. Separate accommodations for white and colored passengers, see Carriers, 6 b. Statute regulating gas and electric light companies. — The provision of the New York statute authorizing a commission appointed by the governor to fix the maxi- mum rate chargeable by gas and electric light companies, that the price for gas or electricity in a municipality " so fixed by the 506 ANN. CxiS. DIGEST, VOLS. 1-20. commission shall be the maximum price to be charged by such person or corporation for gas or electricity in such municipality for a, term of three years, and until, after the ex- piration of such term, such commission shall, upon complaint as provided in this section, again fix the price of such gas or electricity," is not objectionable in fixing three years as the time for which the rate shall remain as established, but the provision that the rate as established shall continue indefinitely until fixed anew on complaint which, under the terms of the statute, can only be made by certain municipal officers or purchasers of gas or electricity, and giving the lighting cor- poration no opportunity at the end of three years to apply for a new adjustment of rates, denies the corporation the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution. Saratoga Springs r. Saratoga Gas, etc., Co. (N. Y.), 14-606. Statute regulating right of action.— The Pennsylvania statute providing that any person sustaining injury or loss of life while lawfully engaged or employed on or about a railroad, though not employed by the rail- road, may recover against the railroad only as if he were its employee, but exempting passengers from its operation, is not open to the objection that it denies railway postal clerks the equal protection of the laws. Martin v. Pittsburg, etc., E. Co. (U. S.), 8-87. Application of provision to corpora- tions. — It is well settled that a corporation is a person within the meaning of the Four- teenth Amendment of the Federal Constitu- tion. Southern R. Co. v. Greene (U. S.), 17-1247. A corporation is a person within the mean- ing of the due process of law clause and the equity clause of the Fourteenth Amendment of the Federal Constitution. Lawrence v. Rutland R. Co. (Vt.), 13-475. A foreign corporation which has come into a state in compliance with its laws, and ac- quired property therein, and paid taxes upon the same, and is subject to the jurisdiction of its courts, is a person within the jurisdiction of the state within the meaning of the Four- teenth Amendment of the Federal Constitu- tion. Southern R. Co. v. Greene (U. S.), 17-1247. Discrimination in general. — A law is not to be regarded as class legislation simply because it affects one class and not another, provided it affects all members of that same class alike, and the classification involved is founded upon a reasonable basis. Such a law is general and not special. State V. Mayo (Me.), 20-512. It is not necessary that a statute passed in the exercise of the police power shall apply equally and uniformly to all persons of the state. It is sufficient to satisfy the constitutional requirements of equal protec- tion of the law if it applies equally and uniformly to all persons similarly situated. Atlanta Coast Line R. Co. v. Coachman (Fla.), 20-1047. Discrimination between corporations and persons.— The Vermont statute re- quiring corporations to produce their books and papers does not violate the Fourteenth Amendment of the Constitution of the United States as arbitrarily discriminating between corporations and natural persons and deny- ing to the fbrmer the equal protection of the laws, the general difference between corpora- tions and natural persons in this respect making the distinction a proper one. In re Consolidated Rendering Co. (Vt.), 11- 1069. A statute providing for the production of books and papers in court which is confined to corporations alone does not make an im- proper classification in this regard, or deny to corporations the equal protection of the laws. Consolidated Rendering Co. v. Ver- mont (U. S.), 12-658. The Washington statute making it unlaw- ful for any person to sell • railway tickets unless he has a certificate from the railway company showing his authority so to do is not unconstitutional as denying ticket brokers the equal protection of the laws or as granting to railroad companies special privileges which are not enjoyed ' by other citizens. In re O'lSTeill (Wash.), 6-869. Discrimination betxireen different kinds of corporations. — A statute pro- viding that every " mining, quarrying, manu- facturing, mercantile, telegraph, telephone, railroad, or other transportation corpora- tion" and every "incorporated express, water, electric light or power company doing business in this state shall pay each week, in lawful money, each employee engaged in the business, the wages earned by such em- ployee to a day not more than Six days prior to the date of such payment," and that " no such corporation shall pay its employees in scrip, vouchers, due bills, nor store orders, except it be a co-operative corporation in which the employee is a stockholder, but shall on request of such shareholding employee pay him as provided in the act," does not deny to a railroad corporation the equal protec- tion of the laws, as the statute includes all corporations of the class of railroad com- panies, and need not include all corporations doing business in the state in order to con- form to the equality clause of the Fourteenth Amendment. Lawrence v. Rutland R. Co. (Vt.), 13-475. Such statute is not open to the constitu- tional objection that it cannot operate equally upon all employers with its provisions be- cause it may include foreign corporations which the state cannot control, as such for- eign corporations doing business in the state are just as amenable to the laws of the state in respect to business done in the state as are domestic corporations. Lawrence v. Rut- land R. Co. (Vt.), 13-475. Discrimination bettreen adults and children.— The Massachusetts compulsory vaccination law does not deny equal protec- tion of the laws because it makes an excep- tion in favor of children certified by a reg- istered physician to be unfit for vaccination. CONSTITUTIONAL LAW. 507 but does not except adults in a like condition. Jacobson v. Massachusetts (U. S.) , 3-76o. Statnte discriminating b e t iv e e n places.— The New York statute (L. 1904, c. 432 ) entitled " An act to regulate the keep- ing of employment agencies in the cities of the first and second class where fees are charged for procuring employment or sit- uations," and requiring such agencies to pro- cure licenses before doing business, is not, on account of its applying only to cities of the first and second class, in violation of the equal rights clause of the Fourteenth Amend- ment of the Federal Constitution, as the equality within the meaning of that clause does not necessarily mean a territorial equal- ity, and the clause does not prohibit legisla- tion which, though limited in the sphere of its operations, affects alike all persons similarly situated within such sphere. Peo- ple V. Warden of City Prison (N. Y.), 5-325. Bnilding regulations. — Where a stat- ute restricts the height of buildings within a particular district of a city, the fact that the land within such district is hilly and that under the statute the maximum height of buildings permitted to be erected is measured from the highest point -within the district, does not, by enabling owners of lower ground to build taller buildings than owners of higher ground, deny the latter the equal pro- tection of the laws. Cochran v. Preston (Md.), 15-1048. Validity of statnte exempting clinrcltes. — Such statute is not invalid on the ground that it exempts churches from its operation, because there is not the same reason for regulating the height of churches as of some other buildings. Cochran v. Pres- ton (Md.), 15-1048. Regulation of dancing schools. — The New York statute (Laws 1909, c. 400) providing that dancing shall not be taught or permitted " in any public dancing academy," defined as a room or place in which dancing is taught, and which is so designated by pub- lic notices, unless such place shall be licensed, is unreasonably discriminative, in that it ap- plies only to places where dancing is " taught," that it does not prescribe any moral or other standard in the conduct of the dance, and that it contains no require- ments as to the healthfulness of the place which are not covered by other statutes. People V. Wilber (N. Y.), 19^626. Prohibiting use of flag for advertis- ing purposes. — The provisions of the Ne- braska statute making it a misdemeanor to use the national flag for advertising pur- poses, which expressly excepts from the operation of the statute any periodical, news- paper, book, etc., on which shall be printed, painted, or placed a representation of the national flag, " disconnected from any ad- vertisement," does not render the statute unconstitutional as making an unreasonable or arbitrary classification, or as denying to one class the equal protection of the laws. Halter v. Nebraska (U. S.), 10-525. Iiitigation between white persons and negroes.— Where the plaintiffs did not al- lege or base their proceedings on the fact that the defendants were colored persons, and the judge charging the jury made no reference to the racial or social status of either the plain- tiffs or the defendants but submitted the issues as to the rights of the parties without reference to race or color, and the evidence authorized the finding against the defendants regardless of any consideration of their color, it cannot be held that such finding was in conflict with that provision of the constitu- tion of the United States which declares, " nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Creswill v. Grand Lodge (Ga.), 18-453. 11. Right to Speedy Tbiai,. In general. — The Minnesota statute making it an offense for any newspaper to publish any account of the details of an execution of a sentence of death beyond a statement of the fact that the " convict was on the day in question duly executed accord- ing to law," is not violative of the provision of the state constitution that in all criminal prosecutions the accused shall have a right to a, speedy and public trial. State v. Pioneer Press Co. (Minn.), 10-351. Reasonable time to secure \ritnesses. — The constitutional provision guaranteeing to an accused person a " speedy public trial " must be construed so as to allow officers rep- resenting the state in a criminal prosecution reasonable time in which to secure the attend- ance of witnesses, and is not violated by granting one continuance, on the motion of the state's attorney, on the ground of the ab- sence of material witnesses. State v. Pratt (S. Dak.), 11-1049. 12. Immtjnitt prom Searches and Seizures. Validity of statute authorizing seizure and destruction of gaming paraphernalia, see Gaming and Gaming Houses, 4. Statnte requiring production of documents. — The Vermont statute provid- ing in substance that any corporation doing business in the state shall, upon notice, pro- duce before any court, grand jury, tribunal, or commission acting under the authority of the state, all of the books, documents, cor- respondence, memoranda, papers, and data, containing any account of, reference to, or information concerning the suit, proceedings, action, charge, or subject of inquiry, pending before or to be heard by such court or tri- bunal, is not in contravention of the Vermont constitution as authorizing a search and seizure of books and papers of the corpora- tion, or as compelling the production of the books and papers in court vrithout provid- ing compensation, or as requiring the pro- duction of all the books and papers in the custody of the corporation instead of only such as are admissible in evidence. In re Consolidated Rendering Co. (Vt.), 11-1069. A statute requiring corporations to produce 508 ANN. CAS. DIGEST, VOLS. 1-20. their books and papers before a court or grand jury upon notice is not invalid as au- thorizing an unreasonable search and seizure of private books and documents. Consoli- dated Rendering Co. v. Vermont (U. S.), 12-658. 13. Eepublican Form of GtOveenment. Initiative and referendum. — The in- itiative and referendum provisions in the Ok- lahoma constitution (art. 5. §§ 1, 2, 3, 4, 5, and art. 18, § 4, 5) are not in conflict with the Constitution of the United States (§ 4, art. 4), guaranteeing to every state a re- publican form of government. Ex parte Wagner (Okla.), 18-197. Initiative and referendum as consistent with republican form of government, see also municipai, corporitions, 2. 14. Inteefebence with Vested Rights. Regulation of right of action for personal in juries. — The Pennsylvania stat- ute providing that any person sustaining in- jury or loss of life while lawfully engaged or employed on or about a railroad, though not employed by the railroad, may recover against the railroad only as if he were its employee, but exempting passengers from its operation, is not, as applied to persons in- jured after its passage, violative of the Fed- eral Constitution as taking away a vested right of recovery or a vested right of prop- erty. Martin v. Pittsburg, etc., R. Co. (U. S.), 8-87. Retrospective laivs applicable to county. — The constitutional prohibition against retroactive legislation which would affect vested rights is intended for the pro- tection of individuals and does not apply to legislation recognizing and affirming a moral obligation of a subordinate branch of the state (e. g., a county) with respect to a past transaction. Cullman County v. Blount County (Ala.), 18-322. 15. Impaiement of Obligation of Conteacts. a. In general. Effect of statute of limitations, see Limita- tion OF Actions, 1 b. Statute prescribing duration of judgment lien, see Judgments, 5 b. Judicial decisions. — ^ The provision of the Federal Constitution that no state shall pass any law impairing the obligation of contracts applies only to legislative enactment, and has no application to judicial decisions. King v. Phoenix Ins. Co. (Mo.), 6-618. The prohibition of the Federal Constitu- tion against the enforcement by the state of a law impairing the obligation of contracts is not infringed by the refusal of the court of last resort to follow the decision of the in- ferior court. Sedalia v. Donohue ( Mo. ) , 4-89. In an action to enforce the payment of municipal bonds, where it is alleged that the bonds are void because they were issued for a purpose for which the municipality was not authorized to issue bonds, the plaintiff can- not contend that the court is committed to the doctrine that a municipality may issue negotiable bonds for such a purpose and that to hold to the contrary now would be violative of the constitutional prohibition against the impairment of the obligations of contracts, if it appears that in the only cases which tend to support the plaintiff's contention the language used was obiter, and that in one of those cases the language was based upon a then overruled case decided by the United States supreme court. Swanson V. Ottumwa (Iowa), 9-1117. Contracts made pending enactment of law. — Where a valid act has been passed by tlie legislature it is no defense to a prose- cution for a violation thereof that before its taking effect contracts had been entered into by the defendant with which the law inter- fered. Commonwealth c. R. I. Sherman Mfg. Co. (Mass.), 4-268. Repeal or change of remedy. — Repeal or change of remedy for the enforcement of a contract as impairing its obligations. Har- rison r. Remington Paper Co. (U. S.), 5-314. Exemption front tasation as contract. — The Michigan statute in reference to road improvement providing that a township which shall adopt and carry out the provi- sions of an act shall not be liable for any tax for a county road system, and the action of a township in pursuance thereof, do not constitute a contract which cannot, by sub- sequent legislation, be impaired without doing violence to the federal and- state constitu- tions. Board of Supervisors v. Hubinger (Mich.), 4-792. Statute changing priority of liens. — An act of the legislature which postpones an existing valid mortgage lien and makes a subsequently created lien superior to the mortgage lien is a law impairing vested prop- erty rights and impairing the obligations of a contract, and is void for conflict with the constitution of the United States. National Bank of Commerce r. Jones (Okla.), 11- 1041. Right of action for personal injuries. — A claim on an action for tort for a per- sonal injury is not within the protection of the constitutional provision which forbids the passing of laws impairing the obligation of contracts, though it ig a valuable personal right, and probably within some of the broad provisions of the declaration of rights in the constitution of Massachusetts. Mulvey r. Boston (Mass.), 14-349. Statute prohibiting tichet brokerage. — The Oregon statute prohibiting ticket brokerage is prospective and not retro- spective in effect, and is neither a law im- pairing the obligation of contracts nor an ex post facto law. State v. Thompson (Ore- gon), 8-646. Statute regulating payment of wages. — Under a provision of a corporate charter reserving to the state the power to amend, alter, or repeal the charter as the public good requires, the legislature has power to CONSTITUTIONAL LAW. 509 require the corporation to pay its employees their wages in lawful money each week to a, day not more than six days prior to such payment, and such requirement does not im- pair any obligation of the charter contract in violation of the Federal Constitution, es- pecially where the corporation belongs to a class of corporations clothed with a public trust and discharging duties of public con- cern affecting the community at large. Law- rence V. Rutland R. Co. (Vt.), 13-475. A statute providing that certain corpora- tions shall pay the wages of their employees within a certain time in lawful money does not impair the constitutional rights of the stockholders of a corporation affected thereby, as persons who become stockholders in a cor- poration must be considered to have assented to any legislation enacted within the reserved power of the state to amend the corporation's charter. Lawrence v. Rutland E. Co. (Vt.), 13-475. b. Franchises as contracts. Franoliise granted by mnnicipal or- dinance. — The section of the Alabama con- stitution which provides that every grant of a franchise shall remain subject to revocation refers to grants made by the legislature and to revocations by the legislature, or perhaps by its authority of grants of franchises made by that body, and does not authorize the adoption by the municipality of an ordinance revoking a prior ordinance granting for a valuable consideration a franchise for a waterworks system, at least when the legis- lature has not attempted to confer on the city council the power to revoke such fran- chise. Weller v. Gadsden (Ala.), 3-&81. Where a gas company accepts a municipal ordinance granting the privilege of using the streets for the purpose of supplying gas to consumers, a contract is constituted binding equally upon the city and the company under which, when acted upon, rights become vested, and which cannot be injpaired by subsequent municipal action. Rushville )". Rushville Natural Gas Co. (Ind.), 3-86. Franchise not purporting to lie ex- clnsive. — A contract whereby a city grants to a waterworks company the right to con- struct, own, and operate the waterworks for a specified number of years does not exclude the city from entering into competition with the compsmy during the life of the franchise, unless it contains words clearly depriving the city of the right of competition; and the construction and operation of the waterworks by the city neither impair the contract not amount to taking property without due pro- cess of law or without just compensation. Meridian v. Farmers' Loan, etc., Co. (U. S.), 6-599. Ezclnsive franchise. — A valid contract, whereby a city grants a waterworks company the exclusive right to supply water in the city for a definite period, must be construed as excluding the city itself from competing with the company during the specified period; and when so construed the contract is entitled to the protection afforded contracts by the constitution of the United States. Vicksburg V. Vicksburg Waterworks Co. (U. S.), 6-253. Where a city has entered into a binding contract granting the exclusive right to sup- ply water to a waterworks company which holds its charter subject to a constitutional provision which so restricts the right of al- teration, amendment, or repeal that "no in- justice shall be done to the stockholders," a statute authorizing the city to build its own waterworks does not justify the city in entering into competition with the com- pany. Vicksburg v. Vicksburg Waterworks Co. (U. S.), 6-253. Ordinance fixing rates chargeable by ivaterworks company. — An accepted or- dinance which provides for such rates " as may be agreed upon between the consumer and water company not exceeding " specified rates constitutes a contract by the city that it will not reduce the rates below those speci- fied during the term of the contract, and any such attempted reduction thereof by the city or its water board under the law of the state impairs the obligation of this contract. Omaha Water Co. v. Omaha (U. S.), 8-614. 16. Privileges and Immunities. Privilege of witnesses as to self-crimination, see Witnesses, 4 g. Right to bear arms, see Weapons. Self-crimination by trying on garment, see Criminal Law, 6 n (1 ) . Meaning of constitutional provision. — The clause of the Federal Constitution de- claring that " the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states " does not guarantee to the citizens in one state, while residents there, all the privileges that they would enjoy if they resided in another state. McCarter v. Hudson County Water Co. (N. J.), 10-116. The Fourteenth Amendment to the Federal Constitution deals only with the rights of citizens of the United States as such, and the privileges and immunities protected thereby are those of citizens of the United States, as distinguished from the citizens of a state. Shaw V. Marshalltown (Iowa), 9-1039. Privilege of witness. — The constitu- tional inhibition against compelling a person to incriminate himself does not apply to a criminal prosecution wherein the accused is not compelled to testify or to produce any private papers that would incriminate hini, and where no presumption is indulged or per- mitted against him because of his silence Cohn V. State (Tenn.), 15-1201. Statute prohibiting ticket broker- a,ge. — An individual has not an unqualified right to sell and deal in tickets of a railroad, and therefore a statute prohibiting ticket brokerage does not deprive liim of the privi- lege or immunity protected by the Fourteenth Amendment to the Federal Constitution a'. the right in question is not one of the funda- mental rights embraced in that amendment State J'. Thompson (Oregon), 8-646. The Oregon statute prohibiting ticket brolv 510 AJs\N. CAS. DIGEST, VOLS. 1-20. erage is not repugnant to the provisions of the state constitution prohibiting laws "granting to any citizen or citizens privi- leges or immunities which, upon the same terms, shall not equally belong to all citi- zens," nor is it repugnant to the provision of the Fourteenth Amendment to the Federal Constitution prohibiting laws " which shall abridge the privileges or immunities of citi- zens of the United States." State v. Thomp- son (Oregon), 8-646. Frodnction of documents in liquor prosecution.— The constitutional guaranty against compelling a person accused of crime to give evidence against himself is violated by compelling a druggist to produce before the grand jury prescriptions and statements on which he has sold intoxicating liquors, under the Indiana statute (Burns's Ann. f ^ 1908, §§ 8351, 8352) providing that any per- son not licensed who shall sell spirituous liquors, except as therein provided, shall be guilty of misdemeanor, except that none of the provisions of such section shall apply to any licensed druggist, and that any druggist may sell liquor for medicinal, industrial, or scientific purposes on the written prescription of a physician or written application of anj' other person stating that the liquor is de- sired and will be used for medicinal, scien- tific, or educational purposes only, which pre- scriptions and statements must be preserved by the druggist for at least a year. Since there is no provision authorizing police in- spection of such statements and prescriptions, or requiring them to be filed in a public office, they are private documents. State v. Pence (Ind.), 20-1180. 17. LiBEBTY OF Speech, Press, and Assem- blage. Prohibiting publication of reports on candidates. — A statute prohibiting civic leagues and similar associations from pub- lishing reports on candidates or nominees for public oflice which do not contain the in- formation on which such reports are based, the names and addresses of the persons fur- nishing such information, and the information furnished by each of them, such statute not being limited to reports containing blas- phemous, obscene, seditious, or defamatory matter, impairs the constitutional guaranty of freedom of speech. Ex parte Harrison (Mo.). 1,5-1. Prohibiting publication of report of execution of death penalty. — The Min- nesota statute making it an offense for any newspaper to publish any account of the de- tails of an execution of a sentence of death beyond the statement of the fact that the " convict was on the day in question duly executed according to law," is not violative of the provisions of the state constitution pre- serving the liberty of the press. State v. Pioneer Press Co. "(Minn.), 10-351. Right of assemblage.— The Wisconsin constitution (art. 1, § 4), guaranteeing the right of the people to assemble and consult for the common good, guarantees the right of assemblage and of consultation, and the primary election law (Laws 1903, a. 451) does not interfere with that right, and, in lieu of congregating at caucuses and selecting del- egates to assemble and represent them, the voters may assemble at the polls in different polling places and consult and express their choice of candidates, and the right of any political party to assemble in convention and consult for the public good is unimpaired. State V. Frear (Wis.), 20-633. 18. Unifobm Opebation of General Laws. Uniform operation of criminal statutes, see Game and Game Laws, 8 a ( 2 ) . What constitutes.— A law which ap- plies alike to all the subjects upon which it acts, or a law which applies equally to all persons or things within a legitimate class to which alone it is addressed, is neither local nor special, and does not violate a constitu- tional provision requiring laws of a general nature to have a uniform operation; but the classification is not a proper one for distinct legislation unless it is founded upon some natural, intrinsic, or constitutional distinc- tion which bears some relation to, or fur- nishes a cause for, the particular legislation embraced in the statute. Ex parte Sohncke (Cal.), 7-475. Municipal ordinances. — An ordinance is not invalid if it operates alike upon all persons similarly situated, except in case of those who acquired contract rights prior to its adoption. J. Burton Co. v. Chicago (111.), 15-965. Exception of agricultural contracts. — A statute prohibiting the payment of wages for labor by order or check not re- deemable in cash is not unconstitutional be- cause containing an exception in favor of agricultural contracts or advances made for agricultural purposes. Johnson, Lytle & Co. V. Spartan Mills (S. Car.), 1-409. 19. Special Legislation. Sales in bulk act as class legislation, see FBAtTDDLENT CONVEYANCES, 3 a. Statutes relating to Indians as class legisla- tion, see Indians. Prohibition confined to direct legis- lation. — The restrictions of the Pennsyl- vania constitution on special legislation ap- ply to direct legislation only, and not to the incidental operation of statutes which are constitutional in themselves upon other sub- jects than those with which they deal di- rectly. Stull V. Reber (Pa.), 7-415. If a statute relates to persons, places, and things as a class, and is neither local nor temporary, the mere fact that its practical effect is special and private does not neces- sarily prove that it violates constitutional provisions against special legislation. St. John V. Andrews Institute ( N. Y. ) , 14-708. Laws regulating county or toimship business. — The construction of a courthouse by a county for county purposes is eountv business within the meaning of a constitu- tional provision prohibiting the legislature CONSTITUTIONAL LAW. 511 from passing local or special law* regulating " county and township business," and a stat- ute prohibiting the building of courthouses in counties having a prescribed population except upon the petition of a specified num- ber of freeholders is a regulation of county business. Kraus v. Lehman (Ind.), 15- 849. Class legislation. — A statute that re- lates to persons or things as a class is a general law, and when conditions reasonably justify the distinguishing of a class, and the law affects equally all who come within that class, such law does not violate the constitu- tional provision against class legislation. State V. Swagerty (Mo.), 11-725. Classification for purpose of regu- lation. — Assuming that in enacting a law upon a subject upon which local or special laws are expressly prohibited by the con- stitution the legislature may, by resorting to a classification, make a general law within the meaning of such prohibition, there must be reason or necessity for the classification which must inhere in the subject-matter and must be natural and not artificial, and the question whether the classification is reason- able or necessary is reviewable by the courts. Kraus v. Lehman (Ind.), 15-849. Classification adopted for legislative regu- lation should have some just relation to, or reasonable basis in, essential differences of conditions and circumstances with reference to the subject regulated, and should not be merely arbitrary, and all similarly situated or having similar legal duties and obligations in regard to the subject regulated should be included in one class, at least where there are no practical differences that are sufficient to legally warrant a further or special classifica- tion in the interest of the general welfare. Seaboard Air Line R. v. Simon (Fla.), 16- 1234. The legality of classification adopted for legislative regulation may be determined with reference to the process of law provision of a state constitution; but as such determination involves a federal question the decisions of the supreme court of the United States con- trol. Seaboard Air Line R. v. Simon (Fla.), 16-1234. Classification according to popula- tion. — In a statute prohibiting the board of commissioners of every county having a pop- ulation of more than twenty-five thousand from contracting for the construction of a new courthouse except upon the petition of five hundred of the freeholders of the county, the classification according to population is purely arbitrary, and such statute is there- fore a special or local law within a constitu- tional provision prohibiting the legislature f lom passing local or special laws " regulating county and township business." Kraus v. Lehman (Ind.), 15-849. Indiana statute regulating mode of payment of v^ages. — The Indiana stat- ute regulating the time and mode of payment of wages is not unconstitutional as special legislation. Seelyville Coal, etc., Co. v. Mc- Glosson (Ind.), 9-234. 20. Delegation of Legislative Power. In general. — The entire legislative powor of the state is by the constitution vested exclusively in the legislature, and no part of that power can be transferred or delegated by the legislature to either of the other de- partments of the government. State v. Butler (Me.), 18-484. Except as authorized by the constitution, the legislature cannot delegate power to make a law. State v. Frear (Wis.), 20-633. The Wisconsin constitution, outside of article 4, section 22, and article 11, section 3, empowering the legislature to confer on boards of supervisors powers of a local leg- islative character, and requiring the legisla- ture to provide for the organization of in- corporated cities and villages, does not recog- nize any distinction between general and local laws, and no reason exists for applying a different rule to a local law from that ap- plicable to a general law on the question whether either law shall not become operative until approved by the people. State v. Frear (Wis.), 20-633. Referendum. — A referendum on any gen- eral law is constitutional, because the power to make the law is not thereby delegated to the electors. State v. Frear (Wis.), 20-633. The legislature may enact conditional laws of a purely local nature, and refer the same to the people locally to decide whether the same shall become effective in the locality in whi(ih they reside. State v. Frear (Wis.), 20-633. Creation of public office by governor. — Section 8 of chapter 92 of the Maine Pub- lic Laws of 1905, enacting that " the gover- nor may, after notice to and opportunity for the attorney for the state for any county to show cause why the same should not be done, create the office of special attorney for the state in such county and appoint an attorney to perform the duties thereof " is unconsti- tutional and without any force of law for the reason that the creation of the office is left to the discretion of the governor contrary to the constitution. State v. Butler (Me.), 18-484. Power to determine fact. — The legis- lature of a state may designate the power to determine some fact or state of things upon which a statute makes, or intends to make, its own action depend. Elwell v. Comstock (Minn.), 9-270. The legislature, though having no right to delegate its power to make a law, can make a law to become operative on the happening of a certain contingency, or on the ascertain- ment of a fact on which the law makes or intends to make its own action depend. State V. Frear (Wis.), 20-633. Power to fix rates. — The New York statute enacting that there shall be maxi- mum rates for the charges of gas and elec- tric light companies, and conferring on a commission to be appointed by the governor the duty to investigate, determine, and fix, upon complaint of municipal authorities or consumers, and after a public hearing, a rea- 512 ANN". CAS. DIGEST, VOLS. 1-20. sonable maximum rate to be charged in the particular case, is not unconstitutional as delegating to an administrative body legisla- tive and administrative powers, or as blend- ing legislative and administrative powers in the same officers in violation of the provision of the Federal Constitution guaranteeing to every state a republican form of government. Saratoga Springs v. Saratoga Gas. etc., Co. (N. Y.), 14^606. Such statute, in providing that the com- mission for fixing gas and electric light rates shall fix the rates within the limits prescribed by law, refers to both statute and common- law limitations and thus requires that the rates shall be reasonable, and therefore the act is not objectionable as committing to an administrative board arbitrary power to de- termine the tariflf of rates. Saratoga Springs V. Saratoga Gas, etc., Co. (N. Y.), 14-606. Such statute, in providing that on written complaint being made as to the illuminating power, purity, pressure, or price of gas or electricity sold by any company, the commis- sion shall investigate the cause of complaint, and may by its agents and inspectors inspect the works, plants, and books of the company, and providing for a public hearing, that no- tice of the complaint shall be served on the corporation affected thereby and that both the complainants and the corporation shall have an opportunity to be heard and to be represented by counsel, and giving the com- mission power to subpoena witnesses, take testimony, • and administer oaths in any prO: ceeding or examination instituted before it or conducted by it under the provisions of the act, and providing that orders of the commis- sion on its own notice or without complaint shall be made only after reasonable notice to the corporation to prepare its defense or ob- jection to the demands of the commission, contemplates that the investigation and re- port of agents and inspectors are to follow the filing of any complaint and to precede or to be made during the public hearing, and that the whole proceeding shall assume a guasi-judicial aspect, and is not objectionable as authorizing orders by the commission based not only on the evidence and proceed- ings had at the public hearing but on the esc parte statements of the officers, agents, and inspectors of the commission which the com- pany mayhave no knowledge or opportunity to controvert, Saratoga Springs v. Saratoga Gas, etc., Co. (N. Y.), 14-606. The provision of such statute which em- powers the appellate division of the supreme court to review the orders of the commission is not open to the objection that it confers nonjudicial functions on the reviewing court. Saratoga Springs v. Saratoga Gas, etc., Co. (N. Y.) 14-606. Power to determine qualification for license. — The Oregon statute providing for the licensing of barbers is not unconstitu- tional as a delegation of legislative power because it vests authority in a board of ex- aminers to prescribe the qualifications of bar- bers. State r. Briggs (Oregon), 2-424. 21. Statutes Contebrinq Judiciai, Func- tions. Kansas anti-tmst act. — A proceeding before a court or judge upon the application of the prosecuting attorney under the Kansas anti-trust law of 1897 to subpoena witnesses to testify of their knowledge of the violations of the provisions of such act is a valid exer- cise of judicial power, and the procedure is dvie process of law within the Federal Consti- tution. State u. Jack (Kan.), 2-171. Nonjudicial bodies. — Ko provision of the Federal Constitution directly or impliedly prohibits a state from conferring upon non- judicial bodies functions of a judicial nature. Consolidated Rendering Co. v. Vermont (U. S.), 12-658. The Washington statute making it unlaw- ful for any person to sell railway tickets unless he has a certificate from the railway company showing his authority so to do is not open to the objection that, by empowering railroad companies to issue or withhold cer- tificates of authority at their own will, it delegates to such companies the power to create crimes and to say who are criminals. In re O'Neill (Wash.), 6-869. 22. Amendatory Legislation. Modification of existing laws by gen- eral statute, — Changes or modifications of existing statutes as an incidental result of a new law covering the entire subject are not forbidden by section 11, article III, of the Nebraska constitution. Eaton v. Eaton (Neb.), 1-199. 23. Unwise, Unjust, or Impolitic Legis- lation. In general. — The constitutionality of a legislative act can be determined only by reference to constitutional restraints and no statute will be held void because unwise or imjust in the opinion of the court. Block v. Schwartz (Utah), 1-550. If it is within the power of the legisla- ture to enact a statute, the courts will not declare the statute invalid merely because it may seem harsh and imreasonable. State v. Swagerty (Mo.), 11-725. It is for the legislature to determine from time to time the occasion and what laws and regulations are necessary or expedient for the defense and benefit of the people; and however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws and regulations are to be held valid unless there can be pointed out some provision in the state or United States Constitution which clearly pro- hibits them. Opinion of Justices (Me.), 13-745. When the legislature has constitutional au- lliority to enact a law to promote the public safety, and does enact it. the expediency of its enactment is not to be passed upon by the court. Tn such ease the legislaturs deter- mines by the enactment that the law is rea- sonable and necessary. State (•. Mayo (Me.), 20-512. CONSTITUTIONAL LAW. 513 The reasonableness of a penalty for the failure to perform a public duty is primarily for the judgment of legislators, and courts will not interfere with the discretion of the legislature in this regard as long as it keeps within the fair and reasonable scope of its powers. If such liabilities are considered in- expedient or illogical the court cannot say the legislature has transcended its power. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. Contravention of public policy. — The courts will not declare a constitutional stat- ute void as against public policy, as a legis- lative act, if constitutional, declares in terms the policy of the state and is final so far as the courts are concerned. Board of Park Com'rs V. Diamond Ice Co. (Iowa), 8-28. Motive not subject to judicial in- qniry. — The purpose and motive of Congress in exercising its lawful legislative powers is not a subject for judicial inquiry. McCray v. United States (U. S.), 1-561. Questions relating to the wisdom, policy, and expediency of statutes are for the legis- lature and not for the courts to determine. Ex. p. Boyce (Nev.), 1-66. Statute imposing burden on trade or business. — The fact that a statute or ordi- nance which may reasonably be regarded as conducive to the public welfare regulates a trade or business or lays some burden upon it does not render it unconstitutional. Indi- ana R. Co. V. Calvert (Ind.), 11-635. Regulation under police power. — When any measure adopted by the legislative department of the state has a real and sub- stantial relation to the police power, the courts may not vacate the same upon the ground that it is unreasonable or unwise. State V. Hyman (Md.), 1-742. 24. Selt-Executing Constitutional Pbo- VISIONS. See also Change of Venue, 1 a; Municipal CORPOEATIONS, 2. What provisions are self-executing, in general. — When a provision of a con- stitution is self -executing. Newport News V. Woodward (Va.), 7-625. The provision of the Virginia constitution concerning the suspension and removal of policemen is not self-executing. Newport News V. Woodward (Va.), 7-625. Statute prohibiting miscegenation. — A constitutional provision, prohibiting marriages between white persons and persons having one-eighth, or more, negro blood, is self-acting, in the absence of any other pro- vision in the same instrument limiting its operation. Succession of Gabisso (La.), 12- 574. Initiative and referendum. — The in- itiative and referendum provisions of the Oklahoma constitution are not self-executing, but are made effective by an act of the legis- lature approved April 16, 1908. Ew p. Wag- ner (Okla.), 18-197. Until the initiative and referendum pro- VoM, 1-20 — Ann. Gas. Digest, — 33, visions of the Oklahoma constitution were made effective by legislation, a petition for a referendum of an ordinance filed with the chief executive officer of a municipality of the first class was of no effect. Ex p. Wag- ner (Okla.), 18-197. Xlffeot upon prior inconsistent stat- ute.— A constitutional provision is self- executing as to, and propria vigore annuls, an inconsistent act of the legislature passed prior to its adoption. Monaghan v. Lewis (Del.), 10-1048. 25. General Pbinciplbs Gcveening Deter- mination AS TO Constitutionality of Statutes. a. Who may raise constitutional question. A litigant who is not shown to have been prejudiced by the enforcement of an act of the legislature is not in position to assail such act on the ground of its being uncon- stitutional. Cram v. Chicago, etc., R. Co. (Neb.), 19-170. Who may question constitutionality of ordi- nances, see Municipal Corporations, 5 f (1). Until the highest court of Massachusetts has decided that the Massachusetts compul- ■ory vaccination law establishes an absolute rule that an adult must submit to vaccina- tion, though by reason of his physical condi- tion he is not a fit subject thereof, the United States supreme court will not hold such stat- ute unconstitutional at the instance of an adult who has refused to obey it, but who fails to show that he was not a fit subject of vaccination at the time of the refusal to obey. Jacobson v. Massachusetts (U. S.), 3-765. b. Duty of courts to maintain constitution. Statute clearly unconstitutional. — While an act of the legislature should not be held unconstitutional except in cases where the conflict between the legislative act and the constitution is clear and irreconcilable by any reasonable interpretation, yet when there is such a conflict as in the case at bar, the court must declare the act void, for the duty of the court to maintain the constitu- tion as the fundamental law of the state is imperative and unceasing. State r. Butler (Me.), 18-484. c. Presumption in favor of constitutionality. See also Statutes, 2. In general. — The acts of the legislature are presumed to be valid until it is clearly shown that they violate some constitutional restriction. Ex p. Boyce (Nev.), 1-86. The presumption always is that an act of the legislature is constitutional; and when the constitutionality of an act depends upon the existence or nonexistence of some fact or state of facts, the determination thereof is primarily for the legislature, and the court? will ?icquiesce in the legislature's in- )14 ANN. CAS. DIGEST, VOLS. 1-20. cision unless it appears to be clearly erron- eous. In re Spencer (Cal. ), 9^1105. There are no limitations upon the power of the legislature in South Dakota except such as are imposed by the state and federal con- stitutions, and no legislative act should be declared unconstitutional if there is any rea- sonable doubt of its invalidity and if it is susceptible of any reasonable construction consistent with the constitution. In re Wat- son (S. Dak.), 2-321. A statute should not be declared unconsti- tutional unless it clearly runs counter to the letter or the spirit of some provision of the state or federal constitution. State v. Frear (Wis.), 20-633. A liberal rule of construction should be ap- plied when the constitutionality of a statute is questioned and every reasonable doubt should be resolved in favor of the validity of the statute assailed. The court should, in deference to the legislative department of the government, uphold a statute alleged to be unconstitutional, unless it is clearly made to appear beyond a reasonable doubt that the statute is unconstitutional. Atlantic Coast Line R. Co. v. Coachman (Fla.), 20-1047. All doubts as to the constitutionality of a statute should be solved in its favor. Ex p. Berry (S. C), 20-1344. Statute in force for many years. — A state court will not declare a statute un- constitutional unless its invalidity is clear, certain, and beyond question, where the stat- ute has been regarded as valid and has been enforced without question as to its constitu- tionality by the court and other courts of the state for about fiftv years. Hill v. Tohill (111.), 8-423. Compnlsory vaccination act. — It will be presumed that a state legislature when enacting a compulsory vaccination statute knew of the theory against vaccination and deliberately adopted the opposite theory, and it is therefore not error to reject an oflfer to prove the inadvisability of vaccination, as the discretion of the legislature in adopt- ing the latter theory will not be reviewed by the courts. Jacobson v. Massachusetts (U. S.), 3-765. Statute prohibiting sale of cigarettes. — That the Indiana statute prohibiting the sale, etc., of cigarettes was not designed to apply to the act of smoking cigarettes, or to the act of having them in possession for the sole purpose of smoking, is shown by the fact that if the statute could be construed as prohibiting such acts it would be uncon- stitutional as to persons importing cigarettes in original packages for personal consump- tion, and that construction would violate the rule that the statute should be so construed if possible as to prevent it from being un- constitutional under any circumstances. State V. Lowry (Ind.), 9-350. d. Declaring statute unconstitutional in part. In general. — A statute may be unconsti- tutional and void as to its application to a part of its subiect-matter, and valid as to other parts. Woods r. Carl (Ark.), .5-423. Independent provisions. — An unconsti- tutional section of a statute, if it is so inde- pendent of other sections as not to affect their constitutionality, may be declared void with- out invalidating the entire statute. Fite v State (Tenn.), 4-1108. Though certain sections of an ordinance are unconstitutional, if the general object of the enactment is not affected thereby, a sev- erable section will not be rendered invalid by the unconstitutionality of the others. St. Louis V. Liessingf (Mo.), 4r-112. Nonseparable provisions. — Where a statute is partially unconstitutional, and the obnoxious section or part is of such import that the other sections or parts, without it, would cause results not contemplated or de- sired by the legislature, the entire statute must be held void. State r. Patterson (Fla.), 7-272. Where the unconstitutional provisions of a statute are not separable from those which are valid, in such a way as to raise the pre- sumption that the legislature would have enacted the valid without the invalid portion, the statute will not be enforced even as to that portion which standing alone would be valid. Commonwealth v. Hana (Mass.), 11- 614. In case of a scheme of legislation for a particular purpose, created by the enactment of a law specially referring to the subject, and to other laws required for a complete plan, if the special enactment is the inducing pro- vision and is unconstitutional, the whole is inefficient. The matter is governed by the rule that where a part of the law is uncon- stitiitional and was the inducement to the rest, which by itself would not have been enacted, the whole is void. Huber v. Martin (Wis.), 7-400. If a statute is unconstitutional as to a part so connected with the general scope of the statute that it cannot be separately en- forced, the whole statute is invalid. Inter- national Text-book Co. v. Pigg (U. S.), 18- 110.3. Penal statutes. —A highly penal statute must be declared void as a whole, where a portion of it is unconstitutional and the legis- lative intent cannot be given effect by sus- taining and enforcing the valid portions. State V. Cudahy Packing Co. (Mont.), 8- 717. 26. Interpretatiost and Constbtjction op cowstitctions. a. In general. Recourse to common laxr. — In inter- preting the Federal Constitution, recourse must be had to the aid of the common law. South Carolina v. United States (U. S.), 4-737. Supplying omissions. — The courts can- not supply what they deem to be unwise omissions from the constitution. State t'. Frear (Wis.), 20-633. Implied provisions. — That which is im- plied is as much a part of the Federal Con- stitution as that which is expressed. South CaroUna v, United States (U. S.), 4-737, COT^STITUTIONAL LAW. 515 Consideration of changed conditions. — While the Federal Constitution is a writ- ten instrument, the meaning of which does not alter, it must be so applied as to meet changed conditions embracing new conditions which are within the scope of powers in terms conferred. South Carolina v. United States (U. S.), 4-737. Consideration of surrounding facts and circumstances. — In construing a con- stitutional provision, the rule expressio tmiiis est exchisio alterius, like all other mere rules of construction applied to ambiguous words, yields to proof of surrounding facts and cir- cumstances which satisfactorily demonstrates that the meaning intended by the parties was different. Nunnemacher i\ State (Wis.), 9- 711. Provision requiring enactment of lanrs. — The provision of the Nevada consti- tution requiring the legislature to enact laws" for the removal of public officers guilty of malfeasance or nonfeasance does not authorize the legislature, in passing such laws, to dis- regard other provisions of the constitution applicable to the enactment of laws. Bell v. First Judicial District Court (Nev.), 6-9'82. Declaration of purposes of civil gov- ernment. — The general declaration in the constitution of the purposes of civil govern- ment is a limitation upon legislative power, designed, in part at least, to prevent clearly unreasonable enactments restricting natural rights. State v. Eedmon (Wis.), 15^08. V/eight of practical construction by administrative officers. — In case of an ambiguous law being executed by administra- tive officers as having a particular meaning which is reasonable, such practical construc- tion is entitled to more or less weight, ac- cording to circumstances, in determining the intent of the lawmakers. Where such prac- tical construction has obtained uninterrupt- edly for a very long period, particularly so long as fifty years, it is entitled to controlling weight in determining such intent. State v. Frear (Wis.), 16-1019. Consideration of contemporaneous judicial decisions. — Where it appears that at the time of the adoption of a constitutional provision the judicial decisions on the sub- ject were uniform, the court will, in the absence of anything indicating a contrary view, assume that the framers of the con- stitution intended the rule of interpretation then in vogue to be applied to it. Johnson v. Great Falls (Mont.), 16-974. Scope, effect and purpose of statute. — In passing upon the constitutionality, under the United States Constitution, of a state statute, regard must be had to the scope and effect of the statute and the results it was intended to accomplish, in ascertaining which the United States supreme court will follow the decision of the state court. Jacob- son V. Massachusetts ( U. S. ) , 3-765. b. Proceedings of constitutional convention. Right of courts to examine. — Courts are justified in examining the proceedings of the constitutional convention in order to de- termine the meaning of a doubtful provision of the constitution. Sanipoli v. Pleasant Valley Coal Co. (Utah), 10-1142. u. Contemporaneous legislative construction. Weight and effect. — Where, under iden- tical provisions in two successive stale con- stitutions exempting " manufacturers " from license taxation, the legislature has for more than twenty years imposed license taxes on the business of gas, electric, waterworks, tele- graph, and telephone companies, such con- struction is entitled to great weight. State 1'. New Orleans R., etc., Co. (La.), 7-724. The construction given by the legislature to the constitutional provisions dealing with legislative procedure is, though not conclusive, entitled to great weight. Johnson v. Great Falls (Mont.), 16-974. 27. Ameistdmbnt of Constitutions. Method of submitting to electors. — When a constitution is silent as to the manner of submitting a proposed amendment to the electors, the method, is subject to legislative control, and a general statute requiring the substance of a proposed amendment to be printed upon the ballot is not controlling when the joint resolution of the legislature submitting an amendment contains explicit provisions as to what the ballots shall eon- tain. People eaj rel. Board of Supervisors v. Loomis (Mich.), 3-751. Entry on legislative journals. — A requirement of the Michigan constitution as to the entry of a proposed amendment to the constitution on the legislative journals held to have been duly complied with. People em rel. Board of Supervisors v. Loomis (Mich.), 3-751. Necessity of approval by governor. — A proposition to amend the constitution, when formulated by the general assembly in the manner prescribed by the Maryland con- stitution and when no measures which are distinctively and essentially legislative in their nature are appended to it, does not re- quire the approval of the governor before it can be voted on by the people, and the governor has no authority to veto it. War- field V. Vandiver (Md.), 4-692. _ A proposed constitutional amendment which differs somewhat in phraseology from, but which is substantially in compliance with, the form required by law, does not embody such a legislative enactment as to be inoperative without the governor's approval. Warfield V. Vandiver (Md.), 4-692. Publication by governor. — If the gov- ernor refuses to publish a proposed consti- tutional amendment as required by the Maryland constitution, mandamus may be issued commanding such publication. War- field V. Vandiver (Md.), 4-692. Compliance with constitutional re- quirements. — A question submitted as a constitutional amendment does not become a constitutional amendment unless submitted and adopted in accordance with the pro- visions of the constitution. Utter v, Moselev (Idaho), 18-723. > 516 AliTN. CAS. DIGEST, VOLS. 1-20. The self-imposed limitations on the power of the people to amend their fundamental law should not be so construed as to defeat the will of the people, plainly expressed, on account of a slight and unimportant failure to comply literally with such limitations, if the requirements are suhstantially observed. State ece rel. Thompson v. Winnett (Neb.), 15-781. Where there has been a substantial com- pliance with a constitutional requirement that proposed amendments to the constitu- tion shall be " published once each week in at least one newspaper in each county where a newspaper is published, for three months immediately preceding the next election of senators and representatives, at which elec- tion the same shall be submitted to the elec- tors for approval or rejection," the fact that in one county of the state the publication was made for one week less than the required time will not invalidate the amendment. State ex rel. Thompson v. Winnett (Neb.), li5-78]. Voting on proposed amendments. — Under the Nebraska constitution the manner of voting upon a constitutional amendment and the general conduct of the election are for the legislature to provide, subject to the limitation that " when more than one amend- ment is submitted at the same election, they shall be so submitted as to enable the elec- tors to vote on each amendment separately; " and when the legislature by resolution sub- mits such question at a general election, as required by the constitution, it will be pre- sumed that the legislature intends that the requirements of the general election law are to be observed. State ex rel. Thompson (Neb.), 15-781. It is not necessary that the entire proposed amendment shall be printed upon the oflScial ballot. If enough is printed upon the ballot to identify the amendment and to show its character and purpose, it is sufficient. State ex rel. Thompson (Neb.), 15-781. The Nebraska statute of 1901 amending various sections of the general election law so as to provide for counting straight party votes when such party has indorsed such amendment, does not violate the provisions of the Nebraska constitution relating to amendments thereto. It is within the power of the legislature to make such a regulation. State ex rel. Thompson v. Winnett (Neb.), 15-781. Effect npon existing statutes. — A state statute is not superseded by a provision in a subsequent constitution covering the same subject-matter, unless the constitutional provision is self-executing. Newport News v. Woodward (Va.), 7-625. Conflict betireen contemporaneons amendments. — Where a section of the con- stitution is amended at the same time by two different amendments and the amendments adopted are directly in conflict, and it is impossible to determine which should stand as a part of the constitution or to reconcile the same, then they must bot^^ i^\\, Uttey «, Moseley (Idaho), 18-723. If, however, one of such proposed amend- ments is not submitted in accordance with the provisions of the constitution and is not adopted or made a part of the constitution, and the other amendment is regularly sub- mitted in accordance with the provisions of the constitution and adopted, then there can be no conflict between two amendments, and the latter will not fail because of conflict. Utter V. Moseley (Idaho), 18-723. The rule of law that where two conflicting amendments are adopted at the same time, they both must fail, is based upon the as- sumption that both amendments are regularly submitted and adopted in accordance with the provisions of the constitution and are amendments to the constitution. Utter r. Moseley (Idaho), 18-723. 28. Pleading and Pbactice. Admission of invalidity of law. — ' A party cannot admit the invalidity of a law by a failure to deny the allegation that the law was not constitutionally enacted. Adams V. Clark (Colo.), 10-774. Raising constitutional question by demurrer. — Where an action under the Federal Employers' Liability Act of 1908 (Act of April 22, 1908, e. 149, 35 St. L. 65, Fed. St. Ann. Supp. 1909, p. 584) is brought in a state court, a demurrer to the complaint on the general ground that the statute is unconstitutional is properly sustained, since the invalid portions of the statute are not capable of being separated from the remainder. In such a case it is not material that the demurrer fails to specify the particular grounds upon which the constitutionality of the statute is attached. Hoxie v. New York, etc., R. Co. (Conn.), 17-324. Proof wliere question of fact is in- volved. — Where a party seeks to question the constitutionality of a statute, upon a ground which involves a question of fact, he must in some appropriate way raise it in the trial couVt and present the testimony upon which he relies to establish such fact. Vin- dicator Consol. Gold Min. Co. v. Firstbrook (Colo.), 10-1108. CONSTRUCTION. Constitutions, see Constitutional Law, 26. Foreign contracts, see Conflict op Laws, 3 b. Particular contracts and instruments con- strued, see Assignments, 2 ; Contracts. 3; Covenants, 4; Deeds, 3; Insueance, 3 (2) ; Pleading, 2; Wills, 8. Railroads, see Railroads, 3 b. Statutes, see Criminal Law, 2 b; Elections, 2; Statutes, 4. Wills, see Wills. Constructive service, see Summons and Pro- cess. Constructive trusts, see Trusts and Trus- tees. Written authority of agent, see Agency, 3 a (1). * CONSTEUCTIVE NOTICE — CONTEMPT. 617 CONSTRUCTIVE NOTICE. Becord of instrument as constructive notice of contents, see Recobss, S. CONStTLS. Jurisdiction of state court in action against foreign consul. — The state courts have jurisdiction of civil actions by citizens of the United States against consuls of foreign powers. De Leon v. Walters (Ala.), 19-914. CONTAGION. Communication of contagious diseases by in- fected cars, see Carbiers, 6 a (2). Liability of landlord for disease communi- cated by infected premises, see Landloed AND Tenant, 5 h (2). CONTEMPORANEOUS PRACTICAL CONSTRUCTION. See Statutes, 4 g. CONTEMPT. 1. Conduct Constituting Contempt, 517. a. Defamation or criticism of court, 517. b. Contempt by newspaper publica- tion, 517. c. Attempt to influence jurors,, 518. d. Kesistance to process of court, 518. e. Disobedience of order or mandate of court in general, 518. f. Disobedience of order to pay money, 518. g. Violation of injunction, 518. h. Disclosure of evidence by grand juror, 519. i. Filing of motions, 519. j. Acts obstructive of justice, 519. k. Contempt in presence of court, 519. 2. PowEK TO Punish, 519. 3. Peoceedings foe Punishment, 520. a. How instituted, 520. b. Parties, 520. c. Sufficiency of affidavit or com- plaint, 520. d. Right to jury trial, 520. e. Defenses, 521. f. Evidence, 521. (1) Admissibility, 521. (2) Sufficiency, 521. g. Costs, 521. 4. Purging of Contempt, 521. 5. Punishment fob Contempt, 521. 6. Review of Proceedings for Puwish- ment, 522. a. Habeas corpus, 522. b. Writ of error, 522. c. Appeal, 522. d. Matters and questions reviewable, 522. 7. Disabioties of Person in Contempt, 522. Appeals in contempt proceedings, see Appeal AND Error, 4 f. Commitment of bankrupt, see Bankruptcy, 8. Commitment of witness for contempt while on witness stand, see Teial, 5. 1. Conduct Constituting Contempt. a. Defamation or criticism of court. Common-laiv potrer to punish. — The Vermont statute ( Pub. St., § 5898 ) providing that any person who defames a court or the judge of a court as to an act or sentence passed therein shall be fined in a certain amount does not abrogate the common-law power of the court to punish for such a con- tempt. State V. Hildreth (Vt.), 18-661. After final determination of action. — Every citizen has the right to comment upon and criticise without any restriction the rulings of a judicial officer in an action whicli has been finally determined, and is not answerable therefor otherwise than in an ac- tion triable by a jury. State Board v. Hart (Minn.), 15-197. It is a contempt at common law to scandal- ize a court of record by a newspaper publi- cation in respect to its decision in a case no longer pending. State v. Hildreth (Vt. ), 18- 661. Performance of ministerial duties. — A court has no power to punish for con- tempt one who publishes a libelous article relating to the performance by a judge of his ministerial functions. Hamma v. People (Colo.), 15-655. Truth as justification. — In a prosecu- tion for contempt consisting in the publica- tion of articles reflecting upon the motives and conduct of the court in reference to cases pending therein, the defendant has no right, under any provision of the Federal Constitution, to justify the publication of the articles complained of by proving the truth thereof. Patterson v. Colorado ex rel. At- torney General (U. S.), 10-454. ■ b. Contempt by newspaper publication. Statements calculated to intimidate witnesses.— The publication of newspaper articles the first of which appears two days before the trial of a cause begins, but after it has been set for trial, which assumes to state the evidence to be produced upon the trial with improper comment thereon, and which reflects upon the parties to the action with an improper expression of opinion as to the merits of the controversy, and the second of which is a full-page illustrated article ap- pearing during the trial, which purports to relate to what is transpiring on the trial, but which misstates the occurrences of the trial and the evidence, and> which makes statements calculated to intimidate possible witnesses and comments improperly upon the case, amounts to a contempt of court. State v. Howell (Conn.), 13-501. Disclosing evidence procured by atate. — A publication in a newspaper rela- 518 ANN. CAS. DIGEST, VOLS. 1-20. tive to a criminal prosecution disclosing the efforts of the state's attorneys in the examina- tion and preparation of evidence held to con- stitute a contempt of court. Globe Newspaper Co. V. Com, (Mass.), 3-761. Article not seen by court or jnry. — It is not necessary, in order to constitute a contempt by the publication of articles cal- culated to interfere with the fair trial of a pending cause and thus obstruct justice, that the articles should actually reach the eyes of the court or jury. State v. Howell (Conn.), 13-501. Necessity that canse be pending. — A publication in a newspaper relative to a crim- inal prosecution held to relate to a pending cause. Globe Newspaper Co. v. Com. (Mass.), 3-761. Necessity of criminal intent. — It is not essential to a contempt of court by the newspaper publication of articles improperly commenting upon a cause on trial and tend- ing to prevent a fair trial and obstruct the administration of justice, that the publica- tion should have been made with any criminal intent or intent to interfere with the due course of justice in the disposition of the cause. State v. Howell (Conn.), 13-501. Truth as justification.— A newspaper paragraph relative to a criminal prosecution disclosing and commenting on the evidence is not justified by showing that the state- ments were true and that the publication was made without intent to injure the parties, to reflect upon the dignity of the court, or to interfere with the administration of justice. Globe Newspaper Co. v. Com. (Mass.), 3-761. c. Attempt to influence jurors. In general. — Facts showing an attempt to influence jurors held to amount to crim- inal contempt. Hurley v. Com. (Mass.), 3-757. Attempt out of court's presence. — Under a statute providing that any unlawful interference with the process or proceedings of a court shall be a contempt of the author- ity of such court, an attempt, out of the court's presence, to influence the vote of a juror who is a member of the panel from which the jury is to he selected, is a con- structive contempt. State esc rel. Webb Vi District Court (Mont.), 15-743. d. Resistance to process of court. In general' -^ Registanoe wilfully offered by any person to a lawful process of the court is punishable as criminal contempt under the code, but one cannot be convicted under this statute of the wilful resistance of a search warrant of which he had no notice or knowledge at the time the resistance was made. State ex rel. Register v. McGahey (N. Dak.), 1-650. Void search warrant. — The process of the court, resistance of which when wilfully offered is punishable as a contempt, must be a lawful process, and resistance of a void search warrant is not punishable as a con- tempt. State ex rel. Register v. McGahey (N. Dak.), 1-050. • e. Disobedieuce of order or mandate of court, in general. Order of appellate court. — • The United States supreme court has power to punish for contempt a persQn who has disobeyed one of its orders pending an appeal from the United States circuit court in a proceeding wherein the circuit court has denied a- petition for habeas corpus filed after the conviction of the petitioner in a state court for violation of the criminal law of the state, though the circuit court had no jurisdiction to entertain the petition, and though the supreme court has no jurisdiction of the appeal. United States V. Shipp (U. S.), 8-265. Order made tvlthout jurisdiction. — A United States court has no power to punish a party to an action for contempt for dis- obeying an order made without jurisdiction. Drew V. Hogan (D. C), 6-589. Suhpoena issued by district attorney. — A subpcena issued by the district attorney for the appearance of a witness before the grand jury is a mandate of the court within the meaning of the New York statute (Code Civ. Pro., § 8) defining criminal contempts as wilful disobedience to or resistance of a lawful mandate of the court. People ex rel. Drake v. Andrews (N. Y.), 18-317. Advising disobedience of mandate.— One who advises a witness to disobey a sub- poena duces tecum in a criminal case is guilty of a criminal contempt defined by the New York statute (Code Civ. Pro., § 8) as resist- ance wilfully offered to the lawful mandate of the court, and it is immaterial that the witness does not follow such advice. People ex rel, Drake v. Andrews (N. Y.), 18-317. f. Disobedience of order to pay money. Order for payment of alimony. — It is a civil and not a criminal contempt for a person to fail to comply with an order of the court requiring him to pay money for his wife's support. Perry v. Pernet (Ind.), 6- 533. An imprisonment for contempt, imposed by a court of competent jurisdiction, for the con- temnor's failure to comply with an order of the court to pay money for his wife's support, is not an imprisonment for debt within the meaning of the Indiana constitution. Perry V. Pernet (Ind.), 6-533. Imprisonment of voman. — A woman may be imprisoned for contempt for refusing to pay a specific fund over to her husband as ordered in a decree granting her a divorce, notwithstanding the provisions of the Michi- gan constitution and statutes prohibiting im- prisonment for debt and the provision of the Michigan statutes that " no female shall be imprisoned on any process in any civil action." Carnahan t'. Carnahan (Mich.), 8-53. g. Violation of injunction. Person not served iiTith order. — A member of an unincorporated association who disobeys an injunction against the association and its members, of which he has knowledge, is guilty of criminal contempt, though not a CONTEMPT. 519 party to the action and not personally served with the injunction order. People ex rel. Stearns i'. Marr (N. Y.), 3-25. Person not party to salt. — A person not a party to an injunction may be pun- ished for doing the things enjoined, where he acted as the defendant's agent with knowl- edge of the injunction, and aided and abetted the defendant in disobeying it. Ex p. Testard (Tex.), 20-117. Dissolved tnjnnotion. — Where a bill for an injunction has been dismissed and a pre- liminary injunction dissolved, the petitioner cannot further prosecute the respondent for contempt for a violation of the dissolved in- junction. Old Dom. Tel. Co. v. Powers (Ala.), 1-119. Violation pending appeal. — It is a contempt to disobey a permanent injunction pending an appeal from the decree granting it, as the appeal does not dissolve the in- junction. Wilkinson v. Dunkley-Williams Co. (Mich.), 7-40. An appeal having been taken to the Ohio circuit court from a judgment of the common pleas granting a perpetual injunction, a sub- sequent .violation of the decree should be pun- ished as a contempt by the circuit court, the statute providing that notwithstanding the appeal the injunction shall continue in force until suspended by the circuit court or two judges thereof. Menuez v. Grimes Candy Co. (Ohio), 11-1037. Injunction improperly granted. — Where a court grants a restraining order without requiring the undertaking prescribed by its rules as a condition precedent, the de- fendants may disobey the order without ren- dering themselves liable to punishment for contempt. Drew i\ Hogan (D. C), 6-589. h. Disclosure of evidence by grand juror. Disclosure after discharge of grand jury.— Even if the oath of a grand juror should be held to require perpetual secrecy on his part, the United States circuit or dis- trict court is not, under the Act of Congress limiting the power of federal courts to punish for contempt, authorized to attach for con- tempt a grand juror who discloses evidence which has been adduced before the grand jury, where the disclosure does not occur until after the grand jury has been discharged from further service. Atwell v. United States (U. S.), 15-253. i. Filing of motions. Motion suggesting disqualification of judge. — The filing of a motion suggesting the disqualification of the judge on a ground such as hia relationship to a person directly interested in the subject-matter of the litiga- tion, which does not reflect on his integrity or impartiality, is not a contempt of court, even if the suggested ground is not in law a disqualification. Johnson v. State (Ark.), 15-531. Vesatlous or dilatory motion. — Un- less a motion is presented in a disrespectful or contemptuous manner or in violation of the court's orders so as to amount to an ob- struction of the administration of justice, or unless such motion contains matter which of itself constitutes a contempt, the court cannot treat such motion as contemptuous merely because it is thought to be vexatious or dilatory. Johnson v. State (Ark.), 15-531. j. Acts obstructive of justice. Murder of convicted person pending appeal.— Where, after a justice of the su- preme court of the United States has allowed an appeal from an order of a federal circuit court denying a writ of habeas corpus applied for by a person convicted of murder in a state court and has ordered that all proceedings against the appellant shall be stayed pending the appeal, the appellant is murdered by^ per- sons who are unwilling to submit to the delay required for the trial of the appeal, the per- sons participating in the murder are guilty of a contempt against the supreme court. United States v. Shipp (U. S.), 8-265. k. Contempt in presence of court. Acts committed during recess. — The action of the defendant in a prosecution in a town court for a violation of the liquor law, in purloining from the lawyer's table in the court room the bottle of whiskey alleged to have been illegally sold by him, and which has been produced in court by the prosecuting attorney as an exhibit in the case, and sub- stituting therefor a bottle of ginger ale, dur- ing a recess taken for the purpose of procur- ing an interpreter, and while the presiding judge is in his retiring room immediately ad- joining the court room, constitutes a criminal contempt in the presence of the court. McCarthy v. Hugo (Conn.), 17-219. Refusal of ivitness to anstver. — In an action for slander based Upon statements alleged to have been made by the defendant cioncerning the plaintiff to the grand jury and to the district attorney, it is proper for the trial court to refuse to punish the defendant as for contempt for refusing to disclose such statements. Schultz v. Straus ( Wis. ) , 7-528. 2. POWEB TO PXJNISH. Inherent power of court. — Having given the ofl'ending party an opportunity to be heard, the court has an inherent right to punish as for a contempt the violation of an order lawfully made to maintain its dignity, authority, and efficiency in the administration of the law. Ex parte i?eville (Fla.), 19-48. The circuit court of St. Louis was created by the constitution and not by the legislature, and therefore the statute which provides that in contempt cases a fine shall not exceed fifty dollars, nor a term of imprisonment ten days, is unconstitutional and void as applied to that court. Chicago, etc., R. Co. r. Gilder- sleeve (Mo.), 16-749. _ Committing magistrates. — A commit- ting_ magistrate or justice of the peace has no inherent power to punish witnesses for contempt. Farnham v. Colman (S. Dak.), 9-314. 520 ANN. CAS. DIGEST, VOLS. 1-20. The South Dakota statutes do not give a committing magistrate power to punish for contempt a witness who appears and testifies but who refuses to produce papers called for by a subpcena duces tecum. Farnham v. Col- man (S. Dak.), 9-314. Legislative oommittees. — The power of a legislative committee to punish a witness for contempt. Ex parte Parker (S. Car.), 7-874. Town court. —Under the statutes of Con- necticut a town court has power to punish a criminal contempt in the presence of the court by fine and imprisonment. McCarthy v. Hugo (Conn.), 17-219. ^nidge other than one making order. — Contempts of court being punished as of- fenses against the administration of justice and not as personal affronts to those who exercise judicial functions, it is not indispens- able that the violation of an injunction should be punished by the judge who made the de- cree. Menuez v. Grimes Candy Co. (Ohio), 11-1037. Legislative regulation of power. — The right of punishment for contempt is in- herent in every constitutional court having common-law powers, and such courts cannot be shorn of that power by the legislative branch of the state government. Chi- cago, etc., R. Co. V. Gildersleeve (Mo.), 16- 749. The legislature has no power to abridge, limit, or regulate, in any manner whatever, the power of a constitutional court to punish for contempt. Chicago, etc., R. Co. v. Gilder- sleeve (Mo.), 16-749. 3. Peoceedings fob Puwishment. a. How instituted. Nature of process. — The process in con- tempt proceedings is criminal and not civil in its nature. Carnahan v. Carnahan. (Mich.), 8-53. Institution by information. — Pro- ceedings for the punishment of contempts should generally conform as nearly as pos- sible to proceedings in criminal cases, and when witnesses are required to prove the act of contempt, it is proper for an informing officer to bring the offense to the attention of the court. McCarthy v. Hugo (Conn.), 17- 219. Institution by affidavit. — Although a grand jury when in session and in attendance on business connected with the court is an adjunct or appendage of the court, yet it is not a part of the court within the contempla- tion of the Nevada statute (Comp. Laws, § 3556) so as to authorize a judge summarily to punish an act committed before the grand jury as an act committed in the " presence of the court," and it is necessary in such case to proceed against the offender by affidavit and give him an opportunity to show cause why he should not be punished. Em parte Hedden (Nev.), 13-1173. Service of rule to show cause. — A rule to show cause why a person shall not be adjudged guilty of contempt must be served in person on the party charged. Ex p. Mylius (W. Va.), 11-812. b. Parties. Court not a party. — In contempt pro- ceedings based on an act committed outside the court room and out of the presence of the judges, the court is not a party, as there is nothing that affects the judges in their own persons. United States v. Shipp (U. S.), 8-265. e. Sufficiency of affidavit or complaint. In general. — In the absence of a statute prescribing the form in which one accused of a contempt of court must be charged there- with, a general and substantial statement of the facts constituting the alleged contempt is sufficient to give the court jurisdiction. State ex rel. Webb v. District Court (Mont.), 15-743. In contempt proceedings for the violation of an injunction against persons having actual knowledge of the injunction writ and its con- tents, it is not necessary that the petitions and affidavits shall set out the charges against the alleged contemners with the same particularity that would be required in an indictment. O'Brien v. People (111.), 3-966. Allegation of intent. — In a contempt proceeding wherein the intent is part of the act which is alleged to constitute a contempt of court, as where it is alleged that the pei'- son charged with contempt in attempting to influence the vote of a juror took steps to convey the information to the juror that he would reward him and other jurors if they would render a favorable verdict, the intent reed not be alleged specifically. State ex rel. Webb V. District Court (Mont.), 15-743. Affidavit upon information and be- lief. — An affidavit upon information and belief is insufficient as a basis for constructive contempt proceedings, and under such an affi- davit the court acquires no jurisdiction to issue an attachment for contempt. State ex rel. Harvey v. Newton (N. Dak.), 14-1035. Such want of jurisdiction is not waived by pleading guilty to the charge thus insuffi- ciently alleged. State ex rel. Harvey v. New- ton (N. Dak.), 14-1035. Unverified complaint. — While an in- direct contempt is usually brought to the knowledge of the court by an affidavit setting forth the facts, a formal complaint stating facts amounting to an indirect criminal con- tempt made by the assistant district attorney, he being an officer of the court duly sworn to the proper performance of duties, is n sufficient basis for judicial action though not verified. Hurley v. Com. (Mass.), 3-757. d. Right to jury trial. Constructive contempt.— The defend- ants in a proceeding for constructive con- tempt are not entitled to trial by jury. O'Flynn r. State (Miss.), 11-530. Violation of injunction. —In a proceed- ing to punish for contempt for the violation of an injunction, the persons charged with CONTEMPT. 521 contempt are not entitled to trial by jury, notwithstanding the existence of a statute providing for trial by jury in every case where the judgment is to be satisfied by im- prisonment. O'Brien r. People (111.), 3-966. e. Defenses. Inability to comply with order. — In- ability to comply with an order of court is a good defense to a charge of contempt of court in failing to obey such order, unless it appears that the person charged has volun- tarily and contumaciously brought the dis- ability upon himself. State ex rel. McLean V. District Court (Mont.), 15-941. f. Evidence. ( 1 ) Admissibility. Affidavits.— On a hearing before a judge in a proceeding for contempt for the violation of a restraining order granted on application for an injunction, affidavits are admissible in evidence to prove the fact of violation. Warner v. Martin (Ga.),. 4-180. Knowledge of publication complained of. — Where the defendant in a proceeding for a contempt charged to have been com- mitted by the publication in a newspaper of articles relating to a pending cause, and tend- ing to interfere with the administration of justice by prejudicing the public and jury, offers himself as a witness and testifies for the purpose of purging himself of the con- tempt that he did not read the articles in question, and had no actual knowledge of their contents, it is competent to ask the wit- ness on cross-examination to identify other similar articles relating to the same cause and appearing in his papers prior to the as- signment of the cause for trial, and to intro- duce such articles in evidence, as tending to (ontradict his statement that he had no knowl- edge of the articles complained of; and such evidence, even if incompetent, is not preju- dicial where the court finds as a fact that the defendant had no actual knowledge of the articles complained of. State v. Howell (Conn.), 13-501. (2) Sufficiency. Attempt to corrupt jnror. — In a con- tempt proceeding for attempting corruptly to influence the vote of a juror, evidence ex- amined and held to be sufficient to sustain the charge. State ea; rel. Webb v. District Court (Mont), 15-743. Violation of injunction. — Evidence held to establish the violation of an injunc- tion restraining interference with the com- plainant's business and intimidation of his employees. O'Brien v. People (111.), 3-966. Corroboration of testimony of ac- complice. — As a trial for contempt is a criminal proceeding a statute providing that a person accused of crime shall not be found guilty upon the uncorroborated testimony of an accomplice applies to such a trial. State ex rel. Webb v. District Court (Mont.), 15- 743. g. Coats. Criminal contempt. — In New York costs cannot be awarded in a proceeding to punish for a criminal contempt. People ex rel. Stearns v. Marr (N. Y.), 3-25. Costs in addition to fine. — The costs in a proceeding for contempt constitute no part of the fine imposed and may be awarded against the contemner in addition to a fine. Warner v. Martin (Ga.), 4-180. 4. Purging of Contempt. Sufficiency of sworn ans'wer. — The sworn answer of the defendant in proceed- ings for constructive contempt does not con- clusively entitle the defendant to discharge, but the court may take testimony to prove that the answer is untrue. O'Flynn v. State (Miss.), 11-530. In contempt proceedings in an appellate court, where the contemnors are charged with having disobeyed an order of the court stay- ing the proceedings in a criminal cause pend- ing the determination of an appeal taken therein, the disobedience consisting of the participation by the contemnors by their per- sonal presence and by overt acts in the mur- der of the appellant, the contemnors cannot purge themselves by denying under oath that they had anything to do with the murder. United States v. Shipp (U. S.), 8-265. A proceeding to punish for contempt com- mitted out of the presence of the court, such as a violation of an injunction, is purely civil in its nature, and the fact that the alleged contemnors file sworn answers which, if true, are sufficient to purge them of contempt, does not of itself entitle them to discharge. O'Brien v. People (111.), 3-966. 5. Punishment foe Contempt. Limitation as to amount of fine. — A judge of the superior court of Georgia has no power to impose a fine for more than $200 for contempt in violating a temporary re- straining order, where the violation is treated by the judge as a single act. Warner v. Martin (Ga.), 4-180. Commitment for indefinite term. — . A commitment for contempt need not be for a definite term where the imprisonment is inflicted as a means of compelling the con- temner to do some act ordered by the court and not as a punishment. Perry v. Pernet (Ind.), 6-533. A commitment for contempt, ordered by a court having jurisdiction, is not rendered ab- solutely void by the fact that it orders im- prisonment for an indeflnite period instead of for the limited deflnite term prescribed by statute, though it may be invalid as to the excess of the punishment inflicted. Perry r. Pernet (Ind.), 6-533. Imprisonment until further order of court.- An order committing a woman for contempt for refusing to obey a decree re- quiring her to pay a certain fund to her di- vorced husband comes within the provision of the Michigan statute permitting the imprison- ment of a contemnor until he shall have per- formed the act or duty for the nonperform- S22 ANN. CAS. DIGEST, VOLS. 1-20. ance of which the contempt proceedings have been instituted, and does not come within the pTOvisions of the statute limiting the dura- tion of imprisonment for contempt in cases of a certain class for six months, and there- fore the order is not rendered void for in- definiteness by the fact that it provides that the contemner shall be imprisoned until the further order of the court. Carnahan v. Car- nahan (Mich.), 8-53. Imprisonment in bouse of correction. — Under the Massachusetts statutes, con- tempts of court may be punished by impiison- ment in jail but not in a house of correction. Hurley v. Com. (Mass.), 3-757. Indiana statute. — The Indiana statute limiting the power of courts to punish con- tempts does not apply to proceedings to pun- ish civil contempts. Perry i\ Pernet (Ind.), 6-533. Texas statutes.— A statute providing that disobedience to an injunction may be punished by imprisonment until the defend- ant purges himself of his contempt in such manner and form as may be directed by the court or judge (Rev. St. Tex., art. 3013) does not conflict with another provision (art. 3011) that disobedience to an injunet'on may be punished as a contempt the punishment for which is limited (art. 1101) to a fine of one hundred dollars and imprisonment not exceeding three days. The court may proceed under either provision. Ex parte Testard (Tex.), 20-117. Discharge from custody. — Where a person has been committed for contempt for failing to obey an order of the court re- quiring him to pay money for his wife's sup- port, the court has power to discharge him from custody upon his showing that his fail- ure to pay the money since the commitment is due to his actual inability to do so. Perry V. Pernet (Ind.), 6-533. 6. Review of Pboceemngs fob Punishment. a. Habeas corpus. Improper unless judgment is void. — A person committed to jail for contempt will not be released on habeas corpus, unless the judgment of the commitment is absolutely void, as the habeas corpus proceeding is a collateral attack on the judgment of commit- ment. Perry v. Pernet (Ind.), 6-533. b. Writ of error. Criminal contempt. — Under the Massa- chusetts statutes, a sentence to punishment for a distinctively criminal contempt is a judgment in a criminal case which may be reviewed upon a writ of error. Hurley v. Com. (Mass.), 3-757. Where one has been found guilty of con- tempt of court in the Massachusetts superior court, a writ of error lies to that court from the supreme judicial court to correct alleged errors in the proceedings. Globe Newspaper Co. V. Com. (Mass.), 3-761. 0. Appeal. Civil contempts. — There is a distinction between criminal contempts and those which are civil in their nature, and it is well settled that an appeal will lie in cases of civil con- tempt. Jastram r. McAuslan (E. I.), 17-320. Judgments punishing ticket brokers for contempt committed by disobeying temporary injunctions forbidding them to deal in the return-trip portions of railroad tickets are civil in nature, and under the Missouri stat- utes are appealable as judgments in civil cases. State v. Bland (Mo.), 3-1044. Indirect contempt. — The Missouri stat- ute held to give no right of appeal from a conviction for indirect contempt in disobey- ing an order in a pending civil suit, which conviction is had upon a verified complaint filed by the plaintiff's counsel in such a suit informing the court that said order has been disobeyed. State v. Bland (Mo.), 3- 1044. Remedy by appeal ezolusiTc. — Er- rors committed by the court in a contempt proceeding can be reviewed and corrected only on appeal. Perry v. Pernet (Ind.), 6-533. d. Matters and questions reviewable. Sufficiency of bill for injunction. ^ On an appeal from a conviction for contempt for violation of an injunction, the contemner cannot question the sufficiency of the bill unless it is so defective as to render the order granting the injunction void. O'Brien v. Peo- ple (111.), 3-966. Exercise of discretionary power. — The power to punish for contempt is a dis- cretionary power, and when fairly exercised in a case within the jurisdiction of the court is not reviewable. In re Consolidated Render- ing Co. (Vt.), 11-1069. Judgment rendered on a hearing before a judge in a proceeding for contempt for a vio- lation of an injunction will not be disturbed by the supreme court, unless the judge has grossly abused the sound discretion vested in him in such cases. Warner v. Martin (6a.), 4r-180. Harmless admission of irrelevant evidence. — Where on a hearing before a judge in a proceeding for contempt for the violation of an injunction irrelevant evidence is admitted over the objection of the person upon trial, such error is not a cause for re- versing a judgment against him, where his case is not injuriously affected and there is admissible evidence to warrant the judgment. Warner v. Martin (Ga.), 4^180. 7. DiSABrLiTiEs OF Pebson in Contempt. Stay of proceedings in action. — A plaintiff in contempt of court is not entitled to proceed with the trial of his case against the defendant as a matter of right. Camp- bell V. Justices (Mass.), 2-462. CONTEST. Contesting nominations, see Elections, 4, 1. Right to public office pending contest, see PiTBijc Officers, 5 a. CONTT^TQENT CLAIMS — CONTRACTS. 523 CONTINGENT CLAIMS. Eight of holder of contingent claim to set aside fraudulent conveyance by debtor, see Fraudulent Conveyances, 4 a. CONTINGENT FEES. See Attobkey akd Client, 5 b. CONTINGENT REMAINDEKS. See Eemaindebs. CONTINGENT WILLS. See Wilis, 8 a ( 8 ) . CONTINUANCES. See Criminal Law, 6 d. Defective deposition as ground for contin- uance, see Depositions, 7. Eight to speedy trial vi^aived by consent to continuance, see Criminal Law, 6 c ( 1 ) . When properly refused. — Where the affidavit to a motion for continuance on the ground of the absence of a witness fails to state what efforts have been made to pro- cure the attendance of the witness or to pre- pare for trial in respect to the point to which the testimony of such witness relates, and it appears that the party asking for the con- tinuance has made no preparation whatever to meet the case which the complaint advised him would be presented, the motion is prop- erly denied. State ex rel. Hallam v. Lally (Wis.), 15-242. Abuse of discretion. — No abuse of dis- cretion by a trial court in refusing to grant a continuance for the defendant is made to ap- pear by a showing that four days before the date set for trial the plaintiffs were allowed to amend their complaint, possibly changing the cause of action, but without exception by the defendant, and that the defendant had an opportunity to take the deposition of the wit- ness whose absence was made the basis of the motion for a continuance, and would not say that the testimony of such witness was other than cumulative. Creek v. Aberdeen (Wash.), 12-370. It is not an abuse of discretion for the trial judge to deny the defendant's motion for continuance based on the ground of the sickness of two of his witnesses, where the defendant has previously been granted two continuances, one of them on the ground of the sickness which is made the basis of the present motion, and the court allows the substance of the testimony expected from the absent witness to go to the jury as the evidence they would give if present, and no showing is made as to the probable duration of the illness of the witness. Heirs v. At- lantic Coast Line R. Co. (S. Car.), 9-1114. CONTINUING GUARANTY. See Guaeantt, 1. CONTINUING INJURY. Maintaining of disorderly house, see Dis- orderly Houses. CONTRABAND OF WAR. Se6 International Law. CONTRACTORS. Building contractor's bond as contract of guaranty and indemnity, see Guar- anty, 1. Employment of convict labor, see Master and Servant, 1 a. Independent contractors, see Independent Contractors. Insurable interest in building, see Insurance, 5 d (1). Liability of contractor for injuries to owner's servants, see Negligence, 3. Liability of municipality for negligence of contractor repairing streets, see Streets and HlGETWAYS, 7 b, CONTRACTS. 1. Nature and Form, 524. 2. Elements, 525. a. Persons capable of contracting, 525. b. Offer and acceptance, 525. c. Mutuality of obligation, 526. d. Consideration, 526. 3. Construction and Interpretation, 526. a. In general, 526. b. Proof of business custom or usage, 528. c. Liquidated damages or penalty, 528. d. Duration of contract, 529. e. Particular contracts, 529. 4. Validity, 529. a. In general, 529. b. Contracts in violation of statute, 530. c. Contracts to procure legislation, d. Contracts relating to judicial pro- ceedings, 530. e. Contracts relating to public ser- vice or officers, 530. f. Contracts for suppression of bid- ding, 531. g. Gambling contracts, 531. h. Contracts for purchase of editorial comment, 531. i. Contracts for purchase of counter- feit money, 531. j. Contracts to procure return of stolen property, 531. k. Contracts impossible of perform- ance, 531. 1. Contracts for custody of child, 531. m. Contracts furnishing incentive for crime, 532. n. Usurious contracts, 532. o, Building contracts, 532. 524 ANN. CAS. DIGEST, VOLS. 1-20. p. Contracts for corporate officer for personal benefit, 532. q. Effect of invalidity, 532. 5. Pebfobmance, 533. a. Waiver, 533. b. Breach or abandonment, 533. (1) Acts constituting breach, 533. (2) Remedies for breach, 534. (3) Waiver of breach, 534. (4) Excuses for nonperform- ance, 534. (5) Abandonment, 535. 6. Avoidance foe Fkaxjd, 535. 7. Actions, 535. a. In general, 535. b. Parties, 535. c. Pleading, 536. d. Condition precedent to recovery, 536. e. Defenses, 537. f. Evidence, 537. g. Instructions, 537. b. Damages, 538. See Accord and Satisfaction; Arbitration and Award; Compeomise and Settle- ment; Counties; Insurance; Sales; Vendoe and Purchaser. Accounting in respect to illegal contracts, see Agency, 2. Affreightment contracts, see Ships and Ship- ping, 2. Agreements relating to patents, see Patents, 2. Alteration, see Alteration of Instruments. Ante-nuptial agreements, see Husband and Wife, 2 a. Assignability, see Assignments, 1 b. Authority of agent to make contracts, see Agency, 3 a (2). Breach of contract as ground for rescission, see Cancellation and Rescission, 1. Breach of contract distinguished from stat- utory liability, see Limitation op Ac- tions, 3. Cancellation of contracts, see Cancellation and Rescission. Changed conditions as affecting liability on contracts, see Sales, 4 d ( 1 ) . Character of property determined by agree- ment, see Fixtures, 4. Contract of agency, see Agency, 1 a. Convict labor, see Convicts. Criminal liability for breach of contract, see Constitutional Law, 3. Effect of agreement to execute mortgage, see Mortgages and Deeds of Tbust, 2. Effect of corporate charter, see Corpora- tions, 3 b. Effect of ticket of admission to place of pub- lic amusement, see Theatres and Pub- lic Resorts, 2. Employment of servants, see Master and Servant, 1. Exemption from jury duty as contract right, see Jury, 3. Exemption from taxation by contract with municipality, see Taxation, 12. Grant of franchise to gas company as con- tract, see Gas and Gas Companies, 2. Illegal conditions in bonds, see Bonds, 3. Impairment of obligation of contracts, see CONSTITUTIONjUi ]jAW, 15. Implied contract to pav for services rendered, see Work and Labor. Indemnity contracts, see Indemnity. Inducing breach of contract, see Conspibacy, 2; Interference with Contract Rela- tions, 1. Interference with contract relations, see Labor Combinations. Intermarriage between parties to contract, see Husband and Wife, 2 i. Irrigation contracts, see Irrigation. Liability of infants on contracts, see In- fants, 2. Liberty of contract, see Constitutional Law. Limitation of actions by contract, see Limi- tation OF Actions, 9. Mandamus to determine contract rights, see Mandamus, 2 a. Marriage as a, contract, see Marriage, 1 a. Married women's contracts, see Husband and Wife, 1 a. Municipal contracts, see Municipal Corpora- tions, 7. Oral contracts, see Frauds, Statute of, 8. Oral modification of written contract, see Frauds, Statute of, 1 b. Place of contract, see Conflict of Laws, 3 a. Power of oflScers and agents to bind corpora- tions, see Corporations, 7. Proof of contract to marry, see Breach of Promise of Marriage. Purchase and sale of land, see Vendor and Purchaser. Railroad contracts, see Railroads, 4. Release of liability for injuries to servant, see Master and Servant, 3 k. Removal by contract of state restrictions on riparian rights, see Waters and Watercourses, 3 b ( 1 ) . Restraining performance of illegal contracts by municipalities and public officers, see Injunctions, 2 d. Revival of expired contract, see Frauds, Statute of, 4 d (1). Sales of standing timber, see Logs and Lumber. Sales of stock, see Corporations, 8 b (4). Set-off of claim for breach of contract, see Set-Off and Counterclaim, 1 a. Severable contracts by agent, see Agency, 3g (1). Specific performance of contracts, see Spe- cific Peefoemance. State contracts, see States, 9. Statute of frauds not applicable to executed contracts, see Frauds, Statute of, 4 b (6). Stipulation as to time of performance, see Time. Time for removal of fixtures, see Fixtures, 6 c (2). Waiver of privilege, see Witnesses, 3d (7). 1. Nature and Form. In general. — A promise, to be enforce- able, must%e based on a consideration, and it must be put in such form as to be available under the rules relating to contracts and the admission of evidence; and such promise, so CONTRACTS. 525 far as it relates to the future, can be en- forced as a, promise only under the general rules governing contracts. Adams v. Gillig (N. Y.), 20-910. Parol or in writing.— A contract of employment between a dentist and his assist- ant, which is partly in writing, in the shape of letters and telegrams, and partly in parol, is a parol contract. Turner v. Abbott (Tenn.), 8-150. An oral restrictive covenant, or any oral promise to do or to refrain from doing some- thing affecting the real estate about which a written contract is executed between the parties, will not be enforced, because the entire agreement between the parties is deemed to be merged in the writing. Adams V. Gillig (N. Y.), 20-910. 2. Elements. a. Persons capable of contracting. Capacity to contract, see also Bnxs and Notes, 3. Insanity as affecting liability on contract, see Insanity, 5. Intoxication as affecting contractual liability, see Drunkenness and Intoxication, 3 a. Law governing capacity of parties, see Con- flict OF Laws, 3 c (3). Contractnal capacity of deaf mute. — A deaf mute is not regarded in law as a person non compos mentis, but is capable of entering into a valid contract if shown to have sufficient mental capacity. Alexier v. Matzke (Mich.), 14-52. b. Offer and" acceptance. Acceptance of bids, see Auctions and Attc- TIONEEBS. Acceptance of contract of insurance, see Benevolent or Beneficial Associa- tions, 3. Acceptance of offer of reward as constituting contract, see Rewards. Acceptance of subscription, see Subscrip- tions. In general. — Where a written offer to sell certain goods at a stated price is orally accepted, the law implies a promise to receive and pay for the goods, and the offer to sell is not unenforceable as unilateral or without consideration. Bailey v. Leishman ( Utah ) , 13-1116. A memorandum containing an offer to sell certain goods, and signed by the party making the offer, but not showing on its face that the minds of the parties met in respect to its terms, must be supplemented by proof of _ an acceptance of the offer made. Bailey v. Leish- man (Utah), 13-1116. What acceptance sufficient. — In order to conclude a binding contract by the ac- ceptance of an offer, the offer must be ac- cepted substantially as made. Frahm v. Met- ealf (Neb.), 13-312. The fact that, in accepting a proposed con- tract by letter, a party stipulates for a further minor condition, does not invalidate the contract, although such letter is not re- plied to, where the parties enter on perform- ance as though such condition had been ac- cepted, and continue such performance for several years. McKill v. Chesapeake, etc., E. Co. (U. S.), 20-1097. Under an option contract for the sale of certain notes and the assignment of a certain decree, which provides that an option may be accepted by paying a certain sum in person to, or by depositing said sum in a named bank to the credit of, the one granting the option, there is a sufficient acceptance of the option by an offer to deposit the prescribed sum at the designated bank; and the offer to deposit is none the less a sufficient tender be- cause coupled with a demand upon the bank for the delivery of the notes and the assign- ment of the decree. O'Donnell v. Chamber- lain (Colo.), 10-931. Where, in an action to enforce a, claim against the estate of a deceased person for a part interest in the business conducted by the deceased at the time of his death, it ap- pears that the deceased some years prior to his death, having a stock of goods worth ap- proximately $10,000, had proposed to the plaintiff by letter that if the plaintiff would go with him to a, certain place where he wished to take his stock of goods and open a store, and remain with him until he should be able to draw $10,000 from the concern be- sides keeping up the stock and paying per- sonal and store expenses, he would pay the plaintiff, who was to use his best endeavor to make the store the " greatest possible suc- cess," a stated sum of salary, and at the time he could draw the $10,000 from the busi- ness, he would give the plaintiff a one-fourth interest in the store, as additional compen- sation for his services, and that the plain- tiff went with deceased, complying in all re- spects with the terms of the proposition until the time the deceased died, such facts show an acceptance by the plaintiff of the propo- sition made by the deceased not only as to the salary to be paid but as to the prom- ised one-fourth interest in the business. Ott V. Boring (Wis.), 11-857. Oral acceptance of written offer. — A memorandum containing an offer to sell cer- tain goods, and designating the parties, the quantity offered for sale, the price to be paid therefor, and the conditions and place of de- livery, is, upon proof of oral acceptance of the offer, sufficiently specific to sustain an action for the breach of the offer made. Bailey r. Leishman (Utah), 13-1116. Time and place of acceptance. — When an offer is made by one person to another, the minds of the parties meet and the contract is deemed to be concluded the mo- ment the telegram or letter of acceptance is duly sent or posted by the acceptor, provid- ing the offer is accepted within a reasonable time and before the acceptor has knowledge or notice of its withdrawal; and the contract is concluded at the place whence the accept- ance is sent. Burton v. United States ( U. S. ) , 6-362. 526 ANN. CAS. DIGEST, VOLS. 1-20. Mistake as avoiding contract. — Wherfe there is a mistake that amounts to a mutual misunderstanding, or that on its face ii so palpable as to place a person of reasonable intelligence upon his guard, there is no meet- ing of the minds of the parties and no con- tract. Cunningham Mfg. Co. v. Botograph Co. (D. C), 13-1147. c. Mutuality of obligation. What snfficient. — A written contract, signed by both parties, whereby the defend- ant appointed the plaintiffs its executive agents for a definite term to sell fish at an agreed commission, and the plaintiffs obli- gated themselves to use their best efforts to sell such fish, in pursuande of which the plaintiffs in fact performed the services and incurred expenses in introducing and vending the fish, is not invalid for want of mutuality of the obligation. An action for damages will lie upon breach of such contract without cause. Emerson v. Pacific Coast, etc-, Pack' ing Co. (Minn.), 6-973. d. Consideration. Promise to pay debt discharged in bank- ruptcy, see BANKRtlPTCT, 16. Promise of remuneration for services to be performed. — A promise of remuner- ation for services to be performed makes a valid consideration for a contract. Rowan V. Hull (W. Va.), 2-884. Mntnal benefits to be derived. — The benefit to be derived by each pa.rty to a, con- tract furnishes a sufficient consideration for it. Rowan v. Hull (W. Va.), 2-884. Promise to refrain from doing act. — To constitute a mere promise to refrain from doing an act a consideration sufficient to support a contract, an advantage must ac- crue therefrom to the promisee or a loss or disadvantage must be sustained by the prom- isor. Anderson v. Nystrom (Minn.), 14-54. Promise not to present claims against estate. ~ A promise to make the estate of a deceased person no trouble in the matter of attempting to enforce claims against it, where the claims are barred by the statute of limi- tations and the estate is insolvent, does not constitute a sufficient consideration for a promissory note given by the heirs of the de- ceased person. Anderson v. Nystrom ( Minn. ) , 14^54. Acceptance of benefits under con- tract.— The acceptance of benefits under a contract which will impose consent to all the obligations arising from such acceptance must be Voluntary and with knowledge of the facts, and payment to the agent does not con- stitute such voluntary acceptance unless the agent was authorized to accept such payment. Halsell V. Renfrew (Okla.), 2-286. Services rendered under unenforce- able contract. — Services rendered under an agreement which is not enforceable because it is not in writing, as required by the Stat- ntfe of frauds, furnish a suffidient considera- tion to support a subsequent written promise to pay for the services. Muir v. Kane (Wash.), lfl-1180. Promise to one for benefit of another. — If a person, for a consideration moving to him from another, agi'^e's to pay that or any other's debt to a third person, the law, at once, operating upon the acts of the imme- diate parties to the transaction, supplies the essentials of privity between such person and such third person, establishing binding don- tractural relations between them, even though such thii'd person is a strangei" to, and has no knowledge of, the transaction. Fanning r. Murphy (Wis.), 5-435. A stipulation pour autrui under the Louis- iana code may result from implication. Allen, etc., Mfg. Co. v. Slireveport Water- works Co. (La.), 2-471. Privilege of naming child. — The privilege of naming a child, granted by the child's parents, is a valuable consideration suificient to support a contract for the bene- fit of the child, and rests on such privity between the parents and the child as to enable the child to ratify the transaction and enforce the contract in its favor. Freeman v. Morris (Wis.), 11-481. Injstrument under seal. — Want of con- sideration is not a valid defense to an action upon a sealed instrument. Glymer t\ Groff (Pa.), 14-256. Substitution of ne-nr promise for old. — Where a contractor who has entered into a working contract encounters difficulties in the work which are substantial, unforeseen, and not within the contemplation of the parties, and on that account refuses to complete the contract, and the other party promises to pay him extra compensation if he will complete the contract, the new promise becomes sub- stituted for the original contract and is en- forceable although there is no express rescis- sion of the original contract. Lini v. Schuck (Md.), 14-495. Extension of option without addi- tional consideration.— An oral extension of the time for the enforcement of an option contract given without a consideration is merely a parol offer to sell and may be with- drawn at any time before acceptance. Cum- mins r. Beavers (Va.), 1-986. 3. CONSTBTJCnOlN^ AND iNTERPEETAtrON. a. In general. Rules and principles of law appli- cable. — All contracts are to be construed in the light of the rules and principles of law applicable to the subject-matter of the trans- action, and those rules and principles control the rights of the parties, except where the contract discloses an intention to depart thereffSm. Haugen v. Sundseth (Minn.), 16-259. Construction against party prepar- ing.—* A written contract should, in case of doubt, be interpreted against the party who has drawn it up. Canada Glue Co, v. Qali- bert (Can.), 18-791. ^Practical construction by parties. — Practical construction placed by the parties OON TRACTS. 527 in interest upon doubtful or ambiguous terms in a contract will exercise a great and some- times a controlling influence in determining the construction to be placed thereon by the courts. Burton c. Douglass (Wis,), 18-7.S4. Where a business established in a certain city is sold under a contract which provides that the vendor shall not, for a period of ten years, engage in a similar business in that city " or vicinitj'," and within a few months after the sale the vendor establishes a similar business at two different villages, each about six miles from the city in question, and the vendee, with full knowledge of such action on the part of the vendor, makes no objection thereto for upwards of four years, although in the meantime he objects to the proposed establishment by the vendor of a similar busi- ness in the city itself and threatens to bring suit on that account, the actions of the re- spective parties will be treated as a practical construction of the word " vicinity " as not embracing the villages in question, and an in- junction will not be granted to restrain the vendor from carrying on his business in such villages. Burton i). Douglass (Wis.), 18-734. Parol agreement as to meaning of words used. — It seems that parol evidence is admissible, in an action on a written con- tract, for the purpose of showing that prior to the execution of the contract the parties thereto substantially agreed on the meaning of an ambiguous word occurring in the con- tract as drafted. Such evidence does not alter or add to the written contract, but simply goes to show what the parties meant when they used the word in question. Bur- ton V. Douglass (Wis.), 18-734. Contract partly oral and partly in writing. — When a contract is partly written and partly oral, the written and oral parts must be construed together in' determining what the whole contract expresses. Ameri- can Mercantile Exchange v. Blunt (Me.), 10- 1022. Several instruments executed at same time. — Instruments executed at the same time, by the same parties, for the same pur- pose, and in course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance. Myrick v. Purcell (Minn.), 5-148. Disregard of grammatical construc- tion. — While a court, in construing a con- tract, will give due force to the grammatical arrangement of the clauses, it will disregard the grammatical construction if it is at vari- ance with the intent of the parties as indi- cated by the contract as a whole. Beadle r. Sage Land, etc., Co. (Mich.), 6-53. Constrnction emasculating contract. — A construction that will completely emas- culate a clause of a contract will not be adopted if any other reasonable construction is admissible. State ex rel. Davis v. Morten- sen (Neb.), 5-291. Natural meaning of language. — In an action on a note against persons whoj in consideration of the transfer to them of all the assets of a bank, have assumed all its liabilities aggregating a specMed sum, the defendants cannot escape liability on the note because it was not included in the estimate of the sum of the bank's liabilities. Moore T. First National Bank (Colo.), 12-268. Words having definite legal meaning. — When words or terms having a definite legal meaning and effect are knowingly used in a written instrument the parties thereto will be presumed to have intended such words or terms to have their proper legal meaning and effect, at least in the absence of any con- trary intention appearing in the instrument. Langley v. Owens (Fla.), 11-247. Intention and understanding of parties.— When a written contract is un- certain or ambiguous, the court may ascertain and give effect to the mutual intention and understanding of the contracting parties. American Soda Fountain Co. v. Gerrer (Okla.), 2-318. The question whether a contract is of such a character as to require the personal service of all the joint contractors in its performance, or whether it is to be terminated by the death of one of them, is to be determined by a con- struction of the contract itself and depends on the intention of the parties. Babcock v. Farwell (111.), 19-74. Surrounding facts and circumstances. — The rule stated as to the construction of an ambiguous or obscure contract by the aid of extraneous evidence of the surrounding facts and circumstances. L'Engle T: Scottish Union, etc., Ins. Co. ( Fla. ) , 5-748. A contract between a manufacturer and his commission merchants, whereby the manufac- turer agreed to guarantee the merchants "against all losses from failures, for and in consideration of the sum of one per cent, upon the net amount of their sales for " a specified year, construed, and held to show that in view of its terms and of previous dealings between the parties, the parties con- templated that the merchants should eom- tinue their commission business and continue to accept and sell the manufacturer's goods during the whole of the specified year. Wil- son c. Wernwag (Pa.), 10-649. Consideration of preliminary nego- tiations. — In construing a written contract, preliminary negotiations between the parties may be considered for the purpose of deter- mining their meaning and intention, but not to vary or contradict the plain terms of the instrument. Chicago Auditorium Assoc, r. Corporation of Fine Arts Bldg. (III.), 18-253. In construing a lease written options pre- ceding the execution of the lease afford some light in ascertaining the understanding and meaning of the parties and may be con- sidered for that purpose. Chicago Auditor- rium Assoc, v. Corporation of Fine Arts Bldg. J legislation that n^ay be resi^ into the QOntr£\ct pf incorporation. Cpl- gE(te i\ United States Leather Co. (N. J.),, 19r-.1262. ■ Uiider P. L. 1893, p. 121, and f. L, 189e(, p. 309, § 104, the power tp merne two cor- porations is conferred pnly where they s^re organized for the purpose of cf^rrying pn business of the same pi,' a sipilf^r naturp. Colgate I!. United St£^tes Leather Co. ( JT. J. ) , 19^1262. Effec-t of coqi;9,^4^''4<>>!^- ~ Where two corporations are consolidate^ un<^er a, ^tat^itp proyifiiiig that on a ponsplidatipn all the property belonging to the separate corpora- tions, and all the powers apd rights, deljits and liabilities, of the formeT corporations shall be devolved pn tlie ppnsolldated cor- poration (Code Pub. Gen- Laws IV^d. 1904, art. 23, § 46) tbe corporate existence of the former companies teTn\inates, ancl the con- solidated company is a new and separate corporation acquiring its rights by grant from the state, and not by way of transfer frpni the former corppvatioTis. Difr^s p. Fi- delity, etc., Co. (Mass.), 20-1274. The aets authorizing consolidation an^ merger of corporations (P. t. 1893, p. 12l; P. L. 1896, p. 309, § 104) neither permit nor conten>nlate thE^t change pf tHe objects of incorporation i's to be accomplished by means of a conspli^^tipn agreeipent. Colgate v. United States Leather Cp. (I?. Jf.), 19-1262. I^STiaxfce f>e 'iv>^^^ ta consolidated co^p^^y. — WlieTe a corporation executes a mortgage to a trustee tp secure bonds, tp be issued on s^oopunt of prpperty thereafter to be acquired by tlip flprppratiqn on certain conditions, to be performed in part by \he directors of the corporation and in part by an engineer te be selected by it, the oarp^a- tion'^ right to obtain frojn the trustee oer^ tifioation and delivery of the bonds resting. in the corporation's discretion, and after- wards it consolidates with ai^other corpora- tion, the consolidated corporation with property from two former companies cannot exeo^t^ the bond^ for newly-acquired prop- erty of the consolidated corporation, the mortgage provision contemplating the pur- chase of property for tbe original corpora- tion. Diggs V. Fidelity, etc., Co. (Md.), 20- 1274. The holder, of bonds previovisly issued by the former corporation can insist that none of the reserved bonds sh^ll be issued except in conformity with the conditions fixed by the mortgage which in effect constituted a contract between the n^ortgagpr corporation and the bondholders. Diggs v. Fidelity, etc., Co. (Md.), 20-1274. Where a corporation executes a mortgage tp a trustee to ^ecvire bonds to be certified and issued in exchange for prior lien bonds assumed by. the por.poration, the mortgage providing that the trustee shall certify and deliver such new bonds on the corporation's tender of any prior lien bonds, if the cor- poration executes the bonds called for by the moi-tgage, and lodges tliem with the trus- tee before it ceases to eJfist through consoli- dation, the trustee can, without fiirther proceedings, certify and deliver the bonds in exchange for an equal anjioimt of prior lien bonds as authorized by the mortgage, while the mortgage remains in force. Diggs v. Fidelity, etc., Co. (Md.), 20-1274. 3. CONTBOL OF COBPOHATIONS BY LeGISLATDEE Ai^p Courts. a,. In general. Visitorial p,owers. — To protect the pub- lic from monopolies and unlawful cojnMna- tions and nnresiisbnable exa|Ctions from, corporations ehjoying special franc^^ises," t;he st^te miajj- exercise a visitorial ppwer over theni and inay make the power effective and facilitate its exercise by requiring every stock corporation to keep at its pl-incipal ol^ce or place of business in th,e state, correct books of £\ccpunt of all its busine^'. ' Vehrief V. Chicago City R. Co. C^Il.), 20-607, ' b. Amendpient or repeal of charters. ^9Tf er of ^eg^^I^tnre, %v gse^eval. — A charter granted to private in(Jiyidu,ala foof the incorporation of a water company is sub- ject to alteration, s^mendrnent, or repeal at t^ie pleasure of the general assemb)^, pro- vided the object pf the grant or rigWa. vested therev^nder are not defeated pr substantiaWy impaired. Sputhington «. Southington Water Cp, (Cpnn.), 1,3-411. '^.^TO^tatiosiS; on poweif. r- The power to alter pr repeal geneial laws unds^ whi^, cprporatiPns have been organized, wseived by the constitution of Nebraska, is liniited by a section of the same constitution whicla forbids tbe passage of any law impairing the 550 ANK..CAS. DIGEST, VOLS. 1-20. obligation of contracts, and does not reserve to the legislature the power to destroy or impair the contracts of third persons with such corporations. Omaha Water Co. v. Omaha (U. S.), 8-614. Appropriation of property. — The legis- lature may alter or amend the charter of a corporation, but cannot legitimately appro- priate its property without the consent of all its members, either to its own use or that of a, private party, though such party is a suc- cessor corporation, in the absence of some authorization to the contrary in the charter originally. Huber v. Martin (Wis.), 7-400. Rights independent of charter. — A provision in a corporate charter that the charter " shall be subject to the action of any further legislature to amend, alter, or repeal as the public good may require," af- fects the entire relation between the state and the corporation, and places under legis- lative control all rights, privileges, and im- munities derived by the corporation directly from the state, including its very existence; but rights and interests acquired by the cor- poration, not constituting a part of the con- tract of incorporation, and not so derived directly from the state, stand on a different footing and are not subjected by such pro- vision to legislative control. Lawrence v. Rutland R. Co. (Vt.), 13-475. Charter as contract. — A corporate char- ter is a contract between the state and the corporators and is protected by the Federal Constitution, like any other contract, from legislation impairing its obligation. Law- rence n. Rutland R. Co. (Vt.), 13-47.5. The right of a town to purchase the works of a water company in pursuance of a, char- ter provision that such right shall exist on condition that the town subscribes to the stock of the corporation, becomes a vested right on the fulfilment of the condition and is protected by the constitutional guaranty protecting private property. Southington v. Southington Water Co. (Conn.), 13-411. Amendment hefore rights have ac- crued. — After the granting of a charter to a water company and before the full amount of the stock is subscribed or any funds are received or assets acquired, and before the organization of the corporation in accord- ance with the charter is effected, the legis- lature has power to alter the charter by authorizing a town to subscribe, with the consent of the incorporators, for a certain number of the shares of the projected cor- poration, with the option of purchasing the entire works of the company at any time within twenty years by paying to the com- pany the sum actually expended on said works, together with interest, less any divi- dends which the company may have paid; and where the incorporators avail them- selves of the town's proffered subscription to the stock and include it among the organiz- ing members, the privilege of the town to purchase the entire works becomes engrafted on the law of the corporation's existence as effectively as any other expression of the will of the state concerning the corporation's powers and privileges. Southington v. South- ington Water Co. (Conn.), 13-411. Reservation of power of amendment. — The expressly reserved power in the char- ter of a corporation to alter or amend it is subject to the limitation that it shall not be exercised so as to destroy vested rights or to impair the obligation of contracts. Venner v. Chicago City R. Co. (111.), 20- 607. Though a charter granted to a corporation by the legislature is a contract within the protection of the Federal Constitution pro- hibiting the impairment of the obligation of contracts, yet the state possesses reserved rights to pass reasonable laws for the pro- motion of the general welfare, and a subse- quent legislature may subject the corporation to general laws enacted under the police power. Venner v. Chicago City R. Co. (111.), 20-607. Anti-monopoly statutes. — The applica- tion to domestic corporations of the pro- visions of a statute forbidding foreign corporations from continuing to do business within the state if they have become, either within or without the state, parties to any trust or combination to regulate prices or production either within the state or else- where, does not, as to such domestic corpora- tions, cause it to be repugnant to the contract clause of the Federal Constitution, especially where the power to repeal or amend corpor- ate charters is reserved by the state consti- tution. Hammond Packing Co. v. Arkansas (U. S.), 15-645. Supervising power of courts. — Under a provision of a state constitution, reserving the power to repeal, alter, or amend corpor- ate charters, and declaring that such power shall be exercised " in such manner, however, that no injustice be done to the corporators," the question whether injustice has been done to the corporators is within the province of the state court finally to decide, and the federal supreme court will not interfere un- less such power is exercised in such an arbi- trary manner as, irrespective of the contract clause, to deprive the corporators of some other fundamental right within the protec- tion of the Federal Constitution. Hammond Packing Co. v. Arkansas (U. S.), 15-645. c. Regulation of rates for public service. Foiarer of legislature. — The power to prescribe what the charges shall be for ser- vices rendered in the conduct of a business impressed with a public interest is vested in the legislature, and must be exercised by it directly or through some appropriate agency. Madison v. Madison Gas, etc., Co. (Wis.), 9-819. Power of court. — A court cannot pre- scribe a schedule of rates which a public service corporation may charge for future services, though it may determine whether a charge for services already rendered is reasonnble, and may determine the validity of legislation prescribing the rates whicli may be charged by the corporation. Madi- son !'. ^larlison Gas, etc., Co. (Wis.), 9-S19. CORPOEATIONS. 651 Basis of deterjnination. — There is no particular rate of compensation which must In all cases and in all parts of the country he regarded as a sufficient return upon the capital invested in business corporations which are subject to legislative regulation. Such compensation must depend greatly upon circumstances, among them being the amount of risk involved in the business, the locality where such business is conducted, and the rate expected and usually realized upon in- vestments of a somewhat similar nature with regard to the risk attending them. Willcox V. Consolidated Gas Co. (U. S.), 15-1034. As a general rule the value of the prop- erty of such a corporation is to be determined as of the time when the inquiry regarding the rate is made, except perhaps when the property has increased in value so enor- mously as to render a rate permitting a reasonable return upon it unjust to the pub- lic. Willcox V. Consolidated Gas Co. (U. S.), 15-1034. d. Requirement of annual report. Constitutionality of statnte requir- ing. — The Montana statute requiring cor- porations to make annual reports is a con- stitutional and appropriate exercise of the sovereign power of the state over corpora- tions, whether domestic or foreign, in the nature of a regulation to protect the citizens of the state, and secure conformity to its in- ternal policy, and is not retrospective and void as to debts of the corporation contracted before the enactment of the statute, the stat- utory obligation to make the reports required having existed prior to the contracting of the debts in question. Nelson v. Bank of Fergus County (U. S.), 13-811. Applicability to foreign corporations. — The Montana statute providing that •■ every corporation having a capital stock " shall annually within twenty days from and after the thirty-first day of December make a certain report, and that " if any such cor- poration shall fail to do so, all the directors of the corporation shall be jointly and sev- erally liable for all debts of the corporation then existing or which may be thereafter contracted until such report shall be made and filed," includes in its express terms for- eign as well as domestic corporations, and will be so construed, especially in view of a constitutional prohibition, first effective in 1899, against allowing a foreign corporation to exercise or enjoy any greater rights or privileges than those possessed by domestic corporations, and in view of circumstances sharply directing the legislative mind to the question of including foreign corporations within the statute. Nelson v. Bank of Fer- gus County (U. S.), 13-811. 4. Rights and Powers. a. In general. Pollers as comprehensive as tbase of individual. — The powers of a corporation in effecting its objects are as broad and com- prehensive as those of an individual, when not expressly prohibited. Herrick v. Hum- phrey Hardware Co. (Neb.), 11-201. Changing nature of business. — As be- tween the corporators, the corporate objects expressed in its certificate of incorporation cannot be changed without unanimous con- sent, unless changed by virtue of some act of legislation which may be read into the contract. Colgate v. United States Leather Co. (N. J.), 19-1262. Action on the part of the corporation to change the nature of its business pursuant to the authority conferred for that purpose by our General Corporation Act is to be exercised, if at all, by direct proceedings taken pursuant to the statute. Colgate v. United States Leather Co. (N. J.), 19-1262. Construction of statute granting franchise. — Statutes granting to corpora- tions franchises which involve the rights of the public are to be construed liberally in favor of the public and strictly against cor- porations. State ex rel. Minneapolis v. St. Paul, etc., R. Co. (Minn.), 8-1047. Implied poivers. — A corporation may exercise not only those powers expressly given it, but such others as are necessary to carry the express powers into effect; but a power that the law will regard as exist- ing by implication must be one that is directly and immediately appropriate to the execution of the powers specially granted, and not one that has but a slight, indirect, or remote relation to the specific purposes of the corporation. People ex rel. Healy v. Illinois Central R. Co. (111.), 13-285. Constitutional guarantees of property rights. — The provision of the constitution of Florida that no person shall be deprived of property without due process of law, and the provisions of the Fourteenth Amendment of the Constitution of the United States as to property rights, extend to the property held and used by corporations, since the bene- ficial ownership of such property is in natural persons, and the law forbids the doing by indirection that which is forbidden to be directly done. Seaboard Air Line R. v. Simon (Fla.), 16-1234. Corporation formed by consolidation. — A corporation formed by consolidation succeeds to all the rights, privileges, powers, and franchises of the constituent corpora- tions, and becomes liable for all their debts, liabilities, and duties; and consequently, where circumstances existing prior to the consolidation would have entitled one of the constituent corporations to file a bill in equity in the nature of a bill of peace to prevent a multiplicity of actions, such right passes to the consolidated corporation and may be exercised by it. Southern Steel Co. V. Hopkins (Ala.), 16-690. Right to practice law. — The New York statute providing that corporations may be formed "for any lawful business (Business Corporations Law, § 2) does not authorize corporations to engage in the practice of the law; and therefore a later statute expressly declaring it unlawful for a corporation to 552 ANN. CAS. DIGEST, VOLS. 1-20. practice law, but excepting from its opera- tion corporations " lawfully engaged in a business authorized by the provisions of any existing statute" (Pen. Law, § 280), does not authorize a continuation of its business by a corporation theretofore organized under the business corporation law for the purpose of practicing law. Matter of Co-operative Law Co. (N. Y.), 19^-879. Bight to practice medicine. — While a corporation is a person in a certain sense, and for many purposes ia so considered, it is not such a person as can obtain a statu- tory license to practice medicine. State Electro-Medical Institute v. State (Neb.), 12^673. Qualified and licensed physicians may form a corporation, and make contracts for the services of its members and other licensed physicians. Making such contracts, and fur- nishing services of qualified and licensed physicians thereunder is not a violation of the statute forbidding the practice of medi- cine without a, license. State Electro-Medi- cal Institute v. State (Neb.), 12-673. Power to insure lives of officers. — In the absence of express authority conferred by its charter, a manufacturing corporation has no power to expend its funds in the pay- ment of life insurance premiums on a policy taken out, at its instance and request, by one of its ofiicers, on his own life, and as- signed by him to the corporation. Such pay- ment is ultra vires, and will be enjoined at the suit of a nonassenting stockholder. Vic- tor V. Louise Cotton Mills (N. Car.), 16- 291. b. Power to acquire stock. Own stock. — A corporation has power to purchase its own capital stock, provided the purchase is made with no illegitimate or fraudulent purpose, and no rights of creditors suffer thereby. Gilchrist v. High- field (Wis.), 17-1257. In an action by minority stockholders to have a purchase of its own stock by the cor- poration declared void, on the ground that the directors voting such purchase did so for the purpose of depriving the plaintiffs of their just rights in the corporation, a finding by the trial court that no such motive existed, nor any ulterior or illegitimate in- tent or purpose other than the promotion of the best interests of the corporation accord- ing to the best judgment of the defendants, when supported by a preponderance of the evidence, is conclusive upon the appellate court, and precludes any interference by it with the business policy adopted by the ma- jority stockholders. Gilchrist v. Highfield ■(Wis.), 17-1257. In the absence of an intention to cancel, the purchase by a corporation of its own stock does not amount to a cancellation thereof. Such purchased stock may remain outstanding as assets of the corporation if treated as such by the corporation. Pabst ». Goodrich (Wis.), 14-824. Stocb of rival corporation. ^ It is un- lawful for a corporation to purchase stock in a rival corporation for the purpose of controlling the latter and thereby prevent- ing couipetitiou and creating a monopoly; and this is so whether the purchase is made by the corporation in its own name or m the name of others as its agents or trustees. Dimbar v. American Tel., etc., Co. (111.), 8-57. It is unlawful for a manufacturing cor- poration to purchase stook in a rival corpora- tion for the purpose of controlling the latter and thereby preventing competition, though there are others engaged in the same busi- ness and therefore the complete monopoly or complete restraint of competition will not necessarily result from the transaction. Dunbar v. American Tel., etc., Co. (111.), »-57. It is ultra vires for a corporation to pur- chase stock in a rival corporation for the purpose of controlling the latter and pre- venting competition, though the purchase is made in the name of agents or trustees and the title to the stock purchased is vested in such trustees and not in the purchasing cor- poration. Dunbar v. American Tel., etc., Co. (HI.), 8-57. Injunction to prevent voting. — The minority stockholders of a corporation may maintain a bill to enjoin a rival corporation from voting shares of stook in their corpora- tion which it has purchased for the purpose of preventing competition and creating » monopoly; and the bill may be maintained either on the ground that the contract of purchase is void as being ultra vires, or on the ground that the transaction is fraudu- lejit as to the complainants. Dunbar v. American Tel., etc., Co. (lU.), 8-57. Allegations of the complainants' bill con- sidered, in a suit by the minority stock- holders of a corporation to restrain a rival corporation from acquiring control of the complainants' corporation and held sufficient to show that the purpose and tendency of the defendants' purchase were to suppress com- petition between the two corporations and to create a monopoly. Dunbar v. Amerioaa Tel., etc., Co. (111.), 8-57. c. Power to guarantee stock of another cor- poration, In general. — The power to guarantee the stock of another corporation is not to be implied from charter authority to hold stock in other corporations. Greene v. Middles- borough Town, etc., Co. (Ky.), 11-888. A provision in articles of incorporation that the corporation " shall have power to make contracts, acquire and transfer prop- erty, possessing the same powers in such respects as private individuals," is limited by that part of the articles which defines the business the corporation may engage in and does not confer on the corporation, by implication, the power to guarantee the stock of another corporation. Greene v. Middles- borough Town, etc., Co. (Ky.), 11-888. Effect of ultra vires guaranty. — A corporation, receiving a thing of value in consideration of guaranteeing the stock of another corporation, would have to surrender CORPORATIONS. 553 such consideration in ease its act in giiar- ftiiteeing the stock pt'oved ultt->i vii-es, but the passing of the Consideration woUld not make the gUaifaJlty valid or binding. Greene r. Middlesbbrotlgh Town, etc., Co. (Ky.), 11- 888. d. Pdwer to hold and convoy real estate. Validity of ultra vires pnpchase. — A conveyance of real property to a corporation whith i8 iheompetent by its charter to hold real Estate is not Void but only Voidable. Thfe SOVefeigil alOne can object to such a. ooilVeyanee, and it is valid until assailed in a direct proceedihg instituted for that pur- pose. Pliget Sound Nat. Bank i). Pishei' (Wash.), 17-526. C6ii*eyftti'.), 9-738. ^oyrev to increase stpck. -;- The powpr to increase the capital stock qf a corporation can ^e exercised by \he stpckhojders qnly at a 'ineipting cjiiled io consider that question, and an agreement to take part of the in- creased stock' i^i advance of the making of the increase is not binding unless ratified after the increase is( actually made. Wolf i;. 'Chicago 'Sip Printing Co. (111.), 13-3e& b. Conveyances of stock. (1) In gener-al. Eff fift p^ |u^B^f;a|itcy., tt A trustee in b^i^iuptcy acquires the ^i^le to, shares p,| stock' VRhich tlift ta'nkrupt h^s merely " de- pos^te^ " as (jolIateTa,! see\irity, as a written tr^nsfjsf is e^e^tial to ^hp validity of a jdfS^^^ (jprpqr^te stock; and the truster's t^liei rela^^ hack fp tl\e oommenepment qjf tl^^ bankruptcy proceedings. Fi;'?nch v. ^'^l^te (Vt.), 6-479. Option to resell, -r A person who pur- chases cocrpqrate stock from a opifpoj-ation lindier an agreement' giving him an option to r'efell tile stock to t^e corppratibn witliin a specified time at the pffic? pa,id therefor, does, liot make a eonditioifial purchase of the stock, bui te^pnjtes tlie a^isolute and unconditiona,! owner thereof^ Mclntyre v. E. Bement's Sons (Mich.),, "10- U3. Validity of Itiy-IaiW limiting ri^ht to^ sell stock. — A statute which ex^T;easlj au- tliorizes a corppration, fojniied unde]f it to aclppt by-laws regulating the issuance and, tra]i^?rehce of shares in its capital stock and aiding ^n the pjjomotion o,f its business gives ■^alidity to a by-law which requires a sto?k- nplder who desires to, sell and transfer his sitbck,^ before doing so, to notify the directors of sv^ch desire, aija to give them a reasonable time to sell \hi^ stock tq classes of pei;sqiis designated in the by-laws, because of the be- lief tlia.t their occupa,tioi^s would reijder them efi^cient promoters of the b^isinijss of th? cor- poration. NicholiSOn, v. Franlflin Brewing Co. (Ojiifo), 19-699.' ' ' ' Equities against trxinsf errer. — A pur.; chafer of shaijes of stock acquires only the rigiits tljat his, vendor h,ad, and if the yendoi; was precluded from maintaining a stockhold- er's sjiit in respect to paiticu^ar tijansactions, th|e purcha.sef is also preclufled from Sjuing in respect theretq. Babcock v. Farwell (jllT.), 19^74, (2) Imp|Iied yffljaaj^ty. There is no implied; warranty on the part of a seller of certiflcates of stock th^t'the cpijppration is^i^iing them is a corporation de jure, l?ut it is sufficient if the eortoration is a de facto ofie, Ma,rshall v. K.each (III.), 10-164. . In a contract to exchange land for stock in a corporation, the fact that the letters '* ipc." are pjaced in p^regtheqps after tl\e iiame of the corporation m the coptraft does not qmoiipt tq a warranty that the stock is that of a cqrporation de jure. Marshall v. Keach (111.), 10-164. (3) Rescission. In a bill to rpsieifl^ ^ sa^e qf i/he shares, pf stock on tl^e ground qf fr^p.^^ thg' foi^pjaiii- E^nt m\ist ailege tt?>t fc pi^owptly ^is^|grjiied the sale on dis?ovpri:^ig t?%? alleged f'^a.;^^, m^ ^V'i^ further allege ^\i,he,T tfeat tia qff^T?4 tq Refund the pvrgihf^se price fff tli^t lip ]iaR some sufficient legal excuse fpf ^^ fa^u^e tq dp ap. fDunbar ^, AmPTiqan Tel^ e,tqu Co. (Til.), 8-5,7. A hill to set aside a cq^tr^ct fof the sale, qf ghaifes of s,tqcjc oh, thp grqun^ qf Bdiacqn,- di^ot ppa tlie part of the Qoinpliaii^fpt?' attor- ney must qfl'er tp p!a6e, th.? purchaser q| tlje stock in statu quo, I}u];iba]j '^. Aijieric,^;^ T?'-) etc., Co. dH.), 8-57, (4) Breacji of contract. On th^ trial of W actiqii by a p^rph^seii tPj r^pqver danxages for bre_^ch of a oqpty^ct for the s?ile. of corporate stqcki '^Rhere the pl[a>|i-, tiff iQsists and the defei^d^fit ^^ies tti^t tha p£^y■lia,snt was inade for the deliver.y, oif st^idfe, it is prvor to admit, in eyidei^cp a letter writ- ten by the plaintiff tp t^ip. dfi|e^ant w-ljiipti dq^ not estiHMish the alleged ^aipE^qdi i^ut siiijiply disptoa^s th? self-s^^viag 4eqlar%tJPift on the pa^t o;f the p^aiintiff' tS?it s^ij^ (ie-. maii^d had previopaiy been wade ai;d thp d.^ fendant had refUiSftd to coniply tl^eif^wiih., Hightower v. Aii|Sl?y (Ga.), 7-927. In ajj, aotio» by a purcha,S(eai tp recqy«iP daoiages for 1?rea,ch qf a cqntrae^ fqf tjb;^ sajle of oorporatfi stqo^, evidence tend^ftg- tci sho'^ a subsequent Tecogn^tiojii Pit th,ei con- tract by the hojii^or ot the stoejf;,, incli^ii^ ^ written pal?Jilatiqji made Vy hijip a? tq the amount due by the pui;q^aser unfter- a 0[)n-, trapt of like effect ma^e witli, £^nqtl)Je^- stock- holder, is adnjiissilple tq shoiis Ujpqft W'feat texms the pa,rtie3 understpqcl, the stpi^ w^ to be sold, ^xghtower v. A;9slfiy; (Qaj.)ii 7-. 9?7. ^n an action by a pijirofewiae^ tp r^cq\eif damages for breach o^ a cont^apt ^' the^ sa^ of coi:pofa,te stqpk, proof of the^ poB^jBBfttxon moving, to the holdftJi of the atogk; whipi^, iBr duced h|im to a,g]iee tq. Siell ft a,t the a^ipi}l%te4 pjjice is, admissible, thouglj the evjijdenioe ap- this pqfnt should properly Ipg, ao, rastrijBta^ 9fl tp eliiQina,te alf unnecessary deta^ S@gl)^ tower V. Anstey (Ga.), 7-927. c. Tiansfei; of ceFtifica,tp9. Motiye as affecting rights to trans- fer. — Where the articles of a cqi;por%tion contain no clause authorizing .dire,ct,qr8 t<} reject a trapsferee, a . shareholder may, up to~thp la^t ipoment before UquidatiDj\,' ^pd for the express purpose of escaping IfabJ^t^^ transfer his, partly-paj^ ahares to a trans- feree, even though 'he is a. pauper, apd- may compel the directors to register that trans'- COEPOEATIONS. 561 fer, provided it is an out and out ti;?,H9(eT reserving to the transferrer no beneiloiat riglit to the, scares, direct or indirect. Wije1;h,er the transfer is of that character is a question of fact. In re Discoverers Finance Corpora- tion (Eng.), 18-337. Sigbt to compel transfer. — A suit can- not be maintained against the corporation to cpmpei it to register stock which a holder has attempted to transfer in violation of suein bv-law. NicholsoB v. Fraaklin Brewing Co. (Ohio), 19-699. ^^l^dency of demand foI^ transfer. — VVhere tl^e assignee of shares of stock pre^ sents the stock to the secretary of the eor- poi;ation and demands a transfer of the stock on the books of the corporation, a,nd on being refused) and referred to the general managei' of the corporation, presents the stock to lum aadi demands that it be transferred, and is Xesfi^ed, a proper and legal; demand for the transfer of the stock is made, although the general manager is, at the time oi the de- matftd, on the street in front of his office, he majsing no objeotion to the time and place of pjresentaitioa and, demand, but absolutely re- fusing to make the transfer. Dooley v. GHadiatojF CtaisoL Gold Mines, etc., Co. ( la. ) , 13-29.7. ^^fcsal to transfer on books as con- versj^on. -rr The assignee of stock in a cor- poration may at his election treat the wrong- ful refusal of the corporation to register th^ transfer of the stock as a conversion thereof, and sue for the recovery of its value. Dooley V. Gladiator Consol. Gold Mines, etc., Co. (la.), ]|»-297. In such an action the plaintiff is not re- quired to show any depreciation in the value of th,e stock after the making of the demand fpj! the transfer, but may recover the full yaiue of hia stock at the time of the demand foi; the tifansfer with interest to the date of %Tiai\. PiODley v. Gla^diator Consol. Gold Mines, etc., Co. (la.), 13-=297. Title to stock. — Ob the refusal of a cofporation to, transffer stock to a- parchaser thereof from a stocfcholder, the fact that the agent of tl»e stockholder agrees, at the re- quest of the purchaser of the stoek, not to remit the purchase prijce to. his principal peijding the settlement of the controversy as to the. ijiiatosfer, does not affect the purchaser's title to the stock. Pease v. Chicago Crayon- Co. (HI.)-, 14-263. RigbtEt oif transferee. — - A person hold- ing stoek of a corporation cannot be heard- to say that the one from whom the same stock was acq-wired bought the stock illegally from- the corporation, and at a smal-lie-r price than the corporation was authori-zed to sell it, as he eaijnojt partake of the fruits of a transac- tion and then say it was tailited'. Gu-maer V. Cjipple. Creek Tunnel, etc, Co. (©olo.), 13-781. d. Persons who may become stpckholders, A m^rr-ied woman is not forbuWeB by the constitsitioni or the statutes of Florida to hold/ stock ia a national bank. Christopher V. Norvell (U. S.), 5-74.0. .Vols. 1-20 — Ann. Cas. Digest. — 36. e. Rights and powers of stocl^UQlders. (1) In general. EilK^Qt »? insplyency, -r. A stockholder yijho hxjlds the promise of a corparat-iMi to b\\y his stwk at his option oannojt exercise the Osp-liion, and esforqe the promise after the cwpovatiQB has become in fapt insolvent. Mclijtxre v. E. ?iemieat's So-ns (Mich.), lOr- 143. Iligbts of holder of prefwred stook on ■winding isb o^raoraition. — Tkei New Jersey General Corporation Act of 189® (P. L. 1896, p. 277) authoofi?es the creation of two or more kinds Qif stock, of *Uich classes, with suCih d^ignatiows, prefeiencesj and vot- ing p.o\yeis, or restrictions or qualification tjiereiot as shaU be stated or expressed in the certificate of injcorp^atiea. Where a corporation, organized Udder th*t aot pro-vfidea in its (jertificate^ for th.e creatioa of preferred stock, "the,, holder t^igreQit to receive audi the company to pay a fixed yearly dividend of six per «ent., before, any divideied shall be ^t apart or paid! re^deri^lg a decree for an accounting, pj;0}pe!irly refused to allow interest, on the amount of yi?; profits recwered. McCourt v.. Singerg,-Biigg«jf (U., S.), 7-2a7. Q-JKht to sue, cqmqiratiion., -^ A stock- holder caijnot. sue for the betiiefit of tke cor- poration or of other stoekholders to set aside oorpoi^ate traftsaotions to which he has. as- seBited, because, the thiepry of a sikoekholdeis's. aotioij is 1;hat th«. stockholder has been in-, jiu-ed in respect to his. sto»k by the wrong don^, to the coiipo^atioiOi, amA a complaimant cannot- maintaiiJ a bill and obtain relief un- leiss, h.^ hiwself has. SBstainedi a wrong.. Bab- cpcl^ V. faijwell (11(1.),,. ],9h74,. Acquiescence in acts complainedl of. — A stpckhplder cannot maintain an action against his cpi;ppraypi) for equitable relief agaitat his corporation's ultra vi'res but no,t illegal acts, where, with the knowledge of their character, he has accepted pecuniary benefits under such acts either before or siiice the commencement of his action. Wormsev V. Metropolitan St. E. Co. (N. Y.), 6-123. Bigbts and duties qf majority stocb.^ bolder. — The hpldter of a majjority of the stock pf a cprporation stands ill a fld'uciary relation tp the hpWters pf the minority gt the stoek, beca;use: he- has a com.mimjty of interest wi;6h them in the .same pppperty, and. because they can act, and cpjitracl; in rela- tion to the corporate property only through 562 ANN. CAS. DIGEST, VOLS. 1-20. him. Wheeler v. Abilene Nat. Bank Bldg. Co. (U. S.), 14-917. The power of a single holder of a majority of the stock of a corporation devolves on him the correlative duty to the holders of the minority of the stock to exercise good faith, care, and diligence to make the cor- porate property produce the largest possible amount, to protect the interests of the mi- nority stockholders, and to secure and deliver to them their just proportion of the income and of the proceeds of the property. Wheeler v. Abilene Nat. Bank Bldg. Co. (U. S.), 14^917. A sale of the corporate property by a single holder of the majority of the stock, by the use of the meetings of the board of directors and the meetings of the stockhold- ers in legal form, for its fair value, but for smaller amount than he could have obtained for it from another, is avoidable at the elec- tion of the minority stockholders. Wheeler B. Abilene Nat. Bank Bldg. Co. (U. S.), 14- 917. Such a sale is voidable, not void; and a court of equity may condition its decree of avoidance by a requirement that the com- plainant shall bid and deposit an amount equal to the amount paid at the sale and the expenses of a master's sale, to be applied in payment for the property in case no one bids more, or in case the depositor is the highest bidder. Wheeler v. Abilene Nat. Bank Bldg. Co. (U. S.), 14-917. Where after an offer by a minority stock- holder to the majority stockholder of thirty- five hundred dollars for the corporate prop- erty and a notice to the secretary of the corporation that he desires to bid for the corporate property, such property is, hy means of the regular action of the meeting of the directors and of the meeting of the stockholders, at which the majority stock- holder's stock is voted in favor of a sale, sold for twenty-five hundred dollars to such majority stockholder, the latter being the president of the corporation, its creditor, and a member of its board of directors, and the other four members of the board being quali- fied merely by his transfer of one share to each, the sale is, notwithstanding the fact twenty-five hundred dollars is the fair value of such corporate property, voidable at the election of the minority stockholders. Wheel- er V. Abilene Nat. Bank Bldg. Co. (U. S.), 14-917. (2) Voting. A provision in articles of incorporation that the voting power shall be vested ex- clusively in the common stock and that pre- ferred stockholders shall have no right to vote is not violative of any rule of the com- mon law or of public policy or of any pro- vision of the constitution or statutes of Missouri. State v. Swanger (Mo.), 4-563. Stock voting agreements. — An agree- ment between two factions of the sharehold- ers of a railroad company incorporated by the secretary of state, to the effect that one of such factions, owning half of the corpor- ate stock, shall have the right indefinitely to name a majority of the directors of the company, and thus manage and control its affairs, is against public policy and, there- fore, void. Morel v. Hoge (Ga.), 14-935. (3) Inspection of books. Common-lair right. — A stockholder's right of inspection is a common-law right, and unless restrained by statute or the cor- poration's charter will not be denied when sought for a proper purpose. Harkness v. Guthrie (Utah), 1-129. Constitutionality of statute. — A stat- ute requiring corporations to keep correct books of account in the state and to permit their inspection by stockholders does not de- prive a corporation previously organized by special law of any vested rights, nor does it impair the obligation of a. contract, though the act of incorporation contains no declara- tion that the corporation shall be subject to subsequent laws. Venner v. Chicago City R. Co. (111.), 20-607. Motive as affecting right to inspec- tion. — The common-law right of a stock- holder to inspect the books of a corporation will be enforced only where he asks for it in good faith and for reasons connected with his rights as a stockholder; but where the right of inspection is conferred by statute absolute in terms, it cannot be denied on the ground of improper motive, because a clear legal right created by statute cannot be de- feated by showing an improper motive. Venner v. Chicago City K. Co. (111.), 20-607. Where a court is appealed to for the en- forcement of the common-law right of a stockholder to inspect the books of the cor- poration, sound discretion will be exercised to determine whether the petitioner is acting for an honest purpose not adverse to the in- terests of the corporation, and the court will consider both the interests of the petitioner and the effect the inspection will have upon the interests of the corporation. Varney v. Baker (Mass.), 10-989. In the absence of statute a stockholder in a national bank has a right to inspect the books of a bank, provided the inspection is made in good faith, at a proper time and place, for legitimate purposes ; and such right is not taken away or abridged by any pro- vision of the federal statutes. Guthrie r. Harkness (U. S.), 4-433. Right to assistance of experts. — There is nothing in the Massachusetts stat- utes which enlarges or restricts the common- law right of a stockholder of a corporation to inspect the books of the corporation and to have the assistance of an expert or other person to make transcripts from such books for subsequent use. Varney v. Baker (Mass.), 10-989. Mandamus to enforce rights. — At com- mon law a stockholder acting in good faith for the purpose of advancing the interests of the corporation and protecting his rights as the owner of the stock is entitled to inspect the books of the corporation, and may enforce his right by mandamus. Var- nev v. Baker (Mass.), 10-989. CORPORATIONS. 563 Mandamus lies to enforce the statutory right of a stockholder to Inspect the books of the corporation. Venner v. Chicago City R. Co. (111.), 20-607. Mandamus and not injunction is the proper remedy of a stockholder to enforce his right to inspect the books of the corporation. Brown v. Crystal lee Co. (Tenn.), 19-308. Application of general lair to in- corporation nnder special act. — A cor- poration created by special act authorizing its directors to adopt rules for the govern- ment of the corporation not inconsistent with the laws of the state, is subject to the Gen- eral Corporation Act of Illinois (Hurd's Rev. St. 1909, c. 32, § 13) requiring every stock corporation to keep correct books of account and giving every stockholder in such cor- poration the right to examine the books, though the act of incorporation contains no declaration that the corporation shall be sub- ject to laws subsequently enacted. Venner e. Chicago City E. Co. (111.), 20-607. Rule applicable to national banks. — A stockholder of a national bank has the same right of inspection of the books as is possessed by a stockholder of other corpora- tions, such right not being a visitorial power within the prohibition of a federal statute. Harkness v. Guthrie (Utah), 1-129. The provision of the federal statutes that no national bank shall be subject to any visi- torial powers except as authorized by such statutes, does not deprive a stockholder of a national bank of the common-law right to inspect the association's books. Guthrie v. Harkness (U. S.), 4r-433. A state court has jurisdiction to enforce such legal right as the stockholders of a, national bank may have to inspect the books of the bank. Guthrie v. Harkness (U. S.), 4-433. f. Lien of corporation on shares. A national bank has no equitable lien on its stock as against stockholders indebted to it, even though its articles of association or by-laws profess to give it a lien, and there- fore upon dissolution it has no equitable lien upon an indebted stockholder's distributive share of the corporate assets. Bridges v. National Bank (N. Y.), 7-28.5. A corporation has no lien on the shares of its stockholders for debts due from them to the company, unless such lien is provided for by statute or by the charter or by-laws of the corporation. Herrick v. Humphrey Hardware Co. (Neb.), 11-201. g. Liabilities of stockholders. (1) Validity of statutes imposing liability. Impairment of obligation of con- tracts. — Where the constitution of a state provides that the stockholders of a corpora- tion shall be liable individually for its debts, and the statutes of the sta/te give the corpora- tion's creditors remedies for the enforcement of such liability, a statute repealing one of such statutes and substituting a different remedy is unconstitutional in so far as it affects prior coiilrrcti and accrued rights, as it impairs the obligations of such contracts by lessening their value and tending to post- pone their enforcement. Harrison v. Rem- ington Paper Co. (U. S.), 5-314. Due process of la.'w. — A state statute increasing the implied contractual obligations of pre-existing stockholders by increasing their statutory liability for corporate debts works u, deprivation of their property with- out due process of law, and therefore an order of court imposing such increased lia- bility is not entitled to obligatory enforce- ment in another state, though its validity has been upheld by the court of last resort of the state passing the statute. Converse v. .^Stna Nat. Bank (Conn.), 7-75. Change of remedial provisions. — Where a stockholder acquires his stock sub- ject to a statutory liability for the corpora- tion's debts, the amount of such liability cannot be increased by subsequent legisla- tion, though the mode of enforcing the lia- bility can be varied within reasonable limits. Converse r. ^tna Nat. Bank (Conn.), 7-75. Effect of statute as to existing stock- holders. — The Minnesota statute regulat- ing the additional liability of stockholders to tl>r creditors of a corporation, which adds to the liability for the corporate debts liability to assessment for the future expenses of any receivership of the corporation, is invalid in so far as it applies to stockholders who ac- quired their stock under a prior statute which did not render them liable to assess- ment for such future expenses of a receiver- ship. Converse v. ^tna Nat. Bank (Conn.), 7-75. Where a statute regulating the liability of stockholders for corporate debts is invalid as to pre-existing stockholders in that it provides for the future expenses of a receiver- ship in addition to the double liability im- posed by the statute in force at the time they acquired their stock, an order making such additional assessment is invalid though the amount assessed is much less than the stockholders' double liability. Converse v. 2Etna. Nat. Bank (Conn.), 7-75. EfFect of foreign judgment. — Where, under a statute increasing the stockholders' liability for corporate debts, a proceeding is instituted to enforce such increased liability, and an order is entered imposing the liability against a nonresident stockholder who is not served with process and who does not ap- pear, and who acquired his stock prior to the passage of the statute, the courts of the stockholder's residence will not, in an action to enforce the order, consider that the stock- holder is conclusively bound by the order, but will recognize his right to set up the de- fense that the order is void in that it is based on a statute which is invalid as en- larging his contractual obligations as a stock- holder; and this is so though the validity of the order has been affirmed by the court of last resort of the state whose statute is in question. Converse v. iEtna Nat. Bank (Conn.), 7-75. 564 AXi\. CAS. DIGEST, VOLS. 1-20. (2) Persons liable, (a) In general. Sale of stock to evade liability. ■>- The receiver of a national bank may enforce a stock assessment against a former stock- holder who sold his stock prior to the failure of the bank with knowledge of its insolvency and with the intent to evade his double lia- bility, unless such stockholder sets up the defense and proves that the purchaser was financially responsible to such an extent that the creditors, of the bank were not damnified bv the change of ownership. McDonald v. Dewey (U. S.), 6^19., Kffec.t a^ to subsequent creditors. — The stockholder of a national bank whoi has fraudulently sold his stock to evade his double liability is not liable to creditors who, become such after the transfer has been duly recorded, though he is liable to creditors who become sijch after the sale but before th« recording of the transfer. McDonald v. Dewey (U. SJ, 6-419. Where a constitutional provision imposing an additional liability on stockholders ex- cepts the stockholders of corporations organ- ized for the purpose of carrying on any kind of manufacturing or mechanical business, the exception does not extend to the stockholders of a corporation organized not only for manufacturing but also, for the purpose of buying up. the shares of stock of an existing corporation. Converse v. .iEtna Nat. Bank (Conn.), 7-75. Liability of tsansferreir of stock. — A shareholder ajiad diirector in a corporation who, in perfect good faith and under circum- stances free fromi any suspicion of fraud or a desire to, escape liaibility, sells his stock and does everytlwng conitvected with the transfer that he honestly believes is neces- sary to make it effective, and that a prudent busiiness man slwuld do, and who requests the officers in charge cf the corporate books to do everything that is necessary to perfect tlie transfer, and is, informed by them that there, is, nothing else to be done, is relieved from future lijiility as a shareholder, not- withstanding the fact that the transfer is not registered ojj the coJiporate books. Bracken V. Nicol (Ky.), 14-^86. (b) Purchasers below par. One who purchases stock from a corpora- tion at less than its par value is liable to the creditors of the corporation for the dif- ference between the amount paid by him and tlie par value of the stock held by him; and no agreement between him and the corpora- tion will avail to relieve him from such liability. Vaughan v. Alabama Nat, Bank (Ala.), 5-663. (e') Married women. Tn general. — Under the Married Wor man*§ Act of the , District of Columbia, a, wife may own. shStres of stock in a joint-stock company organized and carrying on biisijj.ess in the District of Columbia and tlierpb',- ren- der herself liable to a creditor of the company on its becoming insolvent. Norwood v. Fran- cis (D. C), 4-865. Liability nnder national banking act, — A married woman who has acquired stock in a national bank during coverture holds it subject to the liability imposed by the Na- tional Banking Act, and a personal judgment may be rendered against her in an action at law to recover the amount due under an as- sessment against stockholders made by the controller of the currency, though by the laws of the state of her residence she is incapable of making a contract that would subject her to personal liability, Christopher v. Norvell (U. S.), 5-740. (d) Foreign corporations. Where a foreign corporation becomes a shareholder in a domestic eorporation, it ren- ders itself liable to perform such contractual obligations as are attached by the laws of the domestic state to the ownership of the stock. Converse v. Mtna. Nat. Bank (Conn.), 7-75. (e) Transferees. A provision in a charter granted prior to the Georgia act of 1893 to the promoters pf a banking enterprise, relating to the liability of the stockholders, held not to apply to the transferees of the stock. Eeed v, Dejarnette (Ga.), 3-1117. (f> Pledgees. In order that the pledgee of bank stock may escape the statutory liability of bank stockholders, the fact that the stock is held as a pledge must appear on the books of the company. Adams v. Clark (Colo.>, 10-774. (3) Nature of liability. Implied contract. — A stockholder of a corporation, by his subscription for stock or acceptance of it, agrees with the corporation and its creditors that he will perform the obligations and discharge the duties imposed on a stockholder by the constitution, the statutes, and the law then in force, and his liability to creditors springs from that eon- tract. Harrison v. Remington Paper Co. (U. S.), 5-314. The superadded statutory liability of the stockholders of a, banking corporation js a contractural obligation, and is to be enforced as such. Adams v. Clark (Colo.), 10-774. liiability in nature of snretysbip. — The contractural obligation which a stock- holder impliedly assumes under a statute making him liable for the corporation's debt* is that of a surety, and is due, not to the corporation, but only to its creditors or to such representatives of their interests as the law may create. Converse v. .iEtna Nat. Bank (Conn.), 7-75. The federal statute imposing liability on the, stockholders of national banks does not niake the stockholder liable to tlie creditor as surety for the debts of the corpcBatiiQm but merely imposes a, liability on him as sec- COEPORATIONS. 565 ondaiy to those debts. The liability is the consequence of the breach by the corporation of its contract to pay and is collateral and statutory. McClaine v. Rankin (IJ. S.), 3-500. Conditional liability. — The liability imposed upon the stockholders of a nationsil bank by the United States statute is con- ditional. McClaine r. Rankin (U. S.), 3-500. Divisibility of canse of action. — A contract of stockholders to pay the debts of the corporation is the basis of their double liability, and an action to enforce such lia- bility is indivisible. The cause of action be- tween the same parties is the salne whether it is on one or several shares of stock, and it may not be split. Harrison v. Remington Paper Co. (U. S.), 5-314. Thie right of a creditor having various claims against a corporation to exact pay- ment from a stockholder is not such a single, indivisible demand that by placing one claim in judgment against the stockholder he is precluded from proceeding against him on others. Manley v. Park (Kan.), 1-832. Infringement of patent. — Damages awarded for the infringement of a patent are not a debt -ftithin the meaning of the Missis- sippi statute (Code 1906, §§ 909, 923, 924) making stockholders and directors liable under certain circumstances for debts con- tracted by the corporation. Avery & Son r. McClure (Miss.), 19-134. Discharge of corporation in bank- ruptcy. — The discharge of a corporation in bankruptcy is a sufficient excuse for non- compliance by a creditor with section 55 of the New York stock corporation law which provides that no action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation and an execution thereon has been returned unsat- isfied in whole or in part; and consequently, where the complaint in an action brought by a creditor of a corporation to enforce the personal liability of stockholders under sec- tion 54 of the statute shows that the cor- poration has been discharged in bankruptcy, and that the plaintiff has proved his claim and received a dividend thereon in the banlc- ruptcy proceeding, it is not demurrable for failure to allege that the plaintiff has ex- hausted his remedy by judgment and execu- tion against the corporation. Firestone Tire, etc., Co. V. Agnew (N. Y.), 16-1150. The purpose of the statutory provision above mentioned is to protect stockholders from an action by creditors of the corporation to recover the balance unpaid upon their claims, until such claims have been liquidated by judgment and so much thereof collected from the corporation as can be realized by execution. This purpose is as fully effected by a bankruptcy proceeding in a federal court, whetein all the property of the corporation is converted into money and applied Upon the ftlaitas of creditors, as it could be by an action against the corporation in a state court; and the stockholders, having had the substance of the protection afforded by the statute, cannot complain that the form was lacking. Firestone Tire, etc., Co. v. Agnew (N. Y.), 16-1150. Where a corporation has been duly dis- charged in bankruptcy, the prosecution of an action against it on a debt covered by the dis- charge would be futile, since the judgment in such an action would be subject to cancella- tion by the court under section 1268 of tlic New York Code of Civil Procedure, and exe- cution could not be lawfully issued thereon and returned unsatisfied. Tlie courts will not require that useless and unwarranted action be taken. Firestone Tire, etc., Co. c. Agnew (N. Y.), 16-1150. (4) Extent of liability. Masimum liability. — When the maxi- mum liability imposed by statute on bank stockholders is double the amount of the par value of the stock, interest is not allowable in addition thereto; Adams v. Clark (Colo.), 10-774. Terniination of liability. — Whether the articles do or do not contain a clause au- thorizing the directors to refuse registration, the transferrer cannot escape liability where he has obtained the advantage of executing and registering his transfer on an oppor- tunity obtained by him fraudulently or in breach of some duty which he owed the cor- poration. In re Discoverers Finance Cor- poi-ation tEng.), IS-SBt. Where the articles contain a clause em- powering the directors to reject a transferee whom they do not approve, the transferrer cannot escape liability if he has actively Or passively induced the directors to pass and register a transfer (even though it is an out and out transfer) which, but for his con- duct, they would have refused to register. Here again the question is one of fact. In re Discovei'efs Finance Corporation (Eng.), 18-337. (5) Persons entitled to enforce. Judgment creditors. — The fact that a judgment creditor of a corporation has made a profit by the purchase of the corporation's property at an execution sale under his Judg- ment does hot affect the equity of his bill to enforce the statutory liability o! the stock- holders. Vaughan )). Alabama Nat. Bank (Ala.), 3-665. tliglit Of stockbolder to contribn- tibn. — A stockholder of a corporation Afho has paid a judgment against it under a lia- bility imposed on him by the statute of the Corporation's domicil may compel contribu- tion by othel- stockholders who are under the same liability, and enforce his right in the state of the corporation's domicil or in any Othei: state. Putnam v. Misoohi (Mass.), 4-733. Estotipel Of Stoobholder to assert t!la,iin as cireditor. — A stockholder who participated actively in a transaction that resulted in the improper issuance of stock as " issued for property purchased," and who himself received a part of alioh stock, is not 566 ANN. CAS. DIGEST, VOLS. 1-20. estopped from participating as a creditor in proceedings taken to enforce the liability of delinquent stockholders by the circumstance tliat their stock certificates were marked " full paid " and " issued for property pur- chased," since the stockholders knew the fact to be otherwise. Easton Nat. Bank v. Amer- ican Brick, etc., Co. (N. J.), 10-84. One who participates as a stockholder and officer in an improper issuance of stock cer- tificates marked "full paid" and "issued for property purchased," is not debarred by operation of the maxim in pari delicto potior est conditio defendentis from enforcing against the stockholders any just claims he may have as a creditor of the company. The agreement for improper issuance of the stock being absolutely void on grounds of public policy, his rights as a creditor remain un- impaired. Easton Nat. Bank v. American Brick, etc., Co. (N. J.), 10-84. Under the New Jersey General Corporation Act of 1875, a creditor's knowledge that the stock was improperly issued as " full paid " and as " issued for property purchased," when the fact was otherwise, is not sufficient to debar him from relief against the recip- ients of the stock. Easton Nat. Bank v. American Brick, etc., Co. (N. J.), 10-84. (6) Defenses. One who has purchased stock from a cor- poration at less than its par value is estopped to set up, as a defense to an action by a cred- itor to enforce his liability, that the transac- tion was illegal. Vaughan v. Alabama Nat. Bank (Ala.), 5-665. A plea interposed by the defendants in a suit by a creditor corporation to enforce the liability of the stockholders of a debtor cor- poration, held sufficient to raise an equity in favor of the defendants on the ground that the defendants have the right to insist on the application of the corporate assets to the in- debtedness. Vaughan v. Alabama Nat. Bank (Ala.), 5-665. (7) Jurisdiction to enforce. Foreign stockholders. — Where a person acquires stock in a corporation after the pas- sage of a statute imposing a double liability on stockholders, the contract between him and the corporation may possibly imply that, though he is a citizen of a foreign state, the corporation shall fully represent him in any receivership proceeding to ascertain the amount of the corporation's debts, and that he shall be conclusively bound by any order entered in such proceeding; but that implica- tion does not extend "o far as to render a nonresident stockholder conclusively bound by an order authorized by a statute passed after his acquisition of the stock, which is entered in a proceeding in which he is not served and in which he does not appear, and which fixes on him a liability as a stock- holder in addition to the liability imposed by the statute at the time he acquired his stock. Converse v. iEtna Nat. Bank (Conn.), 7-75. Whether, after a decree has been rendered in the courts of Colorado establishing the lia- bility of the stockholders in the home of the corporation, a subsequent proceeding may be maintained upon such decree against a non- resident stockholder in a jurisdiction where personal service can be had upon him, is not determined; but where in proceedings insti- tuted in Colorado, a nonresident stockholder is not made a party, and neither the cor- poration nor the assignee is made a party. those proceedings determine nothing as to the liability of such stockholder in a suit brought against him in his home jurisdiction. Clark V. Knowles (Mass.), 2-26. Under a Colorado statute providing that stockholders in certain kinds of corporations shall be held individually responsible for the debts of such corporations in double the amount of the par value of the stock owned by them respectively, a bill in equity cannot be maintained in the Massachusetts courts by the creditors of an insolvent Colorado bank against an individual stockholder to de- termine and enforce such liability, as the bank, its assignee, and the remaining stock- holders are necessary parties to such a pro- ceeding, and, as to them, the M-assachusetta courts have no jurisdiction. Clark v. Knowles (Mass.), 2-26. Jiirisdiction in equity. — Equity has jurisdiction of a bill filed by the assignees of an insolvent corporation to enforce, for the benefit "of creditors, unpaid stock subscrip- tions, where the defendant stockholders are numerous; and the jurisdiction is not ousted by the fact that no accounting is asked. Cook V. Carpenter (Pa.), 4-723. Under the Alabama statute which provides that after obtaining judgment and having a return of " no property found," the creditor of a corporation may proceed against the corporation's stockholders, the equitable remedy of the creditor does not accrue until the insolvency of the corporation. Vaughan V. Alabama Nat. Bank (Ala.), 5-665. (8) Pleading. The complaint in a proceeding to enforce the statutory liability of bank stockholders considered, and held sufficient. Adams v. Clark (Colo.), 10-774. h. Evidence. The books and records of a private corpora- tion are not competent evidence against third persons, in the absence of proof of their knowledge and assent to them, to establish their relation of stockholders to the corpora- tion or to prove other contracts between them and it. But admissions of a party against his interest, inscribed upon the books of the corporation and signed by him, are as com- petent and persuasive evidence against him as though they were written elsewhere. Har- rison V. Remington Paper Co. (U. S.), 5-314. The stock ledger of an insolvent bank held to be admissible to prove who were the stock- holders. Adams v. Clark (Colo.), 10-774. In an action to enforce stockholders' liabil- ity, which is based on proceedings in a court COKPORATIONS. S6't of a foreign state, where the record of the foreign court recites that the corporation iippeared and was heard pursuant to due service of process, the full faith and credit clause of the Federal Constitution precludes the defendant from introducing evidence to contradict such recital. Converse v. ^tna Xat. Bank ( Conn. ) , 7-75. In an action on an order of court making a pro rata assessment against stockholders for their corporation's debts, the assessment will be regarded as an entirety and, it appearing that the assessment includes " a very con- siderable sum " for which the defendants are not legally liable, a demurrer should be sus- tained if it does not appear how much of the assessment represents the defendants' legal liability; but if the demurrer is overruled and the defendants do not offer to waive the objection that the assessment is an entirety and to submit to judgment for the amount properly assessable against them, evidence offered by them and tending to show the amount of their legal liability is irrelevant. Converse v. .(Etna Nat. Bank (Conn.), 7-75. 9. Dividends. a. In general. A stockholder in a corporation cannot re- cover from the corporation profits alleged to have accrued on his stock where he does not allege that any dividend has been declared by the corporation, especially where it appears that the plaintiff sold his stock prior to bringing suit and that no dividends had been declared prior to the sale. Corgan v. George F. Lee Coal Co. (Pa.), 11-838. b. Stock dividends. Distinction bet-ween stock and casb dividends. — A stock dividend consists of the issuance and distribution among share- holders of new shares of stock, the result being an increase in the number of shares and the conversion of surplus assets into strict capital, while the underlying idea of a, cash dividend is the distribution to share- holders of a portion of the profits or surplus assets of the corporation, such distribution ordinarily, but not necessarily, being in the form of cash. Green v. Bissell (Conn.), 9-287. Dividend not creating nextr sbares. — Where a stockholder transfers his stock to the corporation in payment of a debt, and the corporation distributes the stock among other shareholders, the distribution must be treated ns a cash and not as a stock dividend, not- '.vithstanding the fact that the distribution is designated " stock dividend " in the vote of the corporation authorizing it, as the declara- tion of a dividend does not involve the crea- tion of new shares of stock. Green v. Bissell (Conn.), 9-287. c. Cumulative dividends. Dividends on preferred stock. — In the absence of a statutory or oontractural pro- vision to the contrary, dividends on the pre- ferred stock of a corporation are cumulative. Fidelity Trust Co. v. Lehigh Valley R. Co. (Pa.), 7-613. Dividends on preferred stock are not rend- ered noncumulative by the fact that the statute under which the stock is issued pro- vides that preferred stockholders are to be paid from the profits a specified dividend per annum before the holders of other stock are permitted to participate in the profits, us such provision does not have the affect of making the right of preferred stockholders to dividends conditional upon the earning of sufficient profits each year to discharge their claim. Fidelity Trust Co. v. Lehigh Valley R. Co. (Pa.), 7-613. Where, pursuant to authority conferred by its charter, a corporation issues preferred stock, certificates for which provide that divi- dends on preferred stock shall be cumulative and in case of nonpayment shall bear interest from the date when payable, there is created a valid contract between the corporation and the preferred stockholders which is binding upon all other stockholders. Roberts r. Roberts-Wicks Co. (N. Y.), 6-213. Payment of arrearages. — Where the capital stock of a corporation has been re- duced in the manner provided by law, the holdings of the stockholders having been re- duced proportionately, the holders of cumu- lative preferred stock upon which dividends were in arrears at the time of reduction are entitled to be paid the total amount of such arrears upon the whole number of shares held by them before the reduction, together with interest thereon, before any dividend shall be paid to holders of common stock. Roberts v. Roberts-Wicks Co. (N. Y.), 6-213. Where a corporation, the capital of which hRS become impaired, creates a surplus by reducing its capital stock, the holders of cumulative preferred stock are not entitled to have such surplus applied to the payment of arrears of dividends on their stock. Roberts v. Roberts-Wicks Co. (N. Y.), 6-213. Where the dividends on cumulative pre- ferred stock are in arrears, the holders of the stock are entitled to be paid the full amount of arrearages without deduction of extra divi- dends paid them in the past in common with the common stockholders, unless the contract limits the preferred stockholders to the divi- dends for which they are given preference Fidelity Trust Co. v. Lehigh Valley R. Co (Pa.), 7-613. 10. Actions. a. Power to sue or be sued. Joinder of officers as parties. — A cor- poration may sue in its own name without designating its president or any of its other officers in the petition. New Orleans Term- inal Co. v. Teller (La.), 2-127. Collateral attack on franchises. — It is sufficient for a corporation setting up a franchise as a defense to an action to show possession of the franchise, and whether the same were acquired or is held rightfully is to be determined only in ri flirorf iivot-oeriin? to 568 ANN. CAS. DIGEST, VOLS. 1-20. oust the corporation or in a proceeding to which the one who claims a better title is a party. Brouson v. Albion Tel. Co. (NeK), 2-639. Mandamus to compel performance of contracts. — Mandamus does not lie to com- pel a private corporation to perform its con- tracts with an individual. State ew rel. Burg i\ Milwaukee Medical College (Wis.), 8-407. Mandamus does not lie to compel an incor- porated medical college to issue a diploma of graduation to one of its students. Buig V. Milwaukee Medical College (Wis.), 8-407. Injunction against agent. ^-^ Where the managing agent of a corporation at the ex- piration of his term refuses to surrender pos- session and threatens to continue to act as such agent, a preliminary mandatory injunc- tion may be issued against him without no- tice, and as an incident thereto the court may appoint some person to take charge of the property until final hearing to prevent threatened mismanagement of the corporate affairs. Magpie Gold Min. Co. v. Sherman (S. p.), 20-505. Injunction at the suit of a corporation will lie against its managing agent who refuses to surrender the possession of the corporate property and threatens to continue to act as agent after the expiration of his term and to divert corporate funds and property and to incur debts on behalf of the corporation which may involve it in serious litigation. Magpie Gold Min. Co. v. Sherman (Sv T).), 20-595. The rule that a court of equity will not re- move an officer of a corporation does hot apply where the corporation is suing to re- strain its vice-president, appointed managing agent by the president, from interfering with its business as such agent and from incurring debts in its behalf, where it is not sought to deprive him of his office of vice-president or to interfere with his interests as a stock- holder. Magpie Gold Min. Co. i'. Sherttian (S. D.), 20-595. b. Jurisdiction of courts of equity. Action liy receiver against directors. — A court of equity has jurisdiction of a suit by the receiver of a corporation against the corporation's directors to hold them liable for tfeeir acts of negligence or other acts in vlolatioh oi statutory provisions. Emerson v. Gaither (Md.). 7-1114. Action to enjoin ultra vires acts. — For the purpose of redressing a private wrong, a private person may maihtain a suit in equity against a corporation to enjoin acts by it in excesfe 4nd abuse of its corporate {i-an(!hise§ aild {li-iVilei^es. Madtson )*. Madi- son Gas, etc., Co. (Wis.), 9-819. Stiit h'f tilreditors after dissolution. — The New York statute providing that a iteditof 6{ a feorpoi'Wion inay she its officers to bOmpfel theih to accouht for the money or propterty Whith they ha-v^e lost of wasted by th6 Violation Of th«f duties, does not autlior- i«e an action by the treditors against tlie treasurer of a dissolved corporation to en- force his promise to pay all the debts of the corporation in case he should be allowed to acquire its property at the receiver's sale for less tliao its real value; but the creditors may obtain relief by a suit in equity against the treasurer to impress a trust in their favor on the property purchased by him, and in such a suit it is not necessary to attack the receiver's sale as fraudulent or to seek to have it set aside. Lilienthal v-, Betz (N. Y.), 7-41. c. Determination of title to office. Qiko waf V^nttt. ■" f he pi-Opel- i-^liledy to detei-mine the queslioii of title to an office in ia, private eoi-pOratiOii, whei^ sliCh is the sole Or main qU^stioti involved, is by the eonltnoli- law and statutory remedy of guo wHM-ranto, nbt by a bill in equity. Hayes 1). Biil-tas .- The title of an action dnd the aUegatiOhs of a petition held to import that the defend- ant was a corporation. Also held that it was not necessary even as agaihst a special de- murrer to allege the corporate existence Of the defendant. Georgia Co-operative F. Assoc. V. Borchardt (Ga.), 3-472. Bill by stoekhdlderi ti> colnpel distri- bution of assets. — A bill in equity by a Shihority stockholder ptaying lor a distrnm- tion of the assets of the corporation and to have two-thirds of its stock declared to he fictitious and void, is not multifarious. Cen- tral Land Co. v. Sullivan (Ala.), 15-420. f. Evidence. Proof of corporate eKidtenoe. '>— Whert a defendant which is sued as a coi-poration has denied its tfOrporate existence, the insuf- ficiency of the plaintiff's proof of the exist- ence of such corporation is immaterial Where the defendant has in the Same action sup- plied such proof by filing in cbui't a copy of its charter. Federal BetterMent Coi I'. Reeves (Kan.), 15-79& In an action by a, cBrpoVatiOh, the original charter Of the cotporation duly certified is the highest evidence of the incOrporatioJi, and Vrhere such chai-tfer t-ecites a change in the name Of the cotporation the defendant can- not avail itself of any alleged irregularity In complying with the law relative to chang- ing the names of corporationSj sUfch irregu- larity being available only in a direct pro- ceeding to iinnUl the charter instituted on behalf of the state. Sumter Tobacco Ware- house Co. V. Phoenix Assur. Co. (§. Car.), ll-tSO. COIlPOKATiUiS «. 569 Ftonner adjiidication as to corporate eziatenoe. — In a mi o loarranto proceeding to forfeit the franehises of a corporation, where it is contended that the defendant is estopped from alleging its corporate existence by reason of its answer in another suit brought against it by the commonwealth for the collection of taxes, and it appears that (he only thing adjudicated in the tax suit was the fact that the corporation was not liable for any tax upon its capital stock at the time settlement was made, the record in the tax suit is admissible in evidence, but is not conclusive on the defendant. Common- wealth i\ Monongahela Bridge Co. (Pa.), 8-1073. Promise to pay officer's salary. — Evi- dence held insufficient to show an express contract by the corporation to pay a salary to the president. Lowe v. Ring (Wis.), 3-731. Intention of officer in performini; ■wTongfnl act. — In an action against a corporation to recover money which a third person, guardian of the plaintiflf and treas- urer of the defendant, withdrew from the plaintiff's account in a savings bank and de- posited to the defendant's credit in another bank, evidence that the guardian checked the money out for his private purpose imme- diately after depositing it to the defendant's credit, and that in so doing he followed the usual course of his dealings with his private funds, is competent as bearing on the ques- tion of the Intention with which hq withdrew the plaintiff's money from the savings bank. Brookhouse v. Upion Publishing Co. (N. H. ), 6-675. Participation in trrongful acts of officer. — In an action against a corporation to recover money which a third person, guardian of the plaintiff and treasurer of the defendant, withdrew from the plaintiff's ac- count in a savings bank and deposited to the defendant's credit in another bank, evidence reviewed and held to show that the defend- ant did-- not receive the money frpm th? guardian with notice of the trust and did not aid him in wrongfully diverting It from fke plaintiff. Brookhouse v. Union Publishing Go. (N, H.), 6-675. Liability for wrongful acts of officer. — In an action against a corporation to re- cover money which a third person, guardian of the plaintiff and treasurer of the defend- ant, withdrew from the plaintiff's account in a savings bank and deposited to the de- fendant's credit in another bank, evidence considered and held to show that the defend- ant had not the possession of the money at the time the action was brought, and to show further that the money was not converted to the defendant's use by payment of the guardian's individual indebtedness to it. Brookhouse v. Uaion Publishing Co. (N. H.), 6-675. II. Cbjminal Pbqseotjtions. Necessity for indictment. .— Corporsi- tions may be proceeded agg,jiiist for petty offenses in an inferior court without indict- ment, the same as individuate. Common- wealth ». New York Central, ets., R. Co. (Mass.), 19-529.. 12. Insolvbnoy and Receivership. Jnrifidi«ti<>9^ -" Save in ceytaift Q^asse? of suits in ejjviity whiqh CQn^tjtute weJl^Tecog- ni^e.d exceptions, tjie jyrisdioijwj of CQurts o,f equity does not warrant the appointjneqt of a receiver to take «i}ftj-ge of and adwinister the property and business of a cQrpoT9,tion in £m independent acticm wljerg ^a,i is the main object and purpose of the anit find the sole and only relief asHed for. Vila V. Qrand Island Eleptric Wght, etc,, Co. (JSTeb.), 4-59. Unless expressly authorized by statute, a court has no jurisdiction to appoint a re- ceiver of corporate property upon gronnds which would not be s\i3ic4en^ were the, owner a nati^ral person, Yila tJ, Grand Island Elec- tric Wght, etc., Co. (JyTeh.), 4-59. In the absence of statutory JtnthPTity, courts of equity do not possess jnrisdiction over corporate bodies tP the extent of, pn the application of private parties, appointing a reqeiver, aeqnestrating the property and hwsi- ness ^nd selling the same tVongh the instru- mentality of the receiver, and thereby wind- ing np and indirectly dissolving the fiorpor?,- tion. Vila V. Grand Island Slectric Ligljt, etc., Co, (JSTeh,), 4-59. Petition held to be insufficient to authgrj^e a court to appoint a receiver qf the property of a corporation and order a sale thereof. Vila V. Grand Island Electric Light, etc,, Co. (Neb,), 4-59. Jurisdiction to appoint a receiver pf cor- porate property cannot be conferred by tjie mere consent of the corporation where neither equitable nor statutory grounds exist and where other parties whose rights are affected have not been notified; nor is a stockholder concluded by any suph order. Vila v. Qrand Island Electric Light, etc,, Co, (Neb.), 4-5p. It is a sufJlcient gronnd for the appoint- ment of a receiver of a cprppratjon, though it is solvent and prosperous, that two stocJE- holders, between whom the stock is equally divided in ownership, are irreconcilably hos- title to each other; that one stopkholderi by means of a subservient board of trustees, has taken possession of the corporation and all ^ of its business affairs, eifcluding the other * from any participation ; and that a new board of trustees cannot be elected. Boothe V, Summit Coal Mining Co. (Wash.), 19- 1255, Parties. i-r In a suit by creditors of a dis- solved corporation to impress a trust in their favor on the corporation's property, a dis- charged receiver of the corporation js not a necessary party, either plaintiff or defend- ant. Lilienthal v. Betz (N. Y.), 7-4 J. Preference of cneditPTj* by insff}7ei|t cprporatiop. .- In view of tjjfi fact that the assets of an insolvent corporation are a trust fund for the benefit of all its creditors, an insolvent corporation may not lawfully prie- fer some of its creditors oyer others. This rule applies even though the assets of sue)i a corporation are transferred to a, third party 570 AN]S'. CAS. DIGEST, VOLS. 1-20. for the purpose of enabling him to create a preference by giving a chattel mortgage to one of the corporation's creditors. Furber v. Williams-Flower Co. (S. Dak.), 15-1216. The fact that when such mortgage was exe- cuted such creditor had no knowledge of the character of the transfer and of the exact condition of the corporation is immaterial. Furber v. Williams- Flower Co. (S. Dak.), 15-1216. Misconduct of officers as ground for receivership. — A corporation will not be placed in the hands of a receiver for the mis- conduct of its oflBeers or directors, unless such action is necessary to preserve the property or rights of creditors or stockholders. The mere misconduct of officers is not sufficient ground for the appointment of a receiver, since a court of equity may forbid the mis- conduct or remove the officer. Secord v. Wheeler Gold Mining Co. (Wash.), 17-914. Assuming, without deciding, that the acts of the directors of a corporation in voting a salary to the president of the company for his services as manager of its business, in approving a claim made by the president against the company for traveling expenses, in removing the books and papers of the cor- poration from its main office to another state, in failing to report as a liability of the cor- poration a iona fide claim against it held by the wife of its president, and in failing to comply with the demands of certain stock- holders for information and for copies of the by;laws, are wrongful, still they do not amount to such misconduct as to justify the appointment of a receiver, where the corpora- tion is neither insolvent nor in immediate danger of insolvency. Secord v. Wheeler Gold Mining Co. (Wash.), 17-9'14. Title to property. — The receiver of an insolvent, nongoing corporation takes the property of the corporation for the creditors, subject to such equities, liens, or incum- brances, whether created by operation of law or by act of the corporation, as exist against the property at the time of his appointment, Ardmore Nat. Bank v. Briggs Maeh., etc., Co. (Okla.), 16-133. Where after the filing of a bill in equity to dissolve a corporation, and service of notice thereof, hut before the return day and before the appointment of receivers, real estate of the corporation was seized on an execution, by a judgment creditor having an existing valid attachment which antedated the bill in equity, and after regular proceedings was sold on execution sale to the defendant, it was held that the title to the demanded premises by relation back, vested in the re- ceivers, in legal effect, prior to the seizure on the execution. Cobb v. Camden Sav. Bank (Me.), 20-547. Priority of claims of employers. — Where a private corporation has become in- solvent and gone into the hands of a re- ceiver, the wages due the laborers for ser- vices performed for the corporation before the appointment of the receiver and necessary to continue the business and preserve the prop- erty of the corporation are entitled to pref- erence in payment over the claims of other creditors, and a court of equity will so order on petition of the laborers. La Hote v Boyet (Miss.), 3-705. Priority of lien claimants. — Where after the appointment of a receiver to take charge of the assets of an insolvent nongoing corporation, a vendor of machinery to the corporation files a plea of intervention al- leging that it is the holder of promissory notes under which the title to such ma- chinery is reserved to the vendor and that such reservation notes are liens on the ma- chinery, and praying for their foreclosure and for general relief, the vendor may, not- withstanding the fact that such reservation notes were not filed as chattel mortgages, afterwards amend its plea of intervention by asserting title to and the right of posses- sion of the machinery as against one who claims to have a lien thereon subsequent in time to the reservation notes, where such lien, if it attached at all, was created after the machinery came into the receiver's hands. Ardmore Nat. Bank v. Briggs Mach., etc., Co. (Okla.), 16-133. A receiver's title and right to possession of the property of an insolvent, nongoing corporation vests from the date of the orig- inal order of appointment, although the pro- ceedings may not be perfected until a later date. The receiver's title and right to pos- session during the interval between such original order and the time of perfecting his appointment are superior to those of a judg- ment creditor who levies upon the property under his judgment during such interval. Ardmore Nat. Bank v. Briggs Mach., etc., Co. (Okla.), 16-133. 13. FOEEIGN COBPOBATIONS. a. Status and powers generally. Subjection to laTirs of state. — A for- eign corporation coming into a, state is sub- ject to the rules and regulations provided by the laws of the state. Dunbar v. American Tel., etc., Co. (111.), 8-57. Residence of corporations. — The resi- dence of a corporation is in the state of its creation, although it may carry on business in another state. Squire & Co. v. Portland (Me.), 20-603. b. Rights in respect to real estate. Right to take by devise. — By comity, a foreign corporation may acquire and hold property by devise provided its charter per- mits it so to do, and no prohibition is found in the laws or public policy of the domestic state. Iglehart v. Iglehart (D. C), 6-732. Under a statute permitting cemetery com- panies to take and hold real and personal property for the purpose of using the income for the care of cemetery lots, monuments, etc., comity requires that a foreign corpora- tion which is clothed with similar power by the law of its sovereignty shall be permitted to take and hold devises and bequests made to it for that purpose. Iglehart v. Iglehart (D. C), 6-732. COEPOEATIONS. 571 c. statutory regulation. (1) Restrictions on right to do business. Power to impose, in general. — A state has power to prescribe the terms and con- ditions upon which foreign corporations may do business therein, and may require com- pliance with such terms and conditions as a condition precedent to their invoking the jurisdiction of its courts. International Trust Co. r. A. Leschen, etc., Co. (Colo.), 14-861. Interference with interstate com- merce. — In exercising such power the state may not place any restrictions or impose any burdens upon interstate commerce. Interna- tional Trust Co. V. A. Leschen, etc., Co. (Colo.), 14-861. The prohibition of the Federal Constitution against interference with interstate com- merce precludes a state statute prescribing the terms upon which foreign corporations may do business within the state from de- priving a foreign corporation of the right to sue on a promissory note made payable within the state, but given in payment for goods shipped from another state. Kirven v. Vir- ginia-Carolina Chemical Co. (U. S.), 7-219. Statnte forbidding trust or combina- tion. — A statute which forbids foreign cor- porations from continuing to do business within the state if «6uch corporations have become, either within or outside of the state, parties to any trust or combination to regu- late prices or production either within the state or elsewhere, does not exert an extra- territorial power, and is constitutional. Hammond Packing Co. v. Arkansas (U. S.), 15-645. (2) Imposition of additional franchise tax or license fee. Ec|nal protection of the laws. — When a foreign corporation has come into a state in compliance with its laws, and has therein acquired property of a fixed and permanent character, upon which it has paid all taxes levied by the state, it cannot afterwards be subjected to a new and additional franchise tax for the privilege of doing business within the state, which tax is not imposed upon do- mestic corporations doing business in the state of the same character as that in which the foreign corporation is itself engaged. Such a tax is unconstitutional as denying the equal protection of the laws, in violation of the Fourteenth Amendment of the Federal Constitution, and its imposition cannot be justified as an exercise of the right of classi- fication of the subjects of taxation. South- em E. Co. V. Greene (U. S.), 17-1247. Judged by the above principles, the Ala- bama statute of 1907, imposing a franchise tax on foreign corporations authorized to do business in the state, must be held unconsti- tutional. Southern R. Co. v. Greene (U. S.), 17-1247. Discrimination against foreign cor- porations. — A statute subjecting a foreign corporation to all the liabilities of a domestic corporation of like character means that the foreign corporation shall not be subjected to any greater liabilities than are imposed upon the domestic corporation. American Smelt- ing, etc., Co. V. Colorado (U. S.), 9-978. Under a statute providing that a foreign corporation which has acquired the right to do business within the state by compliance with the conditions prescribed by statute shall not be subjected to any greater liabili- ties than are imposed upon domestic corpora- tions of like character, the admission to do business within the state of a foreign corpo- ration which has complied with the statutory requirements constitutes a contract between the state and the corporation for the period during which the latter is admitted, and therefore a subsequent statute imposing on the foreign corporation during such period a higher license fee than that imposed on do- mestic corporations of like character is void, as impairing the obligation of the contract, notwithstanding the fact that the legislature has power to alter, amend, or annul the char- ters of corporations. American Smelting, etc., Co. V. Colorado (U. S.), 9-978. (3) Statute requiring appointment of repre- sentative to accept service of process. "Tjonstitntionality. — The West Virginia statute requiring every foreign corporation doing business in the state and every non- resident domestic corporation to appoint the state auditor its attorney in fact to accept service of process and notice, and to pay the auditor a yearly fee for acting as such at- torney, is not unconstitutional. State v. St. Mary's, etc.. Petroleum Co. (W. Va.), 6-38. Shipping goods into state to fill orders. — A state statute requiring foreign corporations to file certificates and pay cer- tain fees as a condition precedent to their right to sue in the courts of the state is not operative as to foreign corporations which send goods into the state pursuant to orders obtained through traveling salesmen. R. M. Davis Photo Stock Co. v. Photo Jewelry Mfg. Co. (Colo.), 19-540. (4) Statute requiring copies of articles of incorporation to be filed. Validity. — A statute providing that no foreign corporation doing business in the state shall maintain an action in any court thereof without first filing certain statements with the secretary of state is not violative of the commerce clause of the Federal Con- stitution, even when applied to corporations engaged solely in interstate commerce. John Deere Plow Co. v. Wyland (Kan.), 2-304. A state statute that requires foreign cor- porations to file with the secretary of state .certified copies of their articles of incorpora- tion and to pay a fee of twenty-five dollars, the same as is required of domestic corpora- tions, is not unreasonable or objectionable as discriminating between foreign and domestic corporations. Western Union Tel. Co. v. State (Ark.), 12-82. The Arkansas statute requiring every for- 572 Ai\N. CAS. DIGEST, VOLS. 1-20. eiga corporation doing business in the state to file witli the secretary of state a copy of its charter or articles of incorporation, and to pay a fee equal to that required oi do- mestic corporations, under penalty of a fine, wgs intended only to impose terms upon the right of a foreign corporation to carry on intrastate business, and as so construed is a valid statute. Western Union Tel. Co. v. State (Ark.), 12-82. CoTporation already in state. — The state has the same right to impose the terms of such statute on a foreign corporation already in the state as it has to impose them on a corporation which comes into the state after the enactment of the statute, the state constitution expressly reserving to the state the right to alter the charter rights of corporations, either domestic or foreign, doing business in the state. Western Union Tel. Co. V. State (Ark.), 12-82. The requirement of the Alabama constitu- tion of 1901 that no foreign corporation shall do business in the state except upon filing with the secretary of state a certified copy of its articles of incorporation, applies to corpo- rations which had complied with all the re- quirements of the prior constitution, and were doing business in the state when the constitution of 1901 was ficlqpted, fmd ^s so a,ppljed is not rei;?'oaetjye \n its pperatioi). 4rHiour Pfickipg Cp. v. Vipegar Pend Lumber Co. (Ala.), 13-951. Inasmvjch as the right pf foreign corpqra- tions to jio b^siiiess in ^ state res|s upR^i comity, ancl ppj; upqp any contrsyctvial rela- tion, it i^ competent fp^- thp framers qf fi si^te constitution to iijipppe uppu forpigu cor- porations doing business in the state at the date pf the adoption of suclj constitution fhe aflditiqn^i requireipeiit pf " idling wif.^ the secretary pf state a. peftifle4 copy pf \tn articles pf incorppratip;!." Arpiqjjr Packing Cp, V- Vinegar Benfi Lumlie)- Co. (^Ig,.), U-m- (5) What constitutes doing business. Institution and pro^i^eut^oif qS sn}t. — ■ The institution and prosecution of an ac- ^Ipn Jjy Sf, foreign corporation is np^ " dojng business " within the meaning of the Arkan^ sas statute prescribing the terms uppn which foreign corporations may do business in the state. Alley v. Bowen-Merrill Co. (Ark.), 6-127. It does not constitute the doing of insur- ance business within the state for the trustee of a foreign mutual insurance company, which has ' been dissolved, to bring suit against members of the company to collect assessments imposed by the judgment of the court pf last resort of the state by which the company was chartered, where the jndgment is one entitled to recognition under the full* faitJi and credit clause pf the Federal Con- stitution. Swing V. Brister (Miss.), 6-740. Selling farm macliinery throngb agent. ~ In a proceeding where the defense is that the plaintifif cannot maintain the ac- tion because it is a foreign corporation dping business within the state, and has not ob- tained a certificate of ^he secretary of state showing that the statements required \)y stat- ute have been made, it is held that the tiisi- fless qf selling farm machinery thrpngh an agent i§ the doing qf bnsiness within "'* s,ta.i? within the n^eaning pf the statute. D, M. Oshofne & Cp. v. Shilling (Kan.), 11-319. I§|ngle s^le of gpq^s. — . A» isql^teji com- niprcial transaction by a fpreigii qorpovatjon, such ^S a single sale pf gPPds, dogs no.t con- stitute a (Jping of business within the state within the meaning of a prohibitory statute. Kirven V. Yifginia-Carfliiina Chemical Co. (U. S.l, 7-219. When a single trfinsflptiPH hy a foreign cor- poratjpfl eonsfitntes the doing pf business ■vfithin the state under a statnte majcing certain requirements of foreign corporivtipus doing hwsiness in thp state. Jphn Peere Plow Co. V. Wylapd (Kan.)> 2-304. Ord^r^ taken by t?avpling ^al^sn^an. — A contract ma^e in Cplora(Jp, pnrsqajit fP an order tj^jcen by a traveling sajesmjin qf a Missouri corppr^tipn, for fhe delivery of gopds by such corporation to a railro^id in |4issour.i for tr^nspprtafipn tp Colorado, is an interstate comiperce tTansactipn, aqd ^n'^h cRrporation is not eng3.ge(f in dping husiiies^ within the intendment pf the CrtovsidP stat- utes prpspTib4ng cqn^itipns pn Tyhich foreign oorpqrations may do hvsineag within the state, and h^-S the righkto inypfee the £iid of the Colorado cquyta in the cplleetipn pf the indebtedness accruing to it hy reason pf sueh trfinsaption. International Trust Co. v. A. Leschen, etc, Co. (Cplp.), I4-86I. it is npt " doing business " in the state for a fojreign pqppqr^iion haying np p$ce pr place of business in the state to take orders for goods through traveling salesmen sent into thP st^te. gaxony infills v. Wagner (Miss.), 19-199. I^qlicitatioii pf orders by resident a|;ents. — Foreign corporations maintaining resident agents in a state through whom orders for the pnrchase qf goods are solicited and to whpni the gopds are sent for delivery to the buyers are not exempt frpm the re- quirements of the statute as to 4°i"g husi- ness within the state. John Deere Plow Co. 1J. Wyland (Kan.), 2-304. Dealings isi^b customers obtained by splicitor. -r A corporation which, hy mefins of solicitor^, obtains orders for its cpmpiodi- ties from persops in other states, does busi- ness in such other gtates, though the orders are accepted by the corporation at its hom^ olpce and the commodities are sent there- from direct to the customers. Internatiqnal Textbpok Co. V. Pigg (U. S.), 18-1103.' Soliciting contracts for transpi^^ta^ tipn of goo^s. — Within the mefining p| a statute prescribing the manner in which pro- cess shall be served upon foreign corppratiqn^ dping business ip a state, it is np^ " "Jping bpsiiiess " for ^ foreign railroad corporation to maintain in the state agents whq^e sole duty is to solicit contracts for fhe trans- portation of goods tp begin and cpntinw? en- tirely put of the state, perger v. Pejin^yl- vania R. Co. (K. I.j, 8-941. " ' ' CORPORATIONS. 573 Contract to supply schools -nrith tent books. — The negotiations of a foreign cor- poration with the state seliool text-book com- mission, resulting in a contract to supply the schools with text books, does not constitute doing business within the state within the meaning of the Kansas statute. State l\ American Book Co. (Kan.), 2-56. Correspondence school soliciting pu- pils. — The details of soliciting pupils and imparting instruction by a foreign corpora- tion conducting a correspondence school in the state of its domicil, and the delivery, bailment, and return of books, are within the prohibition against the transaction of busi- ness in Wisconsin by foreign corporations before complying with the domestic statutes relating to such corporations. International Textbook Co. v. Peterson (Wis.), 14^965. Adjusting claims for fire insurance. — Where a foreign insurance company at- tempts to revoke its irrevocable appointment of a resident agent for the service of process and in good faith ceases to do business within the state, the power of attorney is not kept alive by the fact that on several occasions thereafter the company sends agents into the state for the purpose of adjusting claims arising out of policies issued to residents of the state prior to its withdrawal therefrom, or out of policies issued to nonresidents who have since become residents of the state, as such acts do not constitute the doing of busi- ness. Hunter v. Mutual Reserve Life Ins. Co. (N. Y.), 6-291. (6) Effect of noncompliance with statutes. Contracts void. — Where a statute pre- scribing the terms upon which foreign cor- porations may do business within the state fixes a, penalty for its violation, and in ad- dition thereto forbids a noncomplying corpo- ration to maintain any action in the courts of the state, a contract made within the state by a noncomplying corporation is void, and the corporation can maintain no action thereon even after it has qualified itself to do business. United States Lead Co. v. J. W. Reedy Elevator Mfg. Co. (111.), 6-637. Under the Missouri statute prescribing the terms and conditions upon which foreign cor- porations may do business within the state, a contract entered into by a foreign corpora- tion, before complying with the statute, is void, just as if the statute had in terms de- clared it void, and such a contract cannot be enforced in the courts of the state, although the corporation before bringing suit on the contract has complied with the statute. Tri- State Amusement Co. v. Forest Park, etc., Co. (Mo.), 4-808. A bilateral contract containing an express undertaking affecting the " personal lia- bility " of a foreign corporation which has not complied with the provisions of the Wis- consin statutes relating to foreign corpora- tions, is unenforceable by such corporation. International Textbook Co. v. Peterson (Wis.), 14-965. The provision of the Alabama constitution of 1901 that no foreign corporation sha;ll da business in the state except upon filing With the secretary of state a certified copy of its articles of inoorporaticn is prohibitory and needs no legislation to make it effective, and the executory contracts of a foreign corpora- tion failing to comply with such provisiou are void and unenforceaUle, although the prohibi- tory clause provides no penalty for its viola- tion, and omits to declare that contracts entered into by the corporation in violation thereof shall be void. Armour Packing Co, V. Vinegar Bend Lumber Co. (Ala.), 13-951. Right of enforcement suspended pending compliance. — The statute pro- hibiting a foreign corporation from doing business within the state until it has com- plied with certain requirements does not render a contract made within the state by a. noncomplying corporation wholly void, but merely suspends the right of the corporation to enforce the contract until after it has complied with the statutory requirements. Kirven v, Virginia-Carolina Chemical Co. (U. S.), 7-219. Under the Arkansas statute forbidding foreign corporations to contract within the state or to sue on contracts made within the state imtil they have complied with the terms prescribed by the statute, a contract made within the state by a noncomplying corpora- tion is not void, but may be enforced in the courts of the state upon the corporation's compliance with the statute, even though such compliance does not take place until after the bringing of the suit. Woolfort v. Dixie Cotton Oil Co. (Ark.), 7-217. The Massachusetts statute providing that " no action shall be maintained or recovery had in any of the courts of this common- wealth by any . . . foreign corporation so long as it fails to comply with the require- ments " of the laws prescribing the conditions upon which such a corporation may transact business in the state, does not avoid the con- tracts of foreign corporations made before compliance with the state laws, but merely suspends as to foreign corporations the privi- lege of the courts during the period of non- compliance; and when in an action by a non- complying foreign corporation, the fact of noncompliance is seasonably pleaded in abate- ment, the statute operates merely to stay the proceedings until the temporary disability of the plaintiff is removed, which can be done at any time after, as well as before, resort to the courts. National Fertilizer Co. v. Fall River, etc., Bank (Mass.), 13-510. Under the Colorado statute prohibiting the prosecution or defense of actions of for- eign corporations until they shall have com- plied with the requirements of the statute, compliance therewith by a foreign corpora- tion subsequent to the commencement by it of an action renders enforceable a contract theretofore unenforceable by reason of non- compliance. International Trust Co. v. A. Leschen, etc., Co. (Colo.), 14-861, Contracts made with a foreign corporation before it has obtained permission to do busi- ness in the state according to statute are 5U ANN. CAS. DIGEST, VOLS. 1-20. not for that reason invalid or subject to can- cellation at the suit of one of the contract- ing parties. State V. American Book Co. (Kan.), 2-56. After a foreign corporation has complied with the law and received permission to do business in the state, it cannot be enjoined by the state from performing contracts made before such permission was obtained. State V. American Book Co. (Kan.), 2-56. Property rights not forfeited. — The failure of a foreign corporation doing busi- ness in a state to comply with qualifying statutes does not deprive it of tlie liability of one who injures or destroys property which it owns to pay for the legal injury he inflicts, nor of its right to maintain an action upon that liability in the federal courts. Johnson r. St. Louis (U. S.), 18-949. Contract enforceable against cor- poration. — Under the Wisconsin statute contracts of a foreign corporation which has not acquired the right to do business in the state " shall be held void on its behalf . . . but shall be enforceable against it." Allen V. Milwaukee (Wis.), 8-392. Contract made in foreign state valid. — Notwithstanding the Missouri statute pre- scribing the terms and conditions upon which foreign corporations may do business within the state, contracts entered into by a foreign corporation in the state of its domicil, with citizens of Missouri, if valid according to the laws of the state of its domicil, and not prohibited by the laws of Missouri, are valid contracts and will be enforced in the latter state as a matter of comity, and such cor- poration is not required to comply with the statute in order to maintain actions on such contracts. Tri-State Amusement Co. v. For- est Park, etc., Co. (Mo.), 4-808. Evidence considered, in an action by a for- eign corporation on a contract with a resi- dent, and held to show that the contract was not made within the state. Kirven v. Vir- ginia-Carolina Chemical Co. (U. S.), 7-219. d. Actions by and against foreign corpora- tions. (1) Right to sue. Where corporation has complied irith statute. — Under the Michigan statute pro- viding that foreign corporations authorized to do business in the state " shall enjoy all the rights and privileges, and shall be sub- ject to all the restrictions, requirements, and liabilities of corporations of like character, incorporated " under the laws of the state, foreign corporations complying with the pro- visions of the statute acquire the same rights to prosecute and defend actions in the courts of the state and to enforce their contracts and use the remedies authorized by law as are possessed by domestic corporations. Stack V. Detour Lumber, etc., Co. (Mich.), 14-112. Where corporation has not complied with statute. — Under the Michigan stat- ute providing that a foreign corporation can- not maintain an action founded upon an act done by it without lawful authority, a for- eign mutual insurance company which has not acquired the right to do business within the state, and which therefore cannot law- fully insure property within the state, can- not maintain an action on a contract made in a foreign state for the insurance of prop- erty within the domestic state, whether or not the contract is valid as between the parties. Swing V. Cameron (Mich.), 9-332. Estoppel to plead noncompliance with statute. — In an action by a foreign cor- poration on a contract entered into by it, the fact that the defendants knew that the plaintiflF was a foreign corporation at the time the contract in question was made does not estop them to plead noncompliance with the statute regulating foreign corporations. Nor will the fact that the defendants have set up a counterclaim in the answer, asking for the damages resulting from the breach of the contract by plaintiff, operate as a waiver of tlieir right to ask for an abate- ment of the action. D. M. Osborne & Co. f. Shilling (Kan.), 11-319. Abatement of suit pending compli- ance. — The regulation of foreign corpora- tions under the statutes devolves upon the state, and a private individual cannot inter- fere except where the corporation fails to file its annual statement, and then only to the extent of abating a suit against him until the statement shall have been filed. State v. American Book Co. (Kan.), 2-56. Action on contract made in foreign state. — The Mississippi statute, prescribing the conditions under which foreign insurance companies may do business within the state and imposing a penalty for its violation, does not preclude a noncomplying company from instituting and maintaining an action in the courts of the state against a citizen of the state to collect premiums due under a valid contract made in a foreign state. Swing v. Brister (Mass.-, 6-740. Right to sue in federal court. — The Missouri statutes, which forbid unqualified foreign corporations doing business in that state from maintaining suits in the courts of the state, do not affect their right to main- tain suits in the national courts, because the jurisdiction of the latter may not be revoked, annulled, or impaired by any act or law of a state. Johnson v. St. Louis (U. S.), 18-949. (2) Liability to be sued. By nonresident plaintifP. — The lia- bility of a foreign corporation to a suit with- in the state irrespective of the residence of the plaintiff. Reeves v. Southern R. Co. (Ga.), 2-207. After attempted withdrawal from state. — Service of process on a state officer appointed by a foreign insurance company by an irrevocable power of attorney as its attorney for the service of process gives the courts of the state jurisdiction to render personal judgment against the company in an action on a policy issued to a resident of the state while the company was doing busi- ness there, though the action is brought after COEPORATIONS. 575 the company has ceased to do business in the state and has attempted to revoke the ap- pointment. Hunter v. Mutual Reserve Life Ins. Co. (N. Y.), 6-291. Where a foreign insurance company has revoked its appointment of a resident agent for the service of process and has in good faith ceased to do business within the state, the revocation is effectual to prevent the courts of the state from acquiring by service on such agent jurisdiction to render a per- sonal judgment against the company in an action brought by a resident on claims aris- ing from a policy issued in another state to a resident of such other state, where the claim has been assigned to the plaintiff since the revocation of the power of attorney, though the power is by its terms irrevocable. Hunter v. Mutual Reserve Life Ins. Co. (N. Y.), 6-291. Controversies relating to internal management. — The rule that the courts of one state will not take jurisdiction of controversies relating merely to the internal management of the affairs of a corporation organized under the laws of another state, rests more on the want of power to enforce a decree than on jurisdiction to make it; and therefore the' rule is not applicable in any case where the corporation and all per- sons necessary to a, complete decree are be- fore the court, is where stockholders sue resident directors to compel them to restore corporate property misappropriated by them. Babcock v. Farwell (HI.), 19-74. ( 3 ) Service of process. After revocation of appointment of agent. — A state oificer appointed by a for- eign insurance company by irrevocable power of attorney as its attorney for the service of process is authorized to receive service of pro- cess after the company has announced its withdrawal from the state and has given no- tice that it revokes the appointment, where the company, notwithstanding such announce- ment and notice, has continued to do busi- ness in the state. Hunter iK Mutual Reserve Life Ins. Co. (N. Y.), 6-291. Po'wer to revoke appointment of agent. — A state statute requiring every foreign insurance company, before it shall be admitted to do business in the state, to file in the office of the insurance commissioner " an instrument appointing him and his suc- cessor its true and lawful attorney, upon whom all lawful process in any action against it may be served," and further providing that "the authority thereof shall continue in force irrevocable as long as any liability of the company remains outstandins; in this state," places no limitation upon the power of the company to revoke the power of attorney as respects a nonresident of the state suing on a contract of another state. Williams v. Mutual Reserve Fund Life Assoc. (N. Car.), 13-51. Exolnsiveness of statutory method. — When a foreign corporation conducts a regu- lar business in Louisiana at a permanent place of business, a service of process inacje at such place of business upon its agents in connection with a matter growing out of such business is good, if the same service would be good as against a domestic corporation. A statute requiring surety companies of other states and foreign countries to ap- point an agent upon whom service of pro- cess may be made, and a statute authorizing service to be made upon the secretary of state, do not provide an exclusive, but an additional, mode of service. Curtis v. Jor- dan (La.), 5-950. Service on traveling salesman. — A traveling salesman of a foreign corporation is not an " agent " of the corporation within the meaning of the Mississippi statute (Laws 1894, c. 61) providing that process against a corporation may be served on its agent. Saxony Mills v. Wagner (Miss.), 19-199. (4) Complaint. Necessity of alleging compliance witli statute. — Under the Idaho constitution and statute requiring foreign corporations to designate an agent upon whom process may be served, and to file in the county in which its principal place of business in the state is located, a certified copy of its articles of incorporation, a complaint in an action by a foreign corporation failing to allege compli- ance with such provisions is defective and demurrable, but the defect, unless taken ad- vantage of by demurrer or answer, is waived and cannot be raised for the first time on appeal. Valley Lumber, etc., Co. v. Driessel (la.), 13-63. (5) Plea or answer. Necessity of pleading noncompliance ivith statute. ~ In an action by a foreign corporation, the defense that the plaintiff has not been granted authority to carry on business within the state is not raised by an answer of general denial, but must be specially pleaded. Leonard v. American Steel, etc., Co. (Kan.), 9-491. A foreign corporation doing business within the state will be presumed to have complied with the domestic statutes, and in an action brought by such corporation, where its failure to comply with the statute does not appear upon the face of the complaint, the defendant must alfirmatively plead such failure in order that it be available to him as a defense. Lehigh Valley Coal Co. v. Gil- more (Minn.), 2-1004. In an action by a foreign mutual insurance company on a contract made in a foreign state for the insurance of property within the domestic state, the defendant may, under the general issue and without special notice, set up the defense that the local law pro- hibits the plaintiff from maintaining the ac- tion, notwithstanding the fact that the eon- tract is valid as between the parties. Swine V. Cameron (Mich.), 9-332. Sufficiency of plea of noncompliance. — The ground of defense averring generally that the plaintiff is a foreign corporation doing business in the state without having complied with the statute, ja defective in not 576 ANN. CAS. DIGEST, VOLS. 1-20. speeilfying itihe partkniiars of the failure t» comply with the statute, and is properly re- jected. Worrell, etc., v. Kinnear Mfg. Oo. (Va.)., 2--997. (6) Production of documaits. Books in foreign state. — A corpora- tion, though cTiartered in another state, wliich is doing business in the state and has complied with a local statute requiring a foi-eign corporation doing business in the state to procure a certificate of registration fi'om tTie secretary of state and file with tliat «tEcial a i!opy of its charter, is so sui)- ject to tlie laws -of the state that it may be compelled under a local statute to produce boots and papers not then actually in the state, but whiclx have been removed to an- other state where the corporation is also doing business. In re Consolidated Render- ing Co. (Vt.), 11-1069. OOBPSE. See CEMKrERiES; Deab Body. CORPUS DEXICTI. See Aboktion; Aasoisr, 4; Homicide, 6 a <7}3 Labceny, G a (3). Proof of corpus delicti by admission of ac- cused, see Cbiminai, Law, G n (11) ia). COBBECTION. Commitment of wayward or incorrigible children, see Infants, 4 c. Defective or informal instruments, see Eefoemation of Instruments. Judgments, see Judgments, 8. Power of court to correct record, see Courts, 2 a. Record on appeal, see Appeal and Ebrok, 8 d. COBBESPOKDENCE. See Lettebs. COBBESPONBENCE SCHOOLS. Conducting correspondence schools as inter- state commerce, see Interstate Com- merce, 3 b. Soliciting pupils as doing business, see COB- POBATIONS, 13 c (5). CORBOBOBATION OF WITITESSES. See Abortion; Bastardy; Criminal Law, 6 n (11) (d); Incest, 4 c; Perjdey, 7 b; Rape, 2 c (2) ; SEDUCTION, 2 e (3) ; Witnesses, 5. Accomplice testimony, in general, see Acces- sories AND Other Participants in CbIME; AcCOMPtlCpS, COBBITPT PBACTICK5 A€T. See Electidns, 9. COSTS. 1. Power to Attabd, 576. 2. Who Entitled xo CoSib, 576. 3. Who Liable fob Costs, 577. 4. Costs on Appeal, 577. 5. Costs Out of Fund, 577. 6. MoTiojf Costs, 577- J. Extba Allowancb, 577. 8. What Recoveeabi,e as Costs, 577. •a. Taxation and Allowance, 578. 10. Security for Costs, 578. i I. Remedies foe JJonpatmeni, 578. Actions bo construe wills, see WiLLS, 8 d (4). Actions to establish trusts, see Trusts and Tbustees, la (4). Allowance of costs on motion for new trial, see New Trial, 5. Condemnation proceedings,, see Eminent Do- main, 9 n. Contempt proceedings, see Contempt, 3 g. Costs on appeal, see Appeal and Erbob, 19. Part of fine imposed, see Fines, 1 c. Review of orders relating to costs, see Appeal, and Error, 4 h. 1. Power to Award. In habeas corpus proceeding. — In an application for dischaige upon habeas corpus of a person convicted of violating an Ontario statute, the high court of justice has, under the Ontai'io Judicature Act, power to award costs, such power not being interfered with by section 191 of the act. Rex v. Leach (Can.), 14-580. Ifecessity of statutory antbority. -^ The allowance of costs is a matter dependent wholly on the statute, and where there is no statute authorizing it no costs can be allowed. Schmelzel v. Board of Countv Com'rs (Idaho), 17-1226. Costs in eciuity. — In equity costs are in the discretion of the chancellor, and in the absence of a clear abuse of discretion his de- cree as to costs will not be disturbed on appeal. Matheson v. Rogers (S. Car.), 19- 1066, 2. Who Entitled to Costs. Prevailing party. — Under the "Utah statutes, in an action to recover personal property, a court has no discretion to appor- tion the costs, but must allow them as a matter of course to the prevailing party. Freed Furniture, etc., Co. v. Sorensen property, the other two claiming one-fiftl jointly and the court decrees that the plaintiff is entitled to the property and that the three defendants shall pay the ordi- nary costs, reserving judgment as to the ex- traordinary costs, a subsequent decree award- ing all the extraordinary costs against the defendant claiming four-fifths of the prop- erty will not be disturbed on appeal, in the absence of a showing that the two decrees, when taken together, require such defendant to pay more than four-fifths of the total costs. Nutter V. Brown (W. Va.), 6-94. 3. Who Liable for Costs. The state. — Costs cannot be awarded against the state in civil actions, in the absence of express statutory authority. State V. Williams (Md.), 4-970. A state is never liable for costs, unless it is made so by statute. Deneen v. Unverzagt (111.), 8-396. State officers. — The dismissal of a bill brought by the state officers in their ofiicial capacity should be without costs, as costs are not taxable against the state. State Board of Health v. St. Johnsbury (Vt.), 18- 496. State oominission. — A provision in a state constitution that the state shall never be made a party defendant in any court of law or equity does not operate to prevent the taxation under a statute of costs against a state commission upon its abandonment of eminent domain proceedings. Deneen v. Un- verzagt (111.), 8-396. Under the Illinois statutes, where an emi- nent domain proceeding brought by a state commission is abandoned by it, the court may tax costs against the commission. De- neen V. Unverzagt (111.), 8-396. 4. Costs on Appeal. Where judgment is reversed. — The securing, on appeal, of a reversal and a new trial for the erroneous refusal of the trial judge to grant requested instructions is not a " recovery " within the meaning of a statute providing that costs shall be allowed to the plaintiff as of course upon a recovery. Williams v. Hughes (N. Car.), 4-77. Costs of trial court. — A statute pro- viding that if an appellant recovers judgment in the appellate court he shall be allowed the costs of that court and such costs as he should have recovered in the trial court does not entitle an appellant who secures a re- Vois. 1-20 — Ann, Cas, Digest, — 37, versal for error and a new trial, but not a judgment on the merits, to the costs of the new trial. Williams v. Hughes (N. Car.), 4-77. Where the unsuccessful party to an action, after securing a reversal and a new trial on appeal, is successful on the new trial, the costs of the first trial as well as of the second one should be taxed against the opposing party. Westfall v. Wait (Ind.), 6-788. Where the unsuccessful party to an action after securing a reversal for error and a new trial on appeal, and having the costs of the appellate court taxed against the appellee, is unsuccessful on the new trial, the costs of the trial court on the first trial as well as on the second should be taxed against him, Williams v. Hughes (N. Car.), 4-77. Matters not properly in transcript. — Where a case was dismissed on demurrer, and the bill of exceptions to such ruling did not specify the answers of the defendants, and they were not directed to be sent to this court, but were voluntarily included by the clerk of the trial court in the transcript of the record, the cost taxed will not include the making of the transcript of such an- swers. Riley v. Wrightsville, etc., R. Co. (Ga.), 18-208. 5. Costs Out op Fund. On interpleader. — On an interpleader respecting a sum of money in the hands of the plaintiff, occasioned by the fault of one defendant, costs out of the fund should be decreed to the plaintiff, and the defendant who is not in fault is entitled to a decree against the other defendant for the costs so taken out of the fund as well as for his own costs. Swiger v. Hayman (W. Va.), 3- 1030. 6. Motion Costs. West Virginia statute. — The West Virginia statute empowering the court to give or withhold, in its discretion, costs on any motion, other than a motion for a judg- ment for money, authorizes judgment for costs incident to a motion to dismiss for want of jurisdiction, but not for costs of the suit. Bice v. Boothsville Telephone Co. (W. Va.), 13-1046. 7. Extra Allowance. When proper. — An extra allowance is properly made to the successful defendant in an action to recover a penalty of more than one million dollars, in spite of a stipu- lation reducing the amount claimed to a small sum before the trial. State v. Boot- man (N. Y.), 2-226. 8. What Recoverable as Costs. Compensation of receiver. — In a suit in equity involving the title to personal property, where a receiver has been appointed to take charge of and sell the property, it is proper to award as costs to the successful party the sums retained from the fund by the receiver for hia compensation an<^ jit- 578 Al^N. CAS. DIGEST, VOLS. 1-20. torney's fees, notwithstanding an irregularity in the appointment of the receiver, where the irregularity has been waived by the unsne- cessful parties. Nutter v. Brown (W. Va.), 6-94. Attorney's fee*. — The Oklahoma stat- ute providing for the recovery by the plain- tiff, in an action for personal services ren- dei-ed by a laborer, clerk, servant, nurse or other person, of an attorney's fee not to ex- ceed fifteen dollars, to be fixed by the court, is in conflict with the Fourteenth Amendment to the Constitution of the United States, in that it denies to the defendant the equal pro- tection of the laws, and is, therefore, void. Chicago, etc., R. Co. v. Mashore (Okla.), 17- 277. The Florida statute providing for the pay- ment of the costs and charges, rneluding at- torney's fees, arising from a suit for parti- tion, does not authorize the allowance of at- torney's fees to a complainant who, though an attorney at law, conducts the proceed- ings in person and is not represented by an attorney. Girtman i'. Starbuck (Fla. ), 5- 833. Expense of proonring replevin bond. — The premium paid to a surety company for a replevin bond is not taxable as a, dis- bursement " necessarily incurred in the action " within the California statute { Code Civ. Proc, § 1033), because both the ri^t to take possession of the property on giving bond, and the right to give the bond of a surety company are mere privileges and not necessities. Williams r. Atchison, etc., R. Co. (Cal.), 18-1260. Witness fees. — The mileage of a wit- ness who attends personally under a subpoena may be taxed as costs, though he resides at such a distance from the place of the trial that his deposition could have been taken. Parsons Band Cutter, etc., Co. v. Sclscoe (Iowa), 6-1015. The party in whose favor a judgment ig recovered is entitled to have costs taxed for the mileage of witnesses who reside in an adjoining county and more than thirty miles from the place of trial, and who have at- tended the trial in response to a subpoena or on request of the party producing the wit- nesses. Anderson v. Ferguson-Bach Sheep Co. (Idaho), 10-395. The fees and mileage of attending wit- nesses, subpoenaed in good faith but not called, are taxable as costs. Parsons Band Cutter, etc., Co. v. Sclscoe (Iowa), 6-1015. The Indiana statute providing that " if any party summon more than three witnesses to prove the same fact, he shall pay the costs occasioned by the additional number of wit- nesses " does not apply to lay witnesses in a will contest who detail the facta and circum- stances within their personal knowledge upon which they base an opinion as to the testa- tor's mental condition, where the facts and circumstances detailed by the several wit- nesses are not the same. Westfall r. Wait (Ind.), 6-788. Fees distinenished from costs. — The terms " fees " and " costs " are often used interehangeaWy, as having the same applica- tion; but accurately speaking the term " fees " is applicable to the items chargeable by law between the officer and the party whom he serves, while the term " costs "has reference to the expenses of litigation as be- tween litigants. Bohart v. Anderson (OHa.), 20-142. 9. Taxation and Allowance. Mandamus to compel. — Under the Mis- souri statutes, if the state auditor refuses to audit, adjiist, and settle costs in criminal causes which have been properly taxed and certified by the trial judge and prosecuting attorney, the supreme court will compel him to perform his duty in that regard. State ex rel. Suter V. Wilder (Mo.), 7-158. Certification in criminal case. — Under the Missouri statutes the certificate of the trial judge and prosecuting attorney as to the taxation of costs in criminal causes is not conclusive upon the state auditor. State ex rel. Suter v. Wilder (Mo.), 7-158. Where actions are consolidated. — Under the Montana statute providing for •the consolidation of actions, when the order of consolidation is made, the court should de- teiTnine what costs, if any, should be charged to either party in the original suits, as all the costs in the consolidated suit accrue only after consolidation. Handley v. Sprinkle tion of state statutes. — The construc- tion of the constitution and the statutes of a state by the highest judicial tribunal of the state is decisive in the federal courts, in the absence of any question of general or commercial law or of right under the Fed- eral Constitution, and their interpretatisn by the courts of other states is immaterial. Harrison V. Remington Paper Co. (U. S. ), 5-314. In the construction of the constitution and statutes of a state, the national courts uni- formly follow the interpretation announced by the highest judicial tribunal of the state, where no question of general or commercial law or of right under the Constitution of the United States or the Acts of Congress is in- volved. Johnson v. St. Louis (U. S.), 18- 949. The character and extent of the powers and liabilities of the political or municipal cor- porations of a state are questions of con- struction of state constitutions and statutes, upon which the decisions of the highest ju- dicial tribunal of the state which creates them are generally controlling in the national courts, and when that court has decided one of these questions the decisions of the courts of other states and of the federal courts in the construction of the constitutions or stat- utes of other states are immaterial. Johnson V. St. Louis (U. S.), 18-949. In passing upon the constitutionality of a state statute, the supreme court of the United States will follow the decisions of the state court of last resort as to the purpose and scope of the statute, and will only determine whether the statute as so construed is in con- flict with the Federal Constitution. North- western National Life Ins. Co. v. (U. S.), 7-1104. The federal courts will adopt the construc- tion placed on a state statute by its highest court, but will not be governed by a construc- tion placed on the statute by one or more opinions of members of the state court not concurred in by the majority of the court. San Jose-Los Gates, etc., R. Co. v. San Jose R. Co. (U. S.), 13-571. As a general rule, subject to certain ex- ceptions the courts of the United States will accept and apply the settled construction by the highest court of the state, of a state con- stitution or statute. Adelbert College i\ Wabash R. Co. (U. S.), 17-1204. The general rule above stated implies that the state decision which is to foreclose the independent judgment of a court of the United States must have been a decision based alone upon the statute construed, for, if extrane- ous conditions were involved, the judicial mind was not applied to the precise question, and the decision, though persuasive, has not the obligatory effect of a clear case of statu- tory construction. Thus where the highest court of a state has decided that certain creditors of a railroad company, which has been formed by consolidation, have a lien upon the company's property by virtue of the statute authorizing the consolidation and 586 ANN. CAS. DIGEST, VOLS. 1-20. also by virtue of the consolidatiott agreement betwe«n the constituent companies, such de* eision is not conclusive as to the existence of a lien undel the statute, when that ques- tion subsequently arises in a court of the United States. Adelbert College v. Wabaah R. Co. (U. S.), 17-1204. A well-settled exception to the general rule that the courts of the United States, in con- struing a state statute, will follow the con- struction adopted by the highest court of the state, exists where the construction in ques- tion was not adopted until after rights in- volved in the action in the federal court had accrued. In such a case the federal court, although it will lean toward an agreement with the state court, is not absolutely con- strained to accept and follow the latter's construction of the statute. Thus in an ac- tion in a federal court between the holders of convertible equipment bonds issued by a railroad company and a purchaser of the company's property under mortgage fore- closure, where the claim is advanced that under a state statute the holders of the eoM- vertible bonds had a lien prior to that of the foreclosed mortgage, the federal court is not botmd to follow a decision of the highest court of the state sustaining that claim, if it appears that such decision was not ren- dered until after the rights of the mortgagees under the foreclosed mortgage had accrued. Adelbert College v. Wabash E. Co. (U. S.>, 17-1204. (2) Violation of federal statutes. Place of completion of offense. — A federal court has jurisdiction of » prosecu- tion against a United States senator for hav- ing agreed to receive compensation for services in a matter before a government department in which the government is in- terested, in violation of the federal statutes, where it appears that the agreement was completed at a place within the territorial jurisdiction of the court by the sending of a telegram and the mailing of a letter of acceptance, notwithstanding the fact that the defendant was without the territorial juris- diction of the court at the time the acceptance was sent to him, as the offense was com- mitted at the place where the agreement was completed. Burton v. United States (U. S.), 6-362. (3) Diverse citizenship. tJltlzeiisliif of real party in interest. — The original beneficial owner of a promis- sory note may sue thereon in a circuit court of the United States, though the original but nominal payee, by reason of his citizensliip, could not sue in such a court. Kirven v. Virginia-Carolina Chemical Co. (U. S.), 7- 219. Action by trustee. — A citizen of one state, who holds the title to property in trust for others, may maintain an action for dam- age to it against a citizen of another state in the proper federal court, without regard to the citizenship of his cestui que trust. Johnstin v. St. Louis (U. S.), 18-949. Action by president of joint stook company. — The president of a joint stock company, the American News Company, em- powered by the statute of New York, under which it was organized, to sue in its behalf, may maintain an action for injury to its property in a national court in the state of Missouri. Johnson v. St. Louis (U. S.), 18- 949. (4) Constitutional questions. Violation of fourteenth amendmeatt -•— A bill containing a plain averment that « certain municipal ordinance authorizing the seizure and destruction of food without notice or opportunity for hearing violates the Four- teenth Amendment to the Federal ConstitU' tion, presents a constitutional question over which a federal circuit court has juriadio* tion. North American Cold Storage Co. v. Chicago (U. S.), 15-276. A state board of equalization acting under the constitution and laws of the state, whose assessments for taxation are conclusive, represents and acts for the state, and the question whether the carrying out of ab assessment for taxation made by sUch board will violate the provisions of the Fourteenth Amendment of the Constitution of the United States by taking the property of the tax- payer without due process of law or by the- denial of due process of law is a federal ques- tion of which the United States courts have jurisdiction. Raymond v. Chicago Union Traction Co. (U. S.), 12-757. Constitntionality of state statates« in general. — A federal circuit court has jurisdiction over a ease which involves the constitutionality, with reference to the Fed* eral Constitution, of a state statute. Will- cox V. Consolidated Gas Co. (U. S.), 15- 1034. Validity of statute fixing rate*. -^ The question whether an act of a state l^s- lature and orders of the state railroad com- mission, fixing freight and passenger rates, make the rates so low as to be Confiscatory and in violation of the provision of the Fed' eral Constitution against taking property without due process of law, is a federal ques- tion arising under the Constitution of the United States, and therefore one of Which the federal circuit court has jurisdiction. Ex p. Young (U. S.), 14-764. Validity of assessment system. -^ The assessment of a tax is an action of a judicial nature requiring for the legal exercise of the power such opportunity to appear and be heard as the circumstances of the case re- quire, and the supreme court of the United States, as the ultimate arbiter of rights se- cured by the Federal Constitution, is charged with the duty of determining whether a system of assessment for taxation affords the due process of law guaranteed by the constitution. Central of (Georgia R. Co. V. Wright (U. S.), 12-463. Unlawful discrimination iU Assess^ ments. — Where a state board Of equaliza- tion having jurisdiction under the Ia. Hoge (U. B.), 5-487. c. State courts. (1) In general. Action against foreign state. — The courts of a state have no jurisdiction to pro- ceed with a suit against the sovereign of another state or country, and hence a suit in tort in a state court against the property of a railway of Canada that is not a corporation in which any private individual has an in- terest, but is the property of the British Crown and is owned by the King of England in the right of his Dominion of Canada, is properly dismissed. Mason v. Intercolonial Ry. (Mass.), 14-574. Crimes committed on federal mili- tary reservation. — The Fort Missoula military reservation in Montana did not pass to the state by Act of Congress of Feb. 22, 1889, granting to the state certain sections of each township in the state not otherwise disposed of, upon one of which sections the reservation in question is situated; and the state courts have no jurisdiction over a homi- cide committed on this reservation. State v. Teilly (Mont.), 3-824. Comity lietween state and federal courts. — Inasmuch as a municipal cor- poration represents its citizens in litigation in respect to matters as to which all citieens and taxpayers have a common and similar interest, a state court will not entertain a bill filed by private citizens and taxpayers to restrain a water company from violating city ordinances regulating rates and service, wliere it appears that a federal court has al- ready competently acquired jurisdiction of a suit between the water company and the city involving the very same questions sought to be litigated by the private citizens. Griffith V. Vicksburg Waterworks Co. (Miss.), 8- 1130. Amount in coniroversy. — The Ark- ansas circuit courts do not have original jur- isdiction of an action on a note, the principal of which does not exceed one hun- dred dollars, although sued on with another note of which such courts do have jurisdic- tion. Skillern v. Baker (Ark.), 12-243. Constitutional question. — The ques- tion whether a person accused of crime has been deprived of the right to a speedy trial, arising on an application by such person fon his discharge from further prosecution on the ground that he has not been brought to trial within the time required by law, is a consti- tutional q'lestion, which may be reserved by order of the district court for the decision of the supreme court, under the Wyoming statutes, since the right to a speedy trial i^ a right guaranteed to the accused by the state constitution. The statutes which guar- antee the same right are merely supplemen- tary to the constitution, and the fact that it may be necessary to consider such statute* in determining the question reserved does not make such question any the less a constitu- tional one. State c Keefe (Wyo.), 17-102, 588 AI^N. CAS. DIGEST, VOLS. 1-20. Estoppel to deny jurisdiction. — A litigant, having been sued in the circuit court of the United States as a resident of Illinois, and having obtained the benefit of an ex- ception to the effect that he has his domicil in Louisiana, cannot be heard, when sued at such domicil, to plead to the jurisdiction of the state court on the ground that he is domi- ciled in Illinois. Caldwell v. Morris (La.), 14-1043. Corporation conrts. ^ Under the amend- ment of the Texas constitution adopted in 1891, authorizing the legislature " to estab- lish such other courts as it may deem neces- sary," the legislature is given plenary power to establish such courts as the public needs in its judgment require. Whether the courts thus established shall be called, or shall be determined to be, state courts or corporation courts is immaterial. WitWn the limits of their granted authority they may try offenses against state or municipal laws or both. Ex p. Abrams (Tex.), 18-45. Criminal jurisdiction of city conrts. — The " final jurisdiction " contemplated by a statute which provides that no city court " shall have final jurisdiction of any prose- cution for crime, the punishment for which may be imprisonment in the state prison," is jurisdiction to render judgments of ac- quittal or conviction as distinguished from power to bind over to the superior court. State V. Fox (Conn.), 19-682. The Connecticut statute (Gen. St., § 1446) which provides that no city court shall have final jurisdiction of any criminal case the punishment for which may be imprisonment in the state prison limits the jurisdiction of such courts to cases in which the maximum punishment is within their jurisdiction, and repeals an earlier statute authorizing city courts to hear and determine cases in which the punishment might exceed the maximum that they could impose, unless, in the opinion of the judge, the case was so aggravated as to require a greater punishment than he could inflict in event the defendant was to be bound over to the superior court. State v. Fox (Conn.), 19-682. Chicago municipal court. — By virtue of the provisions of the Illinois Municipal Court Act, the jurisdiction of a justice of the peace in a cause continued by him on Nov. 30 " to the municipal court of Chicago," ceases with the expiration of the day pre- ceding the first Monday of December, and where the justice in continuing such cause makes an order setting the hearing for Dec. 14, the order of continuance is, in effect, an order continuing the cause until such time as it will be transferred to the municipal court by operation of law, to wit, the first Monday in December, and the order setting the cause for a hearing on Dec. 14 is a nullity and does not defeat the jurisdiction of the muni- cipal court. Williams v. Gottschalk (111.), 12-376. District magistrates in Hawaii. — A district magistrate has jurisdiction of a prosecution for a violation of an ordinance passed by the county board of supervisors by virtue of authority conferred upon it by the legislature of Hawaii. Territory ex rel. Oahu V. Whitney (Hawaii), 7-737. Civil district court of Louisiana. — The civil district court of Louisiana has jur- isdiction of a complaint if it relates to a per- sonal right — the right to be left alone. Schulman v. Whitaker (La.), 8-1174. Original jurisdiction of WasUngton superior courts. — Where a superior court sustains a demurrer to the complaint in a criminal prosecution brought from a justice's court, it may direct the filing of an informa- tion against the accused, as it has jurisdic- tion to proceed de novo. State v. Bringgold (Wash.), 5-716. (2) Probate courts. Construction of will. — Where the con- struction of a will is necessary to the ad- ministration of the estate of a deceased person, the probate court possesses exclusive original jurisdiction. Appleby v. Watkins (Minn.), 5-471. Jurisdiction of a county court in Nebraska to construe a will where a title to real prop- erty is involved. Youngson v. Bond (Neb.), 5-191. Where a suit in equity is to be regarded as part of the proceedings for the settlement of an estate of a deceased person, it must, in Nebraska, be brought in the county court, which has exclusive jurisdiction of such mat- ters. Hence a suit by an administrator with the will annexed for construction of the will in order to enable him to administer the estate properly is not maintainable in the first instance in the district court. Young- son V. Bond (Neb.), 5-191. Determination of title to real estate. — A probate court is without jurisdiction to try and determine the title to real estate. Best V. (Sralapp (Neb.), 5-491. A probate court has no jurisdiction to hear and determine a contest between a decedent's estate and a stranger as to the title to prop- erty. Canon v. Old Reliable Gold Mining Co. (N. Mex.), 6-874. 3. Place of Holding. Place other than county seat. — The district courts of Minnesota have no authority or jurisdiction to convene for the trial of actions or proceedings involving issues of fact at any place in the county other than the county seat, except by the consent of the parties, or except where expressly so au- thorized by statute. Bell v. Jarvls (Minn.), 8-938. It is reversible error for a district court to try a contested election proceeding at a city which is not the county seat, where the contestee objects to the trial at such place; and the contestee does not waive his objec- tion by subsequently taking part in the pro- ceedings. Bell V. Jarvis (Minn.), 8-938. 4. Time of Opening. Alabama statutes. — The Alabama stat- ute (Acts 1888-89, p. 64) which authorizes COUKTS. 589 the opening of courts in the fifth judicial circuit at 10 o'clock a. m., was not repealed by the statute of 1890 (Acts 1890, p. 68) which amended section 750 of the code so far as said section applied to certain coun- ties in the state. Letcher v. State (Ala.), 17-716. 5. Tebms. Special or extra terms. — A special or extra term provided by law for the circuit courts in Florida is a term other than and distinct from the regular spring and fall terms of these courts. The order of a circuit judge calling such term, but designating it as an adjourned term, is not vitiated by the misnomer, nor is the term held in pursuance of the order thereby rendered illegal. Peeples v. State (Fla.), 4-870. An order made at a regular term of the Florida circuit court that a special term of the court in that county be held in the week following that fixed for the convening of the court in the next county is not illegal as ordering a term of court to be held in one county at a time fixed by law for holding court in another. Peeples v. State (Fla.), 4-870. Under the Nebraska statute the judge of a district court may, if he deems it necessary, call a special termfor the transaction of the business of the court. Russell v. State (Neb.), 15-222. Adjonminent o£ regular term. — The judge of a. district court has power for suf- ficient reason to adjourn a regular term of court to a future time or without day, and this may be done by an order to that effect sent to the clerk of the court before the time fixed for holding the regular term. Eussell V. State (Neb.), 15-222. 6. Rules. Power of court to disregard. — The rule of a court making the execution and filing of an undertaking a condition prece- dent to the issuance of a restraining order is binding on the judge issuing such an order and he has no right to waive the require- ment. Drew V. Hogan (D. C), 6-589. Adoption of federal equity rules by state court. — As provided by the Florida statute, in the absence of provisions of the law or rules of practice of Florida, the rules of practice in the federal courts of equity, as prescribed by the United States supreme court, shall be rules of practice in the courts of the states when exercising equity jurisdic- tion, and when the rules of practice so di- rected by the supreme court do not apply, the practice of the courts shall be regulated by the practice of the high courts of chan- cery of England. Long v. Anderson (Fla.), 5-846. Conflict xrlth statutes. — A valid statr ute of the state cannot be rendered nugatory or materially modified by a rule by one of the courts of the state, and if a rule sought to be enforced by any of the courts is found to be in conflict with such statute, the rule will be disregarded. Van Ingen v. Berger (Ohio), 19-790. Validity of oral rules. — Rules of court, in order to be operative, must be pub- lished in some permanent form. There can- not be such a thing as an oral rule of court. McDonald v. State (Ind.), 19^763. 7. Decisions. a. In general. What constitutes a decision. — A " finding " by the court in a cause tried without a jury is a " decision " within the meaning of the statute providing that it shall be ground for a new trial that a verdict or decision is not sustained by sufficient evi- dence or is contrary to law. Parkison v. Thompson (Ind.), 3-677. Form under Wisconsin statute. — In Wisconsin a trial judge's findings of fact and conclusions of law should be confined strictly to performance of the duty imposed by the statute. Such findings should cover singly, and in concise language, the pleaded facts without any addition by way of argu- ment or recital of evidence. Fanning v. Murphy (Wis.), 5-435. Necessity of statutory findings. — It is not reversible error for a trial court to refuse to make the findings of fact provided for by the Indian Territory statute. In re Taylor (Ind. Ter.), 5-226. Gratuitous findings. — If, in an action to restrain the commissioner of insurance from revoking a license to do business in the state, issued to a foreign life insurance company, the trial court, besides affirming the decision of the commissioner, also finds as a conclusion of law that the issuance of policies on account of which the license was revoked was unlawful, such finding is gratuit- ous as it affects policyholders not parties to the action. Equitable Life Assur. Soc. v. Host (Wis.), 4-413. Memorandum of decision. — Where a justice of the supreme judicial court of Massachusetts tries a suit in equity in the exercise of original jurisdiction, it is within his discretion to file voluntarily a. " memor- andum of decision," which, on appeal, will be considered to be a part of the record and to have the same effect as a finding of facts filed at the request of the appellant. Cohen v. Nagle (Mass.), 5-553. Effect of unreported decision. — The fact that a decision is omitted from the of- ficial reports of a state, for whatever reason, permits the court of another state or terri- tory to disregard it. Franklin «. Trickey (Ariz.), 11-1105. Construction. — All judicial opinions are to be considered in the light of the facts to which they apply, as a transition from an authorized to an unauthorized act is often- times by easy and imperceptible gradations, so that in the enunciation of a principle the eye must always be kept on the precise facts upon which the principle is to operate. Townsend v. Norfolk R., etc., Co. (Va ), 8-558. 590 ANN. CAS. DIGEST, VOLS. 1-20. b. Requests to find. Obligation to answer, — TJjKjer the Pennsylvania statute providing tlw.t a tri^ cpurt in finding the faits sJjaU state " separ- ately and distinctly the facts found, the answers to »ny points submitted in writing by counsel, and the conclusions of law," no further answer to requests for findings is re- quired than the statement of the facts found by the court, and it is not necessary that the court shall answer speejfifially upon the record all the requests submitted by counsel. Commonwealth v. Monongahela Bridge Co. (Pa.), S-1073. :Cffect of irefnsal. — The refusal of » trial court to make a requested finding of fact is not equivalent to an affirmative find- ing to the contrary, unless the intention of the court to be so understood is clearly ap- parent. Morehouse v. Brooklyn Heights R. Co. (N. Y.), 7-377. 8. CouBT Offjcebs. Stenograplievg. -" Under the Wyoming statute creating the office of court stenogra- pher and requiring that such stenographer shall remain in attendance during the trial of causes and take full stenographic notes of all testimony or admissions made by either side, of objections to the introduction of tes- timony, and of rulings and exceptions, and shall preserve and furnish a transcript of such notes to any person having an Interest therein, on payment of the legal fees, which transcript, when certified by the clerk of the court, shall be prima facie evidence of the matters set forth, such stenographer is an officer of the court in duty bound to perform the duties of the office with fidelity and with- out unnecessary delay, and litigants and their counsel are entitled to rely with confidence on their ability to obtain from that officer any part of the proceedings required to be taken down by him. Richardson v. State (Wyo.h 12-1048. COURTS MARTIAX., See Militia. Acquittal by court martial as bar to prosecu- tion in civil court, see Cbiminal Law, 5 b. Review of judgment of court martial, see Habeas Cobptjs, 2. COUSIN, Relationship to party disqualifying judge to act, see JupGES, 4 b (3). COVENANTS. 1. In Gen^bai,. 2. Covenants by Gbanteh. 3. Covenants Running with the Land. 4. consteuction. 5. Wbat Constitutes Beeach. 6. acitions qn cotsnants. See I^iEoe, 4. Covenants against assignment or subletting by tenant, see Landix)bd and Tenant, 3 e. ^forcement of negative eovenants, see In- JTTHCTIOMS, 2 c. Estoppel of grantor to plead statute of limi- tations in action for breach of war- ranty, see Limitation op Actions, 8. Maintenance of fences, see Fences, 2. Mutual covenants as consideration, see Hus- band and Wife, 2 a (2). Termination of lease by breach of covenant, see Landlord and Tenant, 3 g. 1. In Genebal. Implied covenant on conveyance by map, — Where the owner of a tract of land lays it out into blocks and lots upon a map, and on the map designates certain portions of the land to be used as streets, and then conveys lots by reference to the map, he be- comes bound by an implied covenant not to use the portion so devoted to the common advantage otherwise than in the manner in- dicated; and a threatened violation, by him or his assigns, of such implied covenant, en- titles the grantee to relief in equity by way of injunction. Herold v. Columbia Invest- ment, etc., Co. (N. J.), 16-580. A person who has purchased lots by refer- ence to a map is not entitled to an injunc- tion restraining his graptor from subdividing other lots shown on the map, or from selling lots of smaller dimensions than those Indi- cated thereon, in the absence of any express agreement or covenant that the laud em- braced in the map shall not be sold in lots smaller in area than those shown therw>n. No such covenant is implied from the mere making of the map and sale of lots by refer- ence thereto. Herold v. Columbia Investment, etc., Co. (N. J.), 16-580. Oovenant against cbarge for use of pier. — Where an easement or right of way over a strip of land on the ocean front is conveyed to a city by a deed wiuch contains a clear restriction against placing any build- ing or structure upon the ocean side of the lands conveyed, with a proviso reserving to the grantors the right to build a pier of a certain kind and length on which the owners shall not permit the sale of any commodi- ties " and be confined to charging only an entrance fee," such covenant to charge only an entrance fee is binding upon the successors Jn title of the grantor who have erected a pier of the kind specified, and is violated by imposing a charge upon visitors, after they have entered the pier, for the hire and use of roller skates and for checking garments, in addition to an entrance fee. Atlantic City V. Associated Realties Corp. (N. J.), I'^- 743. Application to property not con- voyea. — Covenants of title do not apply to COVENANTS — COVEKTUEE. §91 land not included in the conveyance. White V. Stewart (Ga.), 15-1198. 2. Covenants bt Grantee. Effect of acceptance of deed poll. — The acceptance of a deed poll binds the grantee to the performance of covenants con- tained therein. Sexauer v. Wilson (la.), 15-54. The acceptance of a deed poll does not have the effect of binding the grantee as a cove- nantor. Dawson v. Western Maryland E. Co. (Md.), 15-678. 3. Covenants Running wiis the Land. CoTenant against sale of liquor. — An agreement by an owner of land with an adjoining owner that for the period of ten years he will not sell or permit to he sold upon the premises any intoxicating liquor is not a covenant running with the land. Sjob- lom V. Mark (Minn.), 14-125. Such an agreement, although executed by the owner on behalf of his heirs, executors, and assigns, is merely the personal covenant of the owner, and is not a conveyance, or en- titled to registration, within the meaning of the Minnesota Recording Act, and the record thereof does not constitute constructive notice to a subsequent purchaser, who takes the legal title by a conveyance which is silent as to the covenant. Sjoblom «. Mark (Minn.), 14-125. Where such a covenant is not contained in a deed or indenture in the chain of title, sub- sequent purchasers and assigns are not hound thereby, unless they have such knowledge or notice thereof as to imply that the burden was assumed as a part of the consideration. Sjoblom V. Mark (Minn.), 14-125. Grantee's covenant as to tilings not in esse. —A grantee's covenant which re- lates to things not in esse, and which can- not he construed as a covenant with the grantor and his assigns or by the grantee for himself and his assigns, is not a covenant running with the land. Dawson v. Western Msrylaad B. Co. (Md.), 15-678. Assumption of mortgage by grantee. — A provisjoB in a deed whereby the grantee assumes and agrees to pay an existing mort- gage does not create a covenant which runs with the land, although such provision is in- serted in connection with the covenants of seizin and against incumbrances. Clement v. Willett (Minn.), 15-1053. 4. Constbcction. Conveyance subject to mortgage. — A statement in a deed that the property con- veyed is subject to a mortgage qualifies the estate granted.. Consequently a subsequent absolute covenant of warranty applies merely to the equity of redemption. Miller v. De Graffenried (Colo.), 15-981. A statement in such deed that the mort- gage has been assumed by a third person is at most an additional means of identification thereof, and the grantor thereof does not by his subsequent covenant of warranty guaran- tee that such third person will pay the mort- gage upon maturity. Miller v. De Graffenreid (Colo.), 15-981. Deed conveying right, title and in- terest. — If u, deed purports to convey the right, title, and interest of the grantor in and to certain described realty, instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the prop- erty. White V. Stewart (6a.), 15-1198. 5. What Constitutes Breach. Decree of court establishing para- mount title. — A covenantee is evicted so as to authorize him to maintain an action for breach of a covenant of warranty where he is compelled to purchase the paramount title which has been established by the de- cree of a court of competent jurisdiction and ordered to be sold at public auction. Mor- gan V. Haley (Va.), 13-204. 6. Actions on Covenants. Remedy in equity. — In a suit in equity by a person who has purchased lots by refer- ence to a map, to enjoin his grantor, or the latter's assigns, from altering the location or width of streets shown on the map, the fact that the proof does not show clearly that the threatened alteration or narrowing of the streets would greatly depreciate the value of plaintiff's property does not dis- entitle him to equitable relief, since his only remedy at law would be by a multiplicity of actions for damages, and such remedy is plainly inadequate. Herold v. Columbia Invest., etc., Co. (N. J.), 16-580. Allegation of eviction. — In an action on a general warranty of title to land against the claims of all persons, an eviction or equivalent disturbance by an outstanding paramount title must be alleged. White *. Stewart (Ga.), 15-1198. Conclusiveness of eviction proceed- ings against covenantee. — In order that eviction proceedings *gajnst the coweiiantee shall he conclusive on the covenantor when the latter is sued for breach of his oovensflt of warranty, the covenantor must not only have had distinct and unequivocal notice of the suit, but must have been requested to ap- pear and defend it. Morgan v. Haley (Va. ), 13-204. Measure of damages. — A purchaser evicted from fend bought iwdjer a cove- nant of good title is entitled to recover against the purchaser only the purchase price paid, wjth interest from the date of eviction and the costs expended in defending the action of eviction, and cannot recover his counsel fees as a part of such eosta. Mor- gan V. Haley (Va.), 13-204. CQXIERTVRE, See Husband and Wife. 592 Al^N. CAS. DIGEST, VOLS. 1-20. cows. Injuries by cows in highways, see Animals, 2 c. CREDIBILITY. See Witnesses, 5. Effect of intoxication, see Drunkenness and Intoxication, 3 d. Qualifications of attesting witness to will, see WniS, 3 e (2). CREDIT. Effect of representations as to credit of another, see Frauds, Statute of, 7. Words affecting credit as libelous, see Libel AND Slander, 2 d. CREDITORS. Conveyances in fraud of creditors, see Fraud- ulent Conveyances. Sale to creditor as within sales in bulk acts, see Fraudulent Conveyances, 3 b. CRIME. Charging commission of crime as libel, see Libel and Slander, 1 b. Contract furnishing incentive to crime, see Contracts, 4 m. Conviction of crime as disqualification for jury service, see Jury, 2. Conviction of crime as disqualification of personal representative, see Executors AND Administrators, 2 b. Conviction of crime as disqualification of voters, see Elections, 5. Conviction of crime as ground for divorce, see Divorce, 2 d. Removal of public officer for criminal acts, see Public Officers, 7 b (2). CRIMINAIi CONVERSATION. See Husband and Wife, 7. CRIMINAL LAW. 1. General Principles and Defini- tions, 595. 2. Criminal Statutes, 595. a. In general, 595. b. Construction, 595. c. Amendment or repeal, 596. 3. Arrest, 596. 4. Preliminary Examination, 596. 5. Jeopardy, 597. a. In general, 597. b. What constitutes, 597. e. Waiver of immunity, 599. d. Burden of proof of identity of offenses, 599. e. Pleading, 599. 6. Trial, 600. a. Jurisdiction of courts, 600. b. Place of trial, 600. c. General rights of accused with regard to trial, 601. (1) Speedy trial, 601. (2) Public trial, 602. (3) Time to prepare for trial, 602. (4) Kight to be present during trial, 602. (5) Eight to be free from shackles, 603. (6) Eight to confront witnesses, 603. (7) Eight to cross-examine wit- nesses, 603. d. Continuance, 603. (1) In general, 603. (2) On account of absence of witnesses, 604. e. Separate trials, 605. f. Election between counts, 605. g. Necessity for formal accusation, 605. h. Arraignment, 605. i. Counsel, 605. j. Pleas, 606. (1) In general, 606. (2) Eight to withdraw plea of guilty, 606. k. Change of judges, 607. 1. Discharge of jury, 607. m. Eeeeption of evidence, 607. (1) Order of proof, 607. (2) Exclusion of jury upon ar- gument as to admissibil- ity of evidence, 607. (3) Placing witnesses under the rules, 607. (4) Calling all witnesses in- dorsed on indictment, 607. (5) Calling witness not in- dorsed on indictment, 607. (6) Calling eyewitnesses, 607. (7) Scope of direct examina- tion, 608. (8) Scope of cross examina- tion, 608. (9) Exceptions and objections, 608. ( 10 ) Beading and signing of tes- timony, 608. (11) Permitting opposing coun- sel to examine papers, 608. (12) Allowing attendant for wit- ness on stand, 608. n. Admissibility and sufficiency of evidence, 608. (1) In general, 608. (2) Identity of accused, 611. (3) Character or reputation, 611. (4) Conduct of accused, 611. (5) Evidence of prior convic- 612. CKlMliS'^AL LAW. 593 (6) Proof of other crimes, 612. (7) Opinion evidence, 613. (8) Experiments, 613. (9) Handwriting, 614. (10) Bloodhound evidence, 614 (11) Confessions, admissions and declarations, 614. (a) Admissibility in gen- eral, 614. (b) Voluntary or in- duced, 616. (aa) In general, 616. (bb) Confessions to police officers, 616. (cc) Preliminary proof as to admissibil- ity, 616. (c) Rebuttal or impeach- ment, 617. (d) Corroboration, 617. (e) Whole or part of confession, 618. (f) Of defendant against self and codefend- ant, 618. (g) Weight and suffi- ciency, 618. (h) Permitting written confession in jury room, 618. o. Comments by court, 618. p. Arguments and conduct of coun- sel, 619. q. Instructions, 619. (1) In general, 619. (2) Reasonable doubt, 621. (3) Presumption of innocence, 622. (4) Failure of defendant to tes- tify, 622. (5) Motive, 623. (6) Consideration of character evidence, 623. (7) Confessions, 623. (8) Matters already covered by Instructions, 623. r. Verdict, 624. (1) General verdict, 624. (2) Special verdict, 624. (3) Direction of verdict, 624. (4) Conviction of lesser degree of offense, 624. (5) Presence of accused at ren- dition, 624. (6) Coercing verdict, 625. (7) Impeachment of verdict, 625. (8) Sufficiency and validity of verdict, 625. (9) Reception of verdict, 626. 7. Sentence and Punishment, 626. a. Validity and construction of stat- utes, 626. (1) Validity, 626. (2) Construction, 627. b. Sentence, 627. (1) Power to impose, 627. Vols. 1-20 — Ann. Cas. Digest. — 38. (2) Time of imposition, 627. (3) Duty to inform defendant of verdict and permit him to be heard, 627. (4) Presence of defendant in court, 628. (5) Record of sentence, 628. (6) Amount of sentence, 628. (a) In general, 628. (b) Cumulative sen- tences, 628. (c) Suspension of civil rights, 628. (d) Submission of ques- tion of jury, 629. (e) Matters for consid- eration in determi- nation of sentence, 629. (f) Effect of error in sentence, 629. (7) Place of imprisonment, 629. (8) Suspension of sentence, 630. (9) Construction of sentence, 630. (10) Repeal of statute as affect- ing prisoner already sen- tenced, 630. 8. New Tbial, 630. 9. Appeal and Eebor, 630. a. Preliminaries to obtain review, 630. (1) Matters relating to indict- ment, 630. (2) Matters relating to instruc- tions, 630. (3) Misconduct of counsel, 631. (4) Misconduct of jurors, 631. b. Review, 631. (1) In general, 631. (2) Matters relating- to evi- dence, 631. (3) Misconduct of counsel, 632. (4) Matters relating to instruc- tions, 633. (5) Absence of judge during trial, 633. c. Disposition of case on appeal, 633. 10. Limitation of Peosecutions, 633. See Accessories and Other Participants in Crime; Accomplices; Bail. See Indictments and Informations. Appointment of attorney to defend indigent prisoner, see Attorneys at Law, 9. Arrest of judgment in criminal cases, see Judgments, 7. Change of venue in criminal cases, see Change of Venue, 2. Character of proceeding as civil or criminal, see Actions. Communications between court and jury, see Jury, 7 b. Contracts violating penal statute, see Con- tracts, 4 b. Costs in criminal cases, see Costs. 9. Criminal liability of corporation for con- spiracy, see CoNSPiBACT, 1 c. 594 ANN. CAS. DIGEST, VOLS. 1-20. Criminal liability of master for acts of ser- vant, see Master and Servant, 6. Criminal liability of oSujer for r.cts of cor- poration, see Corporations, 7 b. Criminal, liability of particular persons and persons in particular relations, see CoR- POBATIONS, 5 c; Infants, 5; Municipal COBPOEATIONS, 10. Criminal liability of public officers, see Pttb- Lic OffiCEBS, 10; Eailboads, 9. Custody of persons acquitted of crime on ground of insanity, see Insanity, 3. Dying declarations, see Homicide, 6 a (3) (b) ; Incest, 4 b. Effect of nonprosecution of others for same offense, see Physicians and Surgeons, 3 c. Estoppel as applied to criminal prosecutions, see EsTOPPBt, 3. Fugitives from justice, see Extradition. Insanity as affecting responsibility for crime, see Insanity, 7. Intoxication as affecting criminal responsi- bility, see Drunkenness and Intoxi- cation, 3 c. Invalidity of information as affecting juris- diction of court, see Indictments and Informations, 1. Judicial notice in homicide cases, see Homi- cide, 6 a ( 1 ) . Judgment in criminal proceedings as res judicata in civil cases, see Judgments, 6 d (4). Jurisdiction of accessories, see Accessories and Other Participants in Crime. Nevr trial in criminal cases, see New Trial, 2 b. Pardon of persons convicted of crime, see Pardon, Reprieve, and Amnesty. Passing sentence as affecting time for appeal, see Appeal and Eekob, 7 b. Place of trial in criminal cases, see Venue, 2. Prevention of crime by injunction, see In- junctions, 2 g. Privilege of witnesses as to self-crimination, see Witnesses, 4 g. Res gestw, see Homicide, 6 a ( 1 ) . Restraining criminal proceedings, see Injunc- tions, 2 f. Restraining enforcement of criminal statute, see Injunctions, 2 d (4). Restraining irregular procedure in criminal cases, see Prohibitio', 1. Retraining prosecution under void statute, see Prohibition, 1. Right of justice of the peace to hold case rmder advisement after trial, see Jus- tices OF THE Peace, 2. Right to habeas corpus before preliminary examination, see Habeas Corpus, 1. Right to jury trial in criminal cases, see Jury, 1 b. Solicitation by complaining witness as de- fense, see Physicians and Surgeons, 3 c. Trial of criminal case on holiday, see Sun- days AND Holidays, 3. Venue in criminal cases, see Venue, 2. Venvie in prosecution for burglary, see Burglary, 3. Venue in prosecution for embezzlement, see Embezzlement, 3. Waiver of objection to change of judge, see Judges, 5. Particular crimes and criminal prosecutions. See Adulteration; Adultery; Affray; ARREsf; Arson; Assault and Bat- tery; Bigamy; Bribery; Burglary; Compounding Offenses; Contempt; Conspiracy; Disorderly Houses; Dis- turbing Meetings; Embezzlement; Embracery; Escape, Prison Breaking, AND Rescue; Extortion; False Pre- tenses AND Cheats; Forgery; Forni- cation; Homicide; Incest; Kidnap- ping; Larceny; Lotteries; Mayhem; Miscegenation; Obscenity; Perjury; Rape; Receiving Stolen Property; Riot; Robbery; Seduction; Threats; Treason; Unlavstful Assembly. Attempt to commit suicide as crime, see Suicide, 1. Betting on elections, see Gaming and Gam- ing Houses, 1 d. Breach of contract as crime, see Constitu- tional Law, 3; Master and Servant, 2 c. Cruelty to animals, see Animals. Defrauding innkeepers, see Inns, Boarding Houses, and Apartments, 10. Injury to animals as crime, see Animals, 3 c. Liability for injuries by automobiles, see Motor Vehicles, 5. Libel as a crime, see Libel and Slander, 5. Neglect of duty by master of vessel, see Ships and Shipping, 5. Nonsupport of wife, see Husband and Wife, 4 a (2). Obstructing highways, see Streets and High- ways, 5 f. Obtaining monopoly of necessities of life, see Monopolies and CoRPoaATE Trusts, 2 a. Poisoning animals as a crime, see Animals, 3 c. Practicing medicine without license, see Physicians and Surgeons, 3. Prosecutions against corporations, see Cor- porations, 11. Remanding cause for sentence, see Appeal and Ebsob, 16 d. Threats and intimidation by labor unions, see Labor Combinations, 12. Using mails to defraud, see Post Office. Usury as a crime, see Usury, 3. Violations of anti-gambling laws, see Gaming AND Gaming Houses. Violations of child labor laws, see Infants, 4 b. Violations of food laws, see Food, 6. Violations of game laws, see Game and Game Laws, 5. Violations of license laws, see Hawkers and Peddubs, 5, Violations of jiquor laws, see Intoxicating Liquors. Violations of municipal ordinances, see Muni- cipal Corporations, 5 h. CRIMINAL LAW. 595 Violations of national hanking act, see Banks and Banking, 9 a. Violations of Sunday laws, see Sundays and Holidays, 1 c. 1. Geneeal Peinciples and Definitions. Common-la'nr and statutory offences. — Under the Indiana statute providing that the punishment of all crimes must be " fixed by statute of this state and not otherwise " no common-law crimes, punishable as such, exist in that state. Sopher v. State (Ind.), 14-27. Classification of crimes. — All crim- inal oilenses known to the law are compre- hended in the two classes of felonies and mis- demeanor. There is not a third class con- sisting of nuisances either statutory or at common law. Commonwealth v. New York Central, etc., R. Co. (Mass.), 19-529. Intent as element of statutory of- fense. — Where the offense charged is the violation of a statute, the only intent neces- sary is an intent to do the prohibited thing. Knight, etc., Co. v. Miller (Ind.), 18-1146. The intent with which an otherwise lawful act Is done may be looked to for the purpose of determining whether there is a dangerous probability that such act, if unchecked, will result in an unlawful act, where the latter act is of such a nature that the law forbid- ding it is directed against the dangerous probability as well as against the completed whole. O'Brien v. People (111.), 3-966. * Intent as element of common-Iaxr offense. — At common law, an evil intent and an unlawful act must concur to consti- tute a crime, and it is necessary ordinarily to allege and prove a guilty intent. Com. v. Miser (Mass,), 20-1152. Ignorance as defense. — Where a stat- ute commands that an act shall be done or omitted to be done which, in the absence of such statute, might be done or omitted with- out culpability, ignorance of the fact or con- dition contemplated by the statute does not excuse its violation. State v. Gilmore (Vt. ), 13-321. What constitutes attempt to commit crime. — If all that a person intends to do will, if done, constitute no crime, it cannot he a crime for him to attempt to do with the same purpose part of the thing intended. People V. Jaflfe (N. Y.), 7-348. Necessity of overt act in attempt to commit crime, — Under the Oregon stat- ute prescribing the punishment for an at- tempt to commit any crime, to constitute an attempt there must be something more than a mere intention to commit the offense and preparation for its commission. Some overt act must be dctjje towards its commission which falls short of the completed crime. State V. Taylor (Oregon), 8-627. Meaning of word '' criminals." — " Criminals " is a word of broad significance, and includes those who have committed the most trifling infractions of the penal stat- ute, as well as those guilty of the most heinous offenses. Creeden v. Boston, etc.. Railroad (Mass,), 8-1121. Meaning of word " motive." — In the sense of the criminal law, motive may be defined as " that which leads or tempts the mind to indulge in a criminal act." Thomp- son V. United States (U. S.), 7-62. Meaning of words " now beld in cus- tody." — As used in an order for a special term of court for the trial of a person ac- cused of crime, the words " now held in cus- tody, charged with a capital offense," neces- sarily mean that the accused is conffned in jail. Beard v. State (Ark.), 9-409. 2. CEiMiNAt Statutes. a. In general. Application of criminal statutes to Indians, see Indians, Special laws for punishment of offenses, see Banks and Banking, 7. Uniform operation of criminal statutes, see Game and Game Laws, 3 a (2), Po-wer of legislature to enact. — It is within the exclusive power of the legislature to declare what acts shall constitute a crim,e, to define the same, and to provide sUch pun- ishment therefor as may be deemed appro- priate. State V. Shevlin-Carpenter Co. (Minn.), 9-634. The legislature, in the exercise of the police power, may prohibit under penalty the performance of a specific act. The doipg of the prohibited act constitutes a crime, and the moral turpitude or purity of the motive by which the act is prompted, and the knowl- edge or ignorance of its criminal character, are immaterial on the issue of guilt. Com. V. Mixer (Mass.), 20-1152. Classification of offense as felony or misdemeanor. — In a criminal statute it is not necessary to specify that the act pro- hibited is a misdemeanor or a felony, as the punishment affixed determines that fact. State V. Lewis (N. Car.), 9-604. Test of constitutionality. — The test of the constitutionality of an act creating a crime and providing penalties for the pun- ishment thereof is not what the effect of the statute, mercifully and discreetly adminis- tered, will be, but what the statute empowers those in authority to do. State v. Williams (N. Car.), 14-562. Time to question constitutionality. — Where a case involves the punishment of a defendant for a crime, the constitutionality of the statute authorizing the prosecution may be questioned at any stage of the pro- ceedings. Commonwealth v. Hana (Mass.), 11-514. b. Construction. Title of statute making certain acts of tres- pass criminal, see Statutes, 3 b. Title of statute providing for defenses in criminal cases, see Statutes, 3 b. Title of statute regulating punishment of death, see Statutes, 3 b. In general. — The general rule is that criminal statutes must be strictly construed to avoid the creation of penalties by construe- 596 ANN. CAS. DIGEST, VOLS. 1-20. tion, but such reasonable view must be taken of a statute as will effectuate the manifest intent and purpose of the lawmakers. Groff V. State (Ind.), 17-183. As a general rule, criminal statutes are to be strictly construed, and nothing can be added thereto by intendment. Rohlf v. Kase- meier (la.), 17-750. Statute imposing both, civil and orlminal liability. — The Minnesota stat- ute declaring certain acts of trespass upon state lands to be a crime, imposing a penalty therefor, and fixing the measure of damages to be recovered in a civil action, must be construed as imposing upon a casual or in- voluntary trespasser criminal punishment and also double damages for his wrongful acts; and as so construed the statute is con- stitutional. State V. Shevlin-Carpenter Co. (Minn.), 9-634. Penalty for second conviction. — As used in a criminal statute imposing more severe punishment " in case of a second or any subsequent conviction of the same person during any year," the words " during any year " do not mean the calendar year, but mean the ensuing year from the date of the first conviction, and therefore a second con- viction within three hundred and sixty-five days after the first conviction is within the statute. Paetz v. State (Wis.), 9-767. Statute prescribing punishment for common-lamr offense. — A statute prescrib- ing a penalty for a common-law offense, with- out cutting off the common-law prosecution and punishment either expressly or by im- plication is construed as intending a cumu- lative remedy only. State v. Hildreth (Vt.), 18-661. c. Amendment or repeal. Effect upon pending prosecutions. — By force of a statute in Ohio, the repeal or amendment of a criminal statute in no man- ner affects pending prosecutions, or causes of prosecution existing at the time of such amendment or repeal, unless it is otherwise expressly provided in an amending or repeal- ing act. State v. Lawrence (Ohio), 6-888. Repeal after final judgment. — The repeal of a criminal statute after a final judgment in a criminal prosecution does not vacate or invalidate the judgment. In re Kline (Ohio), 1-219. Where a defendant is convicted of selling intoxicating liquors in violation of the pro- visions of a valid city ordinance, and has been duly sentenced therefor, the subsequent repeal of such ordinance does not relieve him from such sentence. Wichita v. Murphy (Kan.), 16-468. 3. Arbest. Validity of warrant. — In a prosecution for an offense committed in violation of a statute amended by a subsequent statute, where it appears that a section of the amend- ing statute is void and that the correspond- ing section of the original statute has not been repealed, either expressly or by impli- cation, the warrant is rendered void by the fact that it recites that the offense was com- mitted in violation of the original statute as amended, particularly if it appears that some of the sections of the amending statute are valid, and that the reference in the war- rant to the amending statute merely specifies the number of the chapter and does not specify any particular section thereof. People ex rel. Farrington v. Mensching (N. Y.), 10- 101. Discretion of magistrate as to issu- ance of ivarrant. — Where an application for a warrant is made to a magistrate, he must determine for himself whether an offense has been committed, and if he finds that it has, he may issue the warrant whether the prosecuting attorney assents or dissents, and therefore it is improper for a magistrate to determine simply that it is the duty of the prosecuting attorney to make the investiga- tion, and that he will not interfere with the duties or ' doings of that officer. State v. Yakey (Wash.), 9-1071. Taking prisoner to prosecuting at- torney's office after arrest. — It is im- proper for the state's counsel to have one who is under arrest brought from the place of arrest to the counsel's office unless the person desires a conference. State v. Tha- vandt (Mo.), 20-1122. 4. Peeliminaby Examination. Right to file information after preliminary examination, see Indictments and In- FOEMATIONS, 2. Bight to examination. — Under the Missouri statute providing that " no prose- cuting or civil attorney of this state shall file any information charging any person or persons with any capital offense until such person or persons shall first have been ac- corded the right to a preliminary examina- tion before some justice of the peace in the county where the offense is alleged to have been committed," an information is not sub- ject to quashal because a person jointly charged with the defendant with the commis- sion of the crime is a fugitive from justice, and therefore has never had any preliminarj examination. State v. Jeffries (Mo.), 14-524 Under such statute it is not required thai in the preliminary examination preceding thf filing of the information all the witnesses foi the state shall be examined, and hence nc error is committed in refusing to quash ar information on the ground that at the pre liminary examination the defendant was com mitted without the examination of all thi witnesses who were summoned for the state State V. Jeffries (Mo.), 14-524. Sufficiency of affidavit. — An affidavi" charging a person with a crime need not shov that the statements contained in it are madi upon the affiant's knowledge, but it is suffi cient if made upon information and belief Rose )'. State (Ind.), 17-228. Powers of magistrate. — The act creat ing the court of Topeka (Laws 1899, c. 129 confers upon the judge of that court th power and jurisdiction of a justice of th CRIMINAL LAW. 597 peace in preliminary examinations of per- sons accused of felony. State v. Pigg (Kan.), 18-521. Under the California statutes there is a distinction between the methods of prosecu- ting charges of felony and those amounting only to ordinary misdemeanors. In cases of felony the magistrate may examine as many witnesses as he sees fit before issuing the warrant, while in cases of simple misde- meanors he is limited to the complaint itself as a basis for his action in signing a warrant of arrest. In cases of the latter nature, a complaint on information and belief forms a sufficient basis for the issuance of a warrant. Ex parte Blake (Cal.), 18-815. Amendment of charge. — It is com- petent for an examining court to change the charge against a person accused of crime who has been held to reappear and answer at a later day, though he has been released upon bail. Commonwealth v. Jones (Ky. ), 4-1192. Bight of state to introduce evidence. — The purpose of a preliminary examination is threefold : { 1 ) To inquire concerning the commission of crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there be probable cause for believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testi- mony; (3) to determine the amount of bail which will probably secure the attendance of the accused to answer the charge. The right of the state to introduce evidence at a pre- liminary examination cannot be defeated by the accused waiving an examination. State V. Pigg (Kan.), 18-521. Signature of certificate by clerh. — Where the clerk of a city court has failed to sign the certificate attached to the trans- script of a preliminary examination held be- fore the judge of such court it is proper for the district court to permit the certificate to be amended by having the clerk attach his signature. State v. Pigg (Kan.), 18-521. 5. Jeopakdy. a. In general. Application of fifth amendment to TTnited States constitution to states. — The fifth amendment of the Constitution of the United States, including the statement, " nor shall any person be subjected for the same offense to be twice put in jeopardy of life and limb, . . . nor be deprived of life, liberty, or property, without due process of law," is a limitation upon the power of the federal government, and not upon the indi- vidual states. Brantley v. State (Ga.), 16- 1203. Validity of statute providing for punishment of crime and civil action for penalty. — The Minnesota statute de- claring certain acts of trespass upon state lands to be criminal offenses, imposing a pen- alty therefor, and providing for the recovery of double or treble damages from the tres- passer, does not violate the provision of the state constitution that no person ihall be twice put in jeopardy of punishment for the same offense, as that provision applies only to criminal prosecutions, and the damages imposed by the statute, though in the nature of a penalty, are recoverable by the state in a civil action. State v. Shevlin-Carpenter Co. (Minn.), 9-634. Repeal of statutes. — Military order No. 58 relating to criminal procedure in the Philippine Islands, as amended by the act of the Philippine Commission No. 194, in so far as it undertakes to permit an appeal by the government after acquittal in criminal actions, was repealed by the Act of Con- gress of July 1, 1902, providing for the ad- ministration of the affairs of civil govern- ment in the Philippine Islands and declaring that no person for the same offense shall be twice put in jeopardy of punishment. Kep- ner v. United States (U. S.), 1-655. b. What constitutes. In general. — A person is in legal jeo- pardy when he is put upon trial, before a court of competent jurisdiction, upon an in- dictment or information which is sufficient in form and substance to sustain a conviction, and the jury has been charged with his de- liverance. And a jury is said to be thus charged when they have been impaneled and sworn. Allen v. State (Fla.), 10-1085. Acquittal in court -nrithout jurisdic- tion to hear and determine. — An acquit- tal in a court not having jurisdiction to hear and determine the charge against the de- fendant is not a bar to a subsequent prose- cution in a court which has jurisdiction of the offense. State v. Fox (Conn.), 19-682. Discharge hy magistrate on prelim- inary examination. — The discharge of «, defendant by a magistrate on a preliminary examination is not such an adjudication iii the defendant's favor as v/ill bar a subse- quent prosecution for the offense. People v. Dillon (N. Y.), 18-552. Second trial after verdict for de- fendant and appeal by state. — The Act of Congress of 1902, relating to civil govern- ment of the Philippine Islands, prohibits an appeal by the government in criminal actions from a verdict for the defendant, as a second trial even in an appellate court constitutes a second jeopardy. Kepner v. United States (U. S.), 1-655. Nenr trial after judgment of convic- tion as jeopardy. — When a defendant has been tried and convicted of an offense, and a new trial has been granted him, and he is placed on trial on the same indictment again, a plea of_ former jeopardy, based upon the first conviction, does not present a defense in the case. Johnson v. State (Okla.), 18- 300. Trial for higher ofFense after revers- al of conviction of lower offense. Where a person convicted of assault by a trial court in the Philippine Islands under a complaint charging him with murder appeals to the supreme court of the islands, the action of such supreme court in reversing the judgment of the trial court and convicting 598 ANN. CAS. DIGEST, VOLS. 1-20. the appellant of murder in the second de- gree does not violate the guaranty of the Act of Congress that no person accused of crime in the Philippine Islands shall be put twice in jeopardy of punishment for the same offense. Trono v. United States (U. S.), 4-^ 773. Trial for higher offense after new trial granted from oonTiction of lonrer offense. — Where a person convicted of manslaughter under an indictment for mur- der is granted a new trial on his own mo- tion, he may be tried again for murder under the same indictment. State v. Gillis (S. Car.), 6-M3. Where a person who has been indicted for murder and convicted of voluntary man- slaughter, voluntarily seeks and obtains a new trial, he is subject to another trial gen- erally for the offense charged in the indict- ment, and upon such trial he cannot suc- cessfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in trial generally. Brantley v. State (Ga.), 16- 1203. Whatever may be the rule in jurisdictions where the matter is not regulated by consti- tution or statute, the rule above stated is in accord with the constitution of Georgia, which provides that " no person shall be put in jeopardy of life or liberty more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial." The term " new trial," as used in the constitution, means a new trial generally. Brantley v. State (Ga.), 16- 1203. If one has been indicted for murder and convicted of manslaughter, and, under a pro- vision of the state constitution to the effect that if a new trial is granted to a convicted person on his own motion it shall be another trial generally for the offense charged in the indictment, moves for a new trial and ob- tains it, thus voluntarily causing the verdict to be set aside, the clause of the Fourteenth Amendment of the Constitution of the United States prohibiting any state from depriving a person of life, liberty, or property without due process of law or denying to any person the equal protection of the laws, does not pre- vent him from being again tried for murder. Brantley v. State (Ga.), 16-1203. Trial fof several offenses in same in- formation after reversal of conviction of one offense. — On the reversal of a con- viction for One offense under an information charging the commission of several offenses, the implied acquittal of the other offenses, arising from the conviction for one offense, falls. State V. Pianfetti (Vt.), 9-127. Dismissal of indictment after ar- raignment and plea. — The extradition of a person, and his arraignment and plea in the extraditing state to an indictment which is afterwards dismissed by the state's attorney for want of sufiicient evidence or for other adequate reasons, does not put the accused in jeopardy so as to make his second extra- dition for the same offense unlawful under the Constitiition and laws of the United States. Bassing «. Cady (U. S.), 13-905. Acgnittal of defendant on legal charges and unwarranted conviction on another charge as bar to new trial after reversal. — Where the jury, under an indictment charging larceny and embezde- ment, has found the defendant not guilty of embezzlement or of aiding or abetting in the commission of embezzlement, but guilty of the crime of larceny, of which he could not be legally convicted under the evldenee, the cause cannot be remanded for a trial on the charge of embezzlement. State v. Casey (Mo.), 13-878. Discharge of jury for insufficient legal reason. —The power of a court to discharge a jury who have been sworn in chief before a verdict should be eXWciBed only in case of manifest, urgent, or abaolute necessity. If the jury are discharged for a reason legally insufficient and without abso- lute necessity for it, and without the de- fendant's consent, the discharge is equivalent to an acquittal, and may be pleaded ftS' a bar to any further trial or to any subsei}uent indictment. Allen v. State (Fla.), Ifr-lOSS; Entry of nolle prosequi after part of jury sworn. — A plea of former jeopardy is not supported by a showing that a former trial was entered upon, that at that time four jurors were sworn to try the cause, and that thereupon a nolle prosequi was entered by the state's attorney. O'Donnell «. People (111.), 8-123. Mistrial. — Mistrials should not be lightly granted, but are not limited to cases Of physical necessity and may be ordered whei'e necessary to secure a fair trial. Oliveros t'. State (Ga.), 1-114. A mistrial cannot be declared in a criminal case, after the jury is charged with the case, for an error of law committed by the judge, without the consent of the accused. OliverOs V. State (Ga.), 1-114. Where a court declares a mistrial over the protest of the accused in a criminal case for an error committed by the court, the accused may plead former jeopardy upon the new trial. Oliveros v. State (Ga.), 1-114. Disagreement by jury. — The court does not, after a disagreement of the jury in a criminal case, lose jurisdiction to proceed with a. second trial because the record of prior proceedings contains facts sufficient to establish former jeopardy. State v. White (Kan.), 6-132. The well-established rule that where, after a reasonable time has been allowed, «, verdict has not been agreed upon, and there is no probability of an agreement, the trial court may discharge the jury without prejudicing a future prosecution, has been embodied in the Wyoming constitution and statutes. Hovey r. Sheffner (Wyo.), 15-318. Acquittal by court-martial as bar to prosecution in civil court. — Under the Sixty-second Article of War of the United States a general court-martial has, in time of peace, jurisdiction to try a person in the military service for any offense, not capital, which the civil law declares to be a crime, and under the provision of the Federal Con- stitution prohibiting double jeopardy for the CEIMIKAL LAW. 699 same oflfense a person who has been tried aad acquitted of a crime by a court-martial) having jurisdiction, and deriving its author' ity from the United States, cdnnot be tried for the same acts by a civil court Of the United States, although the offense is charged by a different name. Grafton v. United States (U. S.), 11-640. A civil court cannot disregard the judg- ment of a general court-martial against an accused soldier, if such court-martial had jurisdiction to try the offense set forth in the charge and specifications, although the civil court, if it had first taken hold of the case, might have tried the same offense or even one of higher grade arising out of the same facts. Cranon r. United States (U. S.), 11-640. Identity of offenses. — In a prosecution against a, United States senator for having received compensation from a corporation in a proceeding before a government depart- ment in which the United States is interested, in violation of a federal statute, the defend- ant cannot plead in bar his acquittal in a prior prosecution for having received compen- sation from an individuaF though such in- dividual was described in the former indict- ment as an officer and employee of the cor- poration, where it does not appear plainly as a matter of law upon the face of the record that the two offenses are identical. Burton r. United States (U. S.), 6-362. Acquittal upon an indictment charging the defendant with the fraudulent appropriation of a certain amount of money in his custody, on a certain day, is a bar to a prosecution on a second indictment in all respects like the first except charging the appropriation of a slightly different amount and on a different day. State v. Dewees (S. Car.), ll-gw. Test in determining identity. •— On a plea of former acquittal, in determining whether the two indictments charge the same offense, the test is whether the evidence necessary to support the second indictment would have been sufficient to procure a con- viction upon the first indictment. State v. Dewees (S. Car.), 11-991, Question of lair or fact. •— Where, in a criminal prosecution, the state's response to a plea of former acquittal amounts to a traverse of the facts alleged in the plea, a special issue is raised which it is proper to submit to ^he jury. But a demurrer to a plea of former acquittal, being an admission of the facts alleged in the plea, raises only an issue of law triable by the court. State v. Dewees (S. Car,), 11-991. Conviction of assault as bar to prose- cution for murder after death of per- son assaulted. — A conviction for felonious assault while the victim of the assault is still living is no bar to a. prosecution for murder after the victim's death. Common- Wealth V. Kamuimo (Pa.), 12-818. c. Waiver of immunity. Rigkt to wMve. — The immunity from second jeopardy granted by the constitution to one who is accused of crime is a personal privilege which he may Waive. State v. White (Kan.), 6-132. Wha.t constitutes waiver. — If a per- son about to be placed in jeopardy a second time does not, in some legal form, insist Upon his constitutional privilege before entering upon a trial of the merits, the privi- lege is waived. State v. White (Kan.), 6- 132. The silence of the defendant on trial for crime, or his failure to object or protest against the illegal discharge of the jury be- fore a verdict, does not constitute a consent to slich discharge, or a Waiver of the con- stitutional inhibition against a second jeo- pardy for the same offense. Allen v. State (Fla.), 10-1085. £stoppel to allege indictment valid and jeopardy liy obtaining dismissal as invalid. — Where the accused has se- cured the quashing of an indictment he ia estopped to assert, when he is subsequently indicted for the same offense, that the for- mer indictment was valid, and that the pro- ceedings thereunder amounted to former jeop- ardy, which constitutes a bar to further prosecution. Carroll v. State (Tex.), 14- 426. d. Burden of proof of identity of offenses. In general. — Where the defendant in a criminal proseciltion pleads a former con- viction for the same offense, the burden is on him not only to prove by record the for- mer conviction, but also to establish the identity of the parties and of the offenses. State V. Pianfetti (Vt.), 9-127. Prosecution for offenses capable of repetition. — In a prosecution for offenses which from their nature are capable of repe- tition, such as a prosecution charging several illegal sales of intoxicating liquors, each separate act being a distinct and substantive offense, Where the defendant pleads a former conviction, the record of the former con- viction does not make out a prima facie case of identity of offenses, and no presumption of identity arises from the fact that evidence sufficient to convict under one prosecution would warrant conviction under the othCr, but the defendant must show affirmatively by proof outside the record that the offenses are one and the same. State V. Pianfetti (Vt.), 9-127. In a prosecution for several illegal sales of intoxicating liquors, where the defendant, after pleading former conviction, merely in- troduces the record of such conviction and offers no evidence of the identity of the of- fenses, it is not erroneous for the trial court to direct a verdict against the defendant on the issue raised by his plea. State v. Pian- fetti (Vt.), 9-127. e. Pleading. Necessity of pleading former jeop- ardy. — Ordinarily former jeopardy must be pleaded in bar of further prosecution, and such plea must be i«terposed upon arraign- ment before pleading to the merits. If, how- ever, upon a second trial of the same action 600 ANN. CAS. DIGEST, VOLS. 1-20. it be claimed that the accused was put in jeopardy by the first proceeding, and the record itself discloses all the facts, they need not be pleaded anew, or proved aliimde. Upon the question's being raised the court wUl take cognizance of such facts from the record, and determine their proper legal ef- fect as if upon demurrer to a plea reciting them. State v. White (Kan.), 6-132. Sufficiency of plea of jeopardy. — A plea of former acquittal is sufficient which shows on its face that the second indictment is based on the same single criminal act which was the basis of the indictment upon which the defendant was acquitted. State v. Klugherz (Minn.), 1-307. In a criminal prosecution there is no error in overruling a plea in bar on the ground of former acquittal, where it is not averred that the defendant was tried in the former proceeding upon the present charge or any offense included therein, and found not guilty. Price V. United States (U. S.), 13-483. Striking insnfficient plea from rec- ord. — When a plea of former jeopardy does not state facts which constitute a defense, it is not error for the trial court to refuse to direct the jury to find a special verdict on such plea, but it should be stricken from the record of the case. Johnson v. State (Okla.), 18-300. AUoiring defendant to plead over after overmling plea of former jeop- ardy. — In a criminal prosecution, where the issue raised by the defendant's plea of a former conviction is decided against him, he should be allowed to plead over, . whether the prosecution is for a felony or for a mis- demeanor. State V. Pianfetti (Vt.), 9-127. 6. Tbial. a. Jurisdiction of courts. Criminal jurisdiction of justices of the peace, see Justices op the Peace. Criminal jurisdiction of municipal or city courts, see CotrsTS, 2 c (1). Crime committed on federal terri- tory. — Where a criminal offense is com- mitted within the boundaries of land con- veyed to the United States government, the federal courts have jurisdiction of a prose- cution therefor to the exclusion of the state courts. Baker v. State (Tex.), 11-751. Defendant nnlairfnlly brought iritli- in jurisdiction. — A court having before it a person charged with a crime committed within its jurisdiction is not deprived of jurisdiction by the fact that the defendant has been forcibly and unlawfully brought from a foreign jurisdiction. Ex p. Davis (Tex.), 14-522. Original jurisdiction of superior court. —The Connecticut statute (Gen. St., § 1480) authorizing an original information in the superior court in any case in which an inferior court may, at its discretion, pun- ish the defendant or bind him over for trial, merely enables the state's attorney to file an original information in the superior court in the class of cases mentioned, and does not ap- ply to cases in which the inferior courts form- erly had discretionary power to punish or bind over, but which were afterwards com- mitted to the exclusive jurisdiction of the superior courts. State v. Fox (Conn.), 19^ 682. b. Place of trial. OfPenses against United States. — There is no principle of constitutional law which entitles one guilty of an offense against the United States to be tried in the place of his residence. The right secured by article III, § 2, of, and the sixth amendment to, the Constitution is the right of trial in the dis- trict where the crime is committed. Haas v. Henkel (U. S.), 17-1112. Election betiveen indictments in dif- ferent districts. — Where federal grand juries in different districts have found in- dictments against the same person for the same offense against the United States, it is the duty of the prosecuting ofiicer of the United States to determine in which district the offense was most probably committed and bring the offender to trial there. Thus, if the place of the formation of an alleged conspir- acy is doubtful, and there are some facts pointing to one district and some to another, and indictments have been returned in each, it is the plain duty of the prosecution to take steps to bring the case to trial in the district to which the facts more strongly point. Haas V. Henkel (U. S.), 17-1112. Where an offense against the United States is committed by the same person or persons in more than one district, as where it is in- itiated in one district and consummated in another, it is cognizable in either district, but if the offender is indicted in more than one district, there must be an election by the prosecuting attorney as to where he shall be tried, and if the election requires the ar- rest of the accused in a district other than that in which the trial is to be had, removal proceedings must be instituted. Haas v. Henkel (U. S.), 17-1112. Under the statute providing that one may be indicted for homicide in either the county where the blow was inflicted or the county where the death occurred, the entire trans- action may be averred as having taken place in the county where the indictment is found, and such indictment will be sustained by proof that either the act was committed or its effect occurred in such county. Coleman V. State (Miss.), 1-406. Under the statutory provision that where an offense is committed partly in one county and partly in another, the jurisdiction to punish shall be in that county which shall first begin the prosecution, a defendant who has been indicted for murder in the county where the death occurred cannot subsequently be indicted in the county where the blow was struck, though the first indictment has been dismissed and there is no contest between the courts of the two counties as to the juris- diction. Coleman ». State (Miss.), 1-406. Under the Kentucky statute where a per- son is arrested in one county under a war- CKIMINAL LAW. 601 rant charging him with shooting another in such county with intent to kill, and the ac- cused is admitted to hail and subsequently the person shot dies in another county, where- upon the accused is arrested in the latter county on a, charge of homicide and com- mitted without bail, and thereafter the ac- cused is indicted for homicide in the former county, but is not indicted in the latter county, the courts of the former county have exclusive jurisdiction to try the accused for homicide. Commonwealth i\ Jones (Ky.), 4-1192. Removal prooeedings. — Where a per- son has been indicted in two districts for an offense against the United States, and a pro- ceeding is brought in one of such districts to arrest and remove him to the other district for trial, the duty of the United States com- missioner before whom the proceeding is brought is limited to the determination of the single question whether a prima facie case is made that the accused has committed an offense against the United States indictable and triable in the district to which a removal is sought. There is no discretion reposed by the statute when such a case is made out, but the duty of the commissioner to detain the accused, and of the judge of the district to issue the warrant for his removal is man- datory. Haas V. Henkel (U. S.), 17-1112. Where a person has been indicted in more than one district for an offense against the United States, and a proceeding is brought in one district to procure his removal to an- other district for trial, the introduction of the indictment found in the district to which a removal is sought makes out a prima facie case on the part of the prosecution, and such prima facie case is not overcome by the in- troduction of the indictment found in the district where the application is made. Haas V. Henkel (U. S.), 17-1112. The fact that a person who has been in- dicted in more than one district for a crime against the United States, has given bail in one district does not prevent his removal to another district for trial, if a proper case for removal is made out in other respects. In such a case the sureties on the bail bond are exonerated by act of the law. Haas v. Henkel (U. S.), 17-1112. If unreasonable delay should result from continuances due to an election by the prose- cution to try a person accused of crime against the United States in another dis- trict, the accused might be entitled to re- lief on habeas corpus, but such a possibility affords no legal reason for denying an appli- cation to remove the accused to another dis- trict for trial. Haas v. Henkel (U. S.), 17- 1112. c. General rights of accused with regard to trial. (1) Speedy trial. Kight to speedy trial, see also Constitd- TIOTTAL IjAW, 11. Wliat constitutes. —A speedy trial with- in the meaning of the constitutional provis- ion, is a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppres- sive delays. Any delay caused by the opera- tion of rules of law does not work prejudice to the constitutional right of the accused in that regard. State v. Keefe (Wyo.), 17-161. Under Kansas statute. — The terms of court which intervene pending an appeal by the state in a criminal action are not to be counted in determining whether a person under indictment and held to bail is entitled to be discharged under the Kansas statute because not brought to trial before the end of the third term of court after indictment found or information filed. State v. Camp- bell (Kan.), 9-1203. TJnder Wyoming statute. — The legis- lature of Wyoming has determined by statute (Rev. St. 189«, § § 5282, 5283, 5284) what, in certain cases at least, is to be regarded as a speedy trial within the meaning of the con- stitutional requirement in that state. As to a defendant indicted or charged by informa- tion and committed to prison it is in effect declared that a speedy trial means a trial before the end of the second term of court after indictment found or information filed, unless the delay shall happen on the prison- er's application, and that as to a defendant out on bail it means a trial before the end of the third term of court, unless the delay happens on his application, or for want of time to try the case; and unless in either case upon an application of a defendant for dis- charge the court is satisfied, notwithstanding the lapse of such terms that there is material evidence for the state not then obtainable, but which the prosecution has made reason- able exertions to obtain, and that there is just ground for believing the same obtainable at the succeeding term, in which event the court is authorized to grant a continuance and remand or admit the defendant to bail. State V. Keefe (Wyo.), 17-161. Accidental delays. — Although the Wyo- ming statute determines what is to be re- garded generally as a speedy trial within the meaning of the constitution, it is doubtless true that the discharge of the accused in a given case may be prevented by certain acci- dents or unforseen circumstances not specific- ally mentioned in the statute, such as the illness of the judge, or any other occurrence which renders the holding of a term of court impossible. Where there have been legisla- tive enactments reasonably adapted to secure a speedy trial, the constitutional guaranty cannot operate to discharge the accused, be- cause of the failure to foresee and provide specifically for every contingency which may occasion delay. State v. Keefe (Wyo.), 17- 161. Bight of oonvict imprisoned for an- other offense. — Upon an application for the discharge of a person accused of crime, on the ground of delay in prosecution, where it appears that the information against the accused has been pending for more than four years without being brought to trial, it is no defense for the state to show that, for al- 602 ANN. CAS. DIGEST, VOLS. 1-20. most the whole of the period in question, the accused has been confined in the state penitentiary under conviction for another offense. The constitutional provision guar- anteeing a speedy trial to persons accused of crime, and the statute requiring persons under indictment to be brought to trial, ex- cept in certain contingencies, within two terms of the court after the finding of the indictment, both apply to a person confined in the state penitentiary for another offense, as fully as to any other person accused of crime. State v. Keefe (Wyo.), 17-161. Assuming, without deciding, that the court cannot order the production before it, for trial, of a person who is imprisoned in the state penitentiary for another offense, still, where two indictments for separate offenses are contemporaneous, there is nothing to pre- vent the state from bringing the accused to trial on both indictments before he is sen- tenced to imprisonment under either, and where it fails to pursue that course, the con- sequent delay in bringing the second indict- ment to trial must be attributed to its own action rather than to any fault of the ac- cused. State V. Keefe (Wyo.), 17-161. Delay of four years. — A delay of four years in bringing an indictment or informa- tion to trial, constitutes a violation of the constitutional right of the accused to a speedy trial, in the absence of any valid excuse for such delay. State v. Keefe (Wyo.), 17-161. Waiver of right. — The constitutional right to a speedy trial in criminal cases may be waived, as by consent to continuances; or the privilege of insisting upon the right may be lost for a time, as where the accused escapes from prison or becomes a fugitive from justice. State v. Keefe ( Wyo. ) , 17-161. (2) Public trial. What constitutes violation, of right. — An order made by the Ohio court of com- mon pleas during the trial of an indictment for felony, to the effect that in view of the testimony expected to be given by the wit- nesses next to be called the court will con- tinue the trial, during the taking of the testimony of the witnesses likely to give im- moral or obscene testimony, in a small court room, and that the sheriff shall admit no one to such room except the Jury, the defend- ant's counsel, members of the bar, newspaper men, and one other person, a witness for the defendant, exceeds the power of the court in the premises, and its enforcement is a denial to the defendant of his constitutional right to a public trial. State v. Hensley (Ohio), 9-108. Under the Oregon constitution (art. 1, § 11), declaring that, "in all criminal prose- Butioas the accused shall have the right to public trial," it is error for the court, in a prosecution for assault vrith intent to rape, to exclude from the court room all persons, except the defendant, the attorneys engaged in the trial, the jury and officers of the court, and the witnesses while on the stand. State V. Osborne (Ore.), 20-627. Presumption that order of ezoluaiom was enforced. — In the absence of a show- ing to the contrary, it is presumed that an order excluding the public from the CQUit room during a criminal trial was enforced. State V. Osborne (Ore.), 2a-«27. Presumption pf prejudice. — The error of excluding the public from the court room during a criminal trial is, in the absence of a showing to the contrary, presumed to have prejudiced defendant. State v. Oabome (Ore.), 20-627. (3) Time to prepare for trial. North Dakota statute. — Under the North Dakota statute, the right of the de- fendant in a criminal case to one day's time for preparation for trial, after the plea is entered, is absolute if requested in time. State V. Chase (N. Dak.), 17-520. AVhen request for time should be made. .— The statute giving the defendant in a criminal case one day's time to prepare for trial after plea, does not prescribe when the request for time shall be made, but a reasonable construction thereof is that the request should ordinarily be made imme- diately after plea, and before any other step preliminary to the trial is taken. State r. Chase (N. Dak.), 17-520. A judgment of conviction in a criminal case will not be reversed because of the ac- tion of the trial court in denying the defend- ant's request for one day's time in which to prepare for trial, where it appears that the request was not made until after the plea had been entered and the trial called and four jurors called into the box. State v. Chase (N. Dak.), 17-520. Whether a request for time to prepare for trial is made ifl time may depend in some cases upon special circumstances, and in such cases the action of the trial court is entitled to great weight, and will not be disturbed on appeal, except in case of manifest abuse of discretion. State v. Chase (N. Dak.), 17- 520. W^aiver. — The statutory right of the de- fendant in a criminal case to one day's time in which to prepare for trial is waived where the request therefor is not made in time. State V. Chase (N. Dak.), 17-520, (4) Right to be present during trial. Presumption on appeal. — Under the Missouri statute where the record on appeal in a criminal cause shows that the defendant was present at the impaneling of the jury, it will be presumed, in the absence of all evidence to the contrary, that he was present during the whole trial. State v. Temple (Mo.), 5-954. An entiy in the record of a criminal case that the defendant demurred to the state's evidence at the close thereof shows his pres- ence in the court at such time, from which it will be presumed, in the absence of evi- dence to the contrary, that he was present during the whole trial. State v. Brock (Mo.), 2-768. CRiiUlExVL LAW. 603 Presence at view liy jury. — A view by the jury of the scene of the crime on motion of the defendant's counsel, taken without the presence of the accused or his counsel, is not prejudicial or in violation of any constitu- tional right of the accused, where no witness attends or testifies at the taking of the view and the jurors are previously instructed not to talk among themselves or with any other person on any subject connected with the trial of the case. Elias i". Territory (Ariz.), 11-1153. (5) Right to be free from shackles. When not violated. — A conviction for an assault with intent to kill will not be re- versed on the ground that the sheriff placed handcuffs on the defendant for the purpose of conducting him to and from the court house and jail, where it appears that the handcuffs were removed during the conduct of the trial and where the sheriff's affidavit shows that the defendant was known to he a desperate and dangerous criminal; and this is so though the jurors, or some of them, saw the defendant in the handcuffs. State v. Temple (Mo.), 5-964. (6) Eight to confront witnesses. What constitntes denial of right. — The defendant in a criminal prosecution is directly denied the right of being confronted with the witnesses against him, and is de- prived of a full opportunity to defend him- self, where the court permits the prosecuting attorney to furnish a paper to a witness for the prosecution and allows the witness to testify from and by that paper without hav- ing previously exhibited it to the defendant on his demand. Morris V. United States (U. S.), 9-558. Testimony of absent ivitness on former trial. — Where a witness against the defendant in a criminal case is beyond the reach of process, the testimony given by him at a former trial may be introduced, the accused having previously had opportunity to confront the witness. State v. Nelson (Kan.), 1-468. Witness ill beyond hope of recovery. — Notwithstanding the constitutional right of the accused in a criminal prosecution "to meet the witnesses face to face," it is com- petent to prove on the trial of a criminal prosecution the testimony given on the pre- liminary examination by a state's witness who is critically ill with no hope of recovery or of ever being able to appear as a witness in the case. Spencer v. State (Wis.), 13-969. Proof by testimony of examining magistrate. — The testimony of the exam- ining magistrate as to what an absent wit- ness's testimony was on the preliminary examination is not open to the objection that the magistrate does not give the testimony from his recollection and that his minutes of the testimony are read in evidence, where the magistrate is put on the stand and testi- fies that he took down the testimony fully and accurately, which is incorporated in the return, and that by using the return he can state what the witness testified to, and then proceeds to state what the witness's testi- mony was, using the return to refresh his recollection. Spencer v. State (Wis.), 13- 969. Qnalifioation of right. — The constitu- tional right of a person accused of crime to be confronted with the witnesses against him (Const. Mont., art. 3, § 16) is qualified by the provision (section 17) for taking and using depositions in criminal cases. State v. Vanella (Mont.), 20-398. Burden of proof of denial of right. — The right of the defendant in a criminal case to be present at the taking of a deposi- tion to be used against him is merely a per- sonal privilege, and the burden is on him to show that the privilege was denied him be- fore he can complain. The officer taking the deposition is not required to note his pres- ence or absence. State v. Vanella (Mont.),, 20-398. Waiver by stipulation. — The constitu- tional right of a person accused of crime to be confronted with the witnesses against him (Const. Mont., art. 3, § 16) is a personal privilege and is waived where a deposition is taken by stipulation instead of following the mode prescribed by law, and is used without objection. State v. Vanella (Mont.), 20- 398. (7) Eight to cross-examine witnesses. Existence of right. — The provision of the Alabama constitution (art. 1, § 6) that the accused in a criminal prosecution has the right " to be confronted by the witnesses against him," imports the privilege on his part of cross-examining the opposing wit- nesses. Wray «'. State (Ala.), 16-362. WTiat constitntes denial of right. — A constitutional requirement that the ac- cused in a criminal case shall have the right to cross-examine the witnesses against him, is not satisfied by a mere formal proffer of an opportunity for such cross-examination, where the surrounding circumstances are such that the accused cannot effectively avail him- self of the right. Wray v. State (Ala.), 16- 362- On the trial of a criminal case, where the physical condition of a witness called and examined by the state is such, by reason of extreme illness, as to make it probable that a cross-examination would result in his death, the defendant is justified in refraining from any attempt at cross-examination, even though an opportunity therefor is formally proffered by the trial judge, and imder such circumstances the denial of a motion by the defendant to strike out material testimony elicited from the witness on direct examina- tion, constitutes reversible error. Wray v. State (Ala.), 16-362. d. Continuance. (1) In general. Discretion of trial court. — The grant- ing or refusal of a continuance in a criminal 604 ANN. CAS. DIGEST, VOLS. 1-20. prosecution rests in the sound discretion of the trial court, and a ruling of that court will not be reversed by the appellate court except for the most cogent reasons. State V. Phillips (S. Dak.), 5-760. There is no rule of law or practice that when a bill of indictment is found at one term the trial cannot be had until the next term, but the granting or refusal of a con- tinuance is a matter within the discretion of the trial judge, and the exercise of that dis- cretion will not he reviewed, except upon a showing of gross abuse. State v. Sultan (N. Car.), 9-310. Bight of accomplice who has turned state's evidence. — An accomplice in a criminal case who has testified fully and truthfully as a witness for the state concern- ing the whole matter charged, under an agree- ment or understanding with the prosecuting officer, approved by or known to the court, that he shall be immune from further prose- cution, has an equitable right to a continu- ance of the cause pending an application to the executive for a pardon, in ease the state's attorney fails or refuses to enter a nolle prosequi; but such agreement for immunity cannot be pleaded in bar of the prosecution where the state's attorney refuses to recognize it. Lowe V. State (Md.), 18-744. 'When properly refused. — It is proper to refuse a motion for a continuance in a criminal cause, made by the defendant upon a nolle prosequi of the indictment and the procurement of a new indictment by the prosecuting attorney, where the purpose of the prosecuting attorney is to procure a more specific charge in the indictment on the same facts relied on for a conviction under the former indictment, and the defendant is not thereby taken by surprise or required to make additional proof. O'Donnell v. People (111.), 8-123. Effect of absence of accused on ad- journed day. — Where after the introduc- tion of the evidence in a prosecution for the illegal sale of intoxicating liquor, the case is, in the presence of the accused and his coun- sel, adjourned to another day, the absence of the accused and his counsel on the adjourned day does not deprive the magistrate of the power to receive evidence of the prior con- viction of the accused and to convict him as of a second offense. Rex v. Leach (Can.), 14-580. Review of discretion on appeal. — An application for a postponement or a continu- ance is addressed to the sound judicial dis- cretion of the trial court, and the ruling of such court either granting or denying such application will not be disturbed by an ap- pellate court, unless an abuse of this discre- tion is clearly shown; but where such an abuse is manifest, especially in a criminal case, it is the duty of an appellate court to interfere, in the furtherance of justice. Clinton v. State (Fla.), 12-150. When an application for a continuance is based on the ground of want of time in which to prepare for trial, and it appears that the indictment against the defendant has been pending for six or seven weeks during which time the defendant has been represented by counsel, the application is addressed to the sound discretion of the court, and his action is not subject to review, in the absence of a showing of abuse of this discretion. Johnson V. State (Okla.), 18-300. The denial of the defendant's motion for continuance in a murder ease held to have been in abuse of discretion in view of the facts shown by the moving affidavit. Allen V. Com. (Ky.), 20-884. (2) On account of absence of witnesses. Discretion of court. — The postpone- ment of a criminal trial to enable the de- fendant to procure the testimony of an absent witness is wholly in the discretion of the trial court, under a statute which provides that " if the court or judge to whom the ap- plication is made is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a com- mission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a. specified time ... ; or the case may be continued." State v. Pirkey (S. D.), 18- 192. When properly refused in general. — The refusal of a continuance to procure the testimony of an absent witness as to a cer- tain transaction is a proper exercise of dis- cretion, where the opposing affidavits show that no such person as the one named in the application was present at the transaction in question. State v. Pirkey (S. D.), 18-192. Witness not subpoenaed. — < In a crim- inal prosecution it is within the discretion of the trial court to deny the defendant's mo- tion for continuance based on the nonattend- ance of material witnesses who have promised to attend but whose attendance the defendant has not taken diligent steps to secure by a subpoena. State v. Phillips (S. D.), 5-760. Testimony not material. — A convic- tion for crime will not be reversed for the trial court's refusal to grant the defendant's application for continuance based on the ab- sence of a material witness, where there is no probability that the appearance and testi- mony of such witness would have had any effect on the result of the trial. State 1). Temple (Mo.), 5-954. Testimony available in form of affi- davit. — In a criminal prosecution it is not error to refuse to grant a continuance on the ground of the absence of a witness, where the affidavit of the accused as to what the absent witness will testify to is admitted as a depo- sition. Hopkins v. Commonwealth (Ky.), 4-957. Improbability of obtaining presence of witness. — There is no abuse of discretion in refusing a defendant's motion for a continuance on the ground of the ab- sence of two witnesses, where the affidavit presented in support of the motion does not show any probability of securing the attend- ance of one of such witnesses at any future CKIMINAL LAW. 605 time to which the cause might be continued, and does not show due diligence on the part of the defendant in attempting to secvire tlie attendance of the other, especially where the cause has already been continued once on ac- count of the absence of such witnesses and it is very questionable whether their testimony would materially aid the defense. Elias v. Territory (Ariz.), 11-1153. Iiaches in procuring attendance. — In a criminal prosecution wherein there have been five continuances and three forfeitures of the appearance bond, the defendant's ap- plication for a continuance on the ground of the absence of witnesses is not entitled to serious consideration by the court where it does not appear that the defendant was dili- gent in summoning all of his witnesses. Wil- liams V. State (Miss.), 15-1026. Sufficiency of papers on application. — When an application for a continuance fails to give the names of absent witnesses, or to state the facts that defendant expects to be able to prove if a continuance is granted him, it is fatally defective. Johnson V. State (Okla.), 18-300. e. Separate trials. 'Wh.ere one defendant has confessed. — Where it rests within the sound discretion of the trial court to grant or refuse an appli- cation for the separate trial of two persons accused of crime, it seems that where the confession of one of such persons is to be used, the prisoners should be tried separately. Rex V. Martin (Ont.), 4-912. f. Election between counts. Prosecution by affidavit and informa- tion. — A prosecution by affidavit and in- formation may be upon more than one count. Knox V. State (Ind.), 3-53». Discretion of trial court. — A request to require the prosecuting attorney to elect upon which count of an indictment or an affi- davit and information he will rely for a conviction is addressed to the discretion of the trial court, and the appellate court will not reverse the ruling in the absence of the abuse of discretion. Knox v. State (Ind.), 3-539. The trial of a defendant on several counts at the same time is discretionary with the court under the Ontario statute (Crim. Code, § § 856, 857 ) which provides that any num- ber of counts for any offenses whatever may be joined in the same indictment, and that each count may be treated as a separate in- dictment, but that " if the court thinks it conducive to the ends of justice to do so, it may direct that the accused shall be tried upon any one or more of such counts separ- ately." Rex t). Hughes (Can.), 19-534. . Under the Colorado statute where the dif- ferent counts of an information against sev- eral defendants relate to the same crime and charge that it was committed by the defend- ants either as principals or accessories, a motion to require the state to elect upon which count it wjll rely for conyictjon is addressed to the discretion of the trial court, whose decision will not be interfered with on review in the absence of a clear showing of an abuse of discretion. Tuttle v. People (Colo.), 3-513. When not required. — Where several counts of an indictment, or of an affidavit and information, are founded upon the same essential facts and arise from one transac- tion, the doctrine of election does not apply. Knox V. State (Ind.), 3-539. g. Necessity for formal accusation. In general. — There can be no conviction or punishment of crime without a formal and sufficient accusation, and in the absence thereof a court acquires no jurisdiction, and if it assumes jurisdiction, the trial and con- viction are a nullity. In re Waterman (Nev.), 13-926. Trial of petty offense. — The constitu- tional declaration that no person shall be de- prived of liberty without due process of law does not contemplate that a petty offender who may be tried summarily without a jury shall be furnished with a, formal accusation or a written statement of the charge pre- ferred against him; it is sufficient that he be given timely information of the nature of the charge and be afforded full opportunity to present a defense. Pearson v. Wimbish (Ga.), 4-501. h. Arraignment. In prosecution for misdemeanor. — In a prosecution for a misdemeanor the fail- ure to arraign the defendant is not an omis- sion which will entitle him to a new trial or require a reversal. State v. Forner (Kan.), 12-703. ' i. Counsel. Special counsel for state. — There is no error in a criminal prosecution in per- mitting special counsel to assist the prose- cuting attorney, in the absence of any showing that such counsel was guilty of misconduct prejudicial to the defendant. State v. O'Brien (Mont), 10-1006. Bight of croirn counsel to reply. ^ Under the Canada criminal code providing that the right of reply in a criminal trial shall always be allowed to the attorney gen- eral or solicitor general or counsel acting on behalf of both or either of them, the crown, represented by counsel, acting on the instruc- tions of the attorney general, has the right of reply though no witnesses have been ex- amined for the defense. Kex v. Martin (Ont.), 4-912. Bight to require defendant's counsel to outline defense. — Under the Washing- ton statute relating to jury trials which pro- vides that the plaintiff must briefly state his cause of action and the evidence by which he expects to sustain it, and that the defend- ant may, in like manner, state the defense and the evidence he expects to offer in support thereof and that it shall be optional with the defendant whether he st^itea hi^ ease he- 606 ANN. CAS. DIGEST, VOLS. 1-20. fore or after the close of the plaintiff's testi- mony, the court, on the trial of a criminal case, may properly require a statement of the defense to be made to the jury at the close of the evidence on behalf of the state. State V. King (Wash.), 16-322. In a prosecution for the alleged commis- sion of a crime, the defendant may waive his opening statement to the jury, but if the court compels counsel, over their objec- tion, to make that statement, the error is without prejudice unless the defendant suffers some disadvantage thereby. Pumphrey ■!'. State (Neb.), 18-979. Improper limitation of time to ad- dress jury as violation of constitn- tional rights. — The constitutional right of a person accused of crime to appear and defend in person and by counsel includes the right to address the jury on the questions of fact which the issues present for determina- tion, and this rule is violated where the trial court limits the time for argument to a period which is too short to allow a full and fair discussion of the facts of the case. State V. Mayo (Wash.), 7-881. Effect of improper limitation. — The power of the court to restrict the argument of counsel for the accused in a criminal case is limited to such control as is calculated to prevent the abuse of the constitutional right to be heard, and where the time limited prevents a full and fair discussion of the case before a jury a new trial will be granted. State v. Kogoway (Ore.), 2-431. j. Pleas. (1) In general. Bight to plead guilty. — In a criminal prosecution the defendant has a right to plead guilty; and the effect of such a plea is to authorize the imposition of the sentence prescribed by law upon a verdict of guilty of the crime sufficiently charged in the in- dictment or information. Pope v. State (Pla.), 16-972. Necessity that plea be voluntary. — A plea of guilty should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misap- prehension, persuasion, promises, inadvert- ence, or ignorance. Pope v. State (Fla.), 16-972. Effect where indictment is defective. — The effect of a plea of guilty amounts only to an admission of record of the truth of whatever is sufficiently charged in the indict- ment and does not prevent the defendant from taking advantage by writ of error of defects apparent of record. State v. Kelley (Mo.), 12-681. Explanation of effect to accused. ^ Under the Illinois statute providing that in a criminal prosecution a plea of guilty can be entered only after the defendant has' been fully advised by the court of his rights and of the consequences of entering the plea, a mere inquiry by the court of the defendant whether he understands that if he pleads guilty the court will sentence him to the penitentiary, is not a sufficient explanation to the defendant of his rights and of the consequences of the plea. Krolage v. People (111.), 8-235. Flea that name of foreman of grand jury not signed to indictment. — Al- though a plea alleging that the name of the foreman of the grand jury was printed in- stead of being signed on the indictment is demurrable, the question of the sufficiency of the plea should be presented in accordance with the rules of pleading, and the court should not of its own motion overrule such plea. Coburn v. State (Ala.), 15-249. (2) Right to withdraw plea of guilty. When permission should he granted. — The withdrawal of a plea of guilty should not be denied in any criminal prosecution, where it is evident that the ends of justice will be subserved by permitting the substi- tution of the plea of not guilty. Krolage v. People (111.), 8-235. When permission is properly refused. — Where a defendant has deliberately pleaded guilty to a criminal charge under circum- stances that should reasonably have prompted him and his counsel to be prepared to meet the charge, and no motion is made for leave to withdraw the plea of guilty until after the state witnesses have been discharged, and there is no direct allegation or proof that the plea was entered under mental weakness, mistake, svirprise, misapprehension, fear, promise, or other circumstances that put the defendant at a, disadvantage in protecting his rights, the discretion of the trial court is not shown to have been abused in refusing permission to withdraw the plea of guilty. Pope V. State (Fla.), 16-972. Flea entered unadvisedly. — A defend- ant should be permitted to withdraw a plea of guilty given unadvisedly when application therefor is duly made in good faith and sus- tained by proofs, and a proper offer is made to go to trial on a plea of not guilty. Pope V. State (Fla.), 16-972. The defendant in a criminal prosecution should be permitted to withdraw his plea of guilty when unadvisedly given, where any reasonable ground is offered for going to the jury; and while this is a matter within the discretion of the court, the discretion is a judicial one which should always be exercised in favor of innocence and liberty. Krolage V. People (111.), 8-235. Discretion of court to refuse per- mission; — Under the Illinois statute the defendant in any criminal prosecution may enter a plea of guilty, and if the plea is understandingly made' the trial court may, in the exercise of sound legal discretion, re- fuse permission to withdraw it. Krolage i'. People (111.), 8-235. Bevieiv of discretion on appeal. — While the trial court may exercise discretion in peimitting or refusing to permit a plea of guilty to be withdrawn for the purpose of pleading not guilty, yet such discretion is subject to review bv an appellate court, Pope V. State (Fla.)," 16-072. CRIMINAL LAW. 607 The law favors trials on the merits; and if the discretion of the trial court is abused in denying leave to withdraw a plea of guilty and to go to trial on the merits, the appellate court may interfere. Pope v. State (Pla.), 16-972. k. Change of judges. Bight to change judges after com- mencement of trial. — Under the Arkansas constitution (art. 7, § 22), authorizing a tem- porary exchange of circuits by the circuit judges, and the statute (Kirb. Dig., § 1322) providing that on such an exchange each judge shall have the same powers and au- thority as the other had, it is proper for a judge after commencing a criminal trial to exchange circuits with another judge, where the one vacates the bench and the other immediately occupies it and presides during the remainder of the trial. York v. State (Ark.), 18-344. 1. Discharge of jury. Tot misconduct of spectator. — The misconduct of a spectator, in open court, dur- ing the progress of a murder trial, furnishes no ground for the discharge of the jury, unless it be of such a nature as to have necessarily influenced the verdict of convic- tion. State*. Wimby . Oklahoma (U. S.), 17- 868. Confession obtained by persistent questioning;. — Where it appears from the uncontradicted testimony that although the accused was questioned persistently by the ofBcers who had him in custody, he was not threatened and no other compulsion was exer- cised over him in order to obtain a confession from him, it is not error to refuse to charge that the jury must be satisfied that the con- fession " has not been procured by inquisi- torial compulsion or other improper means." People V. Rogers (N. Y.), 15-177. Confession obtained by artifice or de- ception. — A voluntary confession, unin- fluenced by threats or promises, is generally not rendered inadmissible by reason of the fact that it was obtained by artifice or de- ception. Rex V. White (Can.), 15-272. Voluntary confessions made by a prisoner, in custody on the charge of assault with in- tent to kill, in reference to the key of the victim's house and in reference to the club which the prisoner said he had used in mak- ing the assault, and admissions of guilt made by the prisoner during conversations with his father and his codefendants, are not rendered inadmissible by reason of the fact that such confessions and admissions were the result of a false statement made by a police officer to the defendant that his codefendant bad " done some talking " about the matter. Rex r. White (Can.), 15-272. Dnress exercised upon accomplice. — In a criminal prosecution it is no ground for excluding a confession which the trial court has found to have been made volun- tarily by the defendant, that duress was used to extort confessions from the defendant's ac- complices, where no eflfort is made to show that such duress was exercised in the pres- ence or with the knowledge of the defendant, or that the accomplices were cognizant of any duress upon the defendant. State v. Ruck (Mo.), 5-976. (bb) Confessions to police officers. In general. — Statements made to a police officer by the accused when made freely and voluntarily and not through any inducement held out by the officer are admis- sible in evidence against the accused. Hanl- mons V. State (Ark.), 3-912. In a criminal prosecution, statements made by the accused to police officers before being charged with any crime and not resulting from threats or inducements are admissible in evidence. State v. Royce (Wash,), 3-351. Statements voluntarily made to officers by a defendant after her arrest and after a caution are admissible in evidence. Com. v. Richmond (Mass.), 20-1260. Statements made by a person while in cus- tody as to the circumstances attending the killing of an officer while the afflcer was at- tempting to make the arrest are admissible in evidence on the trial of an indictment for killing the officer as confessions, when the prisoner was, at the time, being kindly treated, was perfectly soimd in mind, and no inducements were offered or threats made. State o. Horner (N. Car.), 4-841. In a prosecution for the larceny of a horse and buggy, testimony by the sheriff and a witness to the effect that the defendant at the time of his arrest and after his confine- ment in jail made statements admitting that he took the rig into his possession and drove it away, is admissible where the evidence as to the circumstances existing at the time the statements were made discloses nothing in the nature of any promise that it would be for the benefit of the prisoner to make the statements or that the statements, if made at all, were made otherwise than voluntarily. Stoddard v. State (Wis.), 13-1211. Statutory -warning. — To render admis- sible in evidence statements made by an ac- cused to an officer, while under arrest, not only must the statutory warning be given but the statements must be freely and voluntarily made. Parker v. State (Tex.), 3-893. Confession in presence of third per- son. — It is within the discretion of a trial court to admit in evidence a confession made to an officer in the presence of a third person, where the evidence shows that the officer offered no reward or inducement and made no threat to procure the confession, and there is no evidence as to any act done by the third person wrongfully to induce or procure the making of the confession. Richardson v. State (Ala.), 8-108. (cc) Preliminary proof as to admissibility. Necessity. — Where a paper alleged to be a written confession by the defendant in a criminal prosecution is offered against him, and he objects to its admission and offers to prove at that stage of the trial that the paper was procured from him by such threats or promises or under such other circum- stances as, if established, would render it in- admissible. It is error to admit the paper without first receiving and considering the evidence thus offered against its admissibil- ity. People V. Rogers (N. Y.), 15-177. But where, before a confession is admitted, evidence is introduced by the prosecution tending to show that the confession was made voluntarily, and although the defendant ob- eets to the admissibility of such confession. CKIMINAL LAW. 617 he fails to offer to prove that it was improp- erly obtained before the objection to the ad- missibility of the confession is passed upon, it cannot be said that he is deprived of his right to introduce evidence against the ad- missibility of such confession. People v. Rogers (N. Y.), 15-177. Right of defendant to contradict preliminary proof. — On an objection by the defendant to evidence of a confession made by him, the state must introduce some evidence tending to show that the confession was voluntary, and before the court deter- mines whether that fact is established prima facte by the evidence given, the defendant must be allowed an opportunity of cross-ex- amining the witnesses who testify in regard thereto; but the defendant is not entitled as a matter of right to offer evidence to con- tradict the preliminary proof offered by the prosecution. State v. Wells (Utah), 19-631. Duty of court. — The ultimate question of the voluntariness of a confession is for th6 jury, but before evidence of the confession is given to the jury over the defendant's ob- jection, the court must determine that there is sufficient evidence to show prima facie that it was voluntary. State v. Wells (Utah), 19-631. Sufficiency. —In a criminal prosecution where the trial court, after excluding the jury from the court room, hears evidence to ascertain whether a confession made by the defendant is admissible, the mere fact that the defendant testifies that he made his con- fession through fear and under duress is not, of itself, sufficient to overcome the prima facie case and the testimony of the officer to Whom the confession was made that it was made voluntarily. State v. Ruck (Mo.), 5-976. (c) Rebuttal or impeachment. Rlg&t to rebut. — A confession in a criminal case, unless it is an admission by plea, is merely evidence which may be re- butted the same as any other evidence; and consequently in a prosecution for poisoning a horse, where there is evidence on behalf of the people that the defendant has confessed the commission of the crime, and has stated that he procured the poison from a certain mercantile establishment, but the making of the confession is denied by the defendant, it is error to exclude evidence, offered in his behalf, to prove that the establishment in question did not keep the poison mentioned in the allei^ed confession. Jaynes v. People (Colo.), 16-787. Impeaclinient by proof of insanity. — In a criminal case, where it is shown that the defendant has confessed the commission of the crime charged, he has the right to show that at the time of making the con- fession he was of unsound mind, and the exclusioli of evidence offered by him for that purpose constitutes reversible error. State V. Berbericlc (Mont), 16-1077. In silch a case it is permissible for wit- nesses who have been acquainted with the defendant for some time to testify whether, in their opinion, the defendant was weak- minded at the time when they knew liim, that being a matter to be considered by the jury in determining what weight should be given to his confession, and the exclusion of evidence offered by the defendant upon that point constitutes error. State v. Berberick (Mont.), 16-1077. In such a case it is not error for the trial court to permit an officer who has had the eustody of the defendant for some months prior to the trial, to testify that, in his opin- ion, the defendant is sane. State v. Ber- berick (Mont.), 16-1077. Proof of coercion or improper in- ducements. — In such a case, evidence as to the circumstances attending a confession made by the defendant, examined and held insufficient to show that such confession was procured by coercion or improper induce- ments. State V. Berberick (Mont.), 16-1077. ( d ) Corroboration. When unnecessary. — The rule that a confession by the defendant in a criminal case, unless made in open court, does not warrant a conviction, in the absence of other proof that the crime has been committed, does not apply to a, confession made by the defendant on his preliminary examination be- fore the examining magistrate. Such a con- fession is a judicial confession, or confession in Open court, within the meaning of the law which holds such confessions alone to be suf- ficient to warrant a conviction. Skaggs v. State (Ark.), 16-622. Sufficiency. — On an indictment for ac- cepting a bribe while serving as a juror, the extra-judicial confessions of the defendant are sufficiently corroborated to warrant a conviction where the fair import of the con- fessions is that the bribe was given to the defendant for the purpose of having him ren- der a verdict against the validity of the will which was being contested, and there is inde- pendent evidence tending to show that the defendant was a juror in the case, that the person alleged to have given the bribe was employed in behalf of the contestants of the will to look up witnesses and jurors, and to assist otherwise in the preparation of the case, and that the verdict was against the will and in favor of the contestants, though such independent evidence is wholly insuffi- cient of itself to warrant a conviction. Com- monwealth V. Killion (Mass.), 10-911. Instructions. — On the trial of a crim- inal case, where the jury have been instructed that a verdict of guilty cannot properly be rendered upon the confession of the defendant unless corroborated by other evidence, a further instruction that they are to treat and consider any confession proven to have been made by the defendant precisely as other testimony, and to act upon it as the truth if they believe it to be true, does not present reversible error as authorizing a conviction upon the uncorroborated confession of the de- fendant. Jaynes r. People (Colo.), 16-787. 618 ANN. CAS. DIGEST, VOLS. 1-20. (e) Whole or part of confession. Confession of tiro crimes. — Where two crimes are referred to in the same con- fession, the entire confession is admissible although the defendant is charged with hav- ing committed only one of the crimes, and evidence corroborative of the statements con- tained in the confession is admissible not only as to the commission of the crime for which the defendant is being tried, but as to the commission of the other crime, if such evi- dence tends in some degree to show that he committed the crime for which he is being tried. People v. Rogers (N. Y.), 15-177. 'When part is admissible. — In a prosecution against a Chinaman for murder, the fact that a witness who testifies as to a confession made by the defendant did not un- derstand everything which the defendant said to him does not render incompetent what he did vmderstand, where the court warns the jury as to the caution to be exercised respect- ing evidence of this character. State v. Lu Sing (Mont.), 9-344. (f) Of defendant against self and co-defend- ant. Iiimitation as evidence. ^ Upon the trial of two persons for a crime, a statement or confession of one which tends to incrimi- nate the other is properly admitted in evi- dence when the jury are cautioned that it is evidence only against the defendant who made it. Rex v. Martin (Ont.), 4-912. Adinissibility against codef endant. — The appellant and another person were ar- rested on a charge of burglary. The appel- lant's fellow prisoner thereupon made a vol- untary statement to a police officer, confessing his guilt and implicating the appellant in that and other burglaries, and the statement was taken down in writing and signed by him. Subsequently the two prisoners were placed together at the police station, and after being duly cautioned they were charged with the burglary. A police officer then read over the above-mentioned statement to both pris- oners, and the appellant denied the truth of the whole of it. At the trial the appellant's fellow prisoner pleaded guilty to the indict- ment, and the trial proceeded against the ap- pellant. The prosecution tendered in evidence the statement which had been read over in the appellant's presence, when it was objected that such a statement could only be admis- sible as evidence against the appellant if there had been an admission by him of the truth of the whole or some part of it, and that, as he had denied its truth, it was not admissible. The statement was admitted, and the appellant was found guilty. It was held that, notwithstanding the appellant's denial of the truth of the allegations contained therein, the statement was admissible against him. Rex v. Thompson (Eng.), 18-272. (g) Weight and sufficiency. Qnestion for jury. — In order for an extra-judicial confession to be admissible against the party making it, it must have been freely and voluntarily made. When so made it should stand like any other declara- tion made by a party to a cause, leaving the jury to judge from all the circumstances, including the nature of the offense, how much if any weight shall be given to it. Common- wealth V. Killion (Mass.), 10-911. Instruction. — An instruction is proper which tells the jury, in substance, that they are to treat the confession alleged to have been made by the defendant precisely as they would any other testimony in the case; that they are not bound to believe as true the statements contained therein, but may give to them such weight as they find proper in view of all the other facts and circumstances appearing on the trial; and that, in deter- mining the weight to be given to the con- fession, they may take into consideration all the circumstances under which the same was made, including the age, mental condition, intelligence, lack of intelligence, character, disposition, and experience of the defendant, the fact that he was under arrest at the time when the confession is alleged to have been made, the statements, threats, or promises, if any, made to him at the time, and all the other attending circumstances. State v. Ber- beriek (Mont.), 16-1077. (h) Permitting written confession in jury room. Written confession nnder oath. — It is not error for the court to permit the jury to have in their possession during their de- liberations a written confession of the ac- cused under oath in which he admits the crime charged against him and the commis- sion of other crimes. State v. Knapp ( Ohio ) , 1-819. o. Comments by court. Bight to comment on evidence. — It is* a settled rule of criminal law in this state that a trial judge may express to the jury his own views with respect to the value of the testimony and the inferences to be drawn from it. State v. Bertchey (N. J.), 18-931. In a criminal prosecution wherein the de- fendant excepted to an alleged expression of opinion by the trial judge upon issues of fact, in contravention of the Maine statute, held that a careful examination of all of the exceptions relating to the comments of the trial judge upon the testimony and the con- duct and appearance of witnesses, and the language of the instructions in the charge to the jury, fails to disclose any exceptionable violation of the statute. State v. Lambert (Me.), 15-1055. Comment on facts. —In a criminal trial- a remark by the court, in requiring the de- fense to make a preliminary statement of its case to the jury, that "the nature of the case is such that I think the jury ought to know how you intend to meet the state's case," is not such a comment upon the facts as, standing alone, will justify a reversal of a judgment of conviction. State v. King (Wash.), 16-322. CRIMI]!^AL LAW. 619 What 0O3istitiites oommeut on guilt ox accused. — A trial judge does not in- dicate his views as to the defendant's guilt or as to any fact in issue, by stating, in reply to a question by a juror as to the necessity of certain questions on the cross- examination of the prosecuting witness, that the court cannot rule on testimony that is not objected to. State v. Aker (Wash.), 18- 972. Disparaging defense in ruling on in- struction. — On a criminal trial, where there is some evidence in support of the de- fense of an alibi, it is reversible error for the trial court, in answer to a request by the defendant's counsel for a charge upon that subject, to indulge in remarks which may be interpreted as disparaging such defense, or which are based upon the assumption that the jury already knows the eflfect of the proof upon that point. State v. King (Wash.), 16-322. Ruling on admissibility of evidence. . — In a criminal prosecution, a casual remark by the trial judge, in ruling on the evidence offered by the defendant, that the evidence is admitted for " what it is worth," is not erroneous as an expression of opinion as to the weight of the evidence. State v. Fuller (Mont.), 9-648. Commenting on nonprodnotion of documents by defendant. — ' It is re- versible error for the judge in a criminal case to comment adversely on the failure of the defendant to produce documents in his possession, such remarks being in derogation of the defendant's right to furnish no evi- dence in aid of the prosecution. Hibbard v. V. S. (U. S.), 18-1040. Manner of making comments as re- viewable on appeal. — Remarks harmless in themselves, made by the judge on the trial of a criminal case, are not assignable as error on the ground that the emphasis and manner with which they were made preju- diced the defendant with the jury. Judges are presumed to have poise and dignity, and fairness in both mind and manner. State v. Triggers (S. C), 19-1166. p. Arguments and conduct of counsel. See Homicide, 11. Intemperate language of counsel, see Elec- tions, 9. Misconduct of prosecuting attorney, see Rape, 2g. Discretion of court as to cojnments on evidence. — The latitude to be allowed to counsel in a criminal case in commenting on the evidence and the conduct of the de- fendant, and drawing inferences from the evidence, is a matter resting largely in the discretion of the trial court. State v. Pirkey (S. D.), 18-192. Right of counsel to refresh recollec- tion of evidence by reading from official notes. — In an argument to the jury, an attorney may refresh his recollection of the evidence by reading from the notes of the official reporter. State v. Perkins (Iowa), 20-1217. Making charge against defendant not urarranted by evidence. — It is im- proper for the prosecuting attorney in his closing argument to charge inferentially that the defendant had caused certain of the state's witnesses to be posted as common drunkards, where there is no evidence that the defendant was responsible for such posting. People v. Mix (Mich.), 12-393. Reference to evidence as undis- puted. — In a criminal prosecution where certain evidence against the defendant is un- contradicted, a reference by the prosecuting attorney to the evidence as " undenied " and " undisputed " is not open to the objection that it is a comment on the defendant's fail- ure to testify. State v. Ruck (Mo.), 5-976. Manner of defendant in testifying. — In a prosecution for murder it is permis- sible for the state's attorney to comment on the manner of the defendant in testifying, and to remark as follows : " He laughed in a sneering way when I asked him what is the first thing he did when he came to town, and he said : ' I guess the first thing we did was to hunt up a saloon.' " State v. Jeffries (Mo.), 14-524. Failure of accused to testify. — The rule that the attention of the court should be at once called to an improper argument addressed to the jury, and that the subject must be adequately covered in the charge, with such emphasis as will correct any er- roneous effect, applies to unwarranted argu- ments by a district attorney respecting the failure of the accused to take the stand in her own behalf. Com. v. Richmond (Mass.), 20-1269. In a homicide case, where the district at- torney comments on the fact that every one, so far as known, save the defendant, who had been in such relation to the premises where the deceased was foimd as to have had an opportunity to commit the crime, has tes- tified, but on the defendant's objection im- mediately disclaims intent to urge any inference from the defendant's failure to tes- tify, and the court plainly instructs that the defendant's refusal to testify cannot create any presumption against her, and cannot prejudice her, her rights are amply protected. Com. V. Richmond (Mass.), 20-1269. q. Instructions. (1) In general. Instructions as to criminal responsibility of insane persons, see Insanity, 7 b. Instructions in particular prosecutions, see Accomplices; Assault and Batteby; BtTBGLART, 4; CONSPIRACY, 1 g; FALSE Pretenses and Cheats, 8; Homicide, 3 d, 8; Incest, 5; Intoxicating Liquors, 6 h; Larceny, 6 b; Rape, 2 e; Receiving Stolen Property, 4; Rob- bery, 2 c. Written instructions. — Under the Washington statute requiring the judge to 620 AT^lSr. CAS. DIGEST, VOLS. 1-20. charge the jury in writing when requested, but providing that whenever the stenographic report of a charge is taken it shall be con- sidered a charge iii writing within the mean- ing of the statute, the stenographer must be an official one or at least one under the direction and control of the court, it being insufficient if the charge is taken down by a prii?a,te stenographer employed by one of the parties to report the case. State r. Mavo (Wash.), 7-881. General afiSrmative charge in de- fendant's favor. — Where the evidence in a criminal cage affords an inference of the defendant's guilt, a general affirmative charge in favor of the defendant is propetly refused, flargrove v. State (Ala.), 10-1126. ' Date of commission of offense. — On a criminal trial, where the time of the com- mission of the offense is definitely fixed by the evidence on behalf of the state, and the de- fense is an alihi, it is reversible error for the trial court to instruct the jury that the exact date of the commission of the offense is im- material providing it was committed within three years before the filing of the informa- tion. State V. King (Wash.), 16-322. Use of ivord " crime " instead of " alleged crime." — An instruction which refers to " the crime," instead of employing the phrase " the alleged crime " or its equiva- lent, is not misleading as assuming that a crime has been committed. State r. Vanella (Mont.), 20-398. Assuming gnilt of defendant. — It is error for the court to assume the guilt of an accused from the evidence and so charge the jury. Potts v. State (Tex.), 2-827. Hypothesis as to proof of facts. — Instead of charging that if the jury " believe the evidence," the better formula is to charge, where the evidence permits, that if the jury are " satisfied that the facts are as testified," or, in criminal cases, that they are so satisfied " beyond reasonable doubt." State v. Stames (N. C), 19-448. Singling out facts. — In the trial of a criminal case, the defendant cannot insist that the court shall single out a certain class of facts or evidence tor particular comment. State V. Quigley (R. I.), 3-920'. Sncol^rect statement of law appli- calile to theory of defense. — It is not error to refuse an instruction which is not a correct Statement of the law applicable to the theory of the defense. Stevens v. State (Neb.), 19-121. Refusal of instruction not -warranted hy evidence. — In a criminal prosecution it is not erroneous to refuse the defendant's request for instructions which are not war- ranted by the evidence. State v. Bringgold (Wash.), 5-716. Instructions on any subject should not be given in the absence of evidence on which to base them. StatS v. Campbell (Mo.), 14-403. Refus&l bf instruction couched in technical langn&ge. — A court is not bound to give and ought not to give an in- struction even though it may state the law correctly, which is not couched in language sufficiently untechnical to be comprehended by the average juror, for by so doing the jury is confused rather than instructed. State v Osborne (Ore.), 20-627. Use of latin words. -> The use of the Latin words per se in an instruction in a criminal trial is not error, such words being of universal use in the English language, and being used in the particular instruction com- plained of in such a way that they might be discarded from the instruction without af- fecting its correctness. Schwartz v. State (Tex.), 11-620. Instruction as to right of jury to de- termine law. — Under the Illinois statute making the jury judges of the law as well as of the facts in criminal cases, an instruc- tion that if the jury can say upon their oaths that they know the law better than the court does, they have the right to do so, but that before assuming so solemn a responsi- bility they should be sure that they are not acting from caprice or prejudice, but from a deep and confident conviction that the court is wrong and that they are right, and that before saying this upon their oaths it is their duty to reflect whether, from their hab- its of thought, their study and experience, they are better qualified to judge of the law than the court, is correct. People v. Camp- bell (111.), 14-186. Refusal of ohscnre and involved in- structions. — Obscure and involved re- quested instructions are properly refused, especially where any matters of importance contained therein are covered by other in- strvictions. State v. Megorden (Ore.), 14- 130. Cautionary instructions. — No error \i committed in refusing, in a prosecution for murder, cautionary instructions as to the duty of the jury to keep their judgment in suspense until every fact is carefully ex- amined, and not to consider the feelings or desires of the community regarding the case in arriving at a verdict, where there is noth- ing in the record to show want of care on the part of the jury or that the community had any feeling or desire for any particular verdict. State r. Megorden (Ore.), 14-130. Weight of evidence of particular persons. — An instruction in a criminal case in which police officers have testified for the people, that the fact that a witness is a policeman or detective or engaged in any other lawful business does not render such witness incompetent to testify or furnish ground for arbitrarily rejecting such testi- mony is improper as calling special attention to the testimony of a particular witness, but is not necessarily prejudicial so as to require a reversal. People v, Campbell (111.), 14- 186. Instruction as to the credit to be given to the testimony of defendants in a criminal case, considered and approved. People v. CampbeU (111.), 14-186. Effect of failure of accused to deny particular testiniony. — If the defendant in a criminal case is a witness in his own be- half, it is error to instruct the jury that OKIMINAL LAW. 621 " if tile defendant by his own testimony has not denied in any way any material fact proved in the case within his personal knowl- edge, such testimony or material fact proved, if not denied by the defendant, is admitted by the defendant to be true." Russell v. State (Neb.), 15-222. Incorporation of sayings o{ law writers. — While not always calling for a reversal of a judgment, the incorporation in- to instructions of sayings of law writers, not containing statements of legal principles, is not to be approved. Hamblin v. State (Neb.), 16-569. Instmotion partly inapplicable. — Where the first sentence of a requested in- struction is inapplicable to the facts of the case, the refusal of the entire instruction is proper. State v. Megorden (Ore.), 14-130. Defendant's flight. —In a criminal prose- cution it is not erroneous to instruct the jury that the fact of the defendant's flight after the commission of the alleged offense is a circumstance prima facie indicative of guilt. State V. Matheson (Iowa), 8-430. An instruction upon the question of the flight of the defendant to avoid arrest for the crime with which he is charged should not be given unless warranted by the evidence. State V. Brock (Mo.), 2-768. Constmotion of iustmotioras -with reference to evidence. —Instructions must be construed with reference to the evidence introduced. State v. Wilhite (Iowa), 11-180. Harmless error in defining degrees of crime. — Where one is on trial for a crime which is divided into degrees, and the court commits error in instructing the jury upon the law applicable to the higher degree of such crime, but properly instructs the jury as to the lower degree, and the jury return a verdict of guilty of the lower degree, the defendant cannot complain. One can com- plain only of errors which have afi'ected his rights. Louderback v. Territory (Okla.), 14-988. (2) Reasonable doubt. Proper instructions as to reasonable donbt. — An instruction as to reasonable doubt, which, after defining such doubt as an actual doubt which a juror is conscious of after reviewing in his mind the entire ease, giving consideration to all the testimony, and one which he believes would cause a reason- able man in any matter of like importance to hesitate to act, denies the notion that any njere possibility is sufficient ground for such a doubt, and adds that, in the performance of jury service, jurors should decide contro- versies as they would any important question in their own aflFairs, is good as against a gen- eral exception. Holt v, U. S. (D. S.), 20- 1138. An instruction on the question of reasonable doubt in a criminal prosecution which states that " a doubt to justify an acquittal must be a substantial doubt founded on the evi- dence " is not bad as requiring " the doubt to be consistent with the evidence." State v Temple (Mo.), 5-954. An instruction which tells the jury clearly that they cannot convict unless they believe beyond a reasonable doubt that the act charged was committed by the defendant is sufficient, though the subject of reasonable doubt is not mentioned in connection with some of the findings necessary to a convic- tion. State V. Hetland (Iowa), 18-899'. The question of " moral certainty " of the guilt of an accused person is fully covered by the following instruction : " The law does not require demonstration, however; that is, it does not require such a degree of proof as, excluding the possibility of error, produces absolute certainty, because such proof is rarely possible. Moral certainty only is re- quired, or that degree of proof which produces conviction in an unprejudiced mind. This is called satisfactory evidence, and it is the only evidence which will justify a verdict of guilty." State v. Megorden (Ore.), 14-130. It is not error to include in an instruction defining the term " reasonable doubt " the statement that it is a doubt for which ther€ is some good reason arising out of the evi- dence or lack of evidence — a doubt for which the jury are able to find a reason in the evidence or lack of evidence. State r. Wolfley (Kan.), 12-412. In a prosecution for murder an instruction that " if it should appear to you from all the evidence in this case beyond a, reasonable doubt that the defendant has committed a crime which is included in the crime charged in the indictment, and there should still re- main in your minds a reasonable doubt as to which degree he is guilty of, then, in that case, the defendant is entitled to the reason- able doubt as to the higher crime or to the highest degree, and you can only return a verdict of guilty of the degree of the crime so included in the indictment as to which there is no reasonable doubt," fully covers the question of reasonable doubt of guilt of murder in the first degree. State v. Mesor- den (Ore.), 14^130. ^ An instruction in a criminal case on the question of reasonable doubt, that the doubt must be real, not chimerical or fanciful, and " not a doubt which is sought for, but one which arises naturally from the case, and which is not a doubt produced by undue sensi- bilities on the part of the jurors as to the consequences of their verdict," is not erro- neous as cutting off the right of the jury to search the evidence to determine whether there is a j'easonable doubt of guilt, where the jury is also told that a reasonable doubt may arise from the evidence actually offered or from a lack of evidence, and that they must acquit the defendant if there is any reasonable hypothesis consistent with his in- nocence. People V. Buettner (111.), 1.3-235. An instruction on the subject of reasonable doubt consideret} and held to be ijot erro- neous though perhaps less intelligible than the phrase deflne(J. Edwards v. State (Neb.) o— o 12. Improper instructions as to reaaon- able donbt. — An instruction in a crim- inal case is improper which is calculated to 622 ANN. CAS. DIGEST, VOLS. 1-20. lead a juror to infer that the mere entertain- ing of a reasonable doubt as to the guilt of the accused after a careful weighing of the evidence and full consultation, amounts to a limitation upon the right of the juror to join in a verdict of guilty; for fuller deliberation and consultation might clear away his doubts and render it proper for him to concur in the conclusion of his associates. Knapp v. State (Ind.), 11-604. An instruction in a criminal prosecution that " whilst it is the duty of the state to establish, beyond the purview of all reason- able doubt, the guilt of the defendant of the crime charged in the indictment it is not incumbent on the defendant to prove his in- nocence, and though the testimony on behalf of the defendant falls short of proving hig innocence, and although you may disbelieve all the evidence offered in behalf of the de- fendant, yet if at the close of the case the evidence offered leaves a reasonable doubt in 'the minds of the jury, they are bound to acquit the defendant even if they believe he himself, or any or all of the witnesses intro- duced in his behalf, have sworn falsely," is erroneous both as a comment on the evidence and as partaking of the nature of an argu- ment and would constitute reversible error except for a request by the defendant for a similar instruction. State r. Campbell (Mo.), 14-403. In a prosecution for murder, an instruction that " if, after a consideration of the whole case, any juror should entertain a reasonable doubt of the guilt of the defendant, it is the duty of such juror, so entertaining such doubt, not to vote for a verdict of guilty nor to be influenced to so vote, for the single reason that a majority of the jury should be in favor of a verdict of guilty," may be re- fused in the discretion of the trial judge where the jury have been given general in- structions covering their duties, and if the requested instruction is given it should be modified so as to point out to the individual juror his duty to consult with his fellows and consider their views to the end that each may aid in arriving at the truth. State t\ Hennessy (Nev.), 13-1122. Refusal of proper instruction. — On the trial of an indictment for assault with intent to murder, it is reversible error for the trial court to refuse to instruct the jury, at the defendant's request, that if, after con- sidering all the evidence in the case, they have a reasonable doubt of the guilt of the defendant, they must give the benefit of the doubt to the defendant and return a verdict of not guilty; nor is such error cured by the giving of an instruction, that if any member of the jury has a reasonable doubt of the guilt of the defendant, the jury should not return a verdict of guilty. Letcher v. State (Ala.), 17-716. In a prosecution for homicide, the refusal of a requested instruction specially directed to the proposition that each juror is entitled to exercise his own individual judgment, and that before a conviction can be had the evi- dence must convince each individual juror of the defendant's guilt beyond a reasonable doubt, is error which is not cured by an in- struction directed to the proposition that the defendant must be acquitted if the entire jury entertains a reasonable doubt as to his guilt. Bell V. State (Miss.), 11-431. Curing error in incorrect cbarge. — In a criminal action an instruction that the reasonable doubt that would entitle the de- fendant to an acquittal " must be such a doubt as the juror is able to give a reason for " is not cause for reversal, especially where qualified by a correct instruction on reasonable doubt. State v. Grant (S. Dak.), 11-1017. (3) Presumption of innocence. Duty to give instruction. — The de- fendant in a criminal prosecution is entitled in every instance to an instruction on the presumption of his innocence, and while the court need not give such an instruction in the language of the request therefor, it should give it in such form as will correctly inform the jury as to the law pertaining to the pre- sumption. State V. Mayo (Wash.), 7-881. Proper instructions as to presump- tion of innocence. — The jury is correctly instructed as to the presumption of innocence where the court states that a criminal prose- cution begins with the presumption that the defendant, although accused, is innocent, and that to overcome this legal presumption the evidence must be clear and convincing, and sufficiently strong to convince the jury beyond a reasonable doubt that the defendant is guilty. Holt V. U. S. (U. S.), 20-1138. An instruction in which the jury are told that the presumption of innocence continues until the material allegations of the informa- tion are established by the evidence " to the exclusion of all reasonable doubt," is entirely accurate. Edwards v. State (Neb.), 5-312. Where a court after stating the rule of law as to the presumption of innocence adds that in doubtful cases such presumption is suffi- cient to turn the scale in favor of the pris- oner, and also states that the prisoner is entitled to an acquittal unless the jury find him to be guilty beyond a reasonable doubt, such an instruction is neither erroneous nor misleading. State v. Knapp (Ohio), 1-819. No error is committed in refusing an in- struction requested by an accused that " the law presumes the defendant to be innocent of any offense, and the presumption follows him in the trial of this case until the con- trary is shown beyond a reasonable doubt," where the following instruction is given: "The defendant in any case is presumed to be innocent until the contrary is proven. In case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to be acquitted." State v. Megorden (Ore.), 14- 130. (4) Failure of defendant to testify. Bigbt of defendant to complain of giving instruction. — Where the defend- CEIMINAL LAW. 623 ant in a criminal prosecution fails to testify, it is entirely proper for the trial court to instruct the jury that such failure cannot be used to the defendant's prejudice, and the defendant cannot complain of giving such an instruction. State v. Fuller '(Mont.), 9-648. In the Ohio statute which makes an ac- cused person a competent witness on the trial of an indictment at his own request, but not otherwise, the provision " but his neglect or refusal to testify shall not create any pre- sumption against him, nor shall any refer- ence be made to, or any comment be made upon, such neglect or refusal," is intended to give full eflFect to his immunity from all obligations to furnish evidence against him- self because of his silence, and the reference thereto which is forbidden, is such as would suggest or encourage an inference of that character. Tate v. State (Ohio), 10-949. It is not error for the trial court to read a statute to the jury, providing that the fact that the defendant did not become a witness in his own behalf shall not be considered by the court and jury in arriving at the verdict. State V. Wisnewski (N. Dak.), 3-907. Refusal of proper instrnotion. — In a criminal prosecution it is erroneous for the trial court to refuse the defendant's request for an instruction that though there is a statute permitting him to testify in his own behalf, the statute expressly provides that his failure to testify shall not create any pre- sumption against him. People v. Provost (Mich.), »-277. Harmless error in giving instruction. — Upon the trial of an indictment an in- struction to the jury that the failure of the accused to testify does not relieve the state from the obligation to produce evidence which will establish guilt beyond a reasonable doubt is not an error for which a judgment follow- ing a verdict of guilty should be reversed. Tate V. State (Ohio), 10-949. (5) Motive. Correcting erroneous request to in- struct. — On a request to charge in a crim- inal case, where the evidence fails to show any motive to commit the crime on the part of the accused, that this is a circumstance " in favor of his innocence," the court may strike out the words quoted and insert the words " which you should consider." State V. Vanella (Mont.), 20^398. (6) Consideration of character evidence. Correct instruction. — The jury in a criminal case are not precluded from consid- ering evidence of the defendant's character on the issue of guilt or innocence by an in- struction that if they are satisfied with the defendant's guilt, evidence of good character is of no importance, where the court, in reply to an exception to the instruction, says : " In that connection, I told them [the jury] that they were to consider the evidence of good character in arriving at a conclusion as to whether he was guilty or not." People v. Gilbert (N. Y.), 20-769. ( 7 ) Confessions. Confessions as bearint-:; on sanity. — A statement by the court in its charge to the jury that sane men who are innocent as a rule do not make confessions of crime, the defense of insanity and confessions by persons of sound and unsound mind being tlie subject of the instructions to the jury, is not preju- dicial to the defendant. State v. Knapp (Ohio), 1-819. Confession relating to other crimes. — where a prisoner has made a written con- fession admitting the crime charged against him and other crimes, and the whole of the confession is offered by the state and objected to by the defendant, it is proper to allow the whole confession to go to the jury when the court instructs them at the time that they should disregard any portion thereof which does not relate to the crime charged and that they should not permit the statements thereof to prejudice them against the defendant. State V. Knapp (Ohio), 1-819. Where making of confession is not proved. — In a criminal prosecution it is re- versible error to instruct the jury as to their right to convict the defendant upon his con- fession, where there is absolutely no evidence even tending to prove that he has ever made a confession. State v. Smith (Iowa), 6- 1023. (8) Matters already covered by instructions. Proper to refuse repetition. — In a criminal case, it is proper to refuse requested instructions, where they are covered by the charge to the extent that they are sound in law and necessary to the decision of the case. Com. V. Richmond (Mass.), 20-1260. The trial court need not give a requested instruction which it has already given in its charge. Holt v. U. S. (U. S.), 20-1138. It is not error on the part of the court to refuse an instruction tendered by the de- fendant in a criminal prosecution, when the substance of everything in the proposed in- struction which the defendant is entitled to have submitted to the jury is given by the court in an instruction upon its own motion. Evers v. State (Neb.), 19-96. It is not error to refuse an instruction asked for by the accused, if another instruc- tion embracing the same points of law, free from objections and not in any manner preju- dicial to the accused, has been given on behalf of the state. It is not necessary that the same instruction should be twice given. State V. Medley (W. Va.), 18-761. Requests for instructions as to the pre- sumption of innocence and the doctrine of reasonable doubt are properly refused when covered by instructions already given. Com. V. Sinclair (Mass.), 11-217. It is not error to refuse a requested in- struction, embodying a correct statement of law, if the court gives an instruction cover- ing the point and fundamentally correct though unhappily phrased. Knapp v. State (Ind.), 11-604. Requested instructions already included in 624 ANN. CAS. DIGEST, VOLS. 1-20. the charge of the court so far as they are proper, need not be given. Elias v. Territory (Ariz.), 11-1153. Special requests for instructions which are covered by instructions already given are properly refused. Tones v. State (Tex.), 13-455. The refusal to give requested instructions covered by the general charge is not error. State V. Megorden (Ore.), 14-130. Where the court's instructions correctly and fully cover every phase of the case to which the testimony is applicable, it is not error to refuse requested instructions, State V. Campbell (Mo.), 14-403. The refusal to give instructions requested does not, even though they state the law cor- rectly, constitute reversible error if they are substantially covered by the instructions given. State v. Jackson (S. Dak.), 16-87. It is not error for the court to refuse an instruction which is substantially embodied in those given. Jaynes v. People (Colo.), 16-787. In a criminal prosecution it is not errone- ous to refuse to give an instruction every essential idea of which is embraced in the in- struction given. State v. Wilson (Wash.), 7-418. It is not erroneous to refuse an instruction which, though abstractedly correct as far as it goes, is incomplete in its statement of the law, especially where the jury have already been fully and properly instructed on the point. Peterson v. Seattle (Wash.), 5-735. Repetition of instructions as error. — The giving of lengthy and repetitious in- structions is not ground for reversal, but the practice of giving such instructions is dis- approved. People V. Buettner (111.), 13-235. r. Verdict. (1) General verdict. When proper to direct. — In a crim- inal proseicution, where it is sought to impose the increased punishment provided by stat- ute for persons formerly convicted of crime, if proper proof of former convictions is made, the court should instruct the jury to render a general verdict as to the instant oflFense and a special verdict as to the former convictions; but if proof as to former convictions of the instant defendant fails for want of identifica- tion, the court should merely instruct the jury to render a general verdict as to the offense named in the indictment. State v. Smith (Iowa), 6-1023. Where indictment is defective in part. — Where an indictment contains sev- eral counts, some of which only are defective, a conviction based on a general verdict will not be disturbed. Manning v. State (Tex.), 3-867. (2) Special verdict. Special verdict as acquittal, see also Riot. When equivalent to acquittal, — Nothing can be added to a special verdict by inference, and when it omits to set forth nnv fact essential to constitute the crime charged, it amounts to an acquittal. State v. Stephanus (Ore.), 17-1146. Duty of court to snhmlt form. — The Wisconsin statute providing that on the trial of a special issue of insanity interposed by the defendant charged with a crime, if the jury shall find the defendant insane they shall also find him guilty, does not prescribe the form of verdict, and a refusal by the court to submit a, form of verdict on the question of insanity held not error in view of the in- structions given the jury. Steward v. State (Wis.), 4^389: (3) Direction of verdict. Verdict of not guilty. — In a criminal prosecution,, the trial court is justified in granting the defendant's request for a di- rected verdict of not guilty, where there is not sufiicient evidence of guilt to go to the jury. Glover v. United States (U. S.), 8- 11 84. Verdict of guilty. — Where the defend- ant in any criminal prosecution pleads not guilty, the trial court, no matter how con- clusive the evidence may be, cannot instruct the jury to return a verdict of guilty, as the defendant cannot be deprived of his absolute constitutional right to have the question of his guilt or innocence determined by the jury without coercion by the court. State v. Kooh (Mont.), 8-804. (4) Conviction of lesser degree of offense. Conviction of assault with dangerous weapon under indictment for assault with in- tent to kill, see Assattlt and Battebt, 1 1. When proper. — The New York statute (Pen. Law, § 610) providing that on the trial of an indictment, the prisoner may he con- victed of a lesser degree of the crime charged, applies only where the facts will justify a conviction for the lower degree. People v. Schleiman (N. Y.), 18-588. Lesser offense barred by statute of limitations. — Where on a prosecution for a felony the accused is found guilty of a lesser offense, included in the felony and con- stituting a part thereof, the conviction can- not stand if such lesser offense is barred hy the statute of limitations, even though the felony is not barred. Letcher v. State (Ala.), 17-716. Conviction of larceny under indict- ment for robbery and larceny. -^ A conviction under an indictment for robbery and larceny from the person is not justified by a sealed verdict finding the defendant guilty of larceny only, such verdict being a nullity. Koch v. State (Wis.), 5-38». (5) Presence of accused at rendition. Waiver of right. — Where, in a prose- cution for larceny, the jjiry retire to delib- erate on their verdict at nine o'clock in the forenoon, and at about 4.30 o'clock in the afternoon of the same dav nnnoiinee to the CRIMmAL LAW. «i]5 judge that they have agreed on a verdict, and the judge thereupon orders the courthouse bell to be rung, according to custom, to notify counsel and the accused of the agree- ment, and directs deputies to find and notify them to appear in court, the accused, who is out on bail and has gone to a place about two miles distant so that he cannot be found, waives the right to be present at the rendi- tion of the verdict, which the court receives in his absence, and over the objection of his attorney, about half an hour after the agree- ment. Stoddard v. State (Wis.), 13-1211. (6) Coercing verdict. What constitutes. — The verdict must be free, and the presiding judge must not at- tempt to coerce the jury to agree on a par- ticular verdict or on any verdict. Urging a jury to an agreement contrary to the indi- vidual opinion and judgment of one juror may be coercion. People v. Faber (N. Y.), 20-879. Improper caution to jury. — While each juror must discuss and consider the opinions of others in reaching a verdict, he must decide the case on his own opinion of the evidence and on his own judgment, and a charge that a juror must join with his co- jurors and make, in some respects, their opin- ion his own, is reversible error. People v. Faber (N. Y.), 20-879. Proper caution to jury. — The court may urge on the attention of the jury the importance of an agreement, and the jurors may be requested not to take a position that is beyond further consideration, reasoning, and argument, and may be properly warned against stubbornness, as it is the duty of jurors to keep their minds open to every rea- sonable argument that may be presented by their cojurors, so that they may reach a ver- dict answering the consciences of the indi- vidual jurors. People v. Faber (N, Y,), 20- 879. (7) Impeachment of verdict. By Individual juror. — A verdict cannot be impeached by the affidavit of a juror as to any matter inhering in the verdict, such as the effect of a colloquy between the court and a juror, or threats by the other jurors against the affiant if he persisted in voting for ac- quittal. State V. Aker (Wash.), 18-972. Affidavits of jurors may not be received for the purpose of impeaching a verdict rendered by them, where the facts stated by the affidavits are such as inhere in the verdict, such as that the jury misunderstood or did not rightfully comprehend the instructions of the court. Hamblin v. State (Neb.), 16-569. Verdict arrived at by chance. — A verdict in a criminal case, assessing the pun- ishment of the defendant at a certain num- ber of years' imprisonment, will not be set aside upon proof that each member of the jury wrote down the number of years which he thought proper, and that the several num- bers thus written down were added up and the sum divided by twelve, when there is no proof that the jurors agreed beforehand to Vols. 1-20 — Ann. Cas. Digest. — lo. be bound by tlie result thus obtained, and when, in fact, the number of years finally determined upon was slightly different from such result, the jury having taken several votes after going through the process of ad- dition and division. In order to vitiate a verdict determined by lot, the proof must show that the jury, before drawing lots, agreed to be bound by the result. Cravens V. State (Tex.), 16-907. (8) Sufficiency and validity of verdict. See Labceny, 6 c; Rape, 2 f. Form of verdict on finding of insanity of de^ fendant, see Insanity, 7 f. Form in general. — In a criminal prose- cution the trial court should not submit to the jury a form of verdict of guilty without prefacing the form with a direction to use it if they find the defendant guilty; but the submission of a form without such direction is not open to the objection that it is calcu- lated to mislead the jury into the belief that it is a direction to find the defendant guilty, where the court gives proper instructions as to the evidence necessary to establish the offense and as to reasonable doubt and the ]iresumption of innocence, and, at the request of the defendant, submits a form of verdict with the direction that the jury shall use it if they find the defendant not guilty. State r. Davis (Mo.), 5-1000. Written verdict. — A written verdict may be received in a capital case. Brewer v. State (Fla.), 12-79. Presumption in favor of verdict. — While verdicts in criminal cases should be certain, and impart a definite meaning, free from ambiguity, yet any words that convey, beyond a reasonable doubt, the meaning and intention of the jury are sufficient; and all fair intendments will be made to sustain them. If the intention of the jury is thereon clearly manifested, bad spelling or faulty grammar should not vitiate them. Morris v. State (Fla.), 14-285. IrGFUL ACT. 651 the jjersonal safety of passengers. To con- strue that section as giving a right of action for injury to property rights, which would survive to the personal representatives of a deceased beneficiary under sections 96 and 97 of the Revised Statutes, would be to render it unconstitutional, as authorizing the tak- ing of private property for private use, and without due process of law, and also as deny- ing the equal protection of the laws. Gilke- son V. ilissouri Pacific R Co. (ilo.), 17- 763. As section 2864 of the Revised Statute of 1899, which makes a common carrier of pas- sengers liable to a fixed penalty of $5,000, wherever a passenger is killed by the negli- gence of its servants, is a special statute, en- acted subsequently to sections 96 and 97 of the Revised Statutes, it must be taken as constituting an exception to, if not a repeal pro tanto of, the latter sections, assuming that those sections can have reference to a cause of action arising out of the death of a human being. Gilkeson ('. Missouri Pacific R. Co. (Mo.), 17-763. Beath of wrongdoer. — The Missouri statute providing that actions for personal wrongs shall not die with the person whose death is occasioned by the wrongful act, but making no provision, whether intentionally or by oversight, for the contingency of the death of the person wrongfully causing the death, being a complete enactment in itself and in derogation of the common law, will not be construed to give a right of action against the personal representative of a de- ceased wrongdoer, or to permit the revival of such an action commenced prior to his death. Bates !■. Sylvester (Mo.), 12-457. 4. Pleading and Defenses. Sufficiency of petition. — As death caused either through negligence or with criminal intent gives a complete cause of action under the Missouri statute, a petition charging that the plaintiff's husband was shot and killed " negligently and with criminal intent " states a good cause of action, and the doe- trine of felo de se does not apply. O'Brien V. St. Louis Transit Co. (Mo.), 15-86. Waiver of defects in pleading. — In such a case, even though the defendant could compel the plaintiff to elect between the two causes of action or could demur to the peti- tion on the ground that inconsistent causes of action are stated in a single count, the de- fendant cannot complain of such defects after having answered and gone to trial on the issues. O'Brien «. St. Louis Transit Co. (Mo.), 15-86. Release of damages. — Where one in- jured through the negligence of another has for a valuable consideration released the lat- ter from all liability therefor, the former's wife and children have no riglit of action for damages on account of his death resulting subsequently from the same injuries. Thomp- son V. Ft. Worth, etc., R. Co. (Tex.), 1-231. An action for death by wrongful act can- not be maintained under the Missouri statute by the widow or children of the deceased. where he, during his lifetime and after the injury, executes a release of damages for a valuable consideration and without fraud, inadvertence, or mistake. Strode v. St. Louis Transit Co. (Mo.), 7-1084. A release by the driver of an express wagon of a claim for damages against a street rail- way company is supported by a valid consid- eration, and, in the absence of fraud, inad- vertence, or mistake, is valid as to him, though he is paid no money thereunder, where he signs jointly with the express com- pany upon the railway company's refusal to pay for damage to the wagon except on con- dition that he shall join in the release. Strode i'. St. Louis Transit Co. (Mo.), 7- 1084. Deceased a licensee on defendant's Iiremises. — In an action to recover damages for death by wrongful act, the defendant can- not defeat a recovery by the plaintiff by showing that the deceased, at the time of the accident which caused his death, was working on an irrigation ditch located upon a rail- road right of way, but not owned by the rail- road company. Such proof does not show that the deceased was a trespasser, since a railroad company may lawfully grant a license to a private individual to use a por- tion of its right of way in a manner which does not interfere with the operation of its trains. Mize v. Rocky Mountain Bell Tel. Co. (Mont.), 16-1189. Justifiable or excusable homicide. — In an action for death by wrongful act based on an intentional killing, it is a good defense that the homicide was justifiable or excusa- ble within the rule of the criminal law, as where the decedent was committing or at- tempting to commit burglary at the time he was killed, or where the killing was done in self-defense. Suell v. Derricott (Ala.), 18- 636. Burden of proof. — In an action for death by wrongful act, where the killing was . in- tentional and the defense is set up that it was justifiable or excusable, the burden is on the plaintiff to establish his case by proper and suflicient proof, as in other cases, and when this has been done the burden is on the defendant to show the justification or excuse for the killing. Suell v. Derricott (Ala.), 18-636. 5. Statute of Limitations. Wben statute begins to run. — The Alabama statute which authorizes the per- sonal representative of a servant or employee who has been killed by the negligence of his employer to maintain an action for damages does not create a new or independent cause of action in the personal representative, but simply continues the right of action which accrued to the deceased at the time of the injury, and, consequently, the one-year stat ute of limitations against the action runs from the date of the injury, and not from the death of the party injured or the grant- ing of letters on his estate. Williams r. Alabama Great Southern R, Co. (Ala.) l7- 510, ^ '. < 652 ANN. CAS. DIGEST, VOLS. 1-20. 6. Who May Stje. a. Husband. Under Kansas statute. — The surviving husband is his deceased wife's next of kin within the meaning of the Kansas statute giving a right of action for death hy wrong- ful act. Atchison, etc., R. Co. v. Townsend (Kan.), 6-191. b. Parent. In general. — A father cannot maintain an action in his own right for damages on account of the negligent killing of his child. Shaw V. Charleston (W. Va.) 4-515. Parent of illegitimate child. — The child referred to in the Louisiana statute giv- ing to parents a right of action for the death of a child by wrongful act is a legitimate and not an illegitimate child. Lynch w. Knoop (La.), 10-807. In an action for death by^ wrongful act, of the plaintiff's child, where' the defendant denies that the child was legitimate, and tenders an issue requiring proof of the mar- riage, the burden of proof of the marriage is on the plaintiff. Lynch v. Knoop (La.), 10- 807. Adopting parent. — The right granted by the Louisiana Revised Civil Code to the surviving " father " or " mother " to recover damages for the death of their son is a right granted to the actual father or mother of the child, and not an adopting parent. Mount V. Tremont Lumber Co. (La.), 15-148. c. Children. In general. — Right of action by the chil- dren of the deceased for death by wrongful act. Eichorn v. New Orleans, etc., R. Co. (La.), 3-98. For death of mother. — Where children are supported in a home maintained with the earnings of the father, and the mother per- forms the ordinary household duties, includ- ing such care of the children as a mother usually takes, and the mother loses her life through the wrongful act of a third party, the New Jersey statute permits an action to be maintained by the administrator of the mother to recover for the benefit of the chil- dren the damages occasioned by the depriva- tion of the expectation of pecuniary advan- tage which would have resulted by a continu- ance of the mother's life. Carter v. West Jersey, etc., E; Co. (N. J.), 16-929. Although the statute above mentioned makes use of the term " pecuniary injury," the plaintiff in an action brought thereunder is not required to show that the next of kin would probably have received from the de- ceased contributions of money or of things purchased with money. Carter v. Wtst Jer- sey, etc., E. Co. (N. J.), 16-929. d. Personal representatives. Administration of infant. — An action may be maintained by an administrator to recover for the death of an infant by wrong- ful act. Davis e. Seaboard Air Line Ry. (N. Car.), 1-214. Under the Florida statutes, the adminis- trator of a deceased minor may recover dam- ages for the death of his intestate, when such death was caused by the wrongful act, iiegli- gence, carelessness, or default of the corpora- tion or its agents, and when such minor has left neither widow nor minor child or chil- dren, nor any person or persons dependent on him for support. Bowden v. Jacksonville Electric Co. (Fla.), 7-859. Administrator of alien. — An adminis- trator appointed in Iowa may maintain an action within the state for an injury result- ing in death to a resident alien although the intestate's sole heir was at the time of the said death and is at the time of the com- mencement of the action a nonresident alien. Romano v. Capital City Brick, etc., Co. (Iowa), 2-678. Where an unnaturalized alien resident of one of the United States, owning no estate and having no relatives in this country, loses his life by the negligence of another, his ad- ministrator appointed by the proper court of the state may maintain an action for such wrongful death. Trotta v. Johnson (Ky.), 12-222. Under the Virginia death by wrongful act statute, a nonresident alien may maintain an action for the death of a resident alien. Low Moor Iron Co. v. La Bianca (Va.), 9- 1177. 7. Who Liable. Mnnicipal corporation exercising governmental power.— The Kentucky stat- ute providing for the recovery of damages in case of the death of a person by wrongful act is not intended to give a right of action against a municipal corporation for the death of a person occurring as the result of an act done in the performance of a pujblic duty, and the doing of which is but the exercise of a governmental power. Twyman v. Frankfort (Ky.), 4-622. Bailroad company keeping pest camp. —Where a railroad company establishes a pest camp for the treatment of its servant" and through the negligence of a physician in charge smallpox is communicated to a third person who dies, the company is not liable, as the keeping of the camp is not a part of its carrying business. Missouri, etc., R. Oo. V. Freeman (Tex.), 1-481. 8. Evidence. Mortality tables. — A mortality table showing the expectancy of life of a deceased person is admissible on the question of the amount of damages recoverable for the death of such person by wrongful act. Calvert r,. Electric Light, etc., Co. (111.), 12-423. Inventory and administrator's ac- count. — In an action by an administratrix to recover damages for the negligent killing of her intestate, the plaintiff's inventory of the personal property of the estate, and her annual account as administratrix, are not admissible in evidence to prove the intestate's DEATH BY WEONGFUL ACT. 653 capacity to earn and accumulate money. Cooper V. North Carolina R. Co. (N. Car.), 6-71. Marital relations of deceased. — In an action by a widow to recover damages for the death of her husband, alleged to have been caused by the defendant's negligence, it is not error for the court to admit evidence tend- ing to show the marital relations oi the de- ceased and his wife, or to instruct the jury that they may take into consideration the pecuniary loss, if any, of the widow on ac- count of her being deprived of the comfort, protection, society, and companionship of her husband. Mize v. Rocky Mountain Bell Tel. Co. (Mont.), 16-1189. 9. Questions for Jury. Cause of death. — In an action against a railroad company to recover damages for the death of a passenger, where the plaintiff's theory is that the death of the deceased was due to angina pectoris resulting from the shock of an accident caused by the defend- ant's negligence, and the defendant's theory is that the death, which did not occur until about eight months after the accident, was due entirely to causes which existed prior to the accident, and evidence ■ has been intro- duced in support of both theories, the defend- ant's demurrer to the evidence is properly overruled, notwithstanding there is proof that the deceased went about his labors after the injury, and that physicians were unable for several months to determine the existence of heart trouble, and that such trouble may arise from many different and independent causes. Under such circumstances, the ques- tion as to the cause of death is properly left ' to the jury. Macdonald v. Metropolitan St. R. Co. (Mo.), 16-810. 10. Instructions lajnrles hastening death. ^ In an ac- tion to recover damages for death by wrong- ful act it is erroneous to instruct the jury that if they believe from the evidence that at the time of the accident the deceased " was suffering from . . . consumption, and that he died from such disease, and that whatever injuries he received in said accident only has- tened his death and were not the cause of the same, the plaintiff is not entitled to re- cover, . . . and that this is true without regard to whether or not the defendant was negligent at the time of said accident." Strode v. St. Louis Transit Co. (Mo.), 7- 1084. Diseases prior to injury. — In such an action, it is not error for the trial court to instruct the jury that if they believe from the evidence that the death of the deceased was directly caused by the accident, and fur- ther find that the deceased would not have died _ at the time, under the circumstances, and in the manner he did, had it not been for the_ accident, their verdict should be for the plaintiff, notwithstanding they also find that the deceased suffered from certain diseases prior to the accident. Macdonald v. Metro- politan St. R. Co. (Mo.), 16-810. Natural and probable consequences of act. — In such an action, requests by the defendant for instructions to the effect that the jury must find for the defendant unless there was such connection between the negli- gent acts and the death of the decedent as to bring it within the reasonable contempla- tion oif the defendant that such death would naturally result from the negligence, are properly refused. The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act. Macdonald v. Metropolitan St. R. Co. (Mo.), 16-810, 11. Measure of Damages. a. Generally. Iioss of earnings. — Where one injured through the negligence of another lives in an unconscious condition until the following day, the damages recoverable are measured by the loss of earnings for a period during which he would have lived but for the injury. Olivier V. Houghton County St. R. Co. (Mich.), 3-53. Review on appeal. — Where a. verdict for death by wrongful act is so great as to shock the mind unless the amount is justified by the circumstances of the case, the appel- late court may consider such material facts not in the record of the case as are easily accessible, as, for instance, the amount of property left by the decedent, the terms of his will and the persons dependent on him for support. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201, b. For death of parent. In general. — The measure of damages in an action by the children of the deceased for death by wrongful act. Eichorn v. New Orleans, etc., R. Co. (La.), 3-98. Verdict for five thousand dollars. — In an action against a railroad company to recover damages for the negligent killing of a man forty-six years of age, who left sur- viving him a Widow and six children, where the evidence shows that the deceased had earned and contributed to the support of his family from seven hundred dollars to nine hundred dollars per annum, a verdict in favor of the plaintiff for five thousand dol- lars cannot be considered excessive, St Louis, etc., R. Co. v. Raines (Ark.), 17-1. c. For death of child. Funeral expenses. — In an action by a father to recover damages for the negligent killing of his unmarried infant daughter, he cannot recover, either at common law or un- der Lord Campbell's Act, the expenses of the child's funeral. Clark c. London General Omnibus Co. (Eng,), 6-198. 654 ANN. CAS. DlGEyT, VOLS. 1-20. d. For death of wife. Loss of time and funeral expenses. — Independent of any statute, a husband whose wife is killed by the negligent act of another is entitled to recover for loss of time and funeral expenses resulting from the act com- plained of. Philby c. Northern Pacific R. Co. (Wash.), 13-742. Seduction of expense of maintenance. — In an action by a husband to recover for the death of his wife caused by the defend- ant's negligence, the cost of the wife's main- tenance should, in estimating the damages, be deducted from the value of the services of which the plaintiff has been deprived. Gor- ton V. Harmon (Mich.), 15-461. e. For death of husband. Verdict for forty thousand dollars excessive. — A verdict for $40,000 for death by wrongful act is excessive where the de- cedent, whose estate exceeded $70,000 in value, had no children and no person depend- ent on him except his wife, to whom he had bequeathed his entire estate for her life. Yergy v. Helena Light, etc., Co. (Mont.), 18- 1201. f. In suit by next of kin. Person receiving no pecuniary aid from deceased. — In an action for death by wrongful act, brought by the collateral next of kin who received no pecuniary aid from the deceased and who were not entitled to require such aid, only nominal damages can be recovered, and vague, uncertain, and in- definite proof of gratuitous legal services ren- dered by the deceased to the plaintifi's is in- sufficient to show a pecuniary loss to the plaintiffs resulting from the deprivation of such services. Rhoads v. Chicago, etc., E. Co. (III.), 10-111. g. Exemplary damages. Under Kansas statute. — Exemplary dam- ages are not recoverable in an action for death by wrongful act brought under the Kansas statute. Atchison, etc., R. Co. v. Towrisend (Kan.), 6-191. Under Missouri statute, — The provision of the Missouri death by wrongful act stat- ute that in assessing damages regard may be had to aggravating circumstances attending the wrongful act, negligence, or default, means that in a proper case exemplary dam- ages may be awarded in -addition to com- pensation for necessary loss. Otto Kuehne Preserving Co. v. Allen (U. S.), 8-746. The Missouri statute authorizing recovery of exemplary damages for death by wrong- ful act does not authorize the recovery of such damages except where they might have been recovered by the deceased had he sur- vived ; and in an . actiojj upder the. statute, a ca^e, should, rbe stated in the complaint which, according to settled principles of law, will authorize, the r,ecovery of such damages, and tJw -'should be followed by sufficient proof to merit an award by, the jvy- .Qtto Kuehne Preserving 'Go.' -y. Allen (U. S.), 8-746. • In an action for death by wrongful act, where it is sought to recover exemplary dam- ages, it is not necessary to claim damages by name in the complaint, but such averments must be made as will advise the defendant that he will have to meet a demand of that kind at the trial, and the mere characteriza- tion of the defendant's negligence as " gross " is insufficient. Otto Kuehne Preserving Co. V. Allen (U. S.), 8-746. In an action for death by wrongful act, a verdict which awards exemplary damages in addition to compensatory damages is unau- thorized, in the absence of allegations in the complaint, and of substantial evidence fairly tending to show that the negligence of the defendant was wanton, wilful, or malicious, or was so reckless as to imply conscious dis- regard of his civil obligations. Otto Kuehne Preserving Co. c. Allen (U. S.), 8-746. 12. Distribution and Apportionment of Recovery. Statute controlling, — Damages recov- ered for death by wrongful act must be dis- tributed in accordance with the provisions of the statute giving the right to recover. Mat- ter of Coe (Iowa), 8-148. DE BENE ESSE. See Depositions. DE BONIS NON. Administrator de lonis non, see Executors AND Administrators, 14. DEBT. Action of debt on foreign decree for alimony, see Alimony and Suit Money, 4 h. Alimony as a debt, see Alimony and Suit Money, 1. Civil liability of thief as debt within attach- ment law, see Larceny, 9. Decedents' debts, see Executors and Admin- istrators, 9. Deduction of debts in assessments for taxa- tion, see Taxation, 5 b. Directors' liability for debts of corporation, see Corporations, 7 e ( 1 ) . Extinguishment by promise to do act in satis- faction, see Accord and Satisfaction. Gambling debts, see Gaming and Gaming Houses, 3 b. Judgment in action of tort as a debt, see Imprisonment fob Debt and in Civil Cases. Municipal debts, see Municipal Corpora- tions, 8. Promise to .^answer for, debt of another, see .. .-1 FRAUDS) Statute of. Revival of; debts discharged- in bankrup^y, I - -.see Bankruptcy, 16. Scheduling debts in bankruptcy proceeding, see EANKlfcrPTCY;'9." ' "' ' ' Taxes as debts, see Taxation, 7^ DEBT, ACTION OF — DEDICATION. - >' Agents' declarations gendrdllyr see Agency, Expression- of intent tor-ftisaifirm ' contract, see Infants, 2 b (2). DECOY. Exposing goods to entrap thief, see Larceny, 3e. DECOY LETTERS. Theift of decoy letter, see Post Office. DECREES. See Equity, 3f. Divorce suits, see Divorce, 6. Probate proceedings, see Wills, 7 e. Right to sue at law on decree in equity, see Judgments, 12. Suits for specific performance, see Specific Performance, 5 e. DEDICATION. See Cemeteries, 1 ; Levees ; Streets and Highways, 2 a. Acceptance of dedication by municipality, see Municipal Corporations, 4e. Plat as dedication of highway, see Streets AND Highways, 6. Statutory method of dedication as exclusive of common-lair method. — The statutes of North Dakota, prescribing the method of dedicating real property to public uses, as well as easements therein for such purposes, are not and were not intended to be exclusive of the common-law method of dedication, nor do they abrogate the well- settled rule of implied dedication by estoppel m pais. Cole v. Minnesota Loan, etc., Co. (N. Dak.), 17-304. Common-lav^ dedication. — Where the owners and proprietors of a town site leave a square in the centre thereof, undivided into lots, and designated simply by a numeral, and divide the other blocks, surrounding the block so designated, into lots, facing toward such square, and one of the proprietors, who has active charge of the sale of lots therein, ^ represents to prospective purchasers that such square is and will remain a public square or park, and a purchaser, in reliance upon such representations, and also upon like repre- sentations made by one who is a, partner in the town site enterprise, purchases lots front- ing on such square, and makes valuable im- provements thereon, such acts and repre-. sentations constitute a common-law dedica- tion of the block in question as a, public square or park, and the proprietors of the town site, and their successors, are thereby estopped from denying that it has been dedi- cated to the public for that use. Oole r. Minnesota Loan, etc., Co. (N. Dak.), 17-304. In an action by {lyrSha'sei's of lots in u. town site, against the successors of the orig- inal proprietors, to pr6^ilr« an' adjudication that a*"liert4in block in the town site is a putilic square 'Ar* park, antl to en'Join the de- fendants from ilitelfering with the public use 656 ANN. CAS. DIGEST, VOLS. l-:iO. of the same, evidence examined and held sufiS- cient to show an intention on the part of the proprietors of the town site to dedicate such block to the public use. Cole i". Minnesota Loan, etc., Co. (N. Dak.), 17-304. Dedication by estoppel. — The rule re- garding dedication by estoppel with refer- ence to streets applies equally to public squares tind parks. Cole v. Minnesota Loan, etc., Co. (N. Dak.), 17-304. Method of shatring intention to dedi- cate. — An intention to dedicate property to a public use must be clearly established, but such an intention may be shown by deed, by Words, or by acts. Cole v. Minnesota Loan, etc., Co. (N. Dak.), 17-304. Method of shoirine acceptance. ^ An acceptance of property dedicated to the pub- lic use may be shown by an instrument in writing, executed by the proper authorities on 'behalf of the public, or by the use and improvement of the property dedicated, by the duly authorized authorities. Atlantic City V. Associated Realties Corp. (N. J.), 17- 743. Use of dedicated property. — A square in a city dedicated as " a public place for- ever for the enjoyment of the community in general," and used as a park, may properly be used for the erection of a public library, it appearing that such use is not inconsistent with the public enjoyment of the park. The library building can, however, be used for library purposes only, and cannot be devoted to the establishment of municipal offices therein, or used for municipal administration purposes other than as a meeting place for the board of library directors, and injunction will lie at the suit of u. resident abutting owner on the park to prevent such improper use of the building. Spires v. Los Angeles (Cal.), 11-465. Reverter. — Land dedicated to a public use does not revert because of misuse or non- use, unless its use for dedicated purposes has become impossible, or so highly improbable as to be practically impossible. McAlpine v. Chicago, etc., E. Cb. (Kan.), 1-4S2. A strip of land along a navigable stream and dedicated to the public by the use of the •word " levee " is not abandoned by the public 80 as to cause a reverter because railroads have been permitted to run upon it, nor be- cause it has been used for other unauthorized purposes, nor because boats do not land upon it, nor 'because approach to the river margin has become difficult. McAlpine v. Chicago, etc., R. Co. (Kan.), 1-452. DEED OF TRUST. See Mortgages and Deexs of Trust. DEEDS. 1. Requisites, 657. a. Description of property, 657. b. Execution, attestation, and ac- knowledgment, 657. (1) Signature, 657. (2) Seal, 657. (3) Attestation, 657. (4-) Acknowledgment, 667. c. Delivery, 658. (1) In general, 658. (2) Delivery to third person, 658. (3) Deposit for registration, 658. d. Acceptance, 658. 2. Validity, 658. a. Deed not naming grantor, 658. b. Deed naming fictitious grantee, 659. c. Deed to deceased person, 659. d. Deed without revenue stamp, 659. e. Deed by convict, 659. f. Deed by official grantor, 659. 3. COJMSTBUCTION, 659. a; In general, 659. b. Doubtful or uncertain descrip- tion, 659. e. Restrictions and prohibitions, 660. d. Conditions as to use of property, 661. e. Reservations and exceptions, 661. f. Inconsistent provisions or recitals, 661. g. As to time of taking effect, 662. h. Conveyance in trust with power of sale, 662. i. Construction of deed as mortgage, 662. 4. co^renant of warranty against in- cumbrances, 663. 5. Revocation or Annulment, 663. See Covenants; Mortgages and Deeds of Trust. Administrator's deed as color of title, see Adverse Possession. Alteration of deed, see Alteration of In- struments. Cancellation of deed for breach of contract, see Cancellation and Rescission, 1. Conveyance by wife to husband, see Husband and Wife, 1 a. Conveyance of homestead, see Homestead, 4. Delivery in escrow, see Escrow. Disaffirmance of infant's conveyance by sub- sequent deed, see Infants, 2b (2). Effect of deed from life tenant, see AntERSE Possession. Effect of deed from tenant by curtesy, ' see Adverse Possession. Effect of instrument in form of deed, see Wills, 2. Estoppel by deed, see Estoppel, 2. Necessity of deed to effect partition of real estate, see Partition, 1. Necessity of record, see Records, 3. Oral appointment of agent to receive de- livery of deed, see Frauds, Statute of, 4 c. Quitclaim deed as barring right to dower, see Dower, 2 d. Recita,l in sheriff's deed as evidence of au- thority, see SHEEiFrs and Constables 2. DEEDS. 657 Recital of consideration in deed as promise by grantee to pay, see Limitation of Actions, 3. Recitals as evidence of dedication, see Streets AND Highways, 2 a. Reformation of deeds, see Eefoemation of Instruments. Subject of replevin, see Replevin, 1. SuflSciency to create spendthrift trusts, see Spendthrifts. Tax deeds, see Tajsation, 10 c. 1. REQtnSITES. a. Description of property. In general. — A deed is void for uncer- tainty unless it contains on its face a de- scription of the land which is sufficiently certain to enable the property to be identi- fied, or unless it contains such a description as, with the aid of evidence outside of the deed and not contradicting it, will identify and locate the land. Hoard v. Huntington, etc., R. Co. (W. Va.), 8-929. Deed to land purchased by a railroad com- pany for the right of way held not void for indefiniteness in description. Abercrombie V. Simmons (Kan.), 6-239. Description iritlioiit starting point. — A deed that describes the land conveyed only as land located on a named island and containing a stated number of acres embraced within certain courses and distances, and does not fix any starting or ending point from which or to which the courses run, is too vague and indefinite to give notice to a subsequent purchaser or incumbrancer or to be aided by extrinsic evidence. Merritt v. Bunting (Va.), 12-954. Unidentified portion of tract. — A deed conveying part of a tract of land but not locating the part conveyed is not void for uncertainty, but operates to convey to the grantee an undivided interest in the whole tract in the proportion that the amount con- veyed bears to the amount of the whole tract. Fisher v. Wailehua (Hawaii), 2-916. b. Execution, attestation, and acknowledg- ment. (1) Signature. Signature by agent. — If the signature of the grantor in a deed is written by an- other person in the presence of the grantor, and at his instance or with his assent, the act is Ihe grantor's act, even though he can read and write, and if he then makes ac- knowledgment certified by a notary, the deed- is his deed. Ford v. Ford (D. C), 7-245. (2) Seal. What constitutes. — A deed concluding with the words, " Witness the following sig- nature and seal," is not on that account a sealed instrument where no seal or scroll is actually affixed to the signature. Burnette V. Young (Va.), 12-982. (3) Attestation. Form under Florida statute. — The Vols. 1-20 — Ann. Cas. Digest. — 42. Florida statute does not require any par- ticular form of words for the attestation clause of a deed. The phrase commonly used to denote that the persons signing are wit- nesses is, " signed, sealed, and delivered in the presence of," but any phrase which clearly denotes that the persons signing are wit- nesses is valid. Richbourg v. Rose (Fla.), 12-274. Where a deed has the names of two persons written in the place where the names of sub- scribing witnesses are usually placed, with the letters " wit " above their names, and the testificandum clause is " in witness whereof we hereunto set our hands and seals, this the 4th day of May, 1903," other facts show- ing delivery, the attestation of the deed is sufficient. Richbourg v. Rose (Fla.), 12- 274. Interested person as xiritness. — Where it appears in an action of ejectment that a deed offered in evidence by the plaintiff, as a link in his title, was attested by a witness who furnished a part of the purchase money for the land, that the title was taken by the grantee in trust for this witness and the per- son who furnished the rest of the purchase money, but that the grantee sold and con- veyed the land before the ejectment suit was brought, and divided the purchase money be- tween the witness to the deed and the other person entitled thereto, and that the deed on its face does not show the interest of the witness, and it does not appear that the plaintiff at the time of the purchase of the property by him had any knowledge that the witness to the deed had any interest therein when it was executed, such witness is, under the Florida statute removing the disability of witnesses on account of interest, not in- competent as an attesting witness to such deed. Cross v. Robinson Point Lumber Co. (Fla.), 15-588. Necessity as between parties. — The Alaska statute (Civ. Code, c. II, § 821) which provides that deeds of lands or any interest in lands "shall be executed in the presence of two witnesses, who shall sub- scribe their names to the same as such," does not make such attestation essential to thf- validity of the deed as between the parties. Eadie v. Chambers (U. S.), 18- 1096. The curative statute of Alaska (Civ. Code, c. 11, § 113) providing that all deeds "which shall have been signed by the grantors in due form, shall be sufficient in law to convey the legal title . . . without any other execution or acknowledgment" was intended only to cure the want of a seal, and does not express the understanding of the legislature that an unattested deed was insufficient as between the parties to pass the title. Eadie v. Cham- bers (U. S.), 18-1096. (4) Acknowledgment. Necessity as between parties. — As be- tween the parties, a deed of real estate, not a homestead, is good without being acknowl- edged. Martin v. Martin (Neb.), 14-511. 658 ANN. CAS. DIGEST, VOLS. 1-20. c. Delivery. (1) In general. Presumption as to date. — Where a deed bears an earlier date than the certifi- cates of its acknowledgment, the deed is, in the absence of other evidence, presumed to have been delivered on the date of the ac- knowledgment. Crabtree v. Crabtree (la.), 15-149. Burden of proof. — Where a son, while acting as attorney in fact for his father, secures possession of a deed from his father to himself, and records it after the death of his father, and there is evidence that the father retained possession down to the time of his death, the burden of proof is on the son to show delivery in the father's lifetime. Sears v. Scran ton Trust Co. (Pa.), 20-1145. Evidence of delivery. — Where there is no evidence of the delivery during the father's lifetime, of a deed executed to a son, and there is evidence that the father had de- clared that the deed was not to be recorded during the lifetime of his wife, and the father left his estate to his wife, vnth power of sale in the executor, a finding that the inference of delivery arising from the recording of the deed by the son after his father's death had been overcome will be sustained. Sears v. Scranton Trust Co. (Pa.), 20-1145. (2) Delivery to third person. See also EscBow. Sufficiency in general. — A delivery of a deed by the grantor to a third person for the grantee, with directions to deliver it to such grantee, constitutes a sufSeient delivery of a deed of conveyance. Martin v. Martin (Neb.), 14-511. The manual deposit of a deed with a third party, to receive and hold for the grantee, with the intent thereby to give it effect as a conveyance and to place it beyond the cus- tody and control of the grantors, with a de- clared or manifest purpose of making a present transfer of title, is ' a sufficient de- livery. Harmon v. Bowers (Kan.), 16-121. For delivery after grantor's death. — Where a deed is delivered to a third person to be delivered upon the grantor's death, the doctrine of relation is not to be applied to strangers; but a subsequent grantee with knowledge of the prior grant is not a stranger, but in privity with the grantor, and cannot take title as against the prior grantee who subsequently accepts the benefit of the prior delivery. When the prior grantee is a mem- ber of the grantor's family she cannot be re- garded as a grantee without equity as against a subsequent grantee. Emmons v. Harding (Ind.), 1-864. Where a deed is delivered to a third per- son to be by the latter delivered upon the grantor's dea^lj, an^ statements; of the grantor at the time of the delivery are sufficient to authorize an inference, of an intent to de- liver the instrumfent-'*"Efs ^is"'!leed, the ques- tion of intent is for the jury. Emmons v. Harding (Ind.), 1-864. Delivers' to Agent of Grantee. — The delivery of a conveyance to an authorized agent of the purchaser is as effective as though made to the purchaser himself. Dorr Cattle Co. V. Dbs Moines Nat. Bank (Iowa), 4-519. Delivery to agent of botb parties. — Where a deed is left with the attorney of both parties without an understanding that he is receiving it for the grantee, or for de- livery to the grantee, there is no delivery in law. Sears v. Scrarton Trust Co. (Pa.), 20-1145. Grantor as agent of grantee. — ' There is no absolute rule of law that prevents the grantor of a deed from becoming the agent of the grantee to accept delivery of the deed. Blackwell v. Blackwell (Mass.), 12-1070. Where the grantor of a deed not actually delivered to the grantee, simultaneously takes from the grantee a mortgage on the same property as a part of the same transaction, causes both deed and mortgage to be recorded together, and for some time retains the mort- gage as a valid security, this shows an inten- tion on the part of the grantee that- the deed should be immediately operative; and the execution and delivery of the mortgage and the subsequent exercise of possession and control over the property is a sufficient ac- ceptance of the deed on the part of the grantee. The grantor therefore cannot main- tain a bill in equity for the cancellation of the deed on the ground that the same was never delivered to the grantee. Blackwell t'. Blackwell (Mass.), 12-1070. (3) Deposit for registration. Sufficiency as delivery. — Where a duly delivered deed containing an erroneous de- scription of the land conveyed is returned to the grantor for correction, whereupon he. ex- ecutes a new deed containing a proper de- scription, the action of the grantor in de- positing the new instrument for registration amounts to delivery, even though the register returns it to the grantor. Whiting v. Hog- lund (Wis.), 7-224. For the purpose of determining whether there has been delivery of a deed, the posses- sion of the clerk after recording will be re- garded as being the possession of the grantee. Hartman v. Thompson (Md.), 10-92. d. Acceptance. Deed delivered to third person. — Where a deed is delivered to a third person to be by the latter delivered upon the grant- or's death, a subsequent acceptance or ratifi- cation of the transaction may violate the deed by the operation of the fiction of rela- tion. Emmons v. Harding (Ind.), 1-864. 2. Vauditt. a. Deed not naming grkij^^or',,,^. Validation by signature.— A deed signed by the grantor held not to })e void because of the omission of the grantor's name in the operative clause. Insurance Co. v. Waller (Tenn.), 7-1078, ~ „., DEEDS. 659 One who signs, seals, and delivers a deed, though not named therein as a grantor, is still hound as a grantor, and the deed is operative as a conveyance of his estate. Sterling v. Park (6a.), 12-201. b. Deed naming fictitious grantee. In general. — As there is no privity of contract between the assignee of the rever- sion in land out of which a ground rent issues and the assignee of the term, there is no reason why the liability of the latter should not be as efifectualiy destroyed by a, deed made in good faith to a third person under an assumed name as by a deed made to the grantee vinder his true name. Hart- man V. Thompson (Md.), 10-92. A deed to a person who is in existence is not invalidated by the fact that the grantee is designated by an assumed or fictitious name. Hartman v. Thompson (Md.), 10-92. Effect of acceptance. — Where the pur- chaser of an estate in land directs that the conveyance shall be made to him under an assumed name, and the grantor inserts in the conveyance as the name of the grantee an assumed name other than that selected by the grantee, the grantee, if he accepts the conveyance, is bound thereby. Hartman v. Thompson (Md.), 10-92. c. Deed to deceased person. Effect. — A conveyance which names a de- ceased person as grantee is not necessarily void, but it may be shown that the vestinartment house on the land so conveyed, where the greater part of the life of the covenant has elapsed, and owing to the changed circum- stances of the neighborhood the enforcement of the covenant would be of no benefit to the party seeking the injunction, but a departure from its terms would actually increase the value of the premises. McClure v. Leay- craft (N. y.), 5-45. In the absence of any material change in conditions affecting the character and use of property in the locality where the land is situated on which a restriction has been im- posed, the court cannot refuse to enforce the restriction by reason of an opinion that at some time in the future the character of the localitv will be changed. Evans v. Foss (Mass!), 11-171. Action at law for breach. — On an ap- DEEDS. 661 peal from the judgment of a lower court re- fusing an injunction to compel the observ- ance of a building restriction on the ground that the proposed erection will cause no damage to the person seeking the enforce- ment, the appellate court will so far modify the judgment of the lower court as to make it without prejudice to an action at law for a breach of the covenant. MeClure v. Leay- craft (N. Y.),'5-45. d. Conditions as to use of property. Euforoeiuent by grantor. — Notwith- standing the fact that a condition in a deed to a canal company that the grantee shall construct a basin on the land conveyed may not be a covenant running with the land, the grantor may, so long as he remains the owner of the adjoining property, which was intended to he benefited by the use of the basin, prevent a. purchaser of the canal with notice of the condition from using such basin in a manner " wholly at variance " with such condition. Dawson v. Western Maryland E. Co. (Md.), 15-678. Enforcement by grantor's assignee. — But even if such condition should be treated as a reservation, the assignees of the grantor are not entitled to equitable relief, where there was no attempted reservation in favor of the assigns of the grantor and the deed was executed before the enactment of a stat- ute changing the common-law rule that words of inheritance are necessary in a grant of more than a life estate unless an intention to convey an absolute estate appears. Daw- son V. Western Maryland R. Co. (Md.), 15- 678. Nor are such assignees entitled to equi- table relief if it should be held that by the acceptance of the deed the canal company impliedly contracted that the grantor should have an easement in the basin, because such contract would confer no rights upon the assignees if it was not executed by the canal company and recorded in the same manner as a grant of land. Dawson v. Western Mary- land R. Co. (Md.), 15-678. Reverter npon breach. — If the provi- sion in such deed in reference to the con- struction of the basin should be treated as a condition, it must be held to be a condition subsequent. Consequently upon the breach thereof the property would revert to the heirs and not to the assignees of the grantor. Dawson v. Western Maryland R. Co. (Md.), 15-678. Words declaratory of purpose of conveyance. — Where a deed conveys lands to trustees and successors " to be used as a church location," the latter clause will be construed, in the absence of evidence of the contrary intent, to be merely declaratory of the purpose of the conveyance and not as rendering the estate conveyed conditional. Downen v. Rayburn (111.), 3-36. e. Reservations and exceptions. Distinction. — A reservation in a deed is the creation in behalf of the grantor of a new right issuing out of the thing granted, something which did not exist as an inde- pendent right before the grant, while an ex- ception is a clause in a deed which withdraws from its operation some part of the thing granted which would otherwise have passed to the grantee under the general description. A reservation is always in favor of the grantor, and if it does not contain words of inheritance it exists only for the life of the grantor. Stone v. Stone (la.), 18-797. Exception of timber groiving on land. — A clause in a deed which reads, "except- ing a certain lot of timber growing and standing in the southwest corner of the afore- described quarter section," and which de- scribes by metes and bounds the land upon which such timber is situated, and which declares that " said timber reserve is made for the express use and benefit and behoof " of H. S., a son of the grantor, must be con- strued as an exception in favor of H. S. per- sonally of a certain lot of timber, which exception terminates upon the death of H. S., or upon his conveyance of all his right, title, and interest in the property to the grantees in the deed. Such clause does not constitute a reservation in favor of the grantor or his heirs, nor does it constitute an exception in favor of H. S. of the land upon which the timber is situated. Stone v. Stone (la.), 18-797. Reservation of life estate in grantor. — Where a conveyance of land reserves a life estate in the grantor, the reservation is valid and eifectual to prevent the vesting of an immediate estate of freehold in one to whom the grantee conveys land during the life of the original grantor. Redding v. Vogt (N. Car.), 6-312. f. Inconsistent provisions or recitals. Consideration of primary intention. — A will or a deed containing two inconsist- ent provisions, one indicating that a life estate only in real estate is intended to be conveyed to a person, and the other giving or granting to such person the absolute and un- limited power of alienation and disposition of such estate in fee simple, will be held to pass a life estate, or a fee simple, as the one or the other may appear to be the primary intention disclosed by a consideration of the whole instrument. Morgan v. Morgan (W. Va.), 9-943. Rejection of repugnant and uncer- tain provisions. — Where a deed conveys land to a trustee for the benefit of a married woman for life, with a direction that the trustee shall permit the life tenant to oc- cupy and enjoy the land and its rents and profits for her sole and separate use, and provides that the trustee shall sell or other- wise dispose of the land at such time, in such manner, and upon such terms of credit or otherwise as the life tenant shall appoint or direct, and further provides that upon the death of the life tenant the land shall go to prtain specified persons, the deed passes an equitable estate in fee simple to ;662 ANN. CAS. DIGEST, VOLS. 1-20. the person designated as the life tenant, and an attempted limitation over after the death of the life tenant is inoperative and void for repugnancy and uncertainty. Morgan v. Mor- gan (W. Va.), 9-943. Conflict betireen habendum and granting clauses. — Every part of a deed should be examined and the instrument con- strued as a whole, but if the habendum con- flicts with the granting clause the habendum must give way, upon the theory that a deed must be construed most strongly against the grantor, in order to prevent contradiction or retraction by a subsequent part of the deed, or to prevent limitation being placed upon a right gi-anted and given in the premises. Whetstone v. Hunt (Ark.), 8-443. Where the granting clause of a deed recites that the land is sold and conveyed to the grantee and his heirs, and the habendum re- cites that the grantee shall hold the land for life without specifying the party to whose life the grant is limited, the deed will be construed as conveying the estate for the life of the grantor, notwithstanding the fact that the language of the habendum would ordinarily import an estate for the life of the grantee, as when the deed is given the prior construction the two clauses do not conflict. Whetstone v. Hunt (Ark.), 8-443. g. As to time of taking eilect. Deed executed in accordance vith contract, — A deed to the premises, exe- cuted upon the payment of the consideration, in accordance with the terms of a contract under which the purchaser has the right of possession, relates back to the date of the contract, and the title is considered, as be- tween the parties, as having vested at the date of the contract. Krakow v. Wille (Wis.), 4-1016. Several deeds executed on same day. — Where several deeds concerning the same subject-matter are executed between the same parties on the same day before the same officer, it is a fair inference that they constituted a single transaction, and they should be held to take effect in such order as will carry out the intentions and secure the rights of all the parties to the transaction. Crabtree v. Crabtree (la.), 15-149. h. Conveyance in trust with power of sale. Measure of estate created. — Where a deed conveying land in trust for the benefit of a married woman for life, with remainder over to a third person, which empowers the trustee to sell or dispose of the property in the manner and upon the terms directed by the life tenant is construed as passing an equitable estate in fee simple to the life ten- ant, the beneficiary has full power to convey her equitable estate in fee by a deed in which her husband joins as provided by statute, without the intervention of the trustee; and the grantee under a deed so executed by the beneficiary is entitled, upon the death of the trustee, to have another trustee appointed for the purpose of making a conveyance of the legal title to the land. Morgan v. Morgan (W.Va.), 9-943. 1. Construction of deed as mortgage. In general. — Where an agent of a cred- itor is authorized to foreclose a mortgage on land and to secure a settlement of the in- debtedness, and the agent instead of foreclos- ing the mortgage takes a conveyance of the land to his principal witli an agreement that the rents from the land are to be applied to the debt, and that the land will be reconveyed to the debtor when he pays the debt, and the creditor accepts and retains the conveyance, he does so subject to the conditions that prop- erly render it a mortgage, especially when the consideration for the conveyance is only the principal of the unpaid debt. De Bartlett v. De Wilson (Fla.), 11-311. Consideration of relations bet-ween parties, — The relations existing between the parties at the time of its execution may be considered in determining whether a deed of conveyance of land absolute on its face was intended to operate as a mortgage to secure the payment of a debt. De Bartlett v. De Wilson (Fla.), 11-311. Seed given for support of grantor, .— A conveyance conditioned for the support of the grantor is treated as a mortgage to secure the grantee's performance of the condition and may be foreclosed by a suit in equity upon breach of the condition. Abbott v. Sanders (Vt.), 12-898. A bill in equity to extinguish and foreclose the defendant's title under a deed by the ora- trix to the defendant, for failure of the de- fendant to support the oratrix as required by a condition in the deed, is not demurrable for want of an offer to do equity by return- ing a pecuniary consideration named in the deed, where the bill alleges a persistent and aggravated abuse of the oratrix with intent to drive her from the premises, and alleges no circumstances that can operate by way of excuse or palliation. Abbott «. Sanders (Vt.), 12-898. Admissibility of parol evidence. — In order to carry out the intention of the par- ties and to prevent fraud and imposition and to promote justice, parol evidence is ad- missible to show that a deed of conveyance of land absolute upon its face was intended to operate as a mortgage; and where it is shown that such a conveyauce was executed t'< secure the payment of money, equity will treat it as a mortgage and will decree a re- conveyance upon accounting and settlement. De Bartlett v. De Wilson (Fla.), 11-311. Sufficiency of evidence, — In a suit to have a deed conveying land adjudged to be a mortgage and for a reconveyance upon ac- counting and settlement, where it is admitted that the debt existed, and that the deed was executed to prevent the foreclosure of a mort- gage upon the same land for such indebted- ness, and no consideration for the conveyance other than the debt is shown, and there is ample evidence to sustain the finding of the chancellor that the deed was intended to se- BfiEE — DEFENSES. 663 cure the payment of the deht, a decree holding the deed to be a mortgage, and directing an accounting before a master will not be dis- turbed on appeal on the ground that the proof is not clear, convincing, and positive. De Bartlett v. De Wilson (Fla.), 11-311. 4. Covenant of Warranty against Inctjm- BEANCES. Eminent domain proceedings as breach. — A covenant of warranty in a deed against all incumbrances except those speci- fied is not broken by the taking of a strip of land for a sewer by a municipality in eminent domain proceedings, as the city obtains there- by an independent title to the land which is not acquired " by, through, or under " the grantor. Weeks v. Grace (Mass.), 10-1077. 5. Revocation or Annulment. BeTocation by later conveyance. — A validly executed deed of sale of standing timber and lease of the land for turpentine purposes, duly acknowledged and recorded, is not revoked by the subsequently executed deed of conveyance of the land made by the same grantor. Richbourg v. Rose (Fla.), 12-274. Annulment for mental incapacity of grantor. — In an action to set aside a deed on the ground of the mental incapacity of the grantor, the chancellor's decree for the de- fendant, sustained by the testimony of a num- ber of witnesses, that the, grantor was en- tirely sane and mentally capable of managing his property, and that the fair cash value of the property did not exceed at .that time the price paid, will not be set aside where the evidence as to the mental capacity of the grantor is almost evenly balanced. Onstott V. Edel (111.), 13-28. Avoidance in action of ejectment. — In an action of ejectment, deeds relied on by the defendant may be attacked and avoided as having been made by a grantor who was mentally unsound and incompetent to execute them, and it is not necessary to resort to a court of equity for that purpose. Smith v. Ryan (N. Y.), 14-505. DEER. See Game and Game Laws. DE FACTO JURY COMMISSIONERS. See JuET, 4 a. DE FACTO MUNICIPAL CORPORA- TIONS. See Municipal Corporations, 1. DE FACTO OFFICERS. See Public Officers, 8. DE FACTO SCHOOL OFFICERS. See Schools, 2. DEFALCATION. Bankruptcy as affecting liability for defalca- tion, see Bankruptcy, 9. DEFAMATION. See Libel and Slander. Defaming court, see Contempt. DEFAULT. Promise to answer for default of another, see Frauds, Statute of, 6. DEFAULT JUDGMENTS. See Judgments, 16. In justices courts, see Justices of the Peace, 4. DEFECTIVE TITLE. A8 affecting liability of purchaser at sheriff's sale, see Executions, 8. DE FACTO CORPORATIONS. See Corporations, 2 e; Municipal Corpora- DEFECTS. Curing defective process, see Summons and tions, I. ^ condemnation proceedings by de facto cor- Process. porations, see Eminent Domain, 2. Defect of parties, see Parties to Actions, 1. DE FACTO COURTS. See CouBTS, 1. DE FACTO JUDGES. See Judges, 1. DEFENSES. Equitable defense to legal cause of action, see Actions. Killing in defense of third person, see Homi- cide, 5 c. Killing in self-defense, see Homicide, 5 b. ANN. CAS. DIGEST, VOLS. 1-20. DEFICIENCY JUDGMENT. Sec Chattel Mobtgaqes, 8; Mobtoaoes atsv Deeds of Tbdst, 13 g. Action to enforce vendor's lien, see Veitoob AND PUBCHASEB, 3 g (3). DEGRADATION. Privilege of witnesses as to degrading ques- tions, see Witnesses, 4 g (5). DEGREE. Conviction of lesser degree of crime charged, see Criminal Law, 6 r (4). Degree of care required in supplying natural gas, see Gas and Gas Companies, 5. Degrees of crime, see Fobbeey, 1 a. Harmless error in defining degrees of crime, see Criminal Law, 6 2 ( 1 ) . Insanity as reducing degree of guilt, see Insanity, 7 b. Singleness of subject of statute relating to delinquent children, see Statutes, 3 b. Special punishment for delinquent children, see Cbiminal Law, 7 a ( 1 ) . DELIRIUM TREMENS. Criminal liability of person afflicted with de- lirium tremens, see Insanity, 7 a. DELIVERY. See Bills and Notes, 4; Deeds, 1 o. Deed delivered in escrow, see EscBow. Element of gift causa mortis, see Gifts, 2 b. Element of gift inter vivos, see Gifts, 1 d. Failure to deliver goods sold, see Fbaudd- lent Conveyances, 1 a. Goods sold, see Sales, 3. Oral contract of sale validated by delivery and acceptance of goods, see Fbauds, Statute of, 9 b. DELAY. Delaying creditors, see Pbaudulent Convey- ances. Denial of right to speedy trial, see Cbiminal Law, 6 c (1). Loss of right to subrogation, see Subboqa- TION, 3 c. DELEGATE. Walking delegate, see Labob Combinations. DELEGATION. Authority of agent, see Agency, 3 a (3). Duty of master to warn and instruct servants, see Master and Servant, 3d (1). Efifect of ordinance as delegating municipal functions to committee, see Municipal Corporations, of (1). Legislative power generally, see Constitu- tional Law, 20. Legislative power delegated to municipalities, see Intoxicating Liquobs, 1. Powers delegable by legislature to municipali- ties, see Municipal Cobpobations, 4 d (1). Power of boards to determine particular facts as delegation of judicial power, see Physicians and Subgeons, 1 b. Power to vacate streets, see Steeets and Highways, 3 c. Statute providing for commutation of sent- ence as delegation of legislative au- thority, see Cbiminal Law, 7 a (1). DELINQUENT CHILDREN. Regulation and control of delinquent chil- dren, see Infants, 4 c. DELUSIONS. Testamentary capacity of persons having de- lusions, see Wills, 4 b. DEMAND. Accrual of cause of action against bank for money deposited, see Limitation of Actions, 4 a (2) (a). Condition precedent to recovery of money de- posited, see Banks and Banking, 5 c. Failure to demand jury as waiver of right, see Jury, 1 e (2). Payment of promissory note, see Bills and Notes, 8. Pleading demand in actions ex delicto, see Pleading, 3 a. Prerequisite to recovery in replevin, see Re- plevin, 3. Prerequisite to specific performance, see Specific Pebfobmance, 3 f (3). When statute of limitations begins to run on demand note, see Limitation op Ac- tions, 4 a (2) (a). DE MINIMUS NON CURAT LEX. Penalty for failure of carrier to pay claim dependent on amount, see Cabbiebs, 2 a. DEMISE. See Landlord and Tenant. Demise vessel, see Ships and Shiffino, 2 a. DEMONSTRATIVE LEGACY. See Wills, 10 b. DEMUKIIAGE — DEPOSITIONS. 665 DEMURRAGE. 6«eiprocal demurrage, see Cabbiebs, 3. DEPORTATION. Of fugitive from justice, see Extbaditiok, 4 e. DEMURRER. Abandonment of answer by demurrer, see Pleading, 4 a (9). Form, propriety, and sufficiency of demurrers in general, see Pleading, 5. In action for injunction, see Injunctions, 3 d. Raising defense of statute of limitations by demurrer, see Limitation of Actions, 8b (1). Review of decision on demurrer to evidence, see Appeal and Ebbob, 4 a. Sustaining demurrer to counter-complaint similar to others permitted to stand, see Appeal and Ebbob, 15 b (2). DEMURRER TO EVIDENCE. See EviDEHCE, 20; Tbial, 6 a. DENIAL. Effect of undenied accusation as evidence of guilt, see Cbiminal Law, 6 n (11) (a). Of principal's title by agent, see Agency, 2. On information and belief, see Pleading, 4 a (3). Right to jury trial, see Jubt, 1 f. DE NOVO. Trial de novo on appeal, see Eminent Do- main, 9 m. DENTISTS. Regulation of practice of dentistry, see Physicians and Subgbons, lb. Right of licensed physician to practice dentis- try, see Physicians and Subgeons, 2. DEPARTMENT STORES. Exercise of banking powers, see Banks and Banking, 2. Injuries caused by crowd in department store, see Negligence, 2. DEPARTURE. Effect of operation of statute of limitations, see Limitation of Actions, 4 b ( 1 ) . Preventing departure from jurisdiction, see Ne Exeat. DEPENDENT. See Benevolent oe Beneficial Associa- tions, 8 b. DEPOSITS. Criminal liability for receipt of deposits of insolvent bank, see Banks and Bank- ing, 7. Demand as essential to accrual of cause of action for money deposited in bank, see Limitation or Actions, 4 a (2) (a). Depositing deeds for registration as delivery, see Deeds, 1 c (3). Money deposited in bank, see Banks and Banking, 5. Money deposited in lieu of bail, see Bail, 5. Savings bank deposit as gift, see Gifts, 1 a. DEPOSITS IN COUIIT. Liability of clerk for interest on money de- posited in court, see Clebks of Coubts. DEPOSITIONS. 1. Right to Take, 665. 2. Who May Be Examined, 666. 3. Issuance of Commission, 666. 4. Execution of Commssion, 666. a. Notice of execution, 666. b. Who may execute, in general, 666. c. Who may write down testimony, 666. d. Who may act as notary, 667. e. Refusal of witness to answer ques- tions or produce evidence, 667. f. Objections and exceptions, 667. 5. Filing or Depositions, 667. 6. Time fob Inspection, 667. 7. SuppBEssioN of Depositions, 667. 8. Admissibility in Evidence, 667. Contradiction of witness by deposition taken in another cause, see Witnesses, 5 b (2) (b). False testimony in unfiled deposition as per- jury, see Pebjuby, 4. Right to tax mileage of witness when deposi- tion could have been taken, see Costs, 8. 1. Right to Take. California statute. — Sections 2020 and 2021 of the California Code of Civil Pro- cedure provide that the depositions of a wit- ness out of the state in all cases, and of a witness in the state in certain enumerated cases, may be taken in an action at any time after the service of the summons or the ap- pearance of the defendant. The disposition of the legislature to amplify the remedy is plainly apparent in the provisions of the code, both with respect to the proceedings to per- petuate testimony and the right to take de- positions de bene esse, and in view of the 666 ANN. CAS. DIGEST, VOLS. J.-20. tendency of legislation, the right to take a deposition must be upheld in any case which falls at once within the principle upon which the jurisdiction in equity was founded, and the letter of the statute. San Francisco Gas, etc., Co. ■!!. Superior Court (Cal.), 17-933. Causes in Proliate Court. — The taking of depositions to be read on the trial in the Probate Court of a claim against a decedent's estate is authorized by statutes providing that depositions may be taken in suits at law and in suits in chancery, and that contested claims against a decedent's estate shall be tried and determined as other suits at law. Zeigler f. Illinois Trust, etc.. Bank (111.), 19- 127. Fending appeal. — Under the above sec- tions of the California Code of Civil Pro- cedure, the existence of an actual, as dis- tinguished from a potential, issue of fact is not made a conclusive test of the right to take depositions de bene esse, and consequently such depositions may be taken pending an appeal, as well as before verdict or findings upon the issues of fact in the action. San Francisco Gas, etc., Co. v. Superior Court (Cal.), 17-933. 2. Who May Be Examined. Party witiout the state. — Under the Colorado statute providing, in substance that parties to actions and proceedings shall be competent witnesses, that the testimony of a witness in the state may be taken by deposi- tion when the witness is a party to the action, and that the testimony of a witness out of the state may be taken by deposition in an action, the testimony of a party although without the state may be taken by deposition. Doherty v. Healy ( Colo. ) , 10-958. Prisoner confined in foreign state. — Where the only person who can establish facts, or a fact, material to the issue in a case is confined in prison in another state, a proper case exists for the issuance of a com- mission to take the testimony of such person, under the California Code of Civil Procedure. San Francisco Gas, etc., Co. v. Superior Court (Cal.), 17-933. 3. Issuance of Cosimission. Duty of clerk to issue. — Duty of the clerk of court to issue a commission to take the depositions of absent witnesses as af- fected by the admissibility of the evidence sought to be produced. State ex rel. Kehoe r. McRae (Fla.), 6-580. Mandamus to compel issuance. — Man- damus will not be granted to compel the clerk of a Circuit Court to issue commissions to take depositions, if the depositions when taken would not be admissible as evidence in the proceeding for which they are taken. State ex rel. Kehoe v, McRae ( Fla. ) , 6-680. Mandamus lies, in a proper case, to com- pel the issuance of a commission by the Su- perior Court to take the deposition of a wit- ness. Assviming that an order of the Su- perior Court denying an application for a commission is appealable, still the remedy by appeal is not exclusive, as it would be in many cases inadequate. San Francisco Gas, etc., Co. V. Superior Court (Cal.), 17-933. From trhat court issued pending ap- peal. — The Superior Court is the proper court to issue a commission to take the de- position of a witness, even though the cause in which the testimony is desired has been appealed to the Supreme Court, and the ap- plication is made pending the appeal. San Francisco Gas, etc., Co. v. Superior Court (Cal.), 17-933. 4. Execution or Commission. a. Notice of execution. What sufficient. — Under the Iowa stat- ute authorizing the court to order the taking, of depositions during " a term of court in which the action is pending," the court has the power to order tlie taking of depositions in disbarment proceedings within, five days; and it is no objection to such order that the defendant has no notice thereof other than that with which he is charged by being a party to the proceedings and being present when the order is made. State v. Mosher (Iowa), 5-984. When not re'quired. — Although the op- posite party resides in the place where the depositions are to be taken, he is not entitled to be informed of the time when and the place where the depositions will be taken, if in- terrogatories are attached to the commission, and have been communicated to him, and the opportunity afforded him to cross the same. De Eenzes v. His Wife (La.), 5-893. b. Who may execute, in general. Officer to i^hom commission is not addressed. — A commission to take testi- mony cannot be executed by an officer to whom it is not addressed. If addressed to " any judge, justice of the peace, or Louisiana commissioner," it cannot be executed by a notary public. De Renzes v. His Wife (La.), 5-893. c. Who may write down testimony. Clerk or stenographer, in general. — The Kentucky statute providing in substance that a deposition must be written and sub- scribed by the witness in the officer's pres- ence, or written by the officer in the presence of the witness, and read to and subscribed by the witness in the presence of such officer, does not require the officer to do the manual labor of writing the deposition, but permits the use of a clerk or stenographer in taking down and transcribing the answers of the witness. Western Union Tel. Co. v. Corso (Ky.), 11-1065. Clerk or stenographer of attorney. — A clerk or stenographer in the employ of the attorney for a party to an action in which a deposition is taken is not a disin- terested person within the meaning of the statute requiring that a deposition snail be DEPOSITIONS. 667 written down by a disinterested person. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. d. Who may act as notary. Clerk of attorney for party. ~ A clerk ill the employ of the attorney for a party to an action is disqualified to act as notary in the taking of a deposiition in the action. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. e. Refusal of witness to answer questions or produce evidence. Penalty. — The complaint of a plaintiff who, upon the taking of his deposition by the defendant, refuses to answer questions, can- not, under the provisions of the California Code of Civil Procedure, be stricken out un- less he refuses to answer after having been adjudged guilty of contempt. O'Neill v. Thomas Day Co. (Cal.), 14-970. Duty of ausiliary oourt to compel prodnctiou of evidence. — The rule as to the duty of an auxiliary court to compel the production of incompetent evidence prevails in taking testimony before a commissioner or examiner, under the federal rules in equity, in the taking of testimony before a master empowered to determine the admissibility of evidence under the federal rules in equity, and in the taking of evidence in actions of law under the U. S. Revised Statutes. Dowa- giac Mfg. Co. V. Lochren (U. S.), 6-573. It is not the duty of an auxiliary court or judge, within whose jurisdiction testimony is being taken in a suit pending in the court of another district, to consider or determine the competency, materiality, or relevancy of the evidence which oue of the parties seeks to elicit. It is the duty of such a court or judge to compel the production of the evi- dence, although the judge deems it incompe- tent, irrelevant, or immaterial, unless the witness or the evidence is privileged, or it clearly and affirmatively appears that the evidence sought cannot possibly be compe- tent, material, or relevant, and that it would be an abuse of the process of the court to compel its production. Dowagiac Mfg. Co. V. Lochren (U. S.), 6-573. f. Objections and exceptions. Time to take. — The Kentucky statute requiring exceptions to depositions, except as tc the competency of the witness or the ad- missibility of his testirnony, to be filed or noted on the record before or during the first term of the court after the filing of the de- position, applies to courts of continuous ses- sion, a term of such a court as to civil ac- tions being regarded as sixty days, and in a cause in such a court an objection that a de- position was not written by the officer taking it cannot be made after the lapse of nearly two years after the filing thereof. Western Union Tel. Co. v. Corse (Ky.), 11-1065. 5. Filing of Depositions. What constitutes. — Depositions are deemed filed when they are delivered to a clerk for the purpose of being filed. Manning r. State (Tex.), 3-867. 6. Time foe Inspection. Waiver. — Under the Maryland statute providing that depositions taken and returned in equity shall be opened by the clerk, and re- main in court ten days subject to inspection before the cause shall be taken up for hear- ing, unless by agreement of the parties such time shall be waived, a party, by failing to object to taking up a cause in which the de- positions have lain in court only five days, waives the statutory provision as to time. Ciark V. Callahan (Md.), 12-162. 7. Suppression of Depositions. Incompetency of notary. — A deposi- tion takt'n before a notary who is incompetent by reason of being in the employ of the at- torney for one of the parties will be sup- pressed, on timely motion made by the oppo- site party, though it is not impeached for improper influence or for incorrectness. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. Continuance to remedy defects. — Where depositions are suppressed upon the ground that when received by the clerk through the mails the envelope inclosing them was found torn open, it is error for the court to refuse an application for a continuance, made immediately thereafter, which complies with the provisions of the Kansas statute, if it appears that the defective condition in which the depositions were received was not caused by any fault or neglect of the party taking the same. Order of United Commer- cial Travelers v. Barnes (Kan.), 7-809. Waiver of right to suppress. — The fact that a party's attorney appears and cross-examines a witness whose deposition is tf.ken before a notary who is a clerk in the employ of the attorney for the opposite party, does not operate as a waiver of his right to suppress the depositions for incompetency of the notary. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. 8. Admissibility in Evidence. Deposition not authorized by court rule. — Where no rule of the trial court au- tliorizes the taking of depositions of certain witnesses, or where it is not shown that such witnesses are within the class of persons whose depositions are by the rules of court authorized to be taken, or that their presence in court cannot be obtained, their depositions nre properly excluded. Lyttle v. Denny (Pa.), 15-924. Deposition of nonresident icitness. — Under the Maryland statutes relating to the manner of taking the depositions of non- resident witnesses, all discrimination in this respect between nonresident parties and other nonresident witnesses is abolished, and the depositions of nonresidents who are not par- ties, taken as presci'ibed for use in courts of law, are admissible in courts of equity. Clark r. Callahan (Ud.) , 12-162. 668 AKi\. GAS. i)lOESl\ VOLS. 1-20. Notary's certificate as evidemoe of regularity. — A recital in a notary's cer- tificate to a deposition that the testimony has been taken down by a disinterested person is not even prima facie evidence of the fact re- cited. Knickerbocker Ice Co. v. Gray (Ind.), 6-607. Prelimiaary proof of absence of irit- ness. — The California statute providing that in order for a deposition to be admissible in evidence " proof must be made at the trial that the witness continues absent or infirm, or is dead," applies only to depositions taken within the state, and therefore a deposition taken in another state may, whether the wit- ness is a resident or a nonresident, be intro- duced in evidence without preliminary proof of the absence of the witness from the state, the presumption being that the absence of the witness has continued, and the burden of proving the contrary being upon the party objecting to the admission of the deposition. Estate of Dolbeer (Cal.), 9-795. Under the California statute providing that " the testimony of a witness in this state may be taken by a deposition . . . when the wit- ness is about to leave the country where the case is to be tried, and will probably continue absent when the testimony is required," the deposition of a witness may be admitted on pioof that he has left the state two days pre- viouslj', though the deposition has been taken since the commencement of the trial. Estate of Dolbeer (Cal.), 9-795. Witness present under subpoena. — Where the contestant of a will has taken the deposition of the proponent, and the pro- ponent attends the trial throughout under subpoena by the contestant, but is not called as a witness -either in his own behalf or in behalf of the contestant, and at the conclu- sion of the proponent's evidence the contest- ant claims the right on the ground of sur- prise to introduce the deposition, it is proper for the trial court to refuse to permit depo- sitions to be introduced in rebuttal, and it is within the discretion of the court to refuse to allow the contestant to reopen Jiis case for the purpose of introducing the deposition. Estate of Dolbeer (Cal.), 9-795. An officer of a corporation is a party to an action to which the corporation is a party within the Wisconsin statute prohibiting actions to obtain discovery under oath, but permitting a party to an action to take the deposition of the adverse party, and therefore the deposition of an ofiicer taken under this statute before the trial may be read on the trial as independent evidence, notwithstand- ing he is present in court. J. H. Clark Co. f Rice (Wis.), 7-505. Striking out part. — Where in an ac- tion of ejectment the depositions of two old persons offered in evidence contain a deed made by them about thirty-three years be- fore, which does not describe the land in con- troversy, and which is not under seal, and also a subsequent affidavit of one of them to the effect that about forty-seven years before he had executed a deed of the land in con- troversy to a person through whosfe heirs the defendant seeks to hold the property, and that when he subsequently made a deed of the said land to a person through whom the plaintiff claims the land, the affiant thought ht was duplicating the original deed, the court commits no error in striking the deed and afiSdavit from the depositions, although the party offering the depositions in evidence claims the right to do so to avoid the con- tradictions and unfavorable testimony con- tained in the depositions. Cross v. Robinson Point Lumber Co. (Fla.), 15-588. DEPOT. See Railboads. Relation of union depot company to railroads using premises, see Masteb and Seb- VANT, 3 f (1) (c). DEPRECIATION. Depreciated earning capacity as element of damage, see Damages, 9 c. Liability of pledgee for depreciation of pledged stock, see Pledge and Coixat- BEAL SECUBITY, 3. DEPRIVATION OF I.IBERTY OR PROPERTY. See Constitutional Law, 9. DEPUTY. Authority of deputy clerk to take acknowl- edgments, see Acknowledgments. Compensation of deputy sheriff, see Shebifes AND Constables, 3. Liability of clerk for acts of deputy, see Acknowledgments. DERAILMENT. Negligence inferred from derailment of car, see Cabbieb, 6 1 (4). DERELICT. Abandoned property as derelict, see Salvage. DEROGATION. Construction of statutes in derogation of common law, see Statutes, 4 b. DERRICK. Injuries caused by defective derricks, see Masteb and Sebvant, 3 c (1). DESCENT AND DISTRIBUTION. 669 DESCENT AND DISTRIBUTION. 1. Nature of Right of Succession, 669. 2. Conflict of Laws, 669. 3. Actions to Recover Property Ac- quired BY Descent, 669. 4. Property Subject to Succession, 669. 5. Who May Inherit, 669. a. Murderer, 669. b. Illegitimate brothers and sisters, 670. 6. Renouncing Succession, 670. See Advancements; Executors and Admin- ISTBATOBS. Inheritance by adopted child, see Adoption of Children. Inheritance taxes, see Taxation, 13. 1. Nature of Right of Succession. The right to take property by inheritance or by will is a natural right which is pro- tected by the Wisconsin constitution and which cannot be wholly taken away or sub- stantially impaired by the legislature. Nun- ncmacher v. State (Wis.), 9-711. 2. Conflict of Laws. What la-w governs. — Whether distribu- tion is eflFected by the state of the domicil of the decedent, or by that- of the locus of the property, the law of distribution is that of the state of the domicil. Kingsbury v. Baze- ley (N. H.), 20-1355. 3. Actions to Recover Property Acquired BY Descent. Heirs suing for the possession and parti- tion of real estate to which they have ac- quired title by descent are not required to show, as a condition precedent to recovery, that the land is not subject to appropriation for the payment of the decedent's debts. O'Keefe v. Behrens (Kan.), 9-867. 4. Property Subject to Succession. Iiands held under contract of pur- chase. — Where a purchaser is in possession of real property under a contract of sale and has paid a part of the purchase price, his interest descends at his death to his heirs and does not pass to his administrator, as it is alienable, descendible, and devisable in the same manner as if it were real property held by legal title. Cutler v. Meeker ( Neb. ) , 8-951. Where, under an agreement between the heirs and the widow of a deceased purchaser who at the time of his death was in posses- sion of land under a contract of sale, the equitable interest in the land has been treated as if it were real property of which the decedent died seized, and dower therein has been assigned to the widow, a deed issued to her in her own name by the vendor for the portion of the land assigned to her as dower up«n her payment of a pro ?-(t?a sharp of the balance due under the contract of sale gives her no new right in the land as against the heirs, but the title she thereby acquires in- ures to their benefit, and she takes the legal title as trustee for them only, and therefore upon her death the heirs of the original pur- chaser are entitled to have their title quieted as against third persons to whom the widow has devised the portion of land assigned to her as dower and subsequently conveyed to her by the original vendor. Cutler v. Meeker (Neb.), 8-951. A vendee in possession of land under a contract of purchase, on which part of the purchase price has been paid, holds an equi- table title to the land which on his death descends to his heirs. Grandjean v. Beyl (Neb.), 15-577. 5. Who May Inherit. a. Murderer. Iowa statute. — The Iowa statute pro- viding that a murderer shall not inherit or take by devise or legacy from his victim, does not prohibit a wife who has murdered her husband from taking her distributive share in his estate provided for by the statute. Matter of Kuhn (Iowa), 2-657. Kansas statute. — The power to declare the rule for the descent of property is vested in the legislature; and where it is provided in plain and peremptory language that a hus- band shall inherit from his deceased wife, and no exception is made on account of crim- inal conduct, the court is not justified in reading into the statute a clause disinherit- ing a husband because he feloniously killed his intestate wife for the purpose of acquir- ing her property. McAllister v. Fair (Kan.), 7-973. Common-law maxim in force in Mis- souri. — The common-law maxim that one who commits murder or claims under a mur- derer cannot profit by the criminal act is a pprt of the law of Missouri unchanged and unmodified by the statutes of that state, and must be read together with the statutes of descent and distribution. Perry v. Straw- bridge (Mo.), 14-92. Under the Missouri statute by which the "widower" is given a share of the deceased wife's property, the word "widower" is to be construed to mean one who has been re- duced to that condition by the ordinary and usual vicissitudes of life, and not one who has created that condition by murder, and a husband who has murdered his wife or those claiming under him are not entitled to any share of the wife's property. Perry v. Straw- bridge (Mo.), 14-92. DlsquaUfyins murderer from in- heriting as attainder. — The provisions of the Bill of Rights of Missouri that " no per- son shall be attainted of treason or felony by the general assembly," and that "no con- viction can work corruption of blood," are not violated by the construction of an inheritance statute so as to prevent a murderer and hia heirs froiri inheriting from his victim, Perry r, Strawbridge (Mo,), 14-92, ' " ^ r 670 Als^N. CAS. DIGEST, VOLS. 1-20. b. Illegitimate brothers and sisters. I The Texas statute of 1840 (section 16) providing that " bastards shall be capable of inheriting or of transmitting inheritance on the part of their mother, and shall also be entitled to a distributive share of the per- sonal estate of any of their kindred on the part of their mother in like manner as if they had been lawfully begotten of such mother," which is based upon a, similar Vir- ginia statute as construed by the Supreme Court of that state, invests bastards with in- heritable blood on the mother's part, and en- ables illegitimate brothers and sisters who are children of the same mother to inherit from each other. Berry v. Powell (Tex.), 16-986. The Texas statute of 1848 which amended the above section by substituting the words " from and through " instead of " on the part of " their mother, was intended so to change the section as to remove all doubt upon the question. Berry v. Powell (Tex.), 16-986. 6. Renouncing Succession. Effect of. — Brothers and sisters, by re- nouncing, in favor of their mother, the suc- cession of a deceased brother, do not estop themselves to contest the right of persons claiming as the children of such deceased brother to share in the mother's estate. Suc- cession of Gabisso (La.), 12-574. DESCRIPTION. Describing stolen property in indictment, see Labceny, 5 a. Sufficiency of description of property, see Fbauds, Statute of, 3 e (2). Supplying description in contract to sell land, see Fbauds, Statute of, 2. DESERTION. Bar of right to alimony, see Alimont and Suit Monet, 4 b. Desertion from army as disqualification for jury service, see Jubt, 2. Ground for divorce, see Divorce, 2 c. Inducing husband to desert wife, see CoN- SPIBACT, 1 a. DE SON TORT. Executor de son tort, see Executobs and Ad- MINISTBATOBS. DESTITUTE. Homes for the destitute as charitable insti- tutions, see Chaeities, 1. DESTRUCTION. Pestroying property used in violation of law, see Game and Game Laws, 6. Destruction of remainders, see Remaindebs Destruction of will as revocation, see Wills 6 b (5). Effect of destruction of record as against sub sequent purchasers, see Recobds, 5.. Power of health officer to destroy property, see Health, 1. Right of seller to recover price of goods de stroyed after delivery, see Sales, 5 c. Seizure and destruction of gambling imple ments, see Gaming and Gaming Houses, 4. Seizure and destruction of unwholesome or adulterated articles of food, see Food, 4, Summary destruction of intoxicating liquors, see Intoxicating Liqdobs, 9. Termination of lease by destruction of prem ises, see Landloed and Tenant, 3 g. DETAINER. Forcible detainer, see Fobcible Entby and Detainee. DETECTIVES. Commission of crime procured at solicitation by complaining witness, see Phtsicians AND SUBGEONS, 3 C. Shadowing by detectives as officers. — It is not an offensive or disorderly act for a private detective to shadow a person, un- known to the latter, for the purpose of keep- ing the latter in view in case it may be neces- sary to serve a subpcena upon him. People' V. Weiler (N. Y.), 1-155. Testimony of detectives. — Testimony of private detectives hired by one spouse to watch the other with a view of obtaining evidence on which to base a suit for divorce, is to he weighed and considered like other testimony, and tried by the same tests, but with the fact in view that the testimony is from a, hired witness. Such testimony is sufficient, though uncorroborated, to sustain a decree for divorce. Taft r. Taft (Vt.), 12-959. The giving of instructions to the jury as to the caution to be observed in weighing the testimony of private detectives or persons employed to find evidence is based upon rules of practice rather than of law, and rests largely in the discretion of the trial judge. Jaynes v. People (Colo.), 16-787. DEVIATION. Estoppel of carrier to enforce limitation of liability, see Caeeiees, 4 f (3). Liability of carriers of live stock, see Cab- eiers, 5 a (2). DEVISEES. See Wills, 10. Competency of devisee as attesting witness to will, see Wills, 3 e (2), DIAGNOSIS — DISCOVEJiY. C71 DIAGNOSIS. See Physicians and Stiiioeons. DICTIONARY. Judicial notice of, see Evidence, 1 h. DICXITM. Judicial dictum distinguished from obiter dictum, see Stake Decisis, 4. DIET. Confining on bread and water diet, see Crim- inal Law, 7 a { 1 ) . DIFIiOMA. Dentists required to bold diploma, see Phy- sicians AND SUKGEONS, 1 b. DIRECT EXAMINATION. Of witnesses in criminal cases, see Criminal Law, 6 m (7). DIRECTING VERDICT. See Criminal Law, 6 r ( 1 ) ; Explosions and Explosives; Trial, 6. In probate proceedings, see Wills, 7 k. DIRECTORS. See CoRPOBATiONS, 7 e. Powers, duties, and liabilities of bank di- rectors, see Banks and Banking, 3 a. DISBARMENT OF ATTORNEYS. See Attorneys at Law, 2. * Right of disbarred attorney to hold office of prosecuting attorney, see Prosecuting Attorneys. DISBURSEMENT. Public funds, see States, 5. DISCHARGE. See Release and Discharge. Discharge by grand jury as termination of prosecution, see Malicious Prosecu- tion, 1 d. Discharge of fireworks as nuisance, see Ex- plosions AND Explosives, 5. Discharging jury in criminal case, see Crim- inal Law, 5 b, 6 1. Effect of discharge in bankruptcy, see Bank- ruptcy, 9. Effect of discharge on preliminary examina- tion as bar to subsequent prosecution, see Criminal Law, 5 b. Effect of discharge without trial, see False Imprisonment, 1. Guarantors, see Guaranty, 3. Seaman, see Seamen, 3 b. Statutory duty of master to state cause for discharge of servant, see Master and Servant, 2 b. Termination of contract of employment by discharge, see Master and Servant. Validity of discharge in bankruptcy, see Bankruptcy, 15. DISCHARGING FIREARMS. See Weapons. DISABII.ITIES. Persons in contempt, see Contempt, 7. Married women, see Husband and Wife, 1. DISAFFIRMANCE. Eight of infant to disaffirm contract, see Infants, 2 b. DISAGREEMENT. Effect of disagreement of jury in criminal cases, see Criminal Law, 5 b. DISCLOSURE. Duty to disclose dangerous character of sub- stance delivered to carrier, see Explo- sions and Explosives, 6 b. DISCONTINUANCE. See Dismissal, Discontinuance, and Non- suit. Review of order granting or refusing, see Appeal and Error, 13. Discontinuing streets, see Streets and High- ways, 3 c. DISAPPROVAL. Disapproval of bills by executive, see Stat- utes, 1 e. DISCOVERY. Right to maintain bill of discovery, ■The receiver of an insolvent corporation 672 ANN. CAS. DIGEST, VOLS. 1-20. that has outstanding shares of stodc on which an assessment is due may maintain a Wll of discovery against a broker who has purchased such shares for responsible clients, but who, with the intention of concealing their identity, has had the certificates of stock issued in the name of an irresponsible person, to compel such broker to disclose the names of the real owners. Kurtz v. Brown (U. S.), 11-576. Validity of statutes authorizing dis- covery. — A state statute providing for the production of documents, which applies only to documents outside of the state, does not deny the equal protection of the laws, be- cause a classification may be based upon the fact that the persons or property dealt with are not within the territorial jurisdiction of the regulating authority. Hammond Pack- ing Co. V. Arkansas (U. S.), 15-645. Even assuming that an order for the pro- duction of documents which is general and indefinite amounts to an unreasonable search and seizure and is consequently wanting in due process of law, a state may, in view of' its visitorial powers over corporations doing business within its borders, require the pro- duction, in a proceeding to determine whether a corporation is violating a state anti-trust statute, of the books and papers of the cor- poration, although such books and papers may never have been within the state. Ham- mond Packing Co. v. Arkansas (U. S.), 15- 645. An order to produce such documents and witnesses is not wanting in due process of law because it is made in a pending suit for the purpose of eliciting evidence as to the liability of the corporation, and because such evidence may be relevant to the defense of the corporation to the claim asserted by the state. Hammond Packing Co. !'. Arkansas (U. S.), 15-645. The provision of such a statute authoriz- ing the striking out of the defendant's pleadings and the entry of a judgment by default because of the defendant's failure to comply with such order, does not amount to a denial of due process of law. Hammond Packing Co. i;. Arkansas (U. S.), 15-645. The federal Supreme Court will not relieve from the consequence of an absolute refusal to obey an order passed in a proceeding under a state anti-trust statute, for the production by a corporation of its nonresident ofiicers or employees whose testimony the attorney-gen- eral desires to take, as well as of documents in the possession or under the control of such officers or employees, when such statute and order have been interpreted by the state court to require merely a bona fide effort to comply therewith. Hammond Packing Co. v. Arkan- sas (U. S.), 15-645. Grounds. — A bill which seeks discovery of one not a party to a pending action at law, to recover money paid to the complain- ant as a carrier on overcharges on freight, " and for failure to furnish cars according to agreement with the party suing at law, and which seeks to enjoin the action at law, held not to state « csuae for discovery on the ground that the complainant does not know the person to whom it is liable, for the plain- tiff in the action at law must shttw that the transactions were with himself before he can recover. Terrell v. Southern R. Co. (Ala ) 20-901. " A bill of discovery solely in aid of a defense to an action at law will not lie against one who is not a party to the record at law. Terrell v. Southern R. Co. (Ala.), 20-901. Tendency to Incriminate as ground for refusal. — In an action for damages for conspiring to induce the plaintiff's workmen to breach their contracts with him, it is no ground for refusing an order requiring the defendants to discover material documents, that some of the documents may tend to in- criminate them. National Assoc, of Opera- tive Plasterers v. Smithies (Eng.), 5-738. Denial of possession or control. — Under the Wisconsin statute authorizing the_ compulsory inspection by a party to an action, of books, papers, and documents in the possession or under the control of the adverse party, an unqualified credible denial by the latter party that such books and papers are in his possession or under his control calls for the vacation of an order re- quiring the production thereof. Schlesinger V. Ellinger (Wis.), 15-315. Under such statute it is not the duty of the adverse party, if he has not control of papers and records of which he is the right- ful custodian, to obtain such control for the purpose of complying with an order for the inspection thereof by his adversary. Schles- inger V. Ellinger (Wis.), 15-315. The rule that where papers have been shown to have been in the posseBsion of the adverse party, it devolves upon him to show what has become of them, is inapplicable to a case wherein there is nothing to indicate that such papers have been in hia possession, and where it appears from his own and other affidavits that such papers have never been in his possession, and that he has made dili- gent and unsuccessful efforts to ascertain their whereabouts. Schlesinger v. Ellinger (Wis.), 15-315. Sufficiency of notice to produce. — Notice to a corporation to produce books and papers is not too broad where it is limited to books and papers concerning dealings be- tween certain dates with named parties and describes with particularity the proceedings in which the papers are to be used. Consoli- dated Rendering Co. v. Vermont (U. S.), 12- 658. An officer of a corporation, ordered to sur- render the books and documents of the corpo- ration for production before the grand jury, cannot complain that the order is too broad, or requires the production of more documents than are necessary, or subjects the business of the corporation to undue investigation, or is designed to fish for evidence in a case not then under consideration, as such objections may be urged by the corporation through its proper officer, before submitting the docu- ments to the grand jury, but afford no ground of personal privilege to the officer ordered to DISCEETION — DISFIGUREMENT. ■673' surrender them. Ex p. Hedden (Nev.), 13- 1173. DISCRETION. Adniission to bail, see Bail, 3, 4. Allowing withdrawal of plea of guilty, see Criminai, Law, 6 j ( 2 ) . Awarding custody and support of children, see Divorce, 7. Controlling exercise of discretionary power, see Mandamus. Denial of motion to vacate adjudication in bankruptcy, see Bankkuptct, 3. Determining fitness of lien for citizenship, see Naturalization. Excluding veniremen from jury, see Jury, 6 e (1). Exercise of discretion by railroad as to fa- cilities and equipment, see Railroads, 5 e. Exercise of municipal power over streets, see Streets and Highways, 3. Exercise of power of eminent domain, see Eminent Domain, 3. Granting or refusing amendments, see Plead- ing, 9 b. Granting change of venue generally, see Change of Venue, 1 e. Granting or refusing change of venue in criminal cases, see Change of Venue, 2 d. Granting or refusing continuances, see Con- tinuances ; Criminal Law, 6 d ( 1 ) . Granting or refusing interlocutory injunc- tions, see Injunctions, 4 a. Granting or refusing mandamus, see Man- damus, 1. Granting or refusing new trial, see New Trial, 2. Issuance of writ of quo warranto, see Quo Warranto, 5. Latitude in cross-examination of witnesses, see Witnesses, 4 b. Leading questions put to witness, see Wit- nesses, 4c (2), Limiting number of witnesses, see Trial, 2 o. Order of proof in criminal cases, see Crim- inal Law, 6 m (1). Permitting counsel to comment on evidence in criminal cases, see Criminal Law, .6 P- . Permitting examination of 'witness remaining in court room after being put under rule, see Criminal Law, 6 n (3). Permitting experiments before jury, see Evi- dence, 6. Permitting view of premises by jury, see Trial, 7. Permitting witness to testify in narrative form, see Witnesses, 4 c (1). Begulation of order of proof, see Trial, 2 a. Requiring election between counts in indict- ment, see Criminal Law, 6 f. Review of exercise of discretionary power, see Appeal and Error, 13. Specific performance of contract, see Specipio Peefobmance, 2. Suspension of sentence, see Criminal Law, 7 b (8). Vols, 1-20 — Ann. Cas. Digest. — 43, DISCRIMINATION. By carrier, see Carriers, 4 h, 6 c (6). Discrimination by employer against members of unions, see Labor Combinations, I a. Discriminatory regulation of railroads, see Carhiebs, 2 b. Exercise of police power by discriminating against minors, see Constitutional Law, 5 a. Fixing price of gas, see Gas and Gas Com- panies, 4 b. License law discriminating against nonresi- dents, see Hawkers and Peddlers, 2. License laws discriminating against nonresi- dents, see Hawkers and Peddlers, 3. Regulation of sale of liquors, see Intoxicat- ing Liquors, 3 u. Right of water company to discriminate in rates, see Waters and Watercourses, 4 b (2). Statutory discrimination against nonresi- dents, see Game and Game Laws, 3 b. Telephone service, see Telegraphs and Tele- phones, 6. Validity of franchise taxes, see Taxation, II a. Validity of statute regulating foreign cor- porations, see Corporations, 13 c (1). Validity of Sunday laws discriminating be- tween occupations, see Sundays and Holidays. DISEASE. Communication of disease by infected car, sea Carbdsks, 6 a (2). Communication of disease to animals, see Animals, 2 a. Defense to action for breach of promise of marriage, see Breach of Promise of Marriage. Destruction of diseased animals, see Health, Ground for divorce, see Divorce, 3 b. Lijfcility for communicating disease causing death, see Death by Wrongful Act, 7. Liability for exposure to infectious disease, _ see Master and Servant, 3 a. Liability of landlord for disease communi- cated by infected premises, see Land- lord AND Tenant, 5h (2). Liability of municipality for maintenance of hospital for contagious disease, see Hospitals and Asylums. Nonexpert opinion evidence as to existence of disease, see Evidence, 8 c. Treatment of disease, see Physicians and Surgeons. DISEASED ANIMArS. See Animals, 6. DISFIGUREMENT. See Mayhem, 674 AXX. CAS. DIGEST, VOLS. 1-20. DISJUNCTIVES. Use of disjunctive particle in affidavit for attachments, see Attachments, 6 b. DIMISSAL, DISCONTINUANCE, AND NONSUIT. 1. Dismissal of Actions. a. Dismissal by court. b. Dismissal by plaintiff. 2. Renewal, Eevivob, and Reinstate- ment OF Actions. Authority of partner to dismiss action by firm, see Paetneeship, 5 b ( 3 ) . Commencement of new action, see Limita- tion OF Actions, 4 b ( 2 ) . Discontinuance of bastardy proceeding as consideration for promise to marry, see Bastaedt. Dismissal because of action as bar to subse- quent action, see Judgments, 6 c. Dismissal of action for injunction, see In- JXTNCTIONS, 4 e. Dismissal of appeal, see Appeal ajtd Ebbor, 11. Dismissal of condemnation proceedings for want of prosecution, see Eminent Do- main, 9 a. Dismissal of indictment after arraignment and plea as putting in jeopardy, see Criminal Law, 5 b. Dismissal of injunction suit as breach of con- dition in injunction bond, see Injunc- tions, 5 c (2). Dismissal of prosecution as termination, see Malicious Prosecution, 1 d. Dismissing indictment, see Indictments and Informations, 8. Effect of rulings in case dismissed without prejudice, see Judgments, 6 c. Motion to dismiss as abandonment of return to prohibition, see Prohibition, 4. Nonsuit as bar to subsequent action, see Judgments, 6 c. Nonsuit in action on fire insurance policy, see Insurance, 5 m ( 8 ) . Raising defense of statute of limitations by motion to dismiss, see Limitation of Actions, 8 b (1). Request for direction of verdict distinguished from nonsuit, see Trial, 6 a. Review of order of dismissal, see Appb^al and Eebor, 4 a. Review of voluntary judgment of nonsuit, see Appeal and Eebor, 4 a. Right to bring new action in state court after dismissal on removal to federal court, see Removal of Causes, 5. Sufficiency of pleadings tested by motion to dismiss, see Pleading, 3 h. 1. Dismissal op Actions. a. Dismissal by court, For failure to prosecute, — Even iij the ^iljsenoe of statutory autbgrizfttio^i, % court may dismiss a suit for a failure of the plaintiff to prosecute it with due diligence, where no sufficient excuse for the failure is presented. Sanitary District v. Chapin (111.), 9-113. For failure to prove immaterial al- legation. — A motion for a nonsuit in an action for death by wrongful act on the ground that no evidence has been given to support the allegation in the complaint of wilful conduct on the part of the defendant is properly denied, where such allegation is not of the gravamen of the pleading, but merely stands by itself without any conclu- sion being predicated on it. Yergy v. Helena Light, etc., Co. (Mont.), 18-1201. After entry of interlocutory decree. — A court of equity has power to dismiss a cause after the expiration of the term in which an interlocutory decree is entered; and such a dismissal will have the effect of va- cating the interlocutory decree. Gray v. Ames (111.), 5-174. Dismissing action upon objection to evidence. — Where a plaintiff offers evi- dence which is admissible under his com- plaint, and also offers evidence which is ad- missible only in rebuttal in the event the defendant attempts to sustain the allegations of his answer, it is error for the trial judg.? in sustaining objections to the evidence ad- missible only in rebuttal to dismiss the com- plaint on the merits. Auten v. Bennett (N. Y.), 5-620. Questions not raised by motion for nonsuit. — A motion to nonsuit is directed solely to the proof of the plaintiff's cause of action, and not to the measure of damages or to the collateral matters such as ancillary jTOceedings, and hence in an action by a vendee of personal property against the ven- dor to recover damages for stoppage of the property in tra/nsitu, where the plaintiff has proved facts which entitle him to at least nominal damages, a motion to nonsuit based on the ground that there is no proof of sub- stantial damages, or on the ground that there is a variance between plaintiff's affidavit for an attachment and the proof on the trial, in that the former alleges a breach of the con- tract while the latter shows a tort, is prop- erly denied. Edwards v. Erwin (N. Car.), 16-393. Effect of motion. — Where a defendant moves for a nonsuit on the plaintiff's evi- dence, he is deemed to admit the existence of every fact which such evidence tends to prove or which can be gathered from any reasonable riesv of the evidence. Allen v. Phoenix Assur. Co. (Idaho), 10-328. Waiver of error in denying motion.— Error in the denial of a defendant's motion for nonsuit, made at the close of the plain- . tiff's evidence and based upon the ground that the plaintiff has not made out a prima facie case, is waived by the defendant where instead of resting upon the denial of his mo- tion he introduces evidence in his own be- half which supplies the defects in the plain- tiff's proof, Lyon V; VnlM MQ4«rii3 (Cal), T-m, DISOBEDIENCE — DISORDEKLY HOUSES. 675 Dismlsaal of equitable action. — A motion to dismiss a complaint on the ground that there is no testimony tending to sustain the allegations thereof, is, in effect, a motion for a nonsuit, which cannot properly be granted in an equitable action. Garner v. Garner (S. Car.), 5-210. b. Dismissal by plaintiff. After submission upon demurrer to evidence. — When a case has been sub- mitted upon a demurrer to evidence, the plaintiff's absolute right to dismiss without prejudice is lost. Bee Building Co. v. Dalton (Neb.), 4-508. After final submission. — A plaintiff cannot dismiss his action without prejudice, after there has been a final submission of it either to the court or jury. Bee Building Co. V. Dalton (Neb.), 4-508. A District Court of Nebraska may in its discretion permit a plaintiff to dismiss a case after it has been fianlly submitted to the court or jury; but where the discretion- ary power of the court is not invoked and the application to dismiss after final submission is made and allowed as a demandable right, the order of dismissal will not be upheld un- less a denial of the application would amount to an abuse of discretion. Bee Building Co. r. Dalton (Neb.), 4-508. After set-off filed. — After a valid plea on set-off has been filed, the plaintiff is not entitled to dismiss his action so as to interfere with the rights of the defendant except upon sufficient cause shown. Wilson ». Exchange Bank (Ga.), 2-597. After filing of answer. — After the fil- ing of an answer by a defendant to a bill in equity, the mere Cling of a praecipe for dis- missal by the complainant, no order of the court being made thereon, cannot operate as a dismissal of the bill. The complainant cannot in this manner discontinue the suit, an order of the court being necessary. Long V. Anderson (Fla.), 5-846. Bills in chancery. — There is no statute or equity rule in force in Florida regulating the dismissal of bills in chancery by the complainant. Long v. Anderson (Fla.), 5- 846. There being no rule of practice adopted by the United States Supreme Court regulating the dismissal of bills in chancery by a com- plainant, the practice of the courts of Florida upon this point must be regulated by the practice of the High Court of Chancery in England. Long v. Anderson (Fla.), 5- 846. Necessity for order of court. — While it is the general rule that a complainant in an equity suit may dismiss his bill at any time before the hearing, it is equally well settled that he cannot do so without an order of court, this practice implying a certain dis- cretion on the part of the court to refusp such order, if, under the particular fact=i of the case a dismissal would be prejudicial to the rights of the defendant. Long i\ Anderson ma,,), 5-846, 2. Renewal, Eevivob, and Reinstatement OF Actions. Reneival under Georgia Code. — Where the liability of the defendants is joint and several with no right of contribution, as in libel, a second action against all the defend- ants to the first suit, served upon some of those jointly suable but severally liable, is within the saving provision of the code grant- ing the right to renew an action within six months. Cox v. Strickland (Ga.), 1-870. Under the code provision granting the right to renew an action, the second suit must be substantially the same cause of action but does not have to be a literal copy of that dis- missed. It must be by the same plaintiff or his legal representative and against all the defendants who are necessary parties to the first suit or their legal representatives. Cox V. Strickland (Ga.), 1-870. The code provision granting the right to renew an action within six months forms an exception to the statute of limitations and has no reference to the subject of venue, and a new action may be brought in any court having jurisdiction thereof in the state. Cox V. Strickland (Ga.), 1-870. Successive actions. — A statute provid- ing that a plaintiff who has been nonsuited " may commence a new action within one year after such nonsuit" is intended to ex- tend the period of limitation where there hsis been a decision not affecting the merits, and it does not authorize successive actions each within a year after nonsuit in the previous action. Morrow v. Atlanta, etc., R. Co. (S. Oar.), 19-1009. Reinstatement after expiration of term. — After the expiration of the term in which a suit in equity is dismissed, the court has no power to reinstate the cause. Gray I'. Ames (111.), 5-174. DISOBEDIENCE. Disobeying master's rules as contributory negligence, see Master and Servant, 3h (2). DISORDERLY HOUSES. Validity of insurance on furniture in dis- orderly house, see Insxibance, 5 c. Place of habitual violation of usury laws as disorderly house. — A person who maintains a place of business in which the law against usury is habitually violated is guilty of the offense of keeping a disorderlv house. State v. Martin (N. J.). 18-986. Abatement as nuisance. — A bawdy house may be abated as a nuisance at the suit of a private citizen where the latter owns the adjoining premises and is specially injured. IngersoU v. Rousseau (Wash.) 1- 35. Injunction to prevent maintenance.^ An Ijijunotion yril\ lie to prevent the mtiln- 676 ANIT. CAS. DIGEST, VOLS. 1-20. tenance of a bawdy house as a public nui- sance injurious to an adjoining resident's property, the remedy at law being inadequate. IngersoU v. Rousseau (Wash.), 1-35. Prior use as defense to injnUotion. — The right of a landowner to restrain an ad- joining property owner from using his prop- erty as a bawdy house, or house of ill fame, to which persons resort for the purposes of prostitution and lewdness, is a right belong- ing to the land, and tlUe fact that defendant's premises were so usfed before plaintiflF pur- chased his property constitutes no defense to an action to enjoin the saifie. Seifert v. Dillon (Neb.), 17-1126. Change in constrnction as defense. — A change in the construction of a bawdy house rendering the same less conspicuous but not materially affecting the injuiy to the surrounding property is not a defense to an action to abate as a nuisance. Ingersoll v. Rousseau (Wash.), 1-35. Effect of laches. ^^ The illegal use of property as a house of ill fame constitutes a continuing injury to a near-by property owner which is unaffected by lapse of time. Seifert V. Dillon (Neb.), 17-1126. Effect of toleration by authorities. — The fact that city authorities have tolerated bawdy houses upon certain property does not legalize their maintenance there when other propertj' is injuriously affected. Ingersoll V. Rousseau (Wash.), 1-35. The fact that municipal authorities tolerate the maintenance of a hotiste of prostitution on defendant's property, and thereby violate the law themselves, donstitutes no defense to a suit by a near-by property owner to en- join such ihaintenance, special damages being shown. Seifert r. Dillon (Neb.), 17- 1126. SufficieiiGy of evidence in prosecu- tion for keeping ba'wdy house. — Under the Alaska statute expressly making " com- mon fame " competent evidence in support of an indictment for keeping a bawdy house for purposes of prostitution, such evidence is not alone sufficient to sustain the conclusion that a house is in fact a bawdy one for purposes of prostitution, and a conviction cannot be had without some additional evidence of the immoral purposes for which the house is kept. Bbtts V. United States (U. S.), 12- 271. DISPARAGEMENT. Instructions disparaging defense of insanity in criminal cases, see Insanity, 7 b. DISPENSARY ACTS. See Intoxicating Liquoks, 1. DISQUALIFICATION. See Judges; Juby; Justices of the Peace; Witnesses. Conviction of crime as disqualifying voters, see Elections, 5. DISRESPECT. Brief cdntaihing disrespectful language, see Beiefs of Counsel. DISSEIZIN. Right of disseized tenant in common to par- tition, see Pabtition, 2 b. DISSOLUTION. Attachments, see Attachment, 6 c. Building associations, see Building and Loan Association, 5. Corporations generally, see Coepoeations, 2 e. Effect of dissolution of municipality on out- standing bonds, see Municipal Corpo- rations, 8e (1). Marriage dissolved by absence of spouse, see Conflict of Laws, 3 d (4). Municipal corporation, see Municipal Cor- porations, 1. Partnerships, see Partnership, 8. Preliminary injunctions, see Injunctions, 4e. DISTANCE. Course and distance, see Boundaries, 1. Judicial notice of distance between towns, see Evidence, 1 g. Opinion evidence as to distance required for stopping electric ear, see Evidence, 8b(3). DISTRESS. Remedy for rent, see Landlord and Tenant, 6 c. DISTRIBUTION. See Descent and Distribution; Exeoutob8 AND Administrators, 12. DISTRICTS. Drainage districts, see Drains. School districts, see Schools. Territory from which jury may be summoned, see JUET, 4 b. DISPOSSESSION. DISTRICT JXTDGl^, Of lessee, see LANni^RD and 'Tenant, 5 i ( 1 ) . See Judges. DISTUEBING MEETINGS — DlVOECE. 6T7 DISTURBING MEETINGS. Religious services held at private residence. — A religious service held at a private residence is not within the North Carolina statute (Code, § 3706) making pun- ishable disorderly conduct " at any place where people are accustomed to meet for divine worship, and while the people are there assembled." .State V. Starnes (N. Car.), 19-448. DISUSE. Condition against disuse of insured prop«rty, see iNStTRANCE, 5g (5). DITCHES. See Dbains ; Ibeigation. Artificial ditch as watercourse, see Watebs AND Watebcoubses, 3 a. DIVERSE CITIZENSHIP. Ground of appellate jurisdiction of United States circuit court of appeals, see Ap- peal AND Ebboe, 3 c (3). Ground for federal jurisdiction, see Coubts, 2b (3). Ground for removal of causes from state to federal courts, see Removal op Catjses, 3 a. DIVERSION. Liability for diverting watercourses, see Watebs and Watebcoubses, 3b (3). DIVIDED COURT. Effect of decision by divided court, see Ap- peal AND Ebbor, 16 a; Stabe De- cisis, 1. DIVIDENDS. Eight to dividends as between pledgor and pledgee of stock, see Pledge and Col- lateeal Secubitt, 2. Eight to stock dividends as between life tenant and remainderman, see Life Estates, 1 c. Stock dividends, see Cobpoeations, 9. DIVINE WORSHIP. See Religious Societies. Disturbing religious services, see Distubbing Meetings. Religious exercises in schools, see Schools. DIVISIBILITY. Divisibility of fire insurance contract, »ee Insueance, 5 f (2). DIVISION. See Pabtition. DIVISION FENCES. See Fences, 2. DIVORCE. 1. Jurisdiction of Court, 677. 2. Gbounds foe Divobce, 678. a. Adultery, 678. b. Cruel and inhuman treatment, 678. c. Desertion, 678. d. Conviction and imprisonment for crime, 678. 3. Defenses, 678. a. Recrimination, 678. b. Condonation, 678. c. Connivance, 678. d. Insanity, 679. e. Illicit relations between parties before marriage, 679. 4. Pleading, 679. 5. Evidence, 679. a. Admissibility, 679. b. Sufficiency, 680. 6. Decbee, 680. a. In general, 680. b. Extraterritorial effect, 680. c. Effect upon property rights, 681. 7. Custody and Support of Childben, 681. 8. Vacating oe Setting Aside Decbee, 682. 9. Appeal, 682. 10. Abatement of Action on Death of Plaintiff, 682. Allowance of alimony, see Alimony and Suit Money. Annulment of marriage, see Maebiaqe, 3. Bar of right to curtesy, see Cubtesy, 4. Contract to facilitate procurement of divorce, see Contracts, 4 d. Effect of divorce on pending action against husband for torts of wife, see Husband AND Wife. Effect on tenancy by entirety, see Husband AND Wipe, 9 d. Extraterritorial force of divorce laws, see Conflict op Laws, 3d (4). Invalid divorce as defense to bigamy, see Bigamy, 3. Marriage of divorced persons, see Marriage, 1 h. 1. JuBisnicTTON OP Court. To grant divorce to defendant. — Where the plaintiff in a divorce suit has 67^ AE-N. CAS. DIGEST, VOLS. i-20. resided within the state for the full statutory period, and the defendant has appeared in the cause, the court has jurisdiction over the parties, and has the right to dispose of all the issues between them upon their merits and according to equity, even if, in order to do so, it is necessary to grant a divorce to a nonresident defendant upon cross-petition. Pine V. Pine (Neb.), 9-1198. 2. QKOtTNDS FOE DIVORCE. a. Adultery. In District of Columbia. — It cannot be presumed that the common-law rule that adultery is not a ground for an absolute di- vorce is in force in the District of Columbia, and that a divorce on that ground granted in a foreign jurisdiction will not be recognized in the District, inasmuch as there is an Act of Congress applicable to the District which provides that an absolute divorce may be granted " where either party has committed adultery during the marriage." Dimpfel v. Wilson (Md.), 15-753. b. Cruel and inhuman treatment. Necessity of personal violence. — Such conduct and acts by a husband toward his wife and such treatment of her by him as produce reasonable apprehension in her of personal violence, or produce mental anguish, distress, and sorrow, and render cohabitation miserable, impairing or tending to impair the wife's health or mind, constitute cruel and inhuman treatment authorizing a divorce from bed and board under the West Virginia statute, though there is no personal violence. GoflF V. Goff (W. Va.), 9-1083. The statutory ground of divorce consisting of cruel and inhuman treatment that indi- cates a settlied aversion of the husband toward the wife and destroys her peace and happi- ness, may arise in various ways that fall short of assault and bodily injury, and are not attended with apprehension of violence or danger, and in the nature of the case each complaint under the statute must be deter- mined by the facts as they are presented. Hooe V. Hooe (Ky.), 13-214. c. Desertion. Refnsal to folloiv change of domicil. — A husband is entitled to a divorce on the ground of desertion if his wife refuses to ac- company him in a change of domicil from one country to another, unless such change is plainly unreasonable. Franklin v. Franklin (Mass.), 5-851. Befnsal of seznal interconrse. — The statutory ground of divorce defined, in sub- stance, as the wilful desertion of the spouse by the other and the remaining absent with- out reasonable cause, is not made out by proof of a refusal of sexual intercourse, but requires the complete separation of the par- ties by one absenting himself or herself from the other. Pfannebecker v. Pfannebecker (Iowa), 12-543. d. Conviction and imprisonment for crime. Effect of pardon. — The conviction of a married person of an offense involving moral turpitude, followed by a sentence of imprison- ment in the penitentiary for two years or longer, gives to the other party to the mar- riage a right to a divorce; and this right is not affected by an executive pardon granted after the sentence has been imposed. Hollo- way V. Holloway (Ga.), 7-1164. 3. Defenses. a. Recrimination. Offenses of different character.— When it is shown that each party to the suit has been guilty of a matrimonial offense which the statute has made a ground for divorce, they will be deemed in "equal wrong," and the court may, in its discretion, refuse to grant a divorce, although the offenses may not be of the same character. Day c. Dav (Kan.), 6-169. Condoned acts as defense. — If a hus- band is guilty of cruel treatment toward his wife, or of adultery, and with full knowledge thereof she condones the offense and cohabits with him, and he is not guilty of any further misconduct, she cannot thereafter at her mere will desert him, and, if suit is brought against her for a divorce on the ground of wilful and continued desertion for three years before the filing of the suit, set up the condoned acts and thereby prevent the grant- ing of a divorce. Davis v. Davis (Ga.), 20- 20. If after the condonation the conduct of the husband is such as to revive the con- doned acts and give her a right to assert them, she is not debarred from so doing; nor is she prevented from setting up misconduct on his part after the condonation, for the consideration of the jury in determining whether a divorce should be granted. Davis V. Davis (Ga.), 20-20. b. Condonation. Of adultery. — A husband will not be granted a divorce on the ground of adultery where the evidence shows, that he lived and cohabited with his wife for more than a year after learning of her misconduct, as he will be deemed to have condoned the offense. Day V. Day (Kan.), 6-169. Of loathsome disease. — The statutory ground of divorce consisting of the existence of a loathsome disease concealed from the other spouse at the time of the marriage or contracted afterwards, is not condoned by sub- sequent cohabitation, especially where the disease is of long continuance and is likely to grow worse with time. Hooe v. Hooe (Ky.), 13-214. c. Connivance. What constitutes. — Evidence that a husband, who is the libelant in an action for divorce, actively aided in procuring a house for an adulterous use by his wife, which otherwise she would not have had, and ar- DIVORCE. 670 ranged that she should not be interfered with or interrupted in its occupancy, shows a con- nivance on his part which defeats any right to the relief asked, and it is immaterial that the wife was unaware of such connivance and assistance. Noyes v. Noyes (Mass.), 10-818. d. Insanity. Insanity after desertion. — A divorce foi wilful desertion will be granted the plain- tiff, where it appears that the defendant was guilty of desertion while of sound mind, though he subsequently became insane and was in that condition at the time of the in- stitution of the divorce suit. Fisher v. Fisher (W. Va.), 1-251. e. Illicit relation between parties before marriage. Wife pregnant by another. — Illicit relations between a husband and wife before marriage are not a bar to an action for di- vorce under a, statute authorizing the main- tenance of such an action " when the wife at the time of the marriage was pregnant by another than the husband, of which he had no knowledge." Wallace v. Wallace (la.), 15-761. But in such an action the antenuptial con- ception does not weaken the presumption of legitimacy arising from the postnuptial birth. Consequently the evidence of the nonaccess of the husband must be of as conclusive a character as that required to bastardize a child conceived during wedlock. Wallace v. Wallace (la.), 15-761. 4. Pleading. Form of action. — An equitable petition for the annulment of marriage, and for the cancellation of a bond to stop a prosecu- tion for seduction, executed pursuant to the Georgia Penal Code, which fails to allege a cause of action in these respects, cannot be retained as a statutory proceeding for di- vorce, especially when it is lacking in a juris- dictional averment required in a libel for divorce, and contains no specific prayer for divorce. Griffin v. Griffin (Ga.), 14-866. Bill alleging tiro gronnds. — A bill seeking a divorce on two grounds, which is good as to the one ground and bad as to the other, must be sustained as against a general demurrer. Trough v. Trough (W. Va.), 8- 837. Averment of residence for statutory period. — Under a statute providing that " a divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the commencement of the action," a complaint for divorce failing to allege the statutory period of residence is fatally defective and confers no jurisdiction on the court to decree a divorce. Rumping V. Eumping (Mont.), 12-1090. Averment of nonresidence of defend- ant. — Under the Missouri statute 'provid- ing for the issuance of an order of publica- tion in suits for divorce upon an allegation in the petition that the defendant is a non- resident of the state or has absconded or ab- sented himself from his usual place of abode in the state, an allegation " that the defend- ant is a nonresident of this state, or that lie has absconded or absented himself from his usual place of abode in this state," is con- tradictory and nugatory, and does not au- thorize an order of puljlication in divorce proceedings. Such alternative allegation of the nonresidence of the defendant is not sim- ply a defect which can be taken advantage of only by special u>.murrer or motion to make the pleading more definite and certain, but goes to the jurisdiction, and publication based thereon is not a. legal or sufficient service of the defendant. Hinkle v. Lovelance (Mo.), 11-794. Necessity of pleading noncompliance ■with statutory requirements in de- fense. — A statute providing that a divorce must be denied unless the action is brought within a certain time is not a mere statute of limitation, but is a substantive part of the cause of action, and an answer setting up the statute is not required to authorize the court to refuse a divorce on the ground that the action was not brought within the time limited. Franklin v. Franklin (Mont.), 20- 339. Verification of petition. — Under the Mississippi statute providing that in suits for divorce " the petition shall be accom- panied by an affidavit annexed thereto, that the facts stated therein are true according to the best knowledge and belief of the plain- tiff," and that the complaint is not made by collusion or out of fear but in sincerity and truth, an affidavit sworn to only by an agent or next friend of an infant plaintiff is in- sufficient, and a decree of divorce rendered on a petition verified only in such manner is a nullity, and subject to collateral attack. In such a case, the proper verification of the petition on the day of entering the final de- . cree in the cause does not cure the previous defective verification, where the defendant has been served by publication only and is not present in court. Hinkle v. Lovelace (Mo.), 11-794. 5. Evidence. a. Admissibility. Of confessions of adultery. — Confes- sions of adultery which are made in the country cannot be given in evidence or con- sidered in a suit for divorce for such offense. Trough V. Trough (W. Va.), 8-837. _ Of adulterous disposition. — In an ac- tion for divorce on the ground of adultery, evidence of incidents showing defendant's adulterous disposition, though not connected in time or place with the alleged act of adultery, are relevant to add to the proba- bility of her having committed the acts relied on. Houlton v. McGuirk (La.), 16-1117. The court having found that two acts of adultery, relied on for a divorce, were com- mitted, evidence of other occasions when the parties were together alone either before or '680 Ais'X. CAS. DIGEST, \'OLS. 1-20. after such acts, is admissible for the purpose of showing an adulterous disposition. Taft ■i\ Taft (Vt.), 12-959. Illicit intercourse irith third persons before marriage. — As neither the dec- larations nor the testimony of either spouse may be received in evidence to prove access or nonaeeess to the other, the affidavit of a wife tending to show nonaeeess of her hus- band during the period when antenuptial conception must have taken place is inadmis- sible in an action by tte husband for a di- vorce on the ground that at the time of the marriage the wife was pregnant by a person other than the plaintiff. Wallace v. Wallace (la.), 15-761. b. Sufficiency. Of marriage. — In an action for divorce on the ground of adultery, evidence that the plaintiff and the defendant were living to- gether as husband and wife, and passed as such in the community in which they lived, creates a presumption of marriage which is sufficient proof thereof, in the absence of any denial. Houlton v. McG-uirk (La.), 16-1117. Of adultery. — In an action for divorce on the ground of adultery, testimony.^ of de- tectives, corroborated by that of a disinter- ested witness, considered and held sufficient to sustain a finding of the defendant's guilt. Houlton V. McGuirk (La.), 16-1117. Adultery, as a ground of divorce, may be proved by circumstantial evidence, provided the circumstances are such as to produce a reasonable belief that the act has been com- mitted. Taft V. Taft (Vt.), 12-959. Of cruelty. — Evidence examined upon a trial de novo and found sufficient to justify the granting of a divorce for extreme cruelty. De fioche v. De Roche (N. Dak.), 1-221. In an action for divorce on the grounds of the refusal of the wife to have sexual inter- course with the husband and of cruel and inhuman treatment of the husbaiid by her, _ evidence examined and held sufficient to show ' a state of health on the part of the wife justifying refusal of intercourse, and insuffi- cient to show cruel and inhuman treatment justifying a decree of divorce. Pfannebecker V. Pfannebecker (la.), 12-543. Of desertion. — Evidence held to make out a case of desertion entitling the husband to a divorce for the refusal of the wife to follow him to a new domicil. Franklin v. Franklin (Maas.), 5-851. ' 6, Decree. a. In general. Division of property between parties. — Under the Michigan statute, the court, in granting a divorce, has the right to decree a division of property between the husband and the wife. Carnahan v. Carnahan (Mich.), 8-53. The Wisconsin statute (St! 1898, § 2364) providing that on a divorce the court may divide and distribute the estate of the hus- band, and so much of the estate of the wife as shall have been derived from the husband, does not authorize the court to award to the husband any part of the wife's estate not de- rived from him. Brenger e. Brenger (Wis.), 19-1136. In settling the property rights of parties upon a judicial dissolution of their marriage contract it is proper, if not the duty of the court, so to provide as to preserve to thpm, subject to their individual rights after the separation of contracting to the contrary, their statutory exemptions from claims of creditors, while at the same time the in- debtedness of each, in determining the prop- erty status to be dealt with in settling property rights, should be considered. Bren- ger V. Brenger (Wis.), 19-1136. Divorce decree as decree for payment of money. — A decree granting a divorce and requiring the successful party to pay a specific fund to the unsuccessful party is not a decree for payment of money in the ordi- nary sense, and the nature of the decree is not affected by its assignment pursuant to the bankruptcy of the party to whom pay- ment is to be made. Carnahan v. Carnahan (Mich.), 8-53. A decree granting a wife a divorce but re- quiring her to pay a specific fund to the hus- band by way of division of their property is not ehforeeable by execution, as it is not a decree for the payment of money in the ordi- nary sense, and therefore under the Michigan statute contempt proceedings lie against the wife for disobeying the decree notwithstand- ing a void execution has issued and an in- effective levy has been made. Carnahan v. Carnahan (Mich.), 8-53. Defense stricken out. — The court has no power to strike out and disregard a depo- sition filed by the defendant in defense of a suit for divorce, for failure to pay money required of him to enable his wife to prose- cute her suit and for temporary alimony, and pass a final decree of divorce against him. Trough 13. Trough (W. Va.), 8-837. Bight to final judgment under New York Code. — Under the provisions of the New York Code of Civil Procedure relative to actions for absolute divorce, it cannot be held that the final judgment in such an ac- tion follows automatically and as a matter of course upon the interlocutory judgment. On the contrary, final judgment can be en- tered as of course only within a specified period, and even within that period it is within the power of the court to forbid its entry. Matter of Crandall (N. Y.), 17-874. b. Extraterritorial effect. Decree of court of existing domicil. — The court of the hona fide existing domicil has jurisdiction to render a decree of divorce between persons originally domiciled and married in another country. The English courts will recognize a divorce so granted, even though the cause for which it was ob- tained would not have been sufficient ground for divorce in England. Bater v. Bater (Eng.), 4-854. DIVOECE. 681 A divorce granted in the Xew York courts held to have been granted with jurisdiction and entitled to recognition in England. Bater ('. Bater (Eng.), 4-854. The courts will recognize the validity of a divorce granted by a court of the country where the parties were legally domiciled at the time when the proceedings were taken, although the decree was founded upon causes which would not be considered sufficient in an English court. Rex v. Hamilton (Can.), 20-868. Decree of foreign court xrithout no- tice. — Where a woman who has married in Canada a man who has always been a domi- ciled Canadian goes to one of the United States with the intention of separating from, her husband and of thenceforth making her home there, and she thereafter ' obtains a divorce in such state, but her husband is not served with any notice of the divorce pro- ceedings and does not take any part therein, the divorce is of no validity or force in Canada. Rex v. Brinkley (Ont.), 10-407. Decree of foreign conrt npou con- structive service. — Where a husband aban- dons his wife without justifiable cause, re- moves to another state, and acquires domicil therein, but the wife remains in the matri- monial domicil, her domicil continues in that state and does not constructively follow her husband; and therefore if the hushand sues for a divorce in the state of his domicil, and a decree is rendered upon constructive ser- vice, the court does not acquire such juris- diction over the wife as entitles the decree to obligatory enforcement in the state of her domicil by virtue of the full faith and credit clause of the Federal 'Constitution, though the state in which the decree is rendered may have power to enforce it within its borders, and the state of the wife's domicil may have power to give it such efficiency as it may see fit. Haddock v. Haddock (U. S.), 5-1. If a suit for divorce is a proceeding in rem, the res is divisible when the plaintiff is domiciled in the state where the suit is brought and the defendant is domiciled in an- other state, so that, though a divorce granted upon constructive service may be valid in the state of the plaintiff's domicil, it has no obligatory extraterritorial force in the state of the defendant's domicil. Haddock v. Had- dock (U. S.), 5-1. Decree of foreign court directing conveyance of land. — Where the Supreme Court of a state makes a decree in an action of divorce, directing the husband, against whom a divorce is granted, to convey certain real property situated in another state to his wife, and a deed is made by a commis- sioner appointed by the court, in pursuance of the decree, but the husband executes a deed of the same property to a third person, a judgment of the Supreme Court of the state in which the land is situated refusing to can- cel ., Seeley (D. C), 12-1058. Decree awarding custody without support. — Under the Maryland statute the power of a court to decree the custody of children and to decide who shall maintain 682 ANN. CAS. DIGEST, VOLS. 1-20. them are separate and distinct powers, and a decree of cilstody and guardianship does not carry with it any necessary implication of support. Alvey v. Hartwig (Md.), 14-250. Poiver .to decree support. — A decree of divorce and for the custody of the children rendered in favor of the wife in a proceeding of which the husband is given notice only by publication cannot validly include an order requiring the husband to support the chil- dren, and hence the fact that the decree is silent on the subject of the support of the children creates no estoppel against the wife as to her right to claim such support. Alvey V. Hartwig (Md.), 14-250. Duty to support not dependent on right .to custody. — The obligation of a father to furnish money for the support of his minor children to the extent that they are unable to support themselves is not im- paired by a decree of divorce which, on ac- count of his own misconduct, deprives him of their care and custody. Graham v. Graham (Colo.), 12-137. The father is not released from his obliga.- tion to support his infant children by reason of the fact that the mother has been granted an absolute divorce front him, and has been awarded the custody of said children by a decree making no provision for their main- tenance. Alvey V. Hartwig (Md.), 14-250. Modification of allowance. — A judg- ment in divorce proceedings awarding the custody of minor children to the wife and as alimony for the support of herself and chil- dred a stated sum per month not exceeding in the aggregate a certain amount, does not determine conclusively the extent of the hus- band's liability or prevent an additional al- lowance for the support of the minor children until they become of age. Graham v. Graham (Colo.), 12-137. Earning capacity of children. — A de- cree requiring a divorced husband to pay an additional allowance for the support of his minor children in the custody of the wife is erroneous in allowing a stated monthly sum for the support of each child until its ma- jority regardless of the amount which a son, almost of age, is able to earn during that time. Graham v. Graham (Colo.), 12-137. Effect of decree on legal obligation. — The legal obligation of a father for the sup- port of his minor children is not impaired by a decree of divorce at the suit of his wife for his misconduct, which gives the custody of the children to her but is silent as to their support, and if under such circumstances the father refuses or neglects to support the children, his divorced wife may recover from him in an original action a reasonable sum for necessaries furnished by her for their support after such decree, as the law implies a promise on his part to pay for such neces- saries. Spencer v. Spencer (Minn.), 7-901. 8. Vacating ob Setting Aside Deceee. Revocation for fraud. — A decree of di- vorce may be revoked on the ground that it was obtained by fraud, where the applica- tion is timely and no rights of third per- sons have intervened. Graham v. Graham (Wash.), 18-999. After death of plaintiff. — A judgment of divorce cannot be vacated after the death of the plaintiff, even with the consent of his executors, though it is void for want of juris- diction over the person of the defendant. Dwyer v. Nolan (Wash.), 5-890. By person not party to suit. — A di- vorce granted by a foreign court, being a judgment affecting the status of the parties, stands on the same footing as a judgment in rem and cannot be set aside in England, even on the ground oif fraud by a person not a party to the proceedings in which the judg- ment was pronounced. Bater v. Bater (Eng.), 4-854. Sufficiency of evidence. — Evidence con- sidered in a bill to review a decree of divorce, and held not to sustain the allegations that the decree was procured by fraud, and that the complainant had no knowledge of the rendition of the decree until after the expira- tion of the time for appeal. Watkinson i. Watkinson (N. J.), 6-326. Iiaches. — Five years' delay after discov- ery of the fraud in commencing a suit to avoid a decree of divorce therefor, constitutes such laches as will defeat the suit, where the limitation of the analogous action at law is three years. Horton v. Stegmyer (U. S.), 20-1134. 9. Appeal. Bight of appeal. — The Khode Island statute providing that petitions for divorce " shall follow the course of equity- so far as the same is applicable," but nowhere stating that a divorce proceeding is always to fol- low the course of equiiy, does not give a right of appea-1 from a final decree of divorce either a mnoulo or a memsa, et thoro, and no appeal lies from such decree. Fidler v. Fid- ler (R. I.), 13-835. Bill of revieiv on ground of condona- tion. — One against whom a divorce for adultery has been granted is not entitled to a bill of review on the ground of condonation, as that is a matter which should have been set up as a defense to the original suit. Watkinson v. Watkinson (N. J.), 6-326. Bevieir of evidence. — The weight and suflBciency of evidence of adultery to war- rant a decree for divorce is for the trial court, and is not reviewable on appeal. Taft V. Taft (Vt.), 12-959. 10. Abatement op Action on Death op Plaintiff. Death after interlocutory Judgment. — Where a husband, suing for an absolute divorce, obtains an interlocutory judgment in his favor, but fails to apply for or obtain a final judgment within the time prescribed by the statute, and dies without having ap- plied for or obtained the same, the action abates, and a final judgment thereafter en- tered by his attorney, pursuant to an order of the Supreme Court, is ineffectual to dis- solve the marriage relation so as to prevent the wife from administering on the estate of DOCKETS — DOMICIL. 683 the deceased as his widow. Matter of Cran- dall (N. Y.), 17-874. Section 763 of the New York Code of Civil Procedure, providing that if either party to an action dies after an interlocutory judg- ment, but before final judgment is entered, the court must enter final judgment in the names of the original parties, unless the in- terlocutory judgment is set aside, applies only to actions which do not abate by death, and has no application to an action for an absolute divorce. Such an action is pre- eminently of a personal nature, and neces- sarily abates with the death of the plaintiff. Matter of Crandall (N. Y.), 17-874. DOCKETS. Waiver of right to trial in equity by failure to transfer cause to equity docket, see Tkial, 1. Injuries by dogs generally, see Animals, 2 d. Injuries by trespassing dogs, see Aniuals, 2 b. Killing trespassing dogs, see Animals, 2 b. DOING BUSINESS. By foreign corporations, see Cobfobations, 13 c (5). DOMAIN. See Eminent Domain; Public Lands. DOMESTIC ANIMALS. See Animals. DOCKING. Prohibiting docking of horses' tails, see Ani- mals, 5. DOMESTIC CORPORATIONS. See COBPOBATIONS. DOCKS. See Whabves. DOCTOR. See Physicians and Subgeons. DOCTRINE OF APPROXIMATION. See Chabities, 3. DOCTRINE OF IMMISCIBILITY. See DoMloiL. DOCTRINE OF RELATION. Effect of delivery in escrow, see EscHOW. DOCUMENTS. See Evidence, 9. Admissibility of book entries to corroborate witness, see Cbiminal Law, 6 n ( 1 ) . Compelling production of documents by de- fendant in criminal case, see Criminal La-vt, 6 n ( 1 ) . Compelling witness to produce incriminating documents, see Witnesses, 4 g. Production of documents generally, see Dis- COVBBY. DOGS. Barking of dogs as nuisance, see N'uisances, 1 b. Evidence as to trailing by bloodhounds, see Cbiminal Law, 6 n (10). DOMESTIC RELATIONS. See Appbentices; Husband and Wife; Mas- TEB AND SEBVANT; PaBBNT AND CHILD. DOMICIL. Change of domicil as affecting rights to com- munity property, see Husband and Wife, 2 h. Place of taxation of personalty, see Taxa- tion, 3 b. Refusal of wife to follow husband's change of domicil as desertion, see Divobce, 2 c. Right of voters, see Elections, 5. Definition. — Domicil is habitation fixed in any place, without any present intention of removing therefrom. Mather v. Cunning- ham (Me.), 18-692. Acquisition in foreign country. — An American citizen may acquire a domicil in the province of Shanghai, China, though by treaty American law has been there substi- tuted for the local Chinese laws in respect to American citizens. Mather v. Cunning- bam (Me.), 18-692. Doctrine of immiscibillty. — The doc- trine of immiscibillty as to persons of dif- ferent races having different laws, religions, manners, and customs, e. g., Americans and Chinese, does not raise a conclusive presump- tion against the acquisition by one of domicil in the country of the other. Mather v. Cun- ningham (Me.), 18-692. Evidence of acquisition. — Evidence ex- amined and held sufficient to show abandon- ment pf domicil of origin and acquisition of domicil of choice in a foreign city. Mather V. Cunningham (Me.), 18-692. 684 AiN'N'. CAS. DIGEST, VOLS. 1-20. Iioss by temporary absence. — A per- son does not lose his domieil in a state by a temporary absence therefrom, unless to the fact of residence elsewhere is added the animus manendi. Watkinson v. Watkinson (N. J.), 6-326. DOMINANT TENEMENTS. See Easements. DOMINION OF CANADA. Liability of government for fires from loco- motives on governmental railroad, see Railroads, 7 e (1). See Gifts. DONATION. DOOBS. Breaking down doors to make arrest, see Arbest, 1 b. Opening unlocked door as breaking in bur- glary, see BUEQLAKY, 1. Storm doors as fixtures, see Ftxtt?res, 3. DORMANT JUDGMENTS. Restraining enforcement of dormant judg- ment, see Injunctions, 2 e (2). Eevival by scire facias, see .TrDGMENTS, 14. DOUBLE ASPECT. Contingent remainder with double aspect, see ifilMAlNDERS. DOUBLE DAMAGES. See Damages, 4. DOUBLE TAXATION. See Taxation 1 b. DOWER. 1. Op What Wife Ts Dowable, 684. 2. Babbino and Defeating Dower, 685. a. Adultery of wife, 685. b. Agreement for separation, 685. c. Release, waiver, or conveyance by wife, 685. d. Adverse possession against hus- band, 685. e. Act of legislflture, 685. f. Tax sale, 686. g. Husband's bankruptcy, 688. 3. Actions or PaocEEniNos to Entarce Dower Right, 686. 4. Allowance to Widow, 686. 5. Natuee op Estate Created, 686. Dower by antenuptial contract, see Husband AND Wipe, 2 a (3). Effect of antenuptial agreement as bar, see Husband and Wife, 2 a. Right of dowress to maintain partition pro- ceedings against heirs, see Partition, 2 b. 1. Op What Wipe Is Dowable. In general. — The right of dower attaches only to those lands of which the husband is seized dining coverture and in which he has an estate of inheritance. Redding r. Vogt (N". Car.), 6-312. The bare possession of land is not seizin. Redding v. Voght (N. Car.), 6-312. Lands in constructive possession o£ hnsband. — Under the Michigan statute providing that a nonresident widow shall be entitled to dower in lands of which her hus- band dies seized, a nonresident widow is en- titled to dower in lands of which her husband has the leijal right of possession at the time of his death, as well as to lands of which he is in actual possession. Putney v. Vinton (Mich.), 9-147. Estates in remainder. — Dower does not attach to land in which the husband has only an estate in remainder expectant upon a life estate, which life estate is not determined during coverture. Redding r. Vogt (N. Car.), 6-312. Land conveyed without joinder by wife. — Where the purchaser of land from a married man whose wife refuses to join in the conveyance pays two-thirds of the pur- chase price and deposits the other third to be paid to the grantor in case he survives his wife, but agrees that in case the grantor dies first the right of dower of the widow shall be satisfied, the purchaser cannot be heard to claim as against the surviving widow that her acceptance of testamentary provisions made for her by her husband bars her right of dower, and the wife is entitled to recover her dower in the premises exclusive of the improvements placed thereon by the pur- chaser. Onstott V. Edel (111.), 13-28. Lands fraudulently conveyed. — When a fraudulent conveyance of a husband's lands is set aside, the dower right of his wife, even though she participated in his fraudulent purpose and joined him in the conveyance, is revived as against his oreditors and their assigns. Huntzicker v. Crocker (Wis.), 15- 444. Land conveyed under power of at- torney. — An owner of land, who gives to another a power of attorney to take posses- sion of the land and sell the same, does not thereby ratify the prior unauthorized act of the attorney in giving a title bond to the land, of which bond the owner was entirely ignorant; and his widow whom he married after the execution of the power of attorney but before it was recorded is entitled to dower in the land, although after the mar- DOWER. 685 riage the land was conveyed by her husband through his attorney to the person to whom the attorney had theretofore given the bond for title. Britt v. Gordon (la,), 11-407. Equity of redemption, — At common law a widow was not dowable of an equity of redemption. Harris v. Powers (6a.), 12- 475. Where an owner of land makes a deed thereof to secure an indebtedness, and takes a bond for reconveyance upon payment of the debt, and dies without having paid any part of the debt or having obtained a reconvey- ance, his widow is not entitled to take dower either in the land as a whole or in the equity of redemption, at least not without first re- deeming the property. Harris v. Powers (Ga.), 12-475. Where the insolvent estate of a decedent is placed in the hands of a receiver for admin- istration by a court of equity, and the case is referred to an auditor for an accounting, creditors, whose claims would be effected by the allowance of dower, have a right to con- test the widow's claim to have dower allowed to her in land in which the husband held only an equity of redemption at the time of his death. Harris v. Powers (6a.), 12-475. The right of the creditors to contest such allowance of dower is not affected by the fact that the receiver, under order of the court, has sold the land conveyed to secure the debts, has paid off the indebtedness, and has a surplus on hand, or by the fact that the creditors have assented to the payment of the secured indebtedness, except as to fees, in order to save accruing interest on the secured debts. Harris v. Powers (Ga.), 12- 475. Iieasehold estate. — Under the Missouri statute (Am. St. 1906, p. 1690) providing that dower in a leasehold estate for a term of twenty years or more shall be granted and assigned as in real estate, and that in a leasehold estate for a less term than twenty years dower shall be granted and assigned as in personal property, the term of years re- ferred to is that named in the lease and not the unexpired portion of the term remaining at the husband's death. The words "granted" and " assigned," as used in the statute, are synonymous and are equivalent to " shall have." Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. A leasehold is " an interest in real es- tate " within the purview of the Missouri statute (Ann. St., p. 1700) which declares that a devise of any raal estate to the tes- tator's widow shall be in lieu of dower unless the will provides otherwise, and that in such case the widow shall not have dower in any of the real estate whereof the hu.iband died seized or in which he had " an interest " at the time of his death, unless she elects not to accept the provisions of the will. Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. 8. BABBIire AWD IteFEATllTO IJOWEB. a. Adultery of wife. In absenise af divorce. — Under the stat- ute of Westminster II., adopted in Arkansas as part of the common law, and extended over the Indian Territory by Congress, a wife who willingly separates from her hus- band and lives in adultery with another, without being thereafter reconciled to her husband, forfeits her right of dower in his lands, and also the interest in his personalty given her by statute as part of her dower. Daniels v. Taylor (U. S.), 7-352. Adultery of the wife does not of itself, in the absence of divorce, bar her right to dower. In re Taylor (Ind. Ter.), 5-226. b. Agreement for separation. In absence of provision for wife's maintenance. — An agreement between hus- band and wife for separation and for release of dower, which makes no provision for the wife's maintenance or for the allotment of property to her, is void for want of consid- eration. In re Taylor (Ind. Ter.), 5-226. c. Release, waiver, or conveyance by wife. Release to hnsband. — A release exe- cuted by a wife to her husband is ineffecual to extinguish her right of dower in his real property. In re Taylor Requiring plaintiff to elect between causes of action, see Pleading, 3 b. Right to take against provisions of will, see Wills, 10 i. ELECTION OF COUNTS. In prosecution for rape, see Rape, 2 a. ELECTION OF REMEDIES. Action against principal for wrong done by agent, see Agency, 3 c. By seller of goods, see Sales, 8 b. Right to sue on original debt after taking note for amount due, see Payment, I. Application of doctrine, in general.^ Doctrine of election of remedies stated. Zim- merman -v. Robinson & Co. (la. (, 5-960. When the doctrine of the election of reme- dies applies. Rowell v. Smith (Wis.), 3-773. Where remedies are consistent. — The doctrine of election of remedies does not pre- clude a person who has pursued one of two coexistent and consistent remedies to judg- ment, which he has been unable to collect, from subsequenty resorting to the other remedy. Standard Sewing Mach. Co. v. Ow- ings (N. Car.), 6-211. A seller of goods is not precluded from maintaining an action to recover damages for the buyer's fraud and deceit in procuring the sale, by the fact that he has previously pur- sued to judgment an action on notes given by the buyer for the purchase price of the goods, where such judgment remains uncollected and is apparently uncollectible, as the two ac- tions are consistent in theory and both are in affirmance of the sale. Standard Sewing Mach. Co. V. Owings (N. Car.), 6-211. Where remedies are inconsistent. — Where more than one remedy to deal with a single subject of action exists, and they are inconsistent, all may be used concur- rently, but satisfaction in one is satisfaction in all. Rowell c. Smith (Wis.), 3-773. Whether coexistent remedies are inconsist- ent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings. American Process Co. v. Florida White Pressed Brick Co. (Fla.), 16- 1054. Improper remedy adopted by mis- take. — Where only one remedy exists to deal with a single subject-matter, but through a mistake one not appropriate is invoked, the proper remedy is not thereby waived. Rowell V. Smith (Wis.), 3-773. Where a person has but one remedy, the fact that he unsuccessfully invokes another remedy will not preclude him from subse- quently resorting to the remedy to which he is entitled, as the doctrine of election of rem- edies does not apply to such case. Zimmer- man V. Robinson & Co. (la.), 5-960. ELECTIONS. 1. consttrutionality op election Laws, 696. a. In general, 696. b. Laws restricting right of suffrage, 696. c. Primary election laws, 696. d. Laws regulating manner of vot- ing, 697. (1) Laws prescribing form of ballot, 697. (2) Laws providing for use of voting machines, 697. 2. constetjction of election laws and Constitutional Pbovisions, 698. 3. Special Elections and Sxtbsiission OF Questions to Voters, 698. a. Notice of election, 698. b. Special election to fill vacancies, 698. c. Special election to vote tax, 698. d. Local-option election, 699. 4. Nomination op Candidates, 699. a. Primaries, 699. b. Nomination by petition, 699. c. Contested nominations, 699. d. Effect of fraudulent nomination, 700. 5. qualrpioations of votebs, 700. 6. Election Officers, 700. 7. Conduct of Elections, 700. a. Place of holding, 700. b. Challenge of electors, 700. c. Ballots, 700. 696 AN:N\ CAS. DIGEST, VOLS. 1-20. d,. Use of voting machines,, 700. e. Counting and canvassing the vote, 700. (1) What ballots should he counted, 700. (2) Votes necessary to a choice, 701. (3) Tie vote, 701. f. Effect of irregularities in election or ballots, 701. 8. Election Contests, 702. a. Remedies available, 702. b.. Evi4enjoe, 702. e. Appeal, 702. 9. Corrupt Practice Acts, 702. 10. Action for Wrowgful Deprivation OF Right to Vote, 702. Appeal in election contests, see Appeal and Ebeor, 4 €. Authorizing creation of municipal indebted- ness, see MtTNiciPAL Corporations, 8 c. Betting on elections, see Gaming and Gam- ing Houses, 1 d. Corporate elections, see Corporations, 8 e (2). Election day as holiday, see Sundays and HOLIDATS, 4. Election of jud'ges, see Judges, 1. Election of public ofBcers generally, see Pub- lic Officers, 3 b. Election of IJnited States senators, see United States. Expression in title of subject of statute re- lating to elections, see Statutes, 3 b. Power of municipality to reimburse defeated candidate for expenses of election con- test, see Municipal Corpoeations, 6. Right to inspect poll books, see Records, 7. School district elections, see ScHoaLS, 3. Voting on constitutional amendments, see Constitutional Law, 27. 1. Constitutionality of Election Laws. a. In general. The Wisconsin primary election law (Laws 1903, c. 451) is not invalid because by its terms it went into effect only after a ratifi- cation by the people, for it became a complete law when it received executive approval and was published, subject to the submission to the people for their ratifieatiom or rejection. State ». Frear (Wis.), 20-633. Legislation on the subject of elections is within the power of the legislature, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself, either directly or by render- ing its exercise so difiScult and inconvenient as to amount to a denial. State v. Frear (Wis.), 20-633. b. Laws restricting right of suflErage. Property qsaliflcation for Toterg. — The provision of the Kansas bill of rights that no property qualification shall be re- quired for any office of public trust or for any vote at any election applies wily to those ofBees and. elections contemplated by the con- stitution, and does not prevent the legislature from authorizing the creation of drainage districts, the powers of which are to he exer- cised by directors who are required to be free- holders elected by resident taxpayers. State ex rel. Gibson r. Monahan (Kan.), 7-661. c. Primary election laws. Po-wer of legislature to regulate primaries, in general. — A state legisla- ture has the right to prescribe- reasonable regulations for holding primary elections, but such regulations must not contravene consti- tutional provisions relating to elections, though primaries were not a part of the elec- tion system at the time of the ad'ption of the constitution. People ex rel. Breckon 17. Board of Election. Com'rs (111.), 5-562. The nomination of party candidates for public ofEce concerns the public welfare, and the legislature in the exercise of the police power may make reasonable regulations therefor. State ex rel. Webber v, Felton (Ohio), 12-65. Nominations of senators. — The Wis- consin primary election law (,Laws 1903, c. 451), providing for the nomination of candi- dates at primaries for the office of United States Senator, and declaring that the person receiving the greatest number of votes at the primary as the candidate of the party, and requiring the secretary of state to pub- lish the result of a canvass of the primary, imposes no legal obligation on any legislator ' to vote for his party nominee at the primary, and there is nothing which forbids the mem- bers of the legislature from making nomina- tions or preventing the holding of any party caucuses, but the action of the electors at a primary amounts only to a petition to the legislature, and the statute so construed is not violative of the Federal Constitution (art. 1, § 3), providing that senators shall he chosen by the state, kgislajtures. State v. Frear (Wis.), 20-633. IiaiB' reciuiring cash payments by can- didates. — The provision of the Illinois Primary Election Act requiring cash pay- ments of specific amounts into the public treasury from persons desiring to become candidates for certain offices, which payments bear no relation to services rendered or to election expenses, are illegal and void as un- warrantably restricting the right of eligible persons to become candidates for public office and the right of the voters to choose eligible persons as candidates. People ex rel. Breckon V. Board of Election Com'rs (111.), 5-562. Iiav prescribing different systems for different counties. — The Illinois Primary Election Act is as a whole void, as it pre- scribes one primary election system for one county of the state and a different system for other counties, and therefore violates the constitutional provision against special legis- lation and the constitutional guaranty that all elections shaJl be free and equal. People ex rel. Breckon v. Board of Election Comrs (111.), 5-562. ELECT IONS. (JttT Iiaw regulating residence of candi- dates. — The provisions of the Illinois Pri- mary Election Act requiring that the legis- lative candidates in a district shall come from particular counties is void as imposing upon candidates and voters restrictions as to the eligibility of candidates, in addition to those imposed by the state constitution. People ex rel. Breckon v. Board of Election Com'rs (111.), 5-562. Delegation of poorer to party com- mittee. — The provision in a statute regu- lating primary elections, that the county central committee of each political party shall determine whether the county officers shall be nominated by the voters at a pri- mary election or by delegates chosen at such election, and shall also determine whether the candidates shall be nominated by a majority or a plurality vote, is unconstitutional as an attempted delegation of legislative power. Peo- ple ex rel. Breckon v. Board of Election Com'rs (111.), 5-562. Kestriction of primaries to political parties. — The Ohio statute providing for primary elections by political parties that cast at least ten per cent, of the vote cast at the last general election, is not violative of the constitution of the state or of the United States, as depriving any person of the equal protection and benefit of the law, or as not being of uniform operation throughout the state, or as authorizing the expenditure of public funds for other than a public purpose, or as delegating legislative power, or as re- stricting the elective franchise, or as impair- ing the secrecy of election by ballot. State ex rel. Webber P. Felton (Ohio), 12-65. The Wisconsin primary election law (Laws 1903, c. 451), in restricting a candidate for nomination on a party ticket to be voted for at a primary, as to th^ number of signatures which he may procure, while the statute ( St. 1898, §§ 30-32) permits a person nominated by nomination papers to secure all the signa- tures to his petition that he is able to se- cure, does not discriminate in favor of candi- dates nominated by nomination papers and against candidates securing a place on the ballot as the nomipees of a political party at the primary election, for as between the can- didates at the primary there is no discrim- ination, and unless there is similarity of conditions there is no discrimination. State ;;. Frear (Wis.), 20-633. Prescribing giiaUficatioiiS. — The Wis- consin primary election law (Laws 1903, c. 451), though permitting members of one political party to vote at the primaries for candidates of a different political party, is not invalid as providing for an opportunity for disrupting political parties through the selection of improper candidates. State v. Frear (Wis.), 20-633. d. Laws regulating manner of voting. ■ (1) Laws prescribing form of ballot. Australian ballot. — The provision in the Pennsylvania ballot law allowing voters wlio wisli to vote for every candidate of a political party to make a cross mark opposite the name of such party is not in violation of the Pennsylvania constitution, which re- quires that " elections shall be free and equal," notwithstanding that voters wishing to vote a split ticket are .required to make a cross mark opijosite the name of every candi- date voted for. Oughton v. Black (Pa.), 4- 141. Number of times name may appear on ballot. — The North Dakota statute prohibiting the printing of the name of a candidate for office in more than one column of the official ballot is, as to a candidate who is the nominee of a single politipal party and the nominee of electors by petition, a reason- able regulation of the manner of exercising the right of suffrage and is valid and consti- tutional. State V. Porter (N. Dak.), 3-794. (2) Laws providing for use of voting machines. Validity, in general. — The Illinois stat- ute providing for the use of voting machi^e3 at elections is not in conflict with the con- stitutional provision that "all votes shall be by ballot." Lynch v. Malley (111.), 2-837. The Michigan statute authorizing the use of voting machines at elections held to be constitutional. Detroit v. Board of In- spectors (Mich.), 5-861. The use of voting machines is not open to constitutional objections where the clioice be- tween candidates can be expressed by the use of the machine or by any other method which does not disclose to the inspector or others the purpose of the voter. Helme v. Board of Election Commissioners (Mich.), 12-473. The Minnesota statute providing for and authorizing, under certain conditions and re- strictions, the use of voting machines at elec- tions does not contravene the provision of the state constitution that all elections shall be by ballot, though the only method of vot- ing in existence at the time the constitution was adopted was by printed ballots. Elwell r. Comstock (Minn.), 9-270. Delegation of poirer to voting ma- chine commission. — The Minnesota stat- ute creating a state " voting machine com- mission " and providing for the use of vot- ing machines at elections is not rendered unconstitutional, as delegating judicial and legislative functions to the commission, by the fact tliat it empowers the commission to pass upon and determine the efficiency of any machine submitted for use, as the power so delegated is administrative in character and is in no proper sense cither judicial or legis- lative. Elwell r. Comstock (Minn.), 9-270. Where right of secrecy is Infringed. — A statute requiring the use of voting ma- chines in an election at which several can- didates are to be elected violates the constitu- tional right of the elector to cast a secret ballot where it is impossible so to arrange the names of candidates upon such machines as to permit a voter to vote for certain com- binations nf candidates and the voter can vote for certain combinations of candidates only by applying to the election inspector for 698 ANK CAS. DIGEST, VOLS. 1-20. a paper ballot, for the reason that a voter cannot ask for and vote such paper ballot without indicating that he does not vote for a combination of candidates that can be voted for on the machine. Helme v. Board of Election Commissioners (Mich.), 12-473. 2. consteuction of election laws and Constitutional Provisions. Iiiberal construction in favor of citi- zen. — The rule that statutes tending to limit the citizen in the exercise of hia right to vote and of having his vote counted should be liberally construed in his favor applies to a statute requiring ballots to be numbered. Montgomery v. Henry (Ala.), 6-965. Constitntional provision requiring ballot. — The provision of the constitution of South Carolina that " all elections by the people shall be by ballot " requires secret voting at elections, and applies to a local option election which by the terms of the local option statute must be conducted ac- cording to the rules provided for general elec- tions. State ea: rel. Birchmore r>. State Board (S. Car.), 13-1133. The provision of the Minnesota constitu- tion that all elections except for town officers shall be by ballot was intended to secure to the electors the privilege of exercising the right of franchise secretly and effectively, and therefore any method of conducting elec- tions whicl^ is sanctioned by legislative au- thority and which will secure and effect that right is a substantial compliance with the constitutional mandate. Elwell v. Comstook (Minn.), 9-27Q. The fact that the legislature soon after the adoption of a constitutional provision that " all votes shall be by ballot," provided by a statute for use at elections of written or printed ballots, does not amount to a con- temporaneous construction of such provision as referring to such kind of ballots only. Lynch v. Malley (111.), 2-837. Constitntional and statntory certifi- cates of registration. — The certificate of registration which in South Carolina is a condition precedent to legal voting, is not the certificate contemplated by the constitution of that state providing that certificates of registration of electors registered prior to 1898 " shall be sufficient evidence to estab- lish the right of said citizens to any subse- quent registration and the franchise under the limitations herein imposed," the inten- tion of the constitutional provision being merely to make the county clerk's certificate of an elector's registration prior to 1898 evi- dence of qualification by which the certificate which is a condition precedent to voting can be obtained. State ex rel. Birchmore v. State Board (S. Car.), 13-1133. Meaning of term " majority of vot- ers." — Where a statute requires a propo- sition to be decided by a majority of the voters of an electorate, it is not necessary that a majority of all the persons entitled to vote shall vote for the affirmative of the proposition, but only that the result shall be decided by the majority of the votes oast; and this is so although the original draft of the statute provided for the decision of the matter by the majority of the voters prpsent and voting while the statute as enacted pro- vides for a decision by the " majority of the legal voters." Southington v. Southington Water Co. (Conn.), 13-411. Application of general election laws to primaries. — A provision in a primary election law that the provisions of the gen- eral election laws " shall be applicable here- to except in so far as the provisions thereof may be inconsistent herewith," expressly limits the applicability of the general elec- tion laws to such provisions of the primary election law as are not inconsistent there- with. Line v. Board of Election Canvassers (Mich.), 16-248. 3. Special Elections and Submission op Questions to Voters. a. Notice of election. Compliance frith statntory require- ments. — Where a statute requires a notice of a special election to be given, stating the time and place thereof, such requirement must be substantially complied with in order to hold a. valid election. State ex rel. Utah Savings, etc., Co. v. Salt Lake City (Utah), 18-1130. Specifying polling places. — A statute providing that notice shall be given of the time and place of holding elections does not require a specification in the' notice of the polling places. State ex rel. Utah Savings, etc., Co. r. Salt Lake City (Utah), 18-1130. b. Special election to fill vacancies. How ordered. — Where, under a charter of a town, elections to fill vacancies in town offices can be ordered only by a quorum of the intendant and wardens or of the wardens, an election ordered by the intendant alone, pursuant to the authority of a mass meeting of a portion of the citizens of the town held without notice or call, is illegal. State ex rel. Jernigan v. Stickley (S. Car.), 15- 136. Who may question validity. — A per- son illegally appointed to fill a vacancy in the office of mayor of a city has no standing to question the legality of a special election to fill the vacancy, where he was not a can- didate at such election and voted for the one who was elected. Hogins v. Bullock (Ark.), 19-822. c. Special election to vote tax. Sufficiency of petition for holding. — In Louisiana the police jury is authorized to order an election for voting a tax in aid of a railway enterprise only when thereto peti- tioned by one-third of the property taxpayers entitled to vote at the election. When, there- fore, the fact of the petition having been signed by the requisite number of voters is put at issue in a suit contesting the election, the burden of proof lies on the police jury, and is not discharged by proof of a com- Electioks. 699 mittee' having verified the signatures and found a suflScient number. The signatures themselves must be produced, or their ab- sence supplied, in case of loss, by equivalent evidence. Tolson v. Police Jury (La.), 12- 847. What must be mentioned in the petition to the police jury for the holding of an election to vote a tax in aid of a railway enterprise, under the Louisiana statute, is the amount of money to be realized from the tax, and not the rate of the tax. Tolson v. Police Jury (La.), 12-847. Recitals in notice. — Under a statute requiring an election on the question of a proposed issue of bonds by a city, and pro- viding that a sufficient tax shall be levied annually to pay the interest on the bond and to create a sinking fund for the payment of the interest within twenty years from the date of the issue, the mode of paying the bonds is not submitted to the voters, but is fixed by the law; and therefore an election authorizing a city to issue bonds is not in- validated by a statement in the notice of election that the net revenue of the water system shall be set apart as a fund for the payment of the bonds. State ex rel. Utah Savings, etc., Co. v. Salt Lake City (Utah), 18-1130. Necessity that propositions be stated singly. — In voting a tax under article 270 of the Louisiana constitution, the proposi- tion of the particular tax must be submitted singly and on its own merits to the voters, and not so coupled with some other propo- sition that the voters cannot vote upon either proposition singly, but must vote for, or else against, both. Tolson v. Police Jury (La.), 12-847. A ballot submitting to the voters of a city a proposition to issue bonds to purchase or to contract for the construction of waterworks is dual under the Kansas statute, and an election carried by the use of such ballots is void. Leavenworth v. Wilson (Kan.), 2-367. d. Local-option election. Form of proposition to be snbniitted. — Under the Kentucky statute, electors who petition for the holding of a local-option elec- tion may embody in a proposition to be sub- mitted to the voters the questions whether the sale of intoxicating liquors in the terri- tory mentioned shall be prohibited and whether the prohibition shall apply to drug- gists; and when the proposition is so framed it must be voted upon as a whole, as the two questions are not severable. Erwin v. Benton (Ky.), 9-264. 4. Nomination of Candidates. a. Primaries. tJse of voting machines. — Under a statute authorizing the use of voting ma- chines at all state, county, city, village, and township elections, the elections referred to are elections to public ofiice, and such ma- - chines cannot be used at a primary election unless it can be fairly inferred from the primary election law that the use of voting machines was intended or unless such ma- chines are adapted to the requirements of such law. Line v. Board of Election Can- vassers (Mich.), 16-248. Where the objects of a primary election law are to prevent voters from voting except for the candidates of their respective parties and to give to each candidate an equal advan- tage with his party competitors so far as position upon the ballot is concerned, a pro- vision in the general election laws authoriz- ing the use of voting machines cannot be held to be adapted to primary elections. Line v. Board of Election Canvassers (Mich.), 16- 248. Under a provision in a primary election law that ballots other than those furnished by the board of election commissioners shall not be used, cast, or counted, a primary elec- tion can be held only through the use of bal- lots, the use of voting machines at such elec- tions being unlawful. Line v. Board of Election Canvassers (Mich.), 16-248. . b. Nomination by petition. Sufficiency of nominating papers. — Nomination papers for the oifice of county judge are sufficient under a statute requiring that each voter shall " add to his signature his business and residence, street and num- ber, if any," where some of the subscribers to the papers indicate their business or resi- dence by placing ditto marks below the busi- ness or residence of former subscribers. State ex rel. Dithmar v. Bunnell (Wis.), 11- 560. The fact that nomination papers after be- ing signed are wrongfully and unlawfully changed by interlineation, so as to make the papers nominate the candidate for both the unexpired and full terms of the oSioe to be filled, does not of itself require the rejection of the votes cast for such candidate. State ex rel. Dithmar v. Bunnell (Wis.), 11-560. c. Contested nominations. Special tribunal for determination.— The Kansas statute creating a special tri- bunal for the settlement of contested nomi- nations is not unconstitutional as granting judicial powers to executive officers or as im- pairing the original jurisdiction of the Su- preme Court. Allen v. Burrow (Kan.), 2- 539. Mandamus. — A dispute over the nomina- tion for a public office can ordinarily be set- tled only by a special tribunal having power by statute to determine such questions; but if it appears that the tribunal has entered into a corrupt agreement to give the decision to one party, the courts will take jurisdic- tion of the controver.sy and decide the ques- tion^ in mandamus proceedings to compel the certification of the proper name for printing on the official ballot. Allen v. Burrow (Kan.), 2-539. 700 ANN. CAS. DIGEST, VOLS. 1-20. d. Effect of fraudulent nomination. Where fair vote was not prevented. — In the absence of a statutory provision to tbe contrary, an election is not invalidated by the fact that the nomination of the success- ful candidate wns fraudulent or illegal be- cause not made in the manner prescribed by statute, unless the noncompliance with the law had the effect of preventing a fair vote. Territory ex rel. Willis v. Kanealii (Hawaii), 7-837. 5. Qualifications of Voters. liegal domicil. — The actual domicil of an elector is his legal domicil for voting, though he has departed from it temporarily, with the intention of returning. Erwin v. Benton (Ky.), 9-264. Permanent residence. — Under the pro- visions of the Wisconsin statutes, a voter who, shortly before an election, eonies into a ward for temporary purposes, and continues to be a mere sojourner therein until the day of election, is not qualified to vote at such election. State ex rel. Hallani v. Lally (Wis.), 15-242. Conviction of crime as disqnaliiica- tion, — The provision of the New York con- stitution requiring the legislature to exclude from the right of suffrage persons " con- victed " of crime, authorizes such disfran- chisement only upon a judgment of convic- tion based upon a verdict of guilty, and a person whose sentence has been suspended after such a verdict is not convicted within the meaning of the constitution or the stat- utes enacted in pursuance thereof. People v. Fabian (N. Y.), 15-100. 6. Election Officers. At local-option elections. — The Ken- tucky statute requires that the election com- missioners of a county shall appoint special officers to hold local-option elections within the county. Erwin v. Benton (Ky.), 9-264. 7. Cokduct of Elections. a. Place of holding. Change of polling place. — It is the general rule that an election should be held at the place designated in the election notice. But, where the board cannot procure the place so designated for the purpose of hold- ing the election, they may, in such emer- gency, change the polling place to another suitable, convenient, and proper location, giv- ing due notice of that fact ; and, unless it ap- pears that a sufficient number of the electors to change the result of the election were de- prived of an opportunity to cast their votes by reason of such change, and where it af- firmatively appears that the election was fairly and honestly conducted, and that the result would have been the same had it been held at the place designated in the notice, such change will not render the election void. Whitcomb v. Chase (Neb.), 17-1088. b. Challenge of electors. Who is a rejected voter. — Under the Kentucky statute, a person who is challenged at an election, and who is honestly refused the right to vote, does not become a rejected voter until he either qualifies by showing his right to vote, or offers to qualify by making the afiidavit required by statute. Erwin «. Benton (Ky.), 9-264. c. Ballots. Definition. — The word "ballot" defined and the term " voting by ballot " defined. Detroit V. Board of Inspectors (Mich.), 5- 861. Use of unauthorized emblems, —r A local-option election which is otherwise valid is not invalidated by the fact that each side uses ballots containing emblems, without having legal authority for their use, where the use of emblems is not expressly prohibited by statute, notwithstanding the fact that the emblem used by the electors favoring prohibi- tion is the Holy Bible, the use of which as an emblem for candidates for office is prohit)ited by statutes. Erwin v. Benton (Ky.), 9-264. Name of candidate to appear but once. — Under the Michigan statutes a can- didate for the office of delegate to the consti- tutional convention of that state can have his name appear only once on the official ballot, although he has been selected by three politi- cal parties. Helrae «. Board of Election Commissioners (Mich,), 12-473. d. Use of voting machines. Legality, in general. — The use of vot- ing machines at an election is not in con- travention of a constitutional provision that the elections shall be by ballot. United States Standard Voting Machine Co. v. Hob- son (la.), 10-972. See also Id (2) ante. Laws Providing for Use of Voting MaoJivnes. e. Counting and canvassing the vote. (1) What ballots should be counted. Diagonal mark instead of cross. — Under statutes providing that the method of voting at an election of a certain kind shall be by the voter's " making a cross in the square at the right of the answer which he intends to give," and that a ballot shall not be counted if the voter's choice " cannot be determined," the making of a diagonal mark- and nothing more in the square opposite an answer does' not sufficiently indicate the voter's intention to authorize the countin,^ of the 'ballot. Brewster v. Sherman (Mass.), n-417. Ballot marked for identification of voter. — An election ballot that is so marked by the elector that his identity is thereby disclosed to any person other than himself is void; and when a mark of identification ap- pears upon a ballot, the elector who cast the ballot cannot be heard to say that he did not ELECTIONS. 701 intend to mark it for tliat purpose. Elwell w. Comstock (Minn.), 9-270. 'Writing npon ballot. — An election bal- lot is not rendered void by the fact that it has written upon it after the name of one of the candidates the word " nit " or the words " may the best man win," if it is clearly ap- parent that the ballot was not so labeled for the purpose of disclosing the identity of the voter. Elwell r. Comstock (Minn.), 9-270. Ballots not numbered. — The Alabama statute requiring ballots oast in elections to be numbered, but not directing that ballots not numbered shall not be counted, is direc- tory merely, and therefore an unsuccessful candidate for ofBoe cannot complain of the election inspectors in counting unnumbered ballots. Montgomery v. Henry (Ala.), 6- 965. Blank Ijallots. — At common law, a blank ballot is not to be counted in estimat- ing the total number of votes cast for an ofBce. Murdoch v. Strange (Md.), 3-66. A mark in the square opposite the blank line on a ballot which contains the names of two candidates, and a blank line with a square opposite each is no evidence of the elector's intent to vote for either of such can- didates, within the meaning of the Wisconsin statute (L. 1907, c. 583) providing that if an elector marks his ballot in the square after the name of any candidate, " or at any place within the space in which the name appears indicating an intent to vote for such person, it shall be deemed a sufficient vote for the candidate whose name is opposite," and therefore it is proper for the court to refuse to submit to the jury the question of the intent of the elector in so marking such ballot. State v. Acker (Wis.), 20-670. Defects dne to fault of officer. — The provision of the Kansas statute that " no ballots other than those provided, printed, and indorsed in accordance with the provi- sions of this act shall 'be delivered to a voter, deposited in the ballot box, or counted," does not authorize the election board or other can- vassing body to review the work of the officer who prepared the ballot and to reject votes by reason of some wrongful act or omission on his part in that connection. Peabody v. Burch (Kan.), 12-719. The fact that the officer who is charged with the duty of preparing an official ballot wrongfully causes to be printed thereon the ticket of a political party which has for- feited its right to representation on the bal- lot by a failure to file a certificate of nomi- nation, does not justify a refusal to count ballots marked in favor of such ticket. Pea- body V. Burch (Kan.), 12-719. (2) Votes necessary to a choice. Effect of votes for ineligible candi- date. — Votes for an ineligible candidate are not thrown away in the absence of a statute so declaring, and where the ineligible candi- date has received a majority or plurality of votes, the eligible candidate receiving the next highest number is not entitled to the office. Sheridan v. St. Louis (Mo.), 2-480, Where a person who is ineligible to hold an office receives a majority of the votes cast in an election therefor, the effect is not to give the office to the qualified person having the next highest number of votes, but to invali- date the election, and in such a case a new election must be held. Dobbs v. Buford (Ga.), 11-117. (3) Tie vote. Decision by lot. — In case of a tie vote at an election of village trustees, the candi- dates cannot determine the result by lot, there being no statute authorizing it. State V. Solomon (Neb.), 17-573. I. Effect of irregularities in election or ballots. Irregularities not affecting result. — > Irregularities or illegalities in an election which do not change the result, will not, in the absence of fraud, cause the expressed will of the body of voters to be set aside unless a constitutional provision is thereby violated or it is specifically provided by statute that such irregularities or illegalities shall in- validate the election. State ex rel. Birch- more V. State Board (S. Car.), 13-1133. Evidence considered, in an election contest, and held insufficient to show that the pro- ceedings of the state voting-machine commis- sion in selecting a particular voting machine for use were so irregular as to justify the disfranchisement of the electors who used the machine in the election in question, in- asmuch as no fraud is charged and it does not appear that the election was not fairly and honestly conducted. Elwell v. Comstock (Minn.), 9-270. Irregularities in preparation of bal' lots. — Although mandatory provisions of statute are disobeyed in the preparation of the official ballot, the will of the voters ex- pressed by means thereof cannot on that ac- count be disregarded. Peabody v. Burch (Kan.), 12-719. Irregularities invalidating eleotiont— The rule which authorizes the court to dis- regard irregularities in the conduct of an election and declare the result according to the legal votes cast where it is shown with reasonable certainty that the irregularities in question did not affect the result, has no ap- plication where the irregularities proved are so widespread and general as to leave the judicial mind in doubt as to how the election would have resulted if they had not occurred. Harrison v. Stroud (Ky.)j 16-1050. Where the proof in an election contest shows that the election officers permitted about twenty per cent, of the persons who voted at the election to vote openly, in viola- tion of the constitutional and statutory pro- visions requiring elections to be by secret ballot, the court should not find in favor of either party to the contest, but should ad- judge that there has been no election. Harri- son V. Stroud (Ky.), 16-1050. Estoppel to question validity of elec- tion, — Electors, by taking part in an elec- 702 ANN. CAS. DIGEST, VOLS. 1-20. tion conducted in violation of a constitutional requirement that all elections by the people shall be by ballot, do not waive the right, or become estopped, to contest the election. State ex rel. Birchmore v. State Board (S. Car.), 13-1133. 8. Election Contests. a. Remedies available. Mandamus. — A voter and taxpayer of a town in which an election has been held to decide whether licenses shall be issued in such town for the sale of intoxicating liquors, is a proper party to sue for a writ of mandamus to compel the registrars of the town not to count a certain ballot cast in such election, and mandamus is the proper remedy. Brews- ter V. Sherman (Mass.), 11-417. Injunction, — Injunction does not lie to prevent an incumbent of a public office, who has received a certificate of election from the election officers, from qualifying and dis- charging the duties of office pending a con- test of the election. Such a certificate, when regular on its face, gives to the person to whom it is issued a prima facie right to the office, and entitles him to discharge the du- ties thereof pending an election contest. Harrison v. Stroud (Ky.), 16-1050. While a -court of chancery has jurisdiction to enjoin the holding of an election which is in violation of the constitution or laws of the state, the court will not interfere in any elec- tion which is not called in violation of such constitution or laws. Conner v. Gray (Miss.), 9-120. The Mississippi statute creating a new county out of the territory of two old coun- ties and providing for the election of officers for the new county is a valid exercise of the power conferred on the legislature by the state constitution, and thm-efore a court of chancery has no power to issue an injunction stopping the election or preventing the elec- tion commissioners from making their re- turns to the secretary of state, notwithstand- ing the fact that the holding of the election will entail additional expense on the tax- payers. Conner i\ Gray (Miss.), 9-120. b. Evidence. Certificate of election. — A certificate of election duly certifying the election of a. person to public office is conclusive evidence of his election and title to such office in a collateral action of mandamus to compel the recognition of another's title to the office. Hoy V. State ex rel. Buchanan (Ind.), 11- 944. Declarations of elector as to hoxr he voted. — Declarations of a voter, made after casting his ballot, that he was not a legally qualified voter and as to how he voted, are admissible, though there is no absolute right to the admission of such evidence, and the court may receive or reject it according to circumstances. The weight of such evi- dence, if admitted, depends largely upon the cirouiBst^moes of the case fts well w vipon th^ circumstances under which the declarations were made. State ex rel. Hallam v. Lally (Wis.), 15-242. c. Appeal. Right of appeal. — A proceeding to con- test an election is not an action at law or a suit in equity, hut is a purely statutory pro- ceeding, and therefore not one in which a writ of error is a writ of right, but an ap- peal as provided by the election law is the only mode of bringing the record up for re- view. Devous V. Gallatin County (111.), 18- 422. Waiver of anthentication of tran- script. — To perfect an appeal from the County Court to the District Court in an election contest, the filing of a duly authen- ticated transcript is required. But if the transcript filed is not duly authenticated, yet no abjection thereto is made by the appellee, and the parties treat it as sufficient and try the case on its merits, the jurisdiction of the District Court cannot be questioned for the first time on appeal to this court. Whitcomb V. Chase (Neb.), 17-1088. 9. CoKBUPT Practices Acts. Statement of expenditures by candi- date. — Under the Minnesota statute known as the Corrupt Practices 'Act, requiring every candidate for public office to file a verified statement of his expenditures, a political aspirant does not become a candidate until he files, in accordance with » statutory require- ment, his affidavit of intention of becoming a candidate for a specified office; and his veri- fied statement of his expenditures need not include items of expense incurred or paid prior to the time of filing such affidavit of intention. State ew rel. Brady v. Bates (Minn.), 12-105. Fraudulent registration. — Evidence examined in a prosecution for fraudulent reg- istration and held to show that the place of registration was within the voting precinct where the accused was alleged to have regis- tered falsely, though the contract for tjie use of the place was excluded. State v. Thava- not (Mo.), 20-1122. The secretary of the board of election com- missioners may testify to the fact that there was a general registration of voters in the city on the date alleged in an indictment for fraudulent registration. State v. Thavanot (Mo.), 20-1122. A remark by the state's counsel in a prose- cution for falsely registering that "one who steals your vote is worse than a thief " is beyond the scope of legitimate argument. State r. Thavanot (Mo.), 20-1122. 10. Action for Wrongful Deprivation of Eight to "Vote. Iiiabllity for wrongful act. — The right of a qualified elector to vote is neither a property right nor a right of person, but it is a mere political privilege; and therefore an ^Jeqtor has no cause of fiction figft^nst 9, per< ELECTORS — ELECTRiCiTY. 700 son who prevents him from voting at an elec- tion unless such person acts maliciously. Morris v. Colorado Midland K. Co. (Colo.), 20-1006. ELECTOBS. See Elections. EI.ECTBICITT. 1. Liability op Electbic Light and Power Companies in Genebal. 2. Liability fob Injuries to Person ob Pbopeety. Contract between electric companies as mo- nopoly, see Monopolies and Cobpoeate Trusts, 2 b. Degree of care required in using electricity as motive power, see Street EAiLWAys, 8 a (2). Electric cars, see Street Railways. Fixing charges for electric light as denying equal protection of laws, see Constitu- tional Law, 10. Liability of municipality for injuries in operation of electric light plant, see Municipal Corporations, 9 b (1). Power house as nuisance, see Nuisances, lb. Right of electric light and power company to condemn private property, see Emi- nent Domain, 4 b. Right of railroad to use electricity for mo- tive power, see Railroads, 5 a. Eight to use water of stream for generation of electric power, see Waters and Watercourses, 3 b (3). 1. Liability of Electric Light and Power Companies in General. As manufacturers. — An electric light company is not a " manufacturer " within the meaning of the Louisiana constitution authorizing the legislature to impose license taxes but exempting " manufacturers " from liability to such taxation. State v. New Orleans" R., etc., Co., (La.), 7-724. 2. Liability foe Injuries to Person ob Property. Xiiability as contractual or tortious — limitation of actions. — Where a minor is injured, while residing in his mother's house, by contact with an electric wire in use there under a contract between an electric company and his mother, and the evidence, in an action to recover damages for the in- jury, tends to show that the wire which caused the injury was ordinarily charged with a harmless current of low pressure, but that, at the time of the accident, it was crossed with a wire carrying a current of high pressure, the action must be regarded as based on negligence, rather than on breach of contract, and if the defendant company is operating under the Consolidated Railway CompRuy'^ Act 9f ]m (5.9 Yict.j o, fi? f?, 0.]), it is entitled to the benefit of the six months' limitation of actions provided by section 60 of that statute. British Columbia Electric R. Co. v. Crompton (Can.), 17-1038. Duty to guard against injuries, in general. — Electric companies are bound to use reasonable care in the construction and maintenance of their poles, crossarms, and wires, and other apparatus, along streets and highways, for the protection of persons and property from injury. Mize v. Rocky Moun- tain Bell Tel. Co. (Mont.), 16-1189. Failure to insulate wires. — Where an electric light company places its wires along- side of and about ten feet from a bridge but within the limits of the land dedicated witli the bridge as a highway, and subsequently the bridge is widened to a point within a few inches of the wires, the company is liable for injuries sustained by a boy under nine years of age touching the uninsulated wires while he is playing on the bridge. Gloster i;. Toronto Electric Light Co. (Can.), 6-529. Where a derrick used in putting up a house in a city street is brought into contact with uninsulated and unguarded overhead wires of an electric light and power company which is authorized by statute to place its wires either overhead or underground, with the result that the current of electricity is diverted to the street, where it kills a workmaji engaged in operating the derrick, the electric company cannot be held liable for the injury, in the absence of a showing that the insulation or guarding of the wires would have been effec- tual to avert the accident. Dumphy v. Mon- treal Light, etc., Co. (Eng.), 9-749. RenioTal of insulation from wires, — In an action for damages for an injury to a child ten years old alleged to have been re- ceived by coming in contact with a live elec- tric wire, a declaration which alleges that the defendant, in transmitting electricity, which it knew to be a dangerous agency, through a thickly settled part of the city, negligently removed the insulation from its wires at the place where they passed through the limbs of a tree which had numerous branches extending almost to the ground, and in which the plaintiff and other children played, and that by reason of the removal of the insulation from the wires they thereby be- came dangerous, while, if properly insulated, they would have been harmless, and that the plaintiflF being ignorant of their dangerous condition, while climbing among the branches of the tree came in contact with the unin- sulated wire and received the injuries com- plained of, is not demurrable as failing to aver that the defendant had reason to believe that the wires were constructed in such a place and manner as to result in an injury to the plaintiff, or as failing to aver th.it it was through the fault of the defendant that the plaintiff was injured. Temple v. Me- Comb City Electric Light, etc., Co. (Miss.) 10-924. V /. Stringing wires everhead as negli- gence. — Where an electric light and power company is authorized by statute to place its wires eitbeT qverhe?!^ or undCTgr^mi^, jt Js^ 704 AjS'X. CAS. DIGEST, VOLS. 1-20. not negligence for the company to place its wires overhead. Dumphy v. Montreal Light, etc., Co. (Bng.), 9,749. Injuries from crossed wires. — Where a telephone wire falls upon an eleetrio light wire and thereby becomes charged with an electric current dangerous to human life, and such current is in turn communicated by the telephone wire to a guy wire attached to a telephone pole, and by tlie guy wire to a wire fence, and by such wire fence to a second wire fence, and finally causes the death of a person who comes in contact with the fence, the negligence of the telephone company and the electric light company in permitting their wires to come in contact may properly bt considered the proximate cause of the death of such person, although the place where he is killed is several miles distant from the place where the wires came in con- tact. In such a case both companies are chiirgeable with knowledge that serious in- jury is likely to result to some person, if their wires are permitted to come in contact. Mize V. Kocky Mountain Bell Tel. Co, (Mont,), 16-1189. Question of negligence for jury. — Ir. an action against the telephone company and the electric light company jointly, to re- cover damages for the death of a person killed under the circumstances above described, where the proof shows that neither of the de- fendants took any precautions to prevent the wives from coming in contact, except to fasten them to the poles, and that the wires, after crossing, were permitted to remain in contact for many hours prior to the accident, the ca3« is properly submitted to the jury, and their finding of negligence against both defendants will not be disturbed. Jlize r. Eocky Moun- tain Bell Tel. Co. (Mont.), 16-1189. Violation of ordinance as evidence of negligence. — In such an action, proof that the wires which came in contact were strung within less than four feet of each other, in violation of a municipal ordinance, is sufli- cient to make out a prima facie case of negligence on the part of both defendants. Mize V. Kocky Mountain Bell Tel. Co. (Mont.), 16-1189. ELEVATORS. Duty of railroads to maintain public grain elevators, see Eaileoads, 5 c. Passenger elevator in private building as car- rier of passengers, see Cakkiers, 1. Eights and liabilities of proprietors of grain elevators, see Warehouses, 1. ELIGIBIi:.ITY. Efi'ect of votes for ineligible candidate, see Elections, 7 e (2). EUSORS. See JuBY, 4 a, EMANCIPATION. Emancipation of children, see Parent akq Child, 7. EMBALMERS. Licensing embalmers, see Licenses, 5. EMBANKMENTS. See Waters and Watercoubses, 3 b (6). EMBEZZLEMENT. 1. Deeinition and Elements op Of- fense, 704. 2. Particular Classes of Persons, 705. 3. Venue of Prosecution, 706. 4. Sufficiency of Indictment, 706. 5. Evidence, 706. a. Admissibility, 706. b. Sufficiency, 706. 6. Sentence and Punishment, 707. Bankruptcy as affecting liability for embez- zlement, see Bankruptcy, 9. Expression in title of statute providing for punishment for embezzlement, gee Stat- utes, 3 b. Liability of bank for embezzlement by em- ployees, see Banks and Banking, 5 b (2). Eeceipt of deposit by bank, see Banks and Banking. 1. Definition and Elements or Offense. In general. — Embezzlement defined. State V. Moyer (W. Va.), 6-344. Essential elements of crime of embezzle- ment stated. State v. Moyer (W. Va.), 6- 344. Refusal of demand for money. — In a prosecution for embezzlement it is not neces- sary to show a demand for the return of money collected by an agent, and a refusal upon his part to return it, where, by the terms of the contract, the time for an ac- counting and the payment of the money is definitely fixed. State v. Moyer (W. Va.), 6-344. Under the West Virginia statute, in a prosecution for embezzlement, if it appears that money or property is unlawfully with- held by the accused from the person en- titled thereto, and that he has failed to re- store or account for such property or money within thirty days after proper demand has been made therefor, he shall be presumed to be guilty, but such presumption may be re- butted by proof. State v. Moyer (W. Va.), 6-344. While, under the West Virginia statute re- lating to embezzlement, a demand for the return of property or money may be made EMBEZZLE^IENT. 705 for the purpose of creating a presumption of fraudulent conversion against the accused, yet it is not essential when emlaezzlement or fraudulent conversion can be otherwise proved, except when, under the peculiar cir- cumstances of the case, demand should be made. State v. Moyer (W. Va.), 6-344. Frandnlent Intent. — The mere deten- tion of money belonging to another without a fraudulent intent to deprive that other of his property does not constitute embezzle- ment. State V. Moyer (W. Va.), 6-344. Receipt of money by virtue of office or employment. — A statute providing that the conversion of money or property received by virtue of one's " office, agency, or employ- ment " shall constitute embezzlement, should be construed reasonably in order to discour- age defalcation, and should be held to include the conversion of money or property received by virtue of the implied as well as the express authority of the agent. Smith v. State (Tex.), 15-435. A traveling salesman who, having charge of a branch of his employer's business, per- mits an article in his custody by virtue of his employment to be removed by another traveling salesman, and who subsequently accepts from the latter the money realized from the sale thereof for the purpose of being transmitted to their common employer, re- ceives such money by virtue of his "office, agency, or employment," within the meaning of such a statute, and if he converts such money to his own use he is guilty of embez- zlement. Smith V. State (Tex.), 15-435. Distinction bettreen embezzlement and larceny. — Where, in a prosecution for larceny, it appears that the driver and ser- vant of a transfer company received goods from a railroad company, lawfully and by virtue of his employment, with instructions to deliver the same to the freight depot of another railroad company, and arriving too late to make such delivery drove to the ware- house of his employer, the transfer company, to leave the team and goods for the night, and after doing so entered into a criminal arrangement with another person for appro- priating the goods, and the following morn- ing, in pursuance of such arrangement, took charge of the team and goods, and, acting with such other person, feloniously converted them, and there is no evidence of any intent on the part of the driver to convert the goods to his own use until after the team and goods were left in the transfer company's warehouse, the mere fact that the goods were left for the night does not change his agency or relationship so as to create a new taking with felonious intent on the following morn- ing, and he and his associate in the felonious conversion are guilty of embezzlement and not of larceny. State v. Casey (Mo.), 13- 878. Under a count of an indictment charging that a named person, being the agent and ser- vant of a transfer company, then and there, by virtue of such employment, had in his pos- session and under his care and control certain property, and did unlawfully and feloniously YoT,s, 1-20 -—Ann, Cas, PIQE.ST, — 45, embezzle and convert to his own use the said property, with the unlawful, fraudulent, i-nd felonious intent to deprive the owner, the said transfer company, of the use thereof, and that the defendant then and there feloniously was present aiding, abetting, and assisting the said servant and agent, the said embez- zlement to do and commit, the defendant, whether guilty as a principal or as an ;ie- cessory before the fact, is only guilty ®f the offense of which the servant and agent of the transfer company is guilty. State v. Casey (Mo.), 13-878. New Mexico statute construed. — The New Mexico statute providing that if " any person " or " any collector or treasurer of any precinct or county " or " the treasurer or disbursing officer of this territory," or " any other person holding an office under the laws of this territory," shall in any way convert to his own use or dispose of moneys of the territory intrusted to him, "so that he shall not be able to meet the demands of any per- son lawfully demanding the same," is not limited to embezzlement by officers, but the clause last quoted applies only to the part of the section including officers. Territory v. Hale (N. Mex.), 13-551. Election of ofCenses. — Under the Mis- sissippi statute providing that if any di- rector, agent, etc., of an incorporated 'com- pany " shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods," etc., he shall be guilty of embezzlement, the alter- nate acts denounced, while separate and dis- tinct, are all acts of embezzlement, stated in different forms, and in a prosecution under the statute no error is committed in refusing to compel the district attorney to elect, after the evidence is all in, as to which of the single acts of embezzlement charged he will rely on for a conviction, especially where the evidence overwhelmingly shows that the ac- cused is guilty of every act of embezzlement supported by the testimony. Starling r. State (Miss.), 13-776. Statute of limitations. — Under the Iowa statute, an indictment for embezzlement must "be found within three years after the commission of the offense and not after- wards," and the running of the statute of limitations is not interrupted by the return of an indictment which is so defective that it is set aside. State v. Disbrow (la.) 8- 190. '• 2. Paktictjlab Classes of Persons. Agents. — An agent who is allowed to retain the amount of his commissions from a fund collected for his principal is guilty of embezzlement if he converts the entire iEund to his own use. Commonwealth v. Jacobs (Ky.), 15-1226. Where by the terms of the contract under which an agent is employed to collect money on commission, he is required to turn over to his employer the whole amount collected be- fore being entitled to commissions, the agent is jiot sueli a \oi^i qwner of the fur\^ f\3 706 ANN. CAS. DIGEST, V03.S. 1-20. will prevent his prosecution and eonvietion for embezzlement of the whole sum. State v. Moyer (W. Va.), 6-344. On a trial for embezzlement, it is not er- ror to instruct the jury that if any portion of the money alleged to be embezzled came into the defendant's hands as agent and in behalf of the principal, and he fraudulently converted the money to his own use, he is guilty of embezzlement thereof. State v. Moyer (W. Va.), 6-344. Guardian. — A charge of embezzling money, in an indictment against a guardian for embezzlement, is suiBciently sustained by proof that the guardian received money of his ward, that he let the money out upon in- terest, and that he embezzled notes taken from borrowers of money. State v. Disbrow (la.), 8-190. Partner. — Where a person engaged in the business of dealing in organs, the instru- ments remaining the property of the manu- facturer until sold, employs another person to sell the organs under an agreement that the employer is to furnish the person em- ployed a team and vehicle and is to board him and take care of the team and vehicle while they are in town, and that the person employed is to pay his own expenses while traveling, and that the two are to share equally in the amount of money received for the organs over and above the cost price and freight, the employer and the person so em- ployed are copartners, and both the organs and the profits are partnership property and cannot be the subject of embezzlement as the property of the employer. McCrary v. State (Tex.),' 14-722. Where, under such circumstances, an organ is sold by the copartner engaged in selling the instruments and a written mortgage is taken on the instrument as the property of the other copartner, the copartner making the sale cannot be guilty of a conversion of the instrument sold or embezzlement of the pro- ceeds of the sale on the ground of an inten- tion at the time of making the sale to appro- priate the proceeds thereof. McCrary v. State (Tex.), 14-722. 3. Venue of Prosecution. Checks drawn on bank in another county. — The venue of a prosecution for embezzlement by the defendant in checking out for his own purposes the funds of the county deposited in bank is properly laid in the county where the cheeks were drawn and all the acts of the defendant were done, al- though the depositary bank which paid the checks is situated in another county. Terri- tory V. Hale (N. Mex.), 13-551. 4. Sufficiency op Indictment. Joinder of embezzlement and lar- ceny. — Under the Iowa statute providing that an indictment must charge but one of- fense, an indictment containing counts of em- bezzlement and larceny charges two offenses, find a conviction thereunder cannot be had unless the prosecution is required to elect upon which count it will proceed. State v. Finnegean (la.), 4-628. Demand and refusal. — In an indict- ment under a statute which does not make demand and refusal an essential element of the offense of embezzlement, it is unnecessary to allege a demand for the property converted and the refusal of the accused to deliver the same. Commonwealth r. Kelly (Ky.), 15- 573. Value of property embezzled. — An indictment charging the embezzlement of the sum of a stated number of dollars in money sufficiently alleges the value of the money embezzled. Territory v. Hale (N. Mex.), 13- 551. Ownership of Property. — Unless the rule is modified by statute, the ownership of property embezzled must be alleged with the same accuracy as in an indictment for lar- ceny. People 1-. Brander (111.), 18-341. An indictment for embezzlement of prop- erty, etc., of the " American Express Com- pany, an association " without alleging in- corporation or such facts as would show that the company could own property by the name given, is fatally defective. People v. Brander (111.), 18-341. 5. Evidence. a. Admissibility. Solvency of defendant. ^ On a trial for embezzlement, evidence of the solvency of the defendant at or immediately prior to the time of the embezzlement is admissible. State V. Moyer (W. Va.), 6-344. Failure to account for other funds. — In a prosecution against a guardian for embezzlement, it is erroneous to admit evi- dence that as guardian of other persons the defendant failed to account for trust funds in his hands, as the mere failure to account neither proves nor implies embezzlement. State V. Disbrow (Iowa)', 8-190. Other offenses. — In the prosecution of a post office clerk for the embezzlement of an article contained in a letter, evidence that the defendant had stated, shortly before his arrest, that he had recently burned up and destroyed a lot of circulars that came into his post office, is admissible, the destruction of mail matter being kindred in its nature to the theft of it and bearing on the ques- tion of the defendant's disposition and inten- tion. Chitwood V. United States (U. S.), 11- 814. On prosecution of postal clerk. — In a prosecution of a post office clerk for the embezzlement of an article contained in_ a letter, where the testimony of government in- spectors that they were watching at a dis- tance and saw the defendant cut open the letter, take the article therefrom, and place it in a pigeonhole is contradicted by the de- fendant, who testifies that he found the arti- cle loose on his table while he was assorting the mail, and placed it in the pigeonhole, in- tending, if he did not find the package "from which it came, to turn it over to the proper authorities, evidence is admissible to show EMBLEMS — EMINENT DOMAIN. 70'J that immediately preceding and up to the time in question it was common for the mail to come into the office in bad condition with the ends and edges of envelopes and packages so broken and worn that solid substances might readily fall from them, such fact being a circumstance tending to support the de- fendant's theory. Chitwood r. United States (U. S.), 11-814. b. Sufficiency. Embezzlement of part of snxu alleged. — Under an indictment for embezzlement it is sufficient for the state to prove embezzle- ment of any part of the amount alleged to have been embezzled. State v. Moj'er (W. Va.), 6-344. Emliezzlemeiit at different times. — On the trial of a charge of embezzlement, proof that the money alleged to have been embezzled by the agent was received in sev- eral sums, at different times, and from dif- ferent persons, during the course of continu- ous dealing between such agent and his prin- cipal, will support a verdict of the jury find- ing the aggregate sum as the amount of a single embezzlement. State v. Moyer (W. Va.), 6-344. Draining checks as embezzlement of money. — There is no variance between an allegation of embezzlement of the public moneys of a county and proof that the de- fendant, without obtaining possession of the actual money, drew checks against the ac- count to which the moneys were deposited which were dulv presented and paid. Terri- tory V. Hale (N. Mex.), 13-551. Proof of corpus delicti. — In a. prose- cution against the secretary of a corporation for embezzlement of its funds, evidence re- vie^^'ed and held to constitute sufficient proof of the corpus delicti to warrant the submis- sion of the case to the jury. People v. Wil- son (Mich.), 17-628. 6. Sentbnck Airo Punishment. Imprisonment for failnre to make restitution. — No principle of justice ia violated by a statute which permits a, sen- tence for embezzlement to include an order for restitution to an amount named, to be satisfied, if the defendant is unable to pay, by further imprisonment, the result of which is to permit the person defrauded to sue the defendant civilly for any excess due him over the amount found by the court. Freeman v. United States (U. S.), 19-755. A provision in a judgment on a conviction of embezzlement, that the defendant, in addi- tion to a term of imprisonment for the crime, shall restore to the owner the sum embezzled, or in lieu thereof shall suffer im- prisonment for a further term, does not con- stitute imprisonment for debt, where the statute requires a sentence for embezzlement to include an order of restitution and for the payment of costs, and provides that if the defendant is unable to satisfy the pecuniary liabilities he shall be subject to a certain additional term of imprisonment. Freeman V. United Stfites (U, S.), 19-755, EMBLEMS. Use on ballots, see Elections, 7 c. EMBRACERY. Good faith as defense. — Under a stat- ute making it a crime for any person to dis- suade or attempt to dissuade any person by threats, bribes, or other corrupt means from giving evidence in any cause, the offense is committed by attempting by corrupt means to dissuade a witness from giving at the final trial of a cause the same evidence that he gave on the preliminary hearing, although the accused honestly believes that the evi- dence is untrue, and although his object is to get the witness to tell at the final trial what the accused believes to be the truth. Eex V. Silverman (Can.), 13-577. EMERGENCIES. Acts in emergency as negligence, see Negli- gence, 7 a; Street Railways 8 a (6). Construction of exception in labor laws, see Labor Laws, 2. Failure of labor law to provide for emer- gencies, see Labor Laws, 1 b. EMINENT DOMAIN. 1. In General, 708. 3. Who May Exercise Power, 708. 3. Discretion in Exercise of Power, 708. 4. Uses for Which Property Mat Be Taken, 709. a. In general, 709. b. What constitutes public use, 709. 5. What May Be Taken, 710. 6. What Amounts to Taking, 711. 7. Compensation, 712. a. In general, 712. b. Time with reference to which compensation is to be estimated, 712. 0. Measure and elements of compen- sation, 712. (1) In general, 712. (2) Part of tract taken, 713. (3) Where land is taken for railroad, 713. (4) Telegraph lines along rail- road, 714. (5) Crossings, 714. (6) Improvements by condem- nor, 715. (7) Benefits. 71.';. d. Allowance of interest, 715. e. Who entitled to compensation, 715. f. Waiver of compensation, 716. 8. Nature and Extent op Rights Ac- quired BY Condemnation, 710, ro8 ANN. CAS. DIGEST, VOLS. 1-20. 9. Condemnation Pboceedings, 716. a. In general, 716. b. Nature of proceeding, 717. c. Venue, 717. d. Effort to purchase as condition precedent, 717. e. Notice to landowner, 718. f. Parties, 718. g. Pleading, 718. h. Preliminary hearing or trial, 718. 1. Tribunal to assess damages, 719. j. Evidence, 719. k. Instructions, 721. 1. Judgment, 721. m. Review of proceedings, 721. n. Costs and fees, 722. o. Possession pending proceedings, 722. 10. Reversion of Condemned Land, 723. 11. Remedies of Landowneb, 723. a. In general, 723. b. Action for damages, 723. c. Injunction, 723. Appeal in condemnation proceedings, see Ap- peal and Eebok, 4 d. Competency of jurors in condemnation pro- ceedings, see JuBT, 5 c. Condemnation proceedings as breach of war- ranty against incumbrances, see Deeds, 4. Deed in condemnation proceedings as evi- dence to show place of crime, see Crim- inal Law, 6 n (1). Proceeding by railroad to acquire right of way, see Railroads, 2 c (1). Proceeding by telegraph and telephone com- pany to acquire right of way, see Tele- graphs AND Telephones, 3. Reassessment of benefits in eminent domain proceeding, as new action, see Limi- tation OF Actions, 4 b ( 2 ) . Record in condemnation proceeding as color of title, see Adverse Possession. Right to compensation for injuries caused by street improvements, see Streets and Highways, 4. Eight to jury trial in condemnation proceed- ings, see Jury, 1 c. 1. In General. Constitutionality of Indiana statute. — The Indiana eminent domain statute is not violative of either the federal or the state constitution. Morrison v. Indianapolis, etc., R. Co. (Ind.), 9-587. 2. Who May Exercise Power. Street railway company. — A street railway company has no right to enter on land for the purpose of constructing its road, until it has acqiiired the right to do so by agreement with the owners or by payment into court of the amount awarded in con- demnation proceedings duly had; but it has the right, if it proceeds in good faith, and without unnecessary and unreasonable delay, to go ahead and appropriate land in the manner pregcri^ecl b^ law, and to be pro- tected in the exercise and enjoyment of its franchise. Fayetteville St. Ry. v. Aberdeen, etc., R. Co. (N. Car.), 9-683. Telegraph company. — The Act of Con- gress empowering telegraph companies to construct lines on public lands, roads, or ^vaters of the United States is merely an ex- ercise of national power to withdraw com- mercial intercourse by telegraph from state control and does not confer upon such com- panies the right of eminent domain. Western L'nion Tel. Co. v. Pennsylvania R. Co. (U. S.), 1-517. De facto corporation. — A corporation which is such de facto only may maintain condemnation proceedings under the law of eminent domain. Morrison v. Indianapolis, etc., R. Co. (Ind.), 9-587. Foreign corporation, — Under the con- stitution and statutes of Montana, a foreign corporation is not authorized to exercise the right of eminent domain. Helena Power Transmission Co. v. Spratt (Mont.), 10- 1055. Lessee of corporation. .— The lessee of a corporation cannot exercise the right of eminent domain conferred by statute upon such corporation. Western Union Telegraph Co. V. Pennsylvania R. Co. (U. S.), 1-533. 3. Discretion in Exercise or Powee. Obligation to take.. — The federal stat- ute authorizing a certain railroad company to locate its freight yard within a described aiea in the District of Columbia and em- 2)owering it to acquire by purchase or con- demnation " the laud and property neces- sary " for that purpose, does not require the company to acquire all' the land within the prescribed area, but merely empowers it to acquire such lands as are necessary for the authorized purpose. United States ex rel. Riley v. Baltimore, etc., R. Co. (D. C), 7- 335. Right of landowner to compel tak- ing. — The provision of the federal statute authorizing a certain railroad company to locate its freight yard in the District of Co- lumbia, to the effect that any property owner whose land is included in the location se- lected by the railroad, and approved by the commissioners of the District, " shall have the right, within two years, to begin pro- ceedings to compel the appropriation of said lands," does not entitle a property owner whose land, though situated in the area pre- scribed by the statute, is not included in the location selected by the company in the ex- ercise of its discretion and approved by th? commissioners, to compel the company to ap- propriate his land. United States ex rel. Riley v. Baltimore, etc., R. Co. (D. C), 7- 3.35. Remedy for abuse of discretion. — While a corporation has primary discretion ill determining what land is necessary for the purpose for which it is authorized to make appropriations, the probate judge has power under the Ohio statute to prevent abuse of such discretion and to dismiss a £HIilENT DOMAIN. T09 petition for appropriation on the ground that the same will be an abuse of corporate power or destructive of the public use to which the land is already devoted; and since such an adequate remedy at law exists, injunction will not lie on such grounds to prevent a prosecution of appropriation proceedings. Wheeling, etc., R. Co. v. Toledo Ey., etc., Co. (Ohio), 2-941. 4. Uses toe Which Pbopebty Mat Be Taken. a. In general. Private use. — A condemnation of prop- erty for private use is forbidden by the Four- teenth Amendment of the Constitution of the United States. Hairston v. Danville, etc., R. Co. (U. S.), 13-1008. The provision in the constitutions of the United States and of Utah that private prop- erty shall not be taken for a public use with- out just compensation means that private property cannot be taken for a strictly pri- vate use. Nash v. Clark (Utah), 1-300. Private property can be taken under the power of eminent domain only for a public purpose, and the owner may always raise the question whether the purpose for which his property is sought to be taken is public in its nature. New Orleans Terminal Co. v. Teller (La.), 2-127. TTse partly pnblie and partly private. — Where the purposes stated in a petition to take private property under the right of eminent domain are partly public and partly private, the right to proceed must be de- nied. Minnesota Canal, etc., Co. v. Koochi- ching Co. (Minn.), 7-1182. When private property is taken for public use the general rule is that it can be taken only to the extent required by the public use to which the property is to be applied. Sears V. Chicago (111.), 20-539. b. What constitutes public use. In general. — Public use, within the meaning of the constitutional provisions as to taking private property therefor, is a use that will promote the public interest and tend to develop the natural resources of the commonwealth. Nash v. Clark (Utah), 1- 300. A use is not public so as to authorize a taking of private property under the right of eminent domain, unless the public has the right, under proper regulations, to resort to the property for the use for which it is acquired, independently of the will or caprice of the taker. Minnesota Canal, etc., Co. v. Koochiching Co. (Minn.), 7-1182. Qnestion for court. — It i^ for the courts to determine whether the use for which a statute authorizes the condemnation of land or the imposition of taxej is a public use. Billings Sugar Co. v. Fish (Mont.), 20-264. Following decision of state courts. — The United States Supreme Court, in de- termining whether a taking of property un- der the right of eminent domain is in viola- tion of the Fourteenth Amendment of the Federal Constitution as a taking for a pri- vate ixse, will keep in view the diversity of local conditions, and show great respect for the judgment of the state court as to what should be deemed a public use in that state. Hairston v. Danville, etc., R. Co. (U. S.), 13-1008. Private railroad to quarry. — One en- gaged in the business o~f quarrying stone who needs a right of way for a private railroad across the lands of- others may obtain the same by condemnation proceedings under the constitution and laws of Georgia. Jones v. Venable (Ga.), 1-185. Spur railroad tracks to private es- tablishments. — The condemnation of land for a spur railroad track which can be used and is designed to be used not only for ac- cess to a nearby private manufacturing es- tablishment, but for the storage of cars to be laden or unladen by consignees and shippers of freight and to relieve the congestion of business which overburdens the limited track- age of the road, is for a public use and not in violation of the Fourteenth Amendment of the Federal Constitution; and the use is not the less public because the motive dic- tating the particular location of the road is to reach a, private industry, or because the proprietors of that industry contributed to the cost of construction. Hairston v. Dan- ville, etc., R. Co. (U. S.), 13-1008. Where a proposed spur track is intended for the transportation of freight in carload lots to and from a number of industrial plants in a town or city, its use is open to the public, and a railroad company construct- ing such track has the right to expropriate necessary crossings over the spur tracks of another railroad company. Kansas City, etc., R. Co. V. Louisiana' Western R. Co. (La.), 7-831. Business of Mining. — As the business of mining for the benefit of the mine owner is as much a private affair as that of the farm or factory, the right of eminent domain cannot be invoked in aid of it. Sutter v. Nicols (Cal.), 14-900. The mining of gold to be applied to the private use of the miner is, regardless of the extent to which it may help to maintain tho gold standard, not a public pyrpose in behalf of which the power of eminent domain may be exercised, or for which the private prop- erty of others may be taken or its injury lawfully authorized. Sutter u. Nicols (Cal.), 14-900. Mine railways. — The construction and operation of roads and tramways for the de- velopment and working of mines is a public use, and the Utah statute providing that eminent domain may be exercised in behalf of such a use is not in conflict with the state constitution as authorizing condemnation for a use not public. Highland Boy Gold Min Co. V. Strickley (Utah), 3-1110. Generation of electric power. — The taking of land by a corporation organized as a water power company and an electric 710 ANiJ. CAS. DIGEST, YQLS. 1-20. power csmpany, for the purpose of estab- lishing a water power to rlin a power house in which electricity is to be generated or manufactured and thence transmitted to neighboring cities and there sold for public lighting, the operation of railways, manu- factories, private lighting and heating, etc., is not taking for public use and is not a legitimate exercise of the right of eminent domain, where the right of the public to the use and enjoyment of the 'property has not been regulated, guaranteed, and safeguarded by proper legislation. State v. White Eiver Power Co. (Wash.), 4-987. The Georgia statute which confers author- ity to exercise the right of eminent domain upon any owner of water power desiring to generate electricity by water or steam power for the purpose of supplying light, heat, or power to others, under specified conditions, is not violative of that clause of the consti- tution which prohibits the taking of prop- erty without due process of law. Jones 'U. North Georgia Electric Co. (Ga.), 5-526. The generation and sale of electricty to manufactories do not constitute a public use for which private property may be taken un- der the right of eminent domain for the pur- pose of obtaining a supply of water power by a corporation chartered only to operate electric cars and an electric lighting system. State ex rel. Harris v. Superior Court (Wash.), 7-748. A corporation empowered by its charter among other things to build, maintain, and operate a reservoir, dam, water power, and electrical plant intended to furnish water and electrical power to the public generally, or to such portion of the public as may have occasion to purchase and use the same, and to furnish water for sale, rental, and distri- bution to the public generally for the irri- gation of lands and for other beneficial pur- poses, may condemn lands for the accom- plishment of such purpose, as this is a public use for which private property may be taken. Helena Power Transmission Co. V. Spratt (Mont.), 10-1055. Creation of irater poirer. — The gen- eration of electricity by water power for dis- tribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise, and property used for that purpose is devoted to a public use; but the creation of water power and a water- power plant for the purpose of " supplying water power from -the wheels thereof " to the public is a private enterprise, in aid of which the power of eminent domain cannot be ex- ercised. Minnesota Canal, etc., Co. v. Kooch- iching Co. (Minn.), 7-1182. Irrigation. — The use of water for irriga- tion is a public use, and the legislature may provide by statute for the condemantion of private property for irrigation purposes or for the condemnation of a right of way in an ivrigation ditch already constructed. Nash V. Clark (Utah), 1-300. The Utah statute providing for the con- demnation of the land of one individual to allow another individual to obtain water from a stream in which the latter has an interest to irrigate his land, is not, in view of the conditions of the soil and climate of the state where it was enacted, invalid as authorizing condemnation for a. private use. Clark 17. Nash (U. S.), 4-1171. Under the constitution and statutes of this state irrigating canals are declared to be a public use. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. The taking of land for the construction of drains for " the improvement or reclamation of agricultural lands, public health, conven- ience, or welfare" (Laws Mont. 1905, c. 106) is for a public use. Billings Sugar Co. v. Fish (Mont.), 20-264. Degtruction of private right of way. — A private right of way is real property, and it is taken for a. public use so as to en- title the owner to compensation, where it is destroyed by the condemnation of the ser- vient land. United States v. Welch (U. S.), 19-680. 5'. What Mat Be Taken. Bight to fish. — The right to fish in an inland lake of New Jersey cannot be taken under the power of eminent domain. Al- bright V. Sussex County Lake, etc.. Commis- sion (N. J.), 2-48. Property already appropriated to public me. — Property which has been appropriated to a railroad or other public iise may, under lawful authority and proce- dure, be condemned and appropriated to an- other public use; but in the absence of legis- lative authority given in express terms or by necessary implication, this power cannot be exercised where the second appropriation is entirely inconsistent with and practically destructive of the first. Fayttteville St. Ry. V. Aberdeen, etc., R. Co. (N. Car.), 9- 683. Where it is sought by condemnation pro- ceedings to take a piece of property that is already devoted to a public use, the necessity will not be measured by the extent to which the use is actually applied, but rather to the public nature and character of the use to which it has been previously applied. Port- neuf Irrigating Co. v. Budge (Idaho), 18- 674. Bight to use canal of another irri- gating company. — WJiere the necessity for the taking is shown, one canal company will be allowed to condemn a part of the right of way of another canal company, for the purpose of enlarging the old canal to a sufficient capacity to carry such additional volume of water as may be needed for the use of the latter company. Portneuf Irri- gating Co. V. Budge (Idaho), 18-674. Bailroad rights of nray. — The Act of Congress of July 24, 1866, confers on tele^ graph companies no right to condemn the rights of way of railroads for the erection of telegraph lines. Western Union Telegraph Co, V. Pennsylvania R. Co. (U. S.), 1-533. Railroads are not highways within the meaning of a statute authorizing a telegrapli company to construct lines upon the high- EMINEiXT DOMAIN. 711 ways of tlie state. Western Union Tel. Co. V. Pennsylvania R. Co. (U. S.), 1-533. Tlie right of way of a railroad is properly devoted to a public use, but cannot be tiaken under the power of eminent domain without compensation, and under an Act of Congress telegraph companies cannot occupy a rail- road right of way except with the consent of the latter; nor do the New Jersey statutes make such right of way public property so as to subject them to such occupation. West- ern Union Tel. Co. v. Pennsylvania R. Co. (U. S.), 1-517. Abandoned roadbed. — The fact that the charter of a railroad company gives it the specific right to condemn old and aban- doned roadbeds does not give it the right to condemn an abandoned roadbed which another railroad company has already made a part of its right of way by a valid prior location. Fayetteville St. Ky. v. Aberdeen, etc., R. Co. (N. Car.), 9-683. Interests in 'water. — Interests in water, as well as in land, are subject to the law of eminent domain, and when the waters of a stream are diverted, the inferior riparian proprietor is entitled to compensation for the use of the water of which he is deprived. Clear Creek Water Co. v. Gladeville Improve- ment Co. (Va.), 13-71. VTater rights apart from land. — Un- der the Virginia statute authorizing public service corporations to condemn for their purposes " sand, earth, gravel, A\ater, or other material," and prescribing the proce- dure for the condemnation of any " land or other property, or any interest therein," u, water company desiring to divert a running stream for its purposes has power to con- demn, as against a lower riparian owner, the water right apart from the land of such owner, notwithstanding a further provision of the statute that nothing therein shall be construed as authorizing the condemnation of a " less estate " in the property than is owned by the party against whom the pro- ceeding is brought, the word " estate " being used to denote the quantity of interest of the owner in the particular subject sought to be condemned. Clear Creek Water Co. v. Glade- ville Improvement Co. (Va. ), 13-71. Public lands. — The taking of private property only is authorized by statutes pro- viding for the exercise of the power of emi- nent domain, unless there is express or clearly implied authority to extend their provisions to public property. State, v. Boone County (Neb.), 15-487. The Nebraska statutes relating to the es- tablishment of public roads do not authorize the taking of public lands for the purposes of establishing roads not on section lines. State V. Boone County (Neb.), 15-487. 6. What Amou:n^ts to Taking. Incidental injuries to property. — If an injury to property is only incidental to the legitimate exercise of governmental pow- ers for the public good, there is no taking of property for the public use, and a right to compensation on account of the injury does not attach imder the Federal Constitution. Chicago, etc., R. Co. r. People (U. S.), 4- 1175. Bequiring removal of bridge. -— 'Re- quiring a railroad to remove a bridge for a drainage purpose held not to amount Lo the taking of private property for public use within the meaning of the Federal Constitu- tion, or to a denial of the equal protection of the laws. Chicago, etc., R. Co. v. People (U. S.), 4-1175. Construction of subwa,y under city streets. — The construction of a rapid tran- sit subway under the streets of a city is a permanent appropriation of land, and there- fore is a taking of private property for pub- lic use for which the New York Constitution (art. 1, § 6) requires compensation to be made. In re Rapid Transit R. Com'rs (N. Y.), 18-366. Erection of poles and wires in street. — Poles and wires which permanently and e.\clusively occupy portions of a street or highway constitute an aditional burden for which an abutting owner is entitled to com- pensation in case he is damaged thereby. Eronson v. Albion Tel. Co. (Neb.), 2-639. The lines and poles of a tel«phone system upon a city street constitute un additional servitude, where the fee of the street is in the OM'ner of the abutting property, though the city has the right to use the same poles fqr its fire alarm and police signal system. Ue Kalb County Tel. Co. v. Button (111.), 10-464. Where a telephone company organized to furnish telephone service to the public places its poles and wires in the streets of a city, pursuant to authority duly conferred by statute, such use of the streets does not con- stitute an additional burden iipon the fee of abutting owners for which they are entitled to compensation. Frazier -v. East Tenn. Tel. Co, (Tenn.), 5-838. The construction of a telephone system along the city streets imposes no additional servitude upon the property owners and they are not entitled to compensation for damages sustained thereby. Kirby v. Citizens' Tel. Co. (S. Dak.), 2-152. A telephone line on the highway is not an additional servitude for which the original owner of abutting property, or those claim- ing under him, may bring action. Cumber- land Tel., etc., Co. v. Avritt (Ky.), 8-955. The construction and maintenance of a tele- phone line upon a rural highway is hot an additional servitude entitling the owner of the land over which the highway is laid to compensation. McCann v. Johnson County Tel. Co. (Kan.), 2-156. A telephone line is not an additional ser- vitude upon a rural highway. Hobbs v. Long Distance Tel., etc., Co. (Ala.), 11-461. Iiaying pipe line in higbway. — A pipe line, laid in a public rural highway under liroper authority and used for supplying the public with natural gas for heating and illu- minating purposes, though it imposes an ad- ditional public service upon the road, is not 712 A^^N^ CAS. DIGEST, VOLS. 1-20. a use in excess of the right of the public in such road, and does not impose an additional burden upon the estate in fee in the land. Hardman t. Cabot (W. Va.), 9-1030. Constrnctlon of street railway In highway. — The construction and operation of an electric railway on a township highway do not constitute an additional servitude. Austin i;. Detroit, etc., Ry. (Mich.), 2-530. An interurban electric railroad authorized to carry, in trains of one or two cars, pas- sengers, baggage, light express matter and mail, is not an additional servitude on a city street entitling an abutting owner to com- pensation; but the abutting owner may re- cover special damages sustained by the con- struction of such railroad. Mordhurst v. rt. Wayne, etc., Traction Go. (Ind.), 2-967. Where the fee in the street is in the abut- ting owner, and the public have only an ease- ment in the street or highway, the laying of a steam railroad track along said street on his soil without his consent and without tak- ing and paying just compensation therefor, is an unlawful appropriation of the property of such owner, and the abutting owner has all the remedies of any other owner of the soil, and an injunction will lie to restrain the taking possession of the street until payment be riiade therefor or secured to him by de- posit of money. Seaboard Air Line Ey. v. Southern Investment Co. (Fla.), 13-18. Use of streets for purpose for -which dedicated. — Constitutional provisions that private property shall not be taken for pub- lic use without compensation do not apply to the use of the streets of a city for the pur- poses for which they were dedicated. Kirby t. Citizens' Tel. Co. (S. Dak.), 2-152. 7. Compensation. a. In general. Meaning of term. — For constitutional purposes the payment into court of the award of the commissioners in eminent domain pro- ceedings is prima fade a just compensation to which the defendant is entitled before his property can be taken; but for statutory and final purposes the term " just compensa- tion " means the final amount awarded by the jury on a fair trial, and the defendant cannot deprive the plaintiff of the right to litigate the question of damages by accepting the commissioners' award and putting the money in his pocket. St. Louis, etc., R. Co. ■i: Aubuchon (Mo.), 8-822. b. Time with reference to which compensa- tion is to be estimated. Date of filing petition. — The value of property taken under the right of eminent domain is to be fixed as of the date of the filing of the petition for its appropriation. Sanitary District v. Chapin (111.), 9-113. Injury to land after assessment of damages. — The damages to be assessed for the taking of property in condemnation pro- ceedings is fixed by the statute (section 6221) as of the date of the issuance of the summons, and if the damages so assessed are paid to the landowner, the fact that the plaintiff in condemnation may subsequently commit waste or damage on the lands so con- demned, and may not prosecute the proceed- ing to final judgment, can in no way preju- dice the landowner whose damages are as- sessed as of a previous date. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. c. Measure and elements of compensation. ( 1 ) In general. Under Oklahoma statutes, — Measure of damages recoverable upon exercise of the right of eminent domain under the Oklahoma statutes. Blincoe v. Choctaw, etc., R. Co. (Okla.), 8-689. Instructions of the court in eminent do- main proceedings as to damages recoverable, held not erroneous. Blincoe v. Choctaw, etc., E. Co. (Okla.), 8-689. Decrease in market value of lands. — In determining the amount of damages which the defendant is entitled to recover in a pro- ceeding to condemn a right of way for a railroad, the court is bound to take into con- sideration every element of value which would be considered if the plaintiff as a willing purchaser were negotiating with the defend- ant as a willing seller. In other words, the court must ascertain the market value of the lauds after the right of way shall have been tnken. Yellowstone Park R. Co. v. Bridger Coal Co. (Mont.), 9-470. Deprivation of conditional legacy. — Where a legacy is given to a church upon condition that it shall erect a parish house upon a designated parcel of land, and such land is afterwards taken by exercise of the power of eminent domain, the amount of the legacy cannot be included in the damages awarded to the church in the condemnation proceeding. The law requires the plaintiff in such a proceeding to pay to the landowner only the market value of the premises taken. New Haven County v. Parish of Trinity Church (Conn.), 17-432. Damages for injuries to business. — While the constitution of Arkansas has broadened the right of the property owner to compensation in condemnation proceedings, and included damage as well as taking and appropriation in the elements going to make up such compensation, it has not extended the right so far as to include the recovery of damages for injuries to the business of the landowner, incident to the enforced purchase of his property. Kansas City Southern R. Co. r. Anderson (Ark.), 16-784. Compensa-tion for fixtures. — In a con- demnation proceeding the landowner is en- titled to compensation for fixtures, such as machinery which has been permanently an- nexed to the land sought to be condemned. The intention of permanency in its installa- tion is what determines the character of the property as a fixture, and such intention may be inferred from the nature of the ar- ticle annexed, the relation and situation of EMINENT DOMAIN. 713 the party making the annexation, the struc- ture and mode of annexation, and the pur- pose or use for which it is made. Kansas City Southern E. Co, v. Anderson (Ark.), lfl-784. Damages to personal property. — Com- pensation cannot be recovered in such a pro- ceeding, either for damages resulting to per- sonal property not annexed to the freehold, or for the cost of removing the same from the premises. Kansas City Southern R. Co. 1-. Anderson (Ark.), 16-784. Damages to land not taken. — In a proceeding to condemn land for the right of way of a railroad, the defendant may give evidence tending to show damage to portions of his land which are not to be traversed by the railroad and which are not described in the petition, though he has not specially pleaded his claim for such damages. Yellow- stone Park R. Co. v. Bridger Coal Co. (Mont.), 9-470. Separate tract not affected. — In de- termining the value of land taken under the right of eminent domain, where it appears that there are two or more independent farms which the landowner holds by separate chains of title and which he has subjected to independent and distinctly separate uses, and it further appears that the land taken is a strip off one of these farms, the other farms ar.e not to be considered. St. Louis, etc., R. Co. V. Aubuchon (Mo.), 8-822. Improvements made pending pro- ceedings. — The owner of land sought to be taken for a street, in street opening pro- ceeding under the New York City Charter, is entitled to compensation for a building which he has erected or placed upon the land in good faith after the map of the street has been filed as required by the charter. To hold otherwise would be to impose a restric- tion upon the use of the land by the owner pending the proceeding, which would amount to an incumbrance and be unconstitutional. But this rule applies only where the im- provement has been made in good faith. Where the landowner, pending such a pro- ceeding, purchases a building already erected on other land, and, acting in bad faith, moves it upon the land sought to be con- demned, he cannot be permitted to recover damages for the same as a part of the real property taken by the city. In such a case, the building, upon its severance from the land upon which it originally stood, becomes personal property, and the damages in the condemnation proceeding are to be awarded accordingly. Matter of City of New York (N. Y.), 17-1032. Value of easement. — The value of an easement cannot be ascertained in a condem- nation proceeding without reference to the dominant estate to which it was attached. United States v. Welch (U. S.), 19-680. (2) Part of tract taken. General rule of damages. — Where land sought to be taken for public use is of greater value considered as a part of the entire prop- erty than if taken as a distinct and separate piece entirely disconnected from the residue, the just compensation for the part so taken is its fair cash or market value when con- sidered in its relation to, and as a part of, the entire property, and not simply what may appear to be its value as a separate and distinct piece. West Skokie Drainage Dist. . r. Dawson (111.), 17-776. Tract cut in tiro by railroad. — Where a railroad, in condemning a right of way, cuts in two a tract of land, the facts that the operating of the trains over the line of the road and across a particular land increases the danger of flre to the buildings and crops, and increases the danger to stock, are not matters w'hich constitute independent ele- ments of damage for which a specific award may be made; but such facts when proven, together with any other inconveniences or damages occasioned by the building or operat- ing of the road, may be considered by the jury in determining the value of that part of the land not taken. St. Louis, etc., R. Co. «. Oliver (Okla.), 10-748. (3) Where land is taken* for railroad. In general. — The right of way of a rail- road company has no general market value for other uses than that to which it is ap- plied, and the appropriation to public use amounts to a withdrawal of the right of way from any use except that necessary or auxil- iary to the operation of the railroad. At- lantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. Situation of remaining lands. — In a proceeding to condemn land for a railroad, the manner in which the remaining lands are divided by the right of way, in respect to the size and shape of the fields or parcels, the condition in which the lands are left as to access to water for stock purposes, the means of passage from one part of the prem- ises to another, and, in the case of steam roads, the possible danger of fires set out by properly equipped locomotives, are legitimate items of damages to be considered relative to the diminished market value of the lands out of which the right of way is carved. Indian- apolis, etc.. Traction Co. v. Larrabee (Ind.), 11-695. ^ " Possible future Injury to person or property. — In a proceeding to condemn land for a railroad, damages resulting from any danger or peril to which the person of the owner or occupant of the lands remaining unappropriated, or any stock thereon, may be exposed by reason of the construction or operation of the road in question, are too re- mote and speculative to be considered by the jury in fixing the compensation for the de- preciation in value of the lands not actually appropriated. Indianapolis, etc.. Traction Co. V. Larrabee (Ind.), 11-695. In a proceeding to condemn a right of way for a railroad through a farm, the owner is not entitled to an allowance of damages on account of the risk of injury incident to the necessity of crossing the railroad track in or- ri4 ANN. CAS. DIGEST, VOLS. 1-20. der to reach the public road from the farm. Such risk is not within the provision of the Indiana statute (Acts 1903, p. 59) allowing " damages to the residue of the land," caused by taking the part required for the railroad. Indianapolis, etc., R. Co. v. Branson (Ind.), 19-925. Possible future injury to live stock. — In a proceeding to condemn land for a rail- road, the damages ought to be sufficient to cover the actual value of the lands appro- priated, together with all damages occasioned by reason of the construction of the road over the right of way as appropriated, and for all physical injuries to the remaining lands, and all inconveniences of every character, exelud-. ing remote or speculative damages, such as the danger of injury to live stock, which dan- ger, in view of the statute requiring both sides of the right of way to be fen«ed, is little more than imaginary. Indianapolis, etc.. Traction Co. v. Larrabee (Ind.), 11-695. Cost of building fences. — In assessing damages to a farm caused by condemning a right of way through it for a railroad, the railroad company is entitled to an instruc- tion that the cost of fencing the right of way is not to be considered, where the statute re- quires the company to erect the fence within a certain time, and provides that if it fails to do so, the landowner may erect the fence and recover the cost thereof from the com- pany. Indianapolis, etc., R. Co. v. Branson (Ind.), 19-925. Railroad easement over oil-bearing lands. — In an action by a railroad company to condemn a right of way over oil-bearing lands, the damages accruing to the defendant are not measured by the value of the fee of the land taken including the value of the oil beneath the surface, but are restricted to the value of a mere easement in the land condemned. Southern Pac. R. Co. v. San Francisco Sav. Union (Cal.), 2-962. Construction of subiray under street. — In a proceeding to assess the compensation to which abutting owners are entitled by reason of the construction by the city of a subway under the streets, a provision of the statute authorizing the work that the title of the city to the rights sought to be acquired shall vest on the filing of the oaths of the commissioners of appraisal, does not limit the commissioners to an award of the differ- ence between the value of the property be- fore and after the filing of such oaths; but the proper measure of damages is the value of the fee taken and the amount of the in- jury to the abutting property by the proper construction and operation of the subway, including the rental value of the premises for siich time as they may have been unten- antable on account of the work. In re Rapid Transit R. Com'rs (N. Y.), 18-366. (4) Telegraph lines along railroad. General rule of damages. — The meas- ure of damages where a telegraph company has condemned a railroad right of way is the value of the land actually taken and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. Speculative damages. — Where a tele- graph company condemns a railroad right of way, speculative damages cannot be recov- ered, such as a damage which might result if the railroad company in the future should lay additional tracks or build new struc- tures. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. Danger of poles falling on track. — Where a telegraph company condemns a rail- road right of way, the possibility of poles placed at a greater distance than their height from the track falling upon the track is too remote to be considered in estimating damages. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. Inconvenience to railuray company. — Where a telegraph company condemns a rail- road right of way, the inconvenience to the railway company must be of such a char- acter as to interfere with its right to exer- cise its business in order to become an ele- ment of damage. Atlantic Coast Line R. Co. 1. Postal Tel.-Cable Co. (Ga.), 1-734. Impairment of contract irith an- other company. — Where a telegraph com- pany condemns a railroad right of way, the benefit the railroad company may derive from a contract with another telegraph company already occupying the right of way is not an element of damage. The measure of damage includes the extent such other contract would be impaired by the construction of the second line of telegraph. Atlantic Coast Line R. Co. V. Postal Tel.-Cable Co. (Ga.), 1-734. Peculiar benefits to telegraph com- pany. — Where a telegraph company con- demns a railroad right of way, the peculiar benefits accruing to the telegraph company from its use of the same are not elements of damage. The railroad company can only claim compensation for the land taken and for damages resulting from the construction of the telegraph line. A burden not imposed by the telegraph company is not an element of damage, as, for example, the cost of the change of grade or the clearing of the right of way and keeping it free from obstruc- tions. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. ( 5 ) Crossings. One railroad over another. — Rule stated for measuring the damages for the expropriation by a railroad company of a crossing over the tracks of another railroad company. Kansas City, etc., R. Co. v. Louisi- ana Western R. Co. (La.), 7-831. Street across railroad. — In an action by a municipality to condemn for street pur- poses a strip of land across a railroad right of way, the railroad company is entitled to compensation for the diminution in value of its exclusive right to the use, for railway purposes, of the property sought to be EMINENT DOMAIN. 715 condemned, caused by the existence and use of the street. But it is not entitled to recover for structural changes, such as grad- ing, approaches, planking, etc., made neces- sary by the opening of the street. The con- stitutional provision that private property shall not be taken or damaged for public use without just compensation does not require compensation for such changes, the making tliereof being imposed by statutes enacted under the police power of the state. Grafton r. St. Paul, etc., R. Co. (N. Dak.), 15-10. (6) Improvements by condemnor. When landowner is entitled to com- pensation. — In fixing the compensation to which the owner of land taken under the power of eminent domain is entitled, the value of structures placed upon the land by the appropriator before the institution of condemnation proceedings, without authority of law, and without the consent of the land- owner, should be taken into consideration. St. Johnsville v. Smith (N. Y.), 6-379. 'When not entitled to compensation. — Where a school township, with authority to condemn land for school purposes, ex- pends money in good faith in the construction of a schoolhouse and fences on premises with the knowledge and acquiescence of the owner of the property, and uses the same without objection, such owner is not entitled to com- pensation, in a subsequent proceeding to con- demn the land, for the improvements so placed upon the premises. McClarren v. Jef- ferson School Township (Ind.), 13-978. (7) Benefits. Constitutionality of statnte author- izing deduction. — In a condemnation pro- ceeding a valid award cannot be made for less than the value of the property actually taken, and section 822 of the Greater New York Charter, providing in substance that the measure of compensation for a part of lands taken for water front improvement may be diminished by the estimated benefit to the remaining property, is in violation of the constitutional provision that private prop- erty shall not be taken without just compen- sation. Matter of New York (N. Y.), 13- 598. Such charter provision cannot be supported as an exercise of the power of taxation, as making the person whose property is bene- fited by the improvement bear a proportion- ate part of the cost, since the tax would op- erate arbitrarily and unequally among the owners affected. Matter of New York (N. Y.), 13-598. Loss of right to deduct. — Where a town wrongfully builds a road over certain land, but both the town and the landowner treat the act as a permanent taking, notwith- standing the illegality of its inception, and the court finds that the town has appropri- ated the land to itself for a highway, the owner may recover the full value of the land without deductions for benefits resulting from the improvement, and such compensation will bar any future action by the owner. An " appropriation " of land is more than a mere entry thereon, and includes a setting apart, or applying the land to the use of a par- ticular person for a particular purpose. Fin- ney V. VVinsted ( Conn. ) , 20-923. d. Allowance of interest. When improper. — Where it appears in a condemnation proceeding brought by the United States under the statutes of Massa- chusetts that the owner has not been de- prived of the use of his land, and it does not appear that he has been put to trouble or expense, or has incurred loss in the use of liis land not considered in assessing the dam- ages, he is not entitled, as part of his com- pensation, to interest from the institution of the proceeding to the date of the verdict. Hingham v. tfnited States (U. S.) , 15-105. ATirard increased or diminished on appeal. — In condemnation proceedings, M'here a landowner appeals from an award and the case is tried to the jury in a District Court, it is not proper to permit the jury to be informed of the amount of the award made by the commissioners; and as the allowance of interest is dependent upon the question as to whether the amount of damages awarded by the jury is greater or less than the award of the commissioners, the court may, where the question is uncontroverted as to the date from \-\hich interest should be allowed, re- serve the question of interest for determina- tion by the court and direct the jury not to include interest in their verdict. St. Louis, etc., R. Co. r. Oliver (Okla.), 10-748. e. Who entitled to compensation. Land subject to irredeemable ground rent. — Where part of a lot of land upon which there is irredeemable ground rent is taken under the power of eminent domain, the owner of the rent has the right to recover damages for the taking, though the part of the lot not taken is ample security for the rent. Baltimore v. Latrobe (Md.), 4-1005. Apportionment betijreen lessor and lessee. — Where a considerable portion of a lot of land upon which there is an irredeem- able ground rent is taken under the power of eminent domain, the commission or jury in fixing the respective damages of the lease- holder and reversioner, should apportion the rent by the extinguishment or abatement of a just proportion thereof, allowing the i-e- versioner a sum of money as compensation for the diminution. Such apportionment of tjie rent does not impair the obligation of the contract between the reversioner and the leaseholder. Baltimore v. Latrobe (Md.), 4- 1005. In fixing the compensation for land taken under the power of eminent domain, upon which there is an irredeemable ground rent, the respective estates of the leaseholder and the reversioner should be valued separately, and each should be allowed the actual value of his interest, though the result may be to allow a total compensation in excess of what 716 ANN. CAS. DIGEST, VOLS. 1-20.. would be allowed if the entire estate in the land were owned by one person, as the owner of siieli interest has a constitutional right to be compensated fully for the taking of his property. Baltin«)re v. Latrobe (Md.), 4- 1005. licssee holding over. — Where the lessor under a reasonable lease has exercised the right given him by the lease to refuse to re- new upon paying for the improvements made by the lessee, the latter, if he remains in possession after the expiration of his term, is a tenant at will, and is not one of the " persons interested " in the land within the meaning of the Canadian Railway Act pro- viding for the payment of compensation for land expropriated. Consequently such lessee is not entitled to compensation for the expro- priation of the leased premises. Canadian Pac. R. Co. V. Alexander Brown Milling, etc., Co. (Can.), 15-709. Mortgagee. — A mortgagee out of pos- session but holding the legal title and hav- ing a right to demand possession is entitled to be compensated out of the damages awarded in condemnation proceedings to the extent of the value of his interest in the land taken. Hagerstown v. Groh (Md.), 4- 943. f. Waiver of compensation. What insufficient to constitute. — Un- der the constitution of Nebraska, 1866, as well as that of 1875, mere passive acquies- cence by a landowner in the taking of his property for a public use, unaccompanied by any conduct indicative of affirmative assent thereto, and not continued for the statutory period of limitations, is not a waiver of his right to compensation therefor and cannot be made so by statute. Kime v. Cass County (Neb.), 8-853. 8. Nature and Extent of Rights Acquibed BY Condemnation. Telegraph line along railroad right of way. — A telegraph company acquires only an easement to the right of way of a, railroad company condemned for the purposes of constructing and operating a telegraph line thereon. Atlantic Coast Line R. Co. v. Postal Tel.-'Cable Co. (Ga.), 1-734. The easement acquired by a telegraph com- pany which has condemned a railroad right of way embraces the land actually occupied by the poles and fixtures for wires, and the right to stretch the wires upon the poles and to enter upon the right of way to construct and repair the lines. Atlantic Coast Line R. Co. r. Postal Tel.-Cable Co. (Ga.), 1-734. The only exclusive right of occupancy ad- quired by a telegraph company by condemn- in? a railroad right of way is the occupancy of the land occupied by the poles for tele- graph purposes. Atlantic Coast Line R. Co. V. Postal Tel.-Cable Co. (Ga.), 1-734. Water rights acquired by canal com- pany. — The Minnesota statutes authorizing canal companies to incorporate and to take private property do not, as incident to the construction of a, canal and the creation of water power, authorize the ca.nal company to withdraw and divert waters from public navi- gable lakes and streams to such an extent as to interfere with present or future naviga- tion, and, by means of canals, to carry such waters over a divide and discharge them into a different drainage area, thus withdraw- ing them permanently from their natural course. Minnesota Canal, etc., Co. v. Koochi- ching Co. (Minn.), 7-1182. Land taken for drainage ditch, — In Illinois, under both the Levee Act and the Farm Drainage Act, drainage districts have perpetual easements in land condemned for ditch purposes, the fee remaining in the owners. West Skokie Drainage Dist. v. Dawson (111.), 17-776. Where a strip of land condemned for a drainage ditch is wider than the ditch it- self, the landowner retains a qualified right to use the portion not actually occupied by the ditch, but such right extends only to the use of the land in a manner not inconsistent with the easement acquired by the drainage district, and, consequently, an instruction by the court, in a proceeding to condemn land for such a ditch, that the landowner will have the right to use and control all of the laild taken but not used for the ditch, is too broad. West Skokie Drainage Dist. r. Daw- son (111.), 17-776. Land taken for street purposes. — The condemnation of land for the purposes of a street vests in the city only an easement in the absence of a, statute which in terms or by necessary implication authorizes the city to take property in fee for street purposes. Tacoma Safety Deposit Co. v. Chicago (111.), 20-564. 9. Condemnation Peoceedings. a. In general. Statute governing proceedings. — Un- der the Indiana statute taking effect subse- quent to April 11, 1905, relating to con- demnation proceedings, repealing all laws in conflict therewith, and providing that "this repeal shall not affect pending proceedings, but such proceedings may be completed as if this act had never been passed," a condemn- tion proceeding in which the complaint was filed on March 20, 1905, and in which sum- mons was served on April ] 1, 1905, is a pend- ing proceeding unaffected by the statute, and is governed by the Act of 1881, even if the earlier act is repealed by the later. McClar- ren i;. Jefferson School Township (Ind.), 13- 978. The Ohio statute providing for the cross- ing of one steara railroad by another is orig- inal legislation, and pending actions or pro- ceedings are not exempted from its opera- tion by virtue of section 79, Revised Stat- utes; hence it is error for the court to re- fuse to entertain an application under the act to ascertain and define the mode of such crossing, on the ground that proceedings to appropriate the right to cross had been com- menced prior to the passage of the act. EMINENT DOMAIN. 717 Wheeling, etc., K. Co. v. Toledo Ry., etc., Co. (Ohio), 2-941. Proof of legislative authority. — A corporation seeking to exercise the power of eminent domain must show clearly that it is proceeding under legislative authority, as every presumption is in favor of the indi- vidual landowner. Minnesota Canal, etc., Co. V. Koochiching Co. (Minn.), 7-1182. Jurisdiction of court. — Primarily, the power to exercise the right of eminent do- main for and on behalf of the state rests with the legislature and the constitutional provision with reference to the exercise of that power (section 14, article 1) is a limi- tation and not a grant of power. The legis- lature may determine the necessity for the taking, and its determination thereon is final. The legislature of this state has dele- gated the power to determine the necessity for the taking to the courts, and jurisdiction is thereby vested in the courts to pass upon, determine, and adjudicate all the matters and things specified by the statute to be de- termined before the taking is finally consum- mated and title divested. Portneuf Irrigat- ing Co. V. Budge (Idaho), 18-674. Exceptions to rulings. — The practice of referring to the merits exceptions which do not involve merits is deplorable, and es- pecially should such exceptions not be re- ferred to the jury, whose jurisdiction is special and extends to those questions alone which the law directs shall be submitted to it. New Orleans Terminal Co. v. Teller (La.), 2-127. Dismissal for vant of prosecution. — It is proper to dismiss an eminent domain proceeding for want of prosecution, where it appears that the original summons was re- turned "not found;" that no alias was is- sued and no other step was taken in the prosecution of the proceeding until more than four years after the filing of the petition, when an alias was issued and served on the defendant; that in the meantime the property sought to be condemned has greatly increased in value; and that the petitioner refuses to stipulate that the value of the property shall be fixed as of the date when the alia^ was served on the defendant. Sanitary District V. Chapin (111.), 9-113. Presumption as to regularity.— When, after the lapse of thirty years or more, the record of proceedings in the exercise of the power of eminent domain is shown to be such that they would have been valid under any circumstances, and where both parties have treated them as valid, such circumstances will, if necessary, and in the absence of evi- dence to the contrary, be presumed to have existed. Roberts v. Sioux City, etc., R. Co. (Keb.), 10-992. b. Nature of proceeding. At common lair. — At common law, a proceeding for condemnation of property to a public use was inquisitorial and ex parte, and was instituted at the instance of the sovereign, and the fixing or assessing damages to be paid for the taking was merely for the purpose of satisfying the sovereign con- science, and a trial by jury was not recog- nized in such proceedings. Portneuf Irrigat- ing Co. t;. Budge (Idaho), 18-674. At the time of the adoption of the consti- tution of Idaho, the exercise of the right of eminent domain was recognized and existed as a " special proceeding of a civil nature," and was not classed or recognized as an ac- tion at law. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. ITnder Indiana statute. — A proceeding by a corporation under the Indiana eminent domain statute is a special proceeding by the plaintiff to avail itself of a statutory remedy, and the plaintiff must, by the alle- gations of its complaint, bring itself sub- stantially within the provisions of the stat- ute upon which it relies; and the proof upon the hearing must sustain the essential facts as alleged. Morrison !'. Indianapolis, etc., R. Co. (Ind.), 9-587. ITnder 'Wisconsin statute. — A proceed- ing under the Wisconsin statutes (St. 1898, §§ 1845-1851) to acquire property by the right of eminent domain, is a suit in court, a judicial proceeding from the commence- ment to the end, except as to an appeal from the award. To that extent it is in the nature of an ordinary action in court. Mil- waukee Light, etc., Co. v. Ela Co. (Wis.), 20-707. A proceeding under the Wisconsin statutes (St. 1898, §§ 1845-1851) to acquire property by right of eminent domain, being a suit commenced by filing the petition, the court has all inherent power in respect thereto which it has, in general, respecting actions or suits in the nature of actions, including power to vacate the award of commissioners therein for improper conduct, or such con- duct of parties. Milwaukee Light, etc., Oo. V. Ela Co. (Wis.), 20-707. A proceeding under the Wisconsin statute (St. 1898, §§ 1845-1851) to acquire prop- erty by the right of eminent domain being a suit in court, and not denominable as an action, or being such because commenceablc by the service of a summons, its statutory name is " a special proceeding," since all civil remedies under the code are divided into ordinary actions or such proceedings. Mil- M'aukee Light, etc., Co. v. Ela Co. (Wis.), 20-707. c. Venue. Iiand located in tvro counties. — If the land sought to be condemned under the Georgia Civil Code (§§ 4657 et seq.) is lo- cated partly in two counties the proceedings to condemn may be had in either county. Whitney v. Central Georgia Power Co. (Ga.), 19-982. d. Effort to purchase as condition precedent. ITecessity. — Before a corporation which has brought a proceeding under the Indiana eminent domain statutes can demand that the court shall make an interlocutory order appointing appraisers, it must establish that 718 AK^N. CAS. DIGEST, VOLS. 1-20. it is a corporatiou wlucli under the statutes is vested with the right to exercise the power of eminent domain, and that it has, as a condition precedent, made an effort to pur- chase the property which it seeks to con- demn. Morrison r. Indianapolis, etc., E. Co. (Ind.), 9-587. ■Waiver. — When a landowner appears in a condemnation proceeding and consents to the selection of a jury and contests the case upon the merits, he thereby waives the fail- ure of the petitioner to make any attempt to agree on the value of the property before commencing the proceeding. West Skokie Drainage Dist. v. Dawson (111.), 17-776. c. Notice to landowner. Necessity. — Under the Texas constitu- tion providing for compensation where a person's property is taken for public use, and the Texas statvites which provide for the opening of county roads over private prop- erty and for the assessment of damages for the land so taken, notice to the landowner of the assessment of damages is essential to the validity of proceedings to open a road. Morgan v. Oliver (Tex.), 4-900. By -nrhoni given. — Under the Georgia Civil Code (§§ 4657 et seq.) where the land sought to he condemned lies in two counties, the ordinary of the county where the condem- nation proceeding is had is the official referred to in section 4665, vipon whom the law de- volves the duty of mailing notice of con- demnation to a nonresident owner. Whitney V. Georgia Central Power Co. (Ga.), 19-982. f. Parties. Mortgagor of land. — In a suit by a mortgagee against the condemnor of prop- erty, to satisfy his claim out of the proceeds of the condemnation of the land mortgaged, failure to join the mortgagor renders the bill bad on demurrer. Hagerstown v. Groh (Md.), 4-943. g. Pleadings. Allegations of complaint as to ne- cessity. — Under the North Dakota Revised Codes of 1905 a complaint in an action to condemn for street purposes a strip of land across a railroad right of way need not al- lege the public necessity of the crossing. Grafton c. St. Paul, etc., R. Co. (N. Dak.), 15-10. Amendment of complaint. — In a con- demnation proceeding the court has full power to allow the complaint to be amended, after the report has been filed by the ap- praisers, so as to make the description of the real estate in the complaint agree with the description contained in the appraisement. McClarren r. Jefferson School Township (Ind.), 13-978. Necessity for demurrer or ansiver. — A defendant in eminent domain proceedings has no standing in court for any purpose, unless he makes appeai'arice by either de- murrer or answei': &fid this is So notwith- standing the 'pfotiaiofi df fche'lMontfena stat- ute requiring commissioners appointed to assess damages to hear the allegations and evidence of all persons interested, as that provision evidently contemplates cases where the parties defendant are not in default. Yellowstone Parle R. Co. v. Bridger Coal Co. (Mont.), 9-470. Nature and purpose of objectioni. — Under the Indiana statute providing that the defendant in an eminent domain pro- ceeding " may object to such proceeding on the ground that the court has no jurisdic- tion either of the subject-matter or of the person, or that the plaintifif has no right to exercise the power of eminent domain for the use sought, or f6r any other reason disclosed ill the complaint, or set up in such objec- tions," and furtlier providing that these ob- jections shall be in writing, the written ob- jections serve the purpose of a plea or answer as well as of a demurrer, and therefore en- able the defendant to interpose objections which exist in point of fact but which do not appear on the face of the complaint. Mor- rison V. Indianapolis, etc., R. Co. (Ind.), 9- 587. Extension of time to file objections. — The provision of the Indiana eminent do- main statute that the defendant's written ob- jections to the jurisdiction of the court, the right of the plaintiff to maintain proceed- ings, etc., " shall be filed not later than the first appearance of such defendant," is merely directory, and the court has discretionary power to extend the time for filing such ob- jections; but the exercise of this discretion is subject to review on appeal, ilorrison i . Indianapolis, etc., R. Co. (Ind.), 9-587. Necessity of alleging claim for dam- ages. — There is no provision in the Jlon- tana statute concerning condemnation pro- ceedings requiring the defendant to set up his claim for damages in his pleadings in any form, and the statute relating to form of pleadings and declaring what may be set up as counterclaims clearly excludes damages awarded in eminent domain proceedings, whether the damages are general or special. Yellowstone Park R. Co. v. Bridger Coal Co. (Mont.), 9-470. h. Preliminary hearing or trial. Bight to preliminary bearing. — Un- der the Indiana statute providing that the defendant in an eminent domain proceeding may file written objections denying the ju- risdiction of the court or the right of the plaintiff to maintain the proceeding, the de- fendant is entitled to a preliminary hearing on the issues raised by such objections. Mor- rison V. Indianapolis, etc., R. Co. (Ind.), 9- 587. The provision of the Indiana eminent do- main statutes for a preliminary hearing be- fore the appointment of appraisers, for the purpose of determining all questions in re- spect to the right of the plaintiff to con- demn, is for the protection of the landowner, and the landowner sho'dld not be refUB^fl the right to appear' at feuch hearing and contest the' right of the"t)Iaintlff to c'ondemtty'Tlnle'si EMINENT DOMAIN. no. he has defaulted in the manner prescribed hy statute. Morrison v. Indianapolis, etc., E. Co. (Ind.), 9-587. Where defendant is in default. — The only effect of the failure of a defendant in an eminent domain proceeding to make ap- pearance by demurrer or answer is to shut him out from participating in the proceed- ings; and the court, in spite of such default, must determine whether the use for which the property is sought to be taken is a pub- lic use, must limit the amount taken to the neeessities of the case, and must ascertain the damages under procedure and in accord- ance with the standard prescribed by statute. Yellowstone Park E. Co. V. Bridger Coal Co. (Mont.), 9-470. Joint questions determinable. — The provision of the Indiana statute that any party to an eminent domain proceeding who is " aggrieved by the assessment of benefits or damages may file written exceptions thereto, . . . and the cause shall further pro- ceed to issue, trial, and judgment as in civil actions," does not contemplate the determina- tion of preliminary questions of fact, but merely contemplates the trial of those issues joined and raised by the report of the ap- praisers and by the exceptions filed thereto by the aggrieved party. Morrison v. Indian- apolis, etc., R. Co (Ind.), 9-587. Determination of necessity in limine. — The question as to the necessity for the taking of a definite piece of property for a public use, when denied, should be deter- mined by the court in limine before appoint- ing commissioners to assess the damages that will be sustained by reason of the taking. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. In an action by a municipality to condemn property for street purposes, it is unnecessary to allege or prove the public necessity of the proposed street. Where the power to deter- mine whether the laying out of particular streets is for the benefit of the public has been delegated to the legislative department of a municipality, its determination is con- clusive. The only question for the court to determine is whether the particular property sought to be condemned is necessary for such public use. Grafton v. St. Paul, etc., E. Co. (N. Dak.), 15-10. Proof of corporate existence of plaintiff. — In an eminent domain proceed- ing brought by a corporation, where the cor- porate existence of the plaintiff is questioned, the plaintiff must show at the hearing that it is either a de jure or a de facto corpora- tion. Morrison v. Indianapolis, etc., E. Co. (Ind.), 9-587. Questions for jury. — In a proceeding by a railroad company to expropriate cross- ings from the tracks of another railroad company, the location and number of the crossings, and their necessity, involve ques- tions of fact properly submitted to the jury of freeholders. Kansas City, etc., E. Co. Vi Louisiana WesWn E. Co. (La.), 7-831. Right of jiiry to rely on own injfor- xuation. — The" rigbt of a jury iu expro- priation proceedings to rely on their own information and opinions. Shreveport v. Youree (La.), 3-300. i. Tribunal to assess damages. Bight to jury. — The provision of the Illinois constitution that when private prop- erty is taken for public use compensation therefor, " when not made by the state, shall be ascertained by a jury, as shall be pre- scribed by law," has no application to con- demnation proceedings begun by the state commission under specific authority conferred upon it by the legislature. Deneen v. Unver- zagt (111.), 8-3'96. It Is the uniform ruling of the American courts that the right of trial by jury in pro- ceedings for condemnation of property to a public use does not exist as a constitutional right unless the constitution itself contains a specific grant and guaranty of such right. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. Constitutionality of assessment by couimissioners. — Under the provisions of section 14, art. 1 of the constitution of Idaho, which provides that " private property may be taken for public use, but not until a just compensation to be ascertained in a manner prescribed by law shall be paid therefor," the legislature had the power and authority to enact section 5226, Rev. Codes, and provide for assessing the damages sustained by any landowner by three commissioners to be ap- pointed by the court. A tender of the amount so assessed to the landowner, or in case of his refusal to accept the same, a payment thereof into court to await the determination of the action, is sufficient compliance with the constitutional requirements as to pay- ment in advance of the taking to justify and authorize the court in letting the party seek- ing to condemn into possession of the prop- erty. Portneuf Irrigating Co. t'. Budge (Idaho), 18-674. j. Evidence. Situation and character of land. — In such a proceeding, evidence as to the lo- cation of the land with reference to a city, its character, and how it compares with other lands similarly situated and which have been sold for a certain price, is admissible on be- half of the defendant. West Skokie Drain- age Dist. V. Dawson (111.), 17-776. Opinion of \ritnesses as to damages. — In an eminent domain proceeding, it is not prejudicial error to permit witnesses for the defendant to give their opinions as to the damages sustained by the defendant to lands not taken, after deducting all benefits, in- stead of requiring them to state the damages and the benefits separately, where the wit- nesses are questioned fully as to the bases of their opinions, and the jury, under instruc- tions by the court, assess the damages in the manner required by the statute, and the items found by the jury are well within the extreme limits • of' the' testimony. Yellow- stone P^rk E. Co. V. Bridger Coal Co. (Mont.), 9-470. i-AO AifK CAS. DIGEST, VOLS. 1-20. Where a witness has given his opinion as to the value of land since the construction of a railroad, he may be questioned on cross- examination as to the value of part of the land or as to any other pertinent matters is-hicii will enable the jury to estimate fairly th? wciglit to be given his testimony, though the questions do not involve the correct rule for measuring the damages to the land. Davis c. Pennsylvania R. Co. (Pa.), 7-581. In condemnation proceedings, a witness cannot base his opinion of the value of the land sought to be taken on what he has heard that the plaintiff has .paid for other land for use in the same enterprise. Oregon R. etc. Co. V. Eastlack. Conjeotnral and speculative testi- mony, — In an action by a railroad com- pany to condemn a right of way over oil- bearing lands, the whole testimony of a qual- ified witness as to the market value of the property in question should not be stricken out because part of the testimony is conjec- tural and speculative. Southern Pac. R. Co. V. San Francisco Sav. Union (Cal.), 2- 962. Character and value of crops raised on land. — In an action by a landowner to recover damages for the taking of an ease- ment over his land under the right of emi- nent domain, the plaintiff may testify as to the character, value, and quantity of the crops raised by him on the land prior to the taking, as such testimony tends to establish a relative fact to aid the jury in determining the value of the land. Creighton v. Board of Water Com'rs (N. Car.), 10-218. Insurance rates on building. — In a condemnation proceeding instituted by a railroad company to determine the necessity for laying its tracks along a city street and to assess the damages to an adjoining owner, where the respondent expressly disclaims any damages for increased fire risks, it is not erroneous to exclude evidence showing the insurance rates on the respondent's build- ings. Boyne City, etc., R. Co. v. Anderson (Mich.), 10-283. FroKressive decrease in value of land. — In an action by a railroad company to condemn a right of way over oil-bearing lands, the plaintiff may prove a progressive decrease in the productiveness of the oil-field within which the land is situated as bearing upon the market value. Southern Pac. R. Co. •». San Francisco Sav. Union (Cal.), 2- 962. Price paid for land by cwner. — In an action to recover damages resulting to the plaintiff's land from the construction of a railroad thereon, it is proper to exclude evidence of the price paid by the plaintiff for the land seventeen years prior to the time of the taking, as such evidence does not tend to prove the value of the land immediately before the taking. Davis v. Pennsylvania R. Co. (Pa.). 7-581. In condemnation proceedings, evidence of what the property was sold for, or was esti- mated to have brought, in an exchange made twelve or fifteen years before, is inadmissible. Oregon R. etc. Co. v. Eastlack (Ore.), 20- 692. Offers to purchase. — It is not error for the trial court, when a question of dam- ages under the law of eminent domain is being tried, to reject evidence of offers to purchase other property in the neighborhood of the land in question, about the time the condemnation proceedings were instituted. Blincoe v. Choctaw, etc., R. Co. (Okla.), 8- 689. Price paid for other lands. — In con- demnation proceedings, evidence of what the plaintiff paid for other property for use in the same enterprise is incompetent, whether offered as substantive evidence, or on cross- examination as a test of an expert's knowl- edge. Oregon R., etc., Co. v. Eastlack (Ore.), 20-692. Ordinance declaring necessity of tahing, — In an action by a municipality to condemn for street purposes a strip of land across a railroad right of way in such municipality, an ordinance of the city coun- cil declaring it necessary to extend one of the streets of the city across such right of way, is admissible in evidence for the purpose of proving the official determination by the council of the necessity of the crossing. Graf- ton V. St. Paul, etc., R. Co. (N. Dak.), 15- 10. Deed granting easement to condem- nor's predecessor. — In an action by a landowner to recover damages for the taking of an easement over his lands under the right of eminent domain, the defendant, for the purpose of reducing the damages, may introduce in evidence a deed executed by the plaintiff granting to the corporation to which it has succeeded an easement over the part of the land in controversy, where the answer alleges that the defendant holds all the rights, franchises, privileges, and easements of the predecessor corporation, and further alleges that the defendant, under its charter, has " taken, holds, and controls the land by virtue of this very deed" executed to the predecessor corporation. Creigliton v. Board of Water Com'rs (N. Car.), 10-171. Injuries to property by construction of subivay. — In a proceeding to assess the compensation to which abutting owners are entitled by reason of the construction of a city of a subway under the streets, pursuant to a statute (New York Rapid Transit Act, § 47) which provides that the title of the city to the rights sought to be acquired shall vest on the filing of the oaths of the commis- sioners of appraisal, the property owners are entitled to show all physical injuries in- flicted on the property by the proper con- struction of the work so far as they can be ascertained at the date of the hearing. In re Rapid Transit R. Com'rs (N. Y.), 18-366. Benefits. — In a proceeding to condemn land for a railroad right of way, the plaintiff cannot, for the purpose of showing that all the lands along the route of the railroad have been enhanced in value by the building of the road, introduce evidence that offers of a certain price per acre have been mad^ EMINENT DOMAIK. 721 by various persons to owners of selected par- cels of land in the vicinity of the defend- ant's land, where these offers have arisen out of negotiations between persons none of whom are parties to the proceedings or wit- nesses on the trial. Yellowstone Park R. Co. V. Bridger Coal Co. (Mont.), 9-470. k. Instructions. Rale for determination of market value. — A statement by the court in the course of its instructions to the jury in a condemnation proceeding, relative to the rule for determining the market value of the land, that " to sell real estate at its market value sometimes requires effort and negotia- tion for some weeks, and even for some months," while not to be commended, does not present reversible error. Kansas City Southern R. Co. r. Anderson (Ark.), 16-784. Damages to land not taken. — In a proceeding to condemn land for a drainage ditch, where the evidence shows that the de- fendant's land consists of two parcels and that the proposed ditch will run through one parcel but not througli the other, an instruc- tion which limits the defendant's damages for the land not taken to the particular par- cel through which the ditch will run, is erroneous. West Skokie Drainage Dist. v. Dawson (111.), 17-776. In a proceeding to condemn a part of a tract of land for a naval magazine, it is not error for the trial court, in the absence of the testimony of competent witnesses as to the diminution of the value of th? remaining land by the use to which the land condemned is to be put, to refuse to instruct the jury to consider the damage resulting to the re- maining land from its proximity to the land condemned. Hingham v. United States (U. S.), 15-105. 1. Judgment. Effect of confirmation of atrard. — A judgment confirming an award of damages in a condemnation proceeding after an as- sessment of benefits, which the statute pro- vides shall be not less than half of the amount of the damages, has been set aside, is not an adjudication that the property affected by the proceeding has not been bene- fited. Columbia Heights Realty Co. v. Ru- dolph (U. S.), 19-854. m. Review of proceedings. Right to appeal. — Where a telegraph company institutes condemnation proceedings against a railroad company in the county where the main ofiice of the latter is located and the award is filed in the office of the clerk of the Superior Court of such county, an appeal to the Superior Court of such county is authorized by statute. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. What judgments are appealable. — An order made by the trial court in a con- demnation proceeding, before commissioners have been appointed or a. jury impaneled. Vols. 1-20 — Ann. Cas. Digest. — 46. determining that the petitioner has power to exercise the right of eminent domain, is merely interlocutory, and therefore not re- viewable by the Supreme Court on appeal or writ of §rror, under the Colorado statute relative to appeals and writs of error in such proceedings. The only determination review- able by the Supreme Court in such a proceed- ing, under the statute, is the final judgment approving the award of commissioners or ver- dict of a jury as to the amount of damages; and on review of such judgment, the right to condemn, the necessity for taking, and other interlocutory questions are determinable. Bur- lington, etc., R. Co. V. Colorado Eastern R. Co. (Colo.), 16-1002. A judgment in condemnation proceedings that the land sought to be taken is appro- priated and taken from the defendant by the plaintiff on the deposit by the plaintiff of a specified sum, and without reserving anything for the court's further determina- tion, is a final judgment, and appealable, though the plaintiff did not make any de- posit. Oregon R., etc., Co. v. Eastlack (Ore.), 20-692. Questions reviexrable. — The appeal al- lowable in condemnation proceedings is solely to review the honest judgment of the com- missioners respecting compensation for prop- erty taken. It does not undo, directly, the wrong committed by improper conduct of commissioners such as would vitiate a verdict in a civil action. Milwaukee, etc., Co. v. Ela Co. (Wis.), 20-707. The landowner is entitled to the fair judg- ment of the commissioners in condemnation proceedings, and to appeal therefrom if dis- satisfied. Milwaukee, etc., Co. v. Ela Co. (Wis.), 20-707. A motion to set aside the award of com- missioners for improper conduct is addressed to the sound discretion of the court, and the result will not be disturbed on appeal unless . it clearly appears to have been the result of abuse of discretion or mistake of law. Mil- waukee, etc., Co. V. Ela Co. (Wis.), 20-707. In vacating the award of commissioners in condemnation proceedings for improper con- duet on their part, the court acts by virtue of its inherent power Avhieh stands by the side of and goes with, or without, the statute, where necessary in the due administration of justice. Milwaukee Light, etc., Co. v. Ela Co. (Wis.), 20-707. Trial de novo on appeal. — In an emi- nent domain proceeding, the trial on appeal to the Montana District Court from the award of the commissioners is de novo as to the damages; and where the award of the commissioners has not been introduced in evidence, it is not erroneous for the trial court to instruct the jury that they must not consider such award but must confine them- selves exclusively to the testimony of the witnesses examined at the hearing. Yellow- si (me Park R. Co. r. Bridger Coal Co. (Mont ) 9-470. V '. Question for jury. — On appeal from an avard of the assessors in a proceeding by a telegraph company to condemn a railroad 722 ANN. CAS. DIGEST, VOLS. 1-20. right of Way, the issue of fact for the jury is the amount of compensation to be paid for the property taken or damaged for pub- lic purposes. Atlantic Coast Line R. Co. v. Postal Tel.-Cable Co. (Ga.), 1-734. Waiver of objections to regular- ity of proceedings. — On an appeal by the plaintiff to the District Court from the award of the commissioners in an emi- nent domain proceeding, where it appears that the defendant failed to answer in the proceedings below, but it also appears that the plaintiff failed to take a default and that the defendant was permitted to appear at the hearing before the commissioners when the order of condemnation vias made, and that the case proceeded to the making of the order of condemnation without objection by the plaintiff, the plaintiff will not be heard to complain that the proceedings before the commissioners were irregular. Yellowstone Park R. Co. v. Bridger Coal Co. (Mont.), 9- 470. Waiver of irregular impaneling of jury. — An objection that the jurors called to assess benefits in a condemnation proceed- ing were not examined as to their qualifica- tions and sworn, as required by the statute under which the proceeding was had, cannot bo raised for the first time in the appellate court. Columbia Heights Realty Co. v. Ru- dolph (U. S.), 19-854. Presumption in favor of a^vard. — In a condemnation proceeding instituted by a railroad company to determine the necessity for laying its tracks along a city street, and to assess the damages to an adjoining owner, the range of inquiry upon the subject of damages is quite wide, the object of the in- quiry being to ascertain the respondent's en- tire loss for the purpose of making it good to him, and a judgment will not be reversed for the alleged commission of errors affecting the amount of the damages awarded, where there is an abundance of testimony to sus- tain the award. Boyne City, etc., R. Co. v. Anderson (Mich.), 10-283. Harmless error in admission of evi- dence. — In a condemnation proceeding in- stituted by a railroad company to determine the necessity for laying its tracks along a city street, and to assess the damages to an adjoining owner, where the jury find that it was necessary for the petitioner to occvipy the street upon which its line has been laid, the error, if any, in admitting evidence to show that the petitioner could have built its line upon another street in the city, and in permitting the jury to view and go over such other line, is harmless. Boyne City, etc., R. Co. V. Anderson (Mich.), 10-283. n. Costs and fees. What recoverable as costs. — As used in the Utah statute providing for the allow- ance of costs in eminent domain proceedings, the term " costs " refers to and includes only the costs that are taxable in an ordinary civil action or proceeding,, that .is, such costs and fees as are fixed and regulated by statute. MeCready v. Rio Grande Western R. Co. (Utah), 8-732. Counsel fees. — The New York Rapid Transit Act (Laws 1891, c. 4, and amenda- tory acts) providing for the payment by the city of the fees and expenses of the commis- sioners of appraisal " and such allowance for counsel fees as may be made by order of the court, and all reasonable expenses in- curred by " the counsel for the city in con- demnation proceedings under the act, does not mean that counsel fees, etc., may be al- lowed to the property owners. In re Rapid Transit R. Com'rs (N. Y.), 18-366. Under the Illinois statute providing that upon the failure of the petitioner in eminent domain proceedings to take land, the court may make an order for the payment of rea- sonable attorney's fees paid or incurred by the defendant, the appellate court will not reverse the judgment for allowance of such fees on the ground that there is no evidence that they have been paid by the defendant, where the evidence shows without contradic- tion that services have been rendered by the attorneys employed by the defendants, and that the amounts allowed are reasonable. Deneen v. Unverzagt (111.), 8-396. Where proceeding is discontinued. — One who in good faith and without malice commences an action under the Utah eminent domain statutes to condemn land is not lia- ble, upon his voluntary dismissal of the ac- tion without unreasonable delay, to the owner of the land for the expenses to which the latter has been put in employing counsel and hiring expert witnesses, or for the landown- er's expenditures and loss of time necessi- tated by defense of the action, as such ex- penditures and loss are not taxable as costs in the action. MeCready v. Rio Grande West- ern R. Co. (Utah), 8-732. Review by mandamus. — Under the Michigan statute providing that whenever any lands are condemned by a railroad com- pany the company shall pay to the landowner, " in addition to the damages and compensa- tion awarded by the commissioners and jury, a reasonable attorney's fee, to be fixed and determined by the court when the report or verdict is confirmed," the circuit judge is the final arbiter as to the amount of the attor- ney's fees to be awarded, and the Supreme Court will not issue a writ of mandamus to review his determination of such question. Boyne City, etc., R. Co. v. Anderson (Mich.), 10-283. o. Possession pending proceedings. Constitutionality of Idaho statute.— The provisions of section 5226 for the ap- pointment of commissioners to assess dam- ages that the defendant will sustain by rea- son of the condemnation and appropriation of his property, and for the payment of the sum so assessed to the defendant, or, in ease of his refusal to accept the same, its being paid into court to abide the result of the ac- tion, and for the plainti-ff 'fhereuponrto enter upon and take possession bf ■ the r^opertj EMISSION — EMPLOYEE. pending the final litMiiiig and determination of tlie proceeding, arc not in conflict with eitlier section 7 or section 14 of article 1 of the constitution. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. The fact that the statute grants to a defendant in condemnation proceedings the right to a trial subsequent to the assessment made by the commissioners, and also the right of appeal, does not render the provision of the statute, authorizing the appointment of the commissioners and assessment of dam- ages and the taking of possession after pay- ment of the amount so assessed, obnoxious to the constitution. Portneuf Irrigating Co. v. Budge (Idaho), 18-674. 10. Revebsion op Condemned Land. Id general. — There is no distinction be- tween failure to use condemned land because its use is impossible, and abandonment after user, so far as a reverter to the owner of the fee is concerned. Bell v, Mattoon Water- works Co. (111.), 19-153. Land in which an easement has been taken by condemnation will revert to the owner of the fee where it appears that, by reason of natural barriers or obstacles the land can- not be used for the pvirpose for which it was condemned. Bell v. Mattoon Waterworks Co. (111.), 19-153. 11. Remedies of Landowneb. a. In general. Statutory proceeding not exclusive.^ The Oklahoma statute authorizing railroad corporations to exercise the right of eminent domain, which specifies the procedure by which the damages may be ascertained, and gives to the landowner as well as to the cor- poration the right to institute proceedings, does not provide an exclusive remedy, but where land is appropriated for railway pur- poses the common-law remedy afforded the owner in such cases may, at his election, be pursued. Blackwell, etc., R. Co. i'. Bebout (Okla.), 14-1145. Recovery of lands unnecessarily con- demned. — A landowner who has been de- faulted in a condemnation proceeding cannot afterwards recover a part of the land on the ground that more was taken than was neces- sary for the purpose, but he may recover any part that cannot be used for the purpose for which it was condemned. Bell v. Mattoon Waterworks Co. (111.), 19-153. b. Action for damages. Right to maintain, in general. — After a railroad company has entered upon private lands and appropriated its right of way, either with or without the consent of the owner, either party may institute condemna- tion proceedings to determine the relative rights of the parties and to ascertain the damages sustained by the ■ landowner, or the latter may >auer' for damages. Blackwell, etc., E. Co. V. Bebout (Okla.), 14-1145. After inititution of condemnation proceedings. — After condemnation pro- ceedings have been instituted for the purpose of ascertaining the rights of the parties for the appropriation of a right of way by a rail- road company and of fixing the compensation to the landowner, such landowner cannot maintain an action at law to recover dam- ages for the injury done to his property, and if siich suit is brought it should be dismissed at the plaintiff's costs. Blackwell, etc., R. Co. V. Bebout (Okla.), 14-1145. c. Injunction. To prevent use before payment of damages. — The owner of land attempted to be taken for a public road may enjoin the use of the same for such purpose until his damages for the taking have been ascertained and paid or provision has been made for their payment, provided such injunction is sought before the public have acquired a prescriptive right to the land taken. Kime «'. Cass County (Neb.), 8-853. As remedy for incidental injuries. — Where property is not taken directly by a public undertaking, but an owner suffers some injury in an incidental right so that ordinary condemnation proceedings are im- practicable, the owner will be left to his remedy at law and is not entitled to an in- junction unless upon proof of insolvency or some other special circumstance. Bronson v. Albion Tel. Co. (Neb.), 2-639. Erection of telephone line in street. — An abutting owner who owns part of the fee in a, city street will not be granted an in- junction restraining the erection of telephone lines in a portion of the street in which he does not own the fee and upon Avhich his prop- erty does not abut, where it appears that the telephone company is acting under a license granted by the city. De Kalb County Tel. Co. r. Dutton (111.), 10-464. Evidence. — Evidence reviewed, in an action by a street railway company against a railroad company to enjoin the defendant from interfering with an abandoned roadbed claimed by the defendant as its right of way, and held sufficient to show that the plaintiff has a prior right to the use of the roadbed. Fayetteville St. Ry. v. Aberdeen, etc., R. Co. (N. Car.), 9-683. EMISSION. Penetration without emission as constituting incest, see Incest, 1 b. EMPLOYEE. See Mastee and Servant. Public officer as distinguished from employee, see Public Officers, 2. EMPLOYER, See Master and Servant. 724 ANN. CAS. DIGEST, VOLS. 1-20. EMFLOYEKS' LIABIUTY ACTS. See Master and Sebvant. Application to seamen, see Seamen, 1. Regulation of interstate carriers, see Inter- state COMMEBCE, 2 a. EMPLOYERS' LIABILITY INSUR- ANCE. See Insurance. EMPLOYERS' RELIEF ASSOCIA- TIONS. See Master and Servant, 3 j. EMPLOYMENT. ENDORSEMENT. See Bills and Notes; Checks. ENGINEERS. Negligence of locomotive engineer imputable ~ to trainmen, see Negligence, 7 e (3). ENGINES. Liability for fire caused by locomotive, see Fires. ENGLISH DECISIONS. Evidence of common law, see Common Law, 1. ENGROSSING. See Master and Servant. Contracts of employment as affected by stat- See Monopolies and Corporate Trusts. utes of fraud, see Frauds, Statute of, 10. Duty of discharged servant to seek other em- ENLISTMENT. ployment, see Master and Servant, 1 e. Employment of real estate broker, see See Abmt and Navy. Brokers, 1 a. EMPLOYMENT AGENCIES. Statutory regulation, see Constitutional Law, 5 c. ENABLING ACTS. Effect of Act of Congress permitting states to prohibit or regulate importation of particular articles, see Interstate Com- merce, 2 b (3). EN MASSE. Sales of land en masse, see Judicial Sales, 1 a. ENROLLMENT. Variance between printed and enrolled stat- ute, see Statutes, 1 g. ENTERTAINMENT. Duty of innkeeper to receive and entertain guests, see Inns, Boarding Houses, AND Apartments, 4. ENACTING CLAUSE. See Statutes, 2. ENACTMENT OF STATUTES. See Statutes, 1. ENCOURAGING LITIGATION. ■\'alidity of contract, see Contracts, 4 d. ENCROACHMENTS. ENTRY. Erection of wharf or pier in navigable water, see Waters and Watercourses, 3 b Element of burglary, see Burglary, 1. (4)- Entry of judgments, see Judgments, 4. Overhead encroachment as trespass, see Tres- Forcible entry, see FoBoible Entry and De- pass, 1. tainer. ENTICING. Incestuous act procured by enticement of fe- male, see Incest, 3. ENTIRETY. Estates by entirety, see Husband and Wife, 9. Right to lien on land held by entirety, see Mechanics' Liens, 5. EN" VENTEE SA MERE — EQUITY. 725 EN VENTRE SA MERE. EQUITABLE MORTGAGES. Devise or bequest to " children " as including See Chattel Mortgages, 1 ; Mobtgaqes and child en ventre sa mere, tee WILLS. Deeds or Trust, 2. EPII.EPST. Criminal responsibility of epileptics, see Iit- sanitt, 7 a. EQUALIZATION. See Taxation, 5 f. Appointment of board of equalizers by circuit judge, see Judges, 3 b. EQUAL PROTECTION OF LAWS. Sec Constitutional Law, 10. Validity of local option laws, see Intoxicat- ing Liquors, 3 d. EQUITABLE ACTION. See Actions. EQUITABLE CONVERSION. See Conversion and Reconversion. EQUITABLE DEFENSES. To legal cause of action, see Actions. EQUITABLE ELECTION. See Wnxs. EQUITABLE ESTATES. Liability to execution, see Executions, 4. EQUITABLE ESTOPPEL. See Estoppel. EQUITABLE GARNISHMENT. See Garnishment. EQUITABLE INTERESTS. Equitable interests in land as real estate, see Frauds, Statute of, 4 b (5). Liability to attachment, see Attachment, 4. Oral assignment, see Frauds, Statute of, 4 b (3). Right of equitable owner to maintain eject- ment, see Ejectment, 2. EQUITABLE RELIEF. See Judgments, 13. EQUITABLE SET-OFF. See Set-Off and Counterclaim. EQUITY. 1. Equitable Maxims, 726. 2. Equity Jurisdiction, 726. a. In general, 726. b. Absence of adequate remedy ait law, 726. o. Prevention of multiplicity of suits, 727. d. Mistake as ground for equity jurisdiction, 727. e. Laches as barring relief in equity, 728. f. Complication of accounts, 728. g. Miscellaneous grounds of equity jurisdiction, 728. 3. General Principles of Pleading AND Practice, 729. a. The bill, 729. b. Amendments, 729. c. Cross bills, 729. d. Taking testimony, 729. *. Withdrawal of bill filed by inter- venor, 730. f. Decrees, 730. 4. Bills of Review, 730. a. In general, 730. b. Jurisdiction of bill, 730. c. Grounds of bill, 730. See Accounts and Accounting; Cancella- tion and Rescissions; Creditors' Bills; Injunction; Quieting Title — Removal of Cloud; Reformation of Instruments; Specific Performance. Aider of defective execution of statutory powers, see Reformation of Instru- ments. Attachment in equity, see Attachment, 1. Bills of discovery, see Discovert. Bill taken as confessed against infant, see Infants, 3 a. Costs in equity, see Costs, I. Dismissal of bill, see Dismissal, Discon- tinuance, AND Non-Suit, 1 d. Enforcement of oral contracts in equity, see Frauds, Statute of, 2. Equitable relief from judgments, see Judg- ments, 13. Equitable remedies against contracts in re- straint of trade, see Monopolies and Corporate Trusts, 2 e. Equities between garnishee and defendant, see Garnishment, 3 a. 126 AS'M. CAS. DIGEST, VOLS. 1-20. Forms of equitable relief, see Istjtjnctions. Fraud as ground of equity jurisdiction, see Fbaud and Deceit, 2. Inadequacy of legal remedy as ground for equitable relief, see Game and Game Laws, 1. Joinder of legal and equitable issues, see Actions. • Jurisdiction in actions against corporations, see CoBPOKATiONS, 10 b. Jurisdiction in actions to construe wills, see Wills, 8 b (I). Jurisdiction in equity to obtain new trial in criminal case, see New Thial, 2 b ( 1 ) . Jurisdiction in probate proceedings, see Wills, 7 b. Jurisdiction to enforce arbitration agree- ment, see Arbitration and Award, 1. Jurisdiction to restrain criminal prosecution, see Injunctions, 2 f. Jurisdiction to vacate judgment at law, see Judgments, 9 a. Masters in chancery, see Masters in Chan- cert. Necessity of cross bills in suit for account- ing, see Accounts and . Accounting. Pleading statute of limitations in equity suit, see Limitation of Actions, 8 b ( 1 ) . Power to award exemplary damages, see Damages. Power to compel removal of railway from street, see Streets and Highways, 5 f. Proceeding to set aside tax sales, see Taxa- tion, 10 e. Relief from usurious contract, see Usury, 2 c. Eclief on ground of mistake, see Boundaries, 2. Remedy for nuisance, see Nuisances, 6 b. Right of owner of equitable title to sue in justices' court, see Justices op the Peace, 2. Right to sue at law on decree in equity, see Judgments, 12. Specific performance of contracts, see Speci- fic Performance. Taking additional proofs after demurrer to answer, see Injunctions, 3 d.. Subrogation in equity, see Subrogation. Waiver of right to trial in equity by failure to transfer cause to equity docket, see TSIAL, 1. 1. Equitable Maxims. He who seeks equity must do ecinity. — In a suit in equity to enforce rights granted by a decree in a former suit, the rule that he who seeks afBrmative relief in equity must do equity requires that the plaintiff shall stand, not upon the decree in his favor entered through mistake, but upon tbe merit or lack of merit in the cause of action upon which the decree was entered. Bank of Fayetteville v. Lorwein (Ark.), 6- 202. Equity suffers no wrong without a remedy. — In applying the maxim " there is no wrong without a remedy," the courts of law and equity as well must regard wrong, so called, which is not remediable because of the statute on the subject as not wrong at all in a judicial sense. Rowell v. Smith (Wis.), 3-773. 2. EQurtT Jurisdiction. a. In general. Nature of question o£ jurisdiction. — The question of equity jurisdiction relates, technically, to power itself, but in the broader sense, to when such power should or should not be used. Wadhams Oil Co. r. Tracy (Wis.), 18-779. Iiegal enactments binding on courts of equity. — Courts of equity are as much bound by positive enactments of law as are courts of law. Allen v. Kitchen (Idaho), 18-914. Iiegal title to land. — Where the ques- tion of legal title to land is incidental to other elements calling for the exercise of equitable remedies, equity will take juris- diction. Sears v. Scran ton Trust Co. (Pa.), 20-1145. Complete relief. — Where a court of equity acquires jurisdiction for any purpose it will, as a general rule, determine the whole cause, although in so doing it may decide questions which, standing alone, would fur- nish no basis of equitable jurisdiction. Sum- ner i;. Staton (N. Car.), 18-802. Where on bill to set aside a deed and a will on the ground of fraud, it appears that the fraudulent legatee and grantee is also the executor under the will, a court of equity, having acquired jurisdiction over the person and subject-matter, will not only set aside the fraudulent deed, but will declare the de- fendant a trustee for the benefit of the heirs and next of kin, and enjoin him, and those claiming under him, from setting up title under the will, and enter such other inter- locutory orders regarding the requirement of a bond, and the like, as may be deemed nec- essary to preserve the rights of all parties, pending an application to the probate court to remove the executor. Sumner v. Staton (N. Car.), 18-802. Unconscionable conduct or result. — The exclusion of a plaintiff from the peculiar favors of equity results equally where his conduct has been unconscionable by reason of a bad motive, as where the result, in any degree induced by his conduct, will be uncon- scionable, either in the benefit to himself or the injury to others. Larscheid v. Kittell (Wis.), 20-576. b. Absence of adequate remedy at law. Bemedy at law must be certain, full, and complete. — The adequate remedy at law which will prevent relief in equity must be as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity. Castle Creek Water Co. v. Aspen (U. S.), 8-660. The adequate remedy at law which will prevent relief in equity must be a full and complete remedy, and one that is accomodated to the wrong which is to be redressed by it. EQUITY. 727 It is not enough that there is some remedy at law; it must be as complete, practical, and eflBcient to the ends of justice and its prompt administration as the remedy in equity. Sum- ner V. Staton (N. Car.), 18-802. Remedy at law inadequate. — The •wrong done a railroad company by ticket brokers who purchase and resell on a large scale its nontransferable, reduced rate tickets, and assert their intention to continue to do so, is not one for which there is an adequate remedy at law, but is a proper subject for equitable intervention. Bitterman f. Louis- ville, etc., R. Co. (U. S.), 12-693. Although a court of equity will not enter- tain a bill the sole purpose of which is to set aside a will on the ground of fraud, it will take jurisdiction of a bill filed for the pur- pose of converting the sole residuary legatee under a will into a trustee ex malefioio, where it is alleged that such legatee has not only procured the testamentary provision in his favor by fraud and undue influence, but also, prior to the death of the testator, fraudulently induced and influenced the latter to convey property to him by deed. In such a ease the probate court would be without jurisdiction to grant relief against the fraudu- lent deed, ami, consequently, the rule that a, court of equity will not assume jurisdiction where the party applying for relief has an adequate remedy at law, has no application. Sumner v. Staton (N. Car.), 18-802. 'When objection mnst be raised. — Objections to jurisdiction in equity on the ground of an adequate remedy at law will not be entertained unless made within a rea- sonable time after bill filed. Sears v. Scran- ton Trust Co. (Pa.), 20-1145. c. Prevention of multiplicity of suits. In general. — The aid of a court of equity cannot be invoked where the remedy at law is plain, adequate, and complete; nor has any court the right to infringe upon the wholesome doctrine of multifariousness which prevents a mingling in one suit of entirely distinct and separate causes of action between different parties. Subject, however, to these restrictions, the principle and rule is that where numerous parties are jointly or sev- erally claiming against one, or where one is claiming against many liable jointly or sev- erally, and the same title or right of defense will be called in question, and will be deter- minative of the issue for or against all, a case for the interposition of equity to avoid a multiplicity of suits is made without the aid of any independent equity. Southern Steel Co. V. Hopkins (Ala.), 16-690. The rule that the prevention of a multi- plicity of suits is a ground of equitable juris- diction applies where one party may be sued several times in relation to the same sub- ject-matter in its entirety, or in respect to some element or elements thereof, but does not apply where each of the parties to a joint and several obligation is Hahle to be sued Independently. Johnson v. S-wanke (Wis.), 8-545. Neoeiiity af privity or joint action. — Although the unity of claim or defense which authorizes the interposition of a court of equity to prevent a multiplicity of actions generally or frequently arises from privity or joint action by or between the many, it,. may also arise from the nature of the transaction or the situation and relation of the parties, independent of all privity or joint action, and therefore the application of the princijile is not limited to cases where privity or joint action exists. Southern Steel Co. v. Hopkins (Ala.), 16-690. Infringement of right to jury trial. — Where circumstances exist authorizing a resort to equity by suit in the nature of a bill of peace to avoid a multiplicity of ac- tions, the allowance of the siiit is no infrac- 'tion of the constitutional right of trial by jury, for that guaranty refers to, and is co- extensive only with, the common-law right then ' existing, and it was always a principle of the common law that the trial by jury must give way to an appeal to equity when, from the nature of the situation, the trans- action to be investigated, and the relation of the parties to that transaction, the ordinary proceeding at law would not answer suffici- ently the purpose of administering justice. Southern Steel Co. i;. Hopkins (Ala.), 16- 690. Multiplicity of actions for negli- gence. — A bill in equity which alleges that an explosion occurred in a coal mine, killing one hundred and ten persons; that the sev- eral administrators of the persons killed have brought separate actions against the party filing the bill, as owner and operator of the mine, for damages, on the ground of negli- gence; that if such actions are allowed to proceed at law the party filing the bill will be ruined in costs and expenses, even though it is successful in every action, since the plain- tiils in such actions are all insolvent and un- able to pay the costs taxed against them if unsuccessful; that the actions are pending and will be called for trial in different courts at the same time, by reason whereof it will be impossible for the party filing the bill to present proper defenses to them all; and that such party has a defense to all of said ac- tions, which will be put forward in each case, and which will be determinative of all alike; and which asks that the prosecution of such actions be enjoined pending the determination of the defense thereto, has equity on the ground of preventing a multiplicity of suits, and cannot properly be dismissed on motion for want of equity. Southern Steel Co. v. Hopkins (Ala.), 16-690. d. Mistake as ground for equity juris- diction. Mutual mistake held remediable. — Mutual mistake, either of fact in making a contract or of law or fact in reducing the same to writing, is remediable in the absence of a waiver of the right in Uiat regard or estoppel to the assertion of it. Rowell r Smith (Wis.), 3-773. r28 ANK CAS. DIGEST, VOLS. 1-20. The maxim, ignorantia juris non eacusat, has no application when, under a mutual mistake and misapprehension, one party pur- chases from another property which the pur- chaser already owns. Houston v. Northern Pac. R. Co. (Minn.), 18-325. Mistake of law. — The general rule that one cannot obtain affirmative relief, or defend himself against an otherwise well-founded claim, on the bare ground of mistake of law, is relaxed where its enforcement will cause great injustice. Kiggs v. Warren (Mass.), 20-1244. Where the beneficiary under a testamentary trust gives a release of claims against the estate in consideration of a void note given by the trustees for future payment, the trans- action being designed to avoid forcing the trust property on a depressed market, and the parties believe the transaction to be valid, and no loss to the estate is entailed thereby, the beneficiary's right to rescind the release and receive the sum due him from the estate is not precluded because the mistake is one of law. Eiggs v. Warren (Mass.). 20- 1244. What party alleging mistake mnst shoir. — A written contract is presumed to contain the final agreement and to express the real intent of the parties; and when a mistake in such a contract is claimed by a party, the burden rests upon him to establish by clear and convincing evidence that the writing does not contain the agreement act- ually entered into by the parties, that there is a mistake as to a material fact, that the mistake is mutual, and that it did not occur by his negligence. Grieve v. Grieve (Wyo.), 11-1162. A bill by a beneficiary under a testament- ary trust to cancel a, release of 'his claim against the estate given in consideration of a note for the sum he was entitled to in cash, on the ground of mutual mistake of the parties as to the validity of the transaction, is not bad for failing to show that he had a right to rely on his cotrustees' or on his own belief as to such validity, where the transac- tion was entered into to give him his legal rights and to avoid loss to the estate by forc- ing its property on a depressed market, and where no loss appears to have resulted to the estate or to the remaindermen. Reggio v. Warren (Mass.), 20-1244. Mistake the result of negligence or not mutual. — A court of equity will not relieve a party against a mistake in a writ- ten contract where it appears that the mis- take, if any, was one that the most ordinary care would have guarded against, and the party does not claim to have read the portion of the contract alleged to be erroneous, or to have been misled in any way as to its con- tents. Grieve v. Grieve (Wyo.), 11-1162. Equity will rarely relieve a party from the performance of his contract on the ground that it was entered into on his part through mistake, the mistake not being mutual, and especially where the mistake waa the result of negligence, or could have been avoided by the exercise of reasonable diligence on his part. Vallentyne v. Immigration Land Co. (Minn.), 5-212. e. Laches as barring relief in equity. Elements of laches. — The essential ele- ments of laches stated. Selden v. Kennedy (Va.), 7-879. Analogy of statute of limitations. — In courts of equity the estoppel of laches takes the place of statutes of limitation, and they apply it in analogy to the limitation of the like action at law. Horton v. Stegmyer (U. S.), 20-1134. A mere delay for any length of time short of a period sufficient to extinguish a right under the statute of limitations does not bar an action in equity to vindicate such right. Rowell V. Smith (Wis.), 3-773. When party is chargeable with knowledge. — In applying the doctrine of laches the party is chargeable with knowledge of the facts, if the circumstances were such as should have induced inquiry, and the means of ascertaining the truth were readily available on such inquiry. Ater v. Smith (111.), 19-105. Jury's finding against laches sus- tained. — The evidence considered in an ac- tion to enjoin the further prosecution of an application by the defendant for incorpora- tion under a corporate name alleged to in- fringe on the plaintiff corporation's name and held to have authorized the jury to find that there had been no such laches on the part of the plaintiffs as to bar them from a right to equitable relief. Creswill v. Grand Lodge (Ga.), 18-453. f. Complication of accounts. Iiong account. — Where the remedy at law and the remedy in equity involve an accounting and the consideration of many items, the remedy in equity is more complete and efficient and better adapted to attain the ends of justice than the remedy at law. Castle Creek Water Co. 17. Aspen (U. S.), a-660. Account involving merely proof and calculation. — An action against a carrier for the recovery of money paid on overcharges of freight and for failure to furnish cars ac- cording to agreement involves a mere matter of proof and calculation, and there is no such complication of accounts as gives equity ju- risdiction. Terrell f. Southern R. Co. (Ala.), 20-901. g. Miscellaneous grounds of equity juriadia- tion. Fraud. — Equity will interfere to grant relief where necessary to prevent the consum- mation of a fraud. Adams v. Gillig (N. Y.), 20-9'10. Recovery of legacy. — A court of equity has jurisdiction of a proceeding to recjover a legacy, even though a, bond has been given to pay the debts and legacies. Matthews v. Tar- garona (Md.). 10-1.53. Enforcement of decree for payment of money, — A decree for the payment of EQUITY. Y29 money may be enforced in chancery proceed- ings for contempt, even though an execution might also have issued. Jastram v. McAus- lan (R. I.), 17-320. Froteotion of political rights. — Upon the principle that courts of equity cannot in- terfere by injunction to protect political, as distinguished from civil rights, a court of equity has no jurisdiction to restrain, at the suit of a voter and taxpayer, the use at an election of voting machines duly authorized to be used by the county board of super- visors. United States Voting Machine Co. v. Hobson (la.), 10-972. Supervision of award at exposition. — In the absence of fraud, accident, or mis- take, a court of equity will not interfere with an award made to an exhibitor at an exposition, under the scheme of which a- board is constituted a special tribunal for the final determination of awards, and will not compel the exposition company to change its records relating to such award or enjoin the publication of the true report of its pro- ceedings. Borden's Condensed Milk Co. v. Louisiana Purchase Exposition Co. (U. S. ), 15-189. Where an exhibitor at an exposition enters several articles in a single group and asks for an award on the exhibit as a collective one, but instead received separate awards on the articles, the court cannot decree a col- lective award and thereby assume the func- tions of the special tribunal which alone has authority to make such an award. Borden's Condensed Milk Co. v. Louisiana Purchase Exposition Co. (U. S.), 15-189. 3. Genebai. Pbincipdes of Pleading and Pbacticb. a. The bill. Parties. — A devisee under a will al- leged to have been procured by fraud and undue influence, is not a proper party to a suit in equity by the heirs of the testator to charge the residuary legatee as a trustee eac malefioio, on the ground of fraud and undue influence in procuring the execution of the will and also of certain deeds conveying the testator's real property. As regards the devisee, the only remedy of the heirs is in the probate court. Sumner v. Staton (N. Car.), 18-802. Mnltifarlonsness. — A bill in equity by the receiver of a national bank against per- sons who were directors of the bank at vari- ous times, which alleges the commission of a series of negligent or wrongful acts extending over a period of several years, is not multi- farious as to defendants who were directors (luring the whole of the period covered by the allegations of the bill, but is multifarious as to defendants who were not directors at the time of the commission of the alleged negli- gent or wrongful acts. Emerson v. Graither (Md.). 7-1114. _ A bill of equity by a railroad company to enjoin seven ticket brokers or scalpers from purchasing and reselling the unused portions of the complainant's tickets is not multi- farious for misjoinder of parties and causes of action where it appears that the acts com- plained of as to each defendant are of like character, that their operation upon the rights of the complainant is identical, that the re- lief sought is the same as to all defendants, and that the defenses that may be interposed are common to each defendant and involve like legal questions. Bitterman v. Louisville, etc., R. Co. (U. S.), 12-693. Averments assailing title or right. ^ In assailing a prima facie right or title, by a bill in equity, the plaintiff must aver and prove facts sufficient to overcome it. Ordinarily he cannot otherwise put the de- fendant to the proof of a perfect, indefeasible title or right. Hardman v. Cabot (W. Va.), 9-1030. Prayer fop relief. — A prayer for gen- eral equitable relief, coupled with one for specific relief, cannot be extended so as to •warrant the granting of relief not embraced within and comprehended by the allegations of fact contained in the pleading. Vila V. Grand Island Electric Light, etc., Co. (Neb.), 4-59. b. Amendments. When permitted, in general. — When a court will permit an amendment of equity pleadings. Eatliff v. Sommers ( W. Va. ) , 1- 970. In Florida, where no replication has been filed to the answer, equity rule No. 42 gives the complainant the right, upon motion or petition without notice, to obtain an order from the court for leave to amend his bill, on or before the next succeeding rule day, with or without payment of costs, in the dis- cretion of the court. Long v. Anderson (Fla.), 5-846. Curing multifariousness. — It is not necessary to dismiss a multifarious bill, as the plaintiff may be granted leave to amend so as to relieve the bill of the objection. Emerson v. Gaither (Md.), 7-1114. c. Cross bills. Addition of parties. — Where a cross bill seeks affirmative relief, and shows that certain persons are necessary parties, and that they have an interest in the subject- matter in dispute between the parties to the original bill, they are properly added. Sears V. Scranton Trust Co. (Pa.), 20-1145. New issues. — A cross bill may introduce new issues, it being only necessary that the facts set put shall be germane to the subject of the bill. Sears v. Scranton Trust Co (Pa.),) 20-1145. Waiver of objections. — The objection that a cross bill is not germane to the orig- inal bill is waived by a general answer to the cross bill. Sears v. Scranton Trust Co (Pa.), 20-1145. d. Taking testimony. Extension of time. — The matter of ex- tending the time for the taking of testimony in an equity suit is within the discretion of the trial court, and the determination of this 730 AXX. CAS. DIGEST, VOLS. 1-20. question will not ordinarily be disturbed on appeal in the absence of an abuse of judicial discretion. Long v. Anderson (Fla.), 5-846. Where a court has granted an extension of the time for taking testimony in an equity suit, and the defendant is prevented from taking testimony within such time by reason of the absence of the master in chancery ap- pointed to take tlie testimony, it is an abuse of judicial discretion for the chancellor to refuse a further extension of the time for taking testimony. Long v. Anderson (Fla.), 5-846. Failure to ansirer interrogatories. — Under the Wyoming statute providing that answers to interrogatories may be enforced by a nonsuit, etc., it is within the sound dis- cretion of the court whether the plaintiff shall be nonsuited for failure to answer in- terrogatories, and where the record in no way discloses what guided the court in the exer- cise of discretion, the appellate court cannot say that in refusing to enter a nonsuit there was an abuse of diser«tion. Horton v. Dris- kell (Wyo.), 3-561. e. Withdrawal of bill filed by intervenor. Discretion of court to permit. — In a suit brought by a waterworks company in a federal Circuit Court to enjoin a municipal corporation from depriving the complainant of its rights under an existing contract be- tween the two corporations, where another waterworks company has intervened as the party complainant and has filed its original bill in the nature of a supplemental bill, it is within the discretion of the Circuit Court to permit the withdrawal of such pleading and the striking out of testimony taken thereunder, and the exercise of that discre- tion will not be revised by the Supreme Court except for gross abuse. Vicksburg i'. Vicksburg Waterworks Co. (U. S.), 6-253. f. Decrees. Partly final and partly interlocutory. — A decree may be partly final and partly interlocutory; final as to its determination of all issues of law and fact, and interlocutory as to its mode of execution. A final decree disposing of all the substantial equities of the ease is not made interlocutory by the mere reservation of the right to direct the mode of its execution. Moody v. Muscogee Mfg. Co. (Ga.), 20-301. Decree framed by Supreme Court. — A decree framed by the Supreme Court, and entered by the Superior Court in pursuance of a discretion of the Supreme Court, is, in eflFect, a decree of the latter court. Jastram t'. McAuslan (R. I.), 17-320. 4. Bills op Review. a. In general. Purpose of Wll. — The purpose of a bill of review stated. Watkinson r. Watkinson (N. J.), 6-326. Iieave to file. — When it is sought to re- verse a decree by a bill of review upon the discovery of some new matter, a leave of the court must first be obtained by petition, sup- ported by aflSdavit, that the evidence is not only new, but could not have been discovered by reasonable diligence before the hearing. Watkinson v. Watkinson (N. J.), 6-326. Time for filing. — Although there is no express statutory limitation as to the filing of bills of review, the analogous limitation of the right of appeal should govern, and a bill of review cannot be filed after the lapse of three years from the final decree, except in case of new or newly discovered matter. Watkinson v. Watkinson (N. J.), 6-326. b. Jurisdiction of bill. Jurisdiction of trial court after ap- peal. — After a decree in equity lias been reversed by an appellate court and the cause remanded for further proceedings, the trial court has discretionary jurisdiction to enter- tain a bill of review based upon newly dis- covered material evidence. Safe Deposit, etc., Co. V. Gittings (Md.), 5-941. Normally, a bill of review is addressed to the court where the final decree is entered and which is proceeding with its execution, and although such final decree has been or- dered by an appellate court, the lower court, when freed by the appellate court from its obligation to execute the decree as ordered, should ultimately pass upon the merits of an application for leave to file a bill of review. Novelty Tufting Machine Co. v. Buser (U. S.), 14-192. After a decision has been rendered by an appellate court and the cause remanded to the court below, the latter court has no au- thority to entertain a bill of review for error of law apparent on the face of the ludgment. The proper remedy of the party alleging er- ror in such a case is by direct application to the appellate court for an amendment of the judgment. Hunter v. Nelson (N. Car.), 18- 721. c. Grounds of bill. In general. — The grounds of a bill of review stated. Watkinson v. Watkinson (N. J.), 6-326. If upon a petition to a federal Circuit Court of Appeals for leave to file in the Cir- cuit Court a bill of review in a cause in which a decree has been entered upon the direction of the Court of Appeals, it appears strongly to the court that the decree is probably con- trary to the justice and right of the ease, and there has been no negligence or other fault on the part of the party aggrieved, the appellate court will release the lower court from its obligation to observe the former's mandate to the extent of allowing the lower court to entertain the application and decide upon its merits; but not otherwise, as the decree of the appellate court ought not, for light reasons, to be disturbed. Novelty Tuft- ing Machine Co. r. Buser (U. S.), 14-192. Neirly discovered evidence. — Facta reviewed in a petition for leave to file a bill to review, on the ground of newly-discovered evidence, a decree in equity which had been EQUITY OF REDEMPTION — ESCEOW. 731 reversed and remanded on appeal, and held to show that the trial court exercised sound discretion in refusing such leave, since the petition was filed by executors and was baaed upon evidence which was known to their tes- tator, but which he merely failed to remember when testifying on the original hearing. Safe Deposit, etc., Co. v. Gittinga (Md.), 5- 941. Where in a suit for the infringement of letters patent the defense that there had been a prior public use by the defendant of sub- stantially the same invention more than two years before the supposed invention or inven- tions for which the patents were granted, is sustained by the Circuit Court of Appeals upon the production of an evidently old ma- chine, and of photographs which were shown to have been taken of it many years before, while it was in the possession of the defend- ant, and the testimony of witnesses who while then in the employment of the defendant used the machine in his business, a bill of review will not be granted for newly discovered evi- dence consisting of the 'testimony of witnesses who were at different times in the employ- ment of the defendant and are expected to testify that during the times they were so employed they did not see or know of such a machine, especially where it appears that if the same effort had been made to secure the testimony of these witnesses before the hear- ing of the cause as has been displayed since the decision, there would have been as good a chance to secure it then as later. Novelty Tufting Machine Co. v. Buser (U. S.)), 14- 192. EQUITY OF REDEMPTION. See Mortgages and Deeds of Teust, 12. Liability to execution, see Executions, 4. Eight to dower in, see Dower, 1. ERASURES. Revocation of will by erasure, see Wills, 6 b (6). ERROR. See Appeal and Erbob. Erroneous exercise of jurisdiction as ground for collateral attack on judgment, see .Judgments, 10. Error of judgment as negligence, see Masteb AND Servant, 3 c ( 1 ) ; Street Rail- ways, 8 a (6). ESCAPE, PRISON BREAKING, AND RESCUE. Arrest of escaped prisoner without warrant, see Arrest, 2 a. Proof of participation in escape, see Accom- plices. Right to speedy trial waived by escape, see Criminal' Law, 6 c (1). Reoonfinement for remainder of term. — The Wisconsin statutes in reference to a prison breach and escape do not change but are declaratory of the common law that a prisoner escaping while serving sentence is liable to recapture and reconfinement to serve out his sentence, the time of his voluntary absence not being counted in his favor, and that judicial direction other than that con- tained in the original judgment is unneces- sary. In re MeCauley (Wis.), 3-414. Right to trial for escape. — Under the Wisconsin statutes for the offense of escape or prison breach and escape, a trial and sentence are necessary in order to punish the defendant. In re McCauley (Wis.), 3-414. Assisting escape. — On a trial for fur- nishing prisoners with implements with which they broke out of jail, an objection that there were no persons lawfully committed to and detained in the jail at the time the alleged offense was committed cannot be raised for the first time on appeal. State v. Ballew (S. C), 18-569. ESCHEAT. Contest of will by state to enforce right of escheat, see Wills, 7 e (1). ESCROW. Verbal condition of escrow, see Frauds, Statute of, 4 a. Delivery to agent of party. — A de- livery in escrow may be made to the agent of the grantee or payee, provided there is nothing inconsistent with the agent's duty to his principal in holding the instrument sub- ject to the conditions agreed on, and rights of third persons do not intervene. J. I. Case Threshing Mach. Co. v. Barnes (Ky.), 19- 246. ^ J " Doctrine of relation back to first delivery. — The doctrine of relation back to the first delivery of a deed deposited in escrow, so as to give the deed effect from that time, is allowed only in cases of neces- sity, to avoid injury to the operation of the deed from events happening between the first and second delivery, and where no injury will result to third parties. Such doctrine cannot be applied to defeat the intervening claims of creditors of the grantor. May v. Emerson (Ore.), 16-1128. Payments to depositary. — Where an escrow agreement requires the vendee of real property to make payments on account of the purchase price to the depositary of the deed, the latter being a mere stakeholder without any personal interest in the fund, the vendee is bound to pay him only so long as the vendor alone is the party in interest, and when a creditor of the vendor has laid hold of the latter's interest in the property, and the vendee has notice of that fact, he is bound hy the new conditions. The docketini; of a judgment against the vondnr, however^ 732 ANN. CAS. DIGEST, VOLS. 1-20. is not constructive notice to the vendee, and the latter is entitled to credit for all pay- ments made to the depositary until he has actual knowledge of the lien. May v. Emer- son (Ore.), 16-1129. ESTATES. See Life Estates; Eemaindebs. Merger of estates. — While the general rule is that when a life estate is acquired by the owner of the fee it is merged in the fee to the destruction of intervening contingent remainders, merger does not take place in equity if it is opposed to the intention of the parties either actually proved or implied from the fact that merger would be against the interest of the party in whom the several estates or interests have united, and does not take place at law when it is affirmatively proved to be opposed to the intention of the parties. McCreary v. Coggeshall (S. Car.), 7-693. ESTOPPEL. 1. In Genebal. 2. By Deed. 3. Equitable Estoppei ob Estoppel iw Pais. 4. Inconsistent Positions. Accepting benefit under will as precluding right to contest will, see Wills, 7 e (1). Application of doctrine of estoppel to in- fants, see Infants, 3. Asserting validity of indictment after dis- missal as invalid, see Cbiminal Law, 5 li. Assertion of individual interest by adminis- trator, see ExEcnxoBS and Administba- tobs, 10 e. Claiming breach of condition of insurance policy, see Insubance, 3 c (4). Claiming mechanic's lien, see Mechanics' Liens, 9. Claiming public lands withdrawn from sale, see Public Lands. Contesting claim of settlement of insolvent building association, see Building and Loan Associations, 5. Dedication by estoppel, see Dedication. Denial by agent of principal's title, see Agency, 2. Denial by bailee of bailor's title, see Bail- ment, 6, Denial by landlord of tenant's rights to re- move crops, see Cbops, 3. Denial of assignability of option to purchase demised premises, see Landlobd and Tenant, 3 f. Denial of authority of corporate officers, see COepoeations, 7 b. Denial of consent to surgical operation, see Physicians and Subgeons, 6 h. Denial of existence of partnership, see Paet- neeship, 1 c. Denial of forged signature, see Fobgeby, 2. Denial of indebtedness of municipality, see Municipal Cobpobations, 8 a. • Denial of landlord's title, see Landlobd and Tenant, 8. Denial of navigability of water, see Canals, Denial of qualifications of member of benevo- lent association, see Benevolent ob Beneficial Associations, 8 a. Denial of residence in particular state, see COUBTS, 2 c (1). Denial of validity of injunction bond, see Injunctions, 5 b. Denial of validity of municipal contracts, see Municipal Coepoeations, 7 a. Denial of validity of permit to make excava- tion in street, see Municipal Cobpoba- tions, 11. Enforcement of limitation of carrier's lia- bility, see Cabbiebs, 4 f (3). Operation and effect of judgment, see Judg- ments, 6, Plea-ding statute of limitations, see Limita- tation of Actions, 8. Purchase of property with knowledge of ex- isting nuisance, see Nuisances, 4 b, c. Questioning validity of election, see Elec- tions, 7 f. Right of stockholder to assert claim as credit of corporation, see Cobpobations. 8 e (5). * 1. In Genebal. Application of doctrine to public officers. — No estoppel can grow out of dealings with public officers of limited au- thority. State V. Goldthait (Ind.), 19-737. Estoppel against estoppel. — Where the plaintiff has sued for a settlement of the partnership, and the defendant has pleaded settlement in bar of the suit, the plaintiff is estopped from thereafter asserting that there has been a settlement, and the defendant that there has not been one. The two estoppels destroy each other, and set the matter at large. Chretien v. Giron (La.), 5-845. Pleading estoppel. — An estoppel must be pleaded in order to enable a party to avail himself of it on the trial, and must be pleaded with particularity in order to constitute either a cause of action or defense. No in- tendments are indulged in favor of such plea, but it is incumbent upon the party pleading to aver all the facts essential to its existence. Cooper V. Flesner (Okla.), 20-29. 2. By Deed. To assert paramonnt title. — One of two grantees of a common grantor may as- sert as against the other a title different from or paramount to that derived from the common grantor. Philadelphia Brewing Co. V. MeOwen (N. J.), 16-648. 3. Equitable Estoppel oe Estoppel in Pais. Change of position as a prerequisite. — In order to constitute an equitable estop- pel it must appear that the person sought to be estopped has said or done something in reliance on which the person in whose favor ESTE AYS — EVIDENCE. 733 the estoppel is invoked haa acted or refrained from acting, to his prejudice. Maryland Tel., etc., Co. V. Kuth (Md.), 14-576. Application of doctrine in criminal lavr. — A member of a jury commission, who by his own nonfeasance or active misfeasance in office as a member of such commission has rendered a selection of the jury list so ir- regular that as to others it might be invalid, cannot take advantage of his own wrong- doing when called upon to answer a charge presented by the grand jury selected from such list. State ex rel. Clark v. District (Mont.), 3-841. 4. Inconsistent Positions. Inconsistent positions — Estoppel to assert trnth. — One who acts inconsistently with the truth under such circumstances that, as a reasonable person, he ought to anticipate tliat another person is likely to change his position in reliance on S)ieh conduct, is es- topped to assert the truth to the injury of such other person. Marling v. Nommensen (Wis.), 7-364. ESTRAYS. See Animals, 4. ET All. See Abbbeviations. ETHICS. Application of rules of medical ethics in ac- tion by physician for libel, see LiBEL AND Slandeb, 4 f (2). EVICTION. Of leasee, see Landlobd and Tenant, S i. EVIDENCE. 1. Judicial Notice, 734. a. Of legislation, 734. b. Of executive orders, 735. c. Of court records, 735. d. Of public officers, 735. e. Of customs, 735. f. Of the calendar, 735. g. Of geographical facts, 735. h. Of scientifie facts, 736. i. Matters of common experience or public importance, 736. 2. Relh:vanct and Admissibility iit Genebal, 736. 3. Heabsat Evidence, 737. a. In general, 737. b. Testimony on former trial, 737, 4. Chabacteb OB Reputation, 738, 5. SipoNpAKY Evidence, 738, 6. Experimental Evidence, 738. 7. Real ob Object Evidence, 739. 8. ExPEBT AND Opinion Evidence, 739. a. Opinions of witnesses in general, 739. b. Expert evidence, 739. (1) In general, 739. (2) Qualifications of experts, 740. (3) Subjects of expert testi- mony, 741. (4) Weight and credibility, 741. c. Nonexpert opinion, 741. 9. DOCUMENTAEY EVIDENCE, 742. a. Records and public documents, 742. b. Private documents, 742. (1) In general, 742. (2) Ancient documents, 743. (3) Contradiction of documen- tary evidence, 743. 10. Declabations and Admissions, 743. a. In general, 743. b. When competent as part of res gestw, 744. c. Declarations of agent, 744. d. Admissions, 745. (1) Admissibility in general, 745. (2) Admissions by attorneys, 745. (3) Admissions by agents or employees, 745. (4) Admissions in pleadings, 746. (5) Weight as evidence, 746. 11. Handwbitinq, 746. a. Proof by nonexpert, 746. b. Standards for comparison, 746. 12. Photoqbaph as Evidence, 747. a. Admissibility in general, 747. b. Proof of accuracy, 747. c. Discretion as to admission or ex- clusion, 747. d. Weight as evidence, 747. 13. Phonogbaphic Recobd as Evidence. 747. 14. Pabol Evidence to Vabt Wbittkw Instbuments, 748. a. Admissibility in general, 748. b. To define or identify subject- matter, 748. c. To prove collateral agreement, 748. d. To prove consideration, 749. e. To disprove recital of receipt of consideration, 749. f. To remove ambiguity, 749. g. To prove fraud, 749. h. To prove subsequent parol agree- ment, 750. i. To show illegality of contract, 750. j. To prove meaning of terms used, 750. 15. Pabol Evidence to Add to Recobd 750. 16. Pbesumptionb, 750. 17. Pbivileqed Communications, 75J, 18. Telepbonk Conversations, 7§l, 734 ANN. CAS. DIGEST, VOLS. 1-20. 19. Objections and Exceptions, 752. 20. Weight and Sufficdsnct op Evi- dence, 752. a. In general, 752. b. Positive and uncontradicted tes- timony, 753. e. Instructions, 753. 21.BDRDEN OF Proof, 753. 22. LeOislative Poweb Over Rules of Evidence, 754. See Depositions; Witnesses. Actions on injunction bonds, see Injunc- tions, 5 c (5). Actions under civil damage acts, see Intoxi- cating Liquors, 8 e. Acts of agent as evidence of authority, see Agency, 3 b (2). Authority of agent, generally, see Agency, 3 b. Brand as evidence of ownership of animal, see Animals, 1 b. Capacity to commit rape, see Rape, 1 b. Census reports as evidence," see Census. Circumstantial evidence, see Agency, 1 c; False Imprisonment, 4. Compensation of expert witnesses, see Wit- nesses, 1 b (3). Competency of evidence obtained by unlawful means, see Criminal Law, 6 n ( 1 ) . Condemnation proceedings, see Eminent Do- main, 9j. Contempt proceeding, see Contempt, 3 f. Contracts to procure testimony, see Con- tracts, 4 d. Criminal cases, see Criminal Law, and the various criminal topics. Criminal conversation, see Husband and Wife, 7 e. Delivery of gift, see Gifts, 1 d. Duty of arbitrator to observe rules of evi- dence, see Arbitration and Award, 1. Election contests, see Elections, 8 b. Enforcement of statutory liability of stock- holders, see Corporations, 8 h. Existence of partnership, see Partnership, lb. Establishment of contents of lost instru- ments, see Lost Papers and Records. Establishment of easement, see Easements, 1 b. False testimony, see Perjury. Finding or verdict in coroner's inquest, see Coroners, 2. Fires caused by locomotives, see Railroads, 7 c (4). Inference from refusal to waive privilege of secrecy, see Witnesses, 3 d ( 8 ) . Malpractice by physician, see Physician and Surgeons, 6 b (2). New evidence on appeal, see Appeal and Error, 12 d. Newly discovered evidence as ground for new trial, see New Trial, 2. Order of proof in criminal cases, see Crim- inal Law, 6 m ( 1) . Order of proof in civil cases, see Trial, 2 a. Ownership of trespassing animals, see Ani- mals, 2 d. Personal injuries by railroads, see Rail- roads, 8 b (9) (a). Personal knowledge of judge in lieu of evi- dence, see Pleading, 1. Probate proceedings, see Wills, 7 h. Production of books by corporations, see Con- stitutional Law, 9 b. Proof of ordinances, see Municipal Cor- porations, 5 c. Proof of particular matters, see Agency, 1 c; Alteration of Instruments, 4; Boundaries, 3; Usages and Customs; Dedication; Insanity, 1, 7 c; Mar- riage, 2; Payment, 2; Wills, 4 e. Prosecution for maliciously killing dogs, see Animals, 3 c. Recovery for medical services, see Physicians AND Surgeons, 4 b. Review of rulings on evidence, see Appeal AND Error, 15 d. Taking testimony in equity causes generally, see Equity, 3 d. Tax rate as evidence of value, see Gas and Gas Companies, 4 c. Testimony of detectives, see Detectives. Violations of food law, see Food, 6 c. Weighing evidence by appellate court, see Appeal and Error, 12 g (2). Particular actions and actions by and against particular persons and for particular causes, see Assault and Battery; Attachment; Benevolent or Bene- ficial Associations, 9 b; Bills and Notes, 12 e; Breach of Promise of Marriage, 2 c; Carriers, 4 j (1) (b) ; 6 g (5) (b); Contempt; Contracts, 7 f; Corporations, 10 f; Damages, 11; Death by Wrongful Act; Divorce; Ejectment, 6; Eminent Domain; Ex- ecutors AKD Administrators, 18 e; Explosions and Explosives, 6 b ; False Imprisonment, 4; Fires, 6; Food, 6 e; Fraud and Deceit, 4 ; Fraudulent Con- veyances, 4 f ; Husband and Wife, 7 e; Infants, 3 d; Injunctions, 5 c (5) ; Inns, Boarding Houses, and Apart- ments, 9 b; Insurance, 5 m (7); In- toxicating Liquors; Libel and Slan- der, 4 f; Livery Stable Keepers; Ma- licious Prosecution, 2 e ; Mandamus, 3 f ; Master and Servant, 3 n ( 3 ) ; Me- chanics' Liens, 10; Negligence, 12; Partition, 2 d (4) ; Physicians and Surgeons; Quieting Title — Removal of Cloud, 5; Railroads, 7 c (4), 8 b (9) (a); Replevin, 6; Sales, 5 d (4) ; Specific Performance, 3 f, 5 d; Trover and Conversion, 5 d; Vendor and Purchaser, 3 1 (5) ; Waters and Watercourses, 3 b (7) (e) ; Wills, 7 h. 1. Judicial Notice. a. Of legislation. Judicial notice of foreign laws, see Foreign Laws, 1. In general. — Courts take judicial notice of the public and private ofBcial acts of the legislature. French v. Senate (Cal.), 2-756, EVIDENCE. 735 Federal statutes in state courts. — The state courts will take judicial notice of the public acts of Congress, and therefore the plaintiff in an action against an inter- state carrier which claims a limitation of liability in the bill of lading may invoke the application of the Carmack Amendment to the Interstate Commerce Act (St. L. 594; Fed. St. Ann. Supp. 1909, p. 273) forbidding such limitation, though the plaintiff does not show in his pleadings that he relies on the Carmack Amendment. Louisville, etc., E. Co. r. Scott (Ky.), 19-392. Ado])tioii of local option la-nr. — The adoption of the local option law by the voters of a particular county is a fact which must be proved in a prosecution for selling liquor in such county, and it cannot be judicially noticed unless the result of the election is required to be made a matter of record in the court having original jurisdiction of a cause involving the inquiry. Gay i. Eugene (Ore.), 18-188. Municipal ordinances. — In a trial be- fore a municipal court, the recorder or other presiding judge may take judicial notice of ordinances of the city defining offenses against the same. Hill v. Atlanta (Ga.), 5-614. Neither the Supreme Court nor any other court than a municipal court can take judi- cial cognizance of municipal ordinances. Hill r. Atlanta (Ga.), 5-614. The Circuit, Court, on a writ of review to a municipal court, will take judicial notice of an ordinance of which the municipal court was obliged to take cognizance. Gay v. Eu- gene (Ore.), 18-188. Courts will not take judicial notice of mu- nicipal ordinances, and the objection that an ordinance is in conflict with a prior ordi- nance not repealed by it will not be reviewed on appeal where the prior ordinance was not offered in evidence or referred to in the trial court. St. Louis e. Liessing (Mo.), 4-112. b. Of executive orders. Under Montana Code of CItU Pro- cedure. — Under the provisions of the Mon- tana Code of Civil Procedure, a court takes judicial notice of executive orders creating the Fort Missoula reservation. State v. Tully (Mont.), 3-824. c. Of court records. In other proceedings. — Courts can- not take judicial notice of their own records in other causes pending therein, even between the same parties. Murphy v. Citizens' Bank (Ark.), 12-535. Judicial notice of records by appellate court, see Appeal and Ebbob, 12 g. d. Of public officers. Surveyor-general. — A state court will take judicial notice of the surveyor-general of the public lands in the district included in such state. Kellogg v, Finn (S, Dak.), 18- 363. e. Of customs. Abbreviations. — Courts take judicial notice of the meaning of " F. O. B. Cars." Vogt V. Schienebeck (Wis.), 2-814. Courts will take judicial notice that the initials E. M. L. D., when used in the records of the internal revenue office to designate the business for which a permit has been issued, mean '• retail malt liquor dealer." Topeka V. Stevenson (Kan.), 17-491. Practice of life insurance companies. — The court will take judicial notice of the uniform and generally known custom of life insurance companies to require as a condi- tion precedent to the issuance of an insur- ance policy a properly signed and executed application therefor, together with an au- thenticated medical examination of the ap- plicant." Taylor v. Grand Lodge (Minn.), 11- 260. Customs of traveling salesmen. — A court cannot take judicial notice of a custom among traveling salesmen and their employ- ers of regardijig as sales any soliciting of sales which the employer accepts or fills, but where the evidence of such custom is uncon- tradicted no error is committed by the court in assuming its existence. Schultz v. Ford (la.), 12-428. f. Of the calendar. Sunday. — In a prosecution against a barber for doing business on Sunday, an in- formation is sufficient ifi it alleges that on a specified date the defendant carried on the business of barbering on Sunday, though it does not allege in direct terms that the date specified was Sunday, as the court will take judicial notice of that fact. State v. Bers;- feldt (Wash.), 6-979. g. Of geographical facts. Subdivisions of county, see Venue, 2 d. Iiocation of town. — A court will take judicial notice of the location of a well- known town of the state, especially of a county seat, and of the distance from such town to a prominent business centre of an- other state, and will also take notice of the accessibility of such places to connecting rail- roads and the time between them by the usual routes and method of travel when such facts are sufficiently notorious to make their assumption safe and proper. Harper Fur- niture Co. V. Southern Express Co. (N. Car ) 12-924. City streets. — The court cannot take ju- dicial notice that an alleged street in which the plaintiff's decedent is claimed to have been injured is one of the public streets of the defendant city or within its corporate limits. Woodson v. Metropolitan St. R. Co (Mo.), 20-1039. Distance between towns. — Judicial notice will be taken that fourteen days is too long a time for the transportation of matter by express from the city of Brie, Pa., to the town of Unoir, N. C, and the' coi]-' 736 ANlSr. CAS. DIGEST, VOLS. 1-20. aumption of so much time in the transporta- tion of express matter between the two points shows prima facie that there is actionable negligence by the express companies in the performance of the contract of carriage. Harper Furniture Co. v. Southern Express Co. (N. C), 12-924. National military reservation. — A state court will take judicial notice that a national military reservation is situated in a certain county. State v. Tully (Mont.), 3-824. GoTernment land. — In a criminal prosecution defended on the ground that if any offense was committed it was on land exclusively under the jurisdiction of the United States, the court will take judicial notice of the fact of a conveyance to the United States for military purposes of land upon which a certain fort is situated, and the exclusion of a deed designed to show that fact is immaterial. The court cannot judi- cially know, however, in such a case, the precise metes and bounds of the land, and the defendant is entitled to "introduce evi- dence to show the exact locality of the line as run on the ground. A fence or wall en- closing the land do«s not conclusively estab- lish the correct boundary or show that the United States has abandoned possession of the land outside the enclosure. Baker v. State (Tex.), 11-751. h. Of scientific facts. Medical dictionary. — It is not error to receive a standard medical dictionary in evidence as an aid to the memory and under- standing of the court. State v. Wilhite (la.), 11-180. Vaccination. — While a court will not decide that vaccination is a preventive of smallpox, it will take judicial notice of the fact that this is a common belief. Viemeister V. White (N. Y.), 1-334. A court will take judicial notice of the fact that there are opposing theories with re- gard to the propriety of vaccination. Jacob- son V. Massachusetts (U. S.), 3-765. Effect of loss of one eye. — The court will judicially notice that the destruction of the sight of one eye impairs the power of vision, but not that it impairs the sight of the other eye. Gordon v. Northern Pacific E. Co. (Mont.), 18-583. i. Matters of common experience or public importance. Judicial notice of abbreviations, see Abbre- viations. Matters of public policy, see Contbacts, 7 f. Meaning of "noon," see Time. Unhealthfulness of occupation, see Labob Laws, 1 a. Valne of money. — Courts take judicial cognizance of the value of money. In a pros- ecution for the larceny of certain United States treasury notes and national bank notes, vrkere the p^Ttic^lar bi^la ^hieh it ii claimed were stolen are offered in evidence, proof of their value is unnnecessary. State V. Pigg (Kan.), 18-521. • Peace betxreen United States and foreign country. — A state court will take judicial notes that the United States and Italy are at peace, so that the rule applicable to alien enemies will not defeat the right to recover for the wrongful death of an un- naturalized Italian resident of the state. Trotta V. Johnson (Ky.), 12-222. 2. Relevancy and Admissibility in Gen- eral. Facts having rational value. — All facts having rational value are admissible unless some specific rule forbids. Kirchner V. Smith (W. Va.), 11-870. Facts not in issue. — In an action for damages for personal injuries culminating in the amputation of a limb, no error is com- mitted by the exclusion of testimony of a physician offered by the defendant, that the witness was present when the amputation was performed, the defendant not offering to prove by the witness any fact in issue in the case. Smart v. Kansas City (Mo.), 13-932. Health of plaintiff suing for per- sonal injuries. — In an action to recover damages for personal injuries, evidence of personal appearance and conduct, as indicat- ing good health or the lack of it, is relevant, and such ordinary indications may be testi- fied to by any competent person who was in a situation to have knowledge thereof. Such appearance, and the ability to labor before and after the injury, are ordinarily proper to be considered in determining the extent of such injury. Federal Betterment Co. r. Reeves (Kan.), 15-796. Where it is claimed that the disability re- sulting from such injury is a continuing one, the period of time covered by such evidence must depend upon the circumstances of the case and the probability of Intervening changes, and the determination thereof must be left to the sound discretion of the trial judge. Federal Betterment Co. v. Reeves (Kan.), 15-796. Threats made to procure attendance of witness. — Evidence of threats made by a party to an action, or his agent, for the purpose of inducing a witness to attend and testify at the trial, is not admissible on be- half of the adverse party, where there is nothing to show that the party making the threats intended thereby to dissuade the wit- ness from aiding the adverse party, or at- tempted to induce him to testify to any par- ticular state of facts. Garrett V. St. Louis Transit Co. (Mo.), 16-678. Evidence relevant but too remote. — Relevant evidence may be so remote in its character as to justify the trial court in ex- cluding it. Lambert v. Hamlin (N. H.), 6- 713. Evidence not material but leading to material Inquiry. — An objection to a question which is not material to the issue but which, if answered in the afflrmatiye, EVIDENCE. 737 ■would lead to a material inquiry, should be overruled. Coburn r. State (Ala.), 15-249. Direct testimony as to intent.— Where, in an action for goods sold, it is material whether the buyer intended to accept the goods, he is competent to testify to his own intent, though Iiis testimony is not eonelu- ^ive and may be overcome by the circum- stances attending the transaction. Jarrell v. Young, etc., Co. (Md.), 12-1. Wife's testimony of nonaooess to prove illegitimacy. — A wife's testimony of nonintercourse with her husband cannot be admitted to bastardize her issue born after their marriage. Godfrey v. Rowland (Hawaii ) , 7-993. 3. Hearsay Evidence. a. In general. Circumstances of accident related to xiritness. — Where one is ejected from a railroad train as a trespasser, it is at least within the discretion of the court to refuse to allow a witness to testify to statements made to him by a stranger at the time and place of the accident as to the manner in which it occurred. Dixon v. Northern Pac. E. Co. (Wash.), 2-620. Acts not in presence of ivitness. — A witness who was in San Francisco at the time of a certain person's death in New York cannot be asked whether such person com- mitted suicide in New York, such testimony being hearsay. Estate of Dolbeer (Cal.), 15- 207. Statements liy xritness to third per- son. — A witness cannot be asked whether she had not said to her sister that a certain person had committed suicide, such testimony being hearsay. Estate of Dolbeer (Cal.), 15- 207. A witness cannot be asked whether ahe had not told another that a certain person had attempted to commit suicide while on a cer- tain trip, the witness not having accompanied the latter on such trip, because such testi- mony is hearsay. Estate of Dolbeer (Cal.), 15-207. Entries in books of account. — In an action by a bookkeeper against his employer to recover for services rendered, where the defendant pleads payment and supports hia plea by evidence that he assigned a note to the plaintiff, the plaintiff cannot introduce in evidence his entry on the defendant's books containing statements made to the plaintiff by a third person concerning the transaction, as these statements are mere hearsay. Mat- tinglyu Shorten (Ky.), 8-1134. Family history. — A witness may tes- tify to such facts of family history as mar- riage, kinship, name, and death, where his knowledge of the subject is derived from in- timate acquaintance with the family. Hoyt V. Lightbody (Minn.), 8-984. Report made by -witness. — Where a witness testifies that he made a correct re- port of a matter to another person but does not remember exactly what that report was, the testimony of the latter as to the fact re- Vois, 1-20 — Ann, Has, Djoest, — 47, ported is admissible. Hart v. Atlantic Coast Line R. Co. (N. Car.), 12-706. Striking out. — Hearsay evidence should be stricken out, though it was elicited on cross-examination by the parties objecting thereto. State v. Osborne (Ore.), 20-627. When it becomes apparent in the course of H witness's examination that he has been giving hearsay testimony, it is proper for the court to order such testimony stricken from the record. Lambert v. Hamlin (N. H.), 6-713. b. Testimony on former trial. Foundation for such testimony.— The testimony of a witness on a preliminary ex- amination cannot, in the absence of the wit- ness, be proved at the trial of the defendant, unless a foundation therefor is laid by show- ing that the absent witness is dead, beyond the jurisdiction of the court, etc. Maloney t". State (Ark.), 18-480. Before the testimony of a witness given at a former trial can be read in evidence by the state against a defendant in a criminal prose- cution, over his objection, it must be made to appear that the witness who gave such testimony cannot, by the exercise of reason- able diligence, be produced. State v. Mc- Clellan (Kan.), 17-106. In such a case the mere production of a subpoena which has been issued for the ab- sent witness, with a return of non est there- on, without any further showing as to the residence or whereabouts of such witness or of the extent of the search made for him, is insufEcient, and the introduction of such evidence under such circumstances is error. State t;. McClellan (Kan.), 17-106. Witness not found. — Oral testimony given by a witness on the trial of a cause may be given in evidence on a subsequent trial of the same cause, if it is shown that after diligent search the witness cannot be found, even though it is not proved that at the tiihe of the second trial he is without the jurisdiction of the court. Cuff r. Frazee Stor- age, etc., Co. (Ont,), 8-466. Proof of search for absent Tiritness. — Where it is sought to prove an unsuccess- ful search for a witness in order to lay a foundation for the introduction • of evidence given by him on a former trial of the same cause, answers to inquiries made as to his whereabouts are competent for that purpose, and are not to be treated as hearsay. Cuff V. Frazee Storage, etc., Co. (Ont.), 8-466. Proof by steaographer's transcript. — On the second trial of an action the testi- mony given by witnesses at the first trial who are absent or deceased cannot be proved by a, transcript of the testimony taken down and reduced to writing by a stenographer at the former trial, there being no proof other than the certificate of the stenographer that the transcript is a correct copy of the testi- mony of the witnessed. Williams v. Sleepy Hollow Mining Co. (Colo.), 11-111. Proof by bill of esceptions. — Under the Missouri statute providing that "when- rss ANN. CAS. DIGEST, VOLS. 1-20. ever any competent evidence shall have been preserved in any bill of exceptions in a cause, the same may be thereafter used in the same manner and with like effect as if such testimony had been preserved in a depo- sition in said cause," the testimony of a witness on a former trial, whose absence is not due to any other cause authorizing the admission of depositions, cannot be read from tht bill of exceptions unless it appears that such witness is a resident of a county other than the one in which the trial is held. O'Brien v. St. Louis Transit Co. (Mo.), 15-86. 4. Chabactee OB Reputation. General reputation for bonesty. — In a civil action, evidence of the general repu- tation of one of the parties for honesty is not admissible, unless the proceeding is such as to put the character of the party for honesty directly in issue. Mattingly v. Short- ell (Ky.), 8-1134. In an action by a bookkeeper against his employer to recover for services rendered, where the defendant pleads payment, which plea he supports by evidence that he assigned a note to the plaintiff, and the plaintiff de- nies that the note was given to him in pay- ment of his claim, and supports his denial by evidence of his entries on the defendant's books concerning the transaction, and the de- fendant claims that such entries were made without his knowledge or consent, the char- acter of the plaintiff is not in issue, and therefore he cannot introduce witnesses to testify as to his general reputation for hon- esty. Mattingly v. Shortell (Ky.), 8-1134. Particular instances of misconduct. — In an action for injury to a person's char- acter and reputation, particular instances of misconduct on his part are not admissible in evidence, especially when the specific acts offered to be proved were committed after the happening of the wrongs giving rise to the action. Columbia Nat. Bank v. Mac- Knight (D. C), 10-897. 5. Secondary Evidence. In absence of foundation therefor. — Parol evidence of a letter written by one person to another, and of what was printed on the stationery used, is properly excluded, in the absence of any foundation being laid therefor. Bush v. W. A. MoCarty (Ga.), 9- 240. Writing innocently altered or de- stroyed. — Where a writing has been inno- cently altered or destroyed, and there is no suspicion of evil motive, and no doubt of the proof of its contents, there can be no danger ia admitting secondary evidence of such con- tents and no reason for a rule excluding such evidence, though the alteration or destruc- tion was voluntary. Gibbs r. Potter (Ind.), 9-481. Documents out of jurisdiction of court. — Secondary evidence of documents out of the jurisdiction of the court is not admissible merely upon proof of that fact, even though the documents are the papers of a third party not interested in the pending controversy. It ought at least to appear that some effort has been made to procure the original documents. Roll ». Everett (N. J.), 17-1196. Secondary evidence of the contents of a written contract is not admissible, even when such instrument is in the possession of one who is not a party to the suit and who lives in another state, unless it is first shown that such instrument is lost or is beyond the con- trol of the party wishing to prove the terms thereof. Pringey v. Guss (Okla.), 8-412. Telegram received by addressee. — In an action against a telegraph company, brought by the addressee of a telegram to recover damages for delay in its delivery, where there is no claim that there was ally mistake in the transmission of the message or that the message delivered was not the very message received by the defendant from the sender, the presumption is that the mes- sage delivered is a correct reproduction of that received, and it is admissible in evi- dence in support of the complaint, notwith- standing the fact that the plaintiff has not produced or accounted for the absence of the written message delivered for transmission. Colliiis i>. Western Union Tel. Co. (Ala.), S-268. Carbon copies. — The different numbers or impressions of a writing produced by plac- ing carbon paper between sheets of paper and writing upon the exposed surface are dupli- cate originals, and either may be introduced in evidence without accounting for the non- production of the other. International Har- vester Co. V. Elf Strom (Minn.), 11-107. 6. EXPEBIMENTAL EVIDENCE. See also Abson, 4. Preliminary question for court. — Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court. Spires v. State (Fla.), 7-214. Discretion of court. — It is within the judicial discretion of the trial court to per- mit experiments relevant to the issue to be made before the jury during the trial, or to refuse to permit them, such court having first to determine whether or not such similarity of circumstances and conditions has been made to appear as to render said evidence competent; and the appellate court should decline to interfere with the ruling unless abuse of this official discretion ia made to appear clearly. Spires v. State (Fla.), 7- 214. Necessity that conditions be un- changed, — Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible where the conditions attending the alleged occurrence and the experiment are not shown to be similar. Spire? v, Stftt? (Fla,), 7~ 814, EVIDENCE. 739 Experiments in pretence of Jury. — The making of experiments by or in the presence of the jury is not favored by the courts. Evidence of this kind should be re- ceived with caution, and should be admitted only where it is obvious to the court, from the nature of the experiments, that the jury will be enlightened rather than confused. Spires v. State (Fla.), 7-214. 7. Real or Object Evidence. Identity of object offered. — In an ac- tion to recover the price of hay sold, where the defendant claims that the hay was of a grade inferior to that required by the con- tract, it is not erroneous to refuse to permit him to exhibit to the jury two bales of hay, in the absence of evidence identifying such bales as part of the hay purchased by him from the plaintiff. Whaley v. Vannatta (Ark.), 7-228. Paternity of infant. — Where the pa- ternity of an infant is in issue, it is not improper to produce the infant and point out to the jury its resemblance to the putative father, though it would be better and more regular to have the likeness testified to by witnesses. Rex v. Hughes (Can.), 19-534. EfEect of sach evidence on appeal. — Impressions made on the minds of the jurors in an appropriation case by a, view of the premises are not of themselves evidence in the cause. Hence, a bill of exceptions which contains all the evidence given in court at the trial is, with the record otherwise com- plete, sufficient to present to the reviewing court the question of the weight of evidence. Zanesville, etc., R. Co. v. Bolen (Ohio), 10- 658. 8. ExPEKT AND Opinion Evidence. a. Opinions of witnesses in general. Cross-examination of experts, see Witnesses, 4 b. Genuineness of mark made as substitute for written signature, see Signature. Locomotive engineer as expert witness, see FlEES, 6. Proof of age, see Rape, 2 d (2). Proof of foreign laws, see Foreign Laws. Proof of insanity, see Insanity, 1; Wills, 4 e (2). Proof of intoxication, see Drunkenness and Intoxication, 2. General rnle. — The opinion of a witness is not admissible in evidence when all the facts and circumstances are capable of being clearly detailed and described so that the jurors may be able readily to form correct conclusions therefrom. Central of Georgia R. Co. V. Goodwin (Ga.), 1-806; MeCray v. State (Ga.), 20-101. The opinion of a witness has no place in a judicial investigation unless he possess, with regard to the particular subject of in- quiry, a knowledge not acquired by ordinary persons. State p. Maioni (N. J.), 20-204. In an action for negligence, opinion evi- dence held improperly admitted, the facts being within the comprehension of the jury. Coe V. Van Why (Colo.), 3-552. A witness ca;:not state his mere conclu- sion that others than himself knew the fact. Bush V. W. A. MeCarty Co. (Ga.), 9-240. Preaumption in favor of trial court's ruling, — The question as to the admissi- bility of opinion evidence lies in the fleia of competency, and the action of a trial court in admitting such evidence should not be disturbed on appeal, except in case of a clear showing of error. Hamann v. Milwaukee Bridge Co. (Wis.), 7-458. In an action tried before the court with- out a jury, the allowance or exclusion of questions calling for the opinion or conclu- sion of a witness is a matter which rests largely in the discretion of the trial court, and the exercise of such discretion will not be reviewed on appeal \inless it is made plaiii that the court's ruling in admitting the evi- dence has* worked an injury. Nolan v. No- lan (Cal.), 17-1056. As to competency of employee. — Opinion evidence is not admissible to prove the competency of an employee to superin- tend the work of drilling holes for blasting and charging and exploding the blasts. John- son V. Caughren (Wash.), 19-1148. b. Expert evidence. ( 1 ) In general. . Existence of facts as basis. — Expert testimony must be based upon supposed facts, of the existence of which there is evidence before the court. Goken v. Dalugge (Neb.), 9-1222. Questions calling for the opinions of ex- perts, on mere abstract matters of science, not predicated on or related to the facts es- tablished by the proofs in the cause, are in- competent. State V. Maioni (N. J.), 20-204. Opinion based on personal knowl- edge. — Where a question under examina- tion, and to be decided by the jury, is one of opinion, an expert witness may give his opinion thereon, based on the facts which lie himself knows and has observed. Yates f. State (Ga.), 9-620. Testimony as to grounds of opinion. — The jury are entitled to the facts on which an insanity expert bases his opinion, if the same are sought by the prosecution ov the accused. People i\ Faber (N. Y.), 20- 879. While a witness called to testify as to the value of land must confine his testimony to the market value of the land as a whole, he may take into account everything which goes to make up such value, and after he has given an opinion as to the value may be asked on his examination-in-chief to state the grounds of his opinion. Neppach r. Oregon, etc., R. Co. (Oregon), 7.-1035. Invading province of jury. — In an action against the owners of a mine to re- coyer damages for negligence in using an un- suitable hoisting plant, where there is a conflict of evidence as to the state of repair of the hoisting machinery, questions put to 740 ANK CAS. DIGEST, VOLS. 1-20. expel-t witbesaes which allow them to assume that the machinery Was hot in good repair, when that question is solely for the jury, are impt-oper. Coe I'. Van Why (Colo.), 3- 552. In an action for damages for a personal injury followed hy the amputation of a liitib, where tin issue of fact is raised as to whether the amputation was rendered necessary by the injury in question or by other causes, a hypothetical question put to a physician as an expert witness should be limited to the inquiry as to whether the injury complained of was a sufficient Cause to require the am- putation at the time it became necessary, and the jury must be left to determine whether such injury or Other causes in fadt necessitated the amputation. To allow the expert to state that " the injury precipitated the amputation " invades the province of the jury. Smart v. Kansas City (Mo.), 13-932. Matters not relevant to casit -~ It is erroneous to admit expert testimony as to matters which are not relevant to the facts of the case. Welch v. Carlueoi Stone Co. (Pa.), 7-299. Hypothetioal questions. — • A hypotheti- cal question need not embrace all of the evi- dence relating to the matter on which the opinion of the expert is desired. State v. Crowe (Mont.), 18-643. In propounding hypothetical questions to expert witnesses, it is allowable for each party to the controversy to submit such ques- tiona upon the theory of the case contended for by the side propounding them. A ques- tion is not improper simply because it in- cludes only a part of the facts testified to. If facts are testified to which are not be- lieved to be true, or which are believed to be immaterial to the issue, there is no rule of law requiring that they be included in the question. Hamblin v. State (Neb.), 16-569. It is not prejudicial error to exclude a question asked an expert where the question is hypothetical in form and includes some facts not in evidence. Taylor v. Modern Woodmen (Wash.), 7-607. (2) Qualifications 6i Experts. Medical witnesses, in general — A sufficient foundation is laid to entitle a medical witness to testify as to_ whether, in his judgment, a disease from which a certain person suflfered was of recent origin, where the physician qualifies as an ordinary medi- cal witness, it being the privilege of the op- posing party to examine the witness subse- quently as to his specific qualifications and experience concerning the treatment of the disease in question. Taylor v. Modern Wood- men (Wash.), 7-607. Physician not present trhen death occurred. — In an action on a policy of life insurance, the physician who attended the insured may testify as to the cause of his death, notwithstanding the fact that he was not present when the death occurred. Chadwlck v. Phoenix Accident, etc., Assoc. (Mich.), 8-17Q, Insaiiity expert. •>• An insanity expert who has observed a person may State his opinion without first stating hia observed data; but the party offering the expert, for the purpose of showing the strength of the opinion, may require him to specify in detail the observations upon which it is based, and the opposite party also, in cross-examination, may call for the Observations and probe the underlying facts to affect the strength of the opinion. People v. Faber (N. Y.), 20-879. Value of services. — A physician cannot testify as to the value of medical services in a certain locality, when he admits that he does not know the customary charges for such services in that locality. Duggar v. Pitts (Ala.), 8-146. Previous acg.uaintance xrith hand- writing. — Under the Rhode Island statute, an expert witness called to prove a disputed signature need not have a previous acquaint- ance with the person's handwriting. Mutiici- pai Court V. Kirby (R. I.), 13-736. Carpenter as expert witness. — A car- penter of thirty years' standing who has had eXpcrieUce in setting and repairing plate gldss is competent as an expert witness to testify to his opinion as to the cause of a break in a plate glass window for which the landlord seeks to hold the tenant liable. Drouin ». Wilson (Vt.), 13-93. tlig;ht to cross-examine. — In every case where £t witness is called to give an opinion as evidence for the consideration of the jury, the opposing counsel should be al- lowed to cross-examine him concerning his € EVIDENCE. 743 mitting the genuineness of a signature to an unattested instrument to be proved b3' a wit- ness who is familiar with the handwriting of the person by whom it purports to have been made, without introducing the testimony of such person, though he may be easily acces- sible at the time such proof of the signature is offered. McCray v. State (Ga.), 20-101. Unoffloial map or drawing. — An un- ofBcial map or drawing, indicating the loca- tion of objects under investigation, and shown by the testimony to be reasonably ac- curate, is properly admitted in evidence, in connection with the testimony, as an aid to the court and jury. Spoliane v. Patterson (Wash.), 13-706. Historical iiroTks. — Upon the question as to whether a certain island in .the state of Maine is within a certain grant executed between 1620 and 1635, the three historical works, Williamson's History of Maine, Wil- liamson's History of Belfast, and Farrow's History of Islesboro, locating the island with- in the grant in question, are admissible in evidence, though they are entitled to but little weight. Lazell v. Boardman (Me.), 13-673. Market reports. — Standard price lists and market reports, shown to be in general circulation and relied on by the commercial world and by those engaged in the trade, are admissible in evidence to show loss by reason of delay in the transportation of a oar load of live stock, although the contract did not require the carrier to deliver the stock in time for any special market. St. Louis, etc., R. Co. V. Pearce (Ark.), 12-125. Medical books, — Brror in permitting counsel to read from a medical book and to ask the witness under examination (a phy- sician) if he has ever read it is not cured by sustaining an objection to the question. Etzkorn v. Oelwein (la.), 19-999. Account books of decedent. — In an action on a claim for services alleged to be due a deceased person, a memorandum book purporting to contain the account between the plaintiff's intestate and the defendant is not made admissible by the Colorado statute, where it is not shown that the entries were made by the deceased in the due course of business or at or about the time the services were rendered or payments made. Davie r. Lloyd (Colo.), 12-75. But under the rules of the common law a memorandum book shown to contain entries in the handwriting of a deceased person and to have been found among the private papers of the deceased is admissible. Davie v. Lloyd (Colo.). 12-75. Memorandum on telegram showing time of transmission. — On an issue as to whether a certain telegram was trans- mitted after having heen left for transmis- sion, a notation or memorandum on the tele- gram is competent as evidence of the past recollection of the witness who made it, where the witness testifies that he did not send the message himself and has no present recol- lection that it was sent, but states, from a memorandum appearing in his handwriting, that he knew when he made it that the mes- sage had heen sent. St. Louis Southwestern R. Co. V. White Sewing Machine Co. (Ark.), 8-208. (2) Ancient documents. Deed more than thirty years old. — A deed which is more than thirty years old at the time it is oflfered in evidence is an ancient document and therefore proves itself. Ford V. Ford (D. C), 7-245. ILetter nearly seventy years old. — A letter found among tlie papers of the ad- dressee nearly seventy years after it was written is admissible in evidence as an an- cient document without proof of its genuine- ness. McCreary v. Coggeshall (S. Car.), 7- 693. Instrnment not properly executed. — An instrument not valid upon its face be- cause of a want of due execution cannot be admitted in evidence as an ancient document without proof of execution. O'Neal v. Ten- nessee Coal, etc., R. Co. (Ala.), 1-319. (3) Contradiction of documentary evidence. By party introducing. — A party offer- ing in evidence a written instrument is not absolutely bound by the terms of such docu- ment so as to prevent him from introducing such further testimony relating thereto as may be necessary to show its connection with the matter in dispute which he is seeking to establish. Hoffman v. Henricks (Okla.), 17-379. 10. Declakations and Admissions. a. In general. See Advancements; Benevolent ob Bene- ficial Associations, 9 b. Declarations of agent generally, see Agency, 1 c. Declarations of agent as evidence of author- ity, see Agency, 3 b (2). Proof of partnership, see Pabtneeship, 1 b. As to parentage. — Declarations of a deceased man may be competent to prove that he was the father of his illegitimate son, but they are not competent to prove that a woman to whom the declarant was in no way related, and who was never a member of the same family with the declarant, was the mother. Champion v. McCarthy (111.), 10- In a jurisdiction wherein the common-law rule that an illegitimate is films rmllius has been abrogated hy statute, it is competent, for the purpose of- proving the relationship between the mother and her illegitimate son, to introduce in evidence declarations of such deceased persons as the mother and brothers of the illegitimate, and the husband of the sister of the illegitimate, where it appears that _ the illegitimate was born before the marriage of his mother, or that she never married. Champion v. McCarthy (111.), 10- As to relationship. — Declarations of a deceased person as to his relationship with 744 ANIsT. CAS. DIGEST, VOLS. 1-20. aji illegitimate brother are not rendered in- admissible in evidence by the fact that he ■was weak-minded to such an extent that when he became the owner of property a conserva- tor was appointed to manage it for him, where it appears that he had sufficient in- telligence to take care of himself and to know and remember his friends, relatives, and ac- quaintances. Champion v. McCarthy (111.), 10-517. As to age of deceased person. — On an issue as to the age of a deceased person, declarations of the decedent and of his de- ceased father are admissible in evidence. Travelers Ins. Co. v. Henderson Cotton Mills (Ky.), 9-162. Exclamations shoxring pain, — Where the bodily condition of a person who claims to have been injured is a subject of inquiry, exclamations of present pain or suffering, which appear to be natural and spontaneous expressions of present feeling, made by such person, may be received in evidence in con- nection with his appearance and conduct. Federal Betterment Co. v. Reeves (Kan.), 15-796. In an action for personal injuries it is erroneous to permit a witness to testify as to declarations by the plaintiff expressive of pain and suffering in explanation of the plaintiff's conduct on a certain occasion after the accident. Etzkorn v. Oelwein (la.), 19- 999. Conversation iiritli deceased person.— In foreclosure proceedings brought by a bank- ing corporation against the mortgagor, and a suit by another banking corporation against the mortgagor and the first bank to set aside or postpone the operation of the mortgage, both of which suits by agreement are heard as one, testimony by the mortgagor or by the vice-president of the latter bank as to a pri- vate conversation had with the deceased president of the former bank, the tendency of which would be to invalidate the mort- gage, is competent under the Michigan stat- utes. People's Nat. Bank v. Wilcox (Mich.), 4-465. Declarations of parties in collusion to defraud. — The rule that declarations made by one in collusion with another to de- fraud are binding on all the parties to the collusive agreement has no application where the proof fails to show any collusive agree- ment. Ohappell V. John (Colo.), 16-854. b. When competent as part of res gestm. In general. — Evidence and circumstances surrounding the introduction of rebuttal evi- dence on second trial reviewed and held to show that the plaintiff had not offered in evi- dence statements which were inadmissible because not a part of the res gestcB. King v. Phoenix Ins. Co. (Mo.), 6-618. To explain partial failure to per- form. — In an action by a seller for breach of a contract for sale of cordwood to a rail- road company, where it appears that the wood was to he delivered on the railroad's right of way, the plajntiff may introduce evidence to s'low that after part of the woo; had been delivered according to the contrac the president of the road told him that h need not deliver the balance on the right o way, and ordered that the l>alanoe should b paid for as it then stood, as this declaratioi is part of the very transaction involved ii the action. Ives v. Atlantic, etc., R. Co. (J3 Car.), 9-188. Manner in which accident oocorred — In an action for death by wrongful act statements as to the manner in which an ac cident occurred, made by the deceased to ; third person, are admissible in evidence wher it appears that they were made within a fev feet of where the deceased was mortally in jured, and within a few minutes after th occurrence of the accident, as they are so con nected with the cause of the injuries as t preclude any idea that they were the produc of a calculated policy. Kansas City South ern E. Co. v. Morris (Ark.), 10-618. Declarations of infant inconipeten to testify. — Notwithstanding a statute pre Tiding that infants under ten years of ag are incompetent to testify, the declaration o an infant under that age made immediate! after the happening of an accident in hi presence, and having an important bearini on the responsibility for the accident, is ad missible as part of the res gestCB. Beal Doyle Dry Goods Co. v. Carr (Ark.), 14-48 c. Declarations of agent. Declarations as to past transaction) — The declarations or admissions of an ageni not made at the time of the transaction b which they relate, are not competent evi dence against a principal unless so immedi ately connected with the transaction in th point of time and circumstance as to consti tute a part thereof. Havens v. Rhode Islani Suburban R. Co. (R. I.), 3-617. The rule permitting the admission in evi dence of declarations as to a past transactio: made by a general agent when transactin business for his principal within the scope o authority held not to apply to the declara tions of the general manager of a street rail way company as to the competency of th motorman made on the morning after th accident to the car in charge of such motoi man. Havens r. Rhode Island Suburban I Co. (R. I.), 3-617. As to intention. — The declaration of street car conductor that he would assaul some one on the car before he got througl is not competent against the street car con pany in an action against it for an assaul made by the conductor on a person who wa not on the car when the declaration wa made and to whom the declaration had n reference, Conklin v. Consolidated R. O (Mass.), 13-857. Not -nrithin scope of employment. ■ The mere declaration of a servant or agen not within the scope of his employment ( authority, is not admissible against his en ployer or principal except when it accor panies an act which is competent and m; EVIDENCE. Y45 tcrial to be proved and which the declaration tends to qualify, characterize, or explain, or when the declaration itself is a part of the transaction under investigation, Conklin r. Consolidated R. Co. (Mass,), 13-857. In an action against a master to recover for medical services rendered his servants, where the plaintiff has introduced in evidence a conversation over a telephone with a per- son in the defendant's office, the plaintiff, though he has offered no evidence that the person telephoning was the agent of the de- fendant, may introduce evidence of a state- ment made out of court by that person that the defendant would pay for the care of in- jured servants; such statement being admis- sible, not as evidence of a promise made by the defendant through his agent, but as a link in a chain of circumstances establishing a liability on the part of the defendant not founded on his direct promise. General Hos- pital Soc. V. New Haven Rendering Co. (Coim.), 9-168. d. Admissions. (1) Admissibility in general. Declarations of predecessor in title. — In the trial of an action involving the title to real estate, the declarations of a predeces- sor in title of either of the parties, made while in possession and against his interest, are generally admissible in evidence when such declarations relate to matters which must be proved or disproved by parol, such as the nature, character, or extent of the declarant's possession, the identity or location upon the face of the earth of boundaries and monu- ments called for in the deed, or in regard to any material matter concerning the physical condition or use of the property. Phillips V. Laughlin (Me.), 2-1. But such declarations made out of court by the predecessor in title of a party to an action in court, as to the invalidity of a deed which appears to be sufficient in all respects, which bears all the insignia of genuineness and which had been duly recorded, are not admissible. Phillips v. Laughlin (Me.), 2-1. Admissions as to age. -~ It seems that a witness is competent to testify as to his own age. And even if the rule were other- wise as to a witness not a party to the ac- tion, the admissions of a party on that point would still be competent when offered in be- half of the adverse party. Koester v. Roch- ester Candy Works (N. Y.), 16-589. Where the age of the plaintiff becomes a material issue on the trial of an action, it is error to exclude evidence offered by the de- fendant as to declarations made by the plain- tiff regarding his age. Koester r. Rochester Candy Works (N. Y.), 16-589. Statement of party to arbitrator. "^ An admission by a son to an arbitrator se- lected to determine his claim to a note given by his mother, that he is not entitled to re- tain the note because he has not done what he agreed to do as the consideration therefor, is an admission against interest and admis- sible against him in a proceeding involving the validity of the note. Sullivan v. Sulli- van (Ky.), 13-163. As to contents of writing. — In a libel bv a wife for a divorce, it is competent for a' witness for the defendant to testify that after the plaintiff's marriage to the defend- ant the witness carried numei-ous letters from the plaintiff to another man and the plain- tiff often read aloud to the witness the eon- tents of letters written by such third person to her and by her to the third person, as such statements assume the form of admissions by the person, holding the letters and testimony as to the admissions is primary evidence. Purinton v. Purinton (Me.), 8-205. Beport of accident to casnalty com- pany. — On the trial of an action for in- juries caused by a negligently driven team, a report signed by the defendant and sub- mitted to a casualty company, in which he states that he is the owner of the team, is competent evidence in the nature of an ad- mission tending to prove his ownership of the team, and it is within the discretion of the trial court to permit the exhibit to be taken by the jury to their room. Sibley v. Kason (Mass.), 12-938. (2) Admissions by attorneys. Statements on former trial. — An ad- mission of fact by the attorney of a party in one trial is binding on the party in a sub- sequent trial if the admission was made as a general admission without limitation, but the rule is otherwise if the admission was only for the purpose of the pending trial and was so understood; and what weight if any is to be given to the admission in the sub- sequent trial is properly left to the jury. Moynahan v. Perkins (Colo.), 10-1061. The admission in evidence on a subsequent trial of an admission made by an attorney in a former trial, even if improper, is not prejudicial error where the matters covered bv the admission are merely cumulative. Moynahan v. Perkins (Colo.), 10-1061. (3) Admissions by agents or employees. Not 'nrithin scope of employment. — A statement by the superintendent of a street railway company, made some time after an accident for which the company is sought to be lield liable on the ground that an in- competent and overworked motorman was in eJiarge of the oar causing the accident, that he, the superintendent, should have known better than to place the motorman in ques- tion on the oar, is an admission not within the scope of the superintendent's employment. or a part of the res gestm, and its reception in evidence constitutes reversible error. Ft. Wayne, etc.. Traction Co. v. Crosbie (Ind.), 14-117. Report of motorman as to street car accident. — In an action for injuries to a passenger on a street car a written report of the accident made by the motorman of the oar is not admissible as evidence of any facts therein stated as to the cause of the r46 ANK CAS. DIGEST, VOLS. 1-20. injury. Gardner v. Metropolitan St. R. Co. (Mo.), 18-1166. By agent of municipal corporation. — In an action against a municipality for persona] injuries caused by a defective high- way, a service of notice of the injury on the municipality as required by the Wisconsin statute cannot be proved by evidence of ver- bal admissions made, after the expiration of the period allowed by the statute for ser- vice, by the municipal officer to whom it was addressed, as such admissions are not part of the res gestce. Garske v. Kidgeville (Wis.), 3-747. (4) Admissions in pleadings. Corporate existence of defendant. — A railroad company seeking to enjoin the construction of an interurban electric rail- way across its tracks cannot contend that there is no statute under which the inter- urban railway can be incorporated, and that therefore it has no right to cross the com- plainant's track, where both the complaint and the answer allege that the interurban company " is a corporation organized under the laws of the state." South East, etc., R. Co. V. Evansville, etc., R. Co. (Ind.), 14- 214. As against infant codefendanti. — Admissions in the answer of adult defend- ants do not bind infant codefendants. Hold- erby v. Hagan (W. Va.), 4-401. Withdratm pleading, -~ In an action in a Circuit Court of the United States by the nonresident beneficial owner of a promis- sory note executed by a resident maker to a resident but nominal payee, it is proper for the court to exclude from evidence a com- plaint, drawn and sworn to by the plaintiff's attorney, containing admissions tending to show that the nominal payee was the actual one, which was filed in a prior action in a state court on the same note, and which was withdrawn and dismissed before appearance by the defendant. Kirven v. Virginia-Caro- lina Chemical Co. (U. S.), 7-219. Dismissed pleading. — Where a plain- tiff files a petition in an action, to which the defendant files an answer and cross petition, which is afterward dismissed, such pleading may be used by the plaintiff as evidence upon the trial, if it contains statements which amount to admissions of the defendant ma- terial to the plaintiff. Arkansas City v. Payne (Kan.), 18-82. Subsequent action between other parties. — Where a litigant as a part of his cause of action or defense, asserts that he is indebted to a third person, not a party to the litigation, such assertion is not con- clusive upon him when subsequently sued by such person. First National Bank v. Duncan (Kan.), 18-78. (5) Weight as evidence. As to the weight of evidence in general, see section 20, infra. Uncorroborated admissions. — Where in an action for damages for personal in- juries it appears that the plaintiff, who was employed as an ordinary shoveler in the con- struction of a building, was directed to assist in taking heavy timbers from the first floor to the second floor of the building, that he was standing on some small boards, and that a few hours thereafter he was found in the basement seriously injuried, and the plain- tiff's wife testifies to donations and promises of future assistance by the defendant, and admissions by the defendant that the acci- dent was due to his fault and not the plain- tiff's but there is no direct testimony as to how the accident happened or what caused it, the plaintiff's memory having been de- stroyed, a verdict is properly directed for the defendant. Binewicz v. Haglin (Minn.), 14-225. Indefinite or equivocal admissions. — While an admission tending to show negli- gence not based on personal knowledge of the facts may be admissible in evidence, such an admission, if indefinite or equivocal or not elucidated by further proof, will have little or no weight. Binewicz v. Haglin (Minn.), 14-225. Admission by intoxicated person. — All admission made by a person while in- toxicated is not conclusive. Bruner v. Seel- bach Hotel Co. (Ky.), 19-217. 11. Handwbitinq. a. Proof by nonexpert. Competency of witness to testify concerning. — A witness, although not a handwriting expei't, who has seen a person write or who knows his signature, is ordi- narily competent to express an opinion as to the genuineness of such person's signature. Ware v. Burch (Ala.), 12-669. Knowledge derived from correspond- ence only. — In a criminal prosecution, where the authenticity of letters offered in evidence against the defendant is denied, the prosecutrix, if she has never seen the de- fendant write and is not an expert on hand- writing, is not competent to testify that the letters are in the handwriting of the defend- atit; and this is so though she claims that the defendant acknowledged having written the letters to her, and though the letters themselves are admissible in evidence. State V. McBride (Utah), 8-1030. b. Standards for comparison. Signature to pleading. — In an action on a promissory note which the defendant denies having signed or executed, the plain- tiff is entitled to introduce in evidence, for use as a standard for comparison with the disputed signature to the note in contro- versy, the answer filed by the defendant in the case and bearing his admitted signature. Mississippi Lumber, etc., Co. v. Kelly (S. Dak.), 9-449. Indorsements on checks. — In an ac- tion on a promissory note, the signature and execution of which are denied by the defend- ant, the plaintiff cannot introduce in evi- EVIDENCE. 747 dence, for use as a standard for comparison with the disputed signature to the note, cheeks which were drawn by a witness in favor of the defendant and which were sub- sequently returned to the witness with the purported signature of the defendant in- dorsed thereon, where it appears that the witness has never seen the defendant write and that he has no knowledge of the defend- ant's signature other than the fact that his name purported to be indorsed on the checks when they were returned to the witness from the bank. Mississippi Lumber, etc., Co. v. Kelly (S. Dak.), 9-449. Weight of evidence. — Writings ad- mitted to prove carvings on a barn door by similarity in punctuation being competent, that the evidence afforded by the compari- son is inconclusive does not affect its rele- vancy, but only its weight. State v. Kent (Vt.), 20-1334. 12. Photographs as Evidence. a. Admissibility in general. Purpose of such evidence. — A photo- graph is competent evidence for the purpose of giving to the jury the representation of the object or subject concerning which an inquiry is made, and to enable them better to understand the issues on trial. McKarren ■V. Boston, etc., R. Co. (Mass.), 10-961. Photographs, duly verified, are admissible ill evidence as an aid to the jury in arriving at an understanding of the evidence or of the situation, condition, or location of objects or premises material and relevant to the issues. Higgs V. Minneapolis, etc., R. Co. (N. D.), 15-97. In action for injuries resulting in death. — In an action to recover for the death of an infant from injuries inflicted by a railroad train, photographs of the infant taken before the injury and thereafter but before the death are admissible in evidence. Davis V. Seaboard Air Line Ey. (N. Car.), 1-214. b. Proof of accuracy. Necessity of. — Before a photograph can be admitted in evidence there must be a veri- fication of the accuracy of the representation, and this is the preliminary inquiry to be made by the trial judge whose decision is final. McKarren v. Boston, etc., E. Co. (Mass.), 10-961. A court will take judicial notice of the fact that by the ordinary photographic proc- ess a representation may be secured which will be sufHciently truthful and reliable to be considered as evidence with reference to objects which are in a condition to be photo- graphed, without regard to whether such ob- jects have been actually observed by any witness. State v. Matheson (la.), 8-430. Testimony of photographer. — The testimony of a photographer who made the photograph is not essential to its verifica- tion where there is other evidence which satisfies the judge that the photograph is a substantially accurate representation. Mc- Karren V. Boston, etc., R. Co. (Mass.), 10- 961. Effect of testimony as to accuracy. — To constitute a foundation for the introduc- tion of an X-ray photograph in evidence it need not appear that it was taken by a com- petent person nor that the condition of the apparatus and the circumstances were such as to insure accurate pictures, where it ap- pears by competent witnesses that it truly represents the object claimed. Carlson vf Benton (Neb.), 1-159. ' In case of photograph of animate \ objec't. — No higher degree of verification is required to be made of a photograph of an animate object than of a photograph of an inanimate object. McKarren v. Boston, etc., E. Co. (Mass.), 10-961. c Discretion as to admission or exclusion. Where evidence as to accuracy is conclusive. — The discretion of the trial judge as to the reception in evidence of an X-ray photograph should not be exercised arbitrarily, and where evidence as to its ac- curacy* leaves no room for a difference of opinion it is an abuse of discretion to exclude the photograph on the ground that a suffi- cient foundation has not been laid. Carlson V. Benton (Neb.), 1-159. When exclusion not prejudicial er- ror. — In an action for death by wrongful act, photographs of the scene of the accident, if proved to be correct, are admissible in evi- dence, but their exclusion is not prejudicial where the testimony of the witnesses is suffi- ciently full and explicit to enable the jury to understand what the photographs were in- tended to show. Kansas City Southern E. Co. V. Morris (Ark.), 10-618. d. Weight as evidence. As to the weight of evidence in general, see section 20, infra. . Not conclusive. — Photographs do not conclusively establish the existence of the ob- jects they represent. The weight to be given to photographs as evidence depends upon the accuracy with which and the manner in which they are taken and the skill of the person taking and developing them, and their re- liability is to be determined by the tests used in weighing other evidence. Higgs v. Minneapolis, etc., E. Co. (N. Dak.), 15-97. 13. Phonogbaphio Eecobd as Evidence. Admissibility. — In a condemnation pro- ceeding instituted by a railroad company to determine the necessity for laying its tracks along a city street, and to assess the dam- ages to an adjoining owner, it is proper to permit a phonograph to be operated in the presence of the jury to reproduce the sounds claimed to have been made in the operation of trains in proximity to the respondent's hotel, where proper proof has been made that the instrument is a substantially accu- rate and trustworthy reproducer of the sounds 748 x\:N'X. CAS. DIGEST, VOLS. l-2n. actually made and testified to. Boyne City, etc., K. Co. v. Anderson (Mich.), 10-2S3. 14. Parol Evidence to Vaby VVkitteN Instruments. a. Admissibility in general. Aiding construction of will, see Wills, 8 a (9). Explaining abbreviations, see ABBREVIAT[0^'S. Explaining warehouse receipt, see Bail- ment, 3. Explaining writings generally, see Deeds, 3 a. Parol evidence regarding contents of books, see Benevolent ok Beneficial Asso- ciations, 9 b. Proof that deed absolute in form was in- tended as mortgage, see Deeds, 3 i; Mortgages and Deeds of Trust, 3. Varying v.arehouse receipts, see Ware- houses, 2. Statement of rule. — When a contract has been reduced to writing, evidence of v/hat occurred between the parties in respect thereto at the time thereof or prior ^liereto is inadmissible, Vogt v. Schienebeok t-'yVis.), 2-814. Operation of rule in favor of per- sons not parties to instrument. <— The rule that a written agreement cannot be varied by parol operates in favor of those not parties to the instrument as fully as in favor of the parties, where it appears that the instrument was executed by the parties as a final embodiment of their agreement, and where parol evidence is oft'ered to vary the legal effect of the terms in which the instrument is expressed. Allen v. Ruland (Conn.), 8-344. As to interpretation of contract in other jurisdictions. — A party to a writ- ten contract cannot introduce parol evidence of the interpretation put upon the language of sucli contracts in jurisdictions other than that in which it is to be interpreted, to show that he intended to employ the lan- guage in accordance with the interpretation given to it in such other states and that the other party had reason to know he was doing 10. Inman Mfg. Co. e. American Cereal Co. (la.), 12-387. Meaning of word " satisfactory." — A vritten contract for the sale of macllinery icquiring, in plain and unambiguous terms, that the machinery shall be "satisfactory" to the buyer, cannot be varied by parol evi- dence that the buyer stated to the seller that the machinery would be satisfactory if it would do a certain amount of work in a specified manner, and that the buyer knew ^ to be the understajidilig-Bf-ilte seller that thih^eilef "WStS-reffuired by the contract only to furnish machinery meeting the stated re- quirements as to the amount and quality of work. Inman Mfg. Co. v. Ainerican Cereal Co. (la.), 12-387. Such evidence is not rendered admissible by a statute providiRg that " When the terms of an agreement have been intended in a dif- ferent sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other under- stood it," as tliat provision does not author- ize the introduction Of parol evidence to show that the intent of the parties to a writ- ten contract was different from that implied in the language used. Innian Mfg. Co. f. American Cereal Co. (la.), 12-387. Bills of sale. — A bill of sale sent to and received by the purchaser before the receipt of the goods and reciting an absolute sale is within the rule as to the r" idification of a written agreement by parol evidence, and thei-efore the purchaser, in an action for tlie price of the goods, will not be permitted to show it was agreed between the parties tliat if the purchaser was unable to dispose or the goods, the seller would exchange them for other goods to be selected by the pur- chaser. R. M. Davis Photo Stock Co. v. Photo Jewelry Mfg. Co. (Mass.), 19-540. In action on -written subscription for boolt. — In an action on a signed con- tract of subscription for a certain book, evi- dence that the book does not conform to certain verbal representations made by the person taking the subscription is properly excluded, in the absence of any claim that artifice or fraud was used to induce the sign- ing of the contract, as the offer of such evi- dence is merely an attempt to vary by parol the terms of a written instrument. Williams ■v. Gottschalk (111.), 12-376. b. To define or identify subject-matter Evidence not contradicting instru- ment. — Parol evidence, if it does not con- tradict the terms of a written contract, is admissible to identify the subject-matter thereof. Little Rock Cooperage Co. v. Gun- nels (Ark.), 12-293. Description insufficient on its face. — Parol evidence is admissible to identify the land described in a contract of sale and to apply the description to the premises, but not to complete and perfect a description on its face insuffieient and incapable of' appli- cation. Allen v. Kitchen (Idaho), 18-914. A description of land in a contract of sale merely as "lot 11 in block IS, Lemp'S Ad- dition," without disclosing the city, town, county, or state in which the contract was made or the property was situated, and with- out referring to any record, natural object, locality, or other matter or thing, is incom- plete, and parol evidence is not admissible to complete it. Allen v. Kitchen (Idaho), 18-914. c. To prove collateral parol agreement. Proof that writing never took effect as contract. — Parol evidence is admissible to show that a writing in form of a contract between the parties was signed conditionally by the defendant and never became operative. Such evidence does not vary a writing, but only goes to show that the writing is not a contract. J. I. Case Threshing Mach. Co. V. Barnes (Ky.), 19-246, EVIDENCE. 749 Where only part of transaction re- duced to writing. — The rule that where a written contract Is made as a mere part execution of a verbal contract, the portion not embodied in the paper maj' be shown by parol, applies only where such portion is itself a distinct complete contract, and not where it is a mere stipulation varying the tirms of the written contract. Vogt v. Sehienebeck (Wis.), 2-814. Sham contract executed to deceive. — Oral evidence is not admissible to show that a written contract purporting to fix the rights of the parties in respect to the subject-mat- ter of the suit is a mere sham which the defendant induced the plaintiff to sign for the purpose of deceiving others. Graham v. Savage (Minn.), 19-1022. In action for purchase money. — In an action for the purchase price of lands, parol evidence is admissible to show that when the deeds were executed it was verbally agreed that the consideration should not be paid until the grantor had perfected his title to the lands. Johnson v. McClure (Mjnn.), 2-144. In action on promissory note. — In an action against the makers of a promissory note executed and delivered in payment of the first premium on a policy of life insur- ance for which they had applied, the defend- ants may set up the defense and prove by parol evidence that the note was executed and delivered on condition that- it should not be binding unless the policy, when it arrived, was satisfactory to and accepted by them. Graham v. Remmel (Ark.), 6-167. Assumption of debts on sale of husi.> ness. — Testimony that the defendant had assumed debts incurred by the plaintiff in running a business purchased by the plaintiff from the defendant does not vary or contra- dict written contracts whereby the plaintiff sold the business to a third person, in con- sideration of which the third person agreed to pay to the defendant the balance of the purchase money remaining unpaid on account of the sale by the defendant to the plaintiff, and the defendant agreed to release the plain- tiff from all liability for such unpaid pur- chase money; but such testimony tends to show a separate and independent verbal eon- tract between the plaintiff and the defendant, and is admissible for that purpose. Burgle V. Bailey (Ark.), 18-389. Agreement collateral to lease. '— In an action for the conversion of a building alleged to be the personal property of the plaintiff, but which is situated on land be- longing to the defendant, where it appears that the land was leased by the defendant's predecessor in title to a third person, oral evidence of conversations and cireumstanee? tending to show that '^.e lessee erected the building for the plaintiff, and that there was an agreement or undfirstaading between the owner of the land at the time of the erection of the building, and the lessee, representing both himself and the plaintiff, that the build- ing was to remain -th* personal iproperty of the lessee until the plaintiff had fully paid for Its erection, but that after such payment it was to-be the personal property of the plaintiff, is not incompetent as varying the terms of the lease, Searle v. Roman Catholic Bishop (Mass.), 17-340. d. To prove consideration. For sale of land or deed to railroad company. .— Parol evidence is admissible to show that a contract for the sale of land to a railroad company was based upon the additional consideration that the company should fence in the land and erect suitable gates thereon. Windsor v. St. Paul, etc., R. Co. (Wash.), 3-62. Where one by deed conveys to a railroad company absolutely and unconditionally a right of way for the construction of its rail- road, it cannot afterwards be shown by parol evidence that a part of the consideration of the deed was a contemporaneous agreement that the grantor was to have a permanent right df way over the land conveyed, and that the railroad company was to erect and maintain permanently crossings on the right of way for that purpose. Louisville, etc., R. Co. p. Willbanks (Ga.), 17-860. For promissory note. .— Proof by the maker of a note that an amount in excess of the sum due was recited at the request of the payee to enable him to use the note as collateral does not violate the rule against parol evidence to vary a writing, but is merely showing the real consideration for' the note. Campbell v. Davis may introduce parol evidence of contemporaneous acts, declarations, and conversations to show 750 AKlSr. CAS. DIGEST, VOLS. 1-20. the true nature of the agreement. T. and H. Smith & Co. V. Thesmann (Okla.)^ 15-1161. h. To prove subsequent parol agreement. As to time of payment. — Where a written contract contains no stipulation as to the time of payment, evidence is admissi- ble of a subsequent parol agreement fixing such time. Putnam Foundry, etc., Co. v. Canfield (R. I.), 1-726. i. To show illegality of contract. General rale. — Parol evidence is al- ways competent to show that a written con- tract, fair and lawful on its face, is in truth contrary to law, morals, or public policy. Jluskogee Land Co. v. Mullins (U. S.), 16- 387. Contract affecting Indian lands. — In au action against a lessee of lands belonging to allottees of the Creek Nation, to recover rent under a written lease of such lands for a term of more than one year, it is competent for the defendant to show by parol evidence, that the lease, although purporting on its fact to be for agricultural purposes only, is in fact for grazing purposes only, and hence in violation of section 17 of the Act of Con- gress of .June 30, 1902, which prohibits Creek citizens from renting their allotments for grazing purposes only for a longer period than one year. Muskogee Land Co. e. Mul- lins (U. S.), 16-387. j. To prove meaning of terms used. Perch " measured in wall " — Parol evidence — Explaining trade meaning of words. — A contract to pay for masonry at a certain rate per perch " measured in wall " is not so plain that only one conclu- sion can be drawn as to the method of meas- urement, and therefore parol evidence is ad- missible to explain the trade meaning of the words quoted. Miller v. Wiggins (Pa.), 19-942. 15. Parol Evidence to Add to Record. 'Where record is silent. — Where the record of proceedings of a city's park com- mission contains nothing whatever to show v.'hether the commission took any action con- cerning a certain matter, parol evidence is admissible to show that such action was taken, unless there is a statutory or charter provision declaring either expressly or by implication that nothing but a recorded vote or written document shall bind the city or be received as evidence. Denver v. Spencer (Colo.), 7-1042. 16. Presumptions. Aeceptance of dedication, see Stbeets and Highways, 2 a. Acceptance of gift, see Gifts, 2 b. Agent's authority, see Agency, 3 b (1). Authority to receive payment, see Bnxs and Notes, 10. Chastity of prosecutrix in seduction case, see Sedttction, 2 c (3). Common law of foreign state, see Comuon Law. Constitutionality of statutes, see Constitu- tional Law, 25 c; Statutes, 2. Correctness and propriety of instructions, see Appeal and Ebrob, 14 g. Correctness of judgment, see Judgments, 2. Death by suicide, see Suicide, 2. Death presumed from absence, see Death. Dedication, see Streets and Highways, 2 b. Enforcement of order excluding public from criminal trial, see Criminal Law, 6 c (2). Foreign laws, see Foreign Laws, 2. Inequality of gifts as raising presumption as to advancements, see Advancements. Innocence of persons accused of crime, see Criminal Law, 6 q (3). Intent to defraud presumed from unlawful acts, see Post Office. .Jurisdiction, see Courts. Knowledge and intent of legislature in en- acting statutes, see Statutes, 4 a. Legality of testator's intent, see Wills, 8 a (1). Locating negligence as between connecting carriers, see Carriers, 4 i ( 1 ) . Negligence, see Carriers, 6 1 (4). Negligence as to fire caused by locomotive, see FiRESj 5. Negligence presumed from fact of railroad collision, see Railroads, 7 c (4). Official capacity of constable, see Arrest, 2 b. Ownership of fee in street, see Streets and Highways, 6. Ownership of structures on land, see Prop- erty. Payment of taxes, see Taxation, 6. Physical capacity to commit rape, see Rape, 2 d (1) *^ Place of indorsement of note, see Bills and Notes, 11 h. Prejudice from misconduct of jurors in capi- tal case, see Jury, 7 d (2). Presence of accused during trial, see Crim- inal Law, 6 c { 4 ) . Presumptions as to evidence and rulings thereon, see Appeal and Error, 14 f. Presumptions on appeal, see Appeal and Error, 14. Prosecutions for abortion, see Abortion. Rebutting presumption of payment arising from lapse of time, see Payment, 2 b. Regularity of judicial proceedings, see Crim- inal Law, 6 c (4) ; Eminent Domain, 9 a. Regularity of official acts, see Acknowledg- ments. Statutory presumptions, see Fraudulent Conveyances, 3 b. Testamentary capacity, see Wills, 4 e (1). Testamentary intent, see Wills, 2. Undue influence, see Wills, 5 c (1). Validity of raarrirwe, see Bigamy, 4; Mar- riage, 2 b. Validity of police regulations, see Consti- tutional Law, 5 a. Validity of railroad ticket, see Carriers, 6 c (3). Validity of statute, see Carbierb, 2 j. Validity of tax deed, see Taxation, 10 c. EVIDEKCE. 751 Nature. — A legal presumption is to be regarded as a piece of evidence to be weighed in favor of the party for whom it operates and to be overcome by evidence of the other party; and it is immaterial whether the pre- sumption exists without evidence or arises from the evidence. In re Cowdry (Vt.), 3-70. Presumptions of lair distinguished from presumptions of fact. — In Colo- rado the courts recognize presumptions of fact as distinguished from presumptions of law, and hold it reversible error to charge as to the eflfect of a presumption of law when the presumption involved is one of fact. White, J., disapproving the distinction and holding that a " presumption of fact," so called, is not a presumption at all, but is a mere inference, while a presumption strictly" speaking is a rule of law and not an infer- ence. Ausmus t'. People (Colo.), 19-491. Regularity of judicial proceedings.— Every presumption must be indulged in favor of the regularity of the proceedings of a court of record, and the burden is upon the party who would impeach that regularity to do so by the best evidence oTjiainable. John- son r. State (Okla.), 18-300. Presumption as basis of presump- tion. — In an action for damages by the administrator of a deceased person who was killed while driving a team over a railway crossing, where there is no testimony showing what the deceased did immediately before and at the time he went upon the crossing, it is presumed that he was in the exercise of proper care and that before going upon the crossing he both looked and listened for the approaching train, and from this presumption the jury may so find; but in the absence of any testimony showing what happened the jury are not warranted in assuming, in order to account for his going upon the crossing, that his team became frightened and that he lost control of them. One presumption of fact cannot, in law, become the basis of an- other presumption of fact. Atchison, etc., R. Co. V. Baumgartner (Kan.), 10-1094. As to knoirledge of law. — There is no presumption that every one knows the law. Per Straup, J. State eoc rel. Utah Savings, etc., Co. v. Salt Lake City (Utah), 18-1130. As to law of another state. ^ In the absence of any allegation or proof to the con- trary, the courts of Connecticut will presume that the common law of Massachusetts is the same as that of Connecticut. Hoxie r. Xew York, etc., E. Co. (Conn.). 17-324. As to receipt of letter mailed. — The mailing of a, letter countermanding an order for goods raises a prima fade presumption that it was duly received by the person to whom it was properly addressed and places upon him the burden of showing that it was not so received. Merchants' Exchange Co. v. Sanders (Ark.), 4-9.55. The mailing of a letter postpaid and prop- erly addressed does not create a presumption that the letter reached its destination, but is merely a fact from which may be inferred the further fact that the letter was received, and such inference may be rebutted by proof that the letter was not received by the person ad- dressed. Campbell v. Gowans (Utah), 19- 660. Evidence held insufficient to rebut the pre- sumption of the receipt of a letter canceling a contract. Merchants' Exchange Co. v. San- ders (Ark.), 4-955. As to authenticity of letter. — Where a letter has been received by the due course of mail in answer to a prior letter sent by the receiver, with his name signed thereto, a presumption arises that it is the letter of the person whose name is signed thereto. American Bonding Co. v. Ensey (Md. ), 11- 883. 17. PEIVILEGED COMMtJNICATIONS. See Witnesses, 3 d. 18. Telephone Conversations. Testimony of bystander. — It appeared in evidence that there were communications by telephone, on a given day, at a given time, between one of the plaintiflfs and one of the defendants in regard to the matters in ques- tion in the action; but what was said by one was denied by the other. It was sought to elucidate what was said by the defendant by calling yvitnesscs who heard his words as spoken into the telephone receiver, though the witnesses could not affirm to whom he spoke or that he was in fact speaking to any person: Held, that the evidence of the pro- posed witness was relevant, and therefore ad- missible, though the value of it might be little or nothing. Gzowski & Co. •». Frost & Co. (Can.), 20-704. Where the plaintiff in an action has testi- fied to a conversation had by him with the defendant over the telephone, a witness may testify to what he heard the plaintiflF say as a part of such conversation, though the wit- ness does not know of his own knowledge that the other party thereto was the defendant, or that there was any other party, or that the defendant heard what was said, it being a question of fact for the jury whether the conversation took place or was fictitious. McCarthy v. Peach (Mass.), 1-801. Admissibility of conversation by telephone with some person in place of business of party. — While the weight to_ be given to such evidence is to be detcr- mmed by the jury, it is competent to intro- duce in evidence a conversation had by tele- phone between a witness and some person in the place of business of a party to the action. Orodair V. Ham National Bank (111.), 8-447. Evidence of a conversation by telephone be- tyreen an agent of the plaintiff at the plain- titts office and a person in the defendant's office speaking for the defendant is prima facie admissible for any purpose that per- sonal conversation would be admissible, even though It is unaccompanied by evidence that the person speaking for the defendant was authorized to use the defendant's telephone for the purpose of communicating messages from the defendant's office. General Hospi- AKN. CAS. DIGEST, VOLS. 1-20. tal Soc. V. New Haven Rendering Co. (Conn.), 9-168. Failure to identify party irith \rhom conversation took place as rendering testimony inadmissible. — Evidence of it conversation over a telephone is not neces- sarily rendered inadmissible by the fact that the identity of the other person telephoning was not recognized by the witness. General Hospital Soc. v. New Haven Rendering Co. (Conn.), 9-168. 19. Objections and Exceptions. Effect of failnre to object on first tiial. — Failure to object to evidence on the first trial of a cause does not preclude the party from objecting thereto on a new trial after a reversal on appeal. Belskis v. Ber- ing Coal Co. (111.), 20-388. The fact that evidence was admitted with- out objection on the first trial of a cause does not preclude the party from objecting to it on a second trial. State v. Kelleher (Mo.), 19-1270. Effect of geiieval objection. — An ob- jection to evidence as incompetent, irrele- vant, and immaterial is too general to sug- gest the objection that the evidence is incom- petent as relating to a. transaction with a deceased person, whose executor and heirs at law are parties to the action. First Na- tional Bank v. Warner (N. Dak.), 17-213. Motion to strike out evidence, some of nrhich ig competent. — A motion to exclude the entire testimony of a witness, some of which is clearly competent, is prop- erly overruled. Sehultz v. Ford nesses. — In an action against a carrier of passengers to recover damages for personal injuries sustained by n pussenger, the defend- ant cannot predicate error of the trial court's failure to explain to the jury the relative value and weight of .the testimony of inter- ested and disinterested witnesses, unless it requests an instruction on that point. Stan- den V. Pennsylvania E. Co. (Pa.), 6-408. As to effect to be given to number of witnesses. — An instruction on the weight of evidence from which the jury may infer that the number of witnesses upon any given question is of no consequence and is not to be considered, is erroneous, but the error is not misleading if such instruction is followed by another and correct instruction as to the same matter. Garske v. Eidge- ville ^^^ Deeds, 1 b. Membership in stock exchange as asset in bankrupt's estate, see Bankruptcy, 11. Transfer of membership. — Where the rules of a stock exchange provide that a transfer of membership may be made only when it is approved by the exchange's com- mittee on admissions, a paper whereby a member purports to transfer his membership to another person works no change in mem- bership whatever until the transfer is ap- proved in the manner prescribed by the ex- change's rules. O'Dell v. Boyden (U. S.), 10-239. Requirements as to continuous quo- tations. — The requirement of a board of trade that every applicant for its continu- ous quotations, as a condition precedent to receiving them, obligate himself not to use them in conducting a bucket shop or in sup- plying them to one engaged in a bucket-shop business, is a proper and reasonable regula- tion. Western Union Tel. Co. v. State ex rel. Hammond Elevator Co. (Ind.), 6-880. EXCISE. Limitation of taxing power as to excise taxes, see Taxation, 1 b. EXCLAMATIONS. Admissibility to prove suffering, see Evi- dence, 10 a. EXCLUSION. Fxcliiding jury on argument as to admissi- bility of evidence, see Criminal Law, 6 m (2). EXECUTIONS. 1. Issuance, Form, and Validity of Writ, 756. 2. The Return, 756. 3. Amendment of Execution or Re- turn, 756. 4. Property Subject to Execution, 756. 5. Property Exempt prom Execution, 757. a. In general, 757. b. Moneys accruing from life insur- ance, 757. c. Pension money, 757. d. Property in ciistodia legis, 757. e. Method of claiming exemption, 6. Effect op Supersedeas upon Execu- tion, 758. 7. Replevin for Goods Seized, 758. 8. Sale under Execution, 758. 9. Redemption, 759. 10. Trespass for Wrongful Levy, 759. 11. Claims op Third Persons, 759. 12. Appointment of Receiver in Aid of Execution, 759. Enforcement of decree for alimony, see Ali- mony and Suit Money, 4 h. Exemptions, see Homestead, 3. Levy on growing crops, see Crops, 7. Liability of wife's property to execution against husband, see Husband and Wife, 5. Payment of judgment on execution as com- ipulsory, see Payment, 4 b. 756 AiNTN. CAS. DIGEST, VOLS. 1-20. Restraining issuance of execution on dormant judgment, see Injunctions, 2 e (2). Right of officer levying execution to demand indemnity bond, see Shebiffs and Con- stables, 2. Riglit to issue execution in favor of firm after death of partner, see Paktnbb- SHlP, 5 b (5). Right to set-oflF claim for conversion of ex- empt property, see Set-off and Coun- TEBCLAIM, 1 a. Sale under execution as barring right to dower, see Doweb, 2 e. Stay of execution as affecting judgment lien, see Judgments, 5 b. 1. Issuance, Fobm, and Validity of Wbit. Right to issne. — The assignee of a part of a judgment will not be allowed to issue execution for so much of the judgment debt as was assigned to him. Forster v. Baker (Eng.), 19-462. Effect of error as to interest on debt. — An execution is not avoided and the pro- ceedings based upon it invalidated by the fact that through an error of the clerk it commands the officer to collect interest from the time of judgment instead of from thirty days thereafter, the time fixed for payment id the decree, if there is sufficient in the exe- cution, when taken in connection with other tacts, to identify it with the judgment upon which it is based. Hamant v. Creamer (Me.), 8-165. 2. The Eetuen. Signature of officer not part, — Under the statutes of Virginia, the signature of the officer who makes return of an execution is not intended as a part of the return proper, but merely as an authentication of the memo- randum as a true return by the proper officer. Slingluff V. Collins (Va.), 17-456. Validity nrhen made before return day. — An officer's return to an execution, reading, " No effects known to me this 8th day of November, 1889," is not invalid be- cause made before the return day has arrived, in a ease where it is admitted that the judg- ment debtors were insolvent at the time when the execution was placed in the officer's hands. Slingluff v. Collins (Va.), 17-456. 3. Amendment of Execution ob Return. Bight to amend, in general. — In fur- therance of justice, an execution may be amended when no rights of innocent third persons have intervened except those which will be protected by the amendment. Ham- ant r. Creamer (Me.), 8-165. In a proper case, leave to amend an offi- cer's return to an exectttion, so as to make it speak the ti-utb, ought to be and usually is liberally grasnted, the only limitation upon the right to amend being that the amend- ment shaH be in furtherance of justice. Sling- luff V. Coffins (Va.), 17-456. In collateral proceeding. — The cotirt may of its own motion order amendment of an execution to be made, and, in collateral proceedings concerning amendable execution, the writ will be treated as having been ac- tually amended. Hamant v. Creamer (Me.), 8-165. Addition of officer's signature to re- turn. — A return to an execution which is sufficient under the statute so far as the body thereof is concerned, but from which the signature of the officer has been omitted, may be amended by the addition of such signature. Slingluff v. Collins (Va.), 17- 456, Effect of amendment. — Where an offi- cer's return to an execution is amended, the same effect is to be given to the return, as amended, as though it had originally been made in the amended form. Slingluff v. Col- lins (Va.), 17-456. Delay in application for amendment. — There is no specific limitation of time within which the power to amend an officer's return to an execution may be exercised, but after a considerable lapse of time the power should be exercised with caution. An appli- cation to amend a return by adding the offi- cer's signature thereto should not be refused, however, merely because nineteen years have elapsed since the return was made, where it is shown that the judgment debtors were no- toriously insolvent at the time of the return, tliat there was no opportunity to enforce it, and that no rights of third parties have in- tervened in the meantime. Slingluff v. Col- lins (Va.), 17-456. 4. Pbofebty Subject to Execution. Equitable estates or interests. — A judgment is not a lien on a mere right or interest which can be asserted and enforced in a court of equity only, nor can such an interest be seized and sold under an execution at law. Pogue v. Simon (Oregon), 8-474. An equitable asset of a debtor can be reached only by proper proceedings in a court of equity, and is not subject to levy and sale under an execution at law issued upon a judgment recovered against such debtor or upon a deficiency decree rendered against him in a suit for the foreclosure of a, mortgage, and such levy and sale and deeds executed thereunder by the sheriff are nulli- ties, and vest no title in the purchasers. Thalheimer t. Tischler (Fla.), 15-863. Lessee's option to purchase. — A lease of real estate for a term of years wherein the lessee is given the option at any time after the expiration of a certain period to purchase the leased property for a certain stipulated price, and, in the event he fails to exercise such option to purchase, the right, at the expiration of the term, to receive one- half of the valuation of the improvements lie has placed on the leased premises as fixed by three disinterested persons, does not give tlie lessee such an interest in the leased premises as can be subjected to sale under an execution at law. This contemporaneous intermixture and mingling of legal and equi- table interests creates an amalgam that can be properly disposed of and sold Only under EXECUTIONS. r57 a decree in equity. Thalheimer v. Tischler (Fla.), 15-863. Right to redeem leasehold. — A statu- tory right to redeem a leasehold sold under foreclosure proceedings is not such an inter- est as is subject to levy and sale under exe- cution, and therefore the rendition of a judg- ment against the lessee subsequent to the foreclosure sale fixes no lien on tlie leasehold interest. Commerce Vault Co., Use of Mc- Williams, r. Barrett ( 111. ) , 6-652. Interest of purchaser at eseoution sale. — The estate or interest of a purchaser at an execution sale may, after the time for redemption has expired, be seized and sold under an execution issued against him, even though no sheriff's deed has been executed or delivered to him. Pogue r. Simon (Oregon), 8-474. Goods of stranger mingled irith those of debtor. — Where a person mingles his own goods with those of a debtor, and re- fuses to separate them at the request of an officer having an execution against the debtor, the whole mass is subject to sale under the execution. McCausey v. Hoelc (Mich.), 18- 945. Intozioating liquor. — In Kansas in- toxicating liquor is not subject to seizure on execution, because the statute forbids its sale except by certain persons, for restricted pur- poses, and upon affidavit of the buyer show- ing the occasion for his purchase. Hines r. Stahl (Kan.), 17-298. 5. Property Exempt from Execution. a. In general. Horses used solely for pleasure. — Horses used solely for driving for the con- venience and pleasure of the owner and his family are not " work horses " within the meaning of the Mississippi statute exempting " work horses " from execution. Tishomingo Savings Institution v. Young (Miss), 6-776. Wages. — Under the Arkansas statutes the only mode of claiming the exemptions al- lowed by law is by filing the statutory sche- dule; and wages becoming due subsequent to the filing of such schedule are not exempt from seizure under garnishment proceedings or other legal process issued before the filing of such schedule. Baxley r. Laster (Ark.), 12-332. Personal property of railroad com- pany. — The personal property of a rail- road corporation, kept in stock for emergency purposes, is necessary to enable the company to perform its duties to the public, and is exempt from levy and sale under the ordinary writ of fieri facias. Margo v. Pennsylvania E. Co. (Pa.), 5-511. Where judgment Is for costs only. — Costs recovered independent of any other judgment are purely statutory and are not a debt founded upon contract or within a con- stitutional provision that personal property in a certain amount " shall be exempt from seizure on attachment or sale on execution, or other process from any court issued for the collection of any debt by contract." Buck- ley V. Williams (Ark.), 13-258. b. Moneys accruing from life insurance. As to debts of beneficiary. — The stat- ute exempting from execution all moneys, etc., accruing from life insurance, exempts such moneys not only as to the debts of the insured, but also as to the debts of the bene- ficiary after the deatli of the insured. Holmes V. Marshall (Cal.), 2-88. Where the estate of an insured person is the beneficiary, the proceeds of the insurance are properly set apart for the use of the sur- viving husband or wife and are exempt from execution under the statute. Holmes v. Marshall (Cal.), 2-88. Insurance money deposited in bank. — The deposit of insurance money in a bank by the beneficiary does not cause the same to lose its identity as money exempt from exe- cution. Holmes v. Marshall (Cal.), 2-88. c. Pension money. In general. — Under the Revised Stat- utes of the United States ( § 4747, 5 Fed. St. Ann. 667) as construed by the Federal Su- preme Court, pension money is exempt from claims of a pensioner's creditor only while it is " due, or to become due, to any pensioner." By such construction the words of the stat- ute, " shall inure wholly to the benefit of such pensioner," relate to the words " due or to become due," and have no force after the public obligation has been discharged by de- livery of the money to the pensioner or his agent. Estate of Ferguson (Wis.), 17- 1189. Money paid and converted into other property. — Pension money, under the fed- eral statute, is not exempt from the claims of creditors of the pensioner after the money has been paid to the pensioner and converted into other property. If Folschow v. Werner, 51 Wis. 85, holding that pension money is exempt so long as it can be identified as a fund, is to be followed at all, it will not be extended to cover such a case. Estate of Ferguson (Wis.), 17-1189. d. Property in oustodia legis. Leave of court. — Property in custodia legis cannot be levied Upon and sold without leave of court first obtained. If so sold, the sale is void.. Cobb r. Camden Sav. Bank (Me.), 20-547. Surplus in hands of sheriff after sale. — A surplus remaining in the hands of the sheriff after an execution sale is not subject to levy and sale under other execu- tions against the debtor, and therefore execu- tions in the hands of the sheriff at the time of such sale will not become liens on the sur- plus. Commerce Vault Co., Use of McWil- Hams, V. Barrett (111.), 6-652; e. Method of claiming exemption. Filing schedule of property. — Under a statute requiring an execution debtor who 758 ANN. CAS. DIGEST, VOLS. 1-20. desires to claim exemption to file a schedule setting out his property and specifying that which he claims to be exempt, the debtor's claim that specific articles are exempt may be denied if his schedule fails to make a full disclosure of all his property. Farris v. Gross (Ark.), 5-616. Successive exemption under Ohio statute. — Every judgment debtor entitled to the exemption from execution allowed by the Ohio statute may at all times keep in possession and hold exempt from levy and sale real or personal property to be selected by such debtor not exceeding $500 in value in addition to the amount of chattel property otherwise by law exempt. Hart & Co. v. Cole (Ohio), 4-217. A judgment debtor who has once claimed exemption from execution under the Ohio statute and has had the same set off and al- lowed, may thereafter again claim exemption against the same judgment out of other prop- erty, subject to the limitation that a judg- ment debtor may not at one time hold exempt, in lieu of homestead, property in ex- cess of $500 in value, in addition to the chat- tt'l property otherwise by law exempted. Hart & Co. -v. Cole (Ohio), 4-217. Effect of selection as to creditors. — Creditors who were not parties to a selection of exempt property by the debtor are not bound thereby, but may levy execution on such property, subject to the debtor's right to have his exemptions set off to him. Mc- Causey V. Hoek (Mich.), 18-945. Claim hy debtor's assignee. — Prop- erty selected by a debtor ex parte as his ex- emption is subject in the hands of a third person to levy under an execution against the debtor, but such third person may set up the debtor's claim of exemption, and failure to do so is a waiver of the right. McCausey v. Hoek (Mich.), 18-945. 6. Effect of Supebsedeas upon Execution. Restoration of possession. — The Florida statute providing that the allowance and per- fection of supersedeas shall suspend all fur- ther proceedings in relation to the judgment is in derogation of the common law and there- fore must be strictly construed. It changes the common-law rule requiring or permitting .a sale of property levied on under an execu- tion prior to the perfecting of the super- sedeas, but does not restore the personal property previously levied on to the posses- sion of the defendant in execution or impair the lien thereon created by the levy of the execution. Thalheim v. Camp Phosphate Co. (Fla.), 5-784. 7. Replevin fob Goods Seized. Execution as evidence. — Where a sberiflf seizes personal property under an exe- cutioh, and a stranger to the proeess de- prives him of his possession by a writ of re- plevin, the execution, though produced by the oflBcer at the trial of the suit in replevin, is not competent evidence of the officer's pos- sessory rights without proof of the judgment on which such execution was issued. Hoover V. Jonea (Neb.), 18-1126. 8. Sale Undeb Execution. Leave to sell. — The denial of a motion for an order to restrain the execution sale is not a granting of leave to sell. Cobb v. Camden Sav. Bank (Me.), 20-547. Validity of sheriff's deed. — A sheriff's deed of property sold on an execution levied on the homestead held not to be insufficient because of the absence of a recital that the defendant had opportunity to choose the land he would hold as a homestead. Kessner i\ Phillips (Mo.), 3-1005. Construction and operation of con- veyance. — The rignt of a purchaser at a sale under an execution aided by an attach- ment levied before the execution of a mort- gage on the attached premises is not post- poned . to the mortgage merely because the siieriff's certificate recites that the sale was of the interest which the execution debtor had at the time the sale was made. Beyer r. Dobeas (Wis.), 18-1019. Title passing by sheriff's deed, — A sheriff's deed passes the same title which a deed or bargain and sale, executed by a judg- m.ent debtor, would pass. Brady v. Carteret Realty Co. (N. J.), 3-421. An execution sale of the whole of a parcel of real estate conveys all the right, title, and interest, of every nature, that the debtor has, and is not invalidated by the fact that he owns only an undivided interest in the land. Hamant v. Creamer (Me.), 8-165. Avoidance for fraud. — While mere in- adequacy of the bid at an execution sale is not alone sufficient to invalidate the sale and to furnish cause for setting it aside, a levy may be so excessive as to furnish ground for avoiding the sale for fraud. Fortin -v. Sedg- wick (Iowa), 12-337. Such an enormous disproportion between the value of property sold under execution and the amount to be raised as the sale of a tract of land having a market value of $30,000 for about forty dollars, the amount of the judgment and costs, is in itself legitimate ground for an inference of fraud. Fortin r. Sedgwick (Iowa), 12-337. Avoidance of sale because officer de- ducts excessive fees. — An execution sale is not avoided by the fact that the officer making it taxes, and causes to be satisfied out of the proceeds of the sale, fees not au- thorized by law. Hamant r. Creamer (Me.), 8-165. Defective title as excuse for refusal to complete purchase. — A bidder at a sheriff's sale has no right to refuse to pay the amount of his bid and take the property on the ground that the sale will convey no title. Dickson r. McCartney (Pa.), 18-500. Setting aside sale. — A plaintiff in execution is not generally a necessary party to proceedings to set aside a sale under exe- cution. White-Diamond v. Hightowcr & Co. (Ga.), 5-260. EXECUTIVE — EXECUTOKS AND ADMINISTEATOKS. (59 9. Redemption. Lien of defioienoy judgment on prop- erty redeemed. — Under the Montana statute where real estate is sold under exe- cution and bid in by the judgment creditor foi less than the amount of the judgment, the judgment debtor has an interest in the property during the period of redemption, which, when transferred to a third person and redeemed by the latter from the execu- tion sale, is free from the lien of the de- ficiency judgment. McQueeney v. Toomey (Mont.), 13-316. Complaint in action to enjoin levy- ing of defioienoy judgment. — In an ac- tion by the purchaser of land from a judg- ment debtor after execution sale and during the period of redemption to enjoin the levying of a deficiency judgment on the land, the complaint, alleging in substance that the judgment debtor sold and conveyed the land in question to the plaintiff by a good and sufficient deed by which the plaintiff became the owner and entitled to the possession of the premises, sufficiently alleges that the grantor was the owner, although it does not allege that fact in set terms. McQueeney v. Toomey (Mont.), 13-316. Application of statute extending time to sale under judgment rendered prior to enactment. — A law extending the time for redemption of property sold un- der an execution has no application to an execution sale made upon a judgment ren- dered before its enactment, since if so ap- plied it would impair the obligation of the contract in violation of the state and federal constitution. Welsh v. Cross (Cal.), 2-796. 10. Teespass fob Weongful Levy. Levy in ignorance of satisfaction. — Trespass will lie against a solicitor and his client for suing out execution and causing it to be levied after the judgment had been satisfied, though neither the solicitor nor his client knew that fact; but an action on the case will not lie in the absence of malice. Clissold V. Cratchley (Eng.), 19-366. 11. Claims op Thibd Persons. Notice by claimant before sale. — Where a third person claims property sold under execution, and it appears that on the day of the sale the claimant gave a written notice of claim to the officer vpho had made the levy, but it does not appear whether the sale was before or after such notice, it will be assumed that the notice was given in due time to stop the sale, as the law does not recognize fractions of a day in the absence of evidence showing the priority of events on the same day; and in such case the fact that the levying officer gave notice of the claim to the court which had issued the execution, and the further fact that the auctioneer re- tained possession of the articles sold, will be regarded as corroborative evidence that the claim was received in due time to stop the sale. Brown v. Peterson (D. C), 4-980. 12. Appointment of Beceiveb in Aid of Execution. An order for the appointment of a re- ceiver, by way of execution, of all rents, profits, and moneys receivable in respect to a judgment debtor's interest in patents of which he is the registered owner, cannot be made on proof that such judgment debtor is resident abroad, and has no property within the jurisdiction available for the purposes of a fieri facias or other ordinary process of execution, where it is not shown that he is in receipt of any profits from the patents in question by way of royalties or otherwise. Edwards v. Pieard (Eng.), 17-387. EXECUTIVE. See States, 2; Statutes, 1 e; United States. Powers of, see Extbadition. Power of executive to remit fines, see Fines, 3. EXECUTIVE OFFICERS. Control of acts by prohibition, see Pbohi- BITION, 3. EXECUTIVE ORDERS. Judicial notice of, see Evidence, 1 b. EXECUTOR DE SON TORT. See ExEcuTOEs and Administbatoes, 17. EXECUTORS AND ADMINISTRA- TORS. 1. When Administration Is Necessaby OB Proper, 760. a. In general, 760. b. Estates of persons presumed to be dead, 760. 2. Appointment, 761. a. Who may apply for, 761. b. Persons who may be appointed, 761. e. Joint administrators, 761. d. Jurisdiction to appoint, 761. e. Notice of appointment, 761. f. Validity of appointment, 761. 3. Jurisdiction Over, 762. 4. Bonds, 762. 5. Title to Estate, 762. 6. Assets of Estate, 762. 7. Powers, 763. 8. Duties and Liabilities, 763. * a. In general, 763. b. Liability for funeral expenses, 763. c. Individual liability, 783. 760 AN:N. CAS. DIGEST, VOLS. 1-20. 9. Pbesentment AJSD Pboof of Claims, 764. 10. Sales op Real Estate bt Execu- tors AND Admi:*istkatobs, 765. a. Juviadietion of courts, 765. b. What may be sold, 765. c. Petition for order of sale, 765. d. Public or private sales, 765. e. Sales under void orders, 765. f. Cancellation of deed for fraud, 765. 11. Accounting, 766. 12. Distribution, 766. a. To creditors, 766. b. To heirs, legatees, and next ol kin, 766. c. Appeals from orders of distribu- tion, 766. d. Right of subrogation, 766. 13. Commissions, 767. 14. Administrators de Bonis Non, 767. 15. Administrators cum Testament© Annexo, 767. 16. Administrators Pendente Lite, 767. 17. Executors de Son Tort, 767. 18. Actions, 767. a. In gei\eral, 767. b. Parties, 768. c. Pleading, 768. d. Limitation of actions, 769. e. Evidence, 769. f. Judgment, 769. Appeal from decree for sale of deeedent'a real estate, see Appeal and Error, 3 b. Breach of promise of marriage as claim against decedent's estate, see Breach op Promise of Marriage. Competency of executor as attesting witness to will, see Wills, 3 e ( 2 ) . Deed by administrator as color of title, see Adverse Possession. Instrument appointing executor as a will, see Wills, 2. Liability for fine imposed on decedent, see Fines, 4. Proceeding to appoint administrator as an action, see Limitation or Actions, 3. Property held by personal representative as subject to garnishment, see Garnish- ment, 1 b. Right of executor to impeach chattel mort- gage given by intestate, see Chattel Mortgages, 5. Right to invoke privilege with respect to communications between decedent and others, see Witnesses, 3 d ( 5 ) . Right to set aside fraudulent transfer by de- cedent, see P^AUDULENT CONVETANCES, 4 a. Sale of homestead at administrator's sale, see Homestead, 4. Set-off in action by and against personal representatives, see Set-Opb" and Coun- terclaim, 1 e. Taxation of decedent's estate, see Taxation, 3 e. Transfer of leasehold by executor to himself as trustee as breaeh of covenant against assignment, see Landlord and Tenant, 3 c (1). Verbal contracts of sale by personal repre- sentatives, see Frauds, Statute op, 5. 1. When Administration Is Necessary or Proper. a. In general. Death of party as prerequisite! — A grant of letters of administration on the es- tate of a living person, as if he were dead, is absolutely void. Selden v. Kennedy (Va.), 7-879. As prerequisite to devolution at pev sonalty. — As a general rule administra- tion is a prerequisite to the devolution of the personal estate of the deceased. McBride i;. Vance (Ohio), 4-191. Estates of minors. — An administrator may be appointed to administer upon the es- tate of a deceased minor. Bowden d. Jack- sonville Electric Co. (Fla.), 7-859. When unnecessary under Idaho stat- utes. — Under the statutes of Idaho it is not aibsolutely necessary that administration be had of the estate of an intestate, when there are no debts against the estate and the heirs have made a satisfactory distribution of the assets among themselves. Gwinn r. Melvin (Idaho), 2-770. b. Estates of persons presumed to be dead. Power of state to authorize admin- istration. — A state has power to provide for the administration of the estates of per- sons who are absent for such a length of time as gives rise to a reasonable presump- tion of death. Ounnius v. Reading School District (U. S.), 3-1121. A state legislature, in the exercise of its jurisdiction over property within the state, may provide by statute that after the absence of the owner unheard of for a specified period his property may be administered Upon in the . same form of proceeding as is provided for administration upon the estate of a deceased person, and such administration will be valid as against the absentee and all persons inter- ested, although he is in fact not dead. New York Life Ins. Co. r. Chittenden (la.), 13- 408. Due process of law. — The Pennsylvania statute authorizing administration upon the estate of a person presumed to be dead by reason of absence, held not to deny the ab- sentee due process of law in contravention of the United States Constitution. Cunnius v. Reading School District (U. S.), 3-1121. If a state statute which provides merely that a person absent from the state for more than seven successive years shall be presumed to be dead, can be construed as authorizing the granting of letters of administration upon the estate of an absentee who Is in fact alive, it is void as violating the " due process of law " clause of the Fourteenth Amendment to the Federal Constitution, as it makes no provision for notice of administration pro- ceedings. Selden v. Kennedy (Va.), 7-879. EXECUTOltS Ai\D ADMlMSTliATOIiS. 7G1 Reasonableness of statute. — A stat- ute under wliich the distribution of the estate of an absentee can be made fourteen years after his disappearance, at which time all his rights in the property are barred, is not unreasonable as to the length of time given the owner in which to recover his property, and is not in conflict with the constitutional guaranties of property rights. Nelson v. Blinn, (Mass.), 14-147. 2. Appointment. a. Who may apply for. Simple contract creditors. — A simple contract creditor may apply for the appoint- ment of an administrator of an estate by tjie surrogate. De Coppet v. Cone (N. Y.), 20- 841. b. Persons who may be appointed. Nonresident. — The right to be appointed and act as an executor is not one of the rights secured by the Constitution of the United States or of Illinois, and the Illinois statute providing that no nonresident shall be appointed or act as executor is a valid exercise of legislative power. In re Mulford (111.), 3-986. A person held not to be a resident of the state within the Illinois statute providing that no nonresident shall be appointed or act as executor. In re Mulford (111.), 3-986. The provision of a state statute " that no nonresident of this state shall be appointed or act as administrator or executor " does not make the appointment of a citizen of another state subject to collateral attack upon a plea by such appointee to the jurisdiction of a United States court. Patch v. Wabash R. Co. (U. S.), 12-518. Person convicted of crime. — A con- viction of an attorney by a federal court of the statutory offense of receiving an exces- sive fee for the prosecution of a pension claim is not a conviction of aij infaipous crime, within the meaning of the Maryland statute disqualifying any person from acting a3 executor who has been " convicted of any crime rendering him infamous according to law." Garitee y. Bond /Md.), 5-915. Under a state statute disqualifying from acting as executors persons convicted of in- famous crimes, the state courts will not re- gard as disqualified a person convicted by a federal court, sitting within the state, of a federal statutory offense rendering Ijim in- famous, as the federal jurisdiction is con- sidered quoad hoc as foreign to the state ju- risdiction. Garitee v. Bond (Md.), 5-915. Waiver by next of kin in favor of r.tranger. — Under the. statutes of Iowa Illative to the administration of decedents' estates, a brotlier of the decedent has no standing to object to the action of the de- cedent's surviving son in waiving his right to administer upon the estate in favor of a stranger, and in procuring the appoiiotment of such stranger as administrator. In such a case the brother of tlie decedent is not a next of kin within the meaning of the stat- utes, and in the absence of proof that there are any creditors of the deceased, or that the interests, of the estate as a whole or the rights of some beneflciary thereof have been prejudiced by the appointment of the stranger as administrator, such appointment should not be set aside on the brother's petition. In re Estate of Weaver (la.), 17-947. c. Joint administrators. Power of court to appoint. — Under the District of Columbia statute providing for administration in the case of an intes- tate leaving a widow and a child or children, the probate court may appoint a widow and child, or a widow and two or more children, as joint administrators if the appointees agree thereto, but the court may not make such joint appointment against the consent of the parties entitled to administrjitjon. Williams v. Williams (D. C), 4-549. d. Jurisdiction to appoint. Proof of assets ivithin county. — In Massachusetts the Probate Court of a county has jurisdiction to grant administration of the estate of a person who at the time of his decease was an inhabitant of or resident in the county, without proof that such person left an estate to be administered within tlje county. Connors v. Cunard Steamship Co. (Mass.), 17-1051. e. Notice of appointment. Public administrator. — Under the Wisconsin statute authorizing the county court having jurisdiction of the estate of an intestate person leaving no surviving widow, husband, or next of kin to grant, upon its own motion, administration of such estate to the public administrator, the grant of letters to the latter may be made properly without notice. Jordan v. Chicago, etc., E. Co. (Wis.), 4-1113. f. Validity of appointment. Collateral attach, — The County Court having jurisdiction of a petition filed in a proceeding in rem to determine whether a deceased person left property in the state of Wisconsin so as to authorize the appointment of an administrator of his estate, the deter- mination of the court and its appointment of an administrator, although erroneous, is not a nullity or open to collateral attack. Jordan v. Chicago, etc., R. Co. (Wis.), 4- 1113. A finding of fact made bv the Probate Court upon the grant of letters of adminis- tration on the estate of a decedent, that the decedent was at th« time of his death an inhabitant of or resident in the county where the letters are granted, cannot be attacked collaterally in an action brought by the ad- ministrator in the Superior Court upon a cause of action belonging to the estate. Con- nors V. Cunard Stea-mship Co, (Mass,), 17- 1051. 762 ANK. CAS. DIGEST, VOLS. 1-20. 3. JuEiSDicTioN Over. Execntor in one state residing in another. — One may occupy the two rela- tions of Individual and executor, and as in- dividual he may be subject to the laws of one state, and in his official capacity he may be subject to the laws of another state, and he may as executor have the legal ownership of property over which the courts of the state in which he resides have no jurisdiction. Com. V. Peebles (Ky.), 20-724. 4. Bonds. Bankruptcy of surety, see Bankbuptct, 9. Liability of sureties on executors' bonds, see Suretyship, 3 b. Bond conditioned to pay debts and legacies. — Where an executor has given a bond making himself personally liable to pay legacies, the amounts of which are fixed by his testator's will, the obligation to pay is absolute, and therefore no suit is required to estaiilish the duty. Probate Court v. Ad- ams (E. I.), 8-1028. In an action on a bond making an executor personally liable for the debts and legacies of his testator, it is no defense that the ex- ecutor is ready and willing to appropriate for payment of legacies such assets of the estate as are in his possession. Probate Court V. Adams (R. I.), 8-1028. Personal liability of representative. — The Rhode Island statute providing that neither the person nor the property of an executor, other than an executor of his own wrong, shall be liable for the debts and lega- cies of his testator, except upon suggestion of waste, does not require that there shall be a suggestion of waste in an action on a bond which by its terms makes an executor personally liable for the payment of debts and legacies. Probate Court v. Adams (R. I.), 8-1028. Iiiability on bond for property not assets of estate. — The sureties on the bond of an executor who has received among the assets of the estate a fund in which his testator has only a life estate are not liable therefor to the remaindermen of the fund, because it is not an asset of the testator's estate. Probate Court v. Williams (R. T.), 19-554. Verdict in action on bond. — A ver- dict in an action on an executor's bond is not responsive to the issues where it finds merely that the bond is the obligation of the parties and awards the penal sum thereof to the plaintiflf, without finding that there has been a breach of the condition of the bond. Pro- bate Court V. Williams (R. I.), 19-554. 5. Title to Estate. Devolution of title in general. — Real estate passes primarily on the death of the owner, to the heirs and devisees, while the persona] property primarily passes to the ex- ecutor or administrator, who holds the legal title thereto until the heirs or legatees receive it through process of administration. Or- chard V. Wright, etc., Store Co. (Mo.), 20- 1072. The personal property of a deceased person does not vest in the heirs, but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death, and no right of action on a promissory note belonging to a deceased person lies in favor of the sole heir of the decedent who has possession of the note. Mc- Bride v. Vance (Ohio), 4-191. Real estate acquired by administra- tor. — Real property acquired by an ad- ministrator in obtaining satisfaction of judg- ments forming a part of the assets of the estate in his hands for settlement is to be treated, for purposes of administration, as personal property. Weir v. Bagby (Kan.), 7-702. Where an administrator has acquired real property in obtaining satisfaction of judg- ments forming part of the assets of the es- tate in his hands for settlement, the intes- tate's heirs do not take title to such prop- erty by descent, nor can they dispossess the administrator until the Probate court has exhausted its authority over the property by an order of distribution, either general or special, which is final in character. Weir r. Bagby (Kan.), 7-702. Unexpired lease of real property. — An unexpired lease of real property for twenty years or any longer term is " personal property," both at common law and under the statutes of Missouri, and therefore, on the death of the lessee, passes to his admin- istrator, except as to the interest of the widow, under the statute (Rev. St. Mo. 1899, i 2933; Ann. St. 1906, p. 1690), giving her dower in a leasehold. Orchard v. Wright, etc.. Store Co. (Mo.), 20-4072. 6. Assets or Estate. Property exempt from administra- tion. — A finger ring and a watch and chain worn by a person during his lifetime are embraced in the term "all the wearing apparel of the decedent," as used in a, stat- ute exempting such wearing apparel from ad- ministration and the payment of debts. Phil- lips V. Phillips (Ala.), 15-157. A silver card receiver used on a hat rack is embraced in the term " household furni- ture necessary for the use and comfort of the family" as used in such a statute. Phillips V. Phillips (Ala.), 15-157. A piano and piano stool which are neces- sary for the use and comfort of the family, as when they are a mother's means of sup- porting her minor children, are likewise em- braced in the term " household furniture nec- essary for the use and comfort of the fam- ily" as used in such a statute. Phillips i". Phillips (Ala.) 15-157. Right of next of kin to sue for. — The next of kin of a decedent have no stand- ing in a court of law or equity to maintain an action for the recovery of property al- leged to belong to the estate of their deced- EXEOUTOES And Ai)i\ilNlSTRATOKS. 'mi ent. Such actions can be brought only by the duly appointed personal representative of the deceased, except that the next of kin may sue where the personal representative of the deceased, by reason of collusion with the defendant or otherwise, is derelict in the per- formance of his duty, but the administrator must be joined as a party defendant. Bu- chanan e. Buchanan (N. J.), 20-91. Effect of release by sole distributee. — A claim for damages for the sufferings of a deceased person resulting from personal in- juries sustained by him a short time before his death, belongs technically to his estate; but where his sole surviving heir at law settles the claim prior to the appointment of an administrator, and the settlement is freely and fairly made, and the asset involved in the settlement is not needed by the adminis- trator for creditors or for expenses of ad- ministration, and the assets if recovered by the administrator would go to the heir, the settlement will be binding upon the admin- istrator subsequently appointed. McKeigue V. Chicago, etc., E. Co. (Wis.), 10-554. 7. POWEBS. Fo'vrers dependent on grant of letters. — As a will is the only source of an ex- ecutor's power, and letters testamentary are the only evidence of his authority, it follows that where the former is never established and the latter are never issued, he who as- sumes to act as executor is merely a volun- teer, and runs the risk of having his acts re- pudiated by the courts of competent juris- diction. Dodd V. Anderson (N. Y.), 18-738. Private sale of personal property. — Under the Missouri statute (Rev. St. 1899, 5§ 112, 113; Ann. St. 1906, p. 376), empower- inar an administrator to sell personal prop- erty when necessary to pay debts or legacies, without an order of court, at public sale, an administrator has no power in any case to sell personal property at private sale, excep* on an order of a Probate Court directing a private sale and prescribing the terms there- of, as required by section 117 of the statute. Orchard v. Wright, etc., Store Co. (Mo.), 20-1072. There being no statute in Missouri direct- ing an administrator to make a report to the court of a sale of personal property at pri- vate sale, or empowering the Probate Court to approve or confirm such a sale, the court's approval and confirmation of such a sale adds nothing to its validity, and does not cure any defects in the order authorizing it. Or- chard V. Wright, etc., Store Co. (Mo.), 20- 1072. Effect of testamentary power to sell land. — A direction to an executor to sell the decedent's property and pay the proceeds to the widow gives the executor full power over the realty, and the right to maintain any action necessary to carry out the direc- tion and to protect the interests charged, in- cluding the power to maintain a bill to re- move a cloud on the title. Sears v. Scranton Trust Co. (Pa.), 20-1145. Poorer to complete contract for sale of land. — The executor of the vendor in an executory contract to sell land is author- ized to convey the land to the purchaser where the will provides that the executor shall " have full and complete power and authority over my entire estate, real, personal, and mixed," and directing him to sell the renl estate. Stewart v, Griffith (U. S.), 19-639. To make oil and gas lease. — Under a clause of a will providing that the executor and trustee shall take charge of certain prem- ises and lease and maintain the same witli- out permitting a deterioration in value, such executor and trustee is not authorized to execute an oil and gas lease granting the lessee all the oil and gas under the said prem- ises and binding the legatees thereby, where the premises had never been leased for other than agricultural purposes. Lanyon Zinc Co. V. Freeman (Kan.), 1-403. An executor and trustee who has executed an unauthorized oil and gas lease is estopped to deny the validity of the same as to his own interest in the premises acquired from certain legatees. Lanyon Zinc Co. v. Free- man (Kan.), 1-403. 8. Duties and Liabilities. a. In general. Status of representative as trustee.— The duties of an executor or administrator are trust duties, and in all essential respects he is regarded in courts of equity as a trus- tee. McKeigue v. Chicago, etc., R. Co. ( Wis. ) , 10-554. Duty to offer will for probate.— While a person who is nominated as executor in an instrument purporting to be the will of a de- cedent, and who desires to qualify, rests un- der a moral obligation to oflfer the instrument for probate, it is not his imperative legal duty to do so, since the instrument may be oflFered for that purpose by a devisee, legatee, creditor, or other person interested in the estate. Dodd v. Anderson (N. Y.), 18-738. Investments beyond jurisdiction of court. — As a general rule executors or trustees have, in the absence of express au- thority, no power to invest trust funds be- yond the jurisdiction of the appointing court, a provision in a will giving the executors or trustees "full authority to invest the trust property in such manner as they shall deem best" conferring no such power. Pabst r Goodrich (Wis.), 14-824. b. Liability for funeral expenses. Credit extended to third person. — The administrator of a deceased person is not liable for the latter's funeral expenses where the credit therefor is extended to a third person on the express promise of such person *o W the hill. Kenyon v. Brightwell (6a.), c. Individual liability. Attorney's fees. — Attorneys employed by an administrator to assist him in admin- 764 ANJT. CAS. 13IGEST, VOLS. 1-^20. Istei'ing his trust, or to piosecute or defend an action for or against him in his official capacity, hjye no claim they oaij enforce dir rectly against the estate. The administrator is individually liable for such services, and uppn settlement of hig acpounts he may be reimbursed out of the estate for attorney'? fees nepessarily paid out as expenses pf ad- ministration. Brown V. Quinton (Kan.), 18- 290. (iia|.1|ility for intisvest on funds. — It is not improper to charge interest on a fund in the hands of an administrator, from the date of his ex parte settlemeiit made more than twQ years after his appointment and the appraisement of the estate, showing by far the gfeater part thereof to have been in his hands in the form of money and notes within a few days after his appointment, althpugh the repprt of the commissioner in the cause states that the administrator reeeived the fund with which he is chargeable ■" as of " the datg of the ea> jtarte settlement. Taylor V. Taylor (W. Va,), 19-414. (CnntrAPt fosnAe^ on new B.k)ni;ideii9,T tJ9nt -" Tbe exeoutrJ3( pf an estate is liable individually upon a contract made by ber before her appointment by which she agreed for a consideration to pay to the legatees after her appointment their respective pro- portions of money? ppmiijg info her hands in excess of a certain sum. Painter !'. Kaiser (Nev.), 1-765. Ijiability for expenses of -wxW con- test, r- Where a person who is nominated as executor in an instrument purporting to be the will of a decedent offers the instru- ment for probate and is met with a contest, he may east the burden of such contest upon those who are to be benefited by the probate of the paper, or may demand indemnity from them, or he may assume the burden himself. If he pursues the latter course and is de- feated, he becomes personally liable for the expenses of the contest. Dodd v. Anderson (N. Y.), 18-738. A person who is nominated as executor in an instrument which, in the court of first instance, is judicially declared to be Invalid as a will, cannot maintain an action at law against the administrator of the decedent to recover the moneys expended in the unsuc- cessful attempt to procure the probate of the invalid instrument; and this rule applies even though such person has no pecuniary interest in the probate of the instrument, and acts in good faith in offering it for pro- bate, and the expenses of the proceeding are reasonable in view of the extent of the de- cedent's estate. Dodd v. Anderson (!N. Y.), 18-738. It seems that the rule making a persqif who is nominated as executor personally liable for the expenses of an unsuccessful at- tempt to probate the putative will where the instrument is rejected by tbe ppurt of first instance does not apply where the validity of the will, in whple or in part, is upheld in the court pf first instance, and the executor duly quajifles ag s»eh, but the decree admitting the in^tfuijjpBt tP probats is afterwards re- versed by ap appellate court. Dodd v. Ab< derson (N. Y.), 18-738. 9. Pbbsentment and Peoop of Claris. Failure tp present claim on note of deceased fpaker as discharging surviving jpint mater, see Biws and Notes, IQ. Prpspective operation of statute limiting time fpr filing claims against estate, see Limitation of Actions, 1 e. Rttnuing pf statute pf nonolaim against in; fants, see Limitation of Aotiows, 6 b (2). IJeljt cxpresisly rpcogqized by wiU, -r Where a codicil to a will expressly recog- nizes a claim as a debt and a charge on the estate, it is unnecessary to probate such claim, because an express trust to pay it is saddled on the executor. Q'Eeilly v. Me- Guiggan (Miss.), 15-623. Bpenpjj of warranty by deceased. — Altjiough a claim for unpaid taxes on prop- erty owned by a decgdent at the time of his death and . passing to his executor or ad- ministrator need ^ipj; be presented, a claim for unpaid taxes ra-ising from the breach of the decedent's warranty against incum- brances on property conveyed in his lifetime must be presented to his executor or admin- istrator within the time required by statute. Clayton v. Dinwoodey (Utah), 14-926. JnnPTrept description of promissory npte. -B In presenting to an administrator a copy of a note against the deceased, the fact that, by oversight, the note presented is incorrectly described as signed by tbe de- ceased individually when it was signed with the name of the deceased " & Co." does not make the presentation invalid. Sears v. Hpvva (Conn.), 12-809. Comsienoetnent pf action as presen- tation of cl^im. i-n The commencement of an action against exeoutors or administrators on a claim against the decedent within the time in which a claim could under the stat- ute be properly presented, and the service on them of a copy of a verified complaint con- taining substantially all the averments re- quired in a regularly presented claim, ope- rate as a compliance with statutory require- ment as to presentation of claims. Clayton V. Dinwoodey (Utah), 14-926. Claim to partnership assets in hands of administrator of deceased partner. — 7 The Arizona statutes providing that every executor or administrator must publish notice requiring creditors of the decedent to present their claims, and that no holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, do not apply to a claim to partnoi-ship assets in the hands of an administrator of a deceased partner, and such a claim need not be filed with the administrator before suit thereon is brought. Franklin r. Triekey (Ariz.), 11-1105. Parol testimony. — . In a proceeding to enforce a claim against a deeedent's estate, where it is not claimed that there is or has EXECUTOES AND ADMINISTKATOES. 765 been any writing in existence evidencing in- debtedness, the law does not presume the ex- istence of better evidence than parol teati* niony. Sohell v. Weaver (111.), 8-339. Admiiisioiks by decedent. — In a pro- ceeding to establish a claim against a de- cedent's estate, the rule preventing the claim- ant from testifying in his own behalf does not 'preclvide the introduction of admissions made to third persons bv the decedent in his lifetime. Schell v. Weaver (111.), 8-339. 10. Sales of Real Estate by ExectJtors AND AdMINISTRATOES. a. Jurisdiction of courts. In Tennessee. — The Tennessee statute giving the County Courts of the state eon- current jurisdiction with the Chancery and the Circuit Courts to sell realty belonging to the estates of decedent* was not intended by the legislature to break down the special system of legislation contained in the code for the administration of insolvent estates, or to interfere with the Jurisdiction of the subject as distributed between the Chancery and the County Courts. Key v. Harris (Tenn.), 8-200. b. What may be sold. Stealty to which decedent had claim or title. — The only realty which can be sold to pay the debts of a decedent, upon pe- tition of the executor or administrator, is real estate to which the decedent " had claim or title" at the time of his decease. Sifford V. Cutler (111.), 18-36. Realty fraudulently conveyed by de- cedent. — Land which has been conveyed in fraud of creditors cannot be reached after the death of the grantor by a proceeding to sell his real estate for the payment of his debts. As to such real estate the decedent had no claim or title at the time of his death. Siflford V. Cutler (111.), 18-36. Iiease of realty. — The Missouri statute (Am. St. 1906, p. 1807) providing that every lease of lands for an unexpired term of three years or more "shall be subject to execution and sale as real property " is not limited to execution sales, but includes all judicial sales; and therefore such a leasehold is with- in the statute (Ann. St. 1906, p. 386) pro- viding for the sale of the real estate of de- cedents. Orchard v. Wright, etc.. Store Co. (Mo,), 20-1072. e. Petition for order of sale. Snffldeucy of petition. — A petition to sell the real estate of a decedent for the pay- ment of debts will not, on appeal, be held insufficient as to the allegation of indebted- ness to give the surrogate jurisdiction because it stated merely that the decedent was in- debted to the petitioner in a certain sum, where no application was made to have the claim made more specific, or to have stated the facts out of which it arose, Matter of pjri«! (N, y.), 19-672, d. Public or private sales. Petition asking for private sale. — An order directing an administrator's sale of a leasehold, but failing to authorize a pri- vate sale, is not cured, so as to validate a private sale, by the fact that the petition asked for a private sale. Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. Order not authorizing private sale.— Where a probate order directing an adminis- trator to sell a leasehold belonging to the es- tate, to pay debts, does not contain a direc- tion to sell at private sale, it will be construed to require a public sale, especially where the lease itself provides that, in ease Of default by the lessee or his legal representatives or assigns in the payment Of rent, the lease may be sold at public auction after two weeks' published notice. Orchard i'. Wright, etc.. Store Co. (Mo.), 20-1072. Order directing private sale. — An or- der directing a private sale of a leasehold belonging to a decedent's estate is void un- less the terms of the sale are prescribed as required by the Missouri statute (Ann. St. 1906, p. 376), which provides that the court, on the application Of the executor, may order a private sale and " prescribe the terms thereof." Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. Right of purchaser to have deed made to another. — A purchaser of land at an executor's sale has a right to have the deed to the property executed to any person whom he may designate. West v. Burgle (Ark.), 5-706. e. Sales under void orders. Collateral attach. — Where a probate order directing an administrator's sale of a leasehold is void, it was subject to collateral attack, and a sale thereunder conveys no title to the purchaser. Orchard v. Wright, etc.. Store Co. (Mo.), 20-1072. Right of heirs to recover land. — The heirs of a decedent cannot recover land which the administrator has sold under a void order of court without refunding to the grantees so much of the purchase money paid by them as has been used to pay the decedent's debts. Millican v. McNeill (Tex.), 20-74. Estoppel of administrator to assert individual interest. — A deed executed by an administrator in his representative capacity conveying realty forming part of the decedent's estate estops the administrator afterwards to assert an individual interest in the property So conveyed. Millican v. Mc- Neill (Tex.), 20-74. f. Cancellation of deed for fl-aud. Evidence held not to show fraud. — Evidence reviewed in an action to cancel, on the ground of fraudulent procurement, the deed to land sold at an executor's sale and conveyed by an executor to a person other than the purchaser, and held to show that the deed was executed at the request of the purchaser and not at th« fraiidulent procure. 766 ANN. CAS. DIGEST, VOLS. 1-20. ment of the grantee. West v. Burgie (Ark.), 5-706. 11. Accounting. Doctrine of prescription. — Where it appears that an executor has within twenty years filed a statement of his accounts, from which it appears that at the time of the iiling thereof he recognized the trust as con- tinuing, the doctrine of prescription does not apply so as to preclude a compulsory ac- counting by such executor. Salmon v. Wynn (Ala.), 15-478. IJaches as bar to application, — Irre- spective of the doctrine of prescription, a complainant's laches may preclude him from invoking the aid of an equity court to com- pel an accounting by an executor where it appears that the slumbering by the com- plainant on his rights for a long time, the death of parties, the extreme doubt whether he would be entitled to anything on a fair settlement of the estate, and the uncertainty whether a proper account can be stated, create a danger of doing injustice by com- pelling such accounting. Salmon v. Wynn (Ala.), 15-478. Personal debt of execntor to dece- dent. — By statute in Oregon an executor is charged on final settlement with the amount of his personal debt to the decedent as so much money in his hands, irrespective of his ability to pay at the time of or sub- sequent to his appointment. United Brethern First Church v. Akin (Ore.), 2-353. Debt due from heir, legatee, or cred- itor. — A debt due from an heir, a legatee, or a creditor to an estate is an asset of such estate, and where the distributive portion of such heir or legatee or the claim of such creditor is equal to or greater than his debt to the estate, the administrator or executor should charge himself with and account for the full amount of the same. Lambright ('. Lambright (Ohio), 6-807. Es parte settlement of account. — An attack, by appropriate* and sufficient allega- tions, upon an allowance to an administra- tor, in his ex parte settlement, of commission to which he is not entitled, according to the allegations of the bill, is a sufficient specifi- cation of an improper charge against the estate, in a bill to surcharge and falsify such settlement. Taylor v. Taylor (W. Va.), 19- 414. 12. Distribution. a. To creditors. Order of liability of assets. — Rule in Virginia stated as to the order of liability of the assets of a decedent's estate to the payment of debts. French !'. Vradenburg (Va.), 8-590. Demand for whole or part of estate. — A demand for the whole or a part of the estate is not a " claim " against it, within the meaning of the statutes. Knutsen v. Krook (Minn.), 20-852. A " claim " against the estate of a de- ceased person, within the meaning of the Minnesqt^ statutes, is a demand Qf a p.eex^ni- ary nature which could have been enforced against the decedent in his lifetime. Knut- sen V. Krook (Minn.), 20-852. Duty of creditor to bring suit. — In the ordinary administration of a decedent's estate, creditors are not obliged to put their claims in judgment unless they are rejected by the administrator, but the validity and amount of such claims may, by consent of the parties, be adjudicated by the surrogate. De Coppet V. Cone (X. Y.), 20-841. Hecovery of excess paid to creditors. — An administrator who pays a debt of his intestate in full under the mistaken belief that the estate is solvent may, on the recov- ery of the fact of insolvency, recover the amount paid in excess of the creditor's pro rata share. Woodruff v. H. B. Claflln Oo. (N. Y.), 19-791. b. To heirs, legatees, and next of kin. Time of distribution. — An executor is not compellable to pay general legacies with- in one year after the death of the testator. But he may lawfully pay and discharge them within the year, if the estate is such as to enable him to do so. Palmer v. Palmer (Me.), 19-1184. Distribution under foreign urill. — While, in giving effect to a foreign will, courts are governed by the law of the domicil of the testator, the estate within the control of the court is administered according to the law of the forum, and such estate embraces all property originally within the state and brought into it by the executor, and what- ever sum the executor pays to bring the prop- erty within the state reduces the amount within the control of the court. Kingsbury i'. Bazeley (N. H.), 20-1355. Retention of amount due from dis- tributee. — The administrator or executor of a decedent's estate has the right and it is his duty to retain out of the distributive share of an heir or legatee, or out of the sum due a creditor, an amount equal to the debt owing by such heir, legatee, or creditor to the estate; and this right and duty exists though the heir, legatee, or creditor is the administrator himself and whether he was indebted to the deceased before his death or contracted the liability to the estate there- after. Lambright v. Lambright (Ohio), 6- 807. Except where the indebtedness may be held an advancement, the distributive share of an heir in the real property of his intestate is not chargeable with the heir's indebtedness to the intestate's estate, either as against the land itself or the proceeds of the sale thereof in the hands of the administrator, but the indebtedness must he collected in the same manner as any other indebtedness due the estate. Marvin v. Bowlby (Mich.), 7-559. c. Appeals from orders of distribution. Review on appeal from final decree of Probate Court. — The validity of a de- mand for the whole or part of an estate, formally allowed by tl\e Probate Court, tliqugh EXECUTOES AND ADMINISTEATORS. 767 no appeal from the order allowing the same was taken, may be determined upon an ap- peal from the final decree of the Probate Court. Knutsen v. Krook (Minn.), 20-852. Bight to appeal. — An administrator has no pecuniary or personal interest or property right which can be aflfected by a decree of distribution of funds shown by his account to be in his liands, and he is not ag- grieved by the decree directing him to pay to the legatee rather than to the heir. Stilphen, Appellant (Me.), 4-158. As the assignee of the distributive share of one of the heirs at law, an administrator has a pecuniary interest and property rights which may be directly aflfected by a decree of distribution, and therefore under the Maine statutes may appeal from the decree. Stil- phen, Appellant, (Me.), 4-158. Appeal from allonrance to vridow. — An appeal lies from the judgment of the Probate Court granting or refusing an allow- ance to the widow out of the estate of her deceased husband. Rieger v. Schaible (Neb.), 16-700. d. Right of subrogation. Use of ezecntor's own funds. — An executor who uses his own funds to pay debts and pecuniary legacies, is entitled to be subrogated to the rights of the creditors and legatees. Earle v. Coberly (W. Va.), 17- 479. 13. Commissions. Executor appointed in foreign state. — An executor appointed in another state held not to be entitled to a commission as an executor in the state of his residence. Porter r. Long (Mich.), 4-177. Discretion to allow. — Though there may be discretion in a court of equity to allow commission to a fiduciary in his settle- ment, when he has failed to make it, or ren- der a statement of the money in his hands to the parties entitled thereto, or lay his ac- counts before a commissioner in a pending suit, within the time prescribed by section 7 of chapter 87, section 3299, Code 1906, a question not here decided, it is error to allow commission, under such circumstances, in the absence of any fact, disclosed by the record, that could call upon the court for the exer- cise of such discretionary power. Taylor v. Taylor (W. Va.), 19-414. 14. Administbatobs de Bonis Non. Appointment after final settlement of estate. — Under the Alabama statute au- thorizing the appointment of an administra- tor de bonis non, if the estate has been finally wound up and the administrator discharged an administrator de 'bonis non cannot be ap- pointed. Hickey v. Stallworth (Ala.), 5- 496. 15. Administbatobs cum Testament© An- NEXO. Appointment. — The Kentucky statute (St, 1909, \\ 3§91, 38,965 3897) yegulatin? the appointment of administrators does not contemplate that the failure of an executor to qualify until the second term of the County Court after the probate of the will shall au- thorize the court to appoint a creditor or some other person in its discretion as ad- ministrator with the will annexed. Adams v. Readnour (Ky.), 20-833. Where an executor fails to qualify before the convening of the second term of the County Court, such fact does not justify the appointment of an administrator with the will annexed until after the executor has been cited to appear and show cause why he should not accept or decline the trust. Ad- ams i;. Readnour (Ky.), 20-833. Under the Kentucky statute (St. 1909, § 3891) which declares that if there is no ex- ecutor appointed by the will, or if all the executors therein named die, or refuse the executorship, or fail to give bonds as required by law, which shall amount to such refxisal, the court may grant administration with the will annexed to the person who would have been entitled ■to such administration if there had been no will, the court has no power to grant administration where the executor ap- pointed by the will merely fails to qualify at or before the term of court following that at which the will is proved. Adams v. Read- nour (Ky.), 20-833. Foiirers. — What an executor may do, an administrator 0. t. a. may also do. Sears i'. Scran ton Trust Co. (Pa.)), 20-1145. 16. Administrators Pendente Lite. Appointment without notice. — It is within the sound discretion of the New Jer- sey Orphans' Court to appoint an adminis- trator pendente lite on its own motion, with- out notice to the parties to the cause, and an appointment so made will not be re- viewed on appeal except for abuse of dis- cretion. Davenport v. Davenport (N. J.), 6-261. Appeal from order appointing. — If there is_ a wrongful exercise of the power of appointing an administrator pendente lite, no doubt an appeal will lie, but no such ap- peal will lie because the appointee is objec- tionable to either party, or because of the amount of the bond required by the court. Davenport i'. Davenport (N. J.), 6-261. 17. Executors de Son Tort. Validation of acts hy subsequent ap- pointment. — The acts of an executor de son tort are validated, by relation, by the subsequent issuance of letters testamentary to him. Nance v. Gray (Ala.), 5-55. 18. Actions. a. In general. Right of personal representative to sue for death by wrongful act, see Death by Weowgful Act, 6 d. Right to maintain ej"ec^m^nt, see E^imCTMENT^ res ANN. CAS. DIGEST, VOLS. 1-20. Jnrisdiotion of action for acoonnt- lug. — In an action by the creditor of an insolvent estate against the administratrix and the county judge for an accounting, the court is not deprived of jurisdiction because the plaintiff might have moved to retax the costs in the County Court or brought an ac- tion on the bond of the administratrix, or sued to recover a statutory penalty for tak- ing illegal fees. ilcGlave c. Fitzgerald (Neb.), 2-867. In jurisdiction other than that of decedent's domicil. — Where a foreign testator has died leaving assets and debts in New York, New York creditors ai'e not bound to resort to the jurisdiction of the foreign adminiatration for the collection of their claims, but are entitled to proceed against the assets in New York. De Coppet r. Cone (N. Y.), 20-841. Where a nonresident testator has died leaving property in New York, but it is im- possible to prove his will there and obtain letters of administration, so that New York creditors have no means of obtaining payment of their demands through the ordinary pro- cedure for administration, equity will enter- tain a suit on behalf of all the creditors for a ratable distribution of the New York es- tate in satisfaction of their respective claims. De Coppet v. Cone (X. Y.), 20-841. Where the will of a foreign testator can- not be proved in New York, and he died leav- ing both debts and assets in that state, a New York creditor is not bound to reduce his claim to judgment before maintaining a suit in equity in New York to administer the New York assets for the benefit of creditors. De Coppet v. Cone (N. Y.), 20-841. Action in forma pauperis. — An execu- tor or administrator who sues in his own right and is therefore individually liable for costs, may be allowed by the court to begin an action in forma, paup&is upon a proper aliegation of his personal inability to give bond. Christian v. Atlantic, etc., K. Co. (N. Car.), 1-803. Action to establish trust. — A trust should not be declared against the insolvent estate of a deceased person on the ground that the proceeds of the property held in trust by the decedent went into the general assets and thereby increased the amount in the hands of the administrator, nor Should the administrator be compelled to use the general assets of the estate to redeem trust property pledged by the trustee during his lifetime for his individual use. Lowe v. Jones (Mass.), 7-551. Action pending against decedent. — The Indiana statute prohibiting the bringing of an action against an executor or admin- istrator by complaint and summons and re- quiring all claims against a decedent's estate to be filed in the clerk's office, has no appli- cation to actions pending against the de- ceased at the time of his death. Newman v. Gates (Ind.), 6-649. Specific performance of testator's contracts. — An executor may sue for the specific performance of a contract for the purchase of land from his testator where it is provided by statute (Code Md. 1888, art. 93, § 81) that the executor of a vendor in an executory contract may convey the land to the purchaser. Stewart v. Griffith (U. S.), 19-639. Claim of remainderman to fund held by decedent as life tenant. — The remainderman of a, fund which has passed ii;to the hands of the life tenant's executor is not a creditor of the life tenant's estate within the provisions of the probate law re- lating to actions by creditors of deceased per- sons. Probate Court v. Williams (R. I.), 19-554. b. Parties. Substitution of personal representative as party on appeal, see Appeal and Ereob, 5 c. In action against estate of nonresi- dent testator, — In a suit by a New York creditor to administer the assets in that state of a nonresident testator, either the foreign executor or the person interested in the estate as legatee or next of kin is a nec- essary party. De Coppet r. Cone (N. Y.), 20-841. c. Pleading. Sufficiency of complaint in general. — In an action by a creditor suing in behalf of all the creditors of an insolvent estate against the administratrix and the countj- judge for an accounting, a petition alleging collusion between the defendants and a fraud- ulent payment of illegal fees is sufficient as against a demurrer. McGlave v. Fitzgerald (Neb.), 2-867. Allegation of refusal by representa- tive to sue. — In an action by a creditor of an insolvent estate against the adminis- tratrix and the county judge for an account- ii^g, allegations of colhision and fraud by the defendants are sufficient to entitle the bring- ing of an action without showing a technical refusal by the administratrix to sue. Mc- Glave l: Fitzgerald (Neb.), 2-867. Allegation of appointment of admin- istrator. — Under the Florida constitution, a county judge has general power to grant letters of administration, and as such letters can be granted lawfully on the estate of a deceased minor, an allegation in the declara- tion in an action for death by wrongful act of a minor, that the plaintiff was duly ap- pointed administrator of the estate of the de- ceased, is a sufficient allegation of the grant- ing of such letters, and the regularity of the grant cannot be attacked collaterally. Bow- den r. Jacksonville Electric Co. (Fla.), 7- 859. In an action by an administrator, an alle- gation in the declaration that the plaintiff was " duly appointed " administrator of the estate of his intestate means that he was ap- pointed according to law. Bowden V. Jack- sonville Electric Co. (Fla.), 7-859. Allegation of detention of money. — Tliough, in charging an administrator in re- spect to a debt made by lijs det'cilent, it is EXECUTORY CONTRACTS — EXEMPTIONS. 769 usual to allege that he detains, or owes and detains, the money, the omission of the word " detains " and use of the word " owes " only, do not vitiate a declaration, charging the de- fendant as administrator and setting forth facts, imposing liability in a representative capacity only. Cameron v. Hicks (W. Va.), 17-926. Amendment of pleadings. — In an ac- tion by an administrator de bonis non, where duly authenticated copies of his official bond and letters testamentary have been filed with the clerk of the court in compliance with the Colorado statute (Mills's Ann. St. Rev. Supp., §1 4733, 4734), the proper practice being to incorporate copies of those documents in the petition itself, which has not been done, he should be allowed to amend in this particu- lar. Berkey v. Board of Com'rs (Colo.), 20- 1109. Constrnctlon of pleadings in action against ezecntor. — A purpose to impress a trust in a testatrix's estate in the hands of the executor, and not to establish a debt against the estate, is disclosed by a bill which states no fact from which an indebtedness would arise, but merely alleges that the de- fendant's testatrix was the wife of one S., of whose estate the plaintiff was administrator de bonis non; that S. had bequeathed all his property to his wife for life, with the right to use so much of the principal thereof as might be necessary for her support, and di- rected that any balance undisposed of at her death should be divided among his children; that the property of S. was held by the de- fendant's testatrix in trust for the children of S., and had come into the hands of the de- fendant as executor; that it was the duty of the defendant to turn over such property to the plaintiff; that tfle plaintiff could not make his inventory as administrator de bonis non without a statement or account as to the assets of the estate of S. in the defendant's hands; and praying that an account be taken as to such assets. Probate Court v. Williams (R. I.), 19-554. Action to set aside void sale. — The Kansas statute requiring actions brought by the heirs of a deceased person for the recov- eiy of real property descending to them, but sold by the administrator of the estate of the decedent under an order of court directing such sale to be commenced within five years after the date of recording of the deed made in pursuance of the sale, applies to sales which are void for want of notice to the heirs, of the proceedings upon which the deed is based. O'Keefe v. Behrens (Kan.), 9^867. d. Limitation of actions. Action for funeral expenses, see Limitation OF Actions, 3. Neglect of attorney to begin action. — Under a statute limiting the time for prosecuting claims against decedents' estates, but providing that a creditor may sue on his claim after the time limited if he is not chargeable with " culpable neglect," it is no excuse for delay that the creditor placed the Vols. 1-20 — Ann. Gas. Digest, — 49, claim in the hands of an attorney who ne- glected to prosecute it. It must be shown that the neglect of the attorney was not cul- pable, as the neglect of the attorney is equi- valent to neglect of the party himself. Beale V. Swasey (Me.), 20-396. e. Evidence. Decree adjudging estate insolvent.— A decree adjudging an estate insolvent is not competent evidence of that fact in an action by the administrator against a creditor whose claim has been paid in full, to recover the amount paid in excess of the creditor's pro rata share, where the creditor was not a party to the proceeding i^dulting in the ad- judication of insolvency. Woodruff v. H. B. Claflin Co. (N. Y.), 19-791. f. Judgment. Wron^...'nl entry against executors personally. — A judgment in an action against executors, on a claim against the de- cedent, which is entered against the defend- ants personally, will be modified so as to make the defendants liable in their capacity as executors. Clayton v. Dinwoodey (Utah), 14-926. EXECUTORY CONTRACTS. Assignability, see Assignments, 1 b. EXECUTORY LIMITATIONS. Limitation over as affecting operation of rule in Shelley's case, see Shelley's Case. Rule in. Executory devises, see Wills, 8 c (10). EXEMPLARY DAMAGES. See Damages, 4. EXEMPTIONS. See Executions, 5; Taxation, 12. Contract exempting railroad from liability for fires, see Fibes, 3. Compensation of personal representatives, see Executors and Administrators, 13. Exemption from arrest on civil process, see Extradition, 5. Exemption from jury duty, see Jury, 3. Gas companies exempt from license tax as manufacturers, see Gas and Gas Com- panies, 3. Homestead exemptions, see Homestead. Liability to civil process, see Summons and Process, 3. Necessity of setting up exemption in garnish- ment proceedings, see Garnishment, 4. Operation of license laws, see Havkers and Pedplebs, 4, TtO ANI^L CAS. DIGEST, VOLS. i-->0. Particular ofiScers exempted' from civil ser- vice rules, see PuBuc Officebs, 3 a (3), Property exempt from admiiiisti-ation, see _- EXecdtoes aud Administbatoks, 6. Eight of nonresident defeiidant to exemptions under domestic statiite, see Gabnish- MENT, 3 a. Succession taxes, see Taxation, 13 b (2) (c). Taking testimony of absent witness, see ■ Depositions, 3. Taxation of corporations, see Taxation, 11 g. Veterans of civil war exempted from license taxes, see Licenses, 3. EXHIBITIONS. EXPERIENCE. Judicial notice of matters of commoil fexpeH- ence, See EviCence, 1 i. " ■• •■ Testimony as to experience in similar bases, see Cbiminal: Law, 6 n (:T ) . EXPfRIlHENTS. See Akson, 4; CeiminaL Law, 6 n (1) ; Evi- dence, 6; HoMielBE, 6 « (1). ■ Admissibility in criminal cases, see CRIMINAL .Law, 6 n (8). ... Permitting jury to make experiments, see tBIAL, 7. See Thbatbes and Pubuc Resobts. State fairs, see States, 11. Suppression of awards, seb Equitt, 2 f. EXPERT AND OPINION EVIDENCE. See Evidence, 8. EXHIBITS. Reference to exhibits in pleading, see Plbiad- - ing, 3 e. Takltig exhibits to jury room, see JtrftT, 7 d (3). Variance between pleading and exhibits, see PrEAMNG, 10. EXIT. Duty of carrier to provide safe exits from stations, see Cabbiebsj 6 e (3). EXONERATION. See Bail, 8. Effect of exoneration clause in mortgage, see Limitation of Actions, 4 a (2) (a). EX PARTE. Appeal from ex parte orders, see Appeal and Ebbob, 4 a. Nature of condemnation proceedings, see Eminent Domain, 9 b. EXPECTANCY OF UT±. Proof by expert testimony, see Evidence, 8 b (3). EXPENSES. Allowance to guardian ad litem, see Infants, 3 f (3). Duty of county judge to keep account of ex- penses, see Judges. 3 a. , Payment of expenses of jurors, sfee Juby, 4 e. Right of public oflScers to incur expenses, see Public Officers, 5 c. EXFIrANATION. Necessity of explaining plea of guilty to ac- • cused, see Cbiminax Law, 6 j.(l). EXPLOSIONS AND EXPLOSIVES. 1. Stoeing ob Keeping Explosives, 770. a. In,gener£Ll,.770. b. When possessibn constitutes nui- sance, 771. 2. Sale of Explosives, 771. 3. Shipment of Explosives, 772. 4. Blasting, 772. 5. Disghabge of Fibewobks, 772. 6. Actions FdR Injubies CAtiSEb by Explosives, 773. a. Pleading, 773. b. Evidence and burden of proof, 773. c. Charge of court, 773. Explosion clause in fire policy, see Insur- ance, 5 g (10); Lien tor explosives furnished for excavating, see Mechanics' Liens, 4. 1. Stobinq oe Keeping Explosives. a. In general. , Negligence in storing or keeping. — Independent of the question of nuisance, neg- ligence in the storing.^or keepi^ig or allowing or causing an explosion of dangerous explo- sives makes one liable for the resulting dam- ages. Whaley r. Sloss Sheffield Steel, etc., Co., (Ala.),. 20-822. Limitation at rule. — The rule that one handling dangerous articles miisl fesp6nd in damages ioi:,the,..jni|Vtriea occa8ionei,tUe«l5y ia, limited t

nuisance when it would not be were there the same quantity of any one of the different kinds. \Yhaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. Place or locality of storage. — The place or locality may determine the question of nuisance in keeping or storing explosives. Whaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. Storage in city. — Whether the storing or keeping of explosives in a city constitutes a nuisance depends on the quantity and kind of explosives kept, the purpose and length of time for which they are kept, the kind and character of the magazine or house in which they are kept, and what protection is afforded by the mode of keeping. Whaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. A count for the explosion of dynaniite merely alleging the storing or keeping of large quantities of dynamite dr othei: explo- sives in a thickly settled portion of a city, in proximity to many buildings and persons, does not show a nuisance per se. Whaley i;. Sloss Sheffield Steel, etc., Co. (Ala,), 20-822. Storage near durelling house. — The mere possession of explosives by a person who is using them in his business is hot unlawful, but no person can store them so near to a dwelling house as to endahgei: its occupants without being guilty of maintaining a nui- sance, private or public. H. S. Kerbaugh v. Caldwell (U. S.), 10-453. The keeping of explosives in large quanti- ties in the vicinity of a dwelling house is a nuisance per se, and may be abated by an action at law or ah injunction in equity, and if an actual injury results therefrom the per- son keeping the explosives is liable therefor, even though the injury is not chargeable to his .personal negligence. K. S. Kerbaugh v. Caldwell (U. g.), 10-453. Storage on island. — The storage on an island in a navigable river, the title to which island is in the state and the riparian own- ers, of a Jarge quantity of dynamite by a United States government contractor, to be used in deepening the channel of the river, and which according to past experience is liable to explode to the damage of adjacent property and boats plying near by, consti- tutes a nuisance, and will be enjoined. Hen- derson y. .Sullivs^n (U. S.), 14-590. Iiiability where storage constitutes nuisance. — Where explosives are stored or kept in such quantities, of such kinds, in such locations, for such time, and for such purposes, as to constitute per se a nuisance, the one so creating or continuing the nuisance ia liable for damages resulting, independent of the question of negligence. Whaley r. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822, VVhere the storing of large quantities of explosives in a magazine near a private dwelling constitutes a nuisance, the person maintaining the nuisance is liable for per- sonal injuries sustained by the occupant of the dwelling in consequence of an explosion. H. S. Kerbaugh v. Caldwell (U. S.), 10- 453. Question of nuisance for jury. — In an action to recover damages for personal injuries sustained by the plaintiff in conse- quence of an explosion, where the evidence shows that before the explosion the defend- ant had stored large quantities of highlj' explosive materials' within a ' thousand feet of the plaintiff's dwelling house, and that the force of the explosion was so great that the plaintiff was thrown from the chair in which he was sitting in his dwelling, it is for the jury to determine whether the act of the de- fendant in so storing the explosives consti- tuted a nuisance. H. S. Kerbaugh v. Caldwell (U. ^.), 10-453. Injunction to prevent storage. — Where it appears that a highly important public work in deepening the, channel of a naviga- ble river cannot be carried on by. the con- tractor without the storage of dynamite on a certain island in the river, and that a rea- sonable amount of dynamite can be stored there without injuring persons or property in the vicinity, and to the great interest of the public in improving the river, an injunc- tion at the suit of an adjacent property owner against the storage oif any dynamite at that point will be refused, but an iiijunc- tion will be granted against the storage of dynamite there in such quantities as to create danger to the complainant or his family ov to the real or personal property owned hy him. Henderson v. Sullivan (U. S.), 14-590. 2. Sale of Explosh'es. Iiiability for injury to third person. -4.1n an action against the manufacturer of champagne cider to recover for injuries re- ceived by an employee of the purchaser due to the explosion, of a bottle of the cider, as no contractual relation existed between the manufacturer and the injured person, in order_ to warrant a recovery by him for such injuries the defendant must have had knowl- edge of the dangerous character of the article sold., O'Neill J!. James (Mich.), 5-177. In an action to recover for injui;ies caused to an employee of the purchaser by the ex- plosion of a bottle of champagne cider, where 772 ANN. CAS. DIGEST, VOLS. 1-20. it appears tliat the plaintiff knew that the champagne cider, as ordinarily manufactured and sold, was charged with a gas, and there is no evidence from which it may be in- ferred that the defendant had knowledge that the bottle was improperly charged, and it appears by the evidence that the apparatus used in charging the bottle was a proper one, it is the duty of the court to direct a verdict in favor of the defendant. O'Neill ('. James (Mich.), 5-177. Iiiability of manufaotiirer to retail purchaser. — A manufacturer who know- ingly makes and puts upon the market a highly dangerous article not containing in- trinsic evidence of its dangerous character, without notice by label or otherwise of its dangerous nature, fails in his duty to such persons as purchase it, and is liable jointly with a retailer who sells the article knowing but not disclosing the dangerous nature, to a person injured thereby. Accordingly, a dec- laration in an action against the manufac- turer and retailer jointly is not demurrable for misjoinder of actions and parties. Cle- ment V. Crosby & Co. (Mich.), 12-265. 3. Shipment of Explosives. Dnty of shipper to disclose nature. — It is the duty of a shipper who delivers ex- plosives or other dangerous goods to a car- rier for transportation to disclose fully to the carrier the nature of the goods before the shipment is made, and if he fails to do so he will be liable in damages for resultant in- juries to the vessel or its cargo. Inter- national Mercantile Marine Co. v. Fels (U. S.), 18-18. What constitutes sufficient disclos- ure. — In such an action, evidence examined and held to show a sufficient disclosure by the shipper of the nature of the goods prior to the shipment, so as to relieve him from lia- bility; International Mercantile Marine Co. V. Fels (U. S.), 18-18. 4. Blasting. What constitutes. — In a prosecution for the violation of a municipal ordinance requiring blasts to be securely covered so as absolutely to prevent all danger to persons or property, the technical distinction between a blast and what is called a " spring " shot is immaterial, as the ordinance is intended to protect against the danger of all discharges of powder commonly understood as blasting. Spokane v. Patterson (Wash.), 13-706. When blasting constitutes a nui- sance. — Blasting operations carried on con- tinuously for a year or more upon lots platted for city purposes, and resulting, from the quantity of explosives used, in injuries to other property, constitute prima fade a nuisance, and those maintaining the same will be held liable, even though no negli- gence on their part be alleged or proved, for damages to the premises of another occa- sioned by the vibrations of the earth or con- cussions of the air resulting from the blast- ing. Longtin v. Persell (Mont)., 2-198. Damages from concussion. — A prop- erty owner may recover for damages result- ing from concussion or vibration of the earth or air caused by blasting on adjoining prem- ises, though no physical substances are thrown on the plaintiff's property and the defendant is not guilty of negligence. Hickey V. McCabe (E. I.), 19-783. Injunction to restrain. — An injunc- tion will issue to restrain blasting on the de- fendant's premises in the construction of a canal, by which rocks are continuously thrown upon the plaintiff's premises, al- though there is no proof that the blasting is negligently done, and none of the occupants of the plaintiff's premises have been liurt, and the defendant gives a warning signal be- fore every blast. Central Iron, etc., Co. c. Vandenheuk (Ala.), 11-346. Acts of independent contractor. — On who employs an independent contractor to construct a wagon road through an unin- habited and practically untraveled mountain- ous region, the contractor having full control of the work, is not liable for the negligent manner in which the employees of such con- tractor blow out a stump in the course of the projected road, which causes the death of a person who happens to be in the vicinity of the explosion. Houghton v. Loma Prieta Lumber Co. (Cal.), 14-1159. Iiiability of railroad company for thi'Diving rock on adjoining land. .— A landowner who sells to a railroad company a right of way through his land cannot re- cover for injuries to the land, or to crops, fences, or buildings thereon, caused by rock thrown on the land in consequence of neces- sary blasting done in a prudent and proper manner; but he may recover for the failure of the railroad company to remove such rock in the shortest time in which it can be re- moved, and with the least injury to the land. Hord V. Holston River R. Co. (Tenn.), 19- 331. Measure of damages for failure to remove rock. — The measure of damages for the failure of a railrsad company to re- move from land through which the road runs rock thrown thereon in blasting is the cost of such removal with interest on the amount from the time that the rock should have been removed. The owner is not entitled to re- cover as for a taking of the land on the theory that it would cost as much to remove the rock as the land is worth, nor is he en- titled to the rental value for the time that he was deprived of the use of the land by rea- son of the rock so thrown on it. Hord v. Holston River R. Co. (Tenn.), 19-331. 5. DiSCHABOE OF FiBKWOBES. When a nuisance. — The discharge of fireworks in a street of a densely populated city may well constitute a nuisance per se; but it is not necessarily illegal to exhibit a display of fireworks in an open space like a park, where the exhibition, if conducted with care, involves no serious danger to persons or property. Crowley v. I^chester Fire- works Co. (N. Y.), 5-538. EXPLOSIOKS AKD EXPLOSIVES. 713 A display of fireworks, in celebration of a public occasion, given by permission of the city of New York, in a wide street bordering on a, park seven acres in extent, by skilled experts under the control of the maker of the fireworks, who is a manufacturer of high re- pute, and for a great number of years has given similar displays without an accident, may be found by the jury to be a nuisance as a matter of fact, but is not a nuisance per se, rendering the city liable for injuries caused by the explosion of a mortar used to send up bombs, and which was carefully tested prior to use and found to be in sound condition. Melker v. New York (N. Y.), 13-544. Negligence a question of fact. — In an action to recover damages for personal injuries sustained through the setting off of fireworks, the question of negligence in con- ducting the exhibition held to be for the jury. Crowley i'. Rochester Fireworks Co. (N. Y.), 5-538. 6. Actions fob Injuries Caused bt Ex- plosives. a. Pleading. Allegation, as to kind of explosive. — As it might be safe to keep one hundred or one thousand pounds of one explosive ar.c'. dangerous to keep fifty pounds of another explosive, a complaint for explosion should not allege, in the alternative, the keeping of dynamite " or other explosives." Whaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. Failure to allege negligence or nui- sance. — A count for the explosion of dyna- mite, not alleging any negligence or action- able wrong in the storing, keeping, or explo- sion thereof, and not alleging sufficient facts to show that the storing or keeping of it was a nuisance per se, is insufficient. Whaley v. Sloss Sheffield Steel, etc., Co. (Ala.), 20-822. Allegation of defendant's duty. — In an action against a manufacturer of stove polish for injuries caused by an explosion of the polish wliile being used, a declaration al- leging that it was the duty of the defendant to know the properties of the polish manu- factured by it, and that it should not manu- facture and sell a dangerous and highly in- flammable substance of such composition and character as to be liable to ignite, explode, or spontaneously burn, and should not de- ceitfully withhold information of such dan- gers from the public, is a sufficient allegation of the defendant's duty although it does not allege that all of the defendant's product was of such dangerous character. Clement v. Crosby Co. (Mich.), 12-265. Allegation of scienter. — If in such an action an allegation of scienter is necessary, it is necessarily implied by the allegation of deceitful and artful withholding from the public of knowledge of the dangerous char- acter of the substance. Clement v. Crosby & Co. (Mich.), 12-265. Allegation of failure to give xrarn- ing. — In such an action, a want of warn- ing by the defendant as to the dangerous character of the stove polish is sufficiently pleaded by an allegation that the defendant placed it upon the market, at the same time deceitfully and wilfully concealing from the public its dangerous elements and properties, and that these properties are such as to make the substance liable to spontaneous combus- tion and explosion. Clement v. Crosby & Co. (Mich.), 12-265. h. Evidence and burden of proof. Evidence of negligence on prior oc- casions. — In an action to recover damages for personal injuries sustained by tlie plain- tiff in consequence of an explosion, where the plaintiff charges that the defendant was guilty of maintaining a nuisance in the stor- ing of the explosives, it is competent for the plaintiff to introduce evidence to show that the stove in one of the magazines was red hot on a date a few days prior to the explosion and on a date in the month preceding the month of the explosion. The plaintiff may also introduce evidence relating to th"? quan- tity and character of the explosives stored in the magazines. H. S. Kerbaugh v. Caldwell (U. S.), 10-453. Sufficiency to show negligence. — In an action to recover damages for personal injuries to children caused by an explosion on the defendant's premises, evidence held sufficient to justify the jury in finding the defendant negligent and the children free from contributory negligence. Mattson c. Minnesota, etc., R. Co. (Minn.), 5-498. Effect of explosion on surrounding objects. — In an action for damages caused to a building by an explosion, it is competent to sliow the effect of the explosion on an- other building in the immediate neighbor- hood. Linforth v. San Francisco Gas, etc., Co. (Cal.), 19-1230. Burden of proof on plaintiff. — Each count of the complaint in an action for dam- ages for injuries caused by an explosion being based on some actionable negligence of the defendant, a charge that the burden of proof is on the plaintiff to show that the explosion occurred because of the defendant's negli- gence is proper. Whaley v. Sloss-Sheffield Steel, etc., Co. (Ala.), 20-822. Burden of proving failure to dis- close. — In an action in admiralty by the owner of a vessel to recover damages for in- juries to the vessel alleged to have been caused by the explosion of goods shipped bv the defendant, where the libel alleges that the defendant failed to inform the libelant of the dangerous character of the goods, as required by the common law and by pro- visions in the bill of lading, the burden of proving that allegation is upon the libelant. International Mercantile Marine Co. c. Fels (U. S.), 18-18. c. Charge ol court. Explosion which could not have been averted. — Each count in an action for damages for injuries caused by an explosion liaving attributed it to some kind of negli- gence, it is proper to instruct the jury to 774 ANK CAS. DIGEST, VOLS. 1-20. find for the defendant if they believe from the evidence that the explosion could not have been anticipated or averted by human foresight. Whaley v. Sloss-Sheffield Steel, etc., Co. (Ala.), 20-822. An instruction, in an action for damages for injuries caused by an explosion, to find for the defendant if the jury believe from the evidence that the explosion would probably have occurred regardless of whatever means might have been employed, and that the magazine was located at a " proper " place, is proper, the location of the magazine and the manner of storing being material in- quiries, and the use of the word " proper " being better than " not an improper." Whaley v. Sloss-Sheffield Steel, etc., Co. (Ala.), 20-822. Cause of explosion in donbt. — Where in an action for damages for injuries caused by an explosion each of the counts alleges some one or other cause for the explosion, an instruction to find for the defendant if from all the evidence the jury find that the cause of the explosion " lies wholly within the realm of conjecture and doubt " is proper. Whaley v. Sloss-Sheffield Steel, etc., Co. (Ala.), 20-822. Direction of verdict for defendant. — In an action against a vendor by a third person injured by the explosion of an article sold, evidence held to warrant the trial court in directing a verdict for the defendant. O'Neill V. James (Mich.), 5-177. EXPOSITIONS. State fairs, see States, 11. Suppression of awards in equity, see EQUITY, 2 f. EX POST FACTO LAWS. EXPRESS TRUSTS. See Trusts and Trustees, la (1). EXPBESSIO UNIUS EXCLUSIO EST ALTERIUS. Application to construction of statutes, see Statutes, 4 b. Application of statutes of limitation, see Limitation of Actions, 1 c. EXPROPRIATION. See Eminetnt Domain. EXPULSION. Members of legislatures, see States, 3. Members of societies, see Socieiies and Um- incobporated Associations, 2. Pupils in public schools, see Schools, 8 b. EXTENSION. Extending term of lease, see Landlord and Tenant, 3 e. Time of payment extended by agent, see Agency, 3 a (2). Time to appeal, see Appeal and Eeeob, 7 a. EXTINGUISHMENT. See Basements, 3. Purchase of fee by owner of ground rent, see Ground Rents, 2. Change of punishment after conviction, see Criminal Law, 7 c (1). Statutes providing for increased punishment of habitual criminals, see Criminal Law, 7 a. EXPOSURE. Exposing goods for sale, see Hawkers and Peddlers, 2. EXPRESS COMPANIES. Combination of railroad and express com- panies as violation of anti-trust law, see Monopolies and Corporate Trusts, 3 b. Duty to servants respecting cars and tracks not under its control, see Master and Servant, 3 b. EXPRESS MESSENGER. Express messenger ng passenger, see Car- riers, C d'(ll). EXTORTION. Threats to extort money, see Threats. Collection by officer of fees not dne. — At common law the collection by an officer of a fee before it is due and payable is ex- tortion. State V. Cooper (Tenn.), 15-lllfe. The Tennessee statute prohibiting officers from demanding or receiving fees or com- pensation further than is expressly allowed by law refers not only to the amount of the fees but to the time when they are legally due. State r. Cooper (Tenn.), 15-1116. But even if such statutory provision does not prohibit the collection of fees before they are due, an -officer who collects fees before , they are due is guilty of extortion, as there is nothing in the Tennessee statutes chang- ing the common-law rule in this particular. State V. Cooper (Tenn.), 15-1116. EXTRA ALLO'WANCES. See Costs, 7. EXTRADITION. 775 EXTRADITION. 1. In Genebal, 775. 2. Intkbnational Extkadition, 775. 3. Intebstate Extradition, 775. a. Who is fugitive from justice, 775. b. Right of asylum, 775. 4. EXTRADITION PpOCEEDINQS, 775. a. Indictment or aflSdavit as basis ' for proceeding, 775. b. Duty and authority of executive, 776. c. Review by courts of executive ac- tion, 776. d. Proof of identity of fugitive, 776. «. Arrest and deportation of fugi- tive, 776. 5. Privileges of Person Extradited, ^76. 6. Trial after Extradition, 776. a. For offense other than that for which extradited, 776. b. Right to question validity of ex- jiradition, 777. 1. In General. Application of habeas corpus act. — The English Habeas Corpus. Act does not apply to extradition proceedings. In re Harsha (Ont.), 6-496. Bes judicata, former jeopardy, and autrefois acquit. — The doctrines of res judicata, former jeopardy, and autrefois acquit are not applicable to extradition pro- ceedings. In re Harsha (Ont.), 6-496. 2. International Extradition. Tribunal for interpretation of treaty. — Whpre it is sought to extradite a person from Canada to the United States under the British Extradition Convention, the question whether the crime pomes within the prqvisions of the treaty is a matter for the decision of the Dominion authorities, and by the express terms of the treaty itself such decision is final. Johnson v. Browne (U. S.), 10-636. Repeal of treaty by implication. — The provisions of the Webster-Ashburton treaty with Great Britain concerning extra- dition have not been repealed by implication by the Extradition Convention with that nation. Johnson v. Browne (U. S.), 10-636. 3. Interstate Extradition. a. Who is fugitive from justice. Person leaving state after indict- ment. — A person charged by indictment or by affidavit befoi'e a magistrate, with the commission within a state of a crime dovei'ed 6y its laws, and who after the date of com- mission of such crime leaves the state, be- comes, from the time of such leaving, a fugi- tive of justice within the meaning of the Federal Constitution and laws concerning ex- tradition, no matter for what purpose he leaves the state. Appleyard v. MaSsachu- .setts (U. S.), 7-1073. ■ Person leaving state with consent of authorities. — A person who is in a state when a crime is committed, and, after an in- ^ictmept against hiin fqr such crime has been dismissed wifliput trial, leaves the state, even Witb the knowledge or with the consent of thf ^tate authorities, is a fugitive from jus- tice within tlie meaniijg of the Constitutipin and laVs of the pnited Stateg, and subject to extradition fpr such crime. B9,ssing v. Cady (U. S.), l'3-905. Person not consciously fleeing from justice, -r A person may be a fugitive from justice within the meaning of the provisions of the federal Constitutiori and laws, though at the time he left the demaiidins; state he had no belief that he had viojated its crim- inal laws, and though he did not consciously flee from justice in order to avoid prosecution for the criine with which he is cl^arged. Appieyard v. Massachusetts (U. S.), 7-1073. Question for executive. —' Where the requisition "papers in intei'State ext'radition proceedings show that the accused ' is regil- larly' charged By indictment wife a crinje committed in thfe demanding state, and is a fugitive from thejusticfe of that state, the governor of the" extraditing state is entitled to accept such papers' as ^being prima faJdie sufficient for a warrant of arrest, and his failure to require independtint proof that the accused is a fugitive Cannot be regarded ' as an infringement of any right secured to the accused by the Constitution or laws of the United States. Pettibone v. Nichols (U. S.) 7-1047. ■ ^ . " b. Right of asylum. Nature and source of right. — A fugi- tive from justice, never acquires a personal right to an asylum anywhere, but all such rights as he may claim in thjs respect flow entirely out of the rights of the sovereign in whose territory he has taken refuge to fur- nish an asylum and to refuse tq surrender the criminal except upon such terms as it pleases to impose. Knox v. State (Ind.), 3-539. 4. Extradition Proceedings. a. Indictment or affidavit as basis fpr pro- ceeding. Necessity under federal statute.— The federal -statute relative to interstate extradi- tion makes it essential to the right to' arrest an alleged fugitive from- justice, under a war- rant of the executive- of the state ' where he is found, that such executive shall be fur- nished; ri,efore issuing his warrant, with a copy tof an indictment found or an affidavit made before a magistrate in the demanding state, ch4r.;*irig.tl« fiigitive with crime "cbm- mitted by him in such state. Compton r. Alabamd' (U. S.), 16-1098.^ Affidavit made, before notary public. -- The word '• magistrate," as used , in the statute above meiftioned has reference to any person who is regardp^ as «, magistrate under th^ law of the stale whej-e the-allegpd crime 16-]°M? C(p™ptpn «• Alabama (D. s7), .\s notaries public in the stq,te of G«orgifl, 776 ANN. CAfci. DIGEST, \OLS. 1-20. are ex officio justices of the peace, it follows that an affidavit made before a notary public in that state is an afiSdavit made before a magistrate, within the meaning of the stat- ute above mentioned. Compton v. Alabama (U. S.), 16-1098. Affidavit upon information and be- lief. — An affidavit for arrest in extradition proceedings is sufficient though it is made upon information and belief only. In re Harsha (Ont.), 6-496. h. Duty and authority of executive. No dnty to afford jndicial hearing. — No judicial hearing is required in extradition proceedings before the governor of the state upon whom the demand is made. Farrell v. Hawley (Conn.), 3-874. c. Eeview by courts of executive action. Po'wer to review. — Under the Constitu- tion and laws of the United States relating to Interstate extradition, the obligation of the executive of a state to deliver up a fugi- tive from justice on demand of the executive of another state arises only where the fugitive is legally charged according to the usual course of law with the commission of crime within the state demanding his surrender; and upon habeas cprpus by such person de- manding his release from custody under ex- ecutive warrant issued in pursuance of a requisition, the court will go back of the requisition, and pass upon the sufficiency of the indictment upon which the defendant is sought to be extradited, and by which he is restrained of his liberty, and in case the in- dictment is fatally defective, will discharge the prisoner. In re Waterman (Nev.), 13- 926. Presumption in favor of findings. — The finding of the governor in extradition proceedings that a person whose extradition is requested is a fugitive from justice from the demanding state and was within such state when the crime was committed, will be presumed to have been made on sufficient evi- dence; and where the return in habeas corpus proceedings sets up the order for extradition, a reply merely stating that the accused was not in the demanding state at the time the alleged crime was committed is demurrable. Farrell v. Hawley (Conn.), 3-874. Inquiry into motives of executive. — The Supreme Court of the United States in inquiring into the validity of interstate ex- tradition proceedings will not inquire into the motives which induced the governor of the extraditing state to honor the requisition. Pettibone v. Nichols (U. S.), 7-1047. d. Proof of identity of fugitive. Bnrden of proof. — Where a person arrested for extradition under an executive warrant seeks to be discharged on habeas corpus on the ground that he is not the per- son against whom the warrant is issued, the burden of proving his identity is on the state seeking his deportaiion. Barnes v. Nelson (S. D.), 20-544. Return to warrant as proof. — Where the relator in habeas corpus to test the va- lidity of an extradition proceeding states his true name and denies that he is the person named in the proceeding as " H. alias S.," the return of the officer that he " arrested the above-named relator designated in said warrant " H. alias S." is insufficient to es- tablish the relator's identity as the persons named in the warrant. Barnes v. Nelson (S. D.), 20-544. e. Arrest and deportation of fugitive. Duty of agent of demanding state,— In an interstate extradition proceeding, no obligation is imposed by the Federal Cbnsti- tution or the laws upon an agent of the de- manding state so to time the arrest of the accused and conduct his deportation as to afford him a convenient opportunity to test, before some court sitting in the extraditing state, the question whether he is a fugitive from justice and as such liable to be con- veyed to the demanding state for trial. Pet- tibone V. Nichols (U. S.), 7-1047. Rearrest in subsequent proceeding.— Where a. person arrested in extradition pro- ceedings for forgery is released on habeas corpus on the ground that there is no proper evidence showing the commission of the al- leged offense or identifying the alleged forged document, he may be rearrested in subsequent extradition proceedings for the same offense upon the discovery of further and new evi- dence to supply the deficiencies. In re Harsha (Out.), 6^96. 5. Pkivileges of Pebson Extbadited. Exemption from arrest on civil process. — A fugitive from justice whose return to the state whence he fled has been procured by extradition proceedings based on a criminal charge, cannot be arrested on civil process while within the state by virtue of such extradition and before he has had any opportunity to depart therefrom. An attach- ment for contempt is an arrest on civil process within the foregoing rule, and, con- sequently, a person who has been extradited from a foreign state on a criminal charge, and who is arrested for contempt immediately after being released on bail, without an op- portunity to leave the state, is entitled to be discharged. State v, Boynton (Wis.), 17- 618. Admission to bail pending appeal. — If, in habeas corpus proceedings issued to secure the release of a person ordered to be extradited, the trial court has power to re- lease the person on bail pending an appeal from an order remanding the person, the ac- tion of the court in refusing bail is discre- tionary. Farrell v. Hawley (Conn.), 3-874. 6. Tbiai, apteb Extradition. a. For offense other than that for which ex- tradited. Interstate extradition. — A fugitive from justice when extradited to answer a specific crime may be required to answer a EXTRA HAZARDOUS EMPLOYMENT — FACTORS. 777 different criminal charge before being af- forded an opportunity to return to the state from which extradited. The principles gov- erning international extradition in this re- spect hav« no application to cases of extra- dition between the states of the Union. Knox V. State (Ind.), 3-539. In trying a rendited fugitive against his objection for an offense other than that speci- fied in the requisition, no right secured to him by the Constitution and laws of the United States is denied. Knox v. State (Ind.), 3-539. International extradition. — Under the Webster-Ashburton treaty with Great Britain, and the Extradition Convention with that nation, and the federal statutes, a person who has been extradited from Canada to the United States for a specific offense cannot be punished for an entirely different offense; and this is so though the treaties contain no positive language prohibiting such punish- ment, and though some of the treaties be- tween the United States and other nations than Great Britain do contain such language. Johnson v. Browne (U. S.), 10-636. b. Eight to question validity of extradition. Habeas corpus in federal conrt. — The Circuit Court of the United States when asked, upon habeas corpus, to discharge a person held in actual custody by a state for trial in one of its courts under an indict- ment charging crime against its laws, cannot properly take into account the methods whereby the state obtained such custody; and therefore the Circuit Court will not discharge a petitioner on the ground that by means of a fraudulent conspiracy he was extradited from another state as a fugitive from justice, when he was not in fact such fugitive and consequently was not liable to extradition. Pettlbone v. Nichols (U. S.), 7-1047. A federal court will not, after the inter- state extradition of a person accused of crime, order the discharge of the accused from the custody of the demanding state on the ground that the arrest and deportation were fraudulently so arranged and carried out as to deprive him of an opportunity to establish before the executive or a court of the extraditing state that he was not a fugi- tive from justice, where it appears that it was not shown by proof before the governor of the extraditing state that the petitioner, who was alleged in the requisition papers to be a fugitive from justice, was not one, and it further appears that the accused did not invoke the jurisdiction of any court sitting in the extraditing state to prevent his de- portation, notwithstanding it also appears that the accused had no reasonable oppor- tunity to appeal to the courts for relief be- fore being deported. Pettibone v. Nichols (U. S.), 7-1047. EXTRA HAZABDOVS EMPLOY- MENT. Liability of master for injuries to servant, see Master and Servant, 3 a. EXTRAORDINARY EMERGENCY. Construction of exception in labor law, see Labor Laws, 2. EXTRA SERVICES. Compensation, see Master and Servant, 1 d. EXTRATERRITORIALITY. Effect of foreign decree for divorce, see Divorce, 6 b. Enjoining action in foreign state, see In- junctions, 3 a. Enjoining acts in other states, see Injunc- tions, 2 b. Operation of decree of adoption, see Adoption OF Children. Operation of statutes, see Conflict of Laws. EXTRA WORK. Validity of provisions in building contracts, see Contracts, 4 o. EYESIGHT. Judicial notice of impairment of eyesight by loss of one eye, see Evidence, 1 h. EYEWITNESSES. Necessity of calling all eyewitnesses in crim- inal ease, see Criminal Law, 6 m. ( 6 ) . FACILITIES. Duty of railroad to furnish reasonable and necessary shipping facilities, see Rail- roads, 5 e. Ilequiring railroads to furnish reasonable transportation facilities, see Railroads, 3 a (2). FACTORIES. Employment of children in factories, see In- fants, 4 b. Tobacco factory as nuisance, see Nuisances, 1 b. Validity of statute providing for inspection of factories, see Labor Laws, 1 a. FACTORS. 1. Who Are Factors, 778. 2. Powers, 778. 3. Duties and Liabilities, 778. 4. Advances by Factor, 778. 5. Lien, 778. 118 ANN. CAS. DIGEST, VOLS. 1-20. 1. Who Are Factors. Agent for delivery. — One who, receives a consignment of goods not for sale, but after they have been sold, for the purpose of de- livering them to the purchaser, is not a factor either at commoh la* Or undfer the Maryland statute giving a lien on goods in favor of any person to whom they are intrusted " for the purpose of consignment or sale." Rowland V. Dolby (Md.), 3-643. Under English Factors' Act. — A re- tail jeweler who has been accustomed to re- ceive articles of jewelry from a manufactur- ing jeweler for sale, under a course of business regulated by a letter written by him to such manufacturing jeweler, which letter, after acknowledging that the writer nas from the addressee " on sale or return " the igoods entered up to date in a book in possession of the addressee, and that he is liable to ac- count to the addressee for such goods, states that the "goods referred to in that book mentioned are your property, and to remain so until sold or paid for, they being only left with me for the purpose of sale or return, and not to be kept as my own stock," and that the "goods I receive from you are to be entered at cost price, and my remuneration for selling them is agreed at one-half the profit," is employed as an agent for sale, and is a mercantile agent witliin the English Factor's Act of 1889. Weiner v. Harris (Eng.), 18-87. 2. Powers. Anthority to pledge goods. — A per- son who is a mercantile agent within the English Factors' Act of. 1889 has, as such, implied authority to pledge the goods in- trusted to him, and, consequently, the prin- cipal cannot recover goods pledged by such agent without express authority. Weiner I7. Harris (Eng.), iS-Sl 3. Duties and Liabiuties. Dnty to insnre goods. — Unless a. jactor is , instructed by his principal to insure the goods consigned, or unless an agreement or course of dealing between the parties or a general usage or custom imposes such a duty on the factor, the latter is under no obliga- tion to insure the goods of his principal. B. F. Sturtevant Co. v. Dugan (Md.), 14-675. Where an agreement by correspondence, made between thirty and forty years before the destruction of a consignment by fire, re- quires the factors to pay merely the freight on consignments received by them, the agree- ment, which during all that time has been acted on without modification, being silent as to insurance, a notice stating " stock to be kept covered by insurance for the bene- fit of the consignor," which the consignor claims has been printed in small type at the bottom of invoices sent at long intei;va,ls to the factors, does not, in the absence of evi- dence of assent by the factors tci tKl terms of such notice, have the eflfect of modifying the original agreement so as to impose on the factors liability for a failure to insure the goods cdnsi^ed to them. B. F. Siurte- vant Co. r. Diigan (Md.),, 14-675. Ualility for failnre to follow In- strnotions. — A factor is not liable tor a departure from his principal's instructions unless such instructions are clear and dis- tinct. B. F. Sturtevant Co. v. Dugan (Md.), 14-675. 4. Advances by FAfcioB. Reimbursement on insolvency of principal. — A factor who haSi.mad^ ad- vances on goods consigned to .him: cannot, upon the insolvency of the, principal; ; claim the entire amount, of the advances, , but mUekt first credit the proceeds of the good^ , cout signed, and is. not entitled to interest on the balance due him. Estate of Murphjr (Fa.), 6-308. 5. tilEN. ,' Waiver by surrender ol possession. ^ One . who has the possession of goods loses his factor's lien by .storing tbein with a ware- hoiise company, taking a warehouse receipt in his ovrn name, and delivering the receipt unindorsed to the owner ,of the goods,. thus depriving himself of both actual and' con- structive' possession. liowlaiid i). Dolby (Md.), 3-643. FACIAS. Examination of facts on appeal, see APPEAL AND Ebbob, 12 h. ^AIRS. Expressing subject of statute in Htle, ' ■ StItctes, 3 b. State Fairs, see States, 11. ' , Suppression of a Wards, see EQtfrrt, 2 f. FALLEN BUILDING CLAUSE. See Insurance, 5 g (9). FALSE IMFBISONM£MT. 1. What Constitutes, 778. 2. Persons Liable, 779. 3. Defenses, 779. 4. Evidence, 779. 5. Charge op Coubt, 780. 6. Damages, 780. Sec MALipioys Prosecution. Principal's liability for act of agent, see Agency 3 c. 1. What Constitutes. Arrest for misdemeanor -without warrant. — One who is arrested for a mis- demeanor without a warrant does not waive the irregularity, ai^d preclude recovery for false imprisonment by failing to object to the manner of arrest and pleading guilty to the FALSE IMPR I SOXMENT. 7T1) charge. McOuUough v. Greenfield (Mich.), 1-924. Arrest caused or consented to by plaintiff. — The arrest of a person in pos- session of goods alleged to have beeii stolen is not justified by his refusal to surrender the goods until his title thereto has been lav,-- fnlly determined, and he does not consent to being arrested by saying to an oiBcer who unlawfully demands the goods (copper wire), " Xo, you take me, but you ca,n't take the wire." The court, therefore, in an action for false imprisonment in making the arrest, may properly refuse to charge that the plain- tiff cannot recover if he caused, consented to, or acquiesced in his arrest. Grimes v. Greenblatt (Colo.), 19-608. Delay in taking before magistrate.— When an officer arrests a person under a warrant, the law charges him with the duty of carrying the person arrested before a com- mitting magistrate with reasonable diligence ; but the officer will not be liable to the person arrested, for a breach of this duty, when the delay is occasioned by the conduct of the per- son arrested. Blocker v. Clark (Ga.), 8-31. Absence of probable cause. — In an action for false imprisonment no allegation or proof that the imprisonment complained of was without probable cause is necessary. Southern Ey. v. Shirley (Ky.), 12-33. Effect of discharge irithont trial. — Where one guilty of a felony is lawfully ar- rested therefor by an officer without a war- rant, and is discharged before his detention has become unlawful through an unreasonable delay to procure a warrant or to present him before a magistrate, such discharge does not operate to make the original arrest unlawful, nor does it afford conclusive proof in an ac- tion for false imprisonment that the prosecu- tion was not begun in good faith. Atchison, etc., R. Co. V. Hinsdell (Kan.), 13-981. 2. Persons Liable. Person making complaint to magis- trate. — As to the liability for false im- prisonment of a person making a complaint to a magistrate upon which a warrant is is- sued without jurisdiction, see Rush v. Buck- ley (Me.), 4-318. Judge issuing ivarrant in escess of jnrisdiction. — As to the liability for false imprisonment of a judge who issues a war- rant in excess of jurisdiction, see Rush t\ Buckley (Me.), 4-318. OfKcer making arrest on void nrar- rant. — As to the lialDiiity for false im- prisonment of an officer who makes an arrest on a void warrant or a warrant issued in excess of jurisdiction, see Ilush r. Buckley (Me.), 4-318. Officer arresting wrong person. — As to the liability of an officer for arresting the wrong person ilnder a valid warrant or for detaining such person in custody after knowl- edge of the mistake, see Blocker r. Clark (Ga.), 8-31. Officer assisting in wrongful arrest. — Where an arrest is wrongful in its incep- tion all other officers who assist, even by the mere display of force and without laying their hands oil the prisoner, in the continu- ance of the wrongful imprisonment, are lia- ble for the, full amoUnt of the dainages caused, although they have no knowledge of tlie unlawf uhifess ■ of the iinprisonment and intend to act ill the discharge of their duty. Cook V. Hastings (Mich.), 13-194. Officer and instigator as joiut tort- ftasoi'S. — The liability of one who pro- cures the wrongful arrest of another is not affected by the fact that the officer acts wrongfully in making ■ the arrest. He is a joint' tortfeasor With the officer, and the per- son arrested may sue either or both of them for false imprisonment. Grimes v. Green- Watt (Colo.), 19-608. ItSiti£cation of arrest. — The wrongful arrest, on a charge of larceny, of a person having stolen goods in his possession, though not procured by the owrier of the goods, is yet ratified by him so as to make him liable for false imprisonment, where he afterwards, with full knowledge of the lack of any in- criminating circumstances, endeavors to pre- vent the person so arrested from giving bail and makes a complaint charging him \%itii burglary and larceny. Grimes v. Greenblatt (Colo.), 19-608. 3. Defenses. Ignorance that commitment iras illb- gal. — It is no defense to an action for fals^ imprisonment that the defendants intended only to secure a legal restraint of the plaiii- tiff, and that they did not know that he was confined without a legal commitment, jf he' was so in fact confined. Allen v. Ruland (Conn.), 8-344. Kefiisal of plaintiff to disclose name and business. — The refusal of a person waiting behind a tree on a piiblic street to make an explanation of his presence there, or to state his name and business, to a 'police officer seeking for a person who had coin- mitted a misdemeanor, is not a breach of the peace in the jiresence of the officer justifying an arrest without a warrant, or a defense to an action for false imprisonment for such arrest. Cook.!;. Hastings (Mich.), 13-194. Effect of plea of guilty by plaintiff.— In an action for false iniprisonment in un- lawfully causing the arrest of the plaintiff on a criminal charge, it is no defense that the_ plaintiff pleaded guilty to the charge. Knickerbocker Steamboat Co. v. Cusack (U S.), 19-968. 4. Evidence. Circumstantial evidence. — In an ac- tion for false imprisonment, .direct evidence is not necessary to prove the defendaiii's par- ticipation in the arrest and imprisonment of the plaintiff, it may be inferred froni the circumstances of the case. Griines v. Green- blatt (Colo.), 19-608. Sufficiency to supjiort recovery. Where dhe who has committed grand larceny by fraudulently taking goods of which he is a rso ANN. CAS. DIGEST, VOLS. 1-20. general owner from the possession of a car- rier having a lien thereon is arrested there- for, but is released without having been brought before a magistrate, evidence, in an action for false imprisonment brought by him against the carrier that the carrier's agent in causing his arrest described his offense as running away without paying his bill and said that all the carrier wanted was its money, if accepted as true, does not establish his right to recover. Atchison, etc., R. Co. V. Hinsdell (Kan.), 13-981. 5. Charge of Coubt. Abstract instruction as to probable cause. — The defendant in an action for false imprisonment cannot predicate error on an instruction as to probajble cause, where there is no evidence of probable cause. Grimes v. Greenblatt (Colo.), 19-608. 6. Damages. Wrongful arrest without -warrant. — Where a person is arrested for a misde- meanor without a warrant, damages can be recovered only for the false imprisonment of the person arrested, to the time he is deliv- ered to the officer holding a proper warrant. McCuUough V. Greenfield (Mich.), 1-924. Continuation of original wrong. — The act of the defendant in a false imprison- ment case in appearing before a magistrate and making an unjustifiable charge against the plaintiff is a continuation of the original wrong in causing the plaintiff to be arrested and taken before the magistrate, and there- fore the defendant's liability extends to the detention of the plaintiff under the magis- trate's order. Knickerbocker Steamboat Co. V. Ousack (U. S.), 19-968. Additional damages for handcuffing. — In the absence of anything indicating malice on the part of an officer in handcuffing a prisoner, the latter is not entitled to ad- ditional damages on that account in an action for false imprisonment. McCullough v. Greenfield (Mich.), 1-924. Neurspaper account of arrest. — The publication of an arrest in the newspapers is a probable consecjuence of the arrest, and the fact is admissible in evidence as bearing on the question of damages. Grimes v. Green- blatt (Colo.), 19-608. Condition of jail. — The plaintiff in an action for false imprisonment may show the condition of the jail in which he was eon- fined, and the treatment he received therein, as an element of the damages that he has sustained. Grimes v. Greenblatt (Colo.), 19-608. FALSE PRETENSES AND CHEATS. 1. What Constitute, 780. a. In general, 780. b. The false pretense or representa- tion, 780. c. The property obtained, 781. 2. J0BISDICTION OF OFFENSE, 781. 3. Statute of Limitations, 781. 4. Sufficiency of Indicimbnt ob In- fobmation, 781i 5. Defenses, 782. 6. Evidence, 782. 7. Questions of Law oe Fact, 783. 8. Instbuctions, 783. Larceny distinguished from false pretenses, see Labcent, 1. 1. What Constitute. a. In general. Four essential elements. — The offense of obtaining property by false pretenses con- sists of at least four essential elements. There must be an attempt to defraud, there must be an actual fraud committed, false pretenses must be used for the purpose of perpetrating fraud, and the fraud must be accomplished by the means of the false pre- tenses made use of for that purpose. Claw- son V. State (Wis.), 9-966. Construction of statutes creating offense. — Statutes against false pretenses must be strictly construed, and nothing not within their words will be held within their meaning. In re Waterman (Nev.), 13-926. Necessity of -writing. — A false repre- sentation made by a purchaser, for the pur- pose of inducing and by which is induced the sale to him upon credit of a quantity of cloth, to the effect that he has received an order from a well-known jobbing house of strong financial standing for a large number of garments to be made from the particular kind of cloth in question, is not a repre- sentation as to the purchaser's means or ability to pay, but is a false representation as to an alleged existing fact, inducing a sale or parting with the possession of per- sonal property, and, therefore, need not be- in writing in accordance with the provisions of section 544 of the Penal Code, in order to sustain an indictment for obtaining goods under false pretenses. People v. Rothstein (N. Y.), 1-978. Intent to acquire particular thing obtained. — A false pretense, to be indict- able, must be sufficiently proximate to the obtaining of the goods or money to have amounted to a specific intent to acquire the particular thing obtained. Doxey v. State (Tex.), 11-830. Prosecution of beggar for false pre- tense. — The fact that begging is punish- able under the vagrancy law does not pre- vent the prosecution of a beggar for obtain- ing money by false pretenses. The only effect of one statute on the other is that a conviction under one will bar a prosecution under the other. State v. Swan (Wash.), 19-1129. b. The false pretense or representation. False pretense oanpled -with promise. — The coupling of a future promise with a FALSE PRETENSES AND CHEATS. 781 false pretense does not relieve the false pre- tense of its criminal character. State v. Briggs (Kan.), 10-904. The crime of obtaining property or money by false representations and practices is not committed by a mere false promise without an accompanying false statement of a past or present existing fact, but a false state- ment of such fact may become effective only by being coupled with a false promise; and when this is the case the statement of fact and the promise may be considered as to- gether constituting the false pretense for which a conviction may be had. Morris v. State (Fla.), 14-285. Where the statement of fact and the prom- ise relied on as constituting the crime of false pretenses can be separated, and reliance is placed in part on the former, the promise may be disregarded and the defendant be con- victed on the false statement of fact. Mor- ris V. State (Fla.), 14-285. Giving worthless check. — Under the Indiana statute a false pretense cannot be predicated upon the nonperformance of a future promise or the happening of a future event, and therefore the giving of a worth- less postdated and postpayable check is not a false pretense. Brown v. State (Ind.), 8-1068. A person who presents his personal cheek and obtains credit for the amount thereof without any false representation that he has money on deposit in the bank on which the check is drawn, is not guilty of the crime of receiving money by false pretenses, although he has no funds in the drawee bank, and has reasonable ground to believe that the check will not be paid. Maxey v. State (Ark.), 14-509. Under a statute making it a crime to ob- tain money " by color of any false token or writing or by any other false pretense," no conviction can be had for obtaining money by the mere presentation of a worthless check, where the indictment alleges that the false pretense consisted in that particular act and does not allege that the money was obtained by a false token or writing. Maxey v. State (Ark.), 14-509. Giving worthless mortgage. — A party who falsely and knowingly represents that he owns property that he mortgages to secure a loan of money obtained upon the faith of such representation can be convicted of th^ crime of obtaining property by false pre- tenses. Morris v. State (Fla.), 14-285. False representation as to business or occupation. — A representation that a person is in a business or a situation in which he is not, made for the purpose of defrauding another, and by which money or property is fraudulently obtained, is a false pretense. State V. Briggs (Kan.), 10-904. Obtaining money by means of false and fraudulent representations as to business may constitute the offense, under the Missouri statute, of obtaining money by false pre- tenses, if the representations are made with the intent of deceiving and defrauding and do in fact deceive and defraud the person to whom they are made, though such person fails to exercise the extreme care and pru- dence that a shrewd business man would ex- ercise under the circumstances to ascertain the truth or falsity of the representations by an investigation of the business concerning which they are made, provided the repre- sentations are neither absurd nor irrational. State V. Keyes (Mo.), 7-23. False representation of poverty. — Obtaining money from another as a charity, by false representations as to property and want, is within the penal provisions of a statute against obtaining money by false pre- tenses. State V. Swan (Wash.), 19-1129. c. The property obtained. Promissory note. — A promissory note is " other property " within the meaning of the Wisconsin statute making it an offense to obtain " money, wares, merchandise, or other property," by false pretenses. Clawson V. State (Wis.), 9-966. Real property. — Obtaining real prop- erty by false pretenses is not an offense un- der the Iowa statute making it unlawful to obtain money, goods, " or other property " by false pretenses. State v. Eno ( la. ) ) , 9-856. The Ohio statute (R. S., § 7076) which makes it an offense to obtain by any false pretense, and with intent to defraud, any- thing of value, applies to a, charge of obtain- ing by false pretense, with intent to defraud, title to real estate situate in the state. State V. Toney (Ohio), 18-395. Property to which party charged is entitled. — A person is not guilty of ob- taining property by false pretenses, where the property obtained is only such as the person obtaining it has a perfect and com- plete legal right to receive. Olawson ». State (Wis.), 9-966. 2. Jtjbisdiction of Offense. Money obtained without the state.— The crime of obtaining money by false repre- sentations is committed where the money is obtained, and the court has no jurisdiction where it is shown that the defendant pro- cured a draft to be sent to and paid at a bank outside the state. Bates v. State (Wis.) 4-365. 3. Statute of Limitatiows. In California. — The provisions of sec- tion 801 of the California Penal Code do not apply to a prosecution for obtaining a sum of money less than fifty dollars by false pre- tenses, commenced by complaint in a police court. Ew p. Blake (Cal.), 18-815. 4. Sufficiency of Indictment or Informa- tion. In general. — An indictment for obtain- ing money or other thing of value under false pretenses is fatally defective which fails to allege that the defendant obtained directly or indirectly from the person alleged to have been defrauded or from any one else, any 782 ANN. CAS. DIGEST, VOLS. l^W. money or thing of value by reason of the false representations. In re Waterman (Xev.), 13-926. Definiteness and certainty. — An in- formation charging that the defendant ob- tained a draft for money as a commission for a loan on a farm by the false and fraudu- lent pretenses that he was an agent engaged in loaning money on farms, and that he had much property, was financially responsible, and had a large amount of money under his control, is not bad for failing to state whether the application of the borrower for the loan was oral or written; and there is no error in denying a motion to make the information more definite and certain in that respect. State v. Briggs (Kan.), 10-904. Allegation that representation 'was knowingly false. — In a prosecution for swindling in obtaining money by false repre- sentations, under a statute requiring that the property or money must be acquired by some false or deceitful pretense or device or fraud- ulent representation, an indictment charac- terizing the representation as " false " and "fraudulent" does not by these words al- lege in effect that the representation was knowingly false, and in failing to do so is defective. Doxey «. State (Tex.), 11-830. Oixrnership of property obtained, —r An indictment for obtaining property by .false pretenses must allege the ownership of the property taken, or state some legal excuse for omitting that averment. Territory v. Hubbell (N. Mcx.), 13-848. Character of money frandnlently obtaine^; — An indictment for obtaining money or other thing of value by false pre"- tenses is fatally defective which novyhere al- leges what character of money has been fraudulently obtained. In re Waterman (Nev.), 13-926. _ ,' An indictment for receiving money under false pretenses must describe the money with the same particularity and certainty as is required in an indictment for larceny. Maxey V. State (Ark.), 14-509. Description of person to irhom pre- tenses irere made. — Ordinarily an indict- ment for I obtaining money or property by false pretenses must name the particular in- dividual to whom the pretenses were made, but where the party defrauded is a corpora- tion it is sufficient to allege that the pre- tenses were made to the corporation, without naming any particular individual. Bailey r. State (Alal), 17-623. Setting dnt written instrument. — Where, in a prosecution for swindling, a written instrument is relied on as contain- ing the false representations by which the swindling was accomplished, the entire in- strument must be set out in the indictment where that is essential to show the true pur- pose with which the instrument was written. Doxey v. State (Tex.), 11-830. 5. Defenses. TTnlawful pnrpose of person de- ^randed. -rr ftne xylto: ob(taixis' money from another under a false representation that the money is to be used for the unlawful purpose of bribing an officer to ' dismiss a criminal prosecution against the person paying it, is nevertheless subject to prosecution for theft in obtaining money by a false pretext, under a statute defining the crime as the obtaining of money or property by " any false pretext." Lovell ». State (Tex.), 13-561. 6. EyiDExcE. Value of premises on trhicli loan xraa made.) — In a pTosecution for obtaining a loan on certain premises by means of false pretenses, evidence concerning the value of the premises is relevant as showing what was considered by the lender in deciding whether to lend th^ money. Bates v. State (Wis.), 4-365. Other fraudulent transactions hy accused. — In a, criminal prosecution for obtaining money by false' pretenses, evidence that the defendant had made similar false representations and pretenses to others is admissible' to show his knowledge of the fals- ity of the representatibns made in the ease at bar and his guilty 'intent in making them. State V. Briggs (Klan.), 10-904. In a prosecution for obtaining a pony and cart by false pretenses on a date specified in the indictment, the admission of evidence that the defendant has on other occasions obtained provender from other persons, by false pretenses different from those alleged in the indictment, is erroneous, since such evidence does not show a systematic course of fraud, but merely that the defendant is of a generally fraudulent disposition, and there fore it does not tend to prove the falsity of the representations alleged in the indictment. Where such evidence' has been admitted, a jugdment of conviction must be set aside even though there was suificient evidence of the false- pretenses alleged 'to justify the con- viction, siiice it is impossible to say that the evidence as to the other cases did not influ- ence the jury. 'Rex i;. Fisher (Eng.), 17- 462; Proof of one cf several false pre- tenses alleged. — Though' an indictment for obtaining" money under false pretenses al- leges several pretenses, proof of any one of them is sufiioient to suppol't a conviction. State V. Keyes (Mo.), 7-23! Proof as to kind of money obtained. — On the trial bf an indictment for receiv- ing money under false pretenses, the allega- tions of the indictment must be sustained by proof as to the kind of money described therein. Maxcy v. State (Ark.). 14-509. ' SufiBciency to sustain conviction. — Evidence reviewed, in, a prosecution for ob- taining a promissory note by false pretenses, and held sufficient to show that the defendant "Obtained nothing from the prosecuting wit- ness except what he was entitled to and what should have' been given him upon demand without the representations charged in th^ information t6 be false, and rnsuffieient to phow •■cither that'the prosecuting' whliess wias FALSE KEPOETS — FEDEKAL COUHTS. 783 defrauded or that the representations were made with the intent to defraud. Clawion V. State (Wis.), 9-966. 7. Questions or Law ob Fact. Dnty to investigate ai to truth of representations. — In a prosecution for obtaining money under false pretenses, it is for the court ' to determine* as a matter of law whether a duty rested upon the prose- cuting witness to make an investigation as to the truth or falsity of the representations made to him by the defendant. State v. Keyes (Mo.), 7-23. 8. INSTEUCT10W9. Definition of the oSense. — Where an instruction in a jirosecu^ipn for obtaining money under false pretenses requires the jury to find every essential fact necessary to con- stitute the offense with which the defendant is charged, there is no necessity of any fur- ther definition of the crime, as the terms " false pretenses " and " false representa- tions " are not technical terms. Sta^e v. Keyes (Mo.), 7-23. FALSE BEPOBTS. Liability of bank officers, see Baitks akd Banking, 3 b. FALSE BEFBESENTATIONS. See False Pretenses and Cheats; Fraud AND Deceit. Bankruptcy as affecting liability for false represfentation, see Bankkuptct, 9. Damages for false representations, see Dam- ages, 9 e. FALSE SWEABING. See Perjury. Effect as to insurance policy, see Insubancb, 3 c (3). FALSE WBITINGS. See FoieEKT. FAMILIABITT. Lascivious familiarity as evidence in ineesf ease, see Incest, 4 b. FAMILY. Designation of beneficiaries, see Benevolent .-ob'Beneficiai, Associations, 8 hi. Liability of landlord for injury . to tenant's . .; f., fainily by defective condition of; prem- ,i. ji«e?j,ie«e LAHDIflBD ^i^D TpnamTji 5, -h .■<5). ■ -,■■;■■;■■ ,, ■ ; ■• ,v. ■.-,. .: Residence for family as purpose of home- stead law, see Homestead. Bight to compensation for services as be- tween members of family, see Woeb AND LaBQB. FAMILY HISTOBY. Admissibility in evidence, see Evidence, 3 a. FAMILY BECOBDS. Proof of age, tee Kafe, 2 d (2). FABES. See Carriers, 6 c. Failure to pay fare as ground for ejecting passenger, see Carreers, 6 g. Regulation of ferry fares, see Febbies. FABM. Liability of municipality for injuries in ope- ration of farm, see Municipal Cobpo- EATIONS, 9 b ( 1 ) . FABM LABOBEBS. 1 ■ Breach of contract of employment as crime, see Master and Servant, 2 c. Right to lien, see LniNS. FABM LEASES. See Landlord and Tenant, 5 e. FABMING. What constitutes farming within bankruptcy act, see Bankruptcy, 2. FABBIEBS. Licensing farriers, see Lioxnses, 5. FATHER. Rights and liabilities in respept to children, see Parent and Child. FEAB. Plea of guilty induced by fear, see Cbiuinal Law, 6 j (1). Putting in fear, see Robbeby, 1. FEDEBAL COUBTS. See Courts, 2 b. Power, to, order physical examination, mt Damages, 1. , , 784 ANN. CAS. DIGEST, VOLS. 1-20. FEDERAI. EMPLOYERS' ACT. LIABILITY Effect as denial of due process of law, see Constitutional Law, 9 b. FEMALES. Imputing unchastity to females as libelous, see Libel and Slander, 1 f. Statutory regulation of employment of fe- males, see Labob Laws, 1 a. FEE. FEME COVERT. Ownership of fee in private way, see Peivate g^^ Husband and Wife, Wats. Ownership of fee in streets and highway*, see Stbeets and Highways, 3, 6. FEEBLE PERSONS. Duty of carrier in respect to, see Cabbiebb, 8 » (3). FEES. Amount of fees for railroad charter, see Rail- BOADS, 1. Assignability of fees of public officers, see As- signments, 1 b. Duty of county judge to keep account of fees, see Judges, 3 a. Exaction of fees not due, see Extobtion. Fees distinguished from costs, see Costs, 8. Fees of public officers, see Clebks of Coubts ; Justices of the Peace, 5 ; Public Of- ficebs, 6. License fees, see Licenses. Nonpayment of jury fees as waiver of right to jury, see Jury, 1 e (2). Requiring prepayment of fees as denial of right to jury trial, see JuBY, 1 f. FELLOW SERVANTS. See Master and Servant, 3 f (2). Abrogation of fellow-servant rule, see Master AND Servant, 2 d. Law governing application of fellow servant doctrine, see Conflict of Laws, 6. FELO DE SE. See SciciDC. FELONIOUSLY. Meaning of word " feloniously " as invalidat- ing information, see Rape, 2 a. FELONY. Bailable ofTenses, see Bail, 3. Classification of crimes, see Criminal Law, 1. Fixing punishment as classification of offense, see Criminal Law, 2 a. Killing felon to effect arrest, see Arrest, 1 a. Right to jury trial in felony cases, see Jury, lb(l). FEME SOLE. Validity of judgment against married woman sued as feme sole, see Judgments, 2. FENCES. 1. Fences Inclosing Lands. a. Statutory regulation. b. Malicious erection. 2. Division Fences. 3. Railboad Fences. Compensation for destruction of fences, see Eminent Domain, 7 c (3). Duty of railroad to fence depot grounds, see Railroads, 5 d, 7 a. Duty of railroad to fence track as affecting liability for injuries to persons, see Railboads, 8 a. 1. Fences Inclosing Lands. a. Statutory regulation. Effect of failure to comply with stat- ute. — The Colorado statute providing that no person shall be allowed to recover damages for any injury to crops, grass, etc., unless they were inclosed by a legal and sufficient fence at the time of the injury, does not pre- clude tlic owner of uninclosed land from re- covering for damages done by a herd of sheep M'hieh were wilfully and unlawfully driven and pastured on his land by their owner. Btll i\ Gonzales (Colo.), 9-1094. Construction of exception in statute. — The proviso in a fence statute, that the provisions of the act shall not apply to any hedge fence protecting either an orchard or a building, refers only to hedges which are actually within the terms of the exception to the statvite at the time the proviso is in- voked, and does not include hedges which arc not then, but may at some future time be within such terms. Hill f. Tohill (IlL), 8-423. b. Malicious erection. Right to enjoin. — A landowner cannot maintain a bill for an injunction against the owner of the adjoining land to restrain the defendant from maintaining a fence of un- usual height on his land, on the sole ground that such a fence deprives a building on the plaintiff's land of the light and air coming laterally from such adjoining land. Koble- gard V. Hale (W. Va.), 9-732. FEILE i\ATUR.E — FEKKIES. 785 Action for damages. — It is an action- able nuisance for a person to erect on his own premises a high board fence for the sole pur- pose and with the result of injuriously af- fecting his neighbor by cutting off light and air from the neighbor's windows. Barger v. Barringer (N. C), 19-472. 2. Division Fences. Iiocation. — A partition fence constructed of stumps and about five to five and a half feet wide is a lawful and proper fence, but where such a fence occupies a disproportionate share of the land of one of the proprietors he is entitled to relief. Rose v. Linderman (Mich.), 11-198. Remedy for wrongful erection. — An action of ejectment will lie for the unlawful occupancy of land by building and maintain- ing a partition fence upon it. Rose v. Linder- man (Mich.), 11-198. Covenant running -with. land. — A covenant by a grantee in a deed "to per- petually maintain " a fence of a particular character between the land granted and the remaining land of the grantor is a covenant running with the land, and the grantee of the covenantor is bound to perform such covenant. Sexauer v. Wilson (la.;, 15-54. The covenantor in a deed containing a cove- nant " to perpetually maintain " a division fence is, after parting with the title to the land, not liable for the failure of his grantee to perform the covenant. Sexauer i'. Wilson (la.), 15-54. Substitution of fence for hedge. — Where fence viewers have assigned a hedge to a landowner to be maintained by him as his portion of a division fence, the owner has a right to remove the hedge and substitute therefor a lawful fence of other material without the consent of the adjoining owner. Hillv. Tohill (111.), 8-423. A landowner is not entitled to an injunc- tion restraining the adjoining owner from removing a hedge used as a division fence and substituting a lawful fence of other ma- terial, where the only benefit, enjoyment, or advantage which the complainant derives from the hedge is no greater than that which would be derived from any other lawful di- vision fence. Hill V. Tohill (111.), 8-423. Constitutionality of statute regard- ing maintenance. — The Illinois statute giving fence viewers the power to assign di- vision fences between adjoining owners to maintain, is a valid exercise of the state's police power, and is not unconstitutional as taking private property without due process of law, notwithstanding the fact that under its provisions the fence built by one owner may be assigned to another owner to main- tain. Hill V. Tohill (111.), 8-423. 3. Railroad Fences. Validity of statute requiring cattle guards. — The Mississippi statute making it the duty of railroads to maintain cattle guards is a legitimate exercise of the police power of the state and is not obnoxious to Vols. 1-20 — Axx. Cas. Digest. — 50. the provision of the Federal Constitution pro- hibiting the taking of property without due piocess of law. Yazoo, etc., R. Co. v. Har- rington (Miss.), 3-181. Construction of statute requiring cattle guards. — The primary object of tht Mississippi statute making it the duty of railroads to maintain cattle guards is the protection of crops from the depredations of cattle, and a guard which is ineffective to shut out stock will not be judicially declared a compliance with the statute because it is less dangerous to the traveling public than another kind of guard. Yazoo, etc., R. Co. v. Harrington (Miss.), 3-181. Duty to fence at side track. — Negli- gence cannot be predicated of the failure of a railroad company to fence its tracks at a point which is left unfenced for the purpose of giving shippers access to the side tracks. Chicago, etc., R. Co. v. Campbell (Colo.), 7- 987. In an action against a railroad company to recover for the negligent killing of an animal, where it appears that the killing oc- curred at a point at which the defendant was not required to fence its tracks, and the evi- dence shows that the engineer of the train did everything within his power to avoid in- juring the animal, after discovering that it was on the track, a verdict for the plaintiff is unwarranted. Chicago, etc., R. Co. v. Campbell (Colo.), 7-987. Duty of railroad to keep in repair. — The obligation of a railroad to construct a right-of-way fence as required by, statute is absolute, but, when once constructed in com- pliance with law, the company is bound only to the exercise of reasonable care in main- taining it. Coe V. Northern Pacific R. Co. (Minn.), 11-429. The liability of a railroad company for failure to maintain its right-of-way fence in gcod repair is measured by the rules of ordi- nary care and prudence. Coe v. Northern Pacific R. Co. (Minn.), 11-429. Duty to fence against okildren. — A statute requiring every railroad corporation to erect and maintain fences on both sides of its road suitable and sufficient to prevent cattle, horses, sheep, hogs, and other stock from getting on its track, does not require the construction of a fence sufficient to keep children off the track, and no liability against a railroad company for the killing of a child of tender years while on the company's tracks can be predicated on noncompliance with such statute. Bischof i>. Illinois Southern R. Co. (111.), 13-185. FER.a: NATUR.iS:. Ownership of wild animals, see Animals, 1 a. FERRIES. 1. Ferry Franchises, 786. 2. Ferries between States. 3. Liability fob Injuries to Passen- OEBS, 786. 786 ANK CAS. DIGEST, VOLS. 1-20. License to sell liquor on interstate ferry boat, see Licenses, 2 a. 1. Febby Fbanchises. Transfer. — A ferry franchise may be voluntarily transferred as any other incor- poreal hereditament. Evans v. Krouiin^r (Idaho), 2-691. Construction of bridge as infringe- ment. — The franchise of a ferry is not a grant of an exclusive rigfit to carry across a stream by all means whatsoever, but only a grant of the exclusive right to carry across by means of a ferry; and the construction of a bridge by private enterprise connecting the same highways as the ferry, and causing the ferry owner to lose all the income he formerly received from tolls, is not a disturbance of the ferry, and the feriy owner has no remedy. Dibden v. Skirrow (Eng.), 12-252. Transporting employees and teams. — One who employs a flat-boat or other means of transporting his employees and his wagons and teams across a stream to and from his sawmill, and does not transport any part of the public for hire or compensation, is not en- gaged in operating a ferry and therefore does not infringe an exclusive franchise owned by another to operate a public ferry in that lo- cality. Futch V. Bohannon (Ga.), 19-1032. 2. Ferbies between States. Right to regnlate fare. — The state of Ohio may establish ferries on its side of the Ohio river and fix charges for the ferries to West Virginia, and the latter state cannot punish one acting under such ferry franchise for charging a person coming from Ohio more than is allowed by the West Virginia law for ferriage over the Ohio river. State V. Faudre (W. Va.), 1-104. The validity of the resolution passed by the board of chosen freeholders of Hudson county in 1905, fixing the rates to be charged by cer- tain ferries in Hudson county for the trans- portation of foot passengers from that county to New York, must be regarded as established in the New Jersey Court of Errors and Ap- peals by the decision of that court in Chosen Freieholders D. State, 24 N. J. L. 718. New York Central, etc., E. Co. v. Board of Chosen Freeholders (N. J.), 16-858. The line of later cases decided by the federal Supreme Court ending with the case of St. Clair County v. Interstate Sand, and Car Transfer Co., 192 U. S. 454, has not definitely decided that a state cannot fix rates for fer- riage from itself to another state; and there- fore it cannot be regarded as finally decided in the federal court that tlje decision in 24 N. J. L. 718 ia in conflict with, and is there- fore superseded by, the federal decisions. New York Central, etc., R. Co. v. Board of Chosen Freeholders (N.J,), 16-858. Construction of resolution fixing fares. — The rates fixed by the resolution above mentioned apply only to the passage of foot passengers from Hudson county over tech- nical ferries; and the resolution does not in- clude a fixing of rates chargeable by a raiIi;oad company for a passage by a, railro^id pas- senger over its road and over ferries which, under the Act of 1903, it is operating as jih appendage or extension of its road. N,ew York Central, etc., E. Co. v. Board of Chosen Frep- holders (N. J.), 16-858. Effect of Interstate Commerce Act.— The Interstate Commerce Act of 1887 does not strip a state of any power to fix rates of ferriage which it theretofore possessed. New York Central, etc., R. Co', v. Board of Chosen Freeholders (N. J.); 16-858. ' Effect of treaty betureen states. — The treaty TjetWeen ' New York and New Jer- sey, by which New York has exclusive juris- diction over the waters of the' Hudson riyer, does not afi'ect the question of power to fix ferriage rates involved in tfa^s case. New York Central, etc., R. Co. v. Board of Chdaen Freeholders (N. J.), 16-858. ' ' " ' 3. Liability foe Injubies to Passenqebs. Entering wagon gangway as con- tributory negligence. — A passenger who voluntarily enters a ferry boat by what 'is known as the horse or wagon gangway, that is, the space in the centre of th? boat reserved for the accommodation of horses and wagons in transport, and who passes along such gang- way for the purpose of reaching the front of the boat, although there is nothing to prevent him from passing through the part' of ' the boat intended for passengers, must be held to assume the risk of injury incident to sjich a dangerous place, and if he is injured by fall- ing down a coal hole in the gangway, the ferry company is not liable. Hopkins v. West Jersey, etc., R. Co. (Pa. St.), 17-370. Coal hole in 'wagon gangway. — In an action for personal injuries receivefl by falling into a coal hole on a ferry boat, where the evidence shows that the accident occiiiTed in the day time, as the plaintiff was passing across the wagon gangway of the boat iirime- diately behind a cart, and that there was nothing to hide the hole except the cart, which had been standing at one' side of it, but which moved forward as plaintiiff started to cross the gangway, a judgment of nonsuit on the ground of contributory negligence is proper, the necessary inference being that the plaintiff's failure to observe the hole wis due to his failure to look where he 'Was going. Hopkins v. West Jersey, etc., E. Co. ('Pa. St.), 17-370. ■ FERTII.;ZERS. Fertilizer plant as nuisance, see Nuisances, lb.' ,. ■■ T - •; FETTERS. Requiring convict to be fettered as cruel and unusual punishment, see Crimittal Law, 7a (1). ■ • ■" riCTITlOUS GBAi^TEE — FJlfES. 787 FICTITIOUS GRANTEE. See Deeds, 2 b. FICTITIOUS NAMES. Use of, see Forqeet, 1 a. FIDELITY BONDS. See Bonds. FIDUCIARIES. See Agency; Executobs and Administra- TORS ; Guardian and Ward ; ' Receiv- ers; Trusts and Trustees. Consanguinity as creating fiduciary relation, see Fraud and Deceit, 4. Descriptive words appended to signature to cheek as notice of trustee character of drawer, see Checks, 1. Presumption of undue influence from fiduciary relation, see Wills, 5 c ( 1 ) . Sales between persons in fiduciary relation, see Sales, 1. Tax collector as trustee, see Taxation, 7. FIGHTING. See Assault and Battery, 2 b; Dueling. Bull fighting as nuisance, see Nuisances, 1 b. Killing in mutual combat, see Homicide, 5 b. FINALITY. Finality of judgment as affepting poncluaive- ness, see Jxidgments, 6 c. Finality of judgment or decree necessary to support action, see Judgments, 12. FINANCIAL CONDITION. As affecting damages for assault and battery, see Assault and Battery. As evidence in varioiis actions and proceed- ings, see Breach of Pr,omise of Mab- :^iage; Checks; Embezzlement; Phy- sicians AND Surgeons. Excuse for nonperformance of contract, see Contract^, 5 b (3). Financial irresponsibility as ground for in- junctive relief, see Injunctions, 1 c. FINDINGS. Actions to enforce mechanic's lien, see Me- chanics' Liens, 10. Aider of defects in pleading, see Pleading, 11. Commissioners' findings as res judicata, see Judgments, 6 d (2). Conclusiveness of findings by master, see Master in Chancery. ' Failure of court to make findings as ground for Collateral attack on judgment, see Judgments, 10. Presumptions as to, see Appeal and Erbob, 14 h. Request to find, see Courts, 7 b. FIGURES. Omission of recital of amount in note sup- plied by marginal 'figures, see Bills AND Notes, 1. FILIATION. See Bastabdy. FILING. Claims for mechanics' liens, see Mechanics' Liens, 6 a. Depositions, see Depositions, 5. Indictments and informations, see Indict- ments AND Informations, 1, 2. FILLING BLANKS. Effect of, see Alteration of Instruments, 3. FILUM FLUMINUS. Extent of ownership of land bounded by water- course, see Waters and Watercourses, 3b ^2). FINDING LOST PROPERTY. See Lost Property. FINES. 1. Actions to Recover Fines, 788. a. Collection of fine, 788. b. Seeurity for fine, 788. c. Appeal, 788. 2. Recovery op Fine Illegally Im- posed, 788. ' 3. Remission by Executive, 788. 4. Deatij of Defendant Pending Writ PF Error, 788. 5. Disposition of Fines Collected, 788. Compelling employer to pay fine to labor union, see Labor Combinations, 6. Excessive lines for violating railroad rate law, see Carriers, 2 j. Fine and imprisonment under statute au- thorizing fine or imprisonment, see Criminal Law, 7 b (S), ■ ; ... Imposition of fine as deprivation of property wjthpijt due process of law, see Con- stitutional Law, 9 b. Imposition of fine as punishment for crime see Crtmijtal Law, 7 b (^).' ' 788 ANN. CAS. DIGEST, VOLS. 1-20. Power of governor to remit fine imposed for violation of municipal ordinance, see Pabdon, Reprieve, and Amnesty, 1. Review of order canceling fine, see Appeal AND Ebbob, 2 b. 1. Actions to Recoveb Fines. a. Collection of fine. Duty of sheriff to collect. — The Ar- kansas statute makes it the duty of sheriffs to collect all fines, penalties, and forfeitures adjudged against defendants in Circuit Courts, and county clerks are required to charge sheriffs with all of such fines. Wilson v. White (Ark.), 12-378. b. Security for fine. Bond not complying with statute. — Under the Arkansas statute authorizing a. person convicted of a misdemeanor to give to the sheriff or other officer security for the payment within thirty days of the fine and costs, and providing that the note or bond taken as security when filed with the court rendering the judgment shall have the force and effect of a judgment, a note not made payable to the state and not payable within thirty days does not have the force and ef- fect of a judgment under the statute, but is valid as a common-law obligation and binds the principal and surety for the payment of the amount named therein. Wilson v. White (Ark.), 12-378. A sheriff who takes for a fine and costs a bond not in conformity with statutory re- quirements is not acquitted of liability for such fine and costs even though the bond taken is valid as a common-law obligation, and he is properly compelled to pay the same by the County Court. Wilson v. White (Ark.), 12-378. c. Appeal. Jurisdiction under I Knowledge of intention to affix chat- tels to mortgaged Realty. — The title of a vendor .in k Cofidjtional sale of chattels, as against a prior mortgagee of premises to which the chattels are affixed, is not affected by the fact that the'\^endor knew that the chattels were to be affixed to the premises or were to become additions thereto or substi- tutes for other apparatus then in use, though n .^o^'^g^® provided that it should cover all ' additions" to th6 mortgaged property Cox v. New Bern Lighting, etc., Co. (N Car.), 18-936. "6' ^^>' Delay in recording sale. — Delay in recording a conditional sale of chattels which are affixed to mortgaged llind does not affect the rights of the' condltiondlVt'ndor as against the mortgagee. Cox i: New Bern Lighting, etc., Co. (N. Car.), 18-936. ® When vendor loses title. — The ven- dor, in a conditional sale of chattels, who permits them to be so' affixed to mortgaged land that they cannot be removed without impairinn; the security of the mortgage will not !ip allowed to assert his title as against 796 ANN. CAS. DIGEST, VOLS. 1-20. the mortgagee. Cox r. New Bern Lighting, etc., Co. (N. Car.), 18-936. When right to remove oeaies. — In the absence of an express stipulation to the contrary, a mortgagor in possession has the right to permit trade fixtures to be put up and removed from the mortgaged premises, provided they are removed before the mort- gagee takes possession, but the right of re- moval ceases when the mortgagee takes pos- session. Ellis i;. Glover (Eng.), 13-666. FLAG. Use of flag for advertising purposes, see CON- STrruTioNAL Law, 9 b, 10. FLAGMEN. Duty of railroad to maintain flagmen at crossings, see Railroads, 8 b (4). Duty to stop, look, and listen at crossings protected by flagmen, see Rahaoads, 8 b (8) (b). FLAG STATION. Duty f ti\i tenant and removes the build- ings and goods' of the tenant, he is liable in an action for all damages occasioned by the unlawful '.and forcible entry. Whitney v. Brown (Kan.), 12-768. liTecessi'ty of actnal violence. -^ To constitute a forcible entry within the mean- ing of the Michigan statute it_ is not neces- sary that the defendant should use force in getting into, th§^ house occupied by the plain- tji^., ., Jf the, defendant, although he. enters peacealjly, subsequently evinces his purpose ij} entp.ring.tp have been the expulsion qf the plaintiff, . and actually expels hip) by means of threats, violence, or superior force, the de- fendant's, conduct amounts to a forcible en- try; Mclntyre. I!; Murphy (Mich..), 15-802. If a pe];son, evicting an occupant of land is accompanied by a number of persons, a dis- play . of force, calculated to intimidate and terrify the inmates of such occupant's house, who are terrified thereby, the entry is a forcible one notwithstanding the fapt that no actpal violence is used, toward such inmates. Mclntyre v. Murphy (Mich.), 15-802. 2. When Action Lies. , Reccvery of easement. — An action of forcible entry and detainer , does not lie tci recover ah easement. Moye i\ Thurber (Ala.), 9-^75. . J\,ctio^ by landlord against tenant. — TTrider the. Otegon statute providing, that a tenant shall be deemed as holding unlawfully by force when, after a written notice to quit has been served upon him a specified time before the commencement of an action of forcible entry and detainer, he continues in the possession of the leased premises at the expiration of the time limited in the lease, the notice is not an essential part of the procedure for forcible entry and detainer, but is intended for the absolute termination of contractual relations between tlie landlord and tenant, and therefore the notice may be waived, and when the tenant waives notice he will be deemed as guilty of a wrong by holding thereafter as if the notice had been given. Wolfer r. Hurst (Ore.), 8-725. Action by landlord against stranger. -^ A landlord whose tenant is in possession of leased premises is not an " occupant " of the premises within the meaning of , the Washington statute giving the occupant of real property the right to maintain an action of . forcible entry and detainer, as the word " occupant " refers only to the person in ac- tual possession or occupation. Chezum v. Campbell (Wash.), 7-921. 3. Pleading and Practice. Process. — A summons in forcible entry and unlawful detainer proceedings in the Municipal Court of St. Paul is returnable on the first day of a regular weekly term, being not less than three nor more than ten days from the date of its issuance. Kenny v. Lun (Minn.), 11-60. Trial of title to land. — In Alabkiiia, in an action of forcible entry and detainer be- fore a justice of the peace, neither the ques- tion of title nor the question of the right of entry or of possession is in issue, the gist of the action being the entry and detainer by force and violence, and the ousting firom a peaceable possession, contrary to law; but by virtue of statute, when the suit is removed from the justice's court to the Circuit Court, it is converted into statutory ejectment, and the plaintiff must recover upon the strength of his legal title, " unless he can prove that the defendant, or those under whom he claims, entered on said lands under some contract or agreement between plaintiff, or those un- der whoin he claimed, or by use of force." Moye v. Thurber (Ala.), 9-1175. Amendment of complaint. — A com- plaint in an action of forcible entrjf and de- tainer which alleges an " unlawful entry " may be amended so as properly to aVer an " unlawful , and forcible entry." Wilson v Campbell (Kan.), 12-766. Instructions. — In an action of unlaw- ful detention it is erroneous to instruct the jury that the plaintiff claims that the land was rented to the defendant for a certain year, but that the contract was conditional, and that if that is so he must show a com- pliance with the conditions, where the plain- tiff has alleged and testified that he agreed to rent the land only in the event he failed to sell it, that he did sell it, and that he did not rent it. McElvaney v. Smith (Ark.), 6- In an action of unlawful detainer where 800 ANK CAS. DIGEST, VOLS. 1-20. the defendant claims that he has been evicted unlawfully, if there is nothing to show that the rental value of the land was greater than the price the defendant agreed to pay, an instruction as to damages is erroneous which tells the jury that they may consider the rental value, but does not tell them that there is no room for any damages in respect of the difference between the rental value and the price the defendant agreed to pay. El- vaney v. Smith (Ark.), 6-458. Damages to personal property. — Though in an action of forcible entry and detainer the plaintiff cannot recover damages for being deprived of the possession of the land, he may recover the damages resulting to himself and to his personal property. Mc- Intyre v. Murphy (Mich.), 15-802. _ Recovery for personal injuries. — In such an action it is not error for the trial court to refuse to compel a physician who treated the plaintiff on the day of the at- tempted eviction, the plaintiff having been ill and her illness having been aggravated by such eviction, to state what medicine he gave her, because even if such treatment had some- thing to do with her subsequent condition, the defendant's liability is not lessened or affected thereby. Mclntyre v. Murphy (Mich.), 15-802. FORECrOSUBE. See Chattel Mobtgages, 8; Mobtqages and Deeds or Teust, 13. FOREIGN CONSULS. See CoNSUi.8. FOREIGN CONTRACTS. See CoNFUCT op Laws, 3. Limitation of actions on foreign contracts, see Limitation op Actions, 2. FOREIGN CORPORATIONS. Sec COBPOBATIONS, 13. Applicability of domestic statute, see CoB- POEATIONS, 3 d. Eight to hold stock in domestic corporations, ses COBPOEATIONS, 8 g (2) (b). Right to sue, see Intebstate Commebce, 4. FOREIGN GARNISHMENT. See Gabnishment. FOREIGN JUDGMENTS. See Judgments, 18. Actions on foreign judgments, see Judg- ments, 12. Effect of foreign decree of divorce, see Di- VOBCE, 6 b. Enforcement of foreign decree for alimony, see Aijmont and Suit Money, 4 h. Extraterritorial effect of adoption, see Adop- tion OF Childben. Limitation of action on foreign judgment, see Limitation of Actions, 2 a. Operation and effect of foreign decree for ali- mony, see Alimony and Suit Money, 4 i. FOREIGN LANGUAGE. Latin words in instructions, see Cbiminal Law, 6 q (1). Words spoken in foreign language as libelous, see Libel and Slandeb, 4 e (1). FOREIGN LAWS. 1. Judicial Notice. 2. Peesumptions. _ 3. Pleading. 4. Pbooe. See Conflict of Laws. Presumption as to common law of foreign state, see Common Law. 1. Judicial Notice. Under Arkansas statute. — Under the Arkansas statute providing that judicial no- tice shall be taken of the laws of other states, it is unnecessary, in an action to fore- close a chattel mortgage executed in another state, to prove the laws of such state upon the subject of recording chattel mortgages. Creelman Lumber Co. v. Lesh (Ark.), 3-108. 2. Peesumptions. That common lavr is in force. — In the absence of averment and proof of the law of another state, it must be assumed on a common-law question that the common law is in force in that state. Forsyth v. Barnes (111.), 10-710. Similarity to laxr of fornm. — In an action on a contract entered into in a foreign state, where no evidence is introduced as to the law of the foreign state it will be as- sumed that it is the same as the law of the forum. Farmers National Bank v. Venner (Mass.), 7-690. In an action on a promissory note secured by a mortgage, where it appears that the note and mortgage were executed in a foreign state and were made payable there, but the law of that state is not pleaded or intro- duced in evidence, it will be presumed that such law is identical with the law of the forum on the question of the effect of a con- tract of extension between the mortgagee and the mortgagor's grantee as a release of the mortgagor from liability for the debt, Iowa Loan, etc., Co. v. Schnose (S. Pak.), 9-265. FOEEIGX MAKEIAGE — FORFEJTUEES. 801 statute law as to usury. — There is no presumption that the law of OMother state upon the subject of usury is the same as that of the home state, and in the absence of proof as to the law of the foreign state, the presumptjon is that the common law prevails there and that there is no legal limitation to the rate oi inteiest. Columbian B. & L. Assoc. V. Rice (S. Car.), 1-239. 3. Pleading. Neoesaity of pleading foreign stat- ute. — The existence and terms of the stat- utes of other states eamnot be proven unless pleaded. Columbian B. & L. Assoc, r. Rice (S. Car.), 1-239. Amendimeiit to allege foreign stat- ute* — The trial court may permit a com- plaint to be ameided so as to allow a foreign statute trader which the right of action arises, and such amendment is not open to tbfe objection that it sets up a new cause of aeticta, tKdogh the period of limitation pre- scribed by the foreign statute has elapsed. Lassiter v. Norfolk, etc., R. Co. (N. Car.), 1-456. 4. Pboof. Wbether made to conrt or jary. — In an action against a master to recover damages for personal injuries sustained in a foreign state by a servant during the course of his employment there, it is not erroneous to permit the defendant to introduce in evi- dence before the court, during the absence of the jury, the statutes and the reported de- cisions of the courts of the foreign state, as, while a foreign law must be proved as fact, the proof should be made to tlie court and not to the jury. Christiansen v. William Graver Tank Works (111), 7-69. Testimony of attorney. — A member of the bar of a foreign jurisdiction may be examined as an expert to prove the construc- tion of the statutes and the common law of such jurisdiction. Dimpfel r. Wilson (Md.), 15-753. Conclusiveness of opinion. — The opin- ion of a lawyer called to prove the law of fixtures of a foreign country, where he does not testify to any statute or judicial decision on the subject, but merely gives his opinion on the general law, the authorities being con- flicting, which opinion is based on facts not in the record, is not controlling, and the ap- pellate court will presume that the foreign law on the subject is the same as tlie law of the forum. Gaisaway v. Thomas (Wash.), 20-1337. FOREIGN MARRIAGE. Annulment of foreign marriage, see Mae- BIAGE, 3 c. Effect as constituting bigamy, see Bigamy. Marriage of divorced persons, see Mabeiagb, 1 b. FOREIGN NOTART. Authority to take affidavits, see Affidavits. Vols. 1-20 — Ann. Cas. Digest. — 51. FOREIGN PRODUCTS. Discrimination against foreign products, see Hawkees and Peddlebs, 2. FOREIGN RECEIVERS. See Rbceivees, 5. FOREIGN WILLS. Probate of foreign wills, see Wills, 7 u. FOREIGNERS. See Aliens; Natuealization. Competency as witnesses, see Witnesses, 3 b (7). FOREMAN. Signing indictment by foreman of grand jury, see Indictments and Infobmationb, 8. FORESTS. See Logs and Lumbeb; Woods and FobestS. FORFEITURES. See Penalties and Penal Actions. Abatement of nuisances by summary for- feiture of property, see Nuisances, 5. Acceptance of rent as waiver of forfeiture of lease, see Landloed and Tenant, 3 g. Bail bonds, see Bail, 9. Devise or legacy to be forfeited on contest of will, see Wills, 9 g. Fianchise of railroad, see RaIleoads, 3 b. Law governing enforcement of forfeiiures^,; see Conflict of Laws, 7. Membership in benevolent association for- feited by failure to pay assessments, see Benevolent oe Beneficial Associa- tions, 6 b. ■ Option to purchase demised premises, see Landloed and Tenant, 3 f. Provisions in fraternal benefit certificates, see Benevolent oe Beneficial Associa- tions, 3. Right of tenants to crops growing at time of forfeiture, see Ceops, 3. Right to homestead, see Homestead, 6. Right to renewal of leai-e, see Landloed and Tenant, 3 b (4). Stipulation for forfeiture in contract of sale, see Vendoe and Pueohasee, 2. Waiver of forfeiture in insurance policy, see Insueance, 3 c (4). Waiver of forfeiture, see Benevolent ob Beneficial Associations, 5 b, 6 b. Weapons carried unlawfully, see Weah)ns. Strict construction. — "A clause stipu- lating for the forfeiture of a contract should not be aided or given eflfect by construction 802 ANK CAS. DIGEST, VOLS. 1-20. In a ease where the plain meaning of the language used does not require it." Jensen I-. Palatine Ins. Co., 81 Neb. 523; Haas v. Mutual Life Ins. Co. (Keb.), 19-58. Rule applied to insurance. — " For- feitures are looked upon by the courts with ill favor, and will be enforced only when the strict letter of the contract requires it; and this rule applies with full force t» policies of insurance." Connecticut Fire Ins. Co. v. Jeary, 60 Neb. 338; Haas r. Mutual Life Ins. Co. (Neb.), 19-58. FORGERY. 1. What Constitutes. a. In general. b. Uttering forged instruments. 2. Civil, Eights and Liabilities Abis- INQ Out op Fobgeey. 3. Indictment. 4. Evidence. Liability of bank for payment of forged check, see Checks, 6. Liability of telegraph company for delivery of forged message, see Telegeaphs and Teiephones, 7 c (1) (b). Liability on forged notes, see Bills and Notes, 11 f. Payment of forged check by saving bank, see Banks and Banking, 8 b. Eecovery of payment made on forged instru- ment, see Payment, 4 a. 1. What Constitutes. a. In general. Elements of offense at common lav. — To constitute the offense of forgery at common law, the three following elements must exist : ( 1 ) There must be a false writ- ing or alteration of an instrument; (2) the instrument as made must be apparently ca- pable of defrauding; (3) there must be an intent to defraud. People v. Pfeiffer (111.), 17-703. Statutory definition in Illinois. — The definition of forgery given in paragraph 105 of the Criminal Code of Illinois is, in sub- stance, the common-law definition extended to take in some instruments which were not ' known to the common law. People v. Pfeiiler (111.), 17-703. Forgery in third degree under Ne-nr York statute. — Under the New York Penal Code the crime of forgery in the third degree is committed whenever a person wil- fully misrepresents the sentiments, opinions, conduct, or character of another by means of a false, forged, or counterfeit writing. The statute is intended to cover cases in which the mere representation is the gist of the of- fense as well as other eases in which the act injuriously affects the person whose name is improperly used. People r. Abeel (N. Y.), 3-287. Fraudulently procuring genuine sig- antur^i --. Under the statutes of TUinoU, forgery and obtaining the signature of a person to a written instrument by false rep- resentations or false pretenses are separate and distinct offenses, and, consequently, a person who induces another to sign an ante- dated promissory note, by false representa- tions to the effect that a note previously exe- cuted for the same amount has been lost and that the antedated note is intended to take its place, is not guilty of forgery. People v. Pfeiffer (III.), 17-703. Falsification of account books. — A company incorporated for the purpose of pe- cuniary profit, although having no power to engage in banking, or in loaning money, or in \\ riting insurance, is a " moneyed corpora- tion " within the meaning of that phrase as used in the section of the crimes act (Gen. St. 1909, § 2621) declaring one guilty of forgery who fraudulently makes false entries in the account books of an association of that description. State t-". Chance (Kan.), 20-134. Use of fictitious name. — Forgery may be committed by signing a fictitious name to an instrument. Maloney v. State (Ark.), 18- 480. Name incorrectly vritten. — Where one afiSxes to a note a signature which he in- tends shall be regarded as that of another person, the act is not prevented from being forgery by the circumstance that the name is not correctly written, as where the name Henry Heinis is signed to a note with the intention that it shall be supposed to be the signature of Henry Hein. In such a ease it cannot be said as a matter of law that the difference is so great as to prevent the de- ception of any person of ordinary prudence. State V. Chance (Kan.), 20-114. Use of typcTvriter. — Forgery may be committed by means of a typewriting ma- chine. State -v. Bradley (Tenn.), 8-86. Injury as necessary element. — It is one of the essential elements of an indictable forgery that the alleged forged instrument must show on its face that it would if it were genuine, be of some apparent legal eiTicaey for an injury to a person other than the alleged forger. State v. Cordray (Mo.), 9-1110. The provisions of the alleged forged in- strument considered, in a prosecution for forgery, and held to show that the instru- ment, if it were genuine, would have no legal eflicacy whatever. State r. Cordray (Mo.), 9- 1110. b. Uttering forged instruments. What constitutes. — The uttering of a forged instrument consists in offering it to another with knowledge of its falsity and with intent to defraud, regardless of whether the instrument is received as genuine by the person to whom it is offered, or whether the attempt to defraud is successful. Maloney r. State (Ark.), 18-480. Tendering unindorsed forged check. — Since an equitable title to a check may be acquired without indorsement by the payee, one who knowingly and with intent to de- tvm^ offers 9, forged check t?l finothw U FOKGEEY. 803 guilty of uttering a forged instrument, though the check has not been indorsed by the payee. Maloney v. State (Ark.), 18-480. Forging and uttering as single of- fense. — The making of a forged written instrument and uttering it by the same per- son at the same time as one transaction con- stitute but one offense. State v. Klugherz (Minn.), 1-307. Distinction beivreen making and ut- tering forged instruments abolished. — Under the Illinois statute, there is no dis- tinction between making, altering, or coun- ttrfeiting an instrument with intent to preju- dice, and uttering, publishing, and passing as true and genuine any such forged instru- ment with an intent to damage or defraud, knowing the same to be false, altered, forged, or counterfeited. Every person who is guilty either of making and forging, or uttering and passing, or attempting to utter and pass, un- der the conditions named in the statute, is deemed guilty of forgery. People v. Pfeiffer (111.), 17-703. [See note, 1 Ann. Cas. 308.] 2. Civil Rights and Liabilities Abisinq Out of Forgery. Effect of promise to pay forged note, — When a promise to pay a forged note cre- ates no liability on the part of the prom- issor. Barry v. ICirkland (Ariz), 2-295. Estoppel to deny forged signature. — Where the ostensible makers of a note, hav- ing been notified by the bank that the same has been discounted, abstain from repudi- ating the same as a forgery for several months, they will be estopped thereafter to deny their signatures. Dominion Bank V. Ewing (Ont.), 1-178. 3. Indictment. Sufficiency in general. — Allegations of an indictment considered, in a prosecution for the felonious making of false and fraudu- lent aiBdavits for the purpose of procuring a contract from the United States for the sur- veying of unsurveyed public lands, and held sufficient to show that the indictment charges the offense. Meldrum v. United States (U. S.), 10-324. Setting out forged instrument. — In the absence of any statutory provision to the contrary, an indictment for forgery must, on its face, profess to set out an exact copy of the forged instrument, unless such instru- ment is in the possession of the accused, or is destroyed, or for some other reason is not accessible to the grand jury, in which case the excuse for not setting it out must be dis- tinctly averred. An indictment which pro- fesses to give the words and figures of the fo'-ged instrument in substance only is in- sufficient, even though the copy set out would otherwise appear to be complete. Not only must s^n exact copy be set out, but the indict- ment must profess to set out such a copy. People -v. Tilden (IlL), 17-496. Alleging injury to tbird person. — In 9, proseoutioii for forgery, where the indict- ment sets forth the alleged forged instrument in full, and the instrument shows on its face that if it were genuine it would have m legal efficacy, and there is no averment showing that the instrument could have been made to act injuriously or fraudulently, the indict- ment is insufficient to support a conviction. State V. Cordray (Mo.), 9-1110. 4. Evidence. Self-serving declarations and hear- say. — In a prosecution for uttering a forged note, the defendant cannot testify as to state- ments made by the president of a bank to the effect that a clerk in the employ of the de- fendant had admitted to the president that he had executed the note in question, even though the bank president has since died, as such evidence consists of self-serving dec- larations and hearsay statements. People v. Dolan (N. Y.), 9-453. Proof of other offenses. — On a prose- cution for the crime of uttering a forged in- strument knowingly, with intent to defraud, proof of similar offenses of forgery is admis- sible only as bearing on the intent with which the act for which the accused is in- formed against was done. State v. Murphy (N. Dak.), 16-1133. Proof of similar offenses is such a case is admissible as having a bearing on the in- tent, although the accused admits at the opening of the trial that he signed to the in- strument the name of the person whose name is claimed to have been forged, and knew when he uttered the instrument that he had signed the name of such person to such in- strument. State V. Murphy (N. Dak.), 16- 1133. Proof of similar offenses in such a case is admissible as bearing on the intent, although the jury would be justified in finding a fraud- ulent intent without such proof, if they found that the accused was not authorized to sign the name of the person whose name is claimed to have been forged. State v. Mur- phy (N. Dak.), 16-1133. In a prosecution for uttering a forged note with intent to defraud, knowing it to be forged, where the defendant contends that he did not know that the note was a forgery, the people, for the purpose of showing guilty knowledge on the part of the defendant, may prove the uttering by him of other forged notes, especially where it appears that all the notes referred to in the evidence were made at about the same time, that in each case the note was made payable to the de- fendant and was indorsed by him, that during the period covered by all the notes the de- fendant was endeavoring to raise sufficient funds to meet his obligations, and that in each case he used the name of some person with whom he had done business and with whose affairs he was familiar. People v. Dolan (N. y.), 9-453. It is a general rule that where it is sought to give evidence of other forgeries, the forged documents upon which the evidence is predi- coted must be produced; but in a prosecution fcr uttering & forged note, where, for th? 804 ANK CAS. DIGEST, VOLS. 1-20. purpoae of showing guilty knowledge on the part of the defendant, it is sought to prove the uttering by him of several other forged notes, and the defendant fails to obey an oi'der served on him to produce other notes at the trial, and there is evidence justifying the conclusion that the other notes were all returned to the possession of the defendant in the ordinary course of business, the action of the trial court in permitting the prosecu- tion to give secondary evidence of the con- tents of the other notes will not be reviewed on appeal. People v. Dolan (N. Y.), 9^53. On the trial of an employee on the charge of uttering a note payable to his employer, which he had forged for the purpose of cov- ering up a shortage, evidence that he had forged other notes for the same purpose is competent. State v. Chance (Kan.), 20-164. Proof of fictitious character of name used. — The fictitious character of the drawer of a check is not established by evi- dence merely that no person of that name had an account with or appeared on the books of the bank at the time the check was drawn, there being nothing to show that the bank had never had such a depositor or that diligent inquiry for a person of that name had been made without success in the terri- tory in which the bank had business rela- tions. Maloney v. State (Ark.), 18-480. rOBMA PAUPERIS. Actions by personal representative, see Ex- ecutors AND Administbatoks, 18 a. FORMAL ACCUSATION. Necessity, see Ceiminal Law, 6 g. Application of doctrine to extradition p'to- ceedings, see Extbadition, 1. Ground for discharge on habeas corpus, see Habeas Coepds, 2. FORMER TESTIMONY. Admissibility of testimony on former trial, see Evidence, 3 b. FORMER TRIAL. Discussion of former trial by jurors, see JUBY, 7 d (8). FORM OF ACTIONS. See Actions. FORM OF GOVERNMENT. Constitutional guaranty of republican form of government, see CoNSTiTnTlONAl Law, 12. FORNICATION. Cohabitation as distinguished from occasional acts. — Occasional clandestine acts of incontinence are not within the pur- view oif the Indiana statute (Burns's St. 1908, § 2353 ) punishiiig any one who " co- habits with another in a ststte of adultery or fornication." The word " cohabit " implies a living together as distinguished fi:om occa- sional acts. Richey v. State (Ind.), 19-654. FORMER ACQUITTAL OR CONVICTION. See Cbiminal Law, 5; Homicide, 12. Charging former conviction in indictment, see Indictments and Infobmations, 4. FORMER EVIDENCE. Admission of testimony at former trial as denial of right to confront witnesses, see Cbiminal Law, 6 c ( 6 ) . Proof by bill of exceptions, see Evidence, 3 b. Proof by testimony of magistrate, see Cbim- INAL Law, 6 c ( 6 ) . Proof of death of witness, see Criminal Law, 6n (1). FORUM. See CouBTS; Venue. Application of law of forum to action on foreign judgments, see Limitation op Actions, i a. Law of foruiii, see Conflict op Laws. FOSTER CHILDREN. See Adoption of Childeen. FOSTER PARENTS. See Adoption of Childeen. FORMER JEOPARDY. See Criminal Law, 5; Homicide. 12. Acquittal of receiving stolen goods as bar to prosecution for larceny, see Larceny, 1 a, FOUNDATION. Laying foundation for challenge of jurors, see Jury, 6 c. Laying foundation for contradicting witness, see Witnesses, 5 b (2) (b). J^RACTIONS — FKAUD AND DECEIT. 805 FKACTIONS. Fraction of day as affecting priority of events on same day, see Executions, U. FRANCHISES. See Gas and Gas Companies; Ferries, 1; Street Railways, 4. Appellate jurisdiction in cases involving franchises, see Appeal and Error, 2 a. Collateral attack on franchise, see Corpora- tions, 10 a. Forfeiture for nonuser, see Railroads, 3 b. Franchises as contracts within constitutional protection see Constitutional Law, 15 b. Imposition of franchise tax on foreign cor- porations, see Corporations, 13 c (2). Liquor license as franchise, see Intoxicating Liquors, 4 b. Remedy for usurpation, see Quo Warranto, 3. Right to operate dispensary as franchise, see Intoxicating Liquors, 1. Sale of railroad franchises, see Railroads, 6. Taxation of corporate franchises, see Tax- ation, 11 a. Valuation of franchises on consolidation of corporations, see Gas and Gas Com- panies, 4 c. WAat constitutes. — The grant of an exclusive right to construct a waterworks pliant in a city and to use the city streets for that purpose is the grant of a franchise. Adams v. Bullock (Miss.), 19-165. Amendment, —f An agreement by a city to release a street railway company for a specified term from the obligation imposed by the grant of the railway franchise to pave the street between the tracks is within the requirement of the Virginia statute (Code 1904, § 1033 f, cl. 5) requiring the advertise- ment for ten days of a proposed amendment of a franchise by which the grantee is to be released from the performance of any duty under the franchise. McKennie v. Char- lottesville, etc., R. Co. (Va.), 18-1027. Assignment. — The franchise granting power retains the same control over the fran- chise in the hands of the assignee as in the hi.nds of the original grantee. Evans v. Kroutinger (Idaho), 2-691. The franchise granting power alone can question the right of the assignee of the franchise to exercise its rights and priv- ileges. Evans V. Kroutinger (Idaho), 2-691. Taxation as personalty. — A franchise granted to a waterworks company to con- struct its plant in the city and to use the city streets for that purpose is subject to taxation as personal property. Adams v. Bullock (Miss.), 19-165. FBATEBNITIES. Power of school board to prohibit fraternities in public schools, see Schools, 5 a. FRAUB AWB DECEIT. 1. What Constitutes, 806. 2. Remedies, 806. 3. Pleading, 807. 4. Evidence, 807. 5. Questions of Law or Fact, 807. 6. Instructions, 808. 7. Measure of Damages, 808. See Fraudulent Conveyances. Accrual of cause of action for fraud, see Limitation of Actions, 4 a (2) (a). Admission of allegation of fraud, see Plead- ing, 5 e. Annulment of marriage for fraud, see Mar- riage, 3 a. Ante-nuptial agreement vitiated by misrepre- sentations as to amount of property, see Husband and Wife, 2 b. Bankruptcy as affecting liability for fraud, see Bankruptcy, 9. Character of action for fraud, see Actions. Damages for false representations, see Dam- ages, 9 e. Discharge in bajikruptcy as affecting judg- ment for fraud, see Bankruptcy, 9. Effect of fraud of principal on liability of sureties, see Suretyship, 4 e. Fraud as element of embezzlement, see Em- bezzlement. Fraud of seller as affecting liability of buyer, see Sales, 5 d ( 1 ) . Fraudulent contract to acquire homestead, see Homestead, 2. Fraudulent entry as constituting burglary, see Burglary, 1. Ground for avoidance of release, see Release and Disdhargb, 5 a (2). Ground for avoiding contract, see Conteaots 5 0. Ground for revoking decree of adoption, see Adoption of Children. Ground for revoking decree of divorce, see Divorce, 8. Ground of equity jurisdiction, see Equity, 2 g. Innocent misrepresentations as gi'ound for rescinding contract, see Cancellation AND Rescission, 1. Limitation of actions for fraud, see Limita- tion of Actions, 3. Misrepresentations as affecting liability of carrier for loss of goods, sae Cabbiers, 4d (1). Misrepresentations as defense to specific per- formance, see Specific Performance, 5 c. Prevention of fraud as exercise of police power, see Constitutional Law, 5 b. Recovery of payments induced by fraud, see Insurance, 5 n. Rescission of sale for fraud of purchaser, see Sales, 5 a. Restraining enforcement of judgment ob- tained by fraud, see Injunctions, 2 o (2). Statute of limitations as affected by fraudu- lent concealment of cause of action, see Limitation op Actions, 4 b ( 5 ) , I'sing mails to defraud, see Post Office. 806 ANN. CxVS. DIGEST, VOLS. 1-20. 1. What Constitutes. Expressions of opinion. — Statements by the agent of one bidding for a contract, that his bid for the work is as low as the work can be done and that there is no profit in it at that price, are mere expressions of opinion, or dealer's talk, and do not consti- tirte such false representations as will avoid the contract. Worrell, etc., v. Kinnear Mfg. Co. (Va.), 2-997. Opinions as to the value or quality as false representations. J. H. Clark Co. v. Rice (Wis.), 7-505. Misrepresentations of price paid by vendor. — Misrepresentations of the price paid for property by the vendor or others do not constitute actionable deceit, in the ab- sence of fiduciary relations between the par- ties or of other facts or circumstances giving rise to an express or implied agreement that the price paid shall determine the price in the contract. Beare v. Wright (N. Dak.), 8-1057. Misrepresentation as to area of land. — Where a seller of real estate shows upon the face of the earth its true boundaries to the purchaser, and does not fraudulently dis- suade him from making full examination and measurement, and the estate is not so exten- sive or of such character as to be reasonably incapable of inspection and estimate, and there is no relation of trust between the parties, the purchaser has no cause of action for a misrepresentation as to the area alone. Mabardy v. McHugh (Mass.), 16-500. Intended nse of realty. — A statement of a grantee inducing the execution of a deed to him of a lot, that he intends to erect a dwelling thereon, while in fact he intends at the time to erect a garage thereon, which he immediately proceeds to do, is a statement of a material existing fact justifying the setting ,iside of the deed, though such grantee's in- tention is subject to change in good faith at any time. Adams v. Gillig (N. Y.), 20-910. Nonperformance of promise. — False representations, in order to be fraudulent, must relate to a present or past state of facts, and relief as for deceit cannot be ob- tained for nonperformance of a promise look- ing to the future. J. H. Clark Co. v. Rice (Wis.), 7-505. Inadequacy or excessiveness of con- sideration. — While the inadequacy or ex- cessiveness of the consideration in a contract may be a circumstance tending to establish the perpetration of fraud, it does not of itself, when good faith is affirmatively shown, con- stitute such a fraud or imposition ss will afford grounds for setting aside the contract. Cook V. Bagnell Timber Co. (Ark.), 8-251. Necessity that representations be relied on. — In order to be actionable, false representations made by the seller in a sale must be relied upon by the purchaser, and must be of such a character and must be made under such circumstances as to justify the purchaser in relying upon them. J. H. Clark Co. v. Rice (Wis.). 7-505. Relief will not be granted on the ground of false representations not shown t-o have been relied on as an inducement to conduct re- sulting in injury. Provident Loan Trust Co. V. Mcintosh (Kan.), 1-906. False representations which will constitute the basis of an action, whciher for damages or for the rescission of a contract are such only as in some manner actually mislead the party to his damage." Jakway v. Proudfit (Neb.), 14-258. Necessity tbat false representation be material. — Where a purchaser receives what he actually purchased, and bases his right to rescind the contract on some false representation as to its quality, conditions, or matter affecting its value, he must show that such representation was material, and that he has been misled thereby to his injury and damage. Jakway v. Proudfit (Neb.), 14-258. Necessity that representations be be- lieved. — One cannot be said to be deceived by an alleged false representation, when he admits that he had knowledge of its falsity. Griffin v. Griffin (Ga.), 14-866. Necessity of showing pecuniary in- jury. — A purchaser of real or personal property is entitled to the benefit of his bar- gain, by receiving the identical property pur- chased; and where the vendor, by fraud or false representations, conveys to him or in- duces him to accept something not contem- plated by the contract, he may rescind the sale and recover what he has paid, without showing that he has sustained any pecuniary injury or damage thereby. Jakway v. Proud- fiD (Neb.), 14-258. 2. Remedies. Fraud inducing release of collateral security. — Remedy of a creditor who has been induced by fraud to release a collateral security held by him. Hall v. Alabama Ter- minal, etc., Co. (Ala.), 5-363. Fraud inducing act of duty. — A per- son who has been induced by false representa- tions to do an act which it was his duty to do cannot be heard to say that he was preju- diced by such false representations. Mus- conetcong Iron Works v. D. L. & W. R. Co. (N. J.), 20-178. Jurisdiction of courts of equity. — A court of equity, in eases of actual fraud, has concurrent jurisdiction with a court of law in remedying the fraud; and a remedy in equity is frequently more beneficial than at law, by means of its power to compel dis- covery and to cancel fraudulent deeds and securities, or to cause conveyances to be made, thus eireetually putting an end to future liti- gation. Wagner i: Fehr (Pa.), 3-608. A court of equity held to have jurisdiction to set aside a contract for the conveyance of land and to compel a reconveyance under the fraudulent circumstances of the case at bar, the remedy at law being inadequate. Wagner ■V. Fehr (Pa.), 3-608. Iiaches as bar to relief. — Relief on the gi'ound of fraud will not be granted to one who does not seek it promptly after dis- covery thereof and who with knowledge there- FKAUD AND DECEIT. 807 of retains the fruits of the transaction. Provident Loan Trust Co. v. Mcintosh (Kas.), 1-906. Ferformanoe of contract as bar to relief. — An owner of corporate stock or other personal property who has been in- duced by fraud and deceit to enter into a contract for the sale of the property, waives his right to maintain an action for damages for the fraud if, after discovering the fraud, he performs tlie contract by delivering the property and receiving the purchase price. :\lcDonough V. Williams (Ark.), 7-276. Intent as affecting liability. — In ac- tions for deceit, the intent with which repre- sentations are made is not a controlling fac- tor, but a person will be held to the reason- able consequences of his acts. Hilligas V. Kuns (Neb.), 20-1124. 3. Pleading. Allegation of knowledge and intent. — A complaint in an action at law to re- cover damages for false representations, which does not allege, either expressly or by im- plication, that defendant knew the represen- tations to be false, or that he intended them to be acted upon, is demurrable for failure to state a cause of action. Colorado Springs Co. V. Wight (Colo.), 16-644. Facts constituting fraud. — A bill in equity relying on fraud must state specifically the facts constituting such fraud, and not opinions or legal conclusions; and upon de- murrer every presumption is against the bill. McClinton v. Chapin (Fla.), 14-365. 4. Evidence. Burden of proof. — On an issue whether B party had been induced to sign a contract by fraudulent misrepresentations, the mere failure to specifically instruct the jury that the burden was on him who attacked the con- tract to show that it was so procured, was no cause for a new trial when the court charged generally that the burden of proof lies upon the party asserting the fact and to the existence of whose case or defense the proof of such fact is essential. Central of 6a. R. Co. V. Goodwin (Ga.), 1-806. Similar transactions. — In an action on a promissory note, where the defense is set up that its execution was induced by the plaintiff's false representations, it is errone- ous to admit evidence of similar transactions between the plaintiff and third persons who are in no way involved in the litigation in question. J. H. Clark Co. v. Rice (Wis.), 7- 505. Newspaper articles and circulars. — In an action on a promissory note, where the defense is set up that its execution was induced by the plaintiff's false representa- tions, it is erroneous to permit the defendant to introduce in evidence newspaper articles, circulars, pamphlets, etc., which in no way tend to prove that the defendant was induced by the plaintiff's false representations to ex- ecute the note in suit. J. H. Clark Co. v. Rice (Wis.), 7-505. Statements by plaintiff out of pres- ence of defendant. — In an action on a promissory note, where the defense is set up that its execution was induced by the plain- tiff's false representations, it is erroneous to admit evidence of statements made by the plaintiff to third persons, out of the presence and hearing of the defendant, particularly where such statements were made long after the execution of the note. J. H. Clark Co. V. Rice (Wis.), 7-505. Sufficiency of evidence. — Evidence con- sidered in an action for fraud and deceit al- leged to have been practiced by the defendant upon the plaintiff in the purchase of corpo- rate stock from the plaintiff, and held sufficient to entitle the plaintiff to have the question of the defendant's liability submitted to the jury. McDonough v. Williams (Ark.), 7- 276. Evidence considered, in an action against the maker of a promissory note, where the defense of fraud was set up, and held to show that the court erred in finding for the de- fendant, instead of submitting to the jury for determination, an issue as to whether the defendant, when he negotiated for an exten- sion of the note, had knowledge of the facts and circumstances relied upon by him to establish the alleged fraud. J. H. Clark Co. V. Rice (Wis.), 7-505. Proof of fiduciary relation. — The fact that the plaintiff and the defendant are brothers does not of itself create a confi- dential or fiduciary relation between them. There is no presumption that such relation exists between brothers solely from the fact that they are so related. If a confidential or fiduciary relation exists between brothers, it must be shown by proof, and the burden is on the party asserting the existence of such relationship to affirmatively show the same. Crawford v. Crawford (Ga.), 19-932. 5. Questions of Law ob Fact. Where evidence is conflicting.— Where the evidence is conflicting as to whether one has been fraudulently misled into signing a release of damages for personal injuries, the question is one for determination by the jury. Bjorklund v. Seattle Electric Co. (Wash.), i- 443. Existence of relationship of princi- pal and agent. — In an action for fraud and deceit alleged to have been practiced by the defendant upon the plaintiff in the pur- chase of shares of corporate stock from the plaintiff, where a. sale outright from the plaintiff to the defendant is alleged and proved, but it appears that prior to the sale the defendant had been the plaintiff's agent for the sale of the stock, it is for the jury to determine as questions of fact whether the relation of principal and agent had been dis- solved prior to the sale and whether the cir- cumstances and further transactions between the parties were such as to absolve the agent from disclosing to his former principal, at the time of the sale, facts within his knowl- edge. McDonough v. Williams (Ark ) 7- 8oe Al^K GAS. DIGEST, VOLS. 1-20. 6. Instructions. Theory of case. — In an action for fraud and deceit alleged to have been practiced by tlie defendant upon the plaintiff in the pur- chase of shares of corporate stock from the plaintiff, where a sale outright from the plaintiff to the defendant is alleged and proved, it is erroneous to give an instruction based upon the theory that the defendant acted as agent for the plaintiff in the sale of the stock and that he fraudulently conceajed the price received for the stock and failed to account to the plaintiff for the full price re- ceived. McDonough v. Williams (Ark.), 7- 276. 7. Measure of Damages. Frandnlent purchase of property. — In an action for fraud and deceit alleged to have been practiced by the defendant upon the plaintiff in the purchase of corporate stock from the plaintiff, where a sale outright from the plaintiff to the defendant is alleged and proved, the measure of damages is the difference between the price paid to the plain- tiff for his stock and the actual value of the stock at the time of the sale, if the latter ex- ceeded the former, and evidence is competent to show such actual value. McDonough v. Williams (Ark.), 7-276. Where plaintiff has affirmed con- tract. — In an action to recover damages foi false and fraudulent representations which induced the plaintiff to exchange real prop- erty for stock in a corporation, where it ap- pears that the plaintiff affirmed the contract after discovering the deceit, the measure of his recovery, in the absence of a claim for special or exemplary damages, is the differ- ence in value between what was received or parted with, as the case may be, and what would have been received or parted with had the representations been true. Beare v. Wright (N. Dak.), 8-1057. FRAUDS, STATUTE OF. 1. Operation of Statute, 809. a. Damages for breach of oral con- tract, 809. b. Parol modification of written con- tract, 809. c. Contracts partly within statute, 809. d. Part performance of coptract, 809. (1) In general, 809, (2) Contracts for sale of lands, 810. (3) Agreement to devise land, 810. (4) Recovery of money paid, 810. (5) Contract as measure of damages, 810. (6) Whether statute operates upon contract or upon remedy, 811. 8. Enforcement of Oral Contracts in Equity, 811. 3. The Memobanddm, 811. a. In general, 811. b. Form, 811. c. Delivery, 812. d. Signature of pavtieB, 812. (i) In general, 812. (2) Signature by agent, 812. e. Contents, 812. (1) Names of parties, 812. (2) Description of property, 813. (3) Terjns of sale, 813. 4. Estates in Land, 813. a. Agreements other than contracts of sale, 813. b. Contracts c ' sale, 814. (1) In general, 814. (2) Contracts for sale of grow- ing trees and timber, 814. ( 3 ) Contracts relating to mines, 814. (4) Pp.^'tperphjp contracts, 815. (5) Aspignmejjt pf equitable in- terest in land, 815. (6) Executed contracts, 815, c. Agreemer}t? with agent, 815. 5. Sales by Executors or Administra- TOBS, 815. 6. Promises to Answer for Debt, De- fault, or Miscarriage of An- other, 815. a. Original and collateral promises, 815. b. Contracts of indemnity, 816. c. Joint liability of promisor and third person, 816. d. Oral guaranty by transferrer of negotiable instrument, 816. 7. Representations as to Cbedii or Another, 816. 8. Contracts Not to Be Performed Within a Year, 816. a. Contracts within statute, 816. (1) In general, 816. (2) One-year contracts to com- mence in futurQ, 817. b. Contracts not within statute 817. B. Contracts for Sale of Goods, Wares and Merchandise, 817. a. Contracts within statute, 817. b. Delivery, acceptance, and receipt of goods, 818. (1) In general, SI8. (2) Delivery to carrier as ac- ceptance by buyer, 818. (3) Receipt and acceptance of samples, 818. (4) Part payment, 818. 10. Contracts of Employment, 8J9. 11. Who MAy Invoke Statute, 819, 12. Pleading and Practice, 819. a. Complaint, 819. b. Answer or demurrer, 819. e. Waiver of defense, 819. Application of statute to partition of real es- tate, see Pabtition, 1. As affecting contract of adoption, see Adop- tion of CHILDBBaS. FEAUDS, STATUTE OF. 809 Specific performance of oral contract to con- yey land, see Specific Perfobmance, 3 f (4). 1. Operation of Statute. a. DaiMagSs for breach of oral contract. Contract to conTcy land. — Title to land cannot be aoqxiired by a parol contract, and part perfovniaiice will not take such a contract out of the statute of frauds. But upon breach of the parol promise to eonvej', if it appears that the promisor has received the consideration upon which the promise restsi the value of the land will be estimated and compensation for the breach awarded. Doty V. Doty (Ky.), 4-1064. b. Parol modification of written contract. Validity, in general. — A written con- tract cannot be altered except by a contract in writing or by an executed oral agreement. Halsell V. Renfrew (Okla.), 2-286. Coiitract not -n^itliin statute. — A con- tract not within the statute of traiids may be modified by a subsequent parol agreement. Putnam Foundry, etc., Co. v. Canfieild (R. I.), 1-726. Contract by agent for undisclosed principal. — The rule that an undisclosed principal may sue in his own name upbn a written contract made by an agent in his own name, and that parol evidence is admis- sible to prove the plaintiff's interest, is not affected by the fact that the contract is One which the statute of frauds requires to be in writing. Usher v. Daniels (N. H.), 6-296. Parol agreement to postpone closing of title. — A party to a contract for the sale of land, who knowingly consents by a parol agreement to a postponement of the performance by the other party at the time specified, of some stipulation for his benefit^ cannot, after the other party has acted up'on such consent, avail himself of the default, and treat the contract as forfeited, although the performance of the stipulation at the time specified may have been made of the essence of the contract. Neppach v. Oregon, etc., R. Co. (Oregon), 7-1035. Contract partly in writing. — Where there is a contract of employment between a dentist and his assistant, and the contract is partly in writing and partly verbal, it may be shown that there was a parol stipula- tion binding the assistant not to engage in future competitive practice of dentistry with the eitployer. Turner r. Abbott (Tenn.), 8- 150. Parol evidence to modify lease. — A tenant cannot defend a proceeding for his re- moval by proving a lease for a longer term, required by the statute of frauds to be in writing, where proof of the length of the term of such lease depends entirely on parol evidence: In such a case the requirement of the statute of frauds cannot be relaxed on equitable grounds and a parol agreement be given eilecti where the proceeding is before a tribunal having no equity jurisdiction, and the subsequent conduct of neither of the par- ties indicates the alleged lease for a longer term. Simons v. New Britain Trust Co. (Conn.), 11-477. Oral agreement modifying royalties, — Where an oil lease provides that in con- sideration of the grant therein named, the lessees will yield and pay to the lessors as royalty a certain share of the oil produced and saved from the premises, the parties to the lease may subsequently for a considera- tion increase or decrease the royalty by a parol agreement, and such agreement is not within the statute of frauds. Nonomaker v. Amos (Ohio), 4-170. c. Contracts partly within statute. Void as a wbole if entire, — No action for damages lies for breach of a verbal con- tl'afct for the transfer of corporate stock in exchange for stock in another corporation and for an interest in land, as the contract is entire and indivisible, and being void in part is void as a whole. Todd V. Bettingen (Minn.), 8-960. Alternative provision valid. — Though ii part of a contract for the sale of land may not be binding under the statute of frauds, another part of it, if in the alternative and distinct from the agreement to purchase, such as a provision that either party will pay to the other a named sum if he does not perform his agreement to sell or purchase, may, on the refusal of either party to perform, be enforced against him by the other party. Mercier r. Campbell (Ont), 10-503. d. Part performance of contract. (1) In genera,l. Acts in contemplation of perform- anoe. — Acts which clearly appear to have been such as the performing party would not have performed in the absence of the agree- ment, or without a direct view to its per- formance, are indispensable to constitute the part performance which will take an oral agreement out of the statute. Horton r. Stegmyer (U. S.), 20-1134. Contract for services. — If the holder of stock in a corporation agrees verbally to sell the same at a stipulated price, on con- dition that the purchaser shall give up a lucrative position and enter into the service of the corporation at a fixed salary, and the latter complies with this condition, the con- tract is taken out of the statute of frauds by such performance on his part. Hightower v. Ansley (Ga.), 7-927. Promise to answer for debt of an- other. — A mere collateral promise to an- swer for the debt of another, invalid because not reduced to writing, or because defectively so reduced, is not susceptible of part per- formance as between the principal contract- ing parties so as to afi'ord the collateral promisee a right of action in equity to com- pel the making of a valid guaranty in writ- ing to reform the one defectively made. Ho- well c. Smith (Wis.), 3-773. 810 ANE^. CAS. DIGEST, VOLS. 1-20. Performance of part not -within stat- ute. — Where in a verbal contract for the rendition of services in consideration of a stated sum per day and a certain number of shares of corporate stock to be delivered at a future date, the only feature of the contract within the statute of frauds and unper- formed is that which relates to the delivery of the corporate stock, the executed part of the contract which is not within the statute is not such performance of the contract as to take the unperformed part out of the stat- ute. Franklin v. Matoa Gold Mining Co. (U. S.), 14-302. Doctrine purely equitable. — The doe- trine of part performance of a contract by the buyer, such as by paying the purchase price, obtains only in equity, and has no place in an action at law for damages for breach of the contract. Franklin v. Matoa Gold Mining Co. (U. &.), 14-302. (2) Contracts for sale of lands. What sufficient to -vrarrant specific performance. — What constitutes a sufiS- cient part performance to take a contract for the sale of land out of the statute of frauds and to warant a specific performance. Cooper t. Colson (N. J.), 1-997. When the specific performance of an oral contract for the sale of lands will be decreed for part performance notwithstanding the statute of frauds. Cooper v. Colson (N. J.), 1-997. What part performance sufficient to war- rant a decree for specific performance of a parol contract for the sale of lands. Halsell V. Renfrew (Okla.), 2-286. Evidence reviewed in an action by the pur- chaser to enforce specific performance of a parol contract to sell land and held to show that there was not such part performance by the vendor as would take the contract out of the statute of frauds. Halsell v. Renfrew (U. S.), 6-189. Fart payment and transfer of pos- session. — Part payment and transfer of possession as a sufficient part performance of a parol contract for the sale of lands to war- TAnt a decree for specific performance. Hal- soil V. Renfrew (Okla.), 2-286. Taking possession of part of prop- erty. — Under an entire parol contract for the sale of several parcels of land, the act of the purchaser in taking possession of a part cf the property is such part performance as satisfies the statute of frauds. Tillis v. Fol- mar (Ala.), 8-78. Continuance of prior possession by vendee. — Where the alleged purchaser of land under an oral contract is already in possession as tenant or otherwise, and he merely continues in possession after making the contract, that alone is not sufficient to take the case out of the operation of the statute of frauds. Phillips v. Jones (Ark.), 9-131. Where the mortgagor of land continues in possession after the foreclosure sale, and while in possession he makes a contract with the foreclosure purchaser to purchase the land for a, specified price, and after making such agreement he continues in possession, makes valuable improvements, and pays a part of the purchase price and a portion of the taxes, these transactions, when taken to- gether, constitute such part performance as takes the case out of the statute of frauds, and therefore the mortgagor is entitled to specific performance of the contract. Phil- lips -v. Jones (Ark.), 9-131. Necessity that acts be referable to contract. — In an action by the assignee on an assignment of an interest in mining areas, which assignment is insufficient to satisfy the statute of frauds, where the plain- tiff relies upon acts of part performance to take the case out of the operation of the statute, he must prove acts unequivocally referable in their own nature to some dealing with the subject-matter of the agreement sued upon, before he can introduce evidence of an oral agreement for the purpose of ex- plaining those acts. McNeil v. Corbett (Can.), 10-98. (3) Agreement to devise land. Effect of part performance, in gen- eral. — A parol contract to devise land is rendered unenforceable by the statute of frauds, and the contract is not taken out of the operation of the statute by partial per- formance. Goodloe V. Goodloe (Tenn.), 8- 112. When part performance validates contract. — In case of a parol agreement to devise land, part performance of such a character that the court cannot restore the promisee to the situation in which he was when the agreement was made or compensate him in damages is sufficient to take the case ont of the statute of frauds. Best v. Gralapp (Neb.), 5-491. Delivery of possession to proposed devisee. — A partial performance of an oral contract to devise real property, by delivery of possession of the property to the pro- posed devisee, or by the other like acts which are unavoidably referable to the agreement, will except it from the statute. Horton v. Stegmyer (U. S.), 20-1134. (4) Recovery of money paid. Contract for sale of land. — A vendee is entitled to recover from the vendor, for breach of a parol contract to sell and convey land, so much of the purchase price as has actually been paid. Durham v. Wick (Pa.), 2-929. (5) Contract as measure of damages. Void contract for personal services. — In an action to recover for personal ser- vices under a contract void within the stat- ute of frauds, it is error to instruct the jury that the wage agreed upon by the void eon- tract may be regarded as establishing the rate of the plaintiff's compensation. Mif v. Riibe (Neb.), 4-462. FKAUDS, STATUTE OF. Sll (6) Whether statute operates upon contract or upon remedy. Virginia statute. — The Virginia stat- ute of frauds (Code 1904, § 2840, subd. 6) providing that no action shall be brought on a verbal contract for the sale of land does not make such contracts void, but only takes away the remedy by action. Hurley v. Hur- ley (Va.), 18-968. 2. Enforcement of Oral Contracts in Equity. Contract amounting to trust agree- ment. — Upon clear proof of the existence of a verbal agreement at the time of a con- veyance of realty that the grantee should re- convey the same to certain named parties, a conveyance by the grantee to such parties will be regarded as made in execution of the trust thus created and v?ill be upheld in equity as not affected by the statute of frauds. Collins i: Collins (Md.), 1-856. Reformation of executory contracts, in general. — Courts of equity have power to reform an executory contract which is within the statute of fraxids so as to relieve the contract of the effect of fraud or mistake and to make it speak the truth, but not to insert new and essential elements or matter required by the statute of frauds to be re- duced to writing in order to make the con- tract valid and binding. Allen ». Kitchen (Idaho), 18-914. Supplying description in contract to sell land. — A contract to sell land is not subject to reformation by making a complete description of the premises out of an insuffi- cient and void description, because such re- lief would defeat the statute of frauds by en- forcing a, contract which is void under the statute. Allen v. Kitchen (Idaho), 18-914. When equity will not grant relief. — The doctrine that a court of equity will en- force a contract within the statute of frauds to prevent the statute being used as an in- strument of fraud does not apply if the effect would be essentially to nullify the statute. Eowell V. Smith (Wis.), 3-773. A verbal agreement to make a collateral promise to answer for the debt of another can no more be dealt with in equity to save the collateral promisee from the consequences of noncompliance with the statute of frauds than a written agreement in that regard, which is fatally defective for noncompliance with such statute. Rowell v. Smith (Wis.), 3-773. A cause of action to enforce a supposed valid agreement to answer for the debt of an- other is different from one based on a circum- stance resulting in a supposed valid agree- ment to compel the specific performance of a verbal agreement to make a valid guaranty, or to reform one defectively written, so as to make the same accord with the intention of the parties. Rowel] r. Smith (Wis.), 3-773. 3. The Memorandum. a. In general. What sufficient. — A memorandum for the sale of land considered, in a suit for speci- fic performance, and held sufficient to satisfy the requirements of the statute of frauds. Crotty V. Effler (W. Va.), 9-770. A memorandum of a contract for the sale of lands held sufficient under the Illinois statute of frauds. UUsperger v. Meyer (111.), 3-1032. Vague and indefinite letter. — A let- ter to the surety on an official bond held to be too vague and indefinite in its expressions to serve as the basis of a contract to indem- nify which will satisfy the requirements of the statute of frauds. Craft v. Lott (Miss.), 6-670. A letter whereby the writer agrees to em- ploy the person to whom it is addressed for a period of three years, or for such portion of that period as the employee shall show the ability that he claims to have in per- formance of the work, does not constitute a sufficient memorandum of the contract of employment within the statute of frauds, there being nothing therein by which the standard of ability required of the employee can be fixed without a resort to parol evi- dence. Wagniere v. Bunnell (R. I.), 17-205. Necessity that memorandum be com- plete in itself. — A memorandum to be sufficient under the statute of frauds must be complete in itself and leave nothing to rest in parol. Halsell v. Renf row ( Okla. ) , 2- 286. The memorandum in writing required by the statute of frauds must contain all the material substantive terms of the contract, so that it is not necessary to resort to oral testimony to supply one or more of such terms and to make it complete and definite. Vv'agniere v. Dunnell (R. I.), 17-205. b. J"orm. Copy of resolution at corporate meet- ing. — Where the directors of a corporation organized for the purpose of buying and sell- ing timber lands pass a resolution authoriz- ing the sale of certain lands of that char- acter, and the resolution is duly entered in the corporation's minute book, a copy thereof signed by the president and secretary of the corporation being delivered to the purchaser, tliere is a sufficient written memorandum to satisfy the requirements of the statute of frauds. Western Timber Co. -v. Kalama River Lumber Co. (Wash.), 7-667. Separate writings, in general. — The sufficiency of separate writings to constitute a complete contract binding under the stat- ute of frauds. Halsell v. Renfrew (Okla.), 2-286. A memorandum to be gathered from several connected writings may be sufficient to satisfy the requirement of the Oklahoma statute of frauds that a contract to sell lands must be subscribed by both parties. Halsell r Ren- frew (U. S.), 6-189. Several writings may be taken together to make the memorandum of a contract suffi- cient to satisfy the statute of frauds. Fleeel V. Dowling (Ore.), 19-1159. Where several writings are relied on as to^ i^ether constituting the memorandum re- 812 ANK CAS. DIGEST, VOLS. 1-20. quired by the statute of frauds, parol evi- dence is admissible to explain and connect them. Flegel v. Dowling (Ore.), 19-1159. Correspondence betiireen parties. — Where a contract sued on is within the stat- ute of frauds, and the counsel for the plain- tiff, upon being asked by the court if the plaintiff proposes to offer proof that the agreement was in writing, answers in the negative, the court properly directs a verdict for the defendant, although the counsel sug- gests to the court that there was a corre- spondence between the parties. In any event the action of the trial court in proceeding to judgment will not be reviewed on appeal where the bill of exceptions does not disclose what the correspondence contained. Frank- lin V. Matoa Gold Mining Co. (U. S.), 14- 302. Correspondence and sbipping receipt. — In an action by the seller to recover for goods sold, the plaintiff cannot contend that his correspondence with the defendant prior to the delivery of the goods to a carrier for shipment, when taken in connection with the shipping receipt, constitutes a sufficient mi!morandum to satisfy the statute of frauds, where the papers are silent as to the essential element of price, Kemensky v. Chapln (Mass;), 9-1168. c. Delivery. Undillvfered l^ase. — A signed but im- dcliv^red lease may be given in evidence to prove an agreement upon the details of a lease, pursuant to one of the terrns of a pre- viously signed memorandum in writing of an oral agreenient ioT a lease, ahd if said pre- vious mertiorandum and undelivered lease taken together show a completed agreement upon the terms of a lease, the statute of frauds is satisfied and specific performance may be decreed. Charlton v. Columbia Real Estate Co. (N. J.), 3-402. d. Signature of parties. (1) In general. Memorandum signed by vendor only. — Where the vendor in a contract for the sale of land has signed a written memoran- dum thereof Which is sufficient to satisfy the statute of frauds, he cannot defeat specific performance' of the contract upon the ground of want of mutuality based upon the mere fact that the memorandum has not been signed by the purchaser. Western Timber Co. V. Kalama Eiver Lumber Co. (Wash.), 7-667. A memorandum containing an offer to sell, and signed only by the party making the offer, is converted into a completed contract by an oral acceptance thereof, and is suffi- cient within the statute of frauds requiring the memorandum to be signed by the party to be charged. Bailey v. Leishman (UtSih), 13-1116. Several writings each signed by one party. — The reofUiTement of the Oklahoma statute of frauds that a tonttact to sell land must be subscribed by both parties is not satisfied by several writings, each of which is signed by one party, Mere the writings, when Construed together, show that the minds of the parties failed to meet as to one ot more of the essential terms pf the contract. Halsell V. Renfrew (U. S.), 6-189. (2) Signature by agent. Necessity of ivritten authority to sign. — There is no statute in Georgia re- quiring the authority to make the memo- randum required by the statute of frauds to be in writing, and such authority may be con- ferred by parol. Brandon v. Pritchett (Ga.), 7-1093. An agreement for the sale of real estate is invalid without a memorandum thereof in' writing subscribed by the party to be char'geii or agent, and such agreement if made by the agent is invalid unless the ageht has written authority to sign. Halsell v. Renfrew (Okla.), 2-286. The Arkansas statute requiring a written memorandum, signed by the party to be charged in the case of a contract for the sale of goods, is satisfied by a memorandum signed by the agent of the party to be charged, whose authority may be proved by parol. Fordyce r. Seaver (Ark.), 4-892. Parol ratification of agent's act. — A parol ratification of a contract for the sale of land, made by one without authority assuming to act for the owner, is valid and binding upon the owner, providing the person assuming to act as agent in bfehalf of such owner signed a memorandum which in its terms complied with the provisions of the statute of frauds and which showed upon its face that it was executed on behalf of the owner. Brandon v. Pritchett (Ga.), 7-1093. Principal not disclosed. — tJnder a statute requiring contracts for the sale of lands to be evidenced by writing, where a written agreement for such a. sale shows that one of the two persons by whom it is made i-icurs no individual liability, but acts merely as the agent of some one else who is not named or described, specific performance thereof cannot be compelled at the suit of the principal if his relation to the transaction can be proved only by parol evidence. Mertz r. Hubbard (Kan.), 12-485. A memorandum of a contract for the sale ot goods is not rendered insufficient to satisfy the statute of frauds by the fact that it does not disclose the name of the seller, but is signed by the seller's agent in his own name. Halsell 47. Renfrow (U. S.), 6-189. e. Contents. (1) Names of parties. Necessity of name or description. — A writing that neither names the parties to a contract nor describes them in such a way that they may be identified is not suffi- cient as a note or memorandum under the statute of frauds. Frahm r. Metcalf (Neb.), 13-312. FRAUDS, STATUTE OF. 813 Part of corporate name omitted. — A contract for the sale of land, which de- scribes the land as being the same tract pre- viously sold by a specified corporation to a named third person, is not rendered insuffi- cient to satisfy the requirements of the stat- ute of fra.uds by the fact that it omits part of the name of the corporation, if enough of the name is given to show what corporation is intended and to distinguish it from all other corporations. Crotty i". Effler (W. Yn.), 9-770. (2) Description of property. Errors in spelling, — A memorandum for the sale of land is not rendered insuffi- cient to satisfy the requirements of the stat- ute of frauds by the fact that it describes the land as being " a pice of land sole " to a named person by a specified corporation, as it is evident that the word " pice " was in- tended for " piece," and the word " sole " for "sold." Crotty v. Effler (W. Va.), 9-770. Failure to specify state or county. — A memorandum for the sale of land is not rendered insuflieient to meet the requirements of the statute of frauds by the fact that it fails to specify the state, county, district, or town in which the land is situated, where the land is so described as to be capable of being distinguished from other land. Crotty -v. Effler (W. Va.), 9-770. Failure to specify quarter section. — A memorandum of a contract of sale which fails to specify which quarter of a named sec- tion of land is intended, and which states the number of the range without specifying whether it is east or west, is not void under the statute of frauds for uncertainty in description if the description is otherwise specific, and the land intended to be sold can be identified from the description with the aid of parol evidence. Euzicka v. Hotovy (Neb.), 9-1058. Meniorandum referring to deed. — A memorandum executed at the same time as a deed whereby the grantee agrees to deed back " said piece of land," shows that it has refer- ence to the land conveyed by the deed, and since the description of the land may be made certain by reference to the deed, the memorandum contains a sufficient description of the land to render it enforceable under the statute of frauds. Welborn v. Dixon (S. Car.), 3-407. Part of tract to be selected by ven- dor. — The statute of frauds does not pre- vent the maintenance of an action for the specific performance of a contract by which the defendant, being the owner of a tract of land, agreed to convey a, portion of it of a certain size, to be selected by himself, to the plaintiff. Peckham v. Lane (Kan.), 19^3,69. (3) Terms of sale. Amount of covsjderationp — Under the Indiana statute requiring contracts to pay a commission for the sale of real estate to be in writing, the contract must state the amount of the consideration agreed to be paid, and a statement that the landowner agrees to pay the amount that " has been and now is understood " is not sufficient. Zimmerman v. Zehendner (Ind.), 3-655. Price bid at auction sale. — The printed advertisement of an auction sale of land, which neither contains nor is connected with any writing showing the price bid and the purchaser, is not a sufficient memorandum to satisfy the statute of frauds, as it is neither a contract to convey land nor a note or memo- randum of a contract to convey to a par- ticular person. Diekerson v. Simmons (N. Car.), 8-361. Time of closing title. — The Nebraska statute of frauds does not require all of the terms of a contract to sell land to be stated in a written memorandum thereof. If the memorandum fails to state the time for con- summating the contract by executing the deed and paying the consideration, or fails to state whether securities are to be given for any deferred payments, these matters may be shown by parol evidence. Ruzieka v. Hotovy (Neb.), 9-1058. 4. Estates in Land. a. Agreements other than contracts pf sale. Agreement to mortgage land. — The statute of frauds does not affect the validity of the lien of an equitable mortgage on land, which is created by the owner's refusal to fulfil his oral promise to give a mortgage to secure the repayment of money borrowed by him for the purpose of buying the land. Foster Lumber Co. v. Harlan County Bank (Kan.), 6-44. Agreement that deed shall operate as mortgage. — An agreement that a deed conveying land shall operate as a mortgage to secure a debt is not within the statute of fiauds, since it is not a contract for the sale of lands or any interest therein. It is a right reserved by the grantor to redeem the land upon the payment of the debt. This right is recognized by the statute and is not required to be evidenced by writing. De Bartlett v. De Wilson (Fla.), 11-311. Agreements as to boundary lines. — V^here there is doubt or uncertainty or a dispute as to the true location of a boundary line the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them, although the possession is not for the full statutory period. Kitchen V. Chantland (Iowa), 8-81. Where, in an action by an owner of land against an adjoining owner who has removed a fence erected by the former upon what he claims to be the boundary line, at a distance of eight feet from the defendant's side of an old boundary fence, the only evidence that such strip belongs to the plaintiff is an al- leged oral agreement to treat the line on which the plaintiff subsequently erected the fence' as the boundary, and it does not appear that there has been such occupancy and ac- quiescence under the alleged agreement as the law requires, both of which are essential 814 Aiv'JST. CAS. DIGEST, VOLS. 1-20. the evidence is insufficient to establish the plaintifiF's title to such strip of land. Hooper v. Herald (Mich.), 16-149. Agreement as to escron', — The con- dition upon which a deed may be delivered in escrow may rest in and be proved by parol. Manning v. Foster (Wash.), 16-95. Where a deed conveying real estate is exe- cuted by the vendor and deposited at a bank at the same time that the vendee deposits the money, note, and warrants constituting the consideration for the property, the de- posits being accompanied by a written mem- orandum that the deed, when signed, is to be delivered to the vendee on payment of the consideration, oral testimony is, for the pur- pose of establishing a valid escrow agreement, admissible to show what the agreement of the parties was as to the delivery of the deed. Slanning «. Foster (Wash.), 16-95. Agreement to devise land. — An oral agreement to devise real property, or real and personal property, is void under the stat- ute of frauds. Horton v. Stegmyer (U. S. ), 20-1134. Assignment of contract for purchase of land. — Where contracts for the pur- chase of realty are by statute required to be in writing, a transfer of such a contract must likewise be in writing. An oral trans- fer of a written contract for the purchaser of realty, accompanied by a, delivery thereof, does not effect a valid assignment of such contract, even if both parties are of the opin- ion that the legal requirements have thereby been met. Flinner v. McVay (Mont.), 15- 1175. Abandonment or rescission of con- tract. — Where, under a written contract for the sale of lands, the right of the pur- chaser is subject to forfeiture upon a failure or refusal to make the payments required by the contract, he may with the consent of the vendor rescind the contract and abandon all his rights under it, and it is not necessary that such rescission be in writing. Outright V. Union Savings, etc., Co. (Utah), 14-725. Where the purchaser, under a contract for the sale of land providing for monthly pay- ments and for the forfeiture of any com- pleted payments upon default as to a succeed- ing instalment, removes from the property and delivers the key to the vendor with the declaration that he will make no more pay- ments, and has decided to quit the premises, and the vendor accepts the key with the in- tention of releasing the purchaser and takes possession of the property, the rescission and abandonment of the contract is complete and effectual without a rescission in .writing. Cutright V. Union Savings, etc., Co. (Utah), 14-725. Statutory right of town to purchase vraterworks. — The right of a town to purchase the works of a water company in pursuance of a power conferred by statute and engrafted on the corporation's charter as an incident to the acceptance of the town's subscription to the stock of the corporation is, although contractual in its nature and in- volving the transfer of real estate, not af- fected by the statute of frauds. Southington L-. Southington Water Co. (Conn.), 13-411. b. Contracts of sale. (1) In general. Revival of expired contract. — A de- funct contract for the sale of realty cannot be revived by oral agreement. Thompson v. Robinson (W. Va.), 17-1109. (2) Contracts for sale of growing trees and timber. In general. — Inasmuch as growing trees or standing timber are a part of the realty, a contract to sell or convey them or any in- terest in or concerning them is within the statute of frauds. Ives v. Atlantic, etc., E. Co. (X. Car.), 9-188. A sale of standing timber is a contract concerning an interest in land, within the meaning of the statute of frauds. Rich- bourg f. Rose (Fla.), 12-274. A parol agreement or an executory con- tract for the sale of growing trees to be severed and taken from the land by the ven- dee, will amount to a, license for the vendee to enter upon the vendor's land for the pur- pose of making such severance; and if the license is not revoked before the trees are severed, the title to the trees will vest in the vendee, and the license after such sever- ance will become coupled with an interest and irrevocable, and the vendee will have a right to enter and remove the trees thus severed; but if, before the treen are severed, the vendee revokes such license, no title will pass to the vendee and no rights will vest by virtue of such parol agreement or execu- tory contract. Richbourg v. Rose (Fla.), 12- 274. Trees branded. — A sale of standing timber, whether to be cut presently, or to remain standing for further growth, is not a sale of an interest in land within the statute of frauds, where the purchaser places his re- corded brand on the trees, pursuant to the Virginia statute (Code 1904, § 1906c, subd. 6) providing that the placing of such brand " on a log tree, or other marketable timber shall be deemed and held to be a change of ownership and possession." Hurley v. Hur- ley (Va.), 18-968. Contract to cut, sell, and deliver cordwood. — A contract to cut, sell, and deliver a specified quantity of cordwood, which provides that some of the wood shall be cut from trees growing on the seller's land, and that the balance shall be cut from trees growing on the buyer's land, does not con- template a transfer of any title to or inter- est in the trees as they stand upon the land, and therefore is not within the statute of frauds. Ives v. Atlantic, etc., R. Co. (N. (Car.), 9-188. (3) Contracts relating to mines. Assignment of equitable interest. — An assignment of a portion of the assignor's interest in mining areas held in trust for FKAUDS, STATUTE OF. 815 him by a third person is an interest in lands within the meaning of the Nova Scotia stat- ute- of frauds, and is not merely an interest in the proceeds of the sale as distinguished from an interest in the areas themselves; and therefore where an oral assignment has been made the assignee cannot maintain an action thereon to recover part of the pro- ceeds of the sale of the areas, in the absence of evidence that prior to the making of the assignment there had been such a conversion of the assignor's interest as would take away its character as real property. McNeil v. Corbett (Can.), 10-98. Where a contract for the sale of all the coal in a certain tract of land provides that part of the purchase money shall be paid by a specified day, when the vendor is to execute a deed, and that if not so paid the contract sliall be void, and further declares that this provision for payment is of the essence of the contract, if there is a default in payment, no oral extension of time made after the day specified will bind the vendor. Thompson v. Kobinson (W. Va.), 17-1109. (4) Partnership contracts. Partnership lands treated as per- sonalty. — Partnership lands are treated as personalty in equity and for partnership purposes, and are not affected by the pro- visions of the statute of frauds relating solely to lands. Tillis v. Folmar (Ala.), 8-78. Partnership agreement to speculate in lands. — An agreement between two per- sons to purchase, develop, and sell certain lands for their joint account and to share equally the profits and losses of the venture is not within the statute of frauds, as the parties to the agreement are copartners in the transaction. Morgart v. Smouse (Md.), 7-1140. A partnership agreement for the sale and purchase of land for speculation and a di- vision of profits among the partners is not within the statute of frauds, and is valid though not in writing, and the extent of the interest of the partners may be shown by parol. Miller v. Ferguson (Va.), 13-138. (5) Assignment of equitable interest in land. In general. — An assignment of an equi- table interest in lands is within the statute of frauds. Morgart v. Smouse (Md.), 7- 1140. (6) Executed contracts. Statute not applicable. — The statute of frauds does not apply to executed con- tracts and an action may be maintained for the purchase price of land conveyed and ac- cepted by the purchaser in pursuance of a prior verbal agreement. Satterfield v. Kind- ley (N. Car.), 12-1098. c. Agreements with agent. Usual authority of real estate broker. — The usual authority vested in a real estate broker does not empower him to conclude or execute a contract of sale, but is limited to finding a purchaser and bringing him into negotiation with the principal, and therefore the statute of frauds does not require such an authorization to be in writing. Flegel v. Dowling (Ore.), 19-1159. Appointment of agent to receive deed. — The statute of frauds does not re- quire that the appointment of an agent to receive a deed for a, purchaser shall be in writing in order that delivery to him shall be binding on the purchaser. Dorr Cattle Co. V. Des Moines Nat. Bank (la), 4-519. Employment of agent to negotiate purchase. — A contract whereby one em- ploys an agent to negotiate for the purchase of real estate is not a contract for the crea- tion of an estate or interest in land or a trust or power over or concerning lands, within the meaning of the statute of frauds. Johnson V. Hay ward (Neb.), 12-800. 5. Sales by Executors ok Adminibteatobs. Necessity of note or memorandum. — No note or memorandum in writing is neces- sary to charge either the administrator or purchaser at any administrator's sale. Green V. Freeman (Ga.), 7-1069. fi. Pbomises to Answeb fob Debt, Default, OB MiSCAREIAGE OF AnOTHEB. a. Original and collateral promises. Intention of parties. — In determining whether an oral promise is original or col- lateral, the intention of the parties at the time it was made must be regarded, and in ascertaining such intention, the words of the promise, the situation of the parties, and all the circumstances attending the transaction should be taken into consideration. Johnson V. Bank (W. Va.), 9-893. Promise to pay for services. — An oral promise to pay for services rendered to a third person is not actionable if the services were rendered wholly or partly upon the credit of an independent original promise or liability of such third person. If any credit whatever was given to such third person at the time the services were rendered, so that he was in any degree independently and orig- inally liable, the oral promise of the other party is invalid. Johnson v. Bank (W. Va.), 9-893. Agreement to purchase property or pay debt. — An agreement by a stockholder of an insolvent corporation with the creditors and other stockholders that he will purchase property of the corporation at a public sale thereof under a deed of trust at a sum equal to the indebtedness secured by the deed of trust and pay the same indebtedness in full, IS, in effect, an agreement to purchase the property for a sum sufficient to pay the in- debtedness and is not a promise to pay the debt of another within the statute of frauds Satterfield v. Kindley (N. Car.), 12-1098. _ Promise to subserve purpose of prom- isor. — Whenever the main purpose and object of a promisor are not to answer for another, but to subserve some purpose of his 816 AiNTN. CAS. DIGEST, VOLS. 1-20. own, his promise is not within the statute of frauds, although it is in form a promise to pay the debt of another. Oldenburg v. Dor- sey (Md.), 5-841. Question for jury. — When the issue in an action at law involves the question whether an oral promise is original or collateral with- in the statute of frauds, and the question must be determined from materially conflict- ing evidence and circumstances and inferences therefrom, and the evidence and circumstances are such that the verdict of a jury for either party could not be set aside because without BiifHcient evidence to support it, or because plainly against the decided weight and pre- ponderance of evidence, the question is one of fact to be determined by the jury, and therefore instructions which in eflfeet direct the jury to determine such question from a part only of the proper and material evidence and circumstances, excluding other parts thereof in conflict with the part directed to be considered, are erroneous. Johnson v. Bank (W. Va.), 9-893. Agreement to pay delits of business. — An agreement by the seller of a business to pay the debts incurred by the purchaser in running it as part of a transaction by which the business is transferred to a third person who assumes the payment of the pur- chase money, is not a collateral undertaking to answer for the default of another, but is an original updertaking founded on a valu- able consideration. Burgie v. Bailey (Ark.), 18-389. b. Contracts of indemnity. Promise to reimburse surety on bond. — A promise to reimburse the surety on an official bond for any damages he may incur by reason of his suretyship is within the stat- ute of frauds. Craft v. Lott (Miss.), 6-670. c. Joint liability of promisor and third person. Joint promise by tiro for benefit of both. — The statute of frauds does not ex- tend to a joint promise by two persons for the benefit of both of them. Oldenburg v. Dorsey (Md.), 5-841. Joint promise by two for benefit of one. TT Where the person to whom goods were sold and delivered, and the person who undertook orally to be bound for the payment of the goods, are sued together as joint orig- inal promisors, the action will not be de- feated as to the latter by showing that credit for the goods was given partly to one and partly to the other defendant, as the statute of frauds does not extend to a joint promise by two persons for the benefit of one of them. Oldenburg 17. Dorsey (Md.), 5-841. d. Oral guaranty by transferrer of nego- tiable instrument. Original promise. — The payee of a note who transfers Xhe same by delivery merely for a consideration is liable at the suit of the transferee upop his oral guaranty made at the time of the transfer as upon an original promise not within the st?itute of frauds, such liability not being predicated upon the instrument itself and the negotiable instruments law not being applicable. Swen- son V. Stolz (Wash.), 2-504. 7. Eepbesentations as to Credit op Anothee. Necessity that representations be acted upon, — • Representations cctuceiming the credit of another within the statute pro- viding that no action shall be brought to charge a person upon such repreaent?,tiaDS un- less the latter are in writing and si^ed by the party to be charged, must be limited to representations made to induce the jilaintiff to enter into a transaction whiohi will result in a debt due the plaintiff from the third person. Walker v. Russell (Mass.), 1-688. Representations to induce purchase of st^cb. — Representations as to the finan- cial credit of a corporation made to induce the plaintiff to subscribe to the shares there- of to be paid for in cash are representations bearing upon the value of the shares and are not within the statute of frauds. Walker v. Russell (Mass.), 1-688. In an action to charge the defendant upon representations made by him as to the finan- cial credit of the corporation, whereby the plaintiff was induced to subscribe to the shares thereof, the record of a, suit to fore- close a mortgage on the property of the cor- poration which was in force at the time the representations were made is admissible in evidence upon the value of the stock, where it appears that there was no change in the condition of the con^pany's property, and that it suffered no accident between the time such representations were made and the time the foreclosure suit was instituted. Walker v. Russell (Mass.), 1-688. Good faith not material. — The Mis- souri statute providing that " no action shall he brought to charge any perspn upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any pther per- son, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some per- son thereunto by him lawfully auth«i-ized," is a complete bar to an action for damages for false verbal representations made in re- gard to the credit of a third person, regard- less of whether such represeijtations were made in good faith or were made with knowl- edge of their falsity in order to deceive and defraud the plaintiff or in pul■s^ance of a conspiracy with the person in regard to whose credit the representations were made. Knight V. RawUngs (Mo.), 12-325. 8. CoNTBACTS Not to Be Pebfobmed within A Yeab. a,. Contracts '^ithin stotute. (1) In general. License to use land. — Where a railroad company grants a person the right to eon- FRAUDS, STATUTE OP. 817 struct an elevator on a designated portion of its right of way, and to use such portion of the right of way for a longer period than one year, the agreement is within the statute of frauds, and a contract whereby the grantee transfers his Interest to a third person is likewise within the statvite. Todd v. Bet- tingen (Minn.), 8-960. Amount of excess immaterial. — Un- der the Wisconsin statute of frauds any ex- cess, however short, of one year from the date of a verbal agreement till that of the agreed full performance will defeat it. Chase v. Hinkley ("Wis.), 5-328. Provision for termination of con- tract within year. — A contract for a defi- nite term longer than a year is not excluded from the operation of the statute of frauds because it contains a provision enabling either party to put an end to it within a year. Wagniere r. Bunnell (R. I.), 17-205. (2) One-year contracts to commence in futuro. Contract void, r- The statute of frauds renders void a verbal agreement for one year's personal service, performance of which is to commence in the future. Chase v. Hinkley (Wis.), 5-328. Contract valid. — The requirement of the South Dakota statute of frauds that a lease of real property for a longer period than one year shall be in writing, does not invalidate a parol lease for a term of one year, to commence a day or two in the future, as the provision as to the duration of the lease does not apply " from the making there- of," but only from the beginning of the ten- ure. Paulton V. Kreiser (S. Dak.), 5-827. An oral lease for one year to commence in futuro is valid, being governed by the pro- vision of the statute declaring void every contract for the leasing of lands for a longer period than one year, and not by the provi- sion which avoids every agreement that by its terms is not to be performed within one year from the making thereof. Baumgarten v. Cohn (Wis.), 18-1076. b. Contra<3ts not within statute. Assumption of mortgage by grantee. — The obligation of a grantee arising from a clause in a deed reciting that he assumes payment of a mortgage debt is not within the clause of the statute of frauds requiring undertakings not to be performed within one year to be in writing signed by the party sought to be charged, but the obligation arises by implication of law out of the fact that he accepts the deed with such a recital. Hig- gins V. Evans (Mo.), 3-465. Agreement to repuxchase. — In an ac- tion to enforce an agreement alleged to Ijfive been made at the time of the sale of certain shares of stocif, whereby the seller was to have the right to repurchase the same where some of plaintiff's witnesses testify that the defendant promised to repurchase the prop- erty " within a year," and others, who speak English imperfectly, testify that the promise Vols. 1-20 — Ann. Cas. Digest. — o2. was to repurchase the property " in the time of a year," the jury is warranted in finding that the agreement was to be performed with- in a year, and, therefore, that the section of the statute of frauds relating to agreepients not to be performed within a year has no application. Vohjand v. Gelhaar (Wis.), 16- 781. Contract performed by one party within yei^r. — A contract which by its terms is capable of being performed by one party within one year from the date of its making and has been fully performed by such party with,in the year, is not within the pro- vision of the statute of frauds that no suit can be maintained " upon any agreepaent which is not to h,e performed within the space of one year from the making thereof." Tyler v. St. Louis Southwestern R. Co. (Tex.), 13-911. 9. CpNTBACTS FOK SALE OF GoODS, WAKES, AND Merchandise. a. Contracts within statute. Contract for s^le of stock. — A con- tract for the sale of stock in an incorporated con^pany, at the price of fifty dollars or more, is within the Georgia statute >vhich requires contracts fqr the sale of goods, wares, and merchandise to the amoiuit of fifty dol- lars or more, to be in writijig. Hightower V. Ansley (Ga.), 7-927. A sfile of shares of the stocjc of a corpora- tion is within the statute of frauds. Stifit ■V. Stiewel (Ark.), 18-597. Contracts of barter ^nd exchange. — The Colorado statute qf frauds requiring " every contract for the sale of ^ny goods, chattels, or things in action, for the price of fifty dollEirs or more," to be in writing " un- less the buyer shall accept and receive part of such goo^s, or the evidence of some of them, or such things in action ; or . . . shall, at the time, pay some part of the pur- chase money," makes no distinction between contracts of barter or exchange and contracts of s^le, and applies to a contract to deliver at a future date stocks of £), corporation in con^ideratipji of services to be renderejl. Franklin v. Matoa Gold Mining Co. (U. S.), 14-302. Contract of ^ale pr for xrqrk an4 lal>i>r. — A cqntrjvpt by a mjiijufacturer of chinaware to furnish, at an agreed price, cer- tain 4ishes decorated in a particular style, is a contract fqr >vork and services and not for the sale of chattels within the Michigan statute of frauds (3 Comp. J^aws, § 95p), >yhere some of the dishes are to be ijiamjfac- tured specially, though some are in stoqi, an(i the 4eeoration fif all of them requires special work, the cost of which constitutps a large part qf the agreed price. In re (Jies' Estate (Mich.), 19-1288. Contract to m^he tpnibstqiiie, — A con- tract to make a tombstqne according tp a de- pign selected bj the buyer frqm the seller's catalogue, ar(d to place a suitable inscription on the tppibstqne, is not within the sti^t^te of frauds, as it is not a contract for the sale 818 ANN. CAS. DIGEST, VOLS. 1-20. of goods, wares, or merchandise, but is one for work and labor to be done and materials to be furnished, though the transaction is to result in the sale of the completed article. Moore v. Camden Marble, etc.. Works (Ark.), 10-308. b. Delivery, acceptance, and receipt of goods. (1) In general. Right of buyer to reject eooda, — Where an oral contract for the sale of goods is rendered unenforceable by the statute of frauds, the buyer is at liberty to refuse the goods, even though his action is arbitrary and wholly unreasonable. Kemensky v. Chapin (Mass.), 9-1168. Mere irords insufficient. — Mere words inter partes will not effect a transfer of pos- session and title as between buyer and seller so as to satisfy the statute of frauds as re- gards a verbal sale of personal property ex- ceeding in value the sum of fifty dollars. J. H. Silkman Lumber Co. v. Hunholz (Wis.), 13-713. Continuance of prior possession by -vendee. — In order to effect the transfer of possession necessary to satisfy the statute of frauds, there must be some affirmative act on the part of- the purchaser manifesting an in- tention to accept the property under the sale agreement, and such act is not shown by the mere continuance of prior possession by the buyer as bailee or as owner of the premises on which the property has been placed by his permission. J. H. Silkman Lumber Co. v. Hunholz (Wis.), 13-713. Intent as element of acceptance. — In an action on a verbal order for merchan- dise where the plaintiff relies on an accept- ance of the merchandise to take the sale out of the statute of frauds, the question of the intention of the defendant as to accepting the goods is material and relevant, and it is error for the court to refuse an instruction requested by the defendant that the plaintiff must establish to the satisfaction of the jury " that the defendant intended to receive the goods sued for and to accept the same as owner," and to instruct instead that the plaintiff must establish "that the defendant received and accepted said goods," the latter instruction being too general and not inform- ing the jury as to what constituted an ac- ceptance. Jarrell v. Young, etc., Co. (Md.), 12-1. The error in refusing such instruction re- quested by the defendant is not cured by an instruction that " if the jury shall further find that the defendant did not at any time receive and accept said goods as owner, then the verdict of the jury shall be for the de- fendant." Jarrell v. Young, etc., Co. (Md.), 12-1. Acceptance for examination only. ^ Where goods are sold by sample, the par- ties contemplate that the buyer shall have an opportunity to ascertain whether the goods delivered correspond with the sample, and therefore the fact that the buyer receives from the carrier which has transported the goods the car in which they are loaded does not amount to an act of acceptance which will take the contract out of the statute of frauds, if the buyer receives the goods for the sole purpose of examining them in order to ascertain whether they correspond with the sample. Kemensky v. Chapin (Mass.), 9- 1168. Time for delivery and acceptance. — A delivery and acceptance at any subsequent time of any part of the goods or chattels which are the subject of an oral agreement and within the statute of frauds takes the contract out of the statute and makes valid the entire contract. Gabriel v. Kildare Ele- vator Co. (Okla.), 11-517. Sale witb agreement to repurchase. — Where a sale of shares of stock is accom- panied by an agreement on the part of the vendor to repurchase the same at an advanced price on a certain contingency, the agreement of sale and the promise to repurchase are parts of a single and entire contract, and the delivery of the stock to the vendee and the payment of the purchase price by him satis- fies the statute of frauds, and makes the con- tract valid although not in writing. Vohland ■V. Gelhaar (Wis.), 16-781. (2) Delivery to carrier as acceptance by buyer. In general. — The delivery of goods by a vendor to a common carrier for shipment is not a delivery to and acceptance by the vendee so as to remove the contract of sale from the operation of the statute of frauds. Catias v. Cyr (Mich.), 2-544. Carrier selected by vendee. — Where goods sold are delivered by the seller to a car- rier selected by the buyer, the delivery is a delivery to the buyer; but where the carrier is authorized only to receive the goods for transportation, such delivery does not con- stitute such an acceptance by the buyer as will take the contract out of the statute of frauds. Kemensky v. Chapin (Mass.), 9- 1168. (3) Receipt and acceptance of samples. When an acceptance of goods. — In order that the receipt and acceptance of samples shall amount to an acceptance of a part of goods sold in compliance with the Maryland statute of frauds, it is necessary that there be an intention on the part of the vendor and vendee that the samples shall constitute a part of the goods sold and shall reduce, to the extent of the quantity of the samples, the entire quantity covered by the contract. Richardson t;. Smith (Md.), 4-184. (4) Part payment. Baling of hay by purchaser. — Under the Michigan statute of frauds, the baling of hay by a purchaser thereof, in the seller's presence, pursuant to an oral contract re- quiring the purchaser to bale such hay, is such a part payment as to validate thp con- tract. Driggs h. Bush (Mich,), 15-30. FKAUDULENT CONVEYANCES. 819 Part payment in fntnro. — The re- quirement of the Colorado statute of frauds that the part payment of purchase money, which will take a contract out of the stat- ute, must be made at the time of making the contract, is not complied with by a verbal contract for services thereafter to be rendered in consideration of which it is agreed to de- liver, at a future date, certain shares of cor- porate stock; and after the rendition of the services no action can be maintained on the contract for the nondelivery of the stock. Franklin v. Matoa Gold Mining Co. (U. S.), 14-302. 10. CONTBACTS OF EMPLOYMENT. Contract between dentist and assist- ant. — The statute of frauds has no appli- cation to a contract whereby a dentist em- ploys an assistant and the latter binds himself not to engage in competition with his employer after the termination of the employment. Turner v. Abbott (Tenn.), 8- 150. Employment of agent to pnreliase, — The contract of employment of one as agent to obtain by purchase something from a third person is not within the statute of frauds relating to contracts for the " sale of goods." W^er V. Carr (Wis.), 11-998. Employment of agent to sell or pur- chase land, — The authority of an agent for the sale of real estate, if not in writing, is void under the statute of frauds. Frahm V. Metealf (Neb.), 13-312. tJnder the Washington statute of frauds no action can be maintained by an agent or broker for services performed in purchasing real estate unless his contract of employ- ment is in writing as required by the statute. Keith v. Smith (Wash.), 13- 975. The provision of the Washington statute of frauds that an agreement authorizing or em- ploying an agent or broker to sell or pur- chase real estate for a commission shall be void unless the agreement or some note or memorandum thereof is in writing and signed by the party to be charged or Ms authorized agent, is not complied with by a memorandum which does not purport to employ or confer authority on the broker, or describe any par- ticular real estate, or mention any terms of purchase or sale, or mention the period for which the broker's authority is to continue or specify the amount of his commission. Keith V. Smith (Wash.), 13-975. 11. Who Mat Invoke Statute. Snbseqnent pnTchaser of chattels. — When a vendor of chattels by a contract of sale which is voidable by the statute of frauds makes a subsequent sale or pledge and delivery of them to a third person, he there- by repudiates and avoids the former con- tract, and the subsequent purchaser may in- voke the statute for his own protection. First Nat. Bank v. Blair State Bank (Neb.), 16-411. 12. Pleading and Practice. a. Complaint. Necessity of alleging written con- tract. — Where a suit is brought for dam- ages growing out of a breach of a contract required to be in writing by the statute of frauds, the petition is not rendered demurra- able by the fact that it is not stated whether the contract was in writing or not. Dela- ware Ins. Co. V. Pennsylvania Fire Ins. Co. (Ga.), 7-1134. Contract to convey part of tract. — In an action for specific performance of a contract to convey a portion of a tract of land, such portion to be selected by the de- fendant (vendor) where the plaintiff asks for the conveyance of a specific parcel, on the ground that the defendant had selected it, although such selection may be ineffective because not made in writing, the petition is not on that account demurrable, for it may state facts sufficient to entitle the plaintiff to a conveyance of some portion of the larger tract, although he may not be entitled to the very part claimed. Peckham v. Lane (Kan.), 19-369. b. Answer or demurrer. Sufficiency of general denial. — The statute of frauds may be set up as. a defense under a plea of the general issue, as such plea denies the existence of the contract sued on. Morgart v. Smouse (Md.,) 7-1140. The objection that a contract sued on is void under the statute of frauds because not in writing may be availed of by a general de- nial in the answer. Riif v. Eiibe (Neb.), 4-462. When the fact that the contract was oral aflSrmatively appears on the face of the bill, the objection that it is void under the stat- ute of frauds may be taken by demurrer. When that fact does not thus appear, it must be presented by answer. Horton v. Steg- myer (U. S.), 20-1134. c. Waiver of defense. The defense of the statute of frauds is waived if it is not interposed in the trial court before the trial is concluded. H. P. Moore Lumber Corp. v. Walker (Va.) 19- 314. '' TBAUDULENT CONVEYANCES. 1. Elements of Feaudulent Aliena- tion, 820. a. Absence of change of possession. 820. b. Property susceptible of fraudu- lent alienation, 820. c. Fraudulent intent, 820. 2. Validitt as between Parties, 820. 3. Sales in Bulk Acts, 820. a. Constitutionality of particular statutes, 820. b. Effect of acts, 821. c. Conveyances within meaning of 820 ANN. CAS. DIGEST, VOLS. 1-20. 4. Avoidance of FBAUDtntENT Convey- ances, 821. a. Who may avoid, 821. b. Necessity that claim he reduced to judgment, 822. e. Exhaustion of other remedies, 822. d. Jurisdiction of court, 822. e. Pleading, 822. f. Evidence, 822. g. Issues for submission to jury, 822. Ante-nuptial conveyance by husband, see Husband and Wife, 2 b. Grounds for attachment, see Attachment, 3. Limitation of action to subject land to judg- ment lien, see Limitation of Actions, 4 a (2) (d). 1. Emments oe Fraudulent Alienation. a. Absence of change of possession. What sufficient to sho^r fraud. -<■ Un- der the Utah statute which provides that a sale of goods or chattels shall be deemed fraudulent as against creditors unless accom- panied by a delivery within a reasonable time, and followed by actual and continued change of possession, a sale of goods which are at the time of the sale in the possesaiom of the vendor and continue to remain in bis possession for a period of four months there- after will be deemed to be fraudulent as there is no immediate delivery and actual continued change of possession as is required by the statute. Johnson v. Emery (Utah), 11-23. b. Property susceptible of fraudulent aliena- tion. Choses in action. — Choses in action are "personal property," within the meaning of those words as used in the Alabama statute invalidating conveyances and transfers made with intent to hinder, delay, or defraud cred- itors. Hall V. Alabama Terminal, etc., Co. (Ala.), 5-363. Corporate Stock. — An arrangement whereby a debtor corporation releases a sol- vent subscriber to etook and accepts the obli- gation of an insolvent person is in legal effect a fraudulent and void transfer of its prop- erty by the corporation. Hall v. Alabama Ternaija,!, etc., Co. (Ala.), 5-363. c. Fraudulent intent. 'VSThen inferrie^- — < The fact that a sale of goods by an insolvent debtor results in hifi,dering his creditors from collecting their debts does not of itself render the sale fraudulent; but the sale is fraudulent if the hinderanee of creditors ia a part of the in- tent with which it is made. And the fraudu- lent withholding from creditors of the pro- ceeds of a sale justifies the inference that the sale was made with fraudulent intent, though it was made in the usual course of trade. Farris v. Gross (Ark.), 5-016. 2. Validity as between Parties. In general. — As between the parties tp a fraudulent conveyance the deed is valid and binding and the grantor retains no legal or equitable interest in the property coji- veyed. It is only creditors who can ques- tion the fairness of the transaction. Sifford V. Cutler (111.), 18-36. £!nf or cement of agreement to re- convey, -m It is no defense to a suit to enr force the specific performance qf an agroe' ment to reconvey land that the original conr veyance was made for the purpose of placing the land beyond the reach of the grantor's creditors. Bouton v. Beers (Conn.), 3-941. 3. Sales in Bulk Acts. a. Constitutionality of particular statutes. Connecticut statute. — The Connecticut statute providing that a sale by a retail merchant of the whole or a l?irge part of his stock in trade is voidable at the instance of creditors, unless he has previously recorded a written notice of his intention to make tjie sale, is a valid exercise of the state's police power, and does not conflict with either the federal or the state constitution. Young v. I^mieux (Conn.), 8-452. Illinois statute. — The Illinois "Bylk Sales Law" prpvi4ing that the sale of aijy portion of a stock of merchandise in bulk will be presumed to be fraudulent and void as against the creditors of the seller, uijless the seller and purchaser shall at least five days before the sale make a full and detailed inventory showing the quantity and as far as possible the cost price of each article, and unless such purchaser shall, in good faith, five days, before the sale make full inquiries of the seller as to the names and residence^ of each and all of the creditors of the seller, and shall notify each of such creditors of the cost price of the merchandise to be sold, is unconstitutional and void as singling out and imposinr; burdens on persons who own stocks of merchandise and persons who purchase such stocks in bulk, thus interfering with the right of contract of the persons affected and depriving them of liberty and property without due process of law. Charles J. Off & Co. V. Morehead (111.), 14-434. Michigan statute. — The Michigan sales in Bulk Act held constitutional. Spurr V. Travis (Mich.), 9-250. Minnesota statute. — The Minnesota statute entitled "An act to prevent sales of merchandise in fraud of creditors," which makes sales made without compliance with its provisions presumptively fraudulent, but not absolutely void, is constitutional. Thorpe V. Pennock Mercantile Co. (Minn.), 9-229. Oklahoma statute. — The Oklahoma stat- ute providing that the sale of a stock o^ merchandise in bulk shall be " presumed to be fraudulent and void, as against the cred- itors of the seller," is not unconstitutional, either as impairing the right to private prop- erty or as being class legislation. Wilhaiji? V. Fourth National Bank (Okla.), 6-970. FRAUDULENT CONVEYANCES. 821 New York statute. — The New York statute prohibiting the sale of merchandise in bulk except upon compliance with certain prescribed conditions is unconstitutional, be- ing in restraint of the rights of liberty and property guaranteed by the federal and state constitutions and not being a justifiable exer- cise of the police power. Wright iK Hart (N. Y.), 3-263. Ohio statute. — A statute prohibiting sales of raercli'Lindise in bulk cxc;'pt upon compliance with prescribed conditions is un- constitutional because placing an unwarrant- able restriction upon the right of an individ- ual to acquire and possess property and be- cause containing a forbidden discrimination in favor of a limited class of creditors. Miller v. Crawford (Ohio), 1-558. Utah statute. — A statute voiding sales of merchandise in bulk except when made in conformance with prescribed conditions is un- constitutional as abridging freedom of con- tract, as not a proper exercise of the police power, as class legislation, and because not exempting sales by persons acting in a fidu- ciary capacity or under judicial process. Block V. Schwartz (Utah), 1-550. b. Effect of acts. Sale presumptively fraudulent. -^ The Minnesota statute entitled "An act to prevent sales of merchandise in fraud of creditors," ■which declares that sales made without com- pliance with its provisions " will be pre- sumed to be fraudulent and void," does not render the sales so made absolutely void, but merely prescribes a rule of evidence and makes such sales presumptively fraudulent. Thorpe v. Pennock Mercantile Co. (Minn.), 9^229. Where the evidence to support an attach- ment sued out on the ground of a fraudu- lent conveyance or disposition of the debt- or's property shows a sale in bulk of the stock of goods levied upon, but the court finds that the sale was dn fact made in good faith and without actual fraud, the finding overthrows the statutory presumption of fraud, and the attachment should be dis- solved. Williams v. Fourth National Bank (Okla.), 6-970. Restoration of possession on avoid- ance. — Wliere a trustee in bankruptcy re- plevies goods sold by his bankrupt in viola- tion of the local sales in bulk law, he is en- titled to recover possession of goods placed in stock by the purchaser, if it appears that the purchaser merely replaced goods sold with others purchased with the proceeds of such Sales. Young v. LemieUx (Conn.), 8- 452. c. Conveyances within meaning of acts. Sale of separate business. — Where the proprietor of a general store also conducts a drug store as a separate and independent business in another building and under an- other name, the sale of the drug husiness is a sale of the proprietor's whole stocky in trade, within the meaning of the Connecticut sales in bulk statute making a sale of that character voidable at the instance of cred- itors. Young V. Leniieux (Conn.), 8-452. Sale of store fixtures. — As used in the Massachusetts statute prohibiting sales in bulk except when made in the ordinary course of trade, the phrase " stock of mer- chandise " is applicable only to the articles which the seller keeps for sale in the ordi- nary course of his business, and is not ap- plicable to a storekeeper's fixtures. Gallers V. Elmer (Mass.), 8-1007. Sale of stocli of livery stable, — The horses, wagons, and harness, comprising the stock in a livery stable, are not " stock of goods, wares, or merchandise " within the meaning of the Washington statute regulat- ing sales in bulk. Everett Produce Co. V. Smith (Wash.), 5-798. Sale to reorganized corporation. — Where an insolvent trading corporation, act- ing in good faith and without intent to de- fraud, transfers its merchandise and other property to a corporation organized for the purpose of getting new capital into the busi- ness, and the partners become stockholders in the corporation, and the corporation, after carrying on the business for a while, becomes insolvent, the creditors of the corporation are entitled to priority over the creditors of the partnership, though the transfer of the property _ is made without compliance with the provisions of a statute regulating sales of merchandise in bulk and providing that sales made in violation of the statute " will be presumed to be fraudulent and void." Thorpe v. Pennock Mercantile Co. (Minn.), 9-229. Sale to creditor. — The Georgia statute regulating sales of stocks of goods, wares, and merchandise in bulk applies to a sale of a stock of goods in bulk by a debtor to a creditor ^n extinguishment, total or partial, of his debt; and such a sale, made in disre- gard of this act, is fraudulent and void as against other creditors of the common debtor. Sampson v. Brandon Grocery Co. (Ga.), 9- OO l. The Massachusetts statute regulating sales in bulk was intended to prevent a trader from disposing of his stock of merchandise in a manner outside his usual course of busi- ness, and it prohibits a transfer by a trader to a creditor by way of accord and satisfac- tion of a pre-existing debt. Gallus v. Elmer (Mass.), 8-1007. Glvisig; of oliattel mortgage. — The giving of a chattel mortgage is not " a sale, transfer^ or assignment in hulk " of the prop- erty mortgaged, within the meaning of a statute regulating, for the protection of cred- itors, sales, transfers, and assiirnments in bulk, of any part of a stock of merchandise, fixtures, etc., pertaining to the conducting of a' taSmeSs. Hannah v. Richter Brewins Co, (Mich.), 12-344. ^ 4. Avoidance op Fraudulent Conveyances. a. Who riiay avoid. Executor 07- administrator of grantor. — An administrator is the proper party to 822 ANK CAS. DIGEST, VOLS. 1-20. sue for goods which once belonged to his intestate, but which were disposed of by the latter by a fraudulent transfer or gift. Wright V. Holmes (Me.), 4-583. An executor or administrator of a decedent cannot bring an action to set aside a convey- ance made by the decedent on the ground that the same was fraudulent as to creditors. As to such a conveyance the personal representa- tive stands in the shoes of the decedent, who could not have maintained such a suit in his lifetime. Nor can real estate fraudulently conveyed by a decedent in his lifetime be reached in a proceeding by the personal rep- resentative for the sale of the decedent's real property for the payment of his debts. Sif- ford V. Cutler (111.), 18-36. Surety in bail bond. — A bail in a crim- inal recognizance against whom an award of execution upon the recognizance has been made, and to whom a bond has been given to indemnify him against all loss or damage which he might sustain on account of having signed the recognizance, may file a bill in equity, before payment of the recognizance debt, to set aside a deed made by the obligor in such indemnity bond as made with intent to defraud him as a creditor. Carr v. Davis (W. Va.), 16-1031. Creditors in. general. — Any one who but for a deed made to defraud creditors would have the right to subject the property to his demand, is a creditor entitled to sua in equity to set it aside under chapter 71 of the West Virginia Code. That chapter embraces as creditors, as a general rule, all persons who have a, valid cause of action, and protects creditors whose claims are un- liquidated or contingent as well as those whose claims are liquidated or certain. Oarr V. Davis (W. Va.), 16-1031. Judgment creditor of nonresident. — A conveyance of real property may be at- tacked as in fraud of the grantor's creditors only by one of the latter; and one who ob- tains a judgment in persormm, against a non- resident by mere publication of summons is not by virtue of the judgment alone such a creditor as may attack a conveyance made by the nonresident. First Nat. Bank v. Eastman (Cal.), 1-626. b. Necessity that claim be reduced to judg- ment. Wbere debtor is a nonresident. — Gen- erally a creditor must reduce his claim to judgment before beginning an action to set aside a conveyance by the debtor as fraudu- lent; but where the debtor is a nonresident and a valid personal judgment cannot be ob- tained against him, such action can be main- tained by the creditor without obtaining a judgment. First Nat. Bank v. Eastman (Cal.), 1-626. Trustee in bankruptcy. — A trustee in bankruptcy appointed under the provisions of the National Bankruptcy Act occupies a relation similar to that of a judgment cred- itor of the bankrupt, and may file a bill in equity to set aside a fraudulent conveyance of real estate by the bankrupt, although neither the trustee nor any creditor lias re- duced any claim against the bankrupt to judgment. Beasley v. Coggins (Fla.), 5-801. c. Exhaustion of other remedies. Garnisbment proceeding. — In Ala- bama a creditor may maintain a bill in equity to subject to satisfaction of his debt choses in action fraudulently transferred by his debtor notwithstanding the fact that he may obtain similar relief at law in a garnish- ment proceeding. Hall w. Alabama Terminal, etc., Co. (Ala.), 5-363. d. Jurisdiction of court. Xiand situated in foreign state. — A court of equity has no jurisdiction to set aside as fraudulent a conveyance, executed within the state by a domestic corporation, of land situate in another state. West Point Mining, etc., Co. v. Allen (Ala.), 5- 532. e. Pleading. Sufficiency of bill by trustee in bank- ruptcy. — Allegations in a bill by a trustee in bankruptcy to set aside a fraudulent con- veyance by the bankrupt held to be sufficient. Beasley v. Coggins (Fla.), 5-801. Averment as to conveyance by cor- poration. — In a suit by a creditor to set aside a fraudulent conveyance of^ a corpora- tion, an averment that the execution of tlie conveyance was never properly authorized by the shareholders of the corporation shows no ground for relief, as that is a matter of which none but the shareholders can com- plain. West Point Mining, etc., Co. v. Allen (Ala.), 5-532. f. Evidence. Declarations of vendor. — The declara- tions of a vendor of goods claiming the goods and inconsistent with an absolute sale, made after the sale and while he remains in the actual possession of the goods, are com- petent evidence for the purpose of proving fraud in the sale. Piedmont Savings Bank V. Levy (N. Car.), 3-785. Burden of proof. — Where a conveyance or assignment is attacked as fraudulent, the burden of proving the fraud rests upon the party alleging it. Beaver v. Eoss (la.), 17- 640. g. Issues for submission to jury. Adequacy of consideration. — Under the National Bankruptcy Act of 1898, de- claring void all transfers of property by a bankrupt except as to purchasers in good faith and for a fair consideration, an issue submitted to the jury which is limited to the questions of good faith and knowledge of the fraud and which omits entirely the necessary ingrediert of a fair price, is not determinative of the real facts at issue. Piedmont Savings Bank v. Levy (N. Car.), 3-785. TEEE PASSES — GAME AND GAME LAWS. 823 FREE PASSES. Prohibition of free passes, see Carriers, 2 b. Persons riding on free passes as passengers, see Cabbiebs, 6 d (10). FREIGHT RATES. Discrimination as to freight rates, see Cab- RIERS, 4 h. Enjoining excessive freight rates, see Inter- state COMMEBCE, 5 b. Power of federal courts to pass on validity of state statute regulating freight rates, see Injunctions, 2 d (4). FREIGHTING. Significance in charter party, see Ships and Shipping, 2 a. FRIGHT. As element of damage, see Damages, 9 c. FUNERAL EXPENSES. Liability of husband for funeral expenses of wife, see Husband and Wife, 4 e. Liability of personal representative, see Ex- ECUTOES AND AdMINISTRATOES, 8 b. Liability of wife for funeral expenses of hus- band, see Husband and Wife, 5. Limitation of action against decedent's es- tate, see Limitation of Actions, 3. FURNITURE. Saloon furniture as fixtures, see Fixtures, 3. FURTHERANCE OF JUSTldE. Disclosure of proceedings before grand jury, see Grand Jury, 6. FUTURE DAMAGES. Allowance In condemnation proceeding, see Eminent Domain, 7 c (3). FROGS. Application of statute requiring blocking of frogs, see Railroads, 3 b. Duty of railroad to block frogs, see Masteb AND Servant, 3 c (1). FRUCTUS INDUSTRIAXES. See Peopertt. FRUIT. Prohibiting sale of fruit on Sunday, see Sundays and Houdays, 1 b. FRUIT TREES. Damages for injuries to, see Damages, 9 c. FUTURE DEBTS. Deed of trust to secure future debts, see Mortgages and Deeds of Trust, 5. FUTURE EARNINGS. Assignability, see Assignments, 1 b. FUTURE PAIN AND SUFFERING. See Damages, 3, 9 c. FUTURES. Buying and selling futures as interstate com- merce, see Interstate Commerce, 3 c. Sale of futures as gaming, see Gaming and Gaming Houses, 1 a. FUEL. Subject of monopoly, see Monopoijes and Corporate Trusts. FUGITIVES FROM JUSTICE. Rendition of, see Extradition. Right to speedy trial waived by becoming fugitive from justice, see Criminal Law, 6 c (1). FUNDS IN COURT. Liability of clerk for interest on funds paid into court, see Cuerks of Courts. GAMBLING. See Gaming and Gaming Houses. GAMBLING CONTRACTS. See Contracts, 4 g. GAME AND GAME LAWS. 1. Right to Take Fish and Game, 824. 2. What Is Game, 824. 3. Statutory Regulation, 824. a. Power to enact game laws, 824. (1) In general, 824. (2) Special or local laws, 824. 824 ANlSr. CAS. DIGEST, VOLS. 1 20. b. Gonstitutionality of statutes, 824. 4. Possession dubing Close Season, 825. 5. Liability fob Violation op Regula- tions, 825. 6. Seizure and Desteuction of Pbop- ebtt, 825. Expression in title of subject of statute for protection of game animals, see Stat- utes, 3 b. 1. Right to Take Fish and Game. Bight of o-nmer of land. — The right of the owner of land to take fish and wild game on his own land inheres in him by reason of his ownership df the soil, and is a prop- erty right subject only to the state's owner- ship aiid title, held for the purposes of regu- lation and preservation for the public use. State r. Mallory (Ark,), 3-852. Bights of state. — The state's ownership of fish and gahtfe iS ilot ^ueli a proprietary interest as will authorize a sale thereof, or the granting of special interests therein^ Oi: license to enjoy, but is solely for the purposes of regulation and preservation for the com- mon use, and is not inconsistent with a claim of individual of sJieciAl ownership by the owner of the soil. State v. Mallory (Ark.), 3-852. Bent^djr fcir ilkterfei'eud^ trith i-ight. — An action at law furnishes an inadequate remedy for the unlawful interference with the exercise of the fight to hilnt wild fowl on navigable waters and the threatened continu- ance of sUch interference. Consequently per- sons whose rights are thus interfered with are entitled to equitable relief. Ainsworth V. Munoskolig Hunting, etc.. Club (Mich.), 15-706. As the injury to such jjefsons is iffepa- rable, such interference may be restrained by injunction. Ainsworth v. Munoskong Hunt- ing, etc.. Club (Mich.), 15^706. 2. What Is Game. Game pheasants. — Pheasants are not the less " game " within the meaning of the English Game Act 1831 (§27), tjecause they are live tame birds which have been reared in confinement under barn door hens and have never at any time been at liberty. Cook V. Trevener (Eng.), 20-619. 3. Statutobt Regulations. a. I*ower to enact gatne laws. (1) In general. The power to control and regulate the kill- ing and use of game was vested in the co- lonial governments of America, and passed with the title to game in its natural condi- tion to the several states as they became sovereigns, for the use and benefit of all the people of the states respectively, subject to any prbvifiioll Of the Fedetstl Constitution that may be applicable to sUch control and regulation. Harper v. Galloway (Fla.), 19- 235. (2) Special or local laws. "file constitution of ttie state does not forbid the passage of special or local laws on the subject of game, and it contains no express provision relative to game; therefore the legislature may by a duly enacted law make any provision within its discretion for the preservation and conservation o'f the game in the state for the use and benefit of the people of the state, by regulating the taking or killing and use of certain or all kinds of game in any part of the state and during any periods, where such laws do not deny to any one having rights in the premises the due process of law or the equal protection of the laws that are guaranteed to all persons by the state and federal constitutions. Harper f. Gallowaj (Fla.), 19-235. The legislature may enact special or local laws within its discretion for the protection of game in the state, and by valid general laws may prescribe , punishments for viola- tions of the special or local laws, so as to avoid any real or apparent conflict with the constitutional provision that all laws " for the punishment of crime or misdemeanor " " shall be general and of uniform operation through- out the state." Harper r. Galloway (Fla.), 19-235. b. Constitutionality of statutes. Unjust discrimination. — The Arkansas statute making it unlawful for a nonresi- dent of the state to shoot, hunt, fish, or trap within the State, in so far as it prevents a nonresident owner of property within the state from enjoying the same property fight as a resident landowner, is a denial of the equal protection of the law and is a taking of property without dtte pfocess of law with- in the meaning of the Fourteenth Amendment Of the Pnited States Constitution. State v. Mallory (Ark.), 3^852. The provisions of section 8 of chapter 6005, Acts of 1909, that require of residents of the state of Florida whb Am hbt residents of Marion county, a previous notice of intention to hunt, arid the payWeilt of a spediail liceiise tax for the privilege of hunting game in Marion county, while no notice or license tax is required of residents df Marion county, are in effect a denial to the residents of the state *ho afe not residents of Marioh eouiity the equal protection of the la*s of the land in violation of the Fourteenth Amendme' t of the Constitution of the United States, and are inoperative aS to tesidertts' of this state. Harper ». Galloway (Fla.), 19-235. Classifications , 20-§89. 3. Construction of Statute. Exposing goods for sale. — Goods are ex- posed for sale within the meaning of a stat- ute against " exposing for sale " certain goods without a license, where a peddler has with him in his hand, in the presence of one whom he solicits to buy, goods which he refers to in his conversation as contained in a recep- tacle that he is carrying, which goods he offers to exhibit for tbe purpose of making a sale, even thougt the goods are at the time concealed from view by the receptacle that contains them. Commonwealth v. Hana (Mass.), 11-514. Construction of statute regulating peddlers' sales of " provisions." — Tea. and coffee are not " provisions," either with- in the ordinary sense of the word or within its meaning as used in the Massachusetts statute permitting hawkers and peddlers to sell provisions withg.Uit a lieense. Common- wealth V. Caldwerr (Mass.), 5-879. 4. Validity of Regulations. In general. — The South Dakota statute licensing peddlers-, ctmsidered "as an exercise of the taxing power does not conflict with the rule requiring alt taxation to be uniform. In re Watson (S. Dak.), 2-321. The South Dakota statute licensing ped- dlers, considered as an exercise of the police power, is not iftvalid as drscrftninatory leg- islation because of exemptions therein con- tained. In re Watson (S. Dak.), 2-321. Statute discriminating against non- residents. — The Massachijsetta . statute making ft a erfminal offense tax a hawker or peddler to expose certain goods for sale without a license is in violatroit of the Con- stitution of the United States as making an arbitrary ^aeriminatioB, between different classes of citizens, in that it provides, that a resident of a city or town in which he pays taxes upoB' bis stock in trade and. is qualified to vote shall not be required to pay any fee far his license for said city or town, and that licenses may be granted without charge to a person seventy years of age or upwards. CommoHwealth v. Hiaia (Mass.), 11-S14. Dlscriminatiom against products of foreign countries. — The Massachusetts statute regulatii^ sales by hawkers and ped- dlers is void as a regulation of foreiga com- merce, to the extent that it discriminates in favor of the agricultural products of the United States by permitting their sale with- out license while prohibiting the unlicensed sale of the agricultural products of for- eign countries. Commonwealth v. Caldwell (Mass.), 5-879. Statute dlsoriminating against for- eign products. — The Massachusetts stat- ute making it a criminal offense for a hawker or peddler to expose certain goods for sale without a license is in violation of the Con- stitution of the United States in permitting the sale of agricultural products of the United States without a license, and requiring a license for the sale of agricultural products of other countries. Commonwealth v. Hana (Mass.), 11-514. Confining right to United States citi- zens. — The Massachusetts statute making it a criminal offense for a hawker or peddler to expose certain goods foir sale witlvaut a li- cense is not in violation of the Fqiffteenth Amendment of the Constitution of the United States as taking property withont d\ie proc- ess of law or denying the equal protection of tlie laws, in that it a,llows no one to obtain a license unless he is, or has declared his in- tention to become, a citizen of the United States; but such provision is a valid exercise of the police power. Commonwealth «. Hana (Mass.), U-51.4. Discrimination against hucksters not raising, produce. — Under a charter which authorizes it to restrain and punish forestall- ing and regrating of provisions, a city has power to pass an ordinance permitting nuck- sters who raise their own produce to sell the same fioin wagons wjtliin the city limits without a license, but prohibiting sales by hvtekstera who do not i;aise their own ptadwce. Suich as, ordinance is valid, being a reason- able regulation calculated to protect the in- hiiibitanta of the city against the. unlawful raising a< the price of the necessaries of life. i)ntt«m K, Knoxville (Tenn.>, Ift-ioas. As hucksters who raise their own prodnce, and those who do not, belong to entirely dif- ferent classes, a municipal ordinance permit- ting the former to sell tliei? prmJuiK within the city limits without a license, but pro- hibiting the; gelling of piioduoe by tlie laitter, is not invalid for unlawful di^rimioation. Dutton V. Knoxville (Tenn.), 16-1028. The granting of hucksters' licenses by the state etsdi eountgr to buoksters who do not raise their own produce, does not render a city ordinftn^ pz^taiibLting the sale o^f produce by such hucksters inoperative, or authorize the holders of such licenses to violate the ordinance. Dutton ?. Knoxville (Tenn.), 16- 1028. prohibiting crjsing of wares oat street. — An ordinance probibiyng preddlers from srying their wares on the streets does not 4c^Tit>i«^ ^hem oj the rigjbit to engage in the business of peddling on the streets, ajid there- fore does not deprive them of property with- out due process of tew- Goodrich v. Busse (111.), 20-589. A person ewceded to. Itave the right t» aeU gfjjjds on tl^, *tFG«ta «f the city hsis »oi vested property right to advertise his gfjodis by pub- lic outcry, and the city may prohibit peddlers HAZARD — HJIALTH. 847 from thus advertising their wares, and there- by prevent a public nuisance. Goodrich v. Busse (111.), 20-589. Distlnotion as to place of peddling.— An ordinance prohibiting peddlers from ad- vertising their wares by public gutcry on the streets but permitting them to do so on li- censed amusement gi'ouiids does not discrim- inate against peddlers on the streets, because the conditions surrounding peddlers in the two classes of cases differ so as to furnish a reasonable basis on which to rest a classi- fication. Goodrich v. Busse (111.), 20-589. 5. Exemptions from License Laws. A statute making hawking and peddling without a license an offense is not rendered objectionable as class legislation by the fact that it exempts from its operation manu|ac- turers, farmers, mechanics, and nurserymen, selling their own work or production, and wholesale dealers selling by sample. PeopJe V. De Blaay (Mich.), 4r-919. 6, Cbiminal Pbosecution fob Violating License Laws. Information cbarging failure to pay annual tax. — An information charging defendant with violation of a statute requir- ing peddlers to pay an annual tax, which fails to charge that the defendant is not a mer- chant who has paid an weupation tax with- in the excepting clause of the statute, is jn- snffleient. Potts v. State (Tex.), 2-827. HAZARD. Betting on games of hazard, see Gaming and Gaming Houses. HAZARDOUS OCCUPATION. See Benevolent ob Beneficial Associa- tions, 5 e (2). HAZARDOUS USE AND OCCUPA- TION. Condition against hazardous use and occu- pation of insured property, see Insub- IWCE, 5 g (7). HEADLIGHTS. Rtmuing train without headlight at night as negligence, see Railroads, 8 b (3). HEAIiTH. 1. BoABDs OF Health anp Health Om- CEBS, 847. a. Enfprcement of orders, 847, b. Right to bring suit, 848. c. Right to destroy private pTopei;ty, 848. d. Liability for wrongful destruc- tion of property, 848. e. Prohibiting use of impure water, 848. 2. Health Regulations, 848. a. Garbage, 848. (1) What constitutes, 848. (2) Municipal regulation of re moval, 848. (3) Municipal liability for in- juries connected with re- moval, 849. b. Manufacture of clothing in tene- ment houses, 849. c. Sale of cigarettes, 849. d. Water-closets in schools and tene- ment houses, 849. 3. Quarantine, 849. Food laws, see Food. Judicial notice of unhealthfulness of occupa- tion, see Labor Laws, 1 a. Liability of landlord for disease communi- cated by infected premises, see Land- lord and Tenant, 5 h (2). Liability of municipality for acts of board of health, see Municipal Cobpobations, 9 a. Nonexpert opinion evidence as to existence of disease, see Evidence, 8 e. Power of municipality to regulate water sup- ply, see Waters and WATBacouRSES, 4 a. Power of school board to require vaccination as prerequisite to admission to public schools, see Schools, S b. Regulating removal of garbage, see Munici- pal COSPOBATIONS, 4 d (3). Regulation of keeping of poultry within city limits, see Municipal Cobpobations, 4d(3). Relevancy of health of person suing for per- sonal injuries, see Evidence, 2. Representations in application for member- ship in beneficial association, see Be- nevolent ob Beneficial Associa- tions, 4. Restricting hours of labor in unhealthy occu- pations, see Labor Laws, la. Vaccination as prerequisite to admission to public schools, see Schools, 4. Validity of law purporting to promote pub- lic health, see Constitutional Law, 5 a. 1. Boards of Health and Eeai.tb Officers. a. Enforcement of orders. Ancillary jurisdiction of court. — In a suit to enforce an order made by a board of health pursuant to a statute autiiorizing the board to make such orders and providing, that ibe court of chancery may enforce them, aji objection that the order in questipn can- not he enforced is unavailing, because if the coifrt thiijks that the order ouglit to b^ enr forced, it will m^ke an order ^f ijtg own of smib q. character that its enforcemeqt wiJl, enforce the order of the boftrd. State Board of Health v. St. Johnsbury a^ no); been PIOMICIDE. 866 communicated to the deceased. McCJray r. State (Ga.), 20-101. Xeatimony of accused as to intent. — In a prosecution for murder for causing the death of a person by means of a spring gun the defendant cannot testify that he did not intend to kill the deceased, although he may testify as to his general intent in keeping the gun. State Marfaudille (Wash.), 15- 584. (6) Proof of other crimes. In a prosecution for homicide, it is com- petent to prove that the defendant seduced the daughter of the deceased at the time when he was engaged to marry another young woman, and that the deceased threatened to prosecute tlie defendant for the offense, and it is not erroneous to permit the prosecuting attorney to say in his opening statement to the jury that he expects to prove the seduc- tion, where the evidence is offered and intro- duced for the purpose of proving a motive for the homicide, and the jury are instructed not to consider it for any other purpose. State V. Martin (Oregon), 8-769. In a prosecution of several seamen for a murder committed on the high seas, where one defendant voluntarily becomes a witness in behalf of himself and of his eodefendants, it is not prejudicial error for the prosecution to ask the witness on cross-examination whether he had not had trouble and tried to create insubordination on another vessel prior to the commission of the offense for which he is on trial, where lie denies the charge implied by the question and no at- tempt is made to contradict his testimony. Sawyer v. United States (U. S.) , 6-269. Where upon a trial for the murder of one who killed a town marshal who wa,s attempt- ing to arrest him for a pa^t violation of a municipal ordinance it appeared that, at the time of the homicide^ the marshal, accom- panied by a posse, attempted to arrest the accused, without a warrant, evidence that the accused had violated an ordinance of the town where such attempt to arrest was made, " in the presence of the deceased on [a named date], about four months before the killing, and that [the accused] was armed with a gun and resisted arrest," was not " irrelevant and immaterial." Yates v. State (Ga.), 9-620. It is error to allow the state, in cross-ex- amination of witnesses as to the good char- acter of the accused, to prove by them that, prior to the commission of the alleged crime, they had heard rumors or reports in the community where the accused resided, that he had committed certain other crimes of various character. State p. Diokerson (Ohio), U-1181, (7) Proof of corpus dilicti. Corpns delicti means the substance of the crime, and on a trial under an indictment for mui'der, proof of the manner and means in and by which the crime wp.s consummated does not relate to the corpus delicti, but solely and directly to the accused's guilty Vols. 1-20 — Ann. Gas. Dige.st, — 55. agency in the crime. State v. Knapp (Ohio), 1-819. ISsplaining disappearance of alleged decedent. — Where the defendant in a mur- der case claims that the person alleged to have beein killed is not dead but is only con- cealing himself, it is proper for the court to exclude evidence offered for the purpose of showing a larceny of live stock by such per- son as a reason for concealment, that he sold a horse to the witness shortly before the al- leged homicide, and that a third person after the date of the alleged murder Claimed the horse and compelled the witness to pay him for it. Such evidence is inadmissible both because or irrelevancy and because it is hear^ say. Ausmus v. People (Colo.), 19--491. Sufficiency of evideUoe. — The ooTpUa delicti in a murder ease is proved by the finding of a human skeleton buried in th* ground with a bullet hole through the skull from back to front, and so located that it could not have been self-inflicted, though there is no evidence as to the identity Of the deceased or as to who killed him. Ausmus V. People (Colo.), 19-491. The finding of the jury on conflicting evi- dence as to the identity of the deceased in a murder case will not be disturbed on appeal. Ausmus V. People (Colo.), 19-491. On a trial under an indictment for inurder, if the facts extrinsically proved by the state corroborate the confession of the prisoner, positive evidence of the corpus delicti is not indispensable to admit the confession in evi- dence, and such evidence taken together will support a verdict of guilty if the jury is per- suaded of the guilt of the prisoner beytmd a reasonable doubt. State v. Knapt) (Ohio), 1-819. b. Weight and sufficiency of evidence. In general. — In a prosecution for mtir- der in the first degree, evidence examined and held to sustain a conviction. People v. Gil- bert (N. Y.), 20-769. Evidence examined and held sufficient to sustain a verdict that the death of the de- ceased Was the result of strychnia adminis- tered by the defendant. Levering v. Com- monwealth (Ky.), 19-140. Evidence examined and held sufficient to sustain a verdict of guilty of murder with capital punishment. Johnson v. State (Okla.), 18-300. Evidence examined and held sufficient to support a conviction of murder. Elias v. Territory (Ariz.), 11-11,53. In a prosecution for homicide, evidence held to justify the submission to the jury of the question whether the defendant was guilty of murder in the second degree. Dillon v. State (Wis.), 16-913. In a prosecution for murder in the first degree, evidence examined and held that the issue of the defendant's guilt or innocence was for the determination of the jury, and that the defendant's conviction should not be interfered with by the appellate court. Peo- ple K. Rogers (N. Y.), 15-177, 866 ANN. CAS. DIGEST, VOLS. 1-20. In a prosecution for murder, evidence ex- amined and held to justify the jury in find- ing that both the accused and the deceased engaged in a mutual combat with malice and after having had ample time for premedita- tion and deliberation, and therefore to sup- port a verdict of murder in the first degree. Strong V. State (Ark.), 14-229. A verdict of conviction for murder will not be set aside for want of sufficient evidence of the identity of the defendant where the wife and daughter of the deceased identify the de- fendant as the person who did the killing, and incriminating circumstances strongly corroborated by admissions and statements of the defendant himself all point to his guilty participation in the murder. State v. Jeffries (Mo.), 14-524. In a prosecution for murder, evidence from which the jury can find that shortly after a quarrel between the defendant and the de- ceased woman he got into a cab with her, and upon her statement that she would tell his father how he had treated her, shot her with a pistol, and, as she was falling from the vehicle, shot her again, is sufficient to support a verdict of murder in the first de- gree. Brewer v. State (Fla.), 12-79. Evidence reviewed, in a prosecution for murder, and held sufficient to justify a con- viction for murder in the second degree un- der the statute providing that a killing, " when perpetrated by any act eminently dangerous to others and evincing a depraved mind, regardless of human life, without any premeditated design to effect the death of the person killed, or of any human being, shall be murder in the second degree." John- son V. State (Wis.), 9-923. Circumstantial evidence. — A conviction for murder will not be set aside for insuffici- ency of the evidence where the evidence, though circumstantial, is well connected and excludes every reasonable hypothesis except the guilt of the defendant. Schwartz v. State (Tex.), 11-620. Manslaughter may be proved by circum- stantial evidence. State v. Gillis ( S. Car. ) , e-993. Fnrpose of person present to aid and abet. — Evidence reviewed, in a prosecution against two defendants for murder, and held sufficient to justify the jury in finding that one of the defendants was present at the time of the homicide for the purpose of aid- ing and abetting the other, and was therefore a coprincipal. State v. Jarrell (N. Car.), 8-438. Vinietlier aider and abetter acted under fear of death. — Evidence held to warrant a finding that the accused, who as- sisted in the homicide, did not act under du- ress by reason of fear of death at the hands of the person assisted. State v. Nargashian (R. I.), 3-1026. Venue of crime. — The evidence is suffi- cient to sustain the finding of the jury that the scene of a homicide was within the ex- clusive federal jurisdiction, where the deeds and condemnation proceedings assented to by state legislation an(^ authorized by Congress, under which the United States claims title to the premises as a military reservation, are put in evidence, together with official maps in the engineer's department, made from original surveys under the authority of the war department, and a book showing titles to such reservation, compiled under the same authority, even if evidence of the de facto exercise of exclusive jurisdiction is not enough. Holt v. V. S. (U. S.), 20-1138. 7. Indictment and iNroBMATioN. Sufficiency of common-law indict- ment. — An information under the Mon- tana statute for murder in the first degree need not allege that the acts were done de- liberately, notwithstanding the fact that the statutory definition of the offense uses the word " deliberate," but it is enough if the information contains allegations sufficient for a common-law indictment. State v. Lu Sing (Mont.), 9-344. Preliminary averment as to charac- ter of assault. — An indictment for murder which charges that the acts constituting the assault were done feloniously and with mal- ice aforethought need not contain such alle- gations in the preliminary averment of as- sault. Holt V. U. S. (U. S.), 20-1138. Alleging venue. — An allegation in an indictment for murder that the crime was committed " within the Fort Worden Mili- tary Reservation, a place under the exclusive jurisdiction of the United States," charges with sufficient clearness that such reserva- tion was under the exclusive jurisdiction of the United States at the time of the murder. Holt V. U. S. (U. S.), 20-1138. Bepetition of feloniously. — Where the charging part of an indictment for mur- der is in one sentence and the word "feloni- ously" used in relation to the assault is so connected with the subsequent portions of the sentence as to modify them by a fair and reasonable interpretation, it is not necessary to repeat the word " feloniously " in connec- tion with each act necessary to constitute the crime, but if the pleader uses words to describe the intent with which the mortal wound was inflicted, other than those used to charge the intent with which the assault was made, the words " then and there " used in connecting the infliction of the mortal wound with the felonious assault, will be interpreted to refer to time and place merely, and not as a vehicle to carry the intent with which the assault was made through the in- dictment so as to modify the intent in mak- ing the mortal wound, and the indictment will be insufficient for failure to charge that the mortal wound was inflicted feloni- ously. Wright V. United States (Okla.), 11- 995. Descriptions of ireapon, — Where an indictment for murder alleges that the wounds that caused death were inflicted with " a piece of two-inch plank," or " an axe handle," it is not necessary to allege that these instruments were deadly weapons, or to give their size, weight, or dimensions. Jqhnson V, State (Okla,), 18-300, HOMICIDE. 867 Seaoriptlon of deceased as hnman being. — Where an indictment charges the defendant with the murder of " Mary Cuppy," it is not necessary to allege that " she " was a human being, this being a matter of proof, rather than of pleading. Johnson v. State (Okla.), 18-300. An indictment for murder need not spe- cifically allege that the victim was a human being. The use of the word " murder " and the use of an ordinary name and surname in describing the victim, e. y., the defendant did "kill and murder Viola Hughes," suffi- ciently shows that a human being is meant. People V. Gilbert (N. Y.), 20-769. Equivalent terms. — Under the Mon- tana statute defining murder and classifying as murder in tte first degree any kind of "wilful, deliberate, and premeditated kill- ing," an information alleging that the kill- ing was done wilfully, unlawfully, feloni- ously, premeditatedly, and with malice afore- thought, sufficiently charges murder in the first degree though the word "deliberate" is omitted. State ('. Hliboka (Mont.), 3-934. Election on connts. ^ In a prosecution for murder, in which the defendant is con- victed of killing the deceased with his own hands, as charged in one count in the in- formation, no error is committed in failing to require the state to dismiss another count charging the defendant with having aided and abetted another person who did the kill- ing. State V. Jeffries (Mo.), 14-524. Variance. — A homicide need not be proved to have been committed on the day charged in the indictment. It is sufficient to show that it was committed at any time before the indictment was filed. State v. Vanella (Mont.), 20-398. Nonprejndicial error. — Under the Mon- tana statutes providing that an information is not rendered invalid by a defect in the matter of form or by a mistake therein which does not actually prejudice or tend to preju- dice the defendant in respect to a substan- tial right, an information is not rendered insufficient to support a conviction for mur- der in the first degree by the fact that it uses a meaningless word " deliberatedly," and fails to use a proper word importing de- liberation. State V. Lu Sing (Mont). 9-344. Indictment good for degree of con- viction. — A defendant convicted of man- slaughter under an information for murder in the first degree cannot complain that the information fails to charge that it is upon the oath of the prosecuting officer, as, even with the omission, the information is suffi- cient to charge manslaughter. State v. Mor- gan (Mo.), 7-107. Where one is indicted for murder, but the indictment, although sufficient to charge man- slaughter in the second degree, is not a good indictment for either murder or manslaughter in the first degree, ^nd the defendant is put on trial for murder, and the jury returns a verdict of manslaughter in the second degree, the defendant cannot thereafter complain that he was tried upon the theory that the ipdiptm^itt was a goad indictment for mur- der, unless it appears from the record that the defendant may have been prejudiced there- by; and the prejudice will not be presumed from the fact alone that the prosecution and the court proceeded upon the theory that the indictment was a good indictment for mur- der. Loudenback v. Territory (Okla.), 14- 988. 8. INSTBUCTIONS. Absence of motive. — In a prosecution for murder, it is proper to refuse the de- fendant's request for an instruction that " the absence of all evidence of an inducing cause or motive to commit the crime, when the fact is in reasonable doubt as to who committed it, affords a strong presumption of innocence," for the reason that the in- struction would necessarily confuse the jury by leading them to infer that after they had come to the conclusion that there was a rea- sonable doubt as to who committed the mur- der they must still pursue their investigation of the case further, and for the reason that it is for the jury to determine whether the presumption is strong or otherwise. State V. Lu Sing (Mont.), 9-344. Deliberation. — In a prosecution for murder, an instruction defining deliberation and premeditation, and declaring that if the killing is not the instant effect of impulse, if there . is any hesitation or doubt to over- come, a choice made as the result of thought, "however short the mental thought," the struggle of the mind, it is sufficient to char- acterize the crime as being deliberate, is not erroneous in the use of the clause quoted. People V. Gilbert (N. Y.), 20-769. Individual opinion of jurors. — The defendant in a prosecution for murder is not prejudiced by and has no cause to complain of an instruction which tells the jury that each juror " should act for himself and form his own judgment, uninfiuenced by, and inde- pendent of, the judgment of others, and thus determine the guilt or innocence of the de- fendant from his own standpoint." Such an instruction does not tell the jury that its members must not discuss or indulge in an interchange of views concerning the guilt or innocence of the accused, and it will not be assumed that the jury so understood or acted upon the instruction, especially as the de- fendant, if he had deemed the instruction prejudicial as forbidding free consultation, could have had the jury directed to consult by putting forward a substantive proposition to that effect. Knapp v. State (Ind.), 11- 604. V '> Instruction as to killing by spring gun. — In a prosecution for murder, it is error to instruct the jury that one who sets m his trunk a spring gun which results in the death of a human being is guilty of mur- der in the second degree. In such a case the court should instruct the jury as to when a person may take human life in defense of person or property, and should allow the jury to apply the law to the facts as they find them. State v, Marffiudille (Wash.), IS- 584, ^' ANN. CAS. DIGEST, VOLS. 1-20. Consideration of grades dt oSbnse.'^ In a proj^eUtion for homicide it is {nroper to instruct the jvlty that they shbuld first take up the question of murder iri the first degree, and that if they do not find the faet^ necessary to a coriviotibn, they should take up the nest lower grade of horaioidej and so pro' ceed down the line until they come to the question of justifiable or excusable homicide, and also to instruct the jury that they need not consider a lower degree Of Ofi'etise if they find the defendailt guilty of a higher one. Dillon V. Statfe (Wis.), lfe-918, Refusal 6£ imrtruotioit eatpIMniUg fli^t. — In a prosecution for homicide, where the case upOn the evid«nC6 is vsry clos*, the refusal df a requested charge that the juf-y may consider, itt cotthection with the circumstance that the defendftht Went ffOlfl the town where the homicidfe occurred to his home in the eotiritry after the killing, the additional fact if proVedj that Oh the day following his return home he veluJttSrilj' notified the sheriff Of the County that he would ebffle in the ttext day and sUfrendet himeelf, is error, which is not BUt-ed by a charge that the defendant's flight, even if prdved, toay only be considered as a fcii-fiutn- stance of gtailtj and that, unless the evidfeiice' is 60 positive and dertain as to pfbdude iti the minds of the jufy a solemil doflvietiofl be- yond all reasonable doubt that the defendant is' guilty, they should acquit hiiflj Bell «. State (Miss.), 11-481. S61f>-d«feiii«tr not in iasne< — Where there is no cTidence te establish a ease of justifiable homicide as defined by the Wis- consin statute, afld the defendant denies that he killed the deceased ifl aelf-defense, it is Unnecessary to instruct the jury as to jUStl-* fiable homicide. Dillon v. State (Wis.), 16^ 913. Iitisier degrees not suppot^ed hj evi^ dentiei — In a prosecution for mtirder there is no error in refusing to instruct the jury upon the question of ihroluntary kilUii^ where there is no evidence in the case upon which to base such an instruction. State V. Megorden (Ore.), 14-180. Cii'onnistan'tial evidence. -^ Where in a, pfoaecution for murder, the State's case rests entifely on circumstantial evideflde, the jury should be told so and Should be in- structed as to the rules governing circum- stantial evidence; and it is erroneous for the court in its instructions to define both dii'ect and circumstantial evidende and submit the case to the jul-y tipon the theory that there is in the record evidence of both classes froJil either or both of Which an inference of guilt can be dfawn. State v. Blydenburgh (la.), 14-443. Reasonable doulit. — On a trial for inur' der, an instruction that if, after a fair and impartial cdnsidefation of the entire testi- mony in the case, the Jury entertain any rea- sonable doubt as to whethef the deceased came to his death ill any other manner than that charged in the informati&nj thert it is their duty to acquit the detfendant, is errone- ous; the true rule being that if the jury hjtve. any reasonable doubt that the d46fliM6S. iktae to his death in the manner ehatged ift tM information) they should acquit. State V, Berbei-ick (Moftt.), 18-1077. Nec^ssit^ for request for instraetiliil ai t6 threats by deceased. '^ In a hoitil-' cide case, where self-defense is relied upoil by the defendant and testimony is gives of threats made against him by the detJeftSSd, some of ivhich were cortimunicttted to hiifi, the court may, in instructing as t6 the threats, Omit a reference to the coftlltiUhica- tion of the thl-eats, where hO rflStrudtion ai to communicated thifeats is asked. State v> Nelson (Kafi.), 1^468. Il&riuless er^or. — A defendant WKd Bas been convicted of murdsf in the secbiid de- gree cannot complain that th* 6durt cha?g^ the law of manslaughter, and that the evi- dence did not justify such a charge. State V. Vanella (Mont.), 20-3&8. 9. PuNiSHM]si«*. Rednotion of sentence on appeal. — On review of a conviction for murder in. the first degred, the facts considered and held sufficient, under section 609a of the Crim- inal Code of Nebraska, to call for a reduc- tion of the sentence of death, imposed by the trial court, to that of imprisonment for life. Hamblin v. State (Net.), 16-569. iO. CONTINtJANGE. In a pi'dSfefcuiibh of a penitentiary convict fot th6 mtll-didi' of another convict, aii aM- davit idt CdntinuaHce Setting forth that tlie accused is hot feady iot trial tetauSe of the abseAdfe of a *itheSs Whd Will testify that he was a guard down to the timfe of the killing, and that the deceased was reported to him fbV thi-eatehing, iftsitltino', and.dedlarillg his purpose to' assaillt the defendant, and thit hd, aS gUai'd, had fofbidden the deddaSed, uiider penalty, fi'oin thl-eatening to aSsault or in- sult the defendant, is pt-op^l-ly exdlud^d, bd- canse the testimony WhldH it is alleged thft absent Witness will give is mertiy hea,fsay arid fails to cast any li|lit Up6h anj^ IsSUe of the trial. Suffakei- v. C6ftimd»Wealt& (fef.t, 14-487. 11.- ABQtlMBNT OF OOUNSBL. In a homicide caSe, where evidence as to thfe pbssession hy the deceased of ftlone^ ptiot t6 the liilling and its' Subsequent possession by the defendant IS introduced to siidw mb- tite, remarks Of the disti'ict attofney that the deceased had been working for thirty dollars pef month ate hai'ftileSs, Ihough there is no evidence of it, where the ar^iheht is n6t interrupted, nd ruling is requested on the point, and no exceptibrt is takeii Respect- ing it. Cohi. V. Richmond (Mass.), 2d-l269. l2. f'OBlilEE jEbPARtlT. Prior conviction Of assanlt. — I'he commitment df a pel-son to a state peniteii- tiafy to serve a tefm fof- felohious assault does not afi^ect the jufisdictiofl of the liOtttt HONESTY ^ HOSPITALS AND ASYLUMS. 869 sitting in the county in wliieli the crime waa opmmitted to try such person for murder after the person assaulted has died, and the aocused has been removed from the penis tgntiary and brought within the jurisdietion of habeas corpus at the instance of the 4is= triet attorney. Commonwealth v. Eamunno (Pa.), 12^18. 13, jNSAfflTY Ap PfJ'EpSE. On the trial of a person charged with niur! der in the first degree, where the defense of insanity is presented by the evidence, an in^ struction ^Ji^t when the 4pf8ndg,nt hfts intro- duced evidence as to his mental condition suf- ficient to raise a doubt as to his sanity, which the law presumes, then It is Incumbent upon the state to overcome such doubt, and to es- tablish by evidence beyond a reasonable doubt that the defendant was sane at the time of the commission of the acts charged, does not present reversible error as tending to mislead the jury as to the burden of proof, when ac- companied by other instructions clearly stat- ing that the burden of proof never shifts, but as to all defenses which the evidence tends to establish rests with the state throughout. Hamblin v. State (Neb.), 16-569. In such a case, where the claim and testi- mony of the accused are that he was uncon- scious of his act, and has no reoolleotion of the occurrence, it is not error for the court to instruct the jury that if the accused was, at the time of the alleged criminal act, labor- ing under an aberration of mind to such a degree that he was unconscious of his acts, so much so that his intellectual powers were obliterated to that extent that he had no will, no purpose, no consciousness of right or wrong, he should be acquitted. Hamblin V. State (Neb.), iq-§e9. In such a case, where the jury have been fully instructed upon every feature of the case, including the defense of insanity and the question of reasonable doubt, a further instruction which cpvep^ tjie physical facts of the case and states that if they are estab- lish^fl beygijd % rp^^epablp (Jprtt, "thep th^ defendant is guilty of murder pj- man- slaughter according as the evidence as ex- plained in these inatructiens proves the one or the other," is not erroneous as withdraw- ing the 4pf«nse tif ins^pity frpm the jury, Hamblin v. St^te (Neb.), Ig-Sgp. HONESTY, Proof of reputation for honesty, see Cbim- iNAL Law, 6 n (3). Words affecting honesty as libelous, see Libel and Slandeb, 2 h. HORSE RACES. Betting on horse raee, see GAi|fiNa and Sam^ iNG Houses, 1 b. Bestraining lease of city property for hor3e racing purposes, sea Isjuktotions, .3 b. HORSESHOER^. Licensing horseshoers, see LtpsNSES, 6. HORSES. Frighteniijg horses, see Animals, 2 c. Injuries by horses in highway, see Animals, 2 e, Leaving horse at inn stable as constituting owner a guest, see Inns, Boakdinq Houses, and Apartmbwits, a. HOSPITALITY. Giving liquor to minor as apt of hospitality, see Intoxicating Liqdobs, 5 h. HOSPITALS A^D ASYLUMS. 1. Public Hospitals and Asylums, 880. 9. Iij gpnerjvl, 8^9. b, Duty of niynjpipfility tp care foy sjcfe, 870. c. Liability pf municipality for negi Ijgejice, 870. 4, Lialility of asylup) for tqfts flf ipm^tcs, §7P, 2. PmVATE IJOSBITIALS AND ASYLUMS, ma. 3. Hospital as ^IUISANCE, 870. Commupioations between physician holding plipjcs ^t }i(>§pit£vl fin4 patieijt ji) lios- pitfij jis privileged, s^e Witnesses, 3 d (?). ' Hospital as puis^flce, se§, Nufs^NQpp, J Ji. Ipsane ^syhin}S, see j:rf8ANlTY, ' Lial)ility of hpsband to s^ppovt wifp in lunatic asyji?pi, see Hp^pAi?D ^nd Wife, 4 a (1). Liability of raijrqad hospital fqr injury to patient, sep MA8??ir 4N13 SJievaii^t, 3 j'. Records of hospitals a3 privileged, see Wit- ness!;^, 3d (2). I. PuB^i-ip Hosp^TAts AND ^p.y;,uit^- a. In general. Cp^j^trnptiop •»* statute flT^t^ppi^Jl^e establishment. — 4a use4 \^ thp M^as^ chusetts statute relating to the establishment of hpspitals for cpnt?igiau^ dipeftseg t\\e wprcj town" includes a city. Barry' v.' Smith (Mass.), 0-817. ' Creation by special act of legisla.. *'"«•.— The provision of the California con- stitution prohibiting the creation of corpora- tions by special acts of the legislature does not prevent the creation by a special act of a state hospital for the insane, which is a pub- lic corporation acting merely as an agency of the state for governmental purposes. Napa Stnte Hospital r. Dasso (Ci^l.). 15-910 LiabiUtr ofi niHniofpallty for loca- tion, r. Where the board of health of a olty 870 Al^+X. CAS. DIGEST, VOLS. 1-20. are required by statute to exercise their dis- cretion in determining the erection of a hos- pital for contagious diseases, they are not liable for mistake or negligence in the selec- tion of the location. Barry r. Smith (Mass.), 6-817. In an action against the board of health of a city to recover damages resulting from the maintenance of a smallpox hospital, brought by the adjoining owner of property in the city, it is no ground for recovery that the hospital is located closer to dwellings in an adjoining city than is permitted by statute. Barry v. Smith (Mass.), 6-817. Right to nse adjoining premises. — Where the board of health of a city estab- lish a smallpox hospital on land hired for that purpose, they cannot use adjoining prem- ises for hospital purposes to the exclusion of the owner and his tenants unless they acquire the right by an agreement with the owner or in the manner provided by statute. Barry V. Smith (Mass.), 6-817. b. Duty of municipality to care for sick. Delegation to private institution. — A city which is charged by statute with the duty of caring for poor persons who are afflicted with contagious diseases cannot transfer the duty to an incorporated hos- pital which has received a testamentary gift in trust for the purpose of providing free medical treatment to sick, injured, and in- firm poor persons. Stearns v. Newport Hos- pital (R. I.), 8-1176. c. Liability of municipality for negligence. Negligence in management of pest- honse. — The failure of a city to appoint a board of health as an instrumentality in pro- tecting the public health, as it is authorized by statute to do, cannot affect its liability for negligence in the management of a pest- house. Twyman v. Frankfort (Ky.), 4-622. A municipal corporation held not liable for negligence in the management of a pesthouse whereby a person confined therein was in- jured. Twyman v. Frankfort (Ky.), 4-622. A city does not become a participant in the negligent acts of those who have in hand the removal of a diseased person to the city pesthouse, by reason of the fact that the city council in seeking to enforce a proper ordi- nance directs such removal. Twyman v. Frankfort (Ky.), 4-622. d. Liability of asylum for torts of inmates. Negligent or malicious injury to em- ployee. — A lunatic asylum created by the state and maintained at its expense as an eleemosynary institution for the beneficent purpose of caring for persons of unsound mind is not liable for a personal injury in- flicted upon an employee by a lunatic in its charge engaged in work for the asylum, though such injury results from negligence or malice on the part of the lunatic. Leavell V. Western Kentucky Asylum (Ky.), 12-827. The fact that the statute from which an eleemosynary insane asylum derives its cor- porate life and powers declares that it may sue and be sued does not render the institu- tion liable for torts committed by its inmates or employees. Leavell v. Western Kentucky Asylum (Ky.), 12-827. 2. Private Hospitals and Asylums. Liability for negligence of em- ployees. — Liability of the owners of a pri- vate sanatorium for negligence of the em- ployees. Stanley v. Schumpert (La.), 8- 1044. 3. Hospitals as Nuisances. Maintenance of smallpox hospital. — The board of health of a city are not liable for negligently maintaining a smallpox hos- pital in such a manner that it is a nuisance to an adjoining owner, unless the nuisance is caused by acts of misfeasance, as distin- guished from nonfeasance, committed by them personally or by others in their pres- ence. Barry v. Smith (Mass.), 6-817. In an action for damages based on the maintenance of a, smallpox hospital it is competent for the defendants to testify that they are members of the board of health of the city wherein the hospital is maintained, whether or not their evidence is sufficient of itself to establish their legal right to hold such offices. Barry v. Smith (Mass.), 6-817. HOSTILITY. Hostile possession, see Adverse Possession. Impeachment of witness by showing hostil- ity, see Incest, 4 c. HOTCHPOT. See Advancements. HOTELS. See Inns, Boarding Houses, and Apart- ments. HOURS. Injuries to servant from working undue num- ber of hours, see Master and Servant, 3 a. Begulating hours of labor, see Larob Laws. HOUSE BREAKING. , See Bubolart. HOUSES. See Buildings. Disorderly house, see Disobdebly Houses. Gaming house, see Gaming and Gamixg Houses. Storage of explosive near dwelling house, see Explosions and Explosive's, 1 b. HOUSES OF EEFUGE, ETC. — HUSBAND AND WIFE. 871 HOUSES OF REFUGE AND CORKECTION. Commitment of wayward or incorrigible children, see Infants, 4 c. Place of imprisonment for contempt, see Contempt, 5. HUCKSTERS. See Hawkers and PEDDLBais. HUMANE SOCIETY. Power in respect to animals, see Ayi3SALS, 5. HUNTING. See Game and Game Laws. HUSBAND AND WIFE. 1. Disabilities of Mabbied Wouait, 872. a. Contracts, 872. b. Confession of judgment, 872. 2. Eights and Liabilities Inteb Se, 872. a. Antenuptial agreements, 872. (1) Validity, 872. (2) Consideration, 873. (3) Oral agreements, 873. (4) Effect, 873. b. Antenuptial conveyances by in- tended husband, 873. c. Rights of husband during mar- riage, 874. d. Eights of wife during marriage, 874. e. Payment of taxes on land of spouse, 875. f. Suits between husband and wife, 875. g. Conveyances to husband and wife, 875. h. Community property, 875. i. EflFect of marriage upon existing contracts between parties, 875. 3. Rights against Thied Pebsons, 875. a. Actions by husband for injuries to wife, 875. b. Actions by wife for personal in- juries, 876. u. Release of claims, 876. 4. LiABiLiTT OF Husband to Third Per- sons, 876. a. Support of wife, 876. (1) In general, 876. (2) Prosecution for failure to support, 876. b. Necessaries, 877. c. Wife's debts, 877. d. Wife's torts, 877. e. Wife's funeral expenses, 877. 5. Liability of Wife to Third Persons, 877. 6. Alienation of ArFECTioNS, 878. a. In general, 878. b. Who may maintain action, 878. 0. Liability of parent or guardian, 878. d. Evidence, 879. e. Damages, 879. f. Questions of law and fact, 879. 7. Criminal Conversation, 879. a. Necessity for alienation of aflfec- tions, 879. b. Right of wife to sue, 879. c. Defenses, 879. d. Damages, 879. e. Evidence, 880. f. Instructions, 880. 8. Habeas Corpus, 880. 9. Estates by Entirety, 880. a. Creation of estate, 880. b. Rights of tenants, 881. c. Rights of third parties, 881. d. Effect of divorce, 881. «. Effect of death on one spouse, 881. f. Statutory abolition of estate, 881. See Divorce; Doweb; Maeriaoe. Burning property of spouse, see Arson, 1. Competency of husband to testify for wife in action for personal injuries under cir- cumstances constituting a crime, see Assault and Battery, 2 1. Competency as witnesses for and against each other, see Witnesses, 3 b (2). Control of husband by guardian, see Guard- ian AND Ward, 2. Debt due husband and wife as subject to garnishment against husband, see Gar- nishment, 1 f. Enforcement of antenuptial contracts, see Specific Pebformancb, 3 a. Expression in title of subject of statute mak- ing wife competent witness against hus- band, see Statutes, 3 b. Forcible carnal knowledge by husband of wife as rape, see Rape, 1 b. Inducing husband to desert wife, see Con- spiracy, 1 a. Joinder of cause of action for injury to wife and to property of husband, see Ac- tions. Joint appeal from foreclosure of mortgage on homestead, see Appeal and Error, 5 b. Larceny by husband of wife's property, see Larceny, 4 a. Married women as incorporators, see Corpo- rations, 2 a. Married women as partners, see Partner- ship, 1 a. Ownership of property by wife as qualifying husband for jury service, see Jury, 2. Power of married woman to act as trustee, _ see Trusts and Trustees, 3 a. Privileged communications, see Witnesses 3 d (4). ' Privy examination of married women, see Acknowledgments. Proof by wife of nonaccess of husband see Bastards; Evidence, 2. ' 8Y2 ANN. CAS. DIGEST, VOLS. 1-20. Proof of relation in prosecution for statu- tory rape, see Rape, 2d (3). Refusal of wife to join in deed as defense to Epecifie performBnce, see Specific Peb- FOEMANOB, 3 f ( 7 ) . Removal of disabilities of married woman as matter of public policy, see Conflict OF Laws, 1. Right of husband to alimony, see A14MONY AND guiT Money, 1. Right of husband in wife's property, see CuBTpsy. Right of husband to insure wife's property, see Insueance. Right of married woman to hold shares of stock, see Cdbpoeations, 8 g (3). Right of married woman to mainj;^in bas- tardy proceeding, see Bastaedy. Eight of married woman to redeem husband's land from mortgagee, see Moetgages AND Deeds of Tedst, 12 a. Right of married woman to witness fees in litigation by husband, see Witnesses, 1 b (1). Right of widow to husband's dead body, see Dead Body. Right of widow to sue for suicide of husband in consequence of intoxication, see In- toxicating LiQUOBS, 8 a. Right to sue for death of wife, see Death by Wbongfui, Act, 6. Separation of husband and wife as forfeiture of homestead, see Homestead, 6. Testamentary capacity of married women, see Wills, 4 a. Validity of judgment against married woman sued as feme sole, see Judgments, 2. I. Djg abilities of Maebipp Woj):an. a. Contracts. See also Conflict of Laws, c (3). Comiuon-lair rnle. — At common law the contracts of a. married woman are abso- lutely void and not simply voidable; and this disability of a married woman to contract cannot be overcome by any mode of acknowl- edgment, or method of e:^ecution, or by upjt- ing with her husband in execution of a con- tract. Forsyth v. Barnes (111,), 10-710. Conveyance Iby wife to husband. — Though a husband joins in his wife's deed, she canpot make a valid conveyance of her real estate to him. Alexander i. Shalala (Pa.), 20-1330. b. Confession of judgment. Invalid under common la\r, -^ At com- mon law a confession of judgment on a war- rant of attorney executed by a married woman is void as to her and can be attaqked either directly or collaterally. Forsyth v. Barnes (111.), 10-710. Evidence of coverture. — Where cover- ture is not specifically put in issue under the pleadings in an action on a foreign judgment by confession against a m^Tfied woman, qvir dence of that fact is properly admissible under the plea of nvl tiel record. Forsyth V. Barnes (111.), 10-710. 2. Rights and Liabilities Inteb Se. a. Antenuptial agreements. (1) Validity. In general. — Antenuptial agreements determining the rights which each party shall have in the other's property are not against public policy, but are valid and en- forceable. Kroell «. Kroell (111.), 4-801. Antenuptial contracts between persons con- templating matrimony, determining the pro- spective rights of each in the property of both parties during and after marriage, are not against public policy and are enforceable. Rieger v. Schaible (Neb.), 16-700. Common-laiv rnle. -• Antenuptial con- tracts were void at common law and did not constitute a bar to dower. Rieger v. Schaible (Neb.,) 16-700. Contract barring husband's home- stead rights. — An antenuptial contract cutting off the intended husband's homestead right and his statutory one-third interest in his intended wife's property is not prohibited by the Minnesota statute, and is valid. Ap- pleby V. Appleby (Minn.), 10-563. Provision for husband on wife's death. — Where an antenuptial contract contains a stipulation that in consideration of a contemplated marriage and the relin- quishment by the intended husband of all his rights and interests in and to the property and estate of the intended wife she shall pro- vide from her estate after her death an an- nuity for him so long as he shall remain unmarried, provided the parties are living and cohabitating together as husband and wife at the time of the wife's death, the provision is valid, as it does not tend to induce a separation between the husband and wife, Appleby v. Appleby (Minn.), 10- 563. Invalidity of separable provision. — An antenuptial contract, fair and reasonable, respecting the property and property rights of the parties, fully performed by one of the parties after the marriage and befgre his or her death; will not be held void at the in- stance of the other party, merely because one of the provisions thereof might be so con- strued as tp have justified the one perform- ing in adopting a course of conduct before death that would have rendered the contract inoperative and to no eflfect. Appleby v. Ap- pleby (Minn.), 10-563. Beview^ of jndgmei^t declaring agree- ment void, ..- A judgment of the Illinois Appellate Court holding invalid an ante- nuptial agreement between future husband and wife releasing all interests in each other's property and adjudging that a widow's award be granted, under which judg- ment it becomes the duty of a Circuit Court to appoint appraisers for the ascertainment of the award, is a final judgment of which the Supreme Court has jurisdiction on a writ of error, and this is true without regard to the amount of the award, as the proceed- ing is not in the nature of an action em con- tractu. Kroell V. Kroell (111.), 4-801. HUSBAND AND WIFE. 873 (2) Consideration. H^trtlagb and luUtiia.1 rel^a^e of In^ teiFests. — Ah antenuptial contract ill con- sideration of niai'rikge and the i'eleaSe by each party of all interest in the property of the other, is based upbfl a sufficient eon- sidfetation as to both parties, When each is thfe owner of property ih Which the Other Would acquire an interest by reason of the marriage but for the antenuptial agrfeefflent, ahd is sufficient, when eduitable and fair in its ternls and entered into in good faith, to constitute an equitable bar to dbWer. Rieger y. Schaible (Neb.), 16-700. iHflttial covenants. -^ The mutual cove- nants of the parties to an antenuptial agree- ment to waive their rights ill the property of eaeh other, and the release of such fights, constitute a good consideration to Support the agreelnent, as the marriage of the par- ties is of itself a sufficient cousidet'ation. Kroell V. Kroell (111.), 4-801. Agireemebt to ma*ry. -^ An agreement to marry- is a sufficient consideration to sup- port an antenuptial contract disposing of and definitely fixing the property rights dt the parties, even though the contract is made and signed several months after the fiontract- ing of an absolute engagement to marry, and only a couple of days heforfe the Celebration of the marriage. Appleby y. Appleby (Minn.), 10-S63. (3) Oral agreements. Validity under Iowa statute. — Under section 3154 of the Iowa Code providing that when property is o^^^led by husband or wife, the othef has no interest therein that can be the subject of contract between them, an oral antenuptial agreement by which each party relinquishes all rights to the property of the other, may be given effect by a writ- ten postnuptial agreement, but unless the postnuptial agreement recites that it is to furnish evidence of or is in consideration of the previous antenuptial contract it is pro- hibited by the statute and is unenforceable. Frazef «. Andrews (la.), 13-556. Validation liy performance. — Where a man executes to a woman to whom he is engaged to be married and who afterwards becomes his wife, a deed to certain land, and simultaneously procures the woman to exe- cute to him a note, together with a mort- gajre on the same property as security, prom- ising orally to discharge such note and mort- gage after the marriage, and does after the marriage discharge the note and mortgage voluntarily and in the absence of mistake or ffaud, such discharge is in pursuance of a moral obligation and in the performance of a promise which, even though unenforceable by legal proceedings, because within the stat- ute of frauds, is not illegal or contrary to public policy, and equity will not relieve him, against such discharge upon a bill by him, seeking to have the note and mortgage de- clal'ed to be still in force. Blackwell e. Blackwell (Mass.), 12-1070. (4) Effect. As eicclnding operation of law.»Ante- nuptial conti'aots in anticipation of mar- riage, equitably and fairly made, exclude the operation of the law in respect to the prop- erty rights of each party, in so far as cov- ered by the contract. Appleby t'. Appleby (Minn.), 10-563. As bar to dOwer. — The provisions of a statute that a jointure is a bar of dower do not ordinarily deprive the intended wife of the power to bar her dower by any other form of antenuptial contract. Riege): v. Schaible (Neb.), 16-700. DoWer may be Waived by a reasonable and iona fide antenuptial agreement, though not provided fot by such statute, and the agree- ment will be enforced in the absence of con- travening equitable considerations. Rieger v. Schaible (Neb.), 16-700. As bar to Dtridow's award. — An ante- nuptial contract between future husband and wife, whereby eaeh expressly releases all rights which may be acquired by the sur- vivor in the property or estate of the other, embraces not only the enumerated rights, such as dower, curtesy, homestead, but also the widow's awatd. Kroell v. Kroell (111.), 4-801. As bar to widow's statutory allow- ance. — An antenuptial eonttact made in good faith between parties, each of whom owns real and personal property not dispro- portionate in value, providing that in con- sideration of marriage each party thereto waives and releases and forever quitclaims and renounces all dower and other interest in ahd to the real estate and personal prop- erty Which the other party has or shall thereafter acquire — the expressed intention being that all the property of each shall de- scend to his or her lawful heirs, released and divested of all claims of dower, curtesy, or other interest that the other contracting party may have as husband 'or wife, widower or widow, under the laws of the state of Ne- braska—is sufficient to bar the widow's statutory allowance, the rights of children not being involved. Rieger v. Schaible (Neb.), 16-700. As bar to widow's life estate in home- stead. — Whether such antenuptial eon- tract bars the widow's life estate in the homestead of her deceased husband is not here determined. If ineffectual for that pur- pose, the contract would not thereby be ren- (Neb.),''l6-7(;o. ""°- ^''®" "■ ^'''^"™' b. Antenuptial Conveyances by intended hus- band. When void in general. - A voluntary conveyance made by a man under an engage- ment to marry, made befbte and in contem- plation of marriage, without the knowledoe of the intended Wife, with intent to free tSe Jand of the marital rights of the wife is voia as to her dower rights and as to 'the a imony decreed against him in a suit for divorce. Goff r. Goff (W. Va.), 9-1083 874 AlfN. CAS. DIGEST, VOLS. 1-20. A court of equity will relieve a wife against a voluntary conveyance by the hus- band of all his estate made on the eve of marriage without her knowledge and with the intent to defeat her marital rights. Col- lins V. Collins (Md.), 1-856. A voluntary antenuptial conveyance made with the intent to defeat the marital rights of any person whom the grantor may sub- sequently marry is void as to such rights whether the future spouse is then selected or not. Beechley v. Beechley (la.), 13-101. Conveyance to child by former mar- riage. — A conveyance made without fraudu- lent intent to the grantor's child by a former wife is not within the rule that a voluntary conveyance made in contemplation of marri- age will be declared fraudulent. Beechley v. Beechley (la.), 13-101. Conveyance before marriage agreed upon. — A conveyance eight months before the negotiations resulting in the grantor's marriage is not void as in fraud of a con- templated marriage, although the grantor had previously, within about a year, made un- successful proposals of marriage to the woman who afterwards became his wife, and to another woman. Beechley v. Beechley (la.), 13-101. Conveyance for adequate considera- tion. — A conveyance, by a father to his son, of land worth from sixteen thousand to twenty-two thousand dollars, the grantee as- suming the debts of the grantor amounting to sixteen thousand dollars, the consideration named in the deed, and the grantor retaining a life estate in the premises, is not volun- tary, and will not be set aside as in fraud of the subsequent wife of the grantor, except on proof that the grantee was a party to the fraudulent intent; and such intent is not shown by the fact that the grantee withheld the deed from record at the unexplained re- quest of the grantor. Beechley v. Beechley (la.), 13-101. Misrepresentations as to amount of property. — In an action to set aside an antenuptial conveyance as in fraud of the subsequent marriage, evidence of a misrep- resentation made by the grantor as to the amount of his property is inadmissible. Beechley v. Beechley (la.), 13-101. Estoppel of grantee to assert title. — The grantee of land alleged to have been con- veyed in fraud of the subsequent marriage of the grantor does not become estopped to assert title to the lands by his mere silence as to the conveyance at a time when the grantor and his wife execute in his presence a deed to other of their lands. Beechley v. Beechley (la.), 13-101. c. Eights of husband during marriage. Bight to dispose of personal prop- erty. — Where a husband, the owner of cer- tain bonds, executes an instrument transfer- ring the same to a trustee to be delivered to his sisters upon his death, such transfer is valid as a gift although the wife does not assent thereto, as the wife has no vested in- terest in the personal estate of her husband during his life, and he may make such dis- position thereof during his life as he may choose. Robertson v. Kobertson (Ala.), 10- 1051. Kights in wife's estate in general. — Under the Missouri statutes, the husband is entitled to share in his wife's estate regard- less of whether he is entitled to curtesy. Perry v. Strawbridge (Mo.), 14-92. Rights in ornaments and wearing ap- parel. — The common-law rule that " suit- able ornaments and wearing apparel of a married woman, which come to her through her husband during coverture, remain his personal property during his life, and he may sell and dispose of them during his life," has not been abrogated in New Jersey by the Married Woman's Act or by any other statutory provision. Farrow v. Farrow (N. J.), 16-507. Bight to wife's earnings. — In the ab- sence of any consent or agreement, either ex- pressed or implied, on the part of the hus- band that the earnings of the wife shall be retained by her as her separate estate, they belong to him. Georgia, E. etc., Co. v. Tice (Ga.), 4-200. d. Rights of wife during marriage. Right to dispose of personal prop- erty. — The validity in Maine of a gift by a wife of her personal property during her lifetime to a person not her husband. Wright V. Holmes (Me.), 4-583. As surety for husband. — Where a wife mortgages her separate property to se- cure the payment of money borrowed by her husband on their joint note, she is a surety, and as such is entitled to exoneration. Browne v. Bixby (Mass.), 5-642. Where a wife, after mortgaging her sep- arate property to secure the payment of" money borrowed by her husband on their joint note, dies testate, her administrator with the will annexed has a suflBclent inter- est to enable him to maintain a suit against the husband's executors to compel exonera- tion, whether or not such property is dis- posed of by the testatrix's will. Browne v. Bixby (Mass.), 5-642. Compensation for improvements on husband's estate. — A woman who, chiefly for her own gratification and convenience, makes improvements on her husband's es- tate, supposing that such estate will be a home for herself and her children, cannot recover compensation for such improvements. Bryan v. Councilman (Md.), 14-1175. Bight to redeem from foreclosure sale. — A wife has such an interest in her husband's lands that in order to protect her interest she is entitled to redeem them from foreclosure. Kopp v. Thele (Minn.), 15- 313. Though the effect of such redemption is to annul the foreclosure sale, the redemption does not transfer to the wife her husband's title to the land ; and if, after being divorced from her, the husband conveys his interest HUSBAND AND WIFE. 875 in the land to a third party, the latter be- comes the owner in fee thereof, subject to the wife's equitable lien thereon for the amount paid by her on the redemption from the fore- closure sale, with interest on such amount, less the n<'t value of the land while in her possession. Kopp v. Thele (Minn.), 15-313. Avoidance of deed procured by threats against hnsband. — The maxim in pari delicto, mclior est conditio defend' entis, does not apply in a case where a mar- ried woman sues to set aside a deed of her separate property, made by her under ex- press or Implied threats of the prosecution of her husband for the crime of embezzle- ment, and to save him from such prosecution, whether the threatened prosecution was law- ful or unlawful, particularly so when she was sick and nervous, and when she does not appear to have had abundant opportunity for considertion and consultation with dis- interested advisers. Burton v. McMillan (Fla.), 11-380. Gift by husband to wife. — A gift of personal property from husband to wife must be clearly proved. There must be clear and convincing evidence of a delivery of the prop- erty by the husband with the intention of divesting himself of all dominion and control of it, and of vesting title in the wife. Far- row V. Farrow (N. J.), 16-507. c. Payment of taxes on land of spouse. Obligation to pay. — One spouse has no estate in the real property of another, and has no interest therein by virtue of such re- lation which imposes a legal or moral obli- gation to pay the taxes upon the real estate of the other. Nagle v. Tieperman (Kan.), 10-977. The mere fact that the relation of hus- band and wife exists does not impose upon either spouse the legal or moral obligation to pay the taxes upon real estate owned by the other. Nagle v. Tieperman (Kan.), 10- 977. f. Suits between husband and wife. Action on promissory note. — A hus- band and wife who have married since the passage of the Connecticut Married Women's Act may contract with each other and may sue each other at law or in equity for breach of a contract; and therefore the wife may sue the husband on a promissory note given by him to her. Mathewson (-. Mathewson (Conn.), 6-1027. Action to recover personal property. — Under the English Married Woman's Property Act, a married woman may sue her husband to recover her personal property de- tained by him. Larner );. Lamer (Eng. ), 3-144. Action for assault and battery. — The District of Columbia Code does not author- ize a married woman to maintain an action for assault and battery against her husband. Thompson v. Thompson (D. C), 14-879. Although a married woman cannot main- tain an action for assault and battery against her husband, costs will not in such an action be awarded to the husband, for the reason that the parties are one in law. Thompson V. Thompson (D. C), 14-879. g. Conveyances to husband and wife. Partition on wife's death. — Although a conveyance to a husband and wife ordi- narily creates a tenancy by the entirety, yet where a husband purchases land partly with his money and partly with money con- stituting the separate estate of his wife, and takes the legal title jointly to himself and his wife, a court of equity will declare a trust in favor of the wife for the proportion which her money bears to the entire amount invested, and upon her death the court will, at the instance of her heirs, decree partition and order the land to be sold and the pro- ceeds distributed. Donovan v. GriflSth (Mo.), 15-724. Iiiability to account for rents.— Where there is no dispute between a husband and wife, who are living together harmoniously, as to the control of their joint land, and no agreement in reference to accounting for the rents received therefrom by the husband, the husband will not, after his wife's death, be charged, at the instance of her collateral heirs, with the rents which he received dur- ing her lifetime. Donovan v. GriiBth (Mo.), 15-724. h. Community property. Conveyance. — Where an agreement for the sale of community property is made by the husband who, pursuant to the agreement, executes a deed which he leaves in escrow, the fact that the wife afterwards signs and acknowledges the deed is evidence that she understands and is assisting to carry out the agreement. Manning v. Foster (Wash.), 16-95. Effect of change of domicile. — Per- sonal property acquired by a husband or wife in a state by the laws of which it is separate property continues the separate property of that spouse when brought within a commun- ity property state, and property in the latter state, whether real or personal, purchased with or received in exchange for such sepa- rate property, is also the separate prop- erty of that spouse. Brookman v. Durkee (Wash.), 13-839. i. EiTect of marriage upon existing contracts between parties. Promissory note. — The marriage of the maker of a promissory note with the payee thereof does not extinguish the debt and does not render the note void. MacKeown V. Lacy (Mass.), 16-220. 3. Rights against Third Persons. a. Actions by husband for injuries to wife. General elements of recovery for per- sonal injuries. - The Alabama statute providing that the earnings of a wife are her separate property does not deprive the 876 AN-N. CAS. DIGEST, VOLS. 1^20. hugbsnd of bis cpmmon-law right, viflier.e tjie wife has been injured by tie >\'rongful act of a stranger, to recover for tke loss of ber services, for the Ipss of her society, ajjd for the expense incurred in the alleviation of her sufferings. Birmingham Southern R. Co. V. Lintner (Ala.), 3-461. Where a wife suffers personal injuries by another's actionable fault and without any fault on her part, two distinct causes of ac- tion njay accrue — one to her for the direct injuries to her person and the like ; the other to her husband, for the consequential injuries to him, consisting of loss of her services and society, and of the expense to which he may have been put, and the like. Mageau ». Great Northern R. Co. (Minn.), 14-561. Valine of services in husband's bnai* ness. »» The damages that may be recovered by a husband for the loss of the services of his wife by reason of personal injuries are not confined to the value of her services in the household, but may include the value of services rendered in the husband's business, where she was thus engaged at the time of the injury without any contract or expecta- tion of pay for the same. Georgia, etc., Co. V. Tiee (Gta.), 4-200. Ii) a joint action by a husband and wife to recover damages for personal injuries sus- tained by the wife tvherein separate verdicts are rendered, the husband is entitled to re- cover for the loss of the value of the wife's services to him, as an assistant in his busi- ness as a florist as well as for the loss of her services in a domestic capacity, notwith- standing the existence of a statute vesting in a married woman all earnings acquired by her in carrying on any separate or inde- pendent business or in performing any labor or service on her sole and separate account. Standen r. Pennsylvania R. Co. (Pa.), 6- 40S. Future loss of services. — Where, in an action by the husband to recover for the loss of the services and society of his wife resulting from personal injuries occasioned by the wrongful act of the defendants, there is evidence of such loss merely up to the time of the trial, the plaintiff cannot recover for the loss of the services of his wife which may occur in the future. Birmingham Southern R. Co. V. Lintner (Ala.), 3-461. Evidence of permanent injuries. — In an action by a. husband to recover for the loss of the services and society of his wife resulting from Injuries to her occasioned by the wrongful act of the defendant, evidence th*t she is stiJl sufferiuff from the injuries is prop^^Iy received, though the right of ac- tion for such gufferipg is yestgd in her. JBirmingham Southern R. Co. v. Lintner (Ala.), 3-461. EfPect of action by wife's adminis- trator. — The right of the husband to re- cover for the consequential damages result- ing to him from personal injuries to the wifs is not barred hj the fact that suph injuries havjB resulted in the death of the wife, and that ?n action lias been brought by her ad- ministrator for the statutory beneficiaries and a verdict recovered therein. Mageau v. Great Northern B. Co. (Minn.), 14-551. Jodecent and Insulting language. — The constitutional and statutory changes in respect to the property and personal rights of married women do not affect a husband's right to recover actual and exemplary dam- ages for indecent and insulting language and conduct towards his wife. Brame v. Clark (X. Car.), 16-73. b. Actions by wife for personal injuries. Hecoverjr of medical ejcpenses. — In an action by a married woman to recover damages for personal injuries, the plaintiff is entitled to recover as an element of dam- ages the amount of a medical bill which the evidence shows she has personally incurred on account of her injuries. Indianapolis Traction, etc., Co. v. Kidd (Ind.), 10-912. c. Release of claims. Sufficiency of s«al. — Where a release of damages for personal injuries to a mar- ried woman reciting that it is "given under our hands and sesas " is executed by both husband and wife, the wife signing without a seal after the husband signed with a seal, the presumption may be indulged that the wife adopted the seal afBxed to the husbnnd's signature. Rockwell v. Capital Traction Co. (D. C), 4-648. 4. Liability of HpsBAwp to Thibd Persons, a. Support of wife. (1) In general. Outside of matrimonial home, i^ Th$ common-law liability of a husband to sup- port his wife does not extend to support outside of the matrimonial home, reasonably chosen by him, unless she refuses to do so there, or §he resides away therefrom by his consent. Richardson v. Stueaser (Wis.), 4- 784. V^if e ill insane asylum. — The common- law liability of a husband for the support of an insane wife in an asylum. Richardson v. Stuesser (Wis.), 4-784. Estenslon of CDSunonHlaw liability.-* The common-law liability of a husband to support his wife cannot be extended by im- plication from the written law as to the sup- port of other persons. It can only be ex- tended by a statute plainly so intended. Richardson v. Stuesser (Wis.), 4-784. Esistence of legal relation, f Where there is admittedly no relation that legally imposes the duty of the wife's maintenance on the husband, the law gives no power to make him maintain her. Chapman v. Par- sons (W. Va.), 19-453. (2) Prosecution for failure to support. Injitmctioiis. — In ^ prosecution of a husband for the abandonment of and failure to support his wife, there is no error in the refusal of an instruction that the defendant HUSBAND AND WIFE. S77 vtotld not be under obligation to support her if, after she left him with his consent, she thereafter refnsed to return to his house upon benng requested by him to do so, where the instruction is substantially eovered by an instrtietion given. Spencer t. State (Wis.), 13-969. In such a prosecution, there is no error in refBsJng an instruction directing the jilry to find the defendant not guilty if he did not know that his wife's means of support were exhausted, where it appears that the defend- ant knew that the wife had but a small sum of money, entirely inadequate to supply her Deeds, and that later she applied to the town for aid and as a pauper, and that the defend- ant was requested to provide fot her and re- fnsed to do so. Spencer v. State (Wis.), 13-969. In a prosecution of the husband for the abandonment of and failure to support his \Tife, aa instruetion stated, and held not erroneous as confusing the two crimes, Cov- ered by the info*Hjati, 9-1222. Effect of divorce pending aAiteili. — The intention and effect of section 26 Of the English Matrimonial Causes Act, 185?. is to put the wife for all civil purposes in the same position as if her httsband were dead during all the time that the decree of judicial separation is in force, and, there- fore, in an action against biisband and wife for fraudulent representations by the wife after the marriage, whereby the plaintiff has sustained damage, where it appears that the husband bad no knowledge of or connection with the fraud, and that the wife has ob- tained a decree absolute for judicial separa- tion from him since the commencement of the action, the husband is entitled to judg- ment discharging him fron> the action. Cuenod v. Leslie (Eng.), 16-375. e. Wife's funeral expenses. Husband primarily liable. — A hus- band is primarily liable for the funeral ex- penses of bis wife, and not the estate of the wife. Kenyon v. Brightwell (G'aj), 1-169. 5. LiABiifiry OF Wire TO TniBB PfinsoNs. Vor lenvices sendered to liulslMKBil< — A wife is not liable for services rendered to her husbaad for whieb slw doe» not tltiAer-' take to pay,, especially where the services are rendered voluntarily, with the express assur- 878 AJSTN. CAS. DIGEST, VOLS. 1-20. ance that no charge will be made. Cochran V. Zachery (la.), 15-297. Execution against ivife's property. — Under the Idaho statutes, the issue and profit arising from the investment of the separate property of the wife are not liable upon exe- cution against her husband. Evans v. Krout- inger (Idaho), 2-691. for medical services to deceased hus- band. — Under a statute providing that the expenses of a family are chargeable upon the property of both the husband and wife, or either of them, the property of a widow is chargeable with the expense of medical and hospital services rendered to her deceased husband. Russell v. Graumann (Wash.), 5- 830. Evidence reviewed, in an action under the Washington statute to charge a widow's property with the expense of medical and Iiospital services rendered to her deceased husband, and held to establish the existence between the husband and wife of the neces- sary family status or relationship intended by such statute. Russell v. Graumann (Wash.), 5-830. For iiusband's funeral expenses. — A woman is personally liable for the funeral expenses of her husband, where the services were rendered with her knowledge and con- sent, though she did not contract therefor, and her husband left her no estate. Butter- worth V. Teale (Wash.), 18-854. Support of husband. — The Wisconsin statute (Laws 1907, c. 224) providing that a wife, " being of sufficient ability " shall be liable for the support of her husband, if he is poor and dependent, refers to a continuing existence of the marriage relation, and does not apply to a case where the parties are divorced. Brenger v. Brenger (Wis.), 19- 1136. 6. Alienation of Affections. a. In general. Gist of action. — The gist of the action for alienation of affections is the loss of consortium, that is, the loss of the conjugal fellowship, company, co-operation, and aid of the husband or wife. Loss of consortium is the actionable consequence of the injury, and alienation of affections is a matter of aggravation. Dodge v. Rush (D. C), 8- 671, Prior unhappy relations. — In an ac- tion by a wife for alienation of her hus- band's affections, evidence of any unhappy relations that may have existed between the plaintiff and her hu.sband, not caused by the conduct of the defendant, may affect the question of damages, but it affords no justi- fication or palliation of the defendant's con- duct. Dodge V. Rush (D. C), 8-671. b. Who may maintain action. Married woman. — Under legislation re- lieving a married woman from the ordinary disabilities of coverture, a married woman may maintain an action for alienation of her husband's affections. Dodge v. Rush (R C), 8-671. Under the Massachusetts statute remov- ing the disability of a married woman to sue and be sued, a married woman may maintain an action in her own name alone for crim- inal conversation with her husband and for alienation of his affections; and the damages she recovers in such action are her separate property. Nolin v. Pearson (Mass.), 6-658. Under the Oregon statute providing witli certain exceptions that "all laws which im- pose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby re- pealed " and that " for any unjust usurpa- tion of her property or natural rights she shall have the same right to appeal in her own name alone to the courts of law or equity for redress that the husband has," the wife may maintain an action for the alienation of her husband's affections. Keen V. Keen (Ore.), 14-45. "WUe who has obtained divorce. — A wife's right of action for the alienation of her husband's affections is not lost by rea- son of her obtaining a divorce from him. Keen v. Keen (Ore.), 14-45. c. Liability of parent or guardian. Advice given from honest motives.— An action for alienation of affections will not lie against a parent or guardian for ad- vising his child or ward to separate from her or his husband or wife, unless the advice was recklessly and maliciously given, and therefore it is a good defense to such an ac- tion that the advice was given from honest motives and under a sincere belief that it was for the moral and social good of the child or ward. Trumbull v. Trumbull (Neb.), 8-812. An action for alienation of affections will not lie against a parent for advising his daughter to leave her husband, unless the parent was actuated by malice or ill-will toward the husband, and not by a proper parental regard for the welfare and happi- ness of his daughter. Multer v. Knibbs (Mass.), 9-958. A parent, when he acts in good faith and for his daughter's welfare, may advise his daughter to abandon her husband, if he fairly and honestly believes that the continuance of the marriage relation will tend to injure her health or disturb her peace of mind, and to this end he may use proper and reasonable argument and persuasion without being liable to the husband, even though it may turn out that his action is based upon mistaken premises or false information and that the results of his intervention are unfortunate. Multer V. Knibbs (Mass.), 9-958. Iiiability dependent upon intent. — In an action against a parent for advising his daughter to separate from her husband, the material question is the intent with which the parent acted, rather than the wis- dom, or even the justice, of the course which he took. Multer v. Knibbs (Mass.), 9-958. HUSBAND AND WIFE. 879 d. Evidence. Conduct of wife after separation. — In an action by n husband for alienation of his wife's aflFections, evidence of the conduct of the plaintiff's wife and the defendant af- ter the separation of the plaintiff and his wife may be sufficient to support a judgment for the plaintiff, as it does not necessarily follow that the affection does not survive the separation. Morris v. Warwick (Wash.), 7- 687. Declarations of hnsband. — In an ac- tion by a wife for alienation of her hus- band's affections, the plaintiff cannot testify as to certain declarations made to her by her husband concerning the defendant or the defendant's conduct. Dodge V. Rush (D. C), 8-671. In an action by a wife against the parents of her husband for alienation of the latter's affections, the admission in evidence, on be- half of the plaintiff, of declarations by the husband in reference to the attitude of his parents regarding the marriage and their opposition thereto, constitutes reversible er- ror. Cochran v. Cochran (N. Y.), 17-782. Presumption as to good faith.— Where a parent or guardian advises his child or ward to separate from the latter's wife or husband, the presumption is that the advice is given in good faith; but where the advice is given by a stranger, the presumption is otherwise. Trumbull v. Trumbull (Neb.), 8-812. Burden of proving parent's malice.— In an action against a parent to recover damages for his conduct in advising his daughter to leave her husband, the burden is on the plaintiff to show that the defend- ant was prompted by malice, and to overcome the presumption that the defendant acted un- der the influence of natural affection and for what he believed to be the real good of his child. Multer v. Knibbs (Mass.), 9-958. Sufficiency, — Evidence reviewed, in an action by a wife for alienation of her hus- band's affections and for criminal conversa- tion with him, and held sufficient to show that the trial court erred in directing a ver- dict for the defendant. Dodg« v. Rush (D. C), 8-671. Evidence reviewed in an action against a parent to recover damages for his conduct in advising his daughter to leave her hus- band and held sufficient to entitle the plain- tiff to have the question whether the defend- ant was actuated by malice toward him, in- stead of by a regard for the good of his daughter, submitted to the jury for their de- termination. Multer V. Knibbs (Mass.), 9- 958. e. Damages. Mitigation. — In an action by a husband for alienation of his wife's affections, evi- dence offered by the defendant to show a state of facts indicating that no affection existed between the plaintiff and his wife will be received in mitigation of damages, but not as a bar to the action. Morris v. Warwick (Wash.), 7-687. f. Questions of law and fact. Cause of loss of consortium. — In an action by a wife for alienation of her hus- band's affections, where there is evidence of illicit relations between the husband and the defendant, it is for the jury to say whether the defendant thereby enticed and allured the plaintiff's husband, alienated his affections, and caused her the loss of consortium. Dodge V. Rush (D. C), 8-671. Malice. — In an action against a parent to recover damages for his conduct in advis- ing his daughter to leave her husband, if there is evidence which would justify a jury in finding that the defendant actively inter- fered to cause his daughter to abandon her husband, and that in so doing he was actu- ated by malice toward the husband and not by a desire to afford proper protection to his daughter and further her true welfare, the case must be left to the jury, with instruc- tions that if these facts are proved the ac- tion may be maintained. Multer v. Knibbs (Mass.), 9-958. 7. Ceiminal Conveesation. a. Necessity for alienation of affections. In an action by a husband for criminal conversation, evidence of the alienation of his wife's affections is not necessary to estab- lish his right of action. Stark v. Johnson (Colo.), 15-868. b. Right of wife to sue. Under modern legislation relieving mar- ried women from the ordinary disabilities of coverture, a married woman may maintain an action for criminal conversation with her husband. Dodge v. Rush (D. C), 8-671. Under the Massachusetts statute removing the disability of married women to sue and be sued, a married woman may maintain an action in her own name alone for criminal conversation with her husband and for alien- ation of his affections; and the damages she recovers in such an action are her separate property. Nolin v. Pearson (Mass.), 6-658. c. Defenses. Connivance by plaintiff. — An action for criminal conversation is barred by the husband's connivance at the adulterous in- tercourse. Kohlhoss V. Mobley (Md.), 5- 865. The rule stated as to what conduct on the part of the husband will constitute conni- vance barring an action for criminal con- versation. Kohlhoss V. Mobley (Md.) 5- 865. ' The rule stated as to when the question whether an action for criminal conversation IS barred by the husband's connivance is a question of law or fact. Kohlhoss v. Mob- ley (Md.), 5-865. d. Damages. Mental anguish. - In an action by a husband for criminal conversation it is not 880 AN^. OAS. DIGEST, VOLS. 1-20. error to permit the plaintiflF to testify as to t^e tiumiliation a,nd mei^tal apguisji w]4ich he suffered upon learning of the conduct Qf l^js -wife and the defendant, and to instr^qt tiie jury that in determining the amount of thei^' verdict they should consider the pla,in- tiiff's suffering and anguish. Stark v. John- son (Colo.), 15-868. ]Vlitig;atio9 by proof of cqiidonatipn. — While a husband's condpnation of his wife's offense do^ not bar an action by him for criminal conve^satiqn, it is a circum- stance to be considered in m;tigatip;i of dam- ages, Spiiith V. Hockenherry (]V{;ch.), 10- 60. e. Evidence. Circnmstavces i(vtece4eiit to ofCense. — In an action for criminal conversation, it is proper to adrnit evidence of circumstances occurr^^g prior to the earliest date of crim- inal conduct alleged in the declaration) where tl^^ife is evidence of condn?t a(ter sucli date sufBcient to form the basis for a verdict and the earlier circumstances are connected with and explanatory of the later ones. Dodge V. Rush (D. C), 8-671. Confession by wife, i- In an action for criminal conversation it is not erroneous to refuse to permit the plaintiff to introduce in evidence a written confession by the wife which she signed out of the presence of both, the plaintiff and the defendant. Kohlhoss V. Mobley (Md.), 5-865. Chastity of .wi^e. — In a husband's ac- tion for criminal conversation, the defendant may introdiwe evidence tending to show that prior to the act charged the wife was guilty of criminal intimacy with other men, and of associating with women of bad repute, as such evidence bears upon the question of the wife's chastity. Smith v. Hockenberry (Mich.), 10-60i. Iietters of attorney ta show character of wife, f^ In a husband's action for crim- inal conversation, where there is evidence tending to show that the plaintiff's wife saw his attorney before the plaintiff did, the de- fendant n»y introduce in evidence a letter written by the plaintiff's attorney to the de- fendant which tends to show the depravity of the plaintiff's wife, and tends to shpw that th^ alleged acts of criminal intercourse were brought about by the plaintiff's wife herself an'i under circumstances indicating that discovery was expected, as such evi- dence has a bearing upon the question of the character of the plaintiff's wife at tlip time of the alleged intercourse, and in this way- affects the question of dan?ages. Smith v. Hockenberry (Mich.), 10-60. Proof of marriage. — Though in an ac- tion for criminal conversation there must be proof of an actual marriage, such proof is not limited to tlie ofS,cial record thereof. Stark V. Johnson (Colo.), 15-868. In such an action the uncontradicted tes- timony of the plaintiff and his wife to the effect that twenty-flve years before the trial they were married by a minister of the gos- pel in another state, such marriage being valid according to the laws of that state, that sjnee thstt tim« ti\ey ivad Qanstantly lived together as l^^^ban(l and wife, and that they have a sou twenty-twp years of age, is syflBcient direct evidence pf an aotnal car- riage. Stark «?. Johnson (Colo,), 15-868. Credibility of w^itness — conspirfiQy tq eztoirt money from defendant 'n- fn a husjband's action for criminal conversa- tion, where a ^ii^itnes^ for the plaintiff l\as testified that she discovered the plaintiff's wife anij the defendant in a comptromising position, and on cross-ej^apination of snch witness the defendant has laid a founda- tion for her inipeaohment, the defendant may intrpijnee in eyi^espe statements, rnadfe by such witness tP another witness the tendency of which is to show an under- standing between the plaintiff's wife and the plaintiff's witness to get money out of the defendant, as suqh evidence bears direet'y upon the truthfulness of the plaintiff's wit- ness, and tends tp show that her testimony was given in pursuance of a conspiracy be- tween her and the plaintiff's wife, although the plaintiff was npt a party to the con- spiracy. Sniith V. Hockenjberry (Mich.i, 10- 60. Snf^ciency. — Evidence reyiev?e(l in an action for criminal conversation and held to justify a trial court in iirecting a verdict, for th,e defendant. Kohlhoss v. Mpbley (Md.)„ 5-865. f. In^vtrncijion?. Kefusal to instruct as to conspiracy — ! theory of ease. — On writ of error by the plaintiff in an action for criminal con- versation to review a judgment in his favor for less than the amount claimed, the plain- tiff cannot complain of the refusal of a re- quest which in substance instructed the jury that collusion could not be inferred from certain facts appearing in the case, where it appears that the charge of the court made the case turn upon the sole question whether the defendant was guilty of the act of inter- course alleged, and it further appears that the defendant disclaimed any theory of con- spiracy. Smith V. Hockenberry (Mich.), 10- 60. 8. Habeas Cokpus. A male of the age pf nineteen years who has been lawfully married to a female pf tlve age of fourteen, though without the consent of her parents,, is entitled, tp the society and, services of his \yife, and if she is detained, against her will by her parents, he may prp- cnre her release by habea? corpus. Matt*t of Hollopeter (Wash.), 17-91. 9. Estates by Entibett. a. Creation of estate, Deed to husband and wife. — A deed of realty conveying to a husband aai, wife each an undwided half interest in land creates an estate in entirety at least in the absence of any clear intention to create a tenancy in common. Wilson v. Frost (Mo.) 2-557. HUSBAND AND WIFE — UYPOTHETIOAL QUESTIONS. 881 Provision for survivorship. — A deed to a husband and wife " as joint tenants with fee to the survivor " shows an intent that the grantees shall take a simple Joint tenancy and not an estate by entireties. Swan I'. Walden (Cal.), 20-194. A deed of land to a husband and wife " and to the survivor of them and to the heirs and assigns of such survivor " ereates in the gran- tees an estate by entireties. Joerger v. Joer- ger (Mo.), 5-534. b. Rights of tenant- Crops. Blowing on l9,ni, — At common law a wife has no right to a share ivf the crops growing on land held by her andl her husband as tenants by the entirety, and in Michigan no suoh right is conferred by stat- ute. A verbal agreement by the husband made at the time $i the purchase of the land, to share the profits thereof with the wife, ia not binding a? toi enforce it wauld be to vary the legal effect of the deed. Morrill v. Mor- rill (Mich.), 4-1100. Right of action for injuries to land. — Where land is held by entj»'eties, the wile is not a necessayy party to an sietion brought by the husband fox damages, by fire to woods on the land. West V. Aherdeeji, etc., E. Co. (N. Car.), 6-360. Ejectment by one spouse against the other. — A judgment of rule absolute to bring ejectment, rendered in an action brought by a woman against her divorced husband to recover possession of land held by them by en- tireties, is a nullity where, by the terms of the statute, the rule is to bring ejectment or " show cause why the same cannot be so bjought," and where the petition for the rule discloses that the parties hold by entireties; and this is so though the husband fails to appear and answer. Alles v. Lyoo (Pa.), »-.137. c. Rights of third patties. Judgment creditor of one spouse only. — Where husband and wife are regis- tered owners by entireties of land when a mu- nicipal lien is filed against the wife alone, and judgment on the Ken is entered against the wife only, the lien is a nullity as against the busband, and' the sale under it passes no title, even though the execution avers that it is issued with notice to the husband, if it does not appear that any sivoh njoitice was given. Alles v. Lyon (Pa.), 9-137. A husband and wife holding property as tenaijts by the entireties are able to give to * purchaser of the property a good and mer- chantable title, such as entitlss them to eiv force specific performance against the pur- chaser, free and clear of an outstanding judg- ment against the husband. The property is not subject to execution on the judgment either during the Mf^imc «t the wife or on her death. Jordan v. Reynolds (Md.), ia-51. d. EflFeet of divorce. In general. — Diyojce does not convert Vols. 1-20 — Ann. Cas. Digest. — I'i. an estate by entireties into a tenancy in com- mon, notwithstanding the fact that it severs the unity of person of the husband and wife. Alles V. Lyon (Pa.), 9-137. The granting of a divorce destroys a ten- ancy by entirety and renders the tenants ten- ants in common. Joerger v. Joerger (Mo.), 5-534. Partition after divorce. — After a ten- ancy by entirety has been converted by di- vorce into a tenancy in common, either ten- ant, or the devisee of either, is prima facie entitled to partition; and if the defendant re- sists partition on the ground that he is the sole owner of the land by reason of having furnished the purchase money therefor, the burden is upon him to establish such fact by clear and satisfaetory evi^lence. Joerger v. Joerger (Mo.), 5-834. e, Effeet of death of one spouse. In general. — The interest of the wife in an estate by entirety is not one that can be inherited or that can descend to her heirs, hut becomes terminated and extinguished by her death before her husband, Beddingfleld r. Estill (Tenn.), H-904. Murder of one spouse hy other. — Where land' is conveyed to husband and wife to hold by entirety, the survivor, upon the death of the other, takes and becomes vested by the entire estate in fee simple, by virtue of the grant or deed conveying the property to them, the interest of the deceased being ter- minated by his or her death. Upon the death of the wire, although by the felonious act of the husband, the husband continues to hold the estate in fee under the conveyance, and' to no extent from or through the wife, and his power to sell and convey the estate in fee is not affected by the commpn-law rule that no one can inherit property from another whose death is caused by the former's felonious act^ or by a sta,tutory provision to simi- lar effect. BeddingfleM v. Estill (Tenn.), 11- 904. f. Statutory abolition! of estate. Estates, by «atireties. are aboii3hie4 by the California statntes whicb provide that th«' ownfirshiip of; property by seves-al persons is either of joint interests, of partnership inter- ests,, of interests in common, or of community interests (Civ. Co4e,. S 684), and that, in case of a conveyance to, a married woman and h^r husband tlie presumptipn is that th« woman takes the part conveyed to lior as tenant in. common, unless a different interest is ex- pressed in the instrument (Civ Code, §, 16,4>. Swan V. WaJden (Cal.),,. 30^-194. HYPOTHETICAL QUESTIONS. See Evidence, 8 b ( 1 ) . Necessity of hypothesis in facts in exajnina- tipn, of experts, see Cwminal Law, 6 n (7). 882 ANN. CAS. DIGEST, VOLS. 1-20. ICE. IDENTITY. Failure of carrier to ice cars, see Cabbiebs, 4 b (2). Ice house as fixture, see Fixtures, 3. Power of municipality to operate ice plant, see Municipal Corpobations, 4 e. Validity of ordinance requiring removal of ice from sidewalks, see Municipai, Cob- POEATIONS, 5 f (2). Taking ice from public waters. ^ While a state may not deny the public the right to take ice from a public stream, it may make such a right the subject of reason- able regulation; and a regulation is not un- reasonable if it does no more than to author- ize the taking of such steps as will best pre- serve the use of the stream for all persons and for all purposes. Board of Park Com'rs V. Diamond Ice Co. (la.), 8-28. The Iowa statute concerning the taking of ice from the Des Moines river does not take from riparian owners or others any property, but merely regulates the use that may be made of a common public right; and the statute does not violate either the federal or the state constitution. Board of Park Com'rs V. Diamond Ice Co. (la.), 8-28. Under the Iowa statute, the board of park commissioners of the city of Des Moines has power to prohibit the taking of ice by ri- parian owners from any portion of the Des Moines river within the jurisdiction and con- trol of the board, though the statute spe- cifically prohibits the taking of ice from a particular portion of the river without re- ferring to the other portions, and though the statute provides that "the vested rights of other riparian owners shall not be affected by this act." Board of Park Com'rs v. Dia- mond Ice Co. (la.), 8-28. Bights of riparian owners. — Kiparian ownership carries with it no right to the ice formed on public waters, and no vested right to such ice can arise from the making of im- provements on a riparian owner's land or be- cause of the length of time he has harvested ice from the waters. Board of Park Com'rs V. Diamond Ice Co. (la.), 8-28. Liability for cutting holes in ice. ^ Persons who cut channels through the ice on the waters of a navigable harbor for pur- poses of navigation in placing vessels in win- ter quarters are under the obligation, both at common law and under the Ontario Crim- inal Code, to protect the opening so made, and are civilly liable for the death of a person who, while skating on the harbor according to the customary use of the harbor at that place and season of the year, breaks through the ice and is droWned by reason of the cut- ting of the channels and the failure to guard them. Pennock v. Mitchell (Can.), 14-363. IDEM SONAKS. See Name. Averring names in indictments, see Indict- ments AND IKFOEMATIONS, 8. Effect of certificate of acknowledgment, see Acknowledgments. Identification of accused, see .\ssault and Battery, 1 f; Criminal Law, 6 n (2); Homicide, 6 a (4). Identification of accused by blood stains, see Criminal Law, 6 n (2). Identification of justice's record, see Cbimi- nal Law, 6 n ( 1 ) . Identification of land described in deed, see Adverse Possession. Identity of action and issues as affecting con- clusiveness of judgment, see Judgments, 6 b (3). Parol evidence to identify legatee or property bequeathed, see Wills, 8 a (9). Proof of identity of animals, see Evidence, 8 c. Proof of identity of fugitive from justice, set- Extradition, 4 d. Proof of identity of offenses on plea of former acquittal, see Criminal Law, 5 b. •Proof of identity of stolen money, see Lab- cent, 6 a (3). Proof of identity of testator as person exe- cuting will, see Wuxs, 7 h (2). Using shoes of accused to identify tracks, see Cbiminal Law, 6 n ( 1 ) . IGNORANCE. Defense to criminal charge, see Criminal Law, 1. Effect of ignorance of illegality of commit- ment, see False Imprisonment, 3. Knowledge of infancy as affecting lia- bility for injuries to infant servants, see Master and Servant, 3 e (3). Plea of guilty entered through ignorance, see Criminal Law, 6 j (1). Sale of liquor to infant in ignorance of in- fancy, see Intoxicating Liquors, 5 h. Statute of limitations as affected by ignorance of existence of cause of action, see Lim- itation OF Actions, 4 b ( 5 ) . IGNORANCE OF LAW. Application of maxim to mutual mistake, see Equity, 2 d. ILLEGAL CONTRACTS. See Contracts. Duty to account for money received for illegal purpose, see Agency, 2. Illegal conditions in bonds, see Bonds, 3. Validity of life insurance policy, see Insur- ance, 7 a. ILLEGITIMACY. Bastards and bastardy proceedings generally, see Bastabds. Illegitimates as relations within law of in- cost, see Incest, 1 a. ILLITERACY — IMPLIED COVENANTS. 883 Inheritance between brothers and sisters, see Descent and Distribution, 5 b. Proof by wife of nonaccess of husband, see Bastabds, 1; Evidence, 2. ILUTERACY. Ignorance of contents of will presumed from illiteracv of testator, see Wills, 5 c (1). ILLNESS. Removal of juror for medical treatment as separation see Jury, 7 c. ILLUMINATING GAS. See Gas and Gas Companies. Subject of larceny, see Larceny, 2 a. ILL WILL. Element of malicious mischief, see Maliciotjs Misci IMITATIONS. Imitation of butter, see Food, 5 c. Begulating manufacture and sale of imitation of butter, see Constitutional Law, 5 e. IMMEDIATE FAMILY. See Benevolent or Beneficial Associa- tions, 8 b. IMMIGRATION. See Aliens. Recovery of penalty under immigration law, see Penalties and Penal Actions. IMMISCIBILITT. Doctrine of, see Domicil. IMMORALITY. Ground for discharge of servant, see Master AND Servant, 1 c (3). IMMOVABLES. Division of property into movable and im- movable, see Conflict of Laws, 2. Mortgage on land as immovable, see Mort- gages AND Deeds or Trust, 1. IMMUNITY. From searches and seizures, see Constitu- tional Law, 12. Privilege of witness as aflected by immunity from prosecution, see Witnesses, 6 g (6). Rights of accused, testifying under promise of immunity, see Criminal Law, 6 d. Waiver of immunity from second jeopardy, see Criminal Law, 5 c. IMPAIRMENT OF CONTRACT. Element of damage in condemnation proceed- ing, see Eminent Domain, 7 c (4). Impairment' of obligation of contracts, see Constitutional Law, 15. IMPANELING. See Grand Jury; Jury. IMPEACHMENT. Certificate in record on appeal, see Appeal AND Error, 8 b. Certificate of acknowledgment, see Acknowl- edgments. Dying declarations, see Homicide, 6 a (3) (b). Evidence of confessions see Criminal Law, 6n (11) (c). Indictments, see Indictments and Informa- tions, 6. Power to pardon in cases of impeachment, see Pardon, Reprieve, and Amnesty, 1. Testimony of grand juror to impeach indict- ment, see Indictments and Informa- tions, 8. Verdict in civil cases, see Trial, 8 1. Verdicts in criminal cases, see Criminal Law, 6 r (7). Witnesses, see Incest, 4 c; Witnesses, 5. IMPLICATION. Repeal of statutes by implication, see Stat- utes, 6. IMPLIED BEQUESTS. See Wills, 8 a (7), 8 c (2). IMPLIED CONDITIONS. Termination of contract of employment by death of servant, see Master and Ser- vant, 1 (2). IMPLIED COVENANTS. See Contracts. 3 a. 884 Ai\A'. CAS. DIGEST, VOLS. l-'JO. IMFI.ZED NOTICE. Notice implied from written authority oJE agent, see Agency, 3 a (1). IMPLIED POWERS. See CoRPOBATiONS, 4 a. IMPLIED TBUSTS. See THsrsia anb Trustees, 1 b. IMPLIED -WARRANTY. See Sales, 4. Sale of shares of stock, see Coepokations, 8 b (2). Ground for dJToree, see I>ivokce. 2 S. Place of iniprfsonment, see Criminai, Law, 7 b (7). IMPRISONMENT FOR DEBT AND IN GIVKE. CASES. Exemption from arrest on civil process, see Extraditioit, 5. Right of partner to arrest copartner in civil action, see Partnership, 4 b. Arrest on judgment in tort action. — A judgMeMt in an action of tort is not a " debt " within the meaning of a ewistitu- tional provision (Const. Neb., art. 1, § 24) providing that no person shall be imprisoned for debt exeept in cases of fraud. Ex p. Berry (S. C), 20-1344. IMPOLITIC IXGISLATION. See Constitutional Law, 23. IMPORTANCE. Judicial uotifie of aiaitters of public import- ance, see Evidence, 1 i. IMPORTATION. Bringing game into state during close season, see Game and Game Laws, 4. Powei; of state to prohibit imputation arti- eles for personal use, see Interstate CaMMBBCE, 2 b (1). Pow«i oi state to prohibit or restrjet impor- tation of intoxicating liquors, see In- toxicating LiQUORSj, 3 b'. IMPOSSIBLE CONTRACTS. See Contracts, 4 k. IMPOSSIBLE DATE. Averment of impossible date in indictment, sec Indictments and Informations, 4. IMPOSSIBLE RELIEF, See Pleading, 3 g. IMPROVEMENTS. Allowance in actio» of ej*etftient, see Eject- ment, 8 c. Assessments for Joeal ii»^»oven!ient!s, see Special or Local Assessments. Compensation for improvements on con- demned land, see Eminent Domain, 7 c (1). Compensation to wife for improvements on husband'a property, see' Ht^SBllN^ AND WiFB, 2 d, Dedu(rtion for iroproivementa in aatidn of re- plevin, see Replevin, 4. Deduction for improvements in condemna- tion proceedings, see Emisbkx Domain, 7 c m. Duties and liabilities as to demised premises, see Landlord and Tenant, 5 f. Improvement of public roads and streets, see Streets and Highways, 3, 8. Eight of remainderman to allowance for im- provements-, see Remainders. Right of state to engage in works of internal improvement, see States, 1. Rights of tewants in common inter se, see Joint Tenants and Tenants in Com- mon, 2. Reducing wild land t« •wHivation. — While it is recognized as a general rule that the plowing and cultivating of land the»et»^ fore under cultivation does not constitute a permanent improvement, the breaking and re- ducing of wild litnds to cultivation does con- stitute such an improvement. Gibson v. Fields (Kan.), 17-405. IMPRISONMENT. See Arrest; False Impbpsonment. Discharge of prisoner, see Habeas CoEPtrs. Effect of imprisonment on settlement right* of p»»pev, see PoaR amu' Poor Laws. Fine and imprisonment under statute au- thorizing fine or imprisonment, seei Criminal Law, 7 b (6). IMPROVIDENCE. See SPENDTHKtPTS. IMPUTABLE NEGLIGENCE. See Negligence, 7 e. INADEQUACY — TITCEST. 885 INADEQUACY. Ina^lequacy of price as ground for setting aside judicial sale, see Judiciai, Saies, 2 c. Inadequacy of price as ground for setting aside sale of pledged property, see Pledge and Collatekal Secubity, 5. Inadequacy of remedy at law, see Adequate Remedy at Law. INADVERTENCE. Ground for allowing withdrawal of plea of guilty, see Csiminai, Law, 6 j (2). In plea of guilty, see Criminai, Law, 6 j < 1 ) . Papers inadvertentlr taken to jury room, see JuBY, 7 d (3). INCEST. 1. Elements of Offense, 885. a. Relationship of parties, 885. b. Carnal knowledge, 885. 2. Indictment, 885. 3. Defenses, 886. 4. Evidence, 885. a. Proof of relationship, 885. b. Proof of carnal knowledge, 886. c. Corroboration and impeachment of witnesses, 886. 5. iNSTBtrCTIONS, 886. 6. Election of Offenses, 886. 7. Attempts to Commit Incest, 887. Annulment of incestuous marriage, see Mab- biaoe, 3 a. Incestuous act as rape, see Rape, 1 a. 1. Elements of Offense. a. Relationship of parties. Illegitimacy of one party. — A man who marries the mother of an illegitimate daughter becomes the stepfather of such child within the meaning of the Georgia statutes concerning incest. Lipham v. State (Ga.), &-66. Knoxriedge of relationsUp. — The crime of incest being purely statutory, and the statute defining the offense not including scienter as an element of the crime, the scienter need not be charged or proven in order to justify a conviction. State v. Judd (la.), 11-91. b. Carnal knowledge. What constitutes. — Penetration with- out emission constitutes carnal knowledge within a statute against incest. State «. Judd (la.), 11-91. TTse of force. — A person who in com- mitting the crime of incest is also guilty of rape may be convicted on either charge. State V. Rennick (la.). 4-568. Under the Utah statute, it is incest for a male person to have aexual intercourse with a female whom he knows to be within the spefcified degree of relationship to him, though the intercourse ia accomplished by force and against the consent of the female. State v. WinSlOVf (Utah), 8-908. 2. Indictment. An indictment for incest which charges the acts constituting the crime substantially in the language of the statute is sufficient, though it does not charge that the defend- ant knew the woman with whom the offense was committed to be within the prohibited degree of relationship. State v. Renniek (la.), 4-568. Persons included Trithin term. — Un- der the Alabama statute against incest whieh describes the parties to the offense as " man and woman," an indictment charging that the offense was committed with a named " girl " is not demurrable on the ground that it fails to charge that the defendant had sex- ual intercourse with a " woman." Dixon v. State (Ala.), 10-957. 3. Defenses. Conspiracy to procure ineestttotts i]i< terconrse. — In a prosecution for incest where the defendant advances the theory that the woman and a third person entered into a conspiracy either to prefer a false charge against him or to entice him into the in- cestuous act, it is proper to instruct the jury that even if such conspiracy be proven it goes only to the credibility of the persons in- volved in the conspiracy, and that if the de- fendant did have intercourse with the prose- cutrix the crime was complete even though the others had conspired to bring it about. State V. Rennick (la.), 4-566. 4. Evidence. a. Proof of relationship. _ In a priosecution of a woman for incest, tes- timony of a witness for the accused, on cross- examination, that he is a brother of the mat! with whom the defendant is charged with havihg committed incest, and is an uncle of the defendant, is admissible as affecting the credibility of the witness by showing his re- lationship to the party for whom he testifies, although the testimony also has a bearing on the issue of the relationship of the defendant to the other alleged party to the incest; the latter possibly being ground for limiting the effect of the testimony but not for excluding it. State V. Judd (la.), 11-91. In a prosecution of a woman for incest with her Uiiole, testimony of a witness that he had known the defendant ten years, dur- ing which period she lived with a man and his wife whom she frequently addressed as father and mother, and that she had fre- quently addressed the alleged uncle as uncle, and that the woman whom the defendant called mother had frequently in the presence of the defendant addressed the said uncle as brother, is admissible, and not open to the 886 ANN. CAS. DIGEST, VOLS. 1-20. objection that it is not the best evidenee. State V. Judd (la.), 11-91. b. Proof of carnal knowledge. Physical examination of xroman by physician. — In a prosecution by a daugh- ter against her father for incest, the phy- sician's testimony that he examined the vagi- nal parts of the prosecutrix five or six days after the date on which it is alleged that the offense was committed is competent as tend- ing to corroborate the prosecutrix's charge, and is not too remote in point of time from the alleged offense. State v. Winslow (Utah), 8-908. Prior acts. — In the trial of one charged with incest, evidence tending to establish acts of incest at times other than and prior to that relied on for the conviction is ad- missible as throwing light on the relations of the parties towards each other. Lipham V. State (Ga.), 5-66. In a prosecution for incest evidence of un- due intimacy between the parties or of inter- course prior to that charged is admissible. State V. Judd (la.), 11-91. IiasciTious familiarity. — In a prosecu- tion of a man and woman for incest, it is proper for the jury to consider any acts of intercourse which may have been committed by the defendants prior to the commission of the act alleged in the information or 0(n which the state relies for a conviction, as well as any acts of " lascivious familiarity between the parties not amounting to actual intercourse." State v. Pruitt (Mo.), 10-654. Birth of child, — In a prosecution of a man for incest with a woman who has died since the commission of the offense, evidence as to the pregnancy of the deceased and of the birth of a child to her is admissible where there is other evidence tending to show inter- course between the defendant and the de- ceased. People V. Stison (Mich.), 6-69. Complaints made by iiroman. — In a prosecution by a daughter against her father for incest, where it appears that the offense was committed without the consent of the prosecutrix, who was under the age of con- sent, and where the prosecutrix has testified, the prosecution has a right to show by a third person that shortly after the commis- sion of the offense the prosecutrix made to the third person a complaint of the injury, even though the complaint is not a part of the res gestm. State v. Winslow (Utah), 8- 908. Dying declarations of iroman. — In a prosecution for incest it is not competent to introduce in evidence the dying declaration of the woman that the defendant was respon- sible for her pregnant condition. People v. Stison (Mich.), 6-69. c. Corroboration and impeachment of wit- nesses. Corroboration of prosecutrix. — Cor- roboration of the prosecuting witness on a trial for incest is not necessary. State v. Aker (Wash.), 18-972. Where in a prosecution for incest the woman testifies unequivocally that the con- nection was accomplished by force and against her will, she is not an accomplice and her evidence need not be corroborated in order to support a conviction. State v. Rennick (la.), 4-568. Hostility of witness. — Where in a prosecution for incest, a witness for the state admits on cross-examination her extreme hostility to the defendant, and states that she had wanted to get the defendant out of town, and on redirect examination is asked why she was anxious to get rid of the de- fendant, and answers over objection, " She isn't fit to bring up children by," the answer is without prejudice as it adds nothing to what the witness has already stated. State V. Judd (la.), 11-91. 5. Instbuctions. Form of verdict. — Where the evidence in a prosecution for incest warrants no ver- dict other than guilty or not guilty of the offense charged, the court may properly re- fuse to submit forms of verdict covering at- tempts and assault, and to instruct the jury in regard thereto. State v. Aker (Wash.)' 18-972. Failure to request instmction. — Where, in a prosecution for incest, the de- fendant relies on testimony that the person with whom the offense is charged to hnw been committed was absent at the time of the alleged offense, it is not error to omit specific reference to such defense in charging the jury, in the absence of a request for the in- struction. State V. Judd (la.), 11-91. Waiver of omission to instruct. — Where in a prosecution for incest the defend- ant claims that there is testimony from which the consent of the woman can be in- ferred, thereby making her an accomplice who requi es corroboration, he should re- quest an additional instruction based on that theory, and failing to do so he cannot allege error upon the omission. State v. Rennick (la.), 4-568. 6. EuicTiON OF Offenses. In a prosecution for incest, where more than one act of intercourse has been proven to have occurred within three years next pre- ceding the time of the filing of the informa- tion or of presentation of the indictment, it is the duty of the court, at the close of the state's case, on motion of the defendant for that purpose, to require the state to elect on which act it will rely for a conviction. State f. Pruitt (Mo.), 10-654. In a prosecution for incest, it is not neces- sary for the state to prove that the offense w-as committed upon any particular day, pro- vided it was committed within three years next preceding the filing of tie information; but where the evidence tends to show a com- mission of two different offenses, the court should require the state to elect, and should by its instructions restrict the jury in its consideration of the case to one of such INCIDENTAL DUTIES — INDEMNITY. 887 offenses, in accordance with such election. State V. Pruitt (Mo.), 10-654. 7. Attempts to Commit Incest. Under the Utah statute against incest, a person may be convicted of an attempt to commit the crime. State v. Winslow (Utah), 8-908. INCIDENTAL DUTIES. Duties incidental to judicial o£Sce, see JtJDOES, 3 a. INCORRIGIBLE CHILDREN. Begulation and control, see Infants, 4 c. INCREASE. Condition against increase of risk, see Insur- ance, 5 g (8). Increase in value of land as affecting right to specific performance, see Specific Pebformance, 3 f (11). Ownership of increase of animals, see Ani- mals, 1 a. INCIDENTAL INJTTRIES. As taking of private property, see Eminent Domain, 6. INCIDENTS. Duty to instruct servant as to dangers inci- dental to service, see Master and Ser- vant, 3d (1). Incidents passing by assignment of judgment, see Judgments, 11. INCOME. Accumulation of income, see Charities, 6; Perpetuities and Trusts for Accumu- lation, 2. Devise of income as creating life estate, see Wills, 7 c (6). Dividends as income or principal, see Life Estates, 1 c. Increase of fund by appreciation in value, see Life Estates, 1 b. Proceeds of sale of good will see Life Es- tates, 1 b. Taxation of income, see Taxation, 2 e. INCOMPATIBLE OFFICES. See Public Officers, 5 b. INCONSISTENT POSITIONS. See Estoppel, 3. INCONSISTENT PROVISIONS. See Deeds, 3 f. INCONVENIENCE. Element of damage in condemnation proceed- ings, see Eminent Domain, 7 c (4). INCORPORATION. Corporations generally, see Corporations, 2. Of railroads, see Bailboads, 1. INCRIMINATION. Privilege of witness as to self-incrimination, see Witnesses, 4 g. Self-incrimination by compelling accused to try on garment, see Criminal Law, 6 n (1). Using shoes of accused to identify tracks, see Criminal Law, 6 n ( 1 ) . INCUMBRANCE. See Homestead, 4 ; Ground Rents. Condition in fire insurance policy against in- cumbrances, see Insurance, 5 g (4). Covenants against incumbrances, see Deeds 4 Discharge by life tenant, right to reimburse- ment, see Life Estates, 1 d. INDECENT ASSAULT. See Assault and Battert, 1 c. INDECENT CONDUCT. Indecent conduct as nuisance, see Nuisances, INDEFINITENESS. Description of property in deed, see Deeds 1 a. ' INDEMNITY. Contract indemnifying bail, see Bail, 10. Kight of constable to demand indemnity bond see Sheriffs and Constables, 2 ' Verbal contract of indemnity, see Frauds Statute op, 6 b. ' Building contractor's ijond as contract of in- demnity, see Guaranty, 1. Negligenoe of indemnitee. — A con- tract of indemnity against personal iniuries should not be construed to indemnify against the negligence of the indemnitee, unless such intention 18 expressed in unequivocal terms Perry v Payne (Pa.), 10-589. NegllBence of indemnitee's servant.. — Where the contractor in a building con- 888 ANN. CAS. DIGEST. VOLS. 1-20. tract gives a band undertaking to " protect and keep harmless " the owner " from dam- ages arising from accidents to persona em' ployed in the construction of, or passing near to, the said work," the bond does not indem- nify the owner afainst liability for personal injuries sustained by a servant of the sub- contractor in consequence of the negligence of the owner's servants. Perry v. Payne (Pa.), 10-589. INDEMNITY LANDS. See PtTBLic Lands. has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury re- sult from the contractor's failure properly to carry out the contract. Young v. Smith t Kelly Cb. (Ga.), 4-226. Ordinarily an iadfependent contractor is not liable for an iajUry to the ptDpefty or person of one not a party to the contract, oceuMing after he has completed his work and turned it over to the owner or employer, and the latter has accepted it, even though the injury results from the contractor's failure properly to perform his contract. MeCrorey v. Thomas (Va.), 17-373. IND£N1!VSll:. Liability of apprentice, see Appbentices. INDETERMINATE SENTENCES. See Cbiminal Law, 7. INDEPENDENT CONTRACTORS. Liability for damages by fire, see Fires, 2 a. Liability for injuries caused by explosion, see Explosions and Explosives, 4. Wbo are independent contractors. — The test of the relation of independent con- tractor is actual independence in respect to the performance of the contract. Accordingly a person employed in a box factory to per- form one of the several operations in the manufacture of boxes is a servant and not an independent contractor, where he is required to do the work as and when directed by the superintendent of the factory, and is subject to discharge, though he is paid by the piece, and personally employs and pays his as- sistants. Messmer v. Bell, etc., Co. (Ky.), 19-1. A dredging company, furnishing, under contract, a ditching and dredging machine with a captain _ and crew for the perform- ance of a certain work, at a specified sum per day for the entire outfit, is an independ- ent contractor and solely responsible for its negligence in the prosecution of the work, where the other party to the contract has no control over the captain and crew of the machine other than to designate the place of performance and the general character of the work. Teller v. Bay, etc., Dredging Co. (Cal.), 12-779. Liability of owner. — The alteration of a four-story building so as to make one room on the ground floor by removing therefrom about sixty linear feet of a brick wall seV' enteen inches thick which divides the building from foundation to roof, and substituting three iron columns to support the wall above, is intrinsically dangerous, and the owner can- not, by letting the work to a contractor, re- lieve himself from liability to third persons injured by the collapse of the building in con- sequence of the alteration. Earl v. Reed (Can.), 18-1. Liability of contractor. — An independ- ent contractor is not liable for injury to a third person occurring after the contractor INDIAH9. iBdiafiS as eitiiens Within public stihool law, see ScttOdtS, 4 c. Property of Indians as subject o{ lafcfetiy, see LaBcentT, 2 b. State regulation. — The North Carolina statute constituting the Cherokee Indian lands, in which the Uhitfed States government Indian school is located, a special school dis- trict, and requiring attendance at said school by Indian childrfen within thfe district, is not class legislation and unconstitutional &s ap- plying only to Indians, and dlSCriminatilig against the white and colored races. State v. ^folf (N. Car.), 13-189. Such statute is not unconstitutional be- sausfe applicable only to one ^chodl district, since the funds for the School in queation are supplied by the general gDverflment and the act applies alike to all Indians Withiil the dis- trict. State V. Wolf (N. Cat.), 13-189. The objection that such a statute is beyond the power of the state because compelling at- tendance at a school maintained by the fed- eral government, is untenable, where the stat- ute excepts from the requiffemfeilt childfen sent to any other school for a like time and period. State v. Wolf (N. Car.), 13-189. Leases of lands. — tFhdei' section 17 of the Act of Congress of June 30, 1902 (32 St. 504, c. 1323), which provides that "Creek citizens may rent their allotments for strictly nonmineral purposes for a term not to exceed one year for grazing purposes only, and for a period not to exceed five years for agricul- tural purposes," and also that " any agree- ment or lease of any kind or character viola- tive of this pttf agraph shall be absolutely void, and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity," the right to avoid a lease of the prohibited character, for illegality, is not confined to the lessors, but may IJB exercised by the lessee or by any person against whom the lease is sought to be asserted as a valid obligation. As regards such a lease, the general rule INDICTMENTS AND INFOKMATIUNS. 889 which prohibits a tenaut from denying his landlord's title has no application. ]\Iuskogee Land Co. r. lluUins (U. S.), 16-387. Amenability to criminal lairs. — The Criminal Code of Canada applies to Indians as well as to others. Rex v. Beboning (Can.), 13-491. INDICTMENTS AND INFORMA- TIONS. 1. Necessity op Indictment oe Infor- mation, 889. 2. Finding akd Filing, 889, 3. fobjial bequipites, 890, 4. CHABfiiNG Offense, 891. 5. Bills of Particulars, 893. 6. Amendment, 893. 7. Joinder of Count3 a^d Ofjfeji^BS, 893. 8. PiSMjssiNfi, Quashing, or Setting AsTDW, 893, Sqe Abortion; Adulteration; Arson, 3; Assault and Battery, 1 d; Bigamy; Burglary, 8; Conspiracy, 1 e; Em- bezzlement, 4; Forgery, S; Homicide, 7; Ibtcebt, 2; Kidnapping; Larceny, 5; Perjury, 6; Bape, 2 a; Receiving Stoles Pbopebty, 2; Robbery, 2 a; Se- duction, 2 e { 1 ) . Accessories, necessity of indictment against principal, see Accessories and other PABTICIPANrs jjr Cbime, Averroenit of venw, see Venue, 2 e. Defect in indictment as ground for arrest of ju(J^»ent, see Judgment, 7 a. Eflfect of plea of guilty under defective iti- diqtment, see Criminal Law, 6 j (i). Election of offenses, see Embezzlement, 1. Inforjnation for eontejnpt, see GONTOMPT, 3 a. Iljfoiwiation in nature of quo warranto, see Quo Warranto. In prosecutions for practicing medieine with- out license, see Ppysiciaws and Sur- 6E0NS, 3 b. Mode of selecting and ijnpajifiljpg giapd jury, see Grand Jury. Name of foreman printe<} instead of signed by him, see Criminal Law, 6 j ( 1 ) . Necessity of calling all witnesses indorsed on indictment, see CRIMINAL Law, 6 m (4)- ObtaiJjing money or property under false pre- tenses, see False P«btenses and Cheats, 4. Offenses included, eonvietion for assault with dangerous weapon under indictment for assault with intent to kill, see Assault AND Battery, I 1. Pendency of another indictment as ground for arrest of judgment, see J When a fe- male becomes of age, the statute erf limita- tions begins to run against her right to dis' affiftn a deed made by her during h^ in' fanriy, and the running of the statilte is not interrupted by her subsequent marriag*/ as oflfe diea/bility cannot be tacked tu another to defeat the statute. Priddy v. Boice (Mo.), (4) Notice of disafcrinaftoe. Contract ttrith. pA,rtneTshi^. ■^ Notice by an infant of the disaffirmance of a con- tract With a partnership is sufficient if given to one of the partners. Spencer v. CoHifis (Cal.)iy 20-49, Notide to asili^Aee of cdntiyact. -• Nd' tice of the dtsafflfmance ttt m infant's con- tract need n6it be given to the assignee of the contract. It is sufficient, when reqiJired, if it is given to the co!ntr!«etiri^ party notwith- standing the assignment by him. Spfeficer C; Ocfllins (Gal.), 20^9. (5) Return of consideration. In an action to rescind tie yOidablfe cOri- tract of an infant, such part of tlie tonsid- eration as remains in the infant's possession or control must be returned, bnt if the in- fant has lost or expended it, so that he can- not restore it, he is not obliged to make restitution. Wuller v. Chuse Grbcerjr Co. (111.), 16-S22. In suet an action, where the property jiW- chased by the infant consists of shares of the capital stock of a corporation, a provision in the decree for cancelfation of the certificates of stock held by the plaintiff amounts, in ef- fect, to a restoration of the stdck to the de- fendant. Wuller V. Chuse Grocery Co. (111.), 16-522. An infant who has made a contract for sSl-ViceS to be rendered to him and has paid foil valu* for such services as have been ren- defred, is entitled to disaffirm the contract as to further services, under a statute (OIt. Codfe Oal., § §6) which permits an infant to disaffirm his contracts "upon restoring the consideration to the party from whom it was received." Speheer v. Collins (Cal.), 20-49. It is not necessary that aA infant, in order to recover back money paid by him in execu- tion of a voidable contract, sjtdtiild place the other party in siatu <^d. Thef fact that thtf infant may have received and retains intangi- ble benefits from the use of property pur- chased is n6 bar to ^lich action. Neilson v. International Textbook Co. (Me/)y 20-591. 3. Actions. a. Pleading. Infanta have a right to sue by a guardian and nest friend to recover damages for an injury done to the person by the' for'tious am of another. CMsen v. P'l'uhi (Neb.), 5-112. A bill in etjfiity crifinot 6e taken for cdfi- fessed as to infants. Holderby v. flagan (W. (Va.), 4r-401. b. When relief granted. Although minors may not be bound either by contract or by estoppel, equity will not lend its affirmative aid to enable them to take an unjust advantage of the mistakes or mis- fortunes of their adversaries. Tindall v. Peterson (Neb.), 8-721. e. Defenses. The doctrine of estoppel in pais does not apply to the act of an infant in misrepresent' ing his age. Kirfcham v. Wheeler-Osgood Co. (Wash.), 4-532. d. Evidence. Action fo* ■aeioisia.tiaa. —i In an actiOlf against an infant for the purchase ffici of necessaries the burden is" 6n the fiaWtiff to provc^ not Only that the gOods supplied Were suitable tb the Condition in life of the in- fant, but that he was riot siifficiftitly sup- plied with goods Of that class at the tiffiS of the sale and delivery. Nash v. inman (Eng.), 14-682. Ci Trial. FtO'tlnee of itLHf in aetiott far if«c«ii 5fll'l«i. '~ Whether ft course of inatructiofl iB electrical engineering is a necessaty fO* an infant ia a question of fact. Neilson Si In-' ternational Textbook Co. (Me.), 20-591. In an action Sgaiftat an ififdnt for the price of necesaariea, the queation whether the infant already had ft sufficient aupply of the article purchased by him is a question of fact for the jury, but Where there is' no evl' denee that the articles purehaaed were neeeS' saries judgment is properly directed to be entered fOr the defendant. Nash *. Inman (Eng.), 14-682. f. Guardian ad literfi, or next friend. ( 1 ) Appointment. For Infant tuarried woman. ^ t!M6f the South Carolina statute providing that " when ftn infant is a party, he must ap^eaf by guardian who may be appointed by the court ih which the action iS ptoSecutefd,'' a* iiifant wife cannot maintaih an actiOfi «5fh- are unable, from sickness, to l&Kot, the judgS' INFA^N'TS. 897 is properly joined with her as coplaintiff, and though there is a statute providing that " when a, married woman is a. party her hus- band must be joined with her," and further providing that " in no case need she prose- cute or defend by guardian or next friend," as the latter statute relates to the disability of coverture and not to that of infancy. Hiers v. Atlantic Coast Line R. Co. ( S. Car. ) , 9-1114. Who may apply for appointment. — Under the California Code of Civil Pro- cedure, providing that " when a guardian ad litem is appointed by the court he must be appointed . . . when the infant is a plaintiff, upon the application of the infant, if he be of the age of fourteen years," an order ap- pointing a guardian ad litem on the appli- cation of the guardian only, for a minor six- teen years of age, is erroneous, and ordinarily requires the reversal of a judgment rendered in favor of the infant at the suit of such guardian; but where it appears that the in- fant after reaching majority has not dis- affirmed the judgment, the right to do so is waived, and the judgment having become binding equally on both parties, no reversal is required. Johnston v. Southern Pacific Co. (Cal.), 11-841. (2) Removal and substitution. Power of conrt. — Under the Arkansas statutes (Kirb. Dig., § 6021) providing that an action by an infant must be brought by next friend, and authorizing the court to charge the next friend, the next friend of a minor plaintiff is at all times subject to the control of the court, and the court may at its discretion revoke the authority of the next friend to represent the infant, and sub- stitute another. Nashville Lumber Co. v. Barefield (Ark.), 20-968. (3) Compensation and expenses. Attorneys' Fees. — In a suit in chancery involving the real property of infants, where the chancellor, on account of the fact that the statutory guardian of the infants claims an adverse interest in the property, refuses to allow him to defend for the infants and appoints a guardian ad litem for that pur- pose, who employs attorneys to represent him, and the attorneys conduct the litiga- tion to a successful conclusion, the infants are liahle for reasonable attorney's fees, but the amount .cannot be made a lien on their property. Owens v. Gunther (Ark.), 5-130. (4) Powers. Cross-complaint on behalf of Infant defendant. — It is proper to sustain a de- murrer to a cross-complaint filed by a guard- ian ad litem for an infant defendant in a suit to quiet title, where the statute under which the guardian has been appointed im- poses on him the duty to defend and not to prosecute suits on behalf of the infant, and the order of appointment does not purport to enlarge the powers and duties prescribed Vois, 1-20 — Ann, Cas. Digest, — a", by the statute. Gibbs v. Potter (Ind.), &- 481. Compromise and settlement. — When acting as next friend for his infant child, a parent who has been regularly made a party to an action may properly negotiate for an adjustment of the controversy. He cannot, however, bind the infant by such settlement, which can become effective only by due ju- dicial examination and adjudication. Mis- souri Pacific R. Co. *. Lasca (Kan.), 17-605. Payment and satisfaction of Jndg- nient. — Under the Michigan statutes, the next friend of an infant lias the authority to receive payment of a judgment recovered in favor of the infant, and a payment so made will constitute a satisfaction of the judg- ment. Baker v. Pere Marquette R. Co. (Mich.), 7-605. 4. Regulation and Contboi- of Infants. a. Education. The legislature of a state may define the status of infants requiring state guardian- ship and may enforce state control and educa- tion of infants coming within the class so defined. Hunt v. Wayne Circuit Judges (Mich.), 7-821. b. Child labor laws. The Fourteenth Amendment to the Federal Constitution does not limit the power of a state to regulate in good faith the labor of minors. Starnes v. Albion Mfg. Co. (N. Car.), 15-470. The North Carolina statute prohibiting the employment of minors under twelve years of age in manufacturing establishments does not violate the Fourteenth Amendment to the Federal Constitution. Starnes v. Albion Mfg. Co. (N. Car.), 15-470. Inasmuch as minors are more subject to injury from excessive exertion and are less capable of self-protection than adults, they form a class to which legislation concerning their employment may be exclusively directed without falling under the constitutional pro- hibition of special legislation and unfair dis- crimination. In re Spencer (Cal.), 9-1105. The California statute making it a misde- meanor to employ children under fourteen years of age in certain specified occupations i.s not repugnant to the state constitution as being a special law for the punishment of crime where a general law could be made ap- plicable. In re Spencer (Cal.), 9-1105. The California statute prohibiting the em- ployment of children under fourteen years of age in certain specified occupations is not invalid, either as making an unfair discrimi- nation against the occupations mentioned, or as unduly restricting the rights of minors to work at any and every occupation in which they may wish to engage. In re Spencer (Cal.), 9-1105. The Washington statute providing that no child under the age of fourteen years shall be hired out in any factory, not only pro- hibits the parents and guardians from hiring out children below such »ge, but also pro- 898 ANN. CAS. DIGEST, VOLS. 1-20. hibits the employment of such children. Kirkham v. Wheeler-Osgood Co. (Wash.), 4- 532. The provision of the California statute prohibiting the employment of children under fourteen years of age in certain specified oc- cupations, that " upon the sworn statement of the parent that the child is over twelve years of age and that the parent or parents are unable, from sickness, to labor, the judge of the Juvenile Court, in his discretion, may issue a permit allowing such child to work for a specified time," is not open to the ob- jection that it discriminates against orphans and abandoned children, as the exception al- lowed by the provision is not made for the direct benefit of the child, but for the sick parent. In re Spencer (Cal.), 9-1105. The provision of the California statute pro- hibiting the employment of children under fourteen years of age in certain specified oc- cupations, that " during the time of tlie regular vacation of the public schools of the city or county, any child over twelve years of age may work at any of the prohibited occupations, upon a permit from the principal of the school attended by the child during the immediately preceding term," must be construed as meaning that the permit may be given by the principal of the school which the child has attended, whether the school is public or private, but that it can extend only to the time of the public school vacation; and as so construed the provision is valid. In re Spencer (Cal.), 9-1105. The provision of the California Child Labor Act, that no minor under sixteen shall work in any mercantile institution, oBiee, laundry, manufacturing establishment, or workshop between ten o'clock in the evening and six o'clock in the morning, is valid. In re Spencer (Cal.), 9-1105. , The provision of the California Child Labor Act, that no child under sixteen years of age shall work at any gainful occupation during the hours that the public schools are in ses- sion, unless he can read English at sight and writ* simple English sentences or is attend- ing night school, is a reasonable regulation to prevent those having control of such chil- dren from so working them as to hinder them from acquiring the beginning of an education. In re Spencer (Cal.), 9-1105. The provision of the California Child Labor Act, that no child under sixteen years of age shall work at any gainful occupation during the hours that the public schools are in ses- sion, unless he can read English at sight and wrii>e simple English sentences or is attend- ing night school, and the provision that no minor under sixteen shall work in any mer- cantile institution, ofiice, laundry manufac- turing establishment, or workshop between ten o'clock in the evening and six o'clock in the morning, are, even if invalid, separable from and independent of the other provisions of the statute, and are not so important to the entire scheme as to require the court to declare the entire statute invalid on the theory that the legislature would have re- fused to adopt the other provisions had it been aware of the invalidity of these par* ticular provisions. In re Spencer (Oil.), 9- 1105. The provision of the California Child Labor Act that nothing in the statute is to be con- strued to prevent the employment of minors at agricultural, viticultural, horticultural, or domestic labor during the time the public schools are not in session, or during other than school hours, does not constitute an un- reasonable discrimination. In re Spencer (Cal.), 9-1105. c. Juvenile offenders. JuTisdiction. — The Pennsylvania statute defining the power of courts in reference to delinquent children is not unconstitutional as creating a new court. Commonwealth v. Fisher (Pa.), 5-92. The Pennsylvania statute defining the pow- ers of the several courts of quarter sessions of the peace with reference to delinquent chil- dren is not unconstitutional as denying due process of law. Commonwealth f. Fisher (Pa.), 5-92. The Michigan Juveni,le Covirt Act is uncon stitutional as conferring on Circuit Court commissioners powers other than those which the state constitution permits them to exer- cise; and the statute is invalid throughout the state and is not merely inoperative in those counties wherein it attempts to eonler exclusive jurisdiction on such commissioners. Hunt V. Wayne Circuit Judges (Mich.), 7- 821. Section 9 of chapter 5388, Florida Laws of 1905, in so far as it confers jurisdiction on the judge of any Circuit Court or on a county judge to commit to the state reform school persons over ten and under eighteen years of age who are guilty of incorrigible or vicious conduct, is constitutional. Pugh v. Bowden (Fla.), 14-816. Such section of the statute, in so far as it authorizes the commitment by a judge of the Circuit Court or by a county judge, without a trial by jury, of persons over ten and under eighteen years of age who are guilty of incor- rigible or vicious conduct, is constitutional. Pugh?;. Bowden (Fla.), 14-816. Such section of the statute, in so far as it authorizes a judge of any criminal court of record to commit to the state reform school, upon written complaint under oath and with- out a jury trial, persons over ten and under eighteen years of age who are guilty of in- corrigible or vicious conduct, contravenes the provision of the Florida constitution confer- ring jurisdiction on such courts to try crim- inal cases. The judge of a criminal court of record may commit to the state reform school only by virtue of the provisions of section 1 of the same statute after regular conviction in said court for crime. Pugh V. Bowden (Fla.), 14-816. Commitment to bencToIent institu- tion. — The Georgia act providing for the commitment of wayward, etc., children to a benevolent institution provides for a hearing before the child is finallv taken from the cus- INFE0TIOT\'< DISEASES— INITIATION. 899 tody of the parent and a reasonable notice before such hearing; and when the terms of the act in reference to the hearing are con- strued in the light of the constitution and general laws of Georgia regulating the pro- cedure of inferior judicatories, there is nothing in the act which deprives the parent of any riclit without due process of law. Kennedy r.'jieara (Ga.), 9-306. A judgment of commitment to a beni'volent institution under the Georgia act proAidiiig for the commitment of wavward, etc.. chil- dren to such institutions, is a judgment made by a court of competent jurisdiction, and so long as it stands unreversed it is binding on the parties ; and it is therefore not erroneous, in a habeas corpus proceeding to recover possession of an infant committed to such in- stitution, to reject evidence tending to im- peach the validity of such judgment. Ken- nedy V. Meara (Ga.), 9-396. The special courts created by the Georgia act providing for the commitment of way- ward, etc., children to a benevolent institu- tion, are all of the same grade and class, the presiding officer in each being the judge of a given municipal court in the particular municipality, and the act is not subject to the objection that it is violative of that pro- vision of the constitution contained in the Civil Code, § 5958. Kennedy r. Meara (Ga.), 9-396. The Georgia act providing for the commit- ment of wayward, etc., children to a benevo- lent institution is not subject to the objection that it is a special law enacted in a case for which provision has been made by an existing general law. Kennedy v. Meara (Ga.), 9- 396. 5. Ceiminal Responsibility. Capacity to commit crime. — Under the statutes of North Dakota a child under seven years of age is legally incompetent to commit crime. Between the ages of seven and, fourteen he is presumed to be incompe- tent but the presumption is not conclusive. To overcome the presumption of incompetency, the burden is upon the state to show by clear proof that the defendant knew the wrongful- ness of the act when he committed it. State V. Fisk (N. Dak.), 11-1061. INFECTIOUS DISEASES. Communication by infected car, see Car- BIEBS, 6 a (2). Liability for exposure to infectious disease, see Master and Seevant, 3 a. Liability of landlord for disease communi- cated by infected premises, see Land- lord AND Tenant, 5 h (2). INFERENCES. See Evidence, 16. discretion of court in allowing counsel to draw inferences from evidence, see Criminal Law, 6 p, Effect of refusal to waive privilege of secrecy, see Witnesses, 3d (8). Fraudulent intent, see Fraudulent Convey- ances, 1 c. INFERIOR COURTS. Collateral attack on judgments, see Judg- ments, 10. INFIRM PERSONS. Dutv of carrier in respect to, see Carriers, ' 6 a (3). INFLUENCING LEGISLATION. Validity of contract, see Contracts, 4 c. IN FORMA PAUPERIS. Actions by personal representatives, see Ex- ecutor AND Administrator, 18 a. INFORMATION AND BELIEF. belief, see Criminal Law, 4. Denials on information and belief, see Plead- ing, 4 a (3). Sufficiency of affidavit in information and be- lief, see Extradition, 4 a. Verification of informations, see Indictments AND Informations. 3. INFORMATIONS. See Indictments and Informations. INFRINGEMENT. See Copyright; Patents, 4; Trademarks, Trade Names, and Unfair Competi- tion, 3. Of ferry franchise, .'ee Ferries, 1. INGRESS AND EGRESS. Duty of master to make premises safe, see Master and Servant, 3 b. INHABITANTS. Eight of inhabitants to sue on municipal con- tracts, see Municipal Corporation;;. INHUMAN TREATMENT. Ground for divorce, see Divorce, 2 b. INITIATION. Members of societies, see Societies and Ulf- incorporated Associations, 1, 900 ANN. CAS. DIGEST, VOLS. 1-20. INITIATIVE AND REFERENDUM. Direct exercise of legislative power by people, see MuNidPAi. Corporations, 2. Self-executing constitutional provisions, see Constitutional Law, 24. Validity as affecting form of government, see Constitutional Law, 13. INJUNCTIONS. 1. Nature and Grounds of Injunctive Reuef, 901. a. Mandatory injunctions, 901. b. Preventive relief, 901. c. Inadequacy of remedy at law, 901. 2. SUH.IECTS of Remedy by Injunction, 901. a. Property and rights of property generally, 901. b. Personal rights, 902. c. Contracts, 902. d. Municipalities and public officers, 902. (1) In general, 902. (2) Passage of ordinances, 903. (3) Enforcement of ordinances, 903. (4) Enforcement of statutes, 903. e. Civil actions and proceedings, 904. ( 1 ) In general, 904. (2) Enforcement of judgments, 905. (3) Garnishment, 90.5. f. Criminal proceedings, 905. g. Criminal acts, 905. 3. Actions for Injunctions, 906. a. Jurisdiction, 906. b. Parties, 906. c. Bill, complaint, or petition, 906. (1) Allegations, 906. (2) Verification, 906. d. Demurrer, 906. e. Decree, 906. f. Reference to master, 907. 4. Preliminary or Temporary Injunc- tions, 907. a. Discretion of court, 907. b. Notice of application, 907. c. Bond, 907. d. Hearing, 907. e. Dissolution or dismissal, 907. 5. Bonds, 907. a. Necessity, 907. b. Validity and requisites, 907. c. Actions on bonds, 908. ( 1 ) Who may sue, 908. (2) Accrual of cause of action, 908. (3) Defenses, 908. (4) Damages, 908. (5) Evidence, 909. (6) Instructions, 909. 6. Violation of Injunction, 909. 7. Appeals, 909. Abandonment of right of way by railroad, see Railroads, 2 b. Amount in controversy as dependent on dam- age sustained, see Courts, lb (5). Ancillary to specific performance, see Specific Performance, 4. Breach of contract as ground for restraining operation of trains, see Railroads, 4 c. Collection of illegal taxes, see Taxation, 8. Contracts in restraint of trade, see Monopo- lies AND Corporate Trusts, 2 e. Discharge in bankruptcy of principal in in- junction bond, as affecting liability of surety, see Bankruptcy, 9. Disclosure of trade secrets by employees, see Master and Servant, 'l e. Discrimination in water rates, see Waters AND Watercourses, 4 b (2). Enforcement of payment of compensation in condemnation proceedings, see Eminent Domain, lie. Enforcement of statute requiring vaccination of public school pupils, see Schools, 4. Enforcement of statutes, see Gas and Gas Companies, 4 a. Flooding of lands, see Waters and Water- courses, 3 b (7) (a). Flow of water, see Irrigation. Increase of water rates by municipality, see Municipal Corporations, 17. Infringement of copyright, see Copyright. Infringement of trademarks and trade names, see Trademarks, Trade Names, and Unfair Competition, 3. Interference with contract relations, see In- terference with Contract Rela- tions, 5. Interference with right to hunt wild fowl, &r Game and Game Laws, 1. Laying gas pipes in highway, see Gas a: Gas Companies, 7. Letting of contract for public work, see Spi. ciAL or Local Assessments, 5. Mandamus as concurrent remedy with injunc- tion, see Mandamus, 1. Maintenance of gambling house, see Gaming AND Gaming Houses, 3 d. Maintenance of disorderly house, see Dis- orderly Houses. Nuisances, see Explosions and Explosives; Nuisances, 6 b. Obstruction of canals, see Canals, 2. Obstruction of use of cemetery, see Cemeter- ies, 3. Performance of municipal contracts, see Mu- nicipal Corporations, 7 f. Prevention of waste, see Waste. Procuring injunction against commencement of action as waiver of statute of limita- tions, see Limitation of Actions, 8. Relocation of railroad, see Railroads, 2 b. Remedy to contest election, see Elections, 8 a. Restraining payment of school taxes, see Schools, 9. Right to jury trial in injunction suits, see Jury, 1 o. Sale under a chattel mortgage, see CHArrax Mortgages. Spite fences, see Fences, 1 b. Statute of limitations as affected by enjoin- ing commencement of action, see LIMI- TATION of Actions, 4 b (4), INJUNCTIONS. 901 Strikes and boycotts, see Labob Coubina- TIONS. Suit for injunction as abating quo warranto proceeding, see Abatement and Be- yrvAL. Trespasses by animals, see Animals, 2 b. Trespasses on property, see Trespass, 2 f. Trespass on real estate, see Landlord and Tenant, 1. Use of impure water, see Health, 1 c. Use of land as cemetery, see Nuisances, 1 b. Usurpation of authority by agent of corpora- tion, see Corpoeations, 10 a. Venue of action to enjoin trespass on land, see Venue, 1. Violation of injunction, as contempt of court, see Contempt, 1 g. Violation of contract for use of city streets by railroad, see Railroads, 4 e. Waste of mineral waters, see Mines and Minerals, 9. 1. Nature and Grounds or Injunctive Relief. a. Mandatory injunctions. Mandatory injunctions are not favored by the courts but they are permissible in special cases. Magpie Gold Min. Co. v. Sherman (S. D.), 20-595. b. Preventive relief. The remedy by injunction is a preventive one only, but when there is a continuance of the injury against which, before the act was committed, an injunction might have been granted, and a right to continue the injury is claimed by the aggressor, an injunction may, in a proper case, be granted to restrain such continuance. Seaboard Air Line Ry. v. South- ern Investment Co. (Fla.), 13-18. Nonesiatent conditions. — An injunc- tion against ticket brokers and scalpers to restrain them from dealing in non-transfer- able railroad tickets is properly made to ex- tend to tickets to be issued for an approach- ing occasion, and is not on that account un- authorized as promvilgating a rule applicable to conditions which have not yet arisen, and prohibiting dealing in tickets not in esse. Bitterman v. Louisville, etc., R. Co. (U. S.), 12-693. ComparatiTe injury to parties. — In a suit by landowners to enjoin a nuisance caused by smelters, where it clearly appears that on the one hand a right is violated and on the other that a wrong is committed, the extent of the comparative interests to be affected, and the fact that the interests to be adversely affected by the injunction are very large, should not weigh against the granting of injunctive relief. American Smelting, etc., Co. V. Godfrey (U. S.), 14-8. Where a corporation purchases land with constructive and actual notice of » contract for the sale of fire clay contained in the land, and erects a fire-clay mill on the land after it has been warned by the purchaser of the fire clay that he will protect his rights in the courts, it cannot defeat such purchaser's right to restrain a breach of the contract of sale by the claim that the granting of an injunction will greatly injure its business. Southern Fire Brick, etc., Co. v. Garden City Sand Co. (111.), 7-50. c. Inadequacy of remedy at law. In general. — An injunction should not issue where the allegations of the plaintiff's petition show that he has an adequate remedy at law. Thompson v. Tucker (Okla.), 6-1012. The fact that trees are about to be cut in erecting a telephone line on a highway does not authorize an injunction at the suit of an abutting owner against proceeding with the work until crni]i<-nsat]on shall be paid, for the owner is on+itled ciily to the wood when felled, and in any event his remedy at law is adequate. Hobbs t'. Long Distance Tel., etc., Co. (Ala.), 11-461. Financial irresponsibility of defend- ant. — The purchaser under a contract for the exclusive sale of fire clay in a tract of land is not precluded, on the ground of ade- quate remedy at law, from maintaining a bill to enjoin breach of the contract, where one defendant is not a party to the contract but is a subsequent purchaser of the land with notice, and the other defendant is a seller of the fire clay and the vendor of the land, and is financially unable to respond in damages. Southern Fire Brick, etc., Co. V. Garden City Sand Co. (111.), 7-50. 2. Subjects of Remedy by Injunction. a. Property and rights of property generally. Trespass on land. — Without the aid of a statute courts of equity do not grant in- junctions to restrain the mere trespass of taking turpentine from trees on lands when such trespass can be compensated in damages in an action at law. Cowan r. Skinner (Fla.), 11-452. Cutting trees. — Equity may, independ- ent of statute, enjoin the destruction of or injury to growing trees when the inadequacy of the remedy at law is because of the value and use of the trees as a part of the estate, the destruction or injury of which would be an actual and irreparable injury to the owner of the land and the use and enjoyment of his estate, that cannot be adequately compen- sated for in damages. Cowan v. Skinner (Fla.), 11452. Continued trespass by riding bicycle on railroad tracks. — One who constantly rides on a railroad track by means of a bicycle is a, trespasser, and such conduct on his part may be enjoined. Atchison, etc., R. Co. V. Spaulding (iCan.), 2-546. Business reputation. — An injunction may be granted to prevent a wrong which will result in injury to the general business reputation of the complainant and destroy its power to receive profits from future busi- ness. American Electrical Works v. Varlev Duplex Marget Co. (R. I.), 3-975. Police surveillance. — Equity will not intervene to restrain the police authorities from stationing officers outside of a plac having a liquor tax certificate, when such 902 ANN. OAS. DIGEST, VOLS. 1-20. authorities suspect that place of being con- ducted as a disorderly house, and from notifying customers who are within and those who are about to enter that it is a disorderly house which is likely to be raided at any moment, and that those who are on the prem- ises at the time of the raid are liable to arrest. Delaney v. Flood (N. Y.), 5-380. Acts committed in other states. — The United States Supreme Court will issue an injunction at the suit of a state to restrain the creation in another state, by mining operations, of sulphurous fumes an4 gases, which are carried great distances over large tracts of land in the complaining state, and cause and threaten to cause damage on a considerable scale to forests and vegetable life and possibly to health within such state. Georgia v. Tennessee Copper Co. (U. S.), IJ- 488. Threatened sale under mortgage. — A court of equity will not, on the ground that the statute of limitations has run against a mortgage, restrain a sale under the power contained in the mortgage, where there is neither an allegation in the com- plaint nor a finding by the court that the bond and mortgage have been pajd. House V. Carr (N. Y.), T-185. b. Personal rights. Right of privacy. — A temporary in- junction granted by a judge of the Arkansas Supreme Court at the instance of a person accused of crime, restraining a photographer and officers of the law from developing and using a photograph of the accused, pending the determination of an action brought by him permanently to enjoin the use of such photograph, will be dissolved where it ap- pears that the photograph has already been taken, and only remains to be developed, and that it is desired solely for the purpose of identifying the accused in the localitv where the offense is alleged to have been committed, and where the defendants disclaim any in- tention of using it for any other purpose. Mabey v. Kettering (Ark.), 16-1123. Unless it be evident that a picture should be taken to identify the person or to detect crime, it cannot be taken, the purpose not being detection or identification. If a per- son is under arrest or within the court's ju- risdiction, generally there arises no neces- sity for the exercise of the photographer's art before his trial and conviction. Schulman v. Whitaker (La.), 8-1174. An action for a violation of the right of privacy held not to be an action instituted to punish the infrp-ction of the criminal laws. Schulman v. Whitaker (La.), 8-1174. To restrain enforcement of statute against solicitsition of patients hy physicians. — An injunction will not issue to restrain an association of physicians from prosecuting the violators of the Arkansas statute making it unlawful for physicians and surgeons engaged in the practice of medi- cine to solicit patients by agents or drum- mers. Thompson v. Van Lear (Ark.) 7- 154. ' 0. Oonti'aets. Sestraining breach generally. — In the absence of some special equjty involving good Vvill, peculiar intellectual or other skill or capacity, secret process of business or other recognized ground for relief, a court of equity will not enjoin the breach of a con- tract by a bookkeeper not to engage in the liquor business in the state. Simms v. Bur- nette (Fla.), 15-690. Where no trade secret or other secret proc- ess is involved, the fact that a bookkeeper has learned where and what his employer buys and to whom he sells does not warrant the enjoining of a breach of such bookkeep- er's contract not to> engage in a. business similar to his employer's business. Simms V. Burnette (Fla.), 15-690. The difficulty of detecting all the violations of a contract and the alleged insolvency of the defendant does not furnish an equitable ground for the issuance of an injunction on an original bill. Simms v. Burnette (Fla.), 15-690. Negative covenants. — Whgre the owner of land containing fire clay makes a valid contract binding himself for a specified pe- riod to sell the clay exclusively to another person, and not to sell to any third per- son, there is an express negative covenant, breach of which may be restrained by injunc- tion, thoagh the contract is incapable of specific enforcement and though an action at law lies fqr brefich of the contract. Southern Fire Brick, etc., Co. v. Garden City Sand Co. (Ill,), 7-50. Contracts not enfprceahle specific- ally. — A person may be entitled to an in- junction restraining a breach of contract though the contract is not one that a court of equity would specifically enforce. Ameri- can Electrical Works v. Varley Duplex Mar- get Co, (H. L), 3-975, d. Municipalities and public officers. ( 1 ) In general. Unauthorized expenditure of public funds. — Where there is no solicitor or other legal counsel in an incorporated village whose duties require him, in the name of the corporation, to apply to a court to restrain the illegal use of its funds, a resident tax- payer, whose property is taxable by the vil- lage, may, for himself and on behalf of the village, maintain an action against the mu- nicipal authorities to enjoin the unauthor- ized expenditure of its fun4s. Pierce v. Ha- gans (Ohio), 15-1170, Performance of illegal contracts. — Property holders and taxpayers ma^ enjoin the performance by public authorities of a contract for street grading and paving where such contract is illegal because entered into without sufficient advertisement. Benoett v. Baltimore (Md.), 14-419, Change of street grAde;, — Jn an aQ- tion to enjoin a city from further lowering the grade of a street in front of the plain- tiff's property and to command the defenclant to replace all the excavating work and wake INJUNCTIOlfS. 903 tlw street as it had theretofore existed, evi- dence and pleadings examined and held to justify a finding that the street was about to be lowered still further, and that an in- jury had been done to the plaintiff's property that justified the court in issuing a manda- tory injunction to compel the defendant to place the street in the condition it was in prior to the excavation. Hart v. Seattle (Wash.), 13-438. Designation of o£B.cial newipaper. — Municipal authorities may be enjoined, at the suit of a rival publishing company, from designating as the official city newspaper a publication which has not the general cir- culation required by the city charter. Times Printing Co. r. Star Pub. Co. (Wash.), 16- 414. (2) Passage of ordinances. As a general rule courts will not enjoin the passage of an alleged unauthorized reso- lution or ordinance by n municipal corpora- tion. An injunction should not issue in such a case until some effort is made to enforce such resolution or ordinance. Chicago, etc., R. Co. !-. Lincoln (Neb.), 19-207. (3) Enforcement of ordinances. A bill in equity to enjoin the enforcement of an ordinance which attempts to revoke a former ordinance granting to the com- plainants a franchise for a waterworks sys- tem will be dismissed for want of equity where the invalidity of the revoking ordi- nance is apparent without the introduction of evidence, and it prescribes no penalties, and its enforcement against the complain- ants is not even threatened. Weller v. Gads- den (Ala.), 3-981. Enjoining violation of ordinance. — Injunction will issue at the suit of a pri- vate individual to prevent the erection of buildings in violation of a municipal ordi- nance, though the buildings are not nuisances per se, if the person seeking such injunction shows that their erection will work special or irreparable injury to him and his prop- erty. Bangs V. Dworak (Neb.), 13-202. A prosecution for violation of a municipal ordi])ance will not be enjoined on the ground that the ordinance is illegal, as that fact is a defense to the prosecution. Thompson v. Tuekej (Okla.), 6-1012. (4) Enforcement of statutes. General mle. — Courts of equity should, as a rule, decline to exercise jurisdiction, though having it, to enjoin public officers from executing the legislative will as to mere minor features of an enactment, not essential to efficacy of the general and dominant fea- tures. Wadhams Oil Co. v. Tracy (Wis.), 18-779. Constitnfionality of statute. — It is competent for a court of equity to entertain an action commenced by a person, specially interested, against administrative oflScers to enjoin them from executing a law, on the ground of its being unconstitutional, when such person would otherwise be irremediably damaged. Wadhams Oil Co. v. Tracy (Wis.), 18-779. Power of federal courts. — Where an indictment or proceeding is brought in a state court to enforce an alleged unconstitu- tional statute, the validity of which is the subject of inquiry in n suit already pending in a federal court, tlie latter court, having first obtained jurisdiction over the subject- matter, has power to retain its jurisdiction and enjoin the proceeding in the state court whether it be criminal or civil in its nature. In re Young (U. S.), 14-764. A federal court ought not to enjoin pro- ceedings by a state ofl^cial to enforce a legis- lative act of the state except in a case rea- sonably free from doubt, but where a state officer is about to commence suits which have for their object the enforcement of a statute which violates the Federal Consti- tution, to the great and irreparable injury of a complainant seeking injunctive relief, the sovereignty of the state is in reality not involved and the court should not refuse to act. In re Young (U. S.), 14-764. The right of a federal court to enjoin a state official from commencing suits to en- force an unconstitutional state statute does not include the power to restrain a state court from acting in any case brought before it, either of a civil or criminal nature, nor does it include the power to prevent any in- vestigation or action by a grand jury. In re Young (U. S.), 14-764. An action or proceeding brought by a state attorney-general in the name of the state to enforce a statute alleged to be void because in conflict with the Federal Constitution is, if the act is void, a proceeding without au- thority of the state, and one which does not afi'eet the state in its sovereign or govern- inental capacity, and hence a federal injunc- tion against the prosecution of such action or proceeding is not an interference with the sovereign power of the state. In re Youns (U. S.), 14-764. A suit against the attorney-general of a state to enjoin the enforcement of an uncon- stitutional statute amounts to a suit against the state unless such officer has a duty with regard to the enforcement of the act; and it is not material whether his duty to enforce the act arises out of the general law, or is specifically created by the act itself, so long as the duty exists. In re Young (U. S.). 14-764. The general discretion of the attorney-gen- eral of a state regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains such officer from taking any steps towards the enforcement of an unconstitu- tional enactment, as no affirmative action is thereby directed and he is merely prevented from doing that which he has no legal right to do. In re Young (U. S.), 14-764. The attorney-general of Minnesota, under his power existing at common law, and by virtue of the statutes of that state making it his duty to cause proceedings to be insti- tuted against any corporatioil wlienever it 904: ANN. CAS. DIGEST, VOLS. 1-20. shall have offended against the laws of the state, and to prosecute all actions which the state railroad commission shall order brought, has a. general duty imposed upon him to enforce the statutes of the state, in- cluding the statutes fixing freight and pas- senger rates and is therefore a proper party defendant to an action to enjoin tlie enforce- ment of such statutes. In re Young (U. S.), 14-764. A United States Circuit Court has juris- diction to inquire whether freight and pas- senger rates fixed by state statutes and regu- lations are so low as to be confiscatory, and to grant a temporary injunction against the adoption or enforcement of the rates pend- ing such inquiry; and on finding such rates to be confiscatory, the court has power to enjoin permanently their adoption or enforcement. Ex p. Young (TJ. S.), 14- 764. A suit in a federal court by stockholders of a railroad company to enjoin the attorney- general of a state from attempting by any action or proceeding to compel obedience to the provisions of unconstitutional stautes of the state fixing freight and passenger rates, or from instituting any action to enforce the penalties provided for violations of such stat- utes, is not a suit against the state within the prohibition of the Eleventh Amendment of the Federal Constitution, where the at- torney-general is clothed by law with a duty in regard to the enforcement of such statutes. In re Young (U. S.), 14-764. The opportunity of a railroad company to disobey a state statute fixing freight and passenger rates, and claimed to be in viola- tion of the Federal Constitution as a taking of property without due process of law, to incur the penalties provided for every viola- tion of the statute, and to test the constitu- tionality of the statute upon the bringing of an action for its violation, does not afford the company such a remedy at law as will defeat its right to enjoin in a federal court the enforcement of the statute, because a single violation of the statute and subsequent obedience to it pending the determination of its validity would operate as a taking of the company's property without due process of law in case the statute were declared in- valid, and because its continuous refusal to obey the act would subject the company to enormous penalties in case the statute were upheld, and for the further reason that the question of the validity of the rates fixed by the statute is one requiring a long examina- tion of complicated facts which a jury can- not properly investigate, and which can be best passed upon by a court of equity. In re Young (U. S.), 14r-764. e. Civil actions and proceedings. (1) In general. Equity will not entertain jurisdiction of a bill to enjoin a pending action of eject- ment, and to remove a cloud on the com- plainant's title by the cancellation of the deed relied upon by the plaintiffs in ei^ot- ment to eatahlish their claim to the land, although the bill alleged that the deed was fraudulently altered as to the date of ex- ecution and filing for registration and as to the interest conveyed, since these matters are available as a defense in the pending action. Wilson v. Miller (Ala.), 5-724. A bill in equity which proceeds alone on the theory that the complainants will suffer irreparable injury from an erroneous and improper judicial action on the prayer for injunction in bills which the respondents threaten to file, and seeks only injunctive relief forestalling such apprehended future miscarriage of justice and maladministration of law, presents no case of equitable cogni- zance. Robertson v. Montgomery Baseball Assoc. (Ala.), 3-965. Where a principal has brought an action at law against his agent to recover money collected for the principal but paid over by the agent to the stranger, the stranger is not entitled to an injunction restraining the prosecution of the action at law, as, if the money belonged to the principal the agent is liable for having paid it over, and if it belonged to the stranger the payment to him is a complete defense to the action at law. Moss Merchantile Co. v. First Nat. Bank (Oregon), 8-569. Even if a stranger may bring a suit to enjoin the prosecution of an action at law against another for want of a defense there- to, he may maintain such suit only when the defense at law is inadequate. Moss Mercan- tile Co. V. First Nat. Bank (Oregon), 8- 569. Actions in foreign states. — The courts of Arkansas will not enjoin a resident of a foreign state from suing a citizen of Arkan- sas in the courts of such foreign state, even though the effect of the suit may be to de- prive tlie defendant of his exemptions under the laws of Arkansas. Nor is this rule al- tered by the fact that one of several parties who might have brought the action sought to be enjoined is a resident of Arkansas, or by the fact that another action on the same claim was brought in Arkansas and was there pending when the action in the foreign juris- diction was commenced. Greer v. Cook (Ark.), 16-671. Where the complaint in a suit to enjoin the prosecution of an action in a foreign state does not set forth the residence of either party to the action sought to be en- joined, and the proof fails to show conclu- sively that none of the parties are residents of the state in which such action is brought, an injunction should be denied. Greer i'. Cook (Ark.), 16-671. On a proper showing, a court may enjoin one of the citizens of a state from prosecut- ing a suit against a fellow citizen in the courts of another state. Rader r. Stubble- field (Wash.), 10-20. Proceedings in other conrts. — A state court has no jurisdiction to enjoin a pro- ceeding or judgment of a federal court. The jurisdictions are separate and independent, and it is essential to the independence and INJUNCTIONS. efficiency of each that they be exempt from interference and control one by the other. Henderson C: Henrie (W. Va.), 11-741. Where land is sold under a decree in a bankruptcy proceeding and a deed is ordered to be made to the purchaser, a state court is without jurisdiction to enjoin the execu- tion of such deed on a bill filed therein by one claiming to be jointly interested with the purchaser in the purchase of said property. Nor can the purchaser be enjoined from ac- quiring the title to such land. Henderson i'. Henrie (W. Va.), 11-741. (2) Enforcement of judgments. Fraud in obtaining judgment. — A court of equity will not restrain the enforce- ment of a judgment at law on the ground of perjury or fraud in obtaining it, unless such fraud is extrinsic or collateral to the ques- tion examined and determined in the action. Donovan v. Miller (Idaho), 10-444. 'Want of consideration in contract. — ' A court of equity will not grant an injunc- tion to restrain the enforcement of a judg- ment at law on grounds of want of considera- tion or that the contract sued on is against public policy, where it appears that the de- fendant, through the negligence of his at- torneys, failed to set up such offenses. Dono- van V. Miller (Idaho), 10-444. Where a defendant fails to interpose all of his defenses in the trial court, and a judg- ment goes against him, the court of equity will not restrain the enforcement of such judgment on the ground of failure or negli- gence of the defendant's attorney to inter- pose such defenses. Donovan v. Miller (Idaho), 10-444. Issuance of execution on dormant judgment. — Injunction will lie to enjoin an execution on a dormant judgment. The plaintiff in such a suit does not thereby seek to use the statute of limitations as a sword, but as a shield to protect something which the law has already given him — the right not to have his property taken upon void process. Updegraflf v. Lucas (Kan.), 13- 860. A judgment becomes dormant on the death of the defendant creditor, although the ac- tion was prosecuted by one having no "bene- ficial interest therein, and the judgment be- longs, in fact, to another; and under such circumstances, where no proceedings to re- vive the judgment have been taken within one year after the death of plaintiflT in the action, an execution issued on the judgment is void and may be enjoined. Updegraflf v. Lucas (Kan.), 13-S60. (3) Garnishment. Injunction will not issue to restrain the prosecution of successive garnishment pro- ceedings against an employer for the em- ployee's wages, although it is claimed that the wages are exempt and that the garnish- ment writs are issued with intent to vex and harass the employee and tie up his wages. Baxley v. Laster (Ark.), 12-332. f. Criminal proceedings. A court of equity may not restrain a crim- inal prosecution by an injunction. Old Do- minion Tel. Co. I'. Powers (Ala.), 1-119. A court of equity will not enjoin the en- forcement of a valid criminal statute and thereby forestall the decision of the criminal courts as to the plaintiff's guilt or innocence, notwithstanding the fact that to do so would prevent a multiplicity of actions or would prevent injurious interference with the plain- tiff's business. Sullivan v. San Francisco Gas, etc.. Go. (Cal.), 7-574. Where property rights will be destroyed or greatly impaired, interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity. New Orleans Baseball, etc., Co. v. New Orleans (La.), 10-757. Where the facts alleged show injury to property rights resulting from the enactment of an ordinance excluding the erection or op- eration of baseball parks within certain limits, and that the ordinance was personal, arbi- trary, and discriminatory in its character, and the power of the city council to enact any such ordinance as a police regulation is questionable, a proper case is disclosed for the interference of a court of equity by the process of injunction. New Orleans Baseball, etc., Co. V. New Orleans (La.), 10-757. Equity has no criminal jurisdiction, and therefore will not entertain a bill to enjoin criminal proceedings. Fritz ». Sims (Tenn.), 19-458. Where property rights will be destroyed or their lawful enjoyment taken away by crim- inal proceedings under an invalid law or or- dinance, equity has jurisdiction to enjoin such proceedings. Fellows v. Charleston (W. Va.), 13-1185. g. Criminal acts. The legislature may authorize the issuance of a writ of injunction against the use of a building for a gambling house, although the effect of such injunction may be to restrain the commission of a crime. Ex p. Allison (Tex.), 13-684. The jurisdiction of the Texas District Court under the statute authorizing the issuance of a writ of injunction against the use of a building for a gambling house at the suit o^ the state or a private citizen, and pro- viding that the procedure shall be similar to all other suits for injunction, is not affected by a constitutional amendment giving tlie County Court jurisdiction to grant an in- junction where the amount in controversy is within its jurisdiction, on the ground that the act so restrained is a misdemeanor and therefore within the jurisdiction of the County Court. If the County Court has jurisdiction in any such case it is concurrent with that of the District Court. Ex p. Allison (Tex.) 13—684, ' 906 Al^N. CAS. DIGEST, VOLS. 1-20. a. Actions fob iNJurrcrioirs. a. Jurisdiction. Frooeedtngs in another state. — On a proper showing, a court may enjoin one of the citizens of a state from prosecuting a suit against a fellow citizen in the courts of an- other state. Rader v. Stubblefield (Wash.), 10-20. Trespass on land in another state. — An action for an injunction to restrain acts of continuing trespass on land, which involves necessarily and chiefly the question of the title to land, is local and not transitory, and a court of equity has no power to entertain such a suit where the land in question is without its territorial jurisdiction, notwith- standing the fact that it has jurisdiction of the persons of the alleged trespassers. Co- lumMa Nat. Sand Dredging Co. v. Morton (D. O; 8-511. b. Parties. Suit by taxpayers. — ' Citizens and tax- payers, simply as such, stating no special harm to themselves diiferent from that sus- tained by others, cannot enjoin the use of a lease of a part of the city park, made by the city, for a term of years for the purpose of racing horses. Bryant v. Logan (W. Va.), 3-1011. e. Bill, complaint, or petition. (1) Allegations. Inadequacy of remedy at laiv. — An injunction will not issue to restrain the cut- ting of timber on the complainant's land where it is neither alleged nor proved that the cutting will result in irreparable injury to the land or that the defendant is insol- vent. Haggart v. Chapman, etc.. Land Co. (Ark.), 7-333. Allegations in a bill " that almost the en- tire value of said lantfs consists in the said pine trees and their product which the said defendants are carrying away, and your ora- tor being engaged in the manufacture of naval stores was induced to purchase the said lands in order to iget the product of such trees, and the said defendants by their tres- passes are destroying the value of the said lands for the purpose for which the same were acquired by your orator," did not war- rant the granting of an injunction to restrain the trespass at the time the constitutions of the state were adopted, therefore the granting of an injunction now in such a case by virtue of a statute cannot deprive the defendant of a jury trial as to damages caused by the tres- pass. Cowan V. Skinner (Fla.), 11-452. Multiplicity of suits. — Allegations in a bill for an injunction to restrain tres- passes on timber lands, that several tres- passes by taking turpentine from the trees have been committed by the same parties, and that an action at law has been instituted to recover damages for such trespasses, and that one of the trespasses has occurred since the action at law was brought, do not state an equity to prevent a multiplicity of suits, there being no showing of the inadiequacy of the remedy by action at law for damages. Cowan v. Skinner (Fla.), 11-452. Conclusions of pleader. — In an injunc- tion suit to restrain strikers and labor lead- ers from interfering with -complainant's Tjusi- ness and employees, the bill held not to be open to the objection that the allegations therein are mere conclusions of the pleader. O'Brien v. People (111.), 3-966. (2) Verification. A bill for injunction is properly verified by the solicitor for complainant, where his affidavit is positive and direct to all the alle- gations of the bill. Seaboard Air Line Ey. V. Southern Investment Co. (Fla.), 13-18. d. Demurrer. In an action to enjoin a nuisance and for the recovery of damages when a, judgment sustaining a demurrer to the answer has lieen reversed, the plaintiff will be allowed to file a reply, and when the issues are completed time will be given to either party to take ad- ditional proofs is desired; and on the ques- tion of the damages sustained by the plain- tiff, the court will, if either party desires it, order a jury 'trial. Ireland v. Bowman (Ky.), 17-786. «. Decree. Effect aa to persons not parties. — The assignee of a contract for the construc- tion of a public building is not bound by an injunction restraining the carrying out of the contract, issued in a suit to which he is not made a party, where he acquired his rights under tiie assignment and commenced the construction of the building before the institution of the injunction suit. Marengo County V. Matkin (Ala.), 6-902. A person who has actual knowledge of an injunction is bound to obey it tiiough he has not been served with process and is not even a party to the suit. O'Brien v. People (111.), 3-^986. Damages. — In cases where equity will, independent of statute, enjoin the destsfuction of or injury to growing trees, the court iflay proceed to an accounting and award damages for the trespass as an incident to 1*6 relief by injunction. But when the injunction is granted under a statute on grounds which would not be sufficient independent of the statute, the court cannot l^ally proceed to an accounting and award damages for the trespass, since in such a ease the defendant is entitled to a jury trial on the question of damages. Cowan v. Skinner (Fla.), 11-452. Damages in lieu of Injunction. — In an action to enjoin a city from lowering the grade of a street in front of the plaintiff's property and to compel the defendant to re- store the street to its former condition, the court has power to make a decree finding that the plaintiffs are entitled to have the street restored to its former condition, but giving the defendant the privilege of leaving the i:n'jit]^ctions. 907 street in the condition to -which it has been changed, provided the defendant pays the plaintiffs the amount of damages occasioned by its action; and an ordinance of the city requiring claims for damages to be presented to the city council has no application to a case of this character. Hart «. Seattle (Wash.), 13-438. f . Reference to master. Where a proceeding by the state, on the relation of the attorney-general, to enjoin the obstruction of a canal, is brought in the Su- preme Court in the first instance, and the return to the petition for an injunction al- leges that the supply of wholesome water of the defendant city depends on the mainten- ance of the bridge which is complained of as an obstruction, but does not allege sufficient facts to enable the court to determine whether the immediate removal of the bridge would so seriously interfere with the city water sup- ply as to endanger the public health, or what length of time should be allowed the city to provide another means of conveying its water to its waterworks, a master will be appointed to take testimony and report his conclusions of fact on those questions before the final or- der in the ease is framed. State v. Columbia Water Power Co. (S. Car.), 17-343. 4. Pbelimtnaby oe Tempobabt Injunctions. a. Discretion of court. Generally. — The granting or refusing of interlocutory injunctions where the evidence is conflicting is a matter of sound discretion intrusted to the judges of the Georgia Su- perior Court to be exercised by them accord- ing to the circumstances of each case; and such discretion will not be controlled by the appellate court unless manifestly abused. Green v. Freeman (Ga.), 7-1069. The granting or denying of a temporary injunction is largely within the discretion of the trial judge; but such discretion is con- trolled by established principles of equity, and if the allegations of the bill and the evi- dence in support thereof are sufficient to war- rant the granting of the temporary injunc- tion, and no adequate defense is made, an order denying an injunction will be reversed. Taylor v. Florida East Coast R. Co. (Fla.), 14-472. In aid of appellate jurisdiction. — Applications for temporary injunctions in aid of the appellate jurisdiction, of the Ar- kansas Supreme Court, and motions to dis- solve such injunctions, are addressed to the discretion of the court. Mabry v. Kettering (Ark.), 16-1123. b. Notice of application. Where the allegation in a bill for an in- junction, and the affidavit in support thereof, do not assert simply the legal conclusion that notice to the defendant of the application for injunction will accelerate the injury com- plained of, but show further that, before paid application could be heard, the defendant railroad would be able to lay its track and have its cars in operation over the land of complainant, a sufficient reason for dispens- ing with notice of the application for injunc- tion is made to appear. Seaboard Air Line Ry. 1-. Southern Investment Co. (Fla.), 13-18. c. Bond. Where a court grants a restraining order ex 'parte without requiring the filing of the undertaking required by its rules as a con- dition precedent, the defendants do not, by appearing and answering, waive the right to object that the order is void for want of ju- risdiction, especially where they appear with- out knowledge of the defect. Drew v. Hogan (D. C), 6-589. d. Hearing. On an interlocutory hearing of an equitable petition for injunction, where the judge, after hearing argument of counsel, announces that he will grant the interlocutory restraining order, but that for the purpose of making certain rulings on the evidence offered he will pass the case until two days later, it is not error for him to refuse to receive and con- sider other affidavits tendered by the defend- ant on the day set for announcing such rul- ings, no reason being shown for not submit- ting the rejected affidavits at the hearing. Green v. Freeman (Ga.), 7-1069. e. Dissolution or dismissal. Where there is no equity in the bill, a mo- tion to dissolve a preliminary injunction should be sustained. Pocahontas Coke Co. v. Powhatan Coal, etc., Co. (W. Va.), 9-667. On the hearing of a motion to dissolve an injunction before answer, the allegations of the bill must be taken as true. Pocahontas Coke Co. V. Powhatan Coal, etc., Co. (W. Va.), 9-667. Where the parties to an action in which a temporary injunction has been issued make an amicable and voluntary agreement settling the matters in controversy and consenting to a decree dismissing the action, the dismissal is not equivalent to a judgment by the court that the plaintiff was not entitled to the in- junction which it obtained. St. Joseph, etc.. Power Co. v. Graham (Ind.), 6-399. 5. Bonds. a. Necessity. An injunction issued by the Supreme Court of the District of Columbia is void unless the complainant has executed and filed the under- taking required as a condition precedent by the court's rules. Drew v. Hogan (D. C), 6-589. b. Validity and requisites. Conditions of bond. — An injunction bond will not be held invalid merely be- cause the order, in pursuance of which it was given, provided that the injunction should not take effect until a bond was executed con- ditioned " according to law," instead of pre- 908 ANiST. CAS. DIGEST, VOLS. 1-20. scribing the particular condition to be in- serted in the bond. Although section 3442 of the Virginia Code provides that an injunc- tion, except in specified cases, shall not take effect until a bond is given with such con- dition " as to the court shall seem just and proper in the case," the almost universal practice in granting injunctions is for the court to direct a bond to be executed con- ditioned according to law; and it is only where the peculiar nature of the case calls for a special condition in the bond that the condition is prescribed by the order. Colum- bia Amusement Co. v. Pine Beach Investment Corp. (Va.), 16-1120. Iiitoppel to deny validity of bond. — A party who has executed an injunction bond, and obtained and taken the benefit of the in- junction, is thereby estopped to deny the validity of the bond, or his liability thereon, because of any informality in the order which directed the bond to be given. Columbia Amusement Co. 1>. Pine Beach Investment Corp. (Va.), 16-1120. c. Actions on bonds. (1) Who may sue. Persons not parties. — A person who voluntarily obeys an injunction which is not binding on him cannot maintain an action on the injunction bond on the dissolution of the injunction. Marengo County v. Matkin (Ala ), 6-902. Where a person not named as an obligee sues on an injunction bond he must allege facts showing that he has been damaged by the issuance of the injunction. Allegations of a breach of the condition of a bond and of the dissolution of the injunction are not of themselves sufficient to make out a case for nominal damages even. Marengo County v. Matkin (Ala.), 6-902. A person not named as an obligee to an in- junction bond and not made a party to the injunction suit may maintain an action on the bond for all damages resulting to him from the direct effects of the injunction, where the bond is conditioned to pay " all damages and costs which any person may sustain by the suing out of such injunction if the same is dissolved." Marengo County v. Matkin (Ala.), 6-902. (2) Accrual of cause of action. Dissolution of Injunction. — Under a statute providing that the failure of the court to assess the defendant's damages shall not operate as a bar to an action on the in- junction bond, the defendant may maintain an action on such bond immediately on the dissolution of the injunction without wait- ing for the final disposal of the case. Shackle- ford 17. Bennett (111.), 15-719. Voluntary dismissal of action. — The rule that the voluntary dismissal by the plaintiff of an action in which he has ob- tained a temporary injunction or restraining order in such a breach of the injunction bond as gives the defendant a right of action there- on, does not apply to a dismissal by amicable and voluntary agreement of the parties. St. Joseph, etc.. Power Co. v. Graham (Ind.), 6- 399. (3) Defenses. Violation of injunction. — It is no de- fense to an action on an injunction bond that the plaintiff (defendant in injunction suit) violated the injunction. Phoenix Pad Co. v. United States (Md.), 19-667. (4) Damages. In general. — In an action on an injunc- tion bond, given in a suit brought to restrain the enforcement of a judgment, the extent to which the amount collectible on the judgment has been reduced in consequence of the in- junction is a proper element of damage. Stull V. Beddeo (Neb.), 15-950. In an action on an injunction bond, con- ditioned to pay all costs that may be awarded against the party obtaining the injunction " and all such damages as shall be incurred in case the said injunction be dissolved," the plaintiff is entitled to recover the damages sustained by him between the date when the injunction was made permanent and the date of its final dissolution, as well as the dam- ages sustained while the temporary injunc- tion was in force. Columbia Amusement Co. V. Pine Beach Investment Corp. (Va.), 16- 1120. Where an injunction prohibiting the carry- ing on of a certain business on leased premises is dissolved, and the lessor of the premises brings an action on the injunction bond to recover the damages occasioned by the injunction, and it appears that the busi- ness enjoyed was the only business which could be conducted on the premises by the lessee, under the terms of the lease, the plaintiff is entitled to recover, as damages, the rent of the premises during the period .that the injunction remained in force. The fact that the lessee remained in possession of the premises during the period in ques- tion, does not affect the right of the lessor to recover such damages, since the lessee could not be held liable for the rent during that period, and, therefore, the ultimate loss falls on the lessor, although the immediate injury from interference with the business is suffered by the lessee. Columbia Amuse- ment Co. V. Pine Beach Investment Corp. (Va.), 16-1120. Attorney's fees. — Attorney's fees for services rendered by him for the injunction defendant in the appellate court in a success- ful endeavor to sustain the judgment of the lower court dissolving the injunction and dis- missing the action, are properly allowable against the plaintiff's bond. Miller v. Dono- van (Idaho), 13-259. Under the Idaho statute requiring the plaintiff to whom an injunction is granted to give an undertaking conditioned to the effect that if the right to the injunction is finally denied, the plaintiff will pay to the party en- joined "costs, damages, and reasonable coun- sel fees," a defendant seeking to recover at- INJUKY — INNS, BOAKPING HOUSES, AND APARTMENTS. 909 torney's fees on the plaintiff's bond after the dissolution of the injunction, is required to show only that the services rendered were performed in securing the dissolution of the iiijunetion, or that the services were per- formed principally and mainly for that pur- pose, and the fact that the services rendered inured to his benefit in the main case, and re- sulted in a final disposition of the action on tlie merits, cannot defeat the right to recover attorney's fees for services originally and primarily required on account of the injunc- tion. Miller v. Donovan (Idaho), 13-259. The fact that the evidence as to the amount of attorney's fees paid for services rendered in resisting an injunction, and the reason- ableness of the charge made, is disrupted and contradicted, does not authorize or justify the appellate court in disturbing the finding of the trial court, either as to the amount of fees actually paid or as to the reasonableness of the charge where the evidence presents a substantial conflict. Miller v. Donovan (Idaho), 13-259. In the absence of a, statutory provision to the contrary, an attorney's fees incurred by the defendant in an injunction suit in pro- curing the dissolution of the injunction are not an element of damage to be considered by the jury in an action on the injunction bond. Lindeberg v. Howard (U. S.), 8-709. (5) Evidence. In an action on an injunction bond given in a patent infringement case, where the plaintiff claims, as an item of damage, in- creased cost of manufacture as the result of the injunction, such item may be proved by showing any fact from which the damage suf- fered may be logically be deducted, and the court properly refuses to charge that it must be " determined from records of expense kept at the time the expenditures were made." Phoenix Pad Co. v. V. S. (Md.), 19-667. Actual damage as the result of the grant- ing of an injunction in a patent infringement suit is proved in an action on the injunction bond, where it is shown that the granting of the injunction made it necessary for the plain- tiff (defendant in injunction suit) to manu- facture its goods by a different process, that to retain its customers it had to sell the goods at the same price as before, that dur- ing the time the injunction was in force a certain number of the articles were manu- factured and sold, and that the cost of manu- facture exceeded the former method by a cer- tain amount. Phoenix Pad Co. v. United States (Md.), 19-667. (6) Instructions. The defendant in an action on an injunc- tion bond is not prejudiced where the court charges that the plaintifFs loss " must be proven by data sufficient to enable the jury to calculate with reasonable certainty the com- pensation to which the plaintiffs are en- titled," instead of charging, as requested by tbe defendant, that the loss must be proved '■ by clear and definite data sufficient," etc. Pheenix Pad Co. v. V. S. (Md.), 19-667. 6. Violation of Injunction. Evidence held to establish a violation of an injunction restraining interference with the complainant's business and intimidation of his employees. O'Brien v. People (111.), 3-966. In an injunction suit to restrain strikers and labor leaders from interfering with a complainant's business and employees, where the bill sufficiently charges the acts of the defendants to give the court jurisdiction to pass on the sufiiciency of the bill, the fact that the court grants an injunction improvi- dently does not afl'ect the question of juris- diction or authorize the defendants to dis- obey the injunction. The injunction is bind- ing until the order granting it is reversed by the court of a competent jurisdiction. O'Brien v. People (111.), 3-966. 7. Appeals. Revievr of discretion. — The discretion vested in the New York Supreme Court to issue or refuse an injunction is not absolutely unlimited, as it frequently happens that facts are proved which raise questions of law re- viewable by the Court of Appeals. Penrhyn Slate Co. V. Granville Electric Light, etc., Co. (N. Y.), 2-782. Effect of supersedeas bond. — A pro- hibitory injunction restraining the continu- ance of an act or a series of acts is not super- seded by taking an appeal and giving the supersedeas bond provided by statute, and a defendant against whom such an injunction has been granted is not entitled to supersede the order granting the injunction as a matter of right. State es rel. Gibson i: Superior Court (Wash.), 4-229. A temporary injunction restraining the de- fendants from operating in connection with their business a shooting gallery and certain musical instruments is a preventive, and not a mandatory, injunction, and the defendants, on appealing from the order, are not entitled to a supersedeas as a matter of right. State eo) rel. Gibson v. Superior Court (Wash.), 4- 229. INJURY. As element of forgery, see Fobgebt, 1 a. IN I.OCO PARENTIS. Persons in loco parentis, see Appbbntices; GUABDIAN AND WaBD; SCHOOLS. INNOCENCE. Presumption of innocence, inr criminal cases, see Cbiminal Law, 6 q ( 3 ) . INNS, BOARDING HOUSES, AND APARTMENTS. 1. Who Are Innkebpebs, 910. 2. Who Abe Quests, 910. 3. Statutoet Reqdlation, 910. 910 ANN. CAS. DIGEST, VOLS. 1-20. 4. Ddty to Receive and Entertain Guests, 910. 5. Liability foe Effects of Guest, 911. 6. Liability fob Pebsonal Injubies to Guests, 911. 7. Lien of Innkeepeb, 912. 8. Liability to Thibd Pebsons fob Acts of Guests, 912. 9. Actions, 912. a. Pleading, 912. b. Evidence, 912. 10. Criminal Liability of Guests, 912. 11. Apabtment Houses, 913. Right to serve guests with intoxicating liq- uors on Sunday, see Intoxicating Liq- uors, 5 c. 1. Who Abe Innkeepers. Innkeepers distinguished from keep- ers of boarding houses. — A boarding house keeper, who is responsible for the safety of his boarders' personal effects only to the extent of reasonable care on the part of him- self and his servants, is one who reserves the right to select and choose his patrons and takes them in only by special arrangement and for a definite time, whereas an innkeeper, who is responsible as an insurer, holds out his place of entertainment as one where all transient persons who may choose to come will be received as guests for compensation. Holstein v. Phillips (N. Car.), 14-323. 2. Who Abb Guests. Character of accommodations sought. — Where a person resorts to a hotel with the primary purpose of securing food or lodging, he is to be considered a bona fide guest of the hotel, even though he incidentally procures and drinks intoxicating liquor therein; but if he goes to the hotel for the purpose of procuring liquor, then the fact that he regis- ters and procures a sandwich with the liquor does not make him a bona fide registered guest. Cake v. District of Columbia (D. C), 17-814. Character as transients. — A person who leaves home and enters, for a short but indefinite stay, a hotel which is doing a gen- eral hotel business during the summer months as a summer resort for the reception and en- teitainraent of all who may choose to come there, is a transient with all the, rights of a guest, and the fact that such guest is to pay board by the week, or even at a reduced rate, dues not change his position as guest or de- prive him of the right to hold the innkeeper liiible as insurer for the loss of his personal effects. Holstein v. Phillips (N. Car.), 14- 323. Effect of leaving horse at inn stable. — Where it appears in an action against an innkeeper to recover for the death of the plaintiff's mule, that the defendant provided a lot and stable in which his guest were per- mitted to keep their horses without charge, but that it was customary to charge for feed for such horses if furnished by the defend- ant; that the plaintiff drove into the lot, un- hitched his mule from his buggy, placed the mule in a stall pointed out by a boy in charge of the lot and stable, and then left the prem- ises without having made any agreement with the innkeeper or his authorized agent that the plaintiff would be a guest or that the innkeeper should furnish any feed for the mule, and without having done anything else towards becoming a guest except that he stated to the boy that he would return and would himself feed the mule at dinner time; and that although the plaintiff had intended to take dinner at the inn with another per- son who accompanied him in his buggy and who actually dined at the inn, the plaintiff did not do so because before the dinner hour he learned of the injuiy to his mule, the evi- dence does not establish the relation of inn- keeper and guest between the defendant and the plaintiff. Brewer v. Caswell (Ga.), 16- 936. Use of bath house attached to inn. — If an innkeeper also conducts a bath house on the seashore where the general public, as well as guests at his inn, may obtain the use of bath rooms and accessories to the bath, this is not sufficient to constitute the relation or innkeeper and guest between him and per- sons using such bath house. Walpert v. Bohan (Ga.), 8-89. Guest distinguished from boarder. — The essential difference between a guest and a boarder lies in the character in which the person comes. One who stops at an inn as a transient is a guest with all the rights and privileges incident to that station, while one wlio seeks accommodation with a view to permanency, so as to make the place his home for the time being, is not a guest, but a boarder; but the duration of the stay is not decisive of the question, for the character of guest will continue as long as he remains in the transitory condition of that relation, Hiolstein v. Phillips (N. Car.), 14-323. 3. Statutoby Regulation. Fire escapes. — Under the Missouri stat- ute requiring "the owner, proprietor, lessee, or keeper of every hotel " to provide flre es- capes, the lessee is bound to provide the es- capes in case the lessor fails to do so, but the initial duty is imposed on the lessor or owner. Yall V. Snow (Mo.), 9-1161. As used in the Missouri statute requiring " the owner, proprietor, lessee, or keeper of every hotel " to provide the structure with fire escapes, tlie word " owner " means the owner of the property, and not the owner of the business, or the person conducting the hotel. Yall v. Snow (Mo.), 9-1161. 4. Duty to Receive and Entertain Guests. Governing principles. — Under the Ala- bama statute the liability of an innkeeper is to be ascertained by the common law in the absence of a special contract regulating that liability. Hervey r. Hart (Ala.), 13-1049. INA'S, BOxUiUiiNG 110 U SEW, ANI* APARTMENTS. !)11 Bight to transfer guest to another room. — An innkeeper incurs no liability to a guest in transferring the guest from one room or apartment to another if he offers proper accommodations in lieu of those first assigned. Hervey !'. Hart (Ala.), 13-1049. Bight to remove disorderly guest. — In an action against the proprietor of a hotel for damages for assault and battery in the expulsion of the plaintiffs from the hotel, where one of the defenses is that the plain- tiffs were conducting themselves improperly as guests of the hotel, and upon refusing to leave when retjuested were ejected without the use of unnecessary force, and there is evidence suflBcient to support such a finding, a requested instruction that " if the plaintiffs wrongfully refused to leave the defendant's premises when requested the defendant and his servants then had a lawful right to re- move them, and their resistance to such re- moval was unlawful," is applicable to the case under the evidence, and the refusal of suehs instruction and the giving of an instruc- tion, which seems to imply that even if the defendants had the right to order the plain- tiffs out of the hotel, they could not proceed to expel them forcibly unless the plaintiffs were still conducting themselves in a dis- orderly manner,, is reversible error. Holden r. Carraher (Mass.), 11-724. 5. Liability fob Effects of Guest. Nature of bailment. — An innkeeper is not liable as a gratuitous bailee for the loss of baggage delivered to the porter by one who intends to but does not actually become a guest, the porter himself being the gratu- itous bailee, if there is bailment in such case. Tulane Hotel Co. v. Holohan (Tenn.), 2-345. " JeiKels and ornaments." — A watch and fob are embraced in the terms " jewels or ornaments " within the Tennessee statute relieving a hotel proprietor from liability for the loss of jewels or ornaments belonging to fuests when he has provided a safe for the eposit of such articles. Rains v. Maxwell House Co. (Tenn.), 2-488. Iieaving guest's baggage in unlocked room. — It is gross negligence for an inn- keeper to store the trunks of a boarder in an unlocked and insecure room. Greene v. Wind- sor Hotel Co. (Quebec), 2-12. Effects left by departing guest. — The clerk of a hotel has no authority to bind the proprietor by receiving for safekeeping money from one who has been a guest of the hotel, but who, at the time of making the deposit, terminates the relation of guest by paying his bill and announcing his departure. Ox- ford Hotel Co. V. Lind (Colo.), 18-983. Ziiability for baggage of boarder. — An inrakeeper is liable for the baggage of persons boarding at the hotel equally as for the baggage of mere travelers, and parol evi- dence by a boarder is permissible to show the dt-posit of the baggage with the innkeeper. Greene y. Windsor Hotel Co. (Quebec) , 2-12. Statutory regulation of liability. — Under the English Innkeepers Iiiability Act, limiting the liability of an innkeeper for the goods or property of a guest except "where such goods or property shall have been de- posited expressly for safe custody with such innkeeper, it is necessary to prove, in order to show the deposit for safe custody contem- plated by the statute, that something was said or done by the guest to whom the goods belonged which would indicate to the inn- keeper that the goods were being deposited with him for safe custody, and that the inn- keeper received them into his charge with the ii\tention of making himself liable for their safety. Whitehouse v. Pickett (Eng.), 12-96. The North Carolina statute limiting an innkeeper's liability, but providing that the statute shall not apply to an innkeeper or his guests when the innkeeper fails to keep posted in the rooms occupied by guests and in the hotel office a copy of the statute and all regulations relating to the conduct of guests, leaves the innkeeper responsible as insurer for the safety of the guest's goods and money, as at common law, where the copy of the statute and regulations is not posted in the guest's room as the statute pro- vides. Holstein v. Phillips (N. Car.), 14- 323. 6. Liability fob Peesonal Injtjbies to Guests. Implied undertaking of innkeeper. — In receiving a guest into his hotel, the hotel keeper impliedly undertakes that such guest shall be treated with due consideration for liis comfort and safety. Clancy v. Barker (Neb.), 8-682. Assaults by employees. — It is the duty of a hotel keeper to protect his guests while in his hotel against the assaults of employees who assist in the conduct of the hotel and in the care and accommodation of the guests. If damages result from such an assault the hotel keeper is liable therefor. Clancy v. Barker (Neb.), 8-682. A trespass committed on a guest in a hotel by a servant of the proprietor, whether ac- tively engaged in the discharge of his duties at the time or not, is a breach of such implied undertaking, for which the proprietor is liable in damages. Clancy v. Barker (Neb.), 8-682. Defects in premises. — The fall of the upright portion of a folding bed whereon a guest at a hotel is lying, inflicting severe in- jiiries on him, is such an extraordinary acci- dent as raises the inference that it is due to the negligence of the management of the hotel. In such case the hotel keeper must show why he should be relieved from liability. Lyttle V. Denny (Pa.), 15-924. Failure to provide fire escapes. — Tlie Missouri statute requiring " the owner, pro- prietor, lessee, or keeper of every hotel," etc., which has a height of three or more stories, to provide the structure with fire escapes, imposes the duty of maintaining fire escapes on the owner of a leased hotel, and the owner is liable for personal injuries resulting from his failure to perform this duty, notwith- 9i2 AJS^N. CAS. digest, A'OLS. 1-20. standing the fact that the leasee may also be liable. Yall v. Snow (Mo.), 9-1161. Iiiability of lessor of inn. — In an ac- tion against the owner of a building leased as a hotel to recover damages for personal injuries resulting from the defendant's fail- ure to comply with a statute requiring him to maintain a fire escape, it is no defense that at the time of the passage of the statute the building had been leased for a term of years and was in the sole possession and con- trol of the lessee, as it would have been no violation of the lessee's rights for the defend- ant to have entered on the premises and erected the fire escapes in compliance with the requirements of the statute. Yall v. Snow (Mo.), 9-1161. 7. Lien of Innkeepeb. Property of third persons. — The com- mon law of England, as it existed on and prior to April 19, 1775, and as preserved in force in the state of New York by the con- stitution of that state, gives to an innkeeper, for his guest's entertainment, a lien on goods owned by a third person but in the rightful possession of the guest, and the lien law of New York, giving an innkeeper a lien on the pioperty of the guest, except when the inn- keeper knows or has notice that such property is not that of the guest, does not extend the rule beyond that established at common law, in giving a lien on the property of a third person in the rightful possession of the guest. Horace Waters & Co. v. Gerard (N. Y.), 12- 397. Under the New York lien law and at com- mon law, an innkeeper's lien on a piano in a guest's possession under a conditional con- tract of sale stipulating that the title of the piano shall remain in the seller until pay- ment in full of the agreed price, is superior to the right of the seller to take the piano upon the failure of the buyer to make the payments required by the contract. Horace Waters & Co. r. Gerard (N. Y.), 12-397. The New York lien law, in giving to an innkeeper a lien on property of a third per- son in the rightful possession of a guest, does not go beyond the requirements of a public policy and is constitutional. Horace Waters & Co. v. Gerard (N. Y.), 12-397. Samples carried by traveling sales- man. — The Washington statute giving a lien to hotel keepers on the baggage, prop- erty, or other valuables of a guest does not give a lien on samples carried by a traveling salesman when the hotel keeper has reason to know that the samples are the property of the salesman's employer. Wertheimer-Swarts SJioe Co. V. Hotel Stevens Co. (Wash.), 3- 625. 8. LiABiUTT TO Third Pebsons foe Acts of Guests. An innkeeper is not liable to a person in the street who is injured by a bottle thrown into the street by a guest, where the previous conduct of the guest has not been such as would charge the innkeeper with knowledge or with reasonable grounds of belief that the guest would be guilty of such conduct. Bru- ner c. Seelbach Hotel Co. (Ky.), 10-217. 9. Actions. a. Pleading. Action for personal injuries. — In an action against the owner of a building leased as a hotel to recover damages for personal injuries resulting from his failure to comply with a statute requiring him to maintain a fire escape, where the petition sets forth the lease, and alleges that the defendant leased the building " as a hotel " and that it was conducted as a hotel by the lessee, and that the defendant knew that it was so conducted, it is no ground for demurrer that the petition fails to allege that the building was built to be occupied as a hotel. Yall v. Snow (Mo.), 9-1161. b. Evidence. Burden of proof. — In view of the duty of an innkeeper to guard with reasonable care the safety of his guests, proof of the happen- ing on his premises of an extraordinary acci- dent whereby one of his guests is injured, casts the burden of explanation on the inn- keeper. Lyttle r. Denny (Pa.), 15-924. Admissions. — Admissions by a hotel keeper held to show a knowledge on his part of a custom so universal as to estop him from asserting ignorance as to the ownership of the samples in the possession of a traveling salesman to whom he gave credit as a guest oil the strength of his interest in the sam- ples without making inquiry as to the title thereto. Wertheimer-Swarts Shoe Co. v. Hotel Stevens Co. (Wash.), 3-625. It is not within the scope of the authority of a hired manager of a hotel to bind his employer by admissions concerning a trespass committed on a guest by a servant of the innkeeper after it has been committed. Clancy t'. Barker (Neb.), 8-682. When admissions by a hired manager of a hotel as to a trespass on a guest by a ser- vant of the proprietor are made the day after the trespass and are only remotely con- nected therewith, they are not admissible in evidence as part of the res gestw. Clancy v. Barker (Neb.), 8-682. Parol evidence. — Parol evidence by a boarder is permissible to show the deposit of hif baggage with the hotel keeper. Greene ('. Windsor Hotel Co. (Quebec), 2-12. 10. Criminal Liabiuty of Guests. The Indiana statute of 1897 for the pro- tection of innkeepers and others against fraud, which makes it a misdemeanor for any person to obtain food, lodging, entertainment or any other accommodation at any hotel, inn, restaurant, rooming, boarding, or eating house with intent to defraud the owner or keeper thereof, and subjects offenders to fine or imprisonment or both, has not been re- pealed, either by implication or by the re- pealing clause of the Public Offenses Act of 1905. Clark i;. State (Ind.), 16-1229. INNUEisDO — mSAl^lTY. 913 The statute above mentioned does not con- travene the provision in the Indiana con- stitution which declares that " there shall be no imprisonment for debt, except in case of fraud." Such constitutional inhibition is di- rected against imprisonment for debt in civil actions at the instance of the creditor, with a view to coercing payment of his debt, and has no reference to such actions as may be brought by the state through its officers in the interests of good morals and honest deal- ing. Clark i;. State (Ind.), 16-1229. The statute above mentioned is not invalid for failure sufficiently to define and describe the ofifense. Clark v. State (Ind.), 16-1229. In a prosecution under tlie above statute, an affidavit which charges the offense in the language of the statute is sufficient. Clark V. State (Ind.), 16-1229. 11. Apabtment Houses. Failure to light common hallway. — Evidence examined and held sufficient to pre- sent a question for the jury as to due care on the part of the occupant of an apartment in an apartment house who fell down a stair- way while attempting to pass through a com- mon hallway which was not lighted as usual. Faxon v. Butler (Mass.), 19-666. The landlord of an apartment house is negligent in failing, during certain hours, to maintain a light in a common hallway, where the maintenance of such a light was a part of the general management of the building at the time the apartments were let. The tenants do not assume the risk of the hallway being unlighted during those hours. Faxon v. But- ler (Mass.), 19-666. Liability of tenants inter se. — The defendants were held liable in damages for injury to the plaintiffs' premises by water overflowing from a tap negligently left run- ning in the lavatory in the defendants' prem- ises on the floor above the plaintiffs' in the same building, both plaintiffs and defendants being tenants of the owner of the building. Powley V. Mickleborough (Can.), 18-532. INNUENDO. Pleading in action for libel or slander, see Libel and Slandeh, 4 e. IN PAIS. Estoppel in pais, see Estoppel, 3. INQtrEST. See CoBONEBS. INQUISITION. Inquisition of insanity, see Insamiy, 2. Vols. 1-20^ — Axk. Cas. Digest. — 58. IN KEM. In rem proceeding as abating suit in per- sonam, see Abatkment and Rkviv-\l. Judgments in rem, see Judgments, 17. Suit in rem and in pernonam distinguished, see Actions. INSANE DELUSIONS. Effect as to testamentary capacity, see Wills, 4 b. INSANITY. 1. Evidence of Insanity in General, 914. 2. Inquisition of Insanity, 914. 3. Eesteaint of Insane Peksoks, 914. 4. Maintenance of Insane Pehsons, 915. 5. Liability on Contbacts, 915. 6. Actions, 915. 7. Insanity as Affecting Responsi- bility fob Ceime, 915. a. Forms of insanity, 915. b. Reduction of degree of guilt, 916. 0. Evidence, 916. (1) Admissibility, 916. (2) Degree of proof, 916. (3) Burden of proof, 916. (4) Weight and sufficiency of evidence, 916. d. Instructions, 916. e. Trial of issue, 917. f. Form of verdict, 917. Burden of proving insanity, see Wills, 4 e (1). Capacity to make wills, see Wills, 4. Contracts of lunatics, see Bills and Notes, 3. Criminal responsihility of insane person, see Homicide, 13. Cross-examination of alienist, see Wit- nesses, 4 b. Defense to divorce on ground of desertion, see DivoBCE, 3 d. Disqualification as witnesses, see Witnesses, 3 b (3). Expert testimony to prove insanity, see Evi- dence, 8b (2). Ground for avoidance of deed, see Deeds, 5. Impeaching confession by proof of insanity, see Obiminal Law, 6 n (11) (c). Insanity as defense to action for libel or slander, see Libel ok Slander, 4 d. Liability of husband to support insane wife in asylum, see Husband and Wife, Liability of insane person for guardian's acts, see Guaedian and Ward. 4. Liability of principal for acts of insane agent, see Cabeiebs, 4 d ( 1 ) . Method of examining feeble-minded persons as witnesses, see Witnesses, 4 c (2). Non-expert opinion evidence to prove insan- ity, see Evidence, 8 c. 914 ANN. CAS. DIGEST, VOLS. 1-20. statute of limitations as applicable to insane persons, see Limitation of Actions, 4 b (7). Taxation of lunatic's property, see Taxa- tion, 3 b. Tort of insane person as act of God, see Carrikbs, 4 b (1). 1. Evidence of Insanity in Genebal. Presumptions. — The presumption al- ways is that a peTSOiD, is sane; and proof of insanity at a certain time raises no presump- tion of the existence of insanity prior to such time. Estate of Dolbeer (Cal.), 9-795. Opinions of nonexperts. — The Cali- fornia statute permits the admission in evi- dence of the opinion of an intimate acquaint- ance respecting the mental sanity of a person whose sanity is in issue, but with that opin- ion must be given the reasons on which it is based, and the opinion itself can have no weight other than that which the reasons bring to its support. Estate of Dolbeer (Cal.), 9-795. Opinions of experts. — A general medi- cal practitioner who has had experience in various kinds of mental afflictions is as com- petent to testify to the sanity or insanity of a person as a skilled expert who has de- voted his entire time to the study of mental diseases. Estate of Dolbeer (Cal.), 9-795. 2. Inquisition of Ii^sanity. Notice, -r-. In the execution of a writ de lunatico inquirendo, the person alleged to be non compos must have reasonable notice of the proceedings, and must be afforded an opportunity to test the truth of the allega- tions in the petition, and m^ust be produced before the jury, unless the court for a suffi- cient reason shown dispenses witk the notice and personal attendance. Supreme Council E. A. V. Nicholson (Md.), 10-213. Time of application, —f. The Wisconsin statute providing for inquisition by a jury as to the sanity of a person accused' of crime does not fix the time for making in- quisition, but allows an application for inr quisition to be made at any- time during the progress of the trial. Steward v. State (Wis.), 4-389. Power to set aside order of conftr^ nation. — A court has power to grant a petition to set aside an. oifder confirming a verdict finding, a person to he of uaisound mind, though, the. petition is not filed until after the enrolment of the order of con- firmation. Supreme Council R. A. o. Nichol- son (Md.), 10-213. Petition to set aside order. — Where a petition to quash an order of the court confirming a verdict findifng- a person ta be of unsound mind alleges that no notice of the inquisition was given to the lunatiic, and the petition is demurred to, the demurrer admits the allegations of the petition, and the inquisition, return, and order- of the con- firmation should be set aside, a new jury summoned, and a new inquisition taken. Supireme Council R. A. e. Nicholson (Md.), 10-213. Collateral attack of order qf oammlt^ inent. ■— \Miere the recitals of an Qr4?r o| commitment to an insane asylum and tlie legal implieatiojis therefrom show juirisdi«' tion to pass the order, the l»ct that the ex- amination which resulted in the order was had before a judge oi the court acting by virtue of a specially conferred power, does not render such order subject to collateral attack. Napa State Hoisnital v. Dasso (Cal.), 15-910. 3. Restraint of Insane Pebsonb. Accinittal of crime on ground ot in^ sanity. — The Wasliington statute pro\fid- ing that when a person is aicquitted. of crime on the ground of insanity, the trial court may commit the defendant to prison as a, person dangerous to the community, held not to be unconstitutional. In re Brown (Wash.). 4-^88. A statute providing that when any person accused of murder shall have been acquitted on account of insanity, he shall m, the dis- cretion of the court be committed to the hos- pital for the dangerous insane, is, unconstitw- tional as depriving the person so committed of his liberty without due process of law; but a. person confined in accordance with such statute is not entitled to be di;scharged on habeas corpus if he is at the time insane. In re Boyett (N. Car.), 1-729. An order issued by a trial court undter the Washington statute permitting the imprison- ment of a person acquitted of crime on the ground of insanity, directing the sherifj to re- turn the defendant to jail to await thft fmther order of the court, is not void for uncertainty as indefinite as to time, inasmuch as the stat- ute neither limits the duration of the im- prisonment nor deprives the. defendant of the right of establishing at any time his restora- tion to saniity. In re Brown (Wash.),, 4-488. The Washington statute providiflg that a persoij acquitted on the ground of insanity may be committed to prison by the court, when taken in connection with the rule that when permanent insanity is once established it is presumed to continue until the contrary is shown, authorizes the court to commit to prison a person found not guilty by reason of insanity on his trial for homicidie, wherein he has set up the defense of permanent and continuous insanity, and such rule imposes upon the person so committed the burden of proving his sanity in habeas corpus proceed- ings to secure retease from imprisgnment. ^« re Brown (Wash.), 4-488. Commitment by parents or guard- ians. — Under the Rhode Island statute pro- viding for the ccaam-itmenfr of insane persons by their parents, guardians, etc., to insane hospitals managed under the supervi^iiMi- of a board of officers appointed under the author- ity of the state, on the certificate of two practicing phyaieians. ot good standing known by the superintendent of the hospital to be such, it is not required that the certiflcetc for llfSANlTY. 5)15 oommitmont shall \x sworn to, or that it shall be signed by physicians practicing in the state, or that they shall not be officers of an institution for the care of the insane, or that the persons committed shall have been re- moved from another hospital. In re Cross- well (R. I.), 13-874. Under such statute the " guardians " who are authorized to commit their insane wards are guardians of foreign as well as of do- mestic appointment, /n re Crosswell, (R. I.), 13-874. Such statute does not violate the provisions of the Fourteenth Amendment of the Fed- eral Constitution that no state shall deprive any person of life, liberty, or property with- out due process of law, or deny to any person the equal protection of the laws, since by statute the function of the writ of habeas cor- pus has been enlarged to apply to cases of commitments in insane hospitals, and it is made the duty of the court upon application for such writ " to inquire and determine as to the sanity or insanity or the necessity of restraint of the person confined, at the time such application was made," and to discharge the person confined if it appears, upon the verdict of a jury or in the opinion of the court, that such person is not insane or is not dangerous to himself or others, and ought not longer to be confined. In re Crosswell (R. I.), 13-874. 4. Maintejstance of Insane Persons. Proceedings to enforce liaMIity of relatives. — The Wisconsin statutes in ref- erence to the support of insane persons, and providing the procedure to be followed com- pelling tliose privately liable for such sup- port to do so, construed. Richardson v. Stues- ser (Wis.), 4-784. An action to enforce an order of the county judge establishing the liability of a person for the support of an insane person at an asylum must be commenced in the name of the county in some court having jurisdiction of such civil actions. The County Court does not possess such jurisdiction in the absence of special authorization. Richardson v. Stues- ser (Wis.), 4-784. Under the Wisconsin statutes the trustees of a county asylum for the insane should pro- ceed by petition to the county judge to estab- lish the liability of any one for the support of an insane person at such asylum, who re- fuses to perform his duty in that regard, and to have the amount which he should pay and the time of payment determined, and they may cause the order of the county judge in that regard to be enforced by contempt pro- ceedings or by action. Richardson v. Stues- ser (Wis.), 4-784. Action by state hospital. — An action to recover the cost of maintaining an insane person commenced before the repeal of the California Insanity Law of 1897, which au- thorized the maintenance of such an action, may be maintained after the repeal of such statute, it being provided therein that actions commenced before the taking effect of such statute may be profcec-utcd to final delerminLi- tion. Napa State Hospital v. Dasso (Cal.), 16-910. Under the California statute of 1897, es- tablishing the Napa State Hospital, a suit by such hospital to recover the cost of main- taining an insane person is properly brought by the treasurer thereof. Napa State Hos- pital V. Dasso (Cal.), 15-910. A statute conferring on a state insane hos- pital the right to recover from the estates of insane persons confined therein the cost of maintaining such persons is not class legisla- tion because it does not apply to the estates of insane persons not confined therein. Napa State Hospital v. Dasso (Cal.), 15-910. In an action by a state insane asylum to recover the cost of maintaining an insane person, it is not necessary, before introduc- ing the order of commitment, from the re- citals of which it appears that the court had jurisdiction of the person, to prove that the preliminary steps on which the order was based were taken. Napa State Hospital v. Dasso (Cal,), 15-910. Recovery for necessaries fnrnished.'— Services rendered by a sister in taking care of and supplying the wants of her idiotic sister come under the head of necessities. Key v. Harris (Tenn.), 8-200. 5. LiABiLiTy ON Contracts. Deeds and contracts of a person of unsound mind who has not been judicially declared incompetent are voidable and not absolutely void. Smith v. Ryan (N. Y.), 14-505. 6. Actions. Enforcement of judgment against insane person. — Under the provisions of the Iowa code authorizing county auditors to collect from the property of patients in insane hospitals the sums expended by the county in their behalf, a judgment for such sums may be rendered in an action against an insane person who is represented therein by guard- ian, especially where the guardian does not object to the form of the proceeding or move to transfer the case to the probate or other court. Gressly v. Hamilton County (la.), 15-354. The fact that a judgment rendered in such an action declares that it is not intended as an order directing the sale of property by the guardian does not prevent the enforcement of such judgment by execution sale. Nor is such sale prevented by the provisions of a stipula- tion between the parties, the stipulation be- ing merged in the judgment. Gressly v. Ham- ilton County (la.), 15-354. 7. Insanity as Affecting RESPONSiBjLiTy . FOE Cbime. a. Forms of insanity. Epilepsy. — Proof that a person has epi- lepsy does not necessarily sliow that the sub- ject is so disordered mentally as to be at all times free from responsibility for hi« acts. ■Puople c. Gumbacuila (N. Y.), 18-425. 916 ANN. CAS. DIGEST, VOLS. 1-20. Delirium tremens. — Delirium tremens is a form of insanity which will excuse a per- son from criminal responsibility the same as insanity produced by other causes. State v. Driggers (S. C), 19-1166. Inability to oommunioate -nrlth others. — Where » prisoner who is totally deaf and can neither read nor write stands mute on his arraignment for a, felony, and a jury duly impaneled and sworn for the pur- pose, finds that he stands mute by the visita- tion of God, and also finds that he is in- capable of pleading to and taking his trial on the indictment and of understanding and following the proceedings by reason of his in- ability to communicate with and be communi- cated with by others, the latter finding is equivalent to a finding that the prisoner is insane within the meaning of the Criminal Lunatic Act, 1800, and, therefore, an order by the judge, under section 2 of the act, that such prisoner be kept in custody until his Majesty's pleasure shall be known, is prop- erly made. Rex v. StaflFord Prison (Eng.), 16-442. b. Eeduction of degree of guilt. Under the system of criminal jurisprudence prevailing in this state the defense of in- sanity only goes to the question of the guilt or innocence of the accused. It does not operate to reduce the degree of guilt. State V. Maioni (N. J.), 20-204. c. Evidence. (1) Admissibility. Repntation. — The insanity of a person whose mental condition is at issue cannot be proved by reputation in the family or by gen- eral reputation. State v. Charles (La.), 18-934. Heredity. — Where evidence is given of personal manifestations of the insanity of a person, proof of a hereditary tendency may be received as supporting such primary evi- dence. People V. Gambacorta (N. Y.), 18- 425. Conversations of defendant. — Evi- dence of conversations of the defendant in a criminal case, tendered in support of a plea of insanity, cannot be excluded on the ground of being self-serving declarations. State v. Driggers (S. C), 19-1166. Discretion of conrt. — On the trial of a special issue of insanity interposed by a, person charged with a crime, where the de- fendant in rebuttal calls a witness and ques- tions him as to the insanity of the defendant, and it appears that the subject had been cov- ered by the defendant in the examination in chief, the admission of such evidence is in the discretion of the trial court and the exclusion of the evidence does not constitute reversible error. Steward v. State (Wis.), 4^389. Scope of inquiry. — On the trial of an indictment for murder in which the defense of alcoholic insanity is set up, an exception to a refusal to allow the question "will you kindly tell the jury, in your own way. just what sort of a man " the defendant appeared to be in his place of business, is untenable. State V. Quigley (E. I.), 5-920. (2) Degree of proof. Preponderance of evidence. — The Rhode Island statute providing that when- ever, on the trial of an indictment, the ac- cused shall set up his insanity as a defense, the jury, if they acquit the accused on such ground, shall state that they have so ac- quitted him, requires the defense of insanity in a criminal case to be set up by the accused, and it is incumbent on him to sustain it by a fair preponderance of the evidence. State v. Quigley (E. L), 3-920. An instruction to the jury that an accused on trial for murder, who sets up insanity as a defense to the crime charged against him, must convince the jury by a preponderance of testimony that his mind was so deranged as to make him irresponsible for his act, does not require him to bear a burden greater than that which the law imposes on him. The word " convince," in the connection in which it is used, is equivalent to " satisfy," and does not indicate that the defendant must prove his insanity by evidence which would produce absolute conviction in the minds of the jury. State v. Maioni (N. J.), 20-204. An instruction that the defense of insanity must be " satisfactorily established " requires a higher degree of proof than the law im- poses. State V. Crowe (Mont.), 18-643. (3) Burden of proof. Where the defense of insanity is set up in a criminal case, the burden of proving it does not rest on the defendant, but the prosecution must prove that the defendant was criminally responsible. State v. Crowe (Mont.), 18- 643. The presumption that every person is sane until the contrary appears ordinarily relieves the prosecution of the necessity of proving the sanity of an accused person, but where during the progress of the trial evidence tend- ing to show the insanity of the accused is adduced either by the prosecution or the de- fense, the burden is on the prosecution to prove beyond a reasonable doubt that the accused was sane when he committed the crime. State v. Pressler (Wjo.), 15-93. (4) Weight and sufiiciency of evidence. On an indictment for murder, temporary insanity existing at the time of the homicide being set up as a defense, the evidence held to furnish no gi'ound on which the jury could found a reasonable doubt of the defendant's responsibility. State v. Quigley (R. I.), 3- 920. d. Instructions. An instruction that before the jury can acquit the defendant on the ground of insan- ity, they must find that he was " laboring vinder such a defect of reason from disease of tlie mind as not to know — that is, as not to have sufficient mental capacity to know — INSOLVENCY — INSTEUCTIONS. 917 the nature and quality of the act he was doing, or, if lie did know it, that he did not know that he was doing wrong," is not incon- sistent with a further instruction that in or- der to acquit on the ground of insanity it must appear that the defendant was " affected with insanity to such a degree as to create an uncontrollable impulse to do the act charged by overriding his reason and judgment." State V. Crowe (Mont.), 18-643. Disparagement of defense. — Where insanity is set up as a defense in a criminal case it is erroneous for the court to charge as follows : " The defense of insanity is one which may be, and sometimes is, resorted to in cases where the proof of the overt act is so full and complete that any other means of avoiding and escaping punishment seems hopeless. While, therefore, this is a defense to be weighed fully and justly, and, when sat- isfactorily established, must recommend itself to the favorable consideration of the human- ity and justice of the jury, they are to ex- amine it with care, lest an ingenious counter- feit of such mental disease or disorder should furnish protection to guilt." Such instruc- tion requires the defense to be " satisfactorily established " by the defendant, and also dis- parages the defense. State r. Crowe ( llont. ) , 18-643. Usurping province of Jury. — On the trial of it special issue of insanity inter- posed by a person charged with a crime, an instruction to the jury held erroneous as taking the question of insanity from the jury. Steward v. State (Wis.), 4-389. e. Trial of issue. Where a plea of present insanity is made on behalf of the accused, the judge may ap- point a commission of experts to inquire into the mental condition of the defendant, or may refer the issue to a jury. State v. Charles (La.), 18-934. The arraignment of the accused and the fixing of the case for trial, after the appoint- ment of such a commission, will not be set aside, Where it appears that the commission subsequently reported that the accused was not insane. State v. Charles (La.), 18-934. f. Form of verdict. An instruction in a criminal case in which insanity is set up as a defense that the jury may find the defendant guilty of either degree of the offense charged, or not guilty, is in- accurate because, on an acquittal on the ground of insanity, the statute provides that the verdict must be " not guilty by reason of insanity." State v. Crowe (Mont.), 18-643. INSOLVENCY. See Banks and Banking, 7; Corporations. Effect of insolvency of building association, sec BuiT.DiNG and Loan Association, 2, 5. Mitigation of damages in action of trover, see Tbover and Conversion, 5 c. Priority of claims, see States, 8. Set-off of unmatured notes held by bank against balance of insolvent depositor, see Gabnishment, 3 b. What constitutes insolvency, see Bank- buptcy, 3. Preference of claims of laborers. — The Illinois statute providing that on the in- solvency of any person, corporation, or Arm, the debts owing to laborers or servants for services " shall be considered and treated as preferred claims," merely gives a preference to claims for labor or services, and does not give to the laborers a lien superior to the lien of a pre-existing valid mortgage. Sey- mour V. Berg (111.), 10-340. INSPECTION. Duty of master of vessel to inspect life pre- servers, see Ships and Shipping, 5. Duty of master to inspect machinery ap- pliances, see Master and Servant, 3 o (2). Duty of master to inspect place of work, see Master and Servant, 3 b. Impossibility of inspection except by use, see Master and Servant, 3 c ( 2 ) . Right of accused to inspect minutes. of grand jury, see Grand Jury, 5 b. Right of counsel to inspect papers in criminal case, see Criminal Law, 6 m (11). Right of purchaser to inspect goods, see Sales, 6 a. Right of stockholders to inspect books, see Corporations, 8 e (3). Right to inspect public records, sec Records 7. Validity of statute providing for inspection of factories, see Labor Laws, 1 a. INSPECTION LAWS. See Food, 3. Power of states to pass inspection laws, see Interstate Commerce, 2 b (2). INSTITUTES. Teachers' institutes, see Schools, 7 c. INSTRUCT. Duty of master to instruct servants, see Mas- ter and Servant, 3 d. INSTRUCTIONS. See Criminal Law; Trial, 3. Action by passenger against carrier, see Cab- RIErs, 6 1. Action for injuries by dog, sec Animals, 2 d. Breach of promise cases, see Breach c r Promise of Marriage, 2 e. Reciting abstract on appeal, see Appeal and Krror, 8 c, 918 ANN. CAS. DIGEST, VOLS. 1-20. INSULATION. Iiiability for failure to insulate electric wires, see Electbicity, 2. INSULTS. Liability of carrier for insults to passengers, see Cakriers, 6 e ( 4 ) ( a ) . Privilege of witness as to insulting questions, see Witnesses, 4 g (5). Eight of husband to recover exemplary dam- ages for insulting language to wife, see HtrSBAND AND WlFE, 3 a. INSURABLE INTEREST. See Benevolent ob Beneficial Associa- tions, 8 a; Insurance. INSURANCE. 1. Insurance Companies, 920. a. In general, 920. b. Statutory regulation, 920. 2. Insurance Agents, 921. a. Existence of relation, 921. b. Eights, powers, and duties, 921. u. Actions, 921. 3. Contracts op Insurance in Gen- eral, 921. a. Existence of contract, 921. b. Place of contract, 923. c. Provisions in contract, 923. (1) Validity, 923. (2) Construction, 923. (3) Warranties or representa- tions, 923. (4) Waiver of provisions and estoppel to allege breach, 923. d. Reformation of contract, 923. e. Cancellation and forfeiture, 924. f. Assignment of contract by in- sured, 924. g. Actions, 925. 4. Reinsurance, 925. 5. Fire Insurance, 926. a. Statutory regulation of business, 926. b. Nature of contract, 926. c. Validity of contract, 926. d. Parties to contract, 926. (1) What parties have insur- able interest, 928. (2) Policy made payable to es- tate of deceased person, 926. e. Form of contract, 927. (1) Statutory regulation, 927. (2) Parol contracts. 927. (3) Signature of policy, 927. f. Construction of contract, 927. ( 1 ) In general, 927. (2) Divisibility of contract, 927. (3) Duration of contract, 928. (4) The risk, 928. (5) Property covered, 928. (6) Warranties and represen- tations, 928. g. Particular provisions of policy, 929. (1) Provisions as to ownership in general, 929. (2) Condition requiring sole and unconditional ownership, 929. (a) In general, 929. (b) What constitutes breach, 929. (c) Waiver, 930. (3) Provision against change in title, interest, or possession, 930. (a) In general, 930. (b) Clause avoiding pol- icy on commence- ment of foreclos- sure, 931. (c) What constitutes breach, 931. (4) Condition against incum- brances, 932. (a) In general, 932. (b) Waiver, 932. (6) Condition against vacancy, disuse, and neglect, 932. (6) Condition against hazard- ovis use and occupation, 933. (7) Condition against increase of risk, 933. (8) Earthquake clause, 934. (9) Fallen building clause, 934. (10) Explosion clause, 934. (11) Provisions regarding loca- tion of property, 934. (12) Option to repair or re- build, 935. (13) Provisions regarding other insurance, 935. (14) Condition against assign- ment of policy, 935. (15) Mortgage clause, 936. (16) Iron safe clause, 936. (a) In general, 936. (b) Sufficiency of inven- tory, 936. (17) Provision for suspension of liability, 937. h. Renewal of policy, 937. i. Assignment of policy after loss, 937. j. Cancellation of policy, 937. ( 1 ) What constitutes, 937. (2) Notice to insured, 937. (3) Return or tender of pre- miums, 938. k. Reformation of policy, 938. I. Loss and adjustment, 938. (1) What constitutes loss or damage by fire, 938. (2) Rights of mortgagee upon occurence of loss, 938. (3) Subrogation of insurer to INSUKAKDE. 919 rights of insufed Against person causing loss, 939. <4) Arbitration and appraise- ment, 939. (5) Effect of adjustment, 939. (6) Notice and proofs of loss, 939. (a) In general, 939. (h) Waiver of proofs of loss, 940. m. Action on policy, 941. (1) Nature of action, 941. (2) Time to sue, 941. (3) Parties, 941. (4) Defenses, 941. (5) Declaration, pHitiOn, or complaint, 942. (6) Plea or answer, 942. (7) Evidence, 942. (8) Nonsuit or direction of verdict, 942. (9) Instructions, 943. <10) Judgment, 943. n. Recovery of payment induced by fraud, 943. 6. Marine Insxjkance, 943. 7. Life Insueancb, 944. u. Statutory regulation in general, 944. b. Validity of contract, 944. c. Nature of contract, 945. d. Parties, 945. (1) Persons having insurable interest, 945. (2) Rights of beneficiaries, 945. e. Construction of contract, 946. ( 1 ) In general, 946. (2) Warranties and represen- tations, 946. (a) In general, 946. (b) Breach, 947. f. Provisions of policy, 948. (1) Beneficiaries, 948. (2) Incontestable clause, 948. (3) Paid-up insurance, 949. (4) Cause of death, 949. (5) Limitation of time to sue, 949. g. Cancellation and forfeiture, 949. . Assignment of policy, 950. i. Recovery of money paid on pol- icy, 9S0. j. Actions, 950. (1) In general, 950. (2) Defenses, 950. (3) Pleading, 950. (4) Evidence, 950. (a) Presumptions and burden of proof, 950. (b) Admissibility, 951. (c) Sufficiency, 951. 8. AOCtftENT iNSCBANCfi, 952. a. Accidents insured against, 9S2. (1) External, viMent, and ac- cidental means, 952. (2) Accident to insured in spe- cial occupation, 952. (3) Fata! disability, 953. (4) Sunstroke, 953. (5) Death by accident, 953. b. Accidents excepted, 953. (1) Voluntary exposure to Un- necessary danger, 963. (2) Injuries from poison, 963. (3) Injuries caused by disease, 954. (4) Injuries received while on roadbed of railroad, 954. (5) Injuries while under influ- ence of intoxicants, 954. c. Notice and proof of injury, 954. d. Proximate cause, 954. e. Actions, 955. (1) Time to sue, 955. (2) Pleading, 955. (3) Evidence, 955. (4) Instructions, 966. 9. Health InsCeakce, 956. 10. Liability Insurance, 966. a. Validity and construction of con- tract, 966. b. Parties, 956. c. When liability accrues, 956. d. Extent of liability of insurer, 957. e. Actions, 957. 11. Mutual Insurance, 967. a. Statutory regulations, 957. b. Powers of company, 957. c. Membership, 957. (1) Commencement and ter- mination, 957. (2) Rights of members, 958. d. Assessments, 958. e. Reorganization, 958. f. Dissolution, 958. g. Actions, 968. Accident insurance company as necessary party to action for negligence causing injury insured against, see Parties to Actions, 1. Adjusting claims for fire insurance as doing business in state, see Cohpobations, 13 c (6). Application of insurance money on destruc- tion of mortgaged property, see MOBt- gaqes AND Deeds of Trust, 10 a. Bailees as insurers, see Bailment, 2. Computation of time of duration of insur- ance policy, see Time. Contract between fire insurance companies, as monopoly, see Monopolies and Cor- poBATE Trusts, 2 b. Duty of factor to insure principal's goods, see FactoBs, 3. Duty of mortgagee to procure insurance on mortgaged property, see Mortgages and Deeds or Teust, 9. Exemption of life insurance money from ex- ecution, see Executions, 5 b. Fraternal insurance, see Benevolent or Benepicial Associations. Insurable interest, of railroad in property along right of way, see Railroads, 3 "a ' Judicial notice of practice of life insurance companies, see Evidence, 1 e. Law governing Insurance contracts, see Con- flict of Laws, 3d (3). 920 ANN. CAS. DIGEST, VOLS. 1-20. Liability for negligent burning of insured property, see Fires, 2 a. Limitation of actions on foreign insurance policy, see Limitation of Actions, 2 a. Matters concluded by judgments in action on fire insurance policy, see Judgments, 6 b (1). Reformation of insurance policy for mutual mistake, see Retobmation of Instbtj- MENTS. Right of owner of insured property to sue wrongdoer for destruction by fire, see FlEES, 9. Right of pledgee of policy to collect insurance money, see Pledge and CoUiATERAL Security, 2. Rule as to forfeiture applied to insurance, see Forfeitures. Stipulation for arbitration of disputes, see Arbitration and Award, 2. Subrogation of insurance company to rights of assured against wrongdoer, see Sub- rogation, 1 f. Subrogation of insurer to rights of insured, see Parties to Actions, 1. Waiver of privilege as to communications between applicant and his physician, see Witnesses, 3d (7). Warehousemen as insurers, see Warehouses, 1. 1. Insurance Companies. a. In general. Dnratlon of corporate existence. — The nature and purpose of a life insurance company denote perpetuity, and therefore a provision of its charter that it shall have " perpetual succession " will not be construed, according to the general rule, as meaning a continuance of succession merely during the period for which the corporation may lawfully exist, so as to bring such a company within the operation of the Missouri statute (Rev. St. 1855, p. 369, § 1 ) limiting corporate exist- ence to a period of twenty years in the ab- sence of some special provision to the con- trary. State V. German Mutual Life Ins. Co. (Mo.), 19-1210. Right to issue " deferred-dividend insurance." — The laws of New York au- thorize the issuance by life insurance com- panies of that state of " deferred-dividend in- surance " policies, wherein by the terms of the contract the accumulated assets of surplus are only to be distributed in longer periods than five years. Equitable Life Assur. Soc. r. Host (Wis.), 4-^13. Right to abandon issuance of as- sessment policies and issue only old line insurance. — Where an insurance com- pany has the charter right to issue both as- sessment and old-line policies, and there is nothing in its charter or in its contracts with assessment members that it shall continue • to do that kind of business, the company may cease writing assessment policies and restrict itself entirely to old line or legal reserve in- surance, leaving the assessment members in a class by themselves. Green v. Hartford Life Ins, Co. (N. Oar.), 4-360, Right of policyholder to equitable relief for iraste and mismanagement of officers. — Where the charter of a life insurance company provides that its capital stock shall consist of a certain amount upon which its stockholders shall be entitled to receive dividends not exceeding a certain per- centage, that the company's net earnings arc to be accumulated, that the company is to be conducted on the mutual plan, and that the surplus of net earnings over the dividends is to be equitably applied for the benefit of the policyholders, a policyholder who has elected to receive his equitable share of such surplus may maintain a bill in equity for relief in behalf of himself and all other policyholders, upon a showing that by reason of abuse of discretion, wrongs, fraud, waste, mismanage- ment, and inequitable conduct on the part of the company, its officers, stockholders, and agents, the company, its officers and stock- holders have wrongfully retained and fraudu- lently wasted and misappropriated to them- selves a large portion of the surplus belonging to the policyholders, and that certain of the stockholders in a pending suit have asserted their ownership of and right to the whole or a portion of such surplus as against the policy holders. A bill alleging specific instances of such waste and mismanagement is good as against a demurrer based on the ground that it states no cause of action. Brown i;. Equitable Life Assurance Soc. (U. S.), 10- 402. Responsibility for acts of agent. — An insurance company, establishing a local agency, is responsible to the parties with whom the agent transacts business for his acts and declarations within the scope of his employment, and to the extent of the au- thority apparently conferred upon him by the company, and a limitation upon such ap- parent authority, not communicated to the insured before he acted upon the representa- tions or conduct of the agent, will not relieve the company from liability, unless, after dis- covery of the want of authority in the agent, the insured has precluded himself from the assertion of his rights by laches. Medley v. German Alliance Ins. Co. (W. Va.), 2-99. b. Statutory regulation. Validity of statute permitting recov- ery of damages for vexatious refusal to pay loss. — A statute providing that where it appears in an action against an in- surance company on a policy that the com- pany has vexatiously refused to pay a loss, the court or jury may allow the plaintiff in addition to the amount of the loss, a reason- able attorney's fee and damages not exceeding ten per cent, of the loss, is not unconstitu- tional. Williamson v. Liverpool, etc., Ins. Co. (U. S.), 5-402. Validity of statute permitting recov- ery of damages for failure to pay loss within certain time. — The Georgia stat- ute providing for the recovery of damages and attorney's fees against insurance companies for failure to pay losses within sixty days INSUEANCE. 921 after demand, is not violative of the Four- - teenth Amendment of the Constitution of the United States or of any of the provisions of paragraphs 2, 3, and 4 of article 1 of the con- stitution of the state of Georgia. Harp v. Fireman's Fund Ins. Co. (Ga.), 14-299. 2. Insurance Aoents. a. Existence of relation. Agreement between agents of several companies to share commissions as creating agency in each company. — The fact that the agent of one insurance com- pany has an agreement with the agent of an- other company to share commissions is with- out effect to constitute each agent the agent of both companies. McGraw W. W. Co. v. German F. Ins. Co. (La.), 12-1229. Agent procuring policy from agents of other companies as agent of insurer or insured. — An insurance agent to whom a merchant makes a request for insurance, and who, acting as broker, procures all or part of such insurance through agents of other companies, not represented by him, may be the agent of the insured. The mere fact that he receives " a commission from a com- pany which he does not represent for placing the insurance with it does not make him the agent of that company." McGraw W. W. Co. V. German F. Ins. Co. (La.), 20-1229. b. Rights, powers, and duties. Right to settle claims for premiums. — An insurance agent having authority to represent the company in delivering drafts in payment of claims under policies, binds the company by his acts in so effecting a settle- ment of the claims, regardless of any restric- tions in the policies. New York Life Ins. Co. V. Chittenden (la.), 13-408. Right of agent to commissions on renewal premiums after termination of agency. — A contract between a life in- surance company and its agent providing for the payment to the agent of commissions on renewal premiums does not give him any right to such premiums after the termination of the agency by his resignation, especially where the contract, when construed as a whole, discloses a contrary intention on the part of the parties. Scott v. Travellers' Ins. Co. (Md.), 7-1166. Right of manager to recover pre- miums collected by agent. — The man- ager of a life insurance society who appoints an agent to canvas for applications and to collect premiums on all policies obtained by him, the premiums collected to be paid by the agent to the manager, has, as between him and the agent, a special property in the pre- miums collected by the agent and is entitled to receive them. This right gives him a rem- edy against the agent upon his refusal to pay over the same as directed. Hazelton v. Locke (Me.), 16-1009. c. Actions. Trover as remedy against agent with- holding premiums collected. — Where the defendant is the agerit of the plaintiff for the collection and paying over not of a single life insurance premium, but of such as are payable for all policies effected by him, and he is entitled to receive as commission a cer- tain percentage of such premiums when paid over, an action of trover by the principal might be unjust to the agent by depriving him of his right of set-off and other legal de- fenses. Hazelton v. Locke (Me.), 15-1009. 3. CONTKACTS OF INSUEANCE IN GENEEAL. a. Existence of contract. Necessity that policy be counter- signed. — A life insurance policy, or a bene- fit certificate in a fraternal insurance asso- ciation, which is not countersigned by the proper officer as required by its provisions, is invalid, and the defect is not cured by the fact that the corporate seal of the insurer is attached to the policy. Caywood v. Supreme Lodge (Ind.), 17-503. Necessity of delivery of policy. — In the absence of such a stipulation in the appli- cation or policy as makes the actual delivery of the policy a condition precedent to the con- summation of the contract of insurance, the actual delivery or nondelivery of the policy is not of itself conclusive evidence of the completion of the contract of insurance; but the unconditional acceptance of the applica- tion by the insurer is a consummation of the contract. Hartford Fire Ins. Co. v. Whit- man (Ohio), 9-218. Where there is no oral agreement for in- surance prior to the policy, if a policy has been executed in form, but has not passed out of the possession of the insurer or his agent and no payment of premium has been made, the contract is prima facie incomplete ; and the burden is upon the party who asserts that there is a contract to show that the policy became operative by the intention of both parties. Hartford Fire Ins. Co. v. Whit- man (Ohio), 9-218. Risk rejected before delivery of pol- icy. — Where, there being no oral agreement for insurance to take effect prior to the issue of the policy, upon an application for insur- ance at less than the regular rate, an agent wrote up and countersigned a policy and. without parting with the possession thereof, wrote to the applicant that he had " issued " a policy, but would hold the same until he should have time to hear from his company, and the company thereafter rejected the risk and the agent forwarded the policy to the company, these facts constitute no nroof of a consummated contract of insurance, al- though the applicant may not have received notice of the refusal of the risk. Hartford Fire Ins. Co. v. Whitman (Ohio), 9-218. Necessity that insurer incur some liability as consideration for premiums. — To constitute a consideration for the pay- ment of premiums on a policy of life insur- ance, the insurer must incur a liability by a contract which is not affected by any infirm- ity which it may elect to interpose as a de- fense to an action on the policy if the life in- 922 ANK. CAS. DIGEST, VOLS. 1-20. sured should end. Metropolitan Life Ins. Co. V. Felix (Ohio), 4-121. Executory parol contract. — A parol contract of insurance, as distinguished from a parol agreement to issue a policy, must not be executory, but must take effect in prwsenti. Hartford Fire Ins. Co. v. Whitman (Ohio), 9-218. b. Place of contract. Power of parties to fix by stipulation in policy. — In the absence of statute, the parties to a contract may agree on the place of the contract, and a provision in a. policy of life insurance that the place of the contract shall be the home office of the insurance com- pany is effective. Williams v. Mutual Reserve Fund Life Assoc. (N. Car.), 13-51. «. Provisions in contract. (1) Validity. Iiimitation of time to sue in absence of statute. — In the absence of any statu- tory provision to the contrary, a provision in an insurance policy limiting the time with- in which suit may be brought thereon to a period less than that fixed by the general statute of limitations is valid and binding. Caywood v. Supreme Lodge (Ind.), 17-503. Parties to a contract of insurance may, by a provision inserted in the policy, lawfully limit the time within which the suit may be brought thereon, provided the period of limi- tation fixed is not unreasonable. Appel v. Cooper Ins. Co. (Ohio), 10-821. A stipulation in a policy of insurance limit- ing the time in which an action to recover the loss covered by the policy can be begun is valid. Heilig v. ^tna L. Ins. Co. (N. C), 20-1290. Statutes invalidating provision lim- iting time to sue. — In Indiana there is a statute which renders void any provision in a policy of a foreign insurance company doing business in that state, limiting the time with- in which suit can be brought thereon to less than three years. Caywood v. Supreme Lodge (Ind.), 17-503. ( 2 ) Construction. Adopting construction most favor- able to insured. — Where the terms of a policy of insurance are not clear, or are capa- ble of two constructions, the one which is the most favorable to the insured will be adopted. Preferred Accident Ins. Co. v. Fielding (Colo.), 9-916. It has become a settled rule in the con- struction of contracts of insurance that poli- cies of insurance will be liberally construed to uphold the contract, and conditions con- tained in them which create forfeitures will be construed most strongly against the in- surer, and will never be extended beyond the strict words of the policy. Haas v. Mutual Life Ins. Co. (Neb.), 19-58. If a clause in a contract of insurance is susceptible of two interpretations, that one will be adopted which is most favorable to the insured. Peterson v. Manhattan Lifevlns. Co. (111.), 18-96. Application as part of contract. — Where a life insurance policy states that a part of the consideration for the agreement of the insurance company is the application for the policy, which is made a part of the contract, and the application itself, which is annexed to the policy and signed by the in- sured, contains a statement that it shall be- come a part of the contract for insurance thereby applied for, the policy and tlie appli- cation together constitute the contract be- tween the parties, and both alike are to be considered in determining their rights. Lee V. Prudential Life Ins. Co. (Mass.), 17-236. (3) Warranties or representations. Breach of ivarranty as rendering policy void or voidable. — An untrue warranty in an application for insurance does not render the policy void, but only voidable at the election of the insurer. Modern Woodmen of America v. Vincent (Ind.), 14- 89. False swearing as avoiding policy. ^ When by the provisions of an insurance policy it shall be void in case of fraud or false swearing by the insured, such false swearing in order to defeat a recover}- must be inten- tional and done for the purpose of defrauding the insurer. Medley v. German Alliance Ins. Co. (W. Va.), 2-99. Breach of condition as to one of sev- eral objects of insurance. — W)iere an insurance policy is issued, and different classes of property are insured, each class being sepa- rated from the others and insured for a specific amount, and there is a breach of the conditions of the contract as to one class of the property insured, the contract should be considered as not one entire in itself, but as one which is severable, and in which the separate amounts specified may be distin- guished, ajid a recovery had for one or more of them without regard to the other, pro- vided the contract is not affected by any question of fraud, act condemned by public policy, or any increase of the risk of the company on the whole property insured be- cause of the breach. Miller 1". Delaware Ins. Co. (Okla.), 2-17. Violation of condition affecting prop- erty destroyed. — A policy of insurance placing separate valuations upon separate subjects will not be severable if tlie risk in- tended to be excluded by a condition which has been violated affected the item of prop- erty for the destruction of which a recovery is sought. Republic County Mut. F. Ins. Co. r. Johnson (Kan.), 2-20. Missouri statute. — The Missouri stat- ute providing that warranties of facts or con- ditions in applications for and in policies of fire, tornado, or cyclone insurance shall, if not material to the risks insured, be deemed representations only, does not affect war- ranties of facts or conditions which are ma- terial to the risks. Connecticut Fire Ins. Co. V. Manning (U. S.), 15-338. mSUEAlfCE. 933 Question tor court. — Where a promise in a policy of insurance is declared to be a warranty, the only concern of the courts in the absence of a contrary statutory enact- ment is to ascertain whether it has been com- plied with. St. Landry Wholesale Mercan- tile Co. V. New Hampshire F. Ins. Co. (La.), 3-821. (4) Waiver of provisions and estoppel to allege breach. Application of nonwulver plamie as to conditions relating to inception ot policy. — Restrictions in a policy of insur- ance upon the power of the agent to waive conditions except in a particular manner do not apply to conditions relating to the in- ception of the contract. Medley v. German Alliance Ins. Co, (W. Va.), 8-99. Nonwaiver clause is notice of want of authority of agent after inception pf policy. — As to promissory warranties for the violation of which a policy is ren- dered noneffective after it has once become effective, a limitation clause upon the power of the agent to waive conditions is not only a notice to the insured of want of authority to waive such conditions, but also a stipulation between the parties that the agent has not and shall not have any such power. Medley V. German Alliance Ins. Co. (W. Va.), 2-99. The agent of an insurance company cannot by oral contract with the assured waive the express terms of the policy and extend the time of payment of a premium, when the policy provides that none of its terms can be varied or modified, nor any forfeiture waived nor premiums in arrears received, except by agreement in writing signed by the president, vice-president, secretary, or assistant secre- tary. MoElroy v. Metropolitan Life Ins. Co. (Neb.), 19-28. Estoppel to allege false warranty by act of agent. .— Where an insurance agent, intrusted with blank policies and authorized to fill up, countersign, and deliver them, is correctly informed, by the person whose prop- erty he undertakes to insure, as to the state of the title and other facts material to and affecting the inception of the contract, so far as inquiry is made respecting them, and takes no written application for the insur- ance, and then issues a policy embodying, as warranties therein, facts different from those which were given to him by the insured, the company is estopped from defending a claim for loss under the policy on the ground of such false recitals, unless it is shown that the insured has prior or contemporaneous notice of want of authority in the agent to waive conditions. Medley v. German Alliance Ins. Co, (W. Va.), 2-99. Waiver of false -warranty 1>y agent. — A fire insurance company may he estopped by the conduct of its agent, acting within the apparent scope of his authority, from availing itself of a false answer to a material question, or of a breach of warranty, or of a violation of the provisions of the applica- tion or policy, notwithstanding clauses in the application or policy to the effect that the company shall not he bound by any such conduct or representation of its agent; and such estoppel or waiver may be proved by parol evidence, though the policy or applica- tion contains clauses to the effect that no waiver shall be effective unless indorsed in writing on the policy at the home office of the company. People's Fire Ins. Assoc, v. Goyne (Ark,), 9-373. Waiver of breach by cancellation of jjolicy. — A cancellation of a fire insurance policy by an agent of the insurer who has no authority to waive conditions except by in- dorsement on the policy or additions thereto does not imply a waiver of a prior breach of a promissory warranty contained in tlie pol- icy, nor does it estop the insurer from setting up such breach as a defense to an action on the policy, even though the agent has knowl- edge of the breach when the cancellation is made. Ruffner v. Dutchess Ins. Co. (W. Va,), 8-866. Waiver of payment of preniium by accepting note. — A life insurance com- pany waives a provision in the policy that it is not to take effect until the first premium shall have been paid by accepting a note in- stead of the cash. Lawrence v. Penn Mut. L. Ins. Co. (La,), 1-965. Accepting delayed payment of pre- mium as waiver of forfeiture. — An ac- tion of a life insurance company in accepting delayed payments of premiums held to amount to a waiver of forfeiture of the policy for the nonpayment of the premiums when due. Morgan v. Northwestern National Life Ins. Co. (Wash.), 7-382, Attempt to enforce premium note as waiver of forfeiture for nonpayment. — Where a life insurance company, after mark- ing a policy on its policy register as canceled for nonpayment of a premium note, not only retains the note but continues to attempt to enforce it against the insured, it thereby waives a condition in the policy for forfeiture for such nonpayment. Union Central Life Ins. Co. V. Spinks (Ky.), 7-913. Waiver of forfeiture by retention of premium. — Forfeiture for breach of a promissory warranty is not waived by reten- tion of the premium after notice thereof. Medlev v. German Alliance Ins. Co. (W. Va.), 2-99. Waiver of limitation of time to sue. -^A provision in a life insurance policy lim- iting the time within which an action may be brought thereon, being for the benefit of the company, may be waived by it. Caywood V. Supreme Lodge (Ind.), 17-503. Fresnutption of waiver. — Assuming that a requirement as to counter signature of a life insurance policy by a designated officer may be waived by the insurance company, no presumption of such a waiver arises from mere possession of the policy by the insured. Caywood v. Supreme Lodge (Ind.), 17-503. d. Reformation of contract. Nonwaiver clause as precluding ref- criaation, — A' clause in a policy of insur- 924 ANN. CAS. DIGEST, VOLS. 1-20. ancc limiting the authority of the agent tn waive conditions is not a notice to the in- sured of the agent's want of power to bind his principal in respect of transactions had between them before the policy was delivered, such as will prevent a reformation of the contract at the instance of the insured or preclude him from relying upon a waiver made by the agent prior to the issuance of the policy. Medley v. German Alliance Ins. Co. (W. Va.), 2-99. Failure to read policy as laches pre- cluding reformation. — A failure to read the policy of an insurance within a short time after delivery is not such neglect or laches as will preclude the insured from re- forming the same, or deprive him of the benefit of a waiver by the company through its agent unless he was possessed of knowl- edge sufficient to put him on inquiry as to the limitations upon the powers of the agent contained in the policy. Medley v. German Alliance Ins. Co. (W. Va.), 2-99. e. Cancellation and forfeiture. Forfeiture for nonpaymeiit of pre- mium. — Where a life insurance agent ac- cepts part of the premium in cash and notes payable to himself for the part which such agent is entitled to retain as compensation under his agreement with the insurance com- pany, such notes are not subject to the for- feiture provided for in the policy for non- payment of a note given as part of the pre- mium. The fact that the company subse- quently acquires such notes from the agent does not change this rule. Reppond v. Na- tional Life Ins. Co. (Tex.), 15-618. Where a life insurance company accepts cash for a portion of the premium due on a policy and notes for the balance, each note containing the provision that it " is given said company upon this express understand- ing or agreement that for any loss occurring by death after this note is due and remains unpaid, then said company shall not be liable," the rights of the parties are meas- ured by said provision embodied in the notes ; and where one of the notes is not paid at maturity because of the failure of the com- pany to give a suflScient notice of its ma- turity, and thereafter a tender of the amount of the note is made on behalf of the insured but is refused by the company, and the in- sured subsequently dies, it cannot be claimed by the company that the death of the insured occurs while the note " is due and remains unpaid," and hence there is no forfeiture. Kavanaugh v. Security, etc., Ins. Co. (Tenn.), 10-680. Sufficiency of notice of time of pay- ment of premium to effect forfeiture. — In the absence of statute, or any express provision in a life insurance policy, making sufficient the mere mailing of a communica- tion containing information of the approach- ing maturity of a premium, such communica- tion must actually be received before it can be operative as a notice, and thereby effect a forfeiture of the policy upon a failure to pay on the day. Kavanaugh v. Security etc., Ins. Co. (Tenn.), 10-680. If a life insurance company has been in the practice of notifying the insured of the time when his premiums fall due, and of the amount thereof, and the custom has been so uniformly and so reasonably long in con- tinuance as to induce the insured to believe that the clause for forfeiture for nonpayment will not be insisted on, but that » notice will precede an insistence upon the forfeiture, and the insured is in consequence put off his guard, such notice must be given, and if not given, no advantage can be taken of any de- fault in payment which the custom of the insurance company has thus encouraged. Kavanaugh v. Security, etc., Ins. Co. (Tenn.), 10-680. Statutory notice of the time of payment of a premium to avoid a forfeiture of a life insurance policy held to be sufficient. Neder- land Life Ins. Co. v. Meinert (U. S.), 4- 480. Necessity of notice of f orf eitnre. — In case of a breach of condition invalidating a policy of insurance, the insurer is not bound at its peril, upon notice of such breach, to declare the policy forfeited, or to do or say anything to make the forfeiture effectual, and a waiver will not be inferred from mere silence or inaction on its part, but it may wait until a claim is made under the policy and then rely on the forfeiture in denial of the claim or in defense of an action brought to enforce payment. Weddington v. Pied- mont Fire Ins. Co. (N. Car.), 8-497. Right of insured vrho has abandoned contract to damages for cancellation.— When a policyholder in a life insurance company has voluntarily ceased payment and abandoned his policy he cannot be heard to ask damages for its cancellation. Green v. Hartford Life Ins. Co. (N. Car.), 4-360. Cancellation by insured. — Where the insured notifies his insurance broker to can- cel a policy, and the broker fails to do so, the policy will remain in effect, as the in- surance company must be notified of the can- cellation in order to make it effective. Mc- Graw W. W. Co. v. German F. Ins. Co. (La.), 20-1229. f. Assignment of contract by insured. Manner of assignment. — A policy of life insurance is not assignable by mere de- livery unless the assignment is made for a valuable consideration; and in the absence of a written assignment, a holder other than the beneficiary must show that he is a bona fide holder and the manner in which he be- came such. And this is so though the holder is the insured person. Cuyler v. Wallace (N. Y.), 5-407. Presumption of ownership after as- signment. — Where a son has duly assigned and delivery a policy of insurance on his life to his father, the law presumes a con- tinuance of ownership in the father; and this presumption is not rebutted by evidence of the mere possession by the son before the mSURANCE. 926 death of the father without any evidence as to the manner in which he reacquired posses- sion. Cuyler v. Wallace (X. Y.), 5-407. g. Actions. Necessity that person attempting to recover on policy shoiv insurable in- terest. — A contract of insurance is a eon- tract of indemnity, and any person attempt- ing to enforce a claim xinder such a contract must show an interest in the subject-matter of the contract. Bassett v. Farmers, etc., Ins. Co. (Neb.), 19-252. Necessity of pleading statute invali- • dating provision limiting time to sue. — In an action on a life insurance policy which contains a provision limiting the time within which an action may be brought thereon to one year from the death of the insured, if the plaintiff relies upon the stat- ute making void such a provision in a policy issued by a foreign insurance company, the complaint must allege all of the facts neces- sary to bring the policy sued upon within the provisions of the statute. Oaywood v. Supreme Lodge (Ind.), 17-503. Waiver of defense of want of con- sideration in action for premium. — In an action to recover premiums payable to an insurer which has not incurred a risk not affected by any infirmity which it may elect to interpose as » defense to an action on the policy after the death of the insured, the rights of the parties at the beginning of the action should determine the judgment, and the insurer cannot by the averments of its answer effectively waive such defense. Metro- politan Life Ins. Co. v. Felix (Ohio), 4- 121. For irliat purpose proofs of loss are admissible as evidence. — Proofs of loss in an action upon an insurance policy are admissible to prove compliance with the con- ditions of the policy, but for no other pur- pose, and it is error to refuse an instruction limiting the scope and effect of such testi- mony. Order of United Commercial Travel- ers V. Barnes (Kan.), 7-809. Sufficiency of proof to establish pol- icy. — In order to establish the relation of insurer and insured, in parol, as existing be- fore the delivery of the policy, the plaintiff must do so by full and clear proof. Jlart- ford Fire Ins. Co. v. Whitman (Ohio), 9-218. Deducting unpaid premiums from re- covery. — The amount of an unpaid note for a premium should be deducted from the re- covery on a policy of the life insurance com- pany. Lawrence v. Penn Mut. L. Ins. Co. (La.), 1-965. Under a policy of life insurance providing that any indebtedness of the insured to the insurer shall be deducted from the face of the policy if the policy becomes a claim against the insurer, the amount of an un- paid premium note, together with the inter- est thereon from its date, should be credited on the sum payable to the beneficiary under the terms of the policy. Union Central Life Ins. Co. V. Spinka (Ky,), 7-913. 4. Reinsurance. Construction of reinsurance contract. — A provision in a reinsurance contract that after the reinsured shall have adjusted, ac- cepted proofs of, or paid, the lots, it shall forward to the reinsurer the proof of its loss and claim and a copy of the receipt taken for payment, means that a copy of the receipt is to be sent in case the loss has in fact been paid, but does not mean that there must be payment before any liability exists on the part of the reinsurer. Allemannia Fire Ins. Co. I. Firemen's Ins. Co. (U. S.), 14-948. In a contract for reinsurance a clause pro- viding that " losses, if any, shall be payable pro rata with, in the same manner, and upon the same terms and conditions as paid by the said reinsured company under its contracts hereunder reinsured, and in no event shall this company be liable for an amount in ex- cess of a ratable proportion of the sum actu- ally paid to the assured or reinsured by the said reinsured company under its original contracts hereunder reinsured, after deduct- ing therefrom any and all liability of other reinsurers of said contracts or any part there- of," means that the reinsurer shall not pay more than its ratable proportion of the ac- tual liability of the reinsured after deducting the ratable proportion of other reinsurers, and does not mean that the reinsured must actually pay such liability before it can have the benefit of the reinsurance contract. Alle- mannia Fire Ins. Co. r. Firemen's Ins. Co. (U. S.), 14-948. Xiiability of reinsurer in general. — Where, in order to effect the inresurance of the policies of an insolvent life insurance company in the hands of receivers, the court appoints actuaries who prepare a schedule of all the policies in good standing in the insol- vent company, as a basis for the contract of reinsurance, and another insurance company, with such schedule before it, agrees to rein- sure those policies which the schedule shows to be in good standing, in consideration of a portion of the assets of the company, the in- surer is not liable on a policy not included in the actuaries' schedule, although the pol- icy is a valid obligation of the insolvent com- pany. Kansas Mutual Life Ins. Co. v. White- head (Ky.), 13-301. Insolvency of reinsured as affecting liability of reinsurer. — The liability of the reinsurer to the reinsured is not affected by the latter's insolvency or inability to ful- fil its own contract with the insured. Alle- mannia Fire Ins. Co. v. Firemen's Ins. Cb. (U. S.), 14-948. Payment of loss by reinsured as con- dition precedent to recovery. — In the absence of contrary provisions in a reinsur- ance contract, it is not necessary that the reinsured shall pay the loss before proceed- ing against the reinsurer. Allemannia Fire Tns. Co. V. Firemen's Ins. Co. (U. S.), 14- 948. Pleading in action on reinsurance contract. — A plea of estoppel in pais in an action on a contract of reinsurance, whicl^ 926 AN-N. CAS. DIGEST, VOLS. 1-20. does not allege that the defendant misled the plaintiff, or that the latter relied on any representation or conduct On the part of the former, and changed its status or did or omitted to do anything by reason of any such representations or conduct, but merely alleges that if the defendant had claimed that the contract of insurance had expired, the plaintiff would have been informed of the claim, and either could have caused the eon- tract of insurance to be duly corrected, or in case of dispute or delay concerning it could have protected itself by other insurance is demurrable. Delaware Ins. Co. f. Pennsyl- vania Fire Ins. Co. (Ga.), 7-1134. Petition in an action on a reinsurance con- tract held sufficient to withstand a demurrer to the effect that it does not appear that the contract was signed. Delaware Ins. Co. v. Pennsylvania Fire Ins. Co. (Ga.), 7-1134. Allegations in a petition on a reinsurance contract held to show that the contract was sufficiently signed. Delaware Ins. Co. v. Pennsylvania Fire Ins. Co. (Ga.), 7-1134. 5. FiBE INSURANC a. Statutory regulation of business. Penalty on membership in tariff as- sociation. — The Alabama statute providing for an additional recovery by the plaintiff, in an action on a fire insurance policy, of twenty-five per cent, on the amount of the actual loss or damage, if the insurer belonged to, or was a member of, Or in any way Con- nected with, any tariff association for the fixing of rates of insurance, either at the time of the issuance of the policy or subse- quently before the trial, is constitutional and valid, but must be construed as authorizing the recovery of a penalty of twenty-five per cent, of the loss or damage covered by the policy; and not twenty-five per cent, of the loss or damage sustained and not covered by the policy. Fireman's Fund Ins. Co. v. Hell- ner (Ala.), 17-793. b. Nature of contract. Fire insurance or guaranty. — Under a statute rendering a railroad company liable for an injury to property by fire communicated by its locomotives, and con- ferring on the company an insurable inter- est in such property, a policy insuring a railroad company against claims for loss or damage caused by fires so communicated is a fire insurance policy and not a guaranty policy, and may be issued by a company au- thorized only to insure against loss or dam- age by fire. Canadian Pacific Ey. v. Ottawa Fire Ins. Co. (Ont.), 6-567. c. Validity of contract. Insurance on furniture in bawdy house. — A fire insurance contract upon household furniture used by the insured in a bawdy house is not void as against public policy, because such contract does not pro- mote the illegal business of the insured. Conithan v. Rojrftl Ins, Co. (Miss.), 15-539. Issuance of policy to agent. — A policy of fire insurance issued by an agent of the insurance company upon property In which he is personally interested, without notice to or consent of the company, creates no en- forceable liability. Arispe Mercantile Co. V. Capital Ins. Co. (la.), 12-93. Mistake in name of assured. — The validity of a renewal policy of fire insurance issued to a corporation is not affected by the fact that the assured corporation has changed its name without the knowledge of the in- surer, and that the policy was issued in the original name of the assured. Peever Merc. Co. t!. State Mut. Fire Assoc. (S. D.), 19- 1236. d. Parties to contract. (1) What parties have insurable interest. General rule for determining. — If the holder of interest in property will suffer loss by its destruction, he may indemnify himself therefrom by u contract of insurance. If, by the loss, the holder of the interest is de- prived of the possession, enjoyment, or profit of the property, or of a security or lien rest- ing thereon, or of other certain benefits grow- ing out of or depending upon it, he has an insurable interest. Farmers', etc., Ins. Co. v. Mickel (Neb.), 9-992. Builder. — A builder has an insurable in- terest in a building he is reconstructing for another, even though he has been paid most of the contract price for his work. Hence, in an action by the builder on a contract in- suring the building against fire, an instruc- tion is not rendered erroneous by the fact that it speaks of the building as " the prop- erty of the plaintiff." King v. Phoenix Ins. Co. (Mo.), 6-618. The Missouri valued property law applies to a policy of fire insurance issued to a builder on a building he is reconstructing for another person. King v. Phosnix Ins. Co. (Mo.), 6-618. Husband in property of wife. —' A husband living with his wife in a house on land constituting her separate estate has ho insurable interest therein. Tryee v. Virginia P. & M. Ins. Co. (W. Va.), 2-30. In Nebraska, in 1906, a husband by virtue of th4 marital relation only had no insurable interest in his wife's real estate. Bassett t'. Farmers, etc.. Ins. Co. (Neb.), 19-252. (2) Policy made payable to estate of de- ceased person. Validity. — A policy of fire insurance is not rendered void by the fact that it is made payable to the estate of a deceased person. Norwich Union Fire Ins. Co. v. Prude (Ala.), 8-121. Who are beneficiarleB. — The heirs and next of kin of a deceased person are not, as such, the beneficiaries under a policy of Ate insurance payable to " the estate " of the de- ceased, unless the deceased died intestate and has no personal representative, or unless there INSURANCE. 927 are no debts and no need for a personal rep- resentative, and even then not unless the prop- erty is exempt from administration and from the claims of the surviving husband or wife. Norwich Union Fire Ins. Oo. V. Prude (Ala.), 8-121. e. Form of contract. ( 1 ) Statutory regulation. Standard policy. — The Michigan stat- ute empowering a commission thereby created to draft a form of fire insurance policy to bo known as the " Michigan Standard Policy " is unconstitutional as an attempted delega- tion of legislative power, and therefore it is competent for the parties to a contract of fire insurance to insert a condition in addi- tion to those contained in such standard pol- icy. King i;. Concordia Fire Ins. Co. (Mich.), 6-87. Application of statute to foreign companies. — An exception in favor of " mutual companies in cities and villages " in the Wisconsin statute providing that " all fire insurance corporations . . . shall, upon issue or renewal of any policy, attach to such policy or indorse thereon a true copy of any application or representation of the as- sured which by the terms of such policy are made a part thereof or of the contract of in- surance or referred to therein, or which may in any manner affect the validity of such pol- icy," does not include foreign mutual fire in- surance companies. Waukau Milling Co. v. Citizens' Mutual Fire Ins. Co. (Wis.), 10- 795. (2) Parol contracts. Validity in general. — Under a statute providing that parol contracts may be bind- ing on corporations, a fire insurance company may be bound by an oral contract of insur- ance, unless such a contract is expressly pro- hibited by statute, notwithstanding the fact that the company's charter requires the sig- nature of the president to all policies of in- surance. King r. Phoenix Ins. Co. ( Mo. ) , 6- 618. Oral contract of renewal. — Where an agent for a fire insurance company is in- trusted with blank policies signed by the president and the secretary of the company and is clothed with authority to negotiate, fill up, and issue them, he may bind the com- pany by an oral contract to insure, though his written appointment does not empower him to make oral contracts, especially if the oral contract is a mere renewal of a written policy which is about to expire. King v. Phoenix Ins. Co. (Mo.), 6-618. Effect of Stamp Act. — An oral con- tract of fire insurance made prior to the re- peal of the Federal Stamp Act was not ren- dered invalid by that statute. King -v. Phoenix Ins. Co. (Mo.), 6-618. Necessity of xrriting nnder Georgia statute. — Under a Georgia statute, a con- tract of fire insurance must be in writing and signed by the insurer or by some person authorize4 to sign for the insurer, Delaware Ins. Co. V. Pennsylvania Fire Ins. Co. (Ga.), 7-1134. (3) Signature of policy. Signature in body of contract. — The usual and proper place for the signature of the insurer to a contract of fire insurance is at the end of the matter which it attests. But in strict law, it will suffice if, with in- tent to constitute si signing, it is inserted in writing at another place. Delaware Ins. Co. (. Pennsylvania Fire Ins. Co. (Ga. ), 7-1134. f. Construction of contract. (1) In general. Rules of construction. — Rules for con- struing a contract of fire insurance stated. L'Engle v. Scottish Union, etc., Ins. Co. (Fla.), 5-748. Strict construction against insurer. — Conditions in a policy of fire insurance which piovide for the forfeiture of the interest of the insured or of other persons claiming un- der the policy are to be construed strictly against the insurer, and if there is any am- biguity in a policy which may be solved rea- sonably by either one of two constructions, that interpretation will be adopted which is the more favorable to the insured or other person protected. Welch v. British American Assurance Co. (Cal.), 7-396. Where language is ambiguous. — A fire insurance contract should, in case of am- biguity, be construed most favorably to the insured, and the language of the contract, if ambiguous, is to be interpreted in the light of the attendant circumstances and the intent 0/ the parties. Biekford v. Mtna, Ins. Co. (Me.), 8-92. (2) Divisibility of contract. In general. — A contract of fire insurance held to be indivisible. St. Landry Wholesale Mercantile Co. r. New Hampshire F. Ins. Co. (La.), 3-821. Policy covering different classes of property. — Where a fire insurance policy covers different classes of property, each of which is separately valued and is insured for a distinct amount, the contract is severable, and a breach of warranty as to only one of the subjects of the insurance does not affect the policy as to the other subjects, unless it appears that such was the intention of the parties, even though the premium for the ag- gi-egate amount of the insurance is payable in gross. Donley r. Glens Falls Ins. Co (N. Y.),6-81. ^ All property affected by breach of condition. — A policy of fire insurance pro- viding that the entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstances concern- ing the insurance or the subject thereof must be regarded as entire and unseverable as to such provision where the property is so situ- ated that a breach of the provision as to one itt^m of property will necessarily aflTect the risk as to other items of property, though 928 ANK CAS. DIGEST, VOLS. 1-20. the contract would be severable if the risk on the different items of property was sepa- rate and distinct. Where such a policy covers a building and the furniture therein, and there is a misrepresentation as to the owner- ship of the building invalidating the policy so far as the building is concerned, the pol- icy is also invalidated as to the furniture, because any circumstance which increases the risk of fire to the house necessarily increases the risk to its contents. Goorberg v. West- ern Assur. Co. (Cal.), 11-801. (3) Duration of contract. Freminm payable in instalments. — A policy of fire insurance issued on March 19 for a period of five years, for a stated pre- mium, one-fifth of which is paid in cash and the remainder of which, according to stipu- lation, is to be paid in four annual instal- ments due upon the first day of January of each succeeding year, with a provision that the company shall not be liable for any loss that may occur while any instalment of the premium remains past due and unpaid, can- not be construed as a yearly contract which the payment of each instalment of premium keeps in force for a full year ending March 19, but is for an entire term of five years and becomes immediately suspended by fail- ure to pay an instalment of premium on January 1. McCullough ■!/. Home Ins. Co. (Tenn.), 12-626. Policy expiring during fire. — Where a building and its contents are insured against fire, and a fire breaks out in the building be- fore the expiration of the policy and con- tinues to burn thereafter until the building and its contents are destroyed, the loss is one occurring during the life of the policy, though the policy expires before the build- ing has been totally destroyed and before the fire has been actually communicated to the articles of merchandise covered by the insur- ance; but where the policy expires before the fire breaks out in the insured building, the loss does not occur during the life of the policy, notwithstanding the fact that at the time of the expiration it is inevitable that the building will be destroyed by the fire which is then consuming another building in the neighborhood. Rochester German Ins. Co. f. Peasley-Gaulbert Co. (Ky.), 9-324. (4) The risk. Negligence of insnred. — A fire insur- ance policy covers loss from a fire which oc- curs through the negligence of the insured unless it contains a stipulation to the con- trary, notwithstanding the fact that it con- tains a provision exempting the insurer from liability for loss caused " by neglect of the insured to use all reasonable means to save and preserve the property at or after a fire, or when the property is endangered by fire in neighboring premises." . Beavers v. Se- curity Mutual Ins. Co. (Ark.), 6-585. Insurance against loss of rents. — Under a policy insuring against loss of the rents of an office building by fire, the as- sured, on the total destruction of the build- ing, is entitled to recover the gross amount of the rents, without deducting the cost of maintenance, such as the pay of janitors, cost of water, and the like, where the policy pro- vides that the liability of the insurer shall be " based upon the rentals in force from the rented portions of the premises at the time of fire not exceeding the sum insured," for such period as may be required to put the premises in tenantable condition, and that appraisers shall be appointed to ascertain the time required to put the premises in tenant- able condition, if the parties disagree in re- gard thereto. Whitney Estate Co. v. North- ern Assur. Co. (Cal.), 18-512. (5) Property covered. Meaning of term " addition." — The tei-m " addition " in a fire insurance policy construed. Bickford v. .^tna Ins. Co. (Me.). 8-92. A fire insurance policy on a " two-story basement and brick building, with metal roof, and its additions adjoining and communicat- ing, including foundations, occupied as a steam laundry," covers a boiler house situ- ated about four feet distant from the main building and connected therewith by a steam pipe conveying power for an engine situated in the main building, by a partially com- pleted platform and an overhead arch be- tween the buildings, and by a sidewalk along the side. Guthrie Laundry Co. v. Northern Assur. Co. (Okla.), 10-936. Term " property " as including stand- ing timber. — Standing timber held not to be " property " within the meaning of a fire insurance policy. Canadian Pacific Ry. v. Ottawa Fire Ins. Co. (Ont.), 6-567. Goods in process of removal. — Under the provision of a rider of a fire insurance policy giving permission to remove the prop- erty from one building to another specified building and stipulating that the policy shall cover the property " in both locations during removal in proportion as the value in each location shall bear to the value in both and after removal shall attach and cover in new location only," the property after being re- moved from the first location and while in process of removal to the other authorized location, but before it is placed in that loca- tion, is not covered by the policy. Palatine Ins. Co. V. Kehoe (Mass.), 14-690. (6) Warranties and representations. 'Warranties in application as part of policy. — An insurer agaiust fire cannot claim that the warranties in the application for insurance have a different effect from those in the policy, where the application pro- vides that the warranties therein shall be " the same as if written on the face of the policy." Donley v. Glens Falls Ins. Co. (N. Y.), 6-81. Materiality as question of laur or fact. — The materiality of a warranty in an insurance policy to the risk taken under it is a question of law whenever the ch»raeter of !> Provisions as to ownership in general l^alidity of provision requiring own- ership in fee. — A provision of an insur- ance policy to the effect that if the title of the insured is kss than the absolute fee simple ownership, the company shall not be liable thereunder, is reasonable and enforceable. Tyiee v. Virginia F. & M. Ins. Co. (W. Va.), 2-30. Effect of false statement by insnred. — A false statement to an agent by an appli- cant for insurance that the latter is the sole and absolute owner of the property sought to be insured, the agent having no knowledge to the contrary, avoids the policy. Tyree v. Virginia P. & M. Ins. Co. (W. Va.), 2-30. Effect of erroneous statement in pol- icy. — In an action by the insured on a policy of fire insurance, where it is shown that the ihstired trtithfully and correctly stated the nature and condition of his title in making his application for insurance, he is not pre- cluded from recovering by the fact that a contrary statement as to the title was in- serted in the policy by the insurer. Allen ». Phoenix Assur. Co. (Idaho), 10-328. Waiver df false Representations. — A misrepresentation as to the title to the prop- erty covered by a policy of fire insurance, p.voiding the policy, is not waived by tlip fact 7oL8. 1-20 — Ans. Cas. Digest. — o9. that the insurer, after the loss occurred, as- certained the true state of the title, and for a period of several months thereafter and up to the time suit was brought on the policy made no offer to* return the premium. In such an action, if the- plaintiff relies on- waiver or estoppel as to any defense that would otherwise be available to the defendant under the facts statedi in the complaint, the facts constituting such waiver or estoppel- must be pleaded in the first instance. Goor' berg V. Western Assur. Co: (iCa!.), 11-801. (2) Condition requiring sole and uncondi- tional ownership. (a) In general. Materiality. — A stipulation in aj fi're insurance policy, for unconditional o-nmerahip of the insured held to- be material and- valid". Insurance Co. v. Brickson (Fla.), 7-495. Acceptance of policy as consent- to condition. — By accepting a policy- of fi're insurance containing a clause requiring him to have sole and unconditional ownership of the property, the insured becomes charged' with notice of the condition and' becomes bound thereby. Parsons, Rich & Co. v. Lane (Minn.), 7-1144. To -what time condition relates. — The provision in a policy of fire insurance that the policy shall be void if the interest of tliB insured is other than an unconditional antl sole- ownership, or if the subject of the insitr- ance is a building nn ground not owned by the insured in fee simple, applies to condi- tions existing at the date of the policy, and not to future changes in title. Parsons, Riclii & Co. V. Lane (Minn.), 7-1144. Presumption as to compliance vritb condition. — While the conditions in a pol- icy of fire insurance against incumbrances and' for unconditional and sole o-wnership are con- ditions precedent to be performed or made to exist prior to the consummation of the con- tract and the delivery of the policy, the de- livery of the policy raises a prima faeie po-e- sumption that these conditions, have been found by the insurer to have been performed. Allen V. Phoenix Assur. Co. (Idaho), 10- 328. Effect of breach as to part of prop- erty. — A policy of fire insurance on a build- ing and its contents which contains a clause requiring the insured to have sole and uncon- ditional ownership and title of and to prop- erty, is avoided as to all the property by a breach as to the title to the land upon which the^ building stands, where the contract is entire and the increase of moral hazard caused by the condition of the title to the land affects all of the property insured. Par- sons, Rich & Co. r. Lane (Minn.), 7-1144. (b) What constitutes breach. Title in government. ~ A fire insurance policy containing a clause providing that the policy shall be void "if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be 930 A:N]Sr. CAS. DIGEST, VOLS. 1-20. a building on ground not owned by the in- sured in fee simple," is not avoided by the fact that the property insured is situated upon a government homestead for which the insured h3,s not made the final proof required by law and the legal title to which remains in the United States government. Allen v. Phosnix Assur. Co. (Idaho), 10-328. Existence of vendor's lien. — An owner of property, who is in possession under a conveyance of title in fee simple which does not expressly reserve a vendor's lien, is the sole and unconditional owner thereof within the meaning of a, condition in a policy insur- ing the property against fire, though the con- veyance recites a cash payment and several deferred annual payments, and though the law gives the vendor a lien to secure the de- ferred payments. Insurance Co. of North America v. Pitts (Miss.), 9-54. The incumbrance of a vendor's lien does not work a forfeiture under a clause of a fire insurance policy providing that the policy shall be void if the interest of the insured " be other than unconditional and sole own- ership, or if the subject of the insurance be a building on ground not owned by the in- sured in fee simple." Planters' Mutual Ins. Assoc. V. Hamilton (Ark.), 7-55. Fart of purchase money unpaid. — A vendee of land in session under a contract of purchase which he is entitled to enforce spe- cifically, though a part of the purchase money may remain unpaid, is the unconditional and sole owner within a clause of a fire insurance policy declaring that it shall be void " if the interest of the insured be other than uncon- ditional and sole ownership." McCullough V. Home Ins. Co. (Cal.), 18-862. Existence of contract to sell. — Ex- istence of a contract to sell property held to be a violation of an unconditional ownership clause in a fire insurance policy. Insurance Co. V. Erickson (Fla.), 7-495. ( c ) Waiver. Failure to make inquiry. — Where an insurance company has issued a policy and accepted and retained the premium without requiring an application by the insured and without making inquiry as to the condition of the property or the state of its title, and the insured had in fact an insurable interest, the company will be conclusively presumed to have insured such interest, and to have waived all provisions in the policy providing for its forfeiture by reason of any facts or circumstances affecting the condition or title of the property in regard to which no such statement was required or inquiry made. Farmers', etc., Ins. Co. v. Mickel (Neb.), 9- 992. Issuance of policy uritb knovrledge. — Where a written application for fire insurance states that the applicant is not the owner in fee of the land on which the property insured is situated, and that the property is mort- gaged, the insurer, if it issues its policy with knowledge of these facts, will be estopped froiii plsiming subsequently that the policy ia void because of breaches of conditions for sole and unconditional ownership and against incumbrances. Allen v. Phoenix Assur. Co (Idaho), 10-328. While an insurer against fire cannot take advantage of a condition in its policy to avoid payment of a loss, when the facts invalidat- ing the policy were known to it or to its agent when it issued the policy, this rule has no application when the facts were not known. Parsons, Rich & Co. o. Lane (Minn.), 7- 1144. The issuance of a policy of fire insurance with full knowledge on the part of the insured that the assured has not the unconditional and sole ownership of the insured property operates as a waiver of a condition that the policy shall be void if the interest of the as- sured "be other than unconditional and sole ownership," and that no condition shall be deemed to have been waived "unless such waiver, if any, shall be written upon or at- tached " to the policy. Damms v. Hiunboldt Fire Ins. Co. (Pa.), 18-685. Issuance of policy witkont written application. — An insurer against fire does not, by issuing a policy without a written application therefor, waive a condition in the policy requiring the insured to have uncondi- tional and sole ownership of the property. Parsons, Rich & Co. v. Lane (Minn.), 7- 1144. Waiver by agent. — Evidence reviewed in an action on a fire insurance policy, and held svifficieut to authorize the submission to the jury of the question whether the insurer, through its agent, knew that the house in- sured stood on' leased ground at the time the application was made and the policy issued, and thereby waived a provision in the policy that it should be void if the building was on land not owned by the insured in fee simple. ^tna Ins. Co. v. Johnson (Ga.), 9-461. Whether a clerk of the agent of a fire in- surance company can waive a provision in the policy that it shall be void if the building ■ is on land not owned by the insured in fee simple, and whether this question is affected by the fact that the agent has referred the applicant for insurance to his clerk or assist- ant, held to be questions not made in the record with such distinctness as to require their decision. .iEtna Ins. Co. v. Johnson (Ga.), 9-461. (3) Provision against change in title, in- terest, or possession. (a) In general. Meaning of word "interest." — The word " interest " in a forfeiture clause of a fire insurance policy which provides that the policy shall become void " if any change . . . takes place in the interest, title, or possession of the subject of insurance " has application only where the insured owns and insures an interest less than title, and has no application where the insured owns the title. Garner v. Milwaujceg Mechanics' Ins. Cq. (Kan.), 9-. 459, INSUEANCE. 931 (b) Clause avoiding policy on commencement of foreclosure. Validity and oonstmotion. — A clause in a fire insurance policy which provides that this "entire policy, unless otherwise pro- vided by agreement indorsed hereon or added hereto, shall be void, if with the knowledge of the insvired, foreclosure proceeding be com- menced or notice given of sale of any prop- erty covered by this policy by virtue of any mortgage or trust deed," is a wise and proper safeguard to the insurer against the greatly increased risk consequent upon the circum- stances provided against therein, and is valid. The plain meaning and purpose of such a clause is that the policy shall become void, if, with the knowledge of the insured, fore- closure proceedings of any mortgage, whether executed by the insured or by another, cover- ing any of the insured property, shall be commenced during the life of the policy, un- less there shall be an agreement indorsed upon or added to the policy providing other- wise. J. I. Kelly Co. v. Saint Paul Fire, etc., Ins. Co. (Fla.), 16-654. Pleading. — In an action by the insured on a policy containing such a clause, a plea by the defendant insurance company which sufficiently alleges the commencement of fore- closure proceedings of a valid and subsisting mortgage upon the insured property, and that the insured had knowledge of such proceed- ings, and that no agreement was indorsed upon or added to the policy providing against its avoidance by the commencement of the proceedings, presents a valid defense and is not subject to demurrer. J. I. Kelly Co. v. Saint Paul Fire, etc., Ins. Co. (Fla.), 16-654. In such an action, where the defendant in- surance company pleads that the policy has been forfeited by the commencement of fore- closure proceedings upon the insured with the knowledge of the insured, a replication set- ting up the agreement between the insured and the fore mortgagee for the discontinuance of tlie foreclosure proceedings upon payment of a part of the mortgage debt, does not pre- sent any answer to the plea. J. I. Kelly Co. V. Saint Paul Fire, etc., Ins. Co. (Fla.), 16- 654. (c) What constitutes breach. In general. — To avoid a policy of fire insurance containing a provision against a sale of property or an assignment of the pol- icy, the sale must be such as passes title to the property. International Wood Co. r. Na- tional Assur. Co. (Me.), 2-356. Executory contract of sale. — A con- tract of sale of insured property held to be within a provision of the policy voiding the same for a change of interest of the insured. Excelsior Foundry Co. v. Western Assur. Co. (Mich.), 3-707. Where the insured in a fire insurance pol- icy, who owns the title of the subject of in- surance, has made an executory contract to convey the property, and the consideration has been fully paid but no transfer either of title or possession has been actually made, 90 change has taken place in " interest, title, or possession," within the meaning of a for- feiture clause in the policy. Garner v. Mil- waukee Mechanics' Ins. Co. (Kan.), 9-459. Sale and mortgage back. — A policy of fire insurance providing in plain and unmis- takable terms that any change in interest, title, or possession of the subject-matter of the insurance shall avoid the policy, unless otherwise provided by agreement, is rendered void, where the insured makes an absolute conveyance of the subject-matter of the insur- ance and takes a mortgage to secure the pur- chase money, the mortgage being a mere lien or security for money and conveying no title to the mortgage. Jump v. North British, etc., Ins. Co. (Wash.), 12-257. Judicial sale. — The effect of service upon the insvired of a notice of sale of the in- sured property under a deed of trust when the policy contains a stipulation against a sale of the property and a clause prohibiting the agent from waiving such condition except in a particular manner. Medley v. German Alliance Ins. Co. (W. Va.), 2-99. Appointment of receiver. — Where a fire insurance policy on personal property pro- vides that if any change takes place in the interest, title, or possession of the property. " whether by legal process of judgment, or otherwise," the policy shall be wholly void, the appointment of a receiver, in a suit against the insured, to take possession and control of the property, and the taking of actual possession by such receiver, avoids the policy and prevents any recovery thereon. Bronson v. New York Fire Ins. Co. (W. Va ) 16-868. Bankruptcy of insured. — A fire insur- ance policy contained the following stipula- tion: "The entire policy, unless otherwise provided .by agreement herein indorsed or added hereto, shall be void ... if the inter- est of the insured be other than unconditional and sole ownership ... or if any change other than death of an assured takes place in the interest, title, or possession of the sub- ject of insurance whether by legal process or judgment, or by voluntary act of the assured, or otherwise, or if this policy be assigned before a loss." On Feb. 1, 1905, the assured filed a petition in the United States District Court for the Eastern District of Kentucky in voluntary bankruptcy, and on the same day he was adjudged a bankrupt. On Feb- ruary 2 the stock of merchandise insured was (at Ruston, La.) destroyed by fire. On Feb- ruary 3 a receiver was appointed, and on February 13 the same person was appointed as trustee and qualified as such. On May 13 the District Court confirmed a composition which had been entered into between the bankrupt and his creditors. The assured thereafter sued the insurance company. The latter pleaded that the policy had become void by reason of the proceedings in bankruptcy. The court rendered judgment in favor of the plaintiff, apd the correctness of that judg- ment has been brought up for review. Held the judgment is correct and is affirmed The property insured was destroyed before either a receiver ox a, trustee was appointed. In t; 3 932 ANN. CAS. DIGEST, VOLS. 1-20. interim between the adjudication in bank- ruptcy and tlie appointment and qualification of the trustee, the title to the property with the incidents of interest and possession con- tinued in the bankrupt. When the trustee was appointed, there was no property in ex- istence to which the title in the trustee could vest. The trustee of a bankrupt is not obliged to accept title to the property surrendered by the bankrupt, if to do so would not benefit the creditors, or would prejudice them. The creditors deemed it to their interest to make a cota.position with the bankrupt, and depend upon his personal obligation to them and did so. The court confirmed the composition. The composition did away with the effect of the bankruptcy proceedings, and the assured had the right to sue on the policy with his rights intact. Gordon v. Mechanics', etc., Ins. Co. (La.) U-886. (4) Condition against incumbrances. (a) In general. Validity. — A condition in a policy in- suring personal property against fire that the policy shall be void if the property is en- cumbered by a chattel mortgage, is a just and lawful one, and will be enforted accord- ing to its plain meaning and so as to oarty into execution the reasonable purpose of the parties. Weddington v. Piedmont Fire Ins. Co. (N. Gar.), 8-487. Estoppel to deny knowledge of con- dition. — In an action by the insured oh a fire insurance policy, the plaintiff, in the ab- sence of any proof of fraud or mistake, will not be heard to say that when he sigfiied the agreement he did not know what was in it. Weddington v. Piedmont Fire Ins. Co. (N. Car.), 8-497. (b) Waiver. iMUance of policy withont iliqiiiry. — A 'fraiVeT by an insurance company 6i a, condition in a policy against incumbrances by Issuing the policy and accepting a pre- miutn Without making an inquiry as to in- cumbrances, where the insured has no knowl- edge that the existence of an incumbrance affects the contract. Allesina v. London, etc., Ins. Co. (Ore.), 2-284. Issuance lof policy tirith knoitrledge. — A waiver by a fire insurance company of a condition against incumbrances by issuing a policy and accepting a premium with knowl- edge that the subject Of the risk is covered by a chattel mortgage. German-American Ins. Co. r. Yeagley (Ind.), 2-275. In an action upon a fire insurance policy containing a condition against incumbrances, a thflittg for the plaintiff is justified by evi- dence showing that a general agent issued the policy and received the premium with full knowledge, conveyed to him orally and in writing, of the existence of a chattel mort- gage upon the goods insured. German-Ameri- can Ins. Co. r. Yeagley (Ind.), 2-2^5. Power of a^nt to Waive. — The power of an insurance agent to waive conditions in a polityf which would render it void from the beginning, such as a condition against in- cumbrances. German-American Ins. Co. v. Yeagley (Ind.), 2-27S. W&iVer of bireach Att^t ig^HcOUbe oC policy. — Where thfe insui'ed in a policy in- suring personal property against fire writes to the president of the insurance Company requesting a loan and offering to giVc a chat- tel mortgage on the property, a letter from the president expressing his regret that he cannot accommodate the insured and furthier wishing him " success in his undertaking " does not amount to a waiVer of a condition in the policy against enctiinberiilg the prop- erty, nor does it constitute an equitable estop- pel to set up such condition as a defense to an action on the policy. Weddington v. Pied- mont Fire Ins. Co. (N. Car.), 8-497. Nolii^aiver agreement. — In an action on a policy of fire insurance, where the plain- tiff relies On a waiver by the defendant of a breach of a condition against incumbrance, and the defendant sets up a nonwaiver agree- ment executed by the insured after the oc- currence of the loss, tlie plaintiif is not en- titled to prove that the defendant's agent told him that signing the agreement would pre- vent any difficulty in settling the loss, ii it appears that at the time the agreement v-.s si^ed neither the agent nor the defendant knew that the ^jto'peTty was encumbered. Weddington v. Piedmont Fire Ins. Co. (U. Car.), 8-497. (5) Condition against vaOancy, disuse, and neglect. Construction Trhere property is rented. — The condition against vacancy and unoceupancy usually found in fire insurance policies must be construed with reference to the character or class of property insured, and it should not receive the same interpre- tation when the insured property is occupied by tenants as when it is occupied by the own- ers thereof. Ohio Farmers' In-s. Co. i\ Vogel (Ind.), 9-91. Interval between occupation by ten- ants. — In construing a policy issued by a fire insurance company with knowledge of the fact that the property was occupied by a ten- ant and that the property should continue to be occupied by tenants during the life of the policy, the necessary and reasonable time in- tervening between the outgoing of one tenant and the incoming of another must be held to have been Contemplated by the parties and not Intended to affect the validity of the pol- ity, in the absence, of something more specific than the general and usual conditions against Vacancy and UnoecupanBy. Ohio Farmers' Ins. Co. 1). Vogel (Ind.), S-61. Clanre Inserted by mistake. -- Where the owner of a tenement and a fire insurance company make a Contract to insure property for tenement ocftupancy, but the policy issued is appropriate only for insurance taken out by cccupyinf? ownefs, in that it contains a condition against occupancy by tenants, such condition is ineffefctive to Vatjr Hie contr&'ct mSUKANOE 933 actually imule; and in an action on the policy it will not be presumed that any condition of forfeiture was annexed to the contract as it was agreed upon. Ohio Fanners' Ins. Co. v. Vogel (Ind.), 9-91. Waiver of condition against occu- panoy by tenants. — Where a fire insur- ance company issues a policy with knowledge that the property is occupied by a tenant, and accepts and retains the premium paid by the insured, it thereby waives a condition in the policy providing that the policy sh?ill be void if the building " shall hereafter be- come . . . occupied by tenants," and the policy will be given the same effect as would be given it if it lacked such condition. Ohio Farmers' Ins. Co. r. Vogel (Ind.), 9-91. Temporary cess^tio^ in operation of mill. — Where a fire insurance policy cover- ing a mill run by water is issued with knowl- edge of the insi^red that the nxill cannot be, operated in severe winter weather on account of the lack of power, a clause in the policy pi-oviding that the policy shall be void if tU^ subject of the insurance sh^H " cease to be operated for more than ten consecutive days " is ineffectual to avoid the policy on account of the temporary cessation of the operation of the mill occasioned by the lack of pov/er during cold weather. Waukau Milling Co. i\ Citizens' Mutual Fire Ins. Co. (Wis.), 10-795. Revival of policy on occnpatio:^ after vacancy. — The provision in a policy insur- ing a building against fire, that the policy shall be void if the building shall "be pr become vacant or unoccupied, and so re- main " for a specified length of time, operates to suspend the folicy during the prol^^bited vacincy, but the insurance is revived by a subsequent occupancy. Insurance Co. of North America v. Pitts (Miss.) 9-54. (6) Condition against hazardous use and occupation. Storing or keeping gasoline. — Under a statutory condition exempting a fire insur- ance company from liability for loss or dam- age occurring while gasoline is " stored or kept " in the insured building or the building containing the insured property, the words " stored " and " kept " should be read to- getlier and indicate the continuous, habitual storage or keepjng of an article; and the pi'o- curing by the tenant and servant of the in- sured of one-half gallon of gasoline, and the keeping of the same without the insured's knowledge in part of the insured's premises, is not 9. storing or keeping within the mean- ing of the condition. Thompson v. Equity Fire Ins. Co. (Can.), 13-532. A small quantity of gasoline in a, stove used for cooking in an insured building does not violate a statutory conclition protecting the insurer from liability "for loss or dam- age occurring while gasoline is store(} or kept in the building insured." Thompson v. Equity Fire Ins. Co. (Eng.), 19-412. Storing of seed cotton by tenant. — Where a by-law of a mutual co-operative in- surance company, which is a part of the pol- icy of insurance issued by it, provides that " liabilities cease at once on dwellings in the association, in which seed cotton or loose lint cotton is stored," a violation of snch provi- sion avoi'is the policy, although the storing of the seed cotton is dpne Ipy ^ tenant to whom the insured has rented or leased the premises and delivered the contiol, and with- out the knowledge of the insured. Edwards V. Farmers' Miit. ins. Assoc (Ga,.), lOr-loaS- ■Vyaivqr by company. — A notice to tl\e company that %)i^ property if rented to a tenant, and its continuing tp receive the pay- ment of preij^iums or 3,sse8smen.t? frpmj the owner, do not operate as 3, lyaiver of the terms of a fire insurance policy prohibiting the storing of ^sed cotton in a dvyelling hiouee. Edwards v. Farmers' Mut. Ins. Assoc. (Ga.), io-iog,6. (7) Condition against increase of risk. Increase witbout knowledge of in-, sured. — Under a statutO|ry condition pro- viding that a policy of fire insura,nce shall be avoided by " any change material to tiie risk and \Yithin the control or knowledge of tlje; insured," a policy on a building leased aa li dwelling is not avoided by an action of the lessee in putting in a stock of goods for sale without the consent of the lessor, thpugh the insurance was effected prior to the execution of the lease. London, etc., Trust Co. v. Can- adii Fire Ins. Co. (Ont.), 7-386. Coi^ispiracy to burn insured property, — A eoAspiracy to burn insured property ii^ orde^- to obtain the insurance money, without any act done to carry it out, is not within a clause of the policy avoiding it " in case of any fraud . . . touching any matter relating to t^is insurance or the subject thereof," or "if the hazard l?e increased by any means within the control or knowledge of the in- sured ; -' and therefore the insured may re- cover for a loss by fire not caused by any act of the conspirators, though the conspiracy was in progress at the time. Ampersand) Hotel Co. V. Home Ins. Co. (N. Y.), 19-839. Increase ceasing before loss. — Under a stipulation in a policy of fire insurance that tlie entire policy shall be void if the hazard is increased by any means within the control or knowledge of the insured, the policy is not rendered totally void by a temporary change of possession of the property which increases the risk while it lasts, but which is discontin- ued before the burning of the property and b^S no connection therewith, snch change of possession perely suspending the validity of the policy while it lasts. Sumter Tobacco Warehouse Co. i'. Phcenix Assur. Co. (S C^r.). U-780. yjai-VBv by company. — A violation of a clause in an insurance policy declaring that the polic:^ shall become null and void if the hazard is increased by any means within the cont(-ol or knowledge of tlie insure4, ig not waived by a letter, M'ritten at or about the date of the fire which destroys tlje property, by m agent of the insurer who has no au- thority to waive conditions except by indorse- 934 ANN. CAS. DIGEST, VOLS. 1-20. ment on the policy or addition thereto, noti- fying the insured that the policy is canceled and specifying such violation as the reason for cancellation. Kuffner v. Dutchess Ins. Co. (W. Va.), 8-866. (8) Earthquake clause. Construction. — A clause in a fire insur- ance policy which provides that the insurance company shall not be liable for loss caused directly or indirectly by earthquake, must be construed as exempting the company from liability only where an earthquake is the proximate cause of the loss. Richmond Coal Co. V. Commercial Union Assur. Co. (U. S.), 17-1092. Intervening canses of loss. — In an ef- fort to stop a great conflagration which threatens to destroy the major portion of a great city, and which extends over a, consid- erable period of time, there will naturally be intervening events, such as explosions, backfiring, and dynamiting, and the course of the flames may be changed by windstorms and other natural causes. All of these events are possible intervening causes, which may prevent an earthquake which gave rise to the conflagration from being considered the proxi- mate cause of the destruction of a particular building therein, and, hence, in an action on a fire insurance policy to recover for the loss of property destroyed in such a conflagration, where the insurance company interposes the defense that the loss was caused by earth- quake, the jury should be instructed that it is their duty to consider whether any of the events above mentioned occurred, and instruc- tions whieli fail to inform the jury of their duty in thnt regard, or to take any note of such possible intervening causes of the loss, are erroneous. Richmond Coal Co. v. Com- mercial Union Assur. Co. (U. S.), 17-1032. (9) Fallen building clause. Construction. — A provision in a fire policy that if the insured building "or any part thereof " shall fall except as the result of fire, the insurance shall immediately cease, does not refer to the fall of a . trivial or minute part of the building, but means that the building must fall in whole, or in part to such an extent that its integrity as a building is destroyed or substantially impaired. Clay- burgh V. Agricultural Ins. Co. (Cal.), 18-579. (10) Explosion clause. Construction. — Under a policy of fire insurance exempting the insurer from liabil- ity for loss or damage by explosion " unless fire ensues, and in that event for the damage by fire only," the insurer is not liable for dam- ago to the insured property resulting solely from the explosion of explosives in a fire in the neighborhood. Hall v. National Fire Ins. Co. (Tenn.) 5-777. Proximate cause of esplosion not material. — Where a fire insurance policy contains a provision that the insurance com- pany shall not be liable for losses caused by explosion of any kind, unless fire ensues, and, in that event, for the damage by fire only, the only' Inquiry in an action on the policy is whether an explosion was the proximate cause of the fire, and when such has been ascer- tained to be the case the inquiry in that re- gard must stop there. An instruction which permits the jury in such a case to find for the defendant insurance company even though an explosion was the proximate cause of the fire, if they believe that an earthquake was the proximate cause of the explosion, is errone- out. Richmond Coal Co. v. Commercial Union Assur. Co. (U. S.), 17-1092. (11) Provisions regarding location of property. Effect of mistake in policy. — Where a policy of fire insurance on personal property stipulates that the property is insured while in a specified house and not elsewhere, and describes with certainty an existing house as the house in which the property is to be, when in fact the property was in another house, evidence that the house containing the property was the one intended to be described contradicts the terms of the writing, and no recovery can be had on the policy if it is to stand as the contract of the parties. .SItna Ins. Co. !;. Brannon (Tex.), 13-1020. The fact that the holder of a policy of fire insurance on personal property accepts the policy without noticing a mistake in the pol- icy as to the location of the insured property does not preclude him from having the mis- take corrected. .35tna Ins. Co. v. Brannon (Tex.), 13-1020. Property not ordinarily kept in one place. — Where for more than twenty years it has been a settled rule of construction in a state that in an insurance policy on personal property which is ordinarily not kept con- stantly in a particular location, the designa- tion of the location thereof shall, in the ab- sence of restraining language, be held to be descriptive merely of the subject of the in- surance and its customary location, the par- ties to such an insurance contract must be presumed to have designated the location thereof understandingly in the broad sense which such established rule of construction suggests. Lathers v. Mutual Fire Ins. Co. (Wis.), 15-659. Live stock customarily kept in barn. — A fire insurance policy on a farm barn and live stock customarily kept therein, the live stock being described as " therein, on the farm," covers the loss by fire of such live stock while temporarily, and according to custom, off the farm. Lathers v. Mutual Fire Ins. Co. (Wis.), 15-659. Waiver of condition. — Plaintiff, Tay- lor-Baldwin Company, a corporation, was the owner of a building and stock of goods lo- cated in what is called the old town of G., which it insured in defendant company. Af- terwards, and contrary to the provisions of the policy, it removed the property insured to the new town of G., four miles distant, obtained additional insurance, and installed a INSUKANCE. 935 gasoline lighting plant. After the removal to the new location, the plaintiff delivered the policy to one Kobinson, who was the legal soliciting agent of defendant, and requested him to have the insurance company make an indorsement on the policy to cover the prop- erty at its new location. Through a misun- derstanding, Kobinson sent the policy to de- fendant at its home office, with the written request that it cancel the same, which the company did, and retained the policy, but did not notify the plaintiff. The building and stock of merchandise were afterwards de- stroyed by fire caused by the gasoline light- ing plant. The plaintiff made proofs of loss and sent them to defendant. The proofs showed that the property was destroyed at its new location, the amount of additional in- surance obtained, and that the fire was caused by a defective gasoline lighting plant. The company returned the proofs with a letter denying any liability, on the ground that the policy had been canceled before the fire. Held, tliat the rejection of the claim on the ground stated in defendant's letter did not constitute a waiver of the condition of the policy. Tay- lor-Baldwin Co. V. Northwestern Fire, etc., Ins. Co. (N. D.), 20-432. (12) Option to repair or rebuild. Exercise as creating neir contract. ^ Under a stipulation in a fire insurance policy giving the insurance company an option to repair or replace the building in ease it is damaged by fire, the election of the insurance ecmpanj' to repair or replace creates a new contract which supersedes the contract to pay the loss. Winston v. Arlington Fire Ins. Co. JD. C), 16-104. Time limit of action for perform- ance. — A clause in such policy limiting the time within which an action may be brought on the contract of insurance does not apply to an action by the insured for the failure of the insurance company to perform properly the new undertaking created by such election to repair. Winston v. Arlington Fire Ins. Co. (D. C), 16-104. (13) Provisions regarding other insurance. Meaning of term " concurrent." — A fire insurance policy containing a clause re- ferring to " concurrent " insurance construed. L'Engle f. Scottish Union, etc., F. Ins. Co. (Fla.), 5-748. Innocent failure to disclose other in- surance. — A statutory condition as to fire insurance requiring the disclosure of prior insurance in an application does not apply to prior policies effected by others without the knowledge of the insured, and the failure to refer to such policies in the application is not a breach of the condition where there is no fraudulent design. Thompson v. Equity Fire Ins. Co. (Can.), 13-532. Additional insurance taken by mis- take. — Where a fire insurance company, having a risk of $2,000 upon a building, takes a risk of .$1,000 more to last thirty days, and expresses to its agent its willingness to con- tinue the policy for a stated premium, but the insured, before hearing of the company's intention, and on the day following the ex- piration of the thirty days, effects insurance for the same amount in another company, to which no reasonable objection can be had, and a fire occurs after notice of the addi- tional insurance is sent to the original com- pany but before it is received, a recovery on the original policy cannot be resisted on the ground of subsequent undisclosed insurance, the additional insurance being taken merely in substitution of the insurance assented to by the original company, and there being no pretense of any question as to the continu- ance of the additional risk by that company other than the amount of the premium. Thompson v. Equity Fire Ins. Co. (Can.), 13- 532. Permission by agent. — Where a policy has a slip attached thereto by the agent per- mitting other insurance, additional insurance on the property will not prevent recovery for loss under the policy. Medley t. German Al- liance Ins. Co. (W. Va.), 2-99. Validity and effect of co-insurance clause. — The defendant issued its policy of insurance for $1,500 on the building in Shreve- port, known as the " Simon Building." It was partially destroyed by fire. The policy contained the following clause : " It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insur- liice on_ each item of property insured by this policy of not less than seventy-five per cf.nt. of the actual cash value thereof, and that failing so to do, the assured shall be an insurer to the extent of such deficit and in that event shall bear his, her, or their por- tion of the loss." The assured obtained other insurance on the building, but fell short of obtaining insurance up to seventy-five per cent, of the building to the amount of several thousand dollars. On being sued, the defend- ant company claimed the benefit of the co- insurance clause contained in the policy. Plaintiff resisted this claim on the ground that the clause seeking to make him a co- insurer as declared therein was violative of the provisions of Act No. 135, p. 209 of 1900, known as the " Valued Policy Statute." Ihis position was sustained by the court, and judgment was rendered accordingly On appeal to the Court of Appeals that iude- raent was affirmed, and the case was then xr°,j^ L*° ^^^ Supreme Court for review Held, the stipulation in defendant's policy as to the assured becoming a co-insurer with the insurance company in a certain contin- gency to the extent and under the conditions stated IS not against public policy. It is not prohibited by law, and a prohibition should not be read into the law by construction. Liberty of contract is the rule, and limita- tions and restrictions the exceptions. Simon V. Queens Ins. Co. (La.), 14-847. (14) Condition against assignment of policy. Assignment as collateral seonritv - liie assignment or hypothecation of a policy ^36 ANK. CAS. UiaElST, VOLS. 1-20. of fire insurance of tlie face value of $2,000 to a creditor, as collateral security for an ex- tension of time on a debt of $3.00, does not constitute or amount to an assignment of the policy ip violation of a stipulation contained therein to the effect that the policy shall be void if " assigned before loss." Allen v. Phoenix Assur. Co. (Idaho), 10-328. ( 15 ) Mortgage clause. Mortgage bound by appr^isj^pt^nt. t- A " mortgage clause " atj;ached to a jlre in- surance policy at the time the same is (exe- cuted, which clause makes the loss, if any, under the policy, payable tp tjie pioj-tg^gpg as his interes); may appear, is not an assign- ment of the policy fo suph piortgagep, and, ip the absence of fraud or collusion, he is bound by the award of appraisers pvoyi4e4 for ^nd required by the ternjs of the policy in the event of a disagreenient between the insured and the insurance cppipany as ^o the amqunt of the loss, althpngt the mortgagee was not a party to and had no potice of the appraiser ment and award. Erie Brewing Co. v. Qhio Farpiers Ins. Co. (Qhio), 18-2651. (16) Iron safe elapse, (a) In general. Validitiy pf c^aiise. — It is cpippetent for the parties ^p a contract of fire ipsurauee to stipu^te t^^at, in order to preserve exact evidence of the extent of the loss, the books of aceoupt and inventpry of ihe insured shall Ipe kept in an iron sa,fe; and the promise of the insurer tp indeipnify the insured is a sufficient P9psidera,tipn tp support su^Ji un- dfrtakipg, ^ing v. Conpordi;^ Fire Ins. Co. (Micli.), 6-87. ^xoi^issory Tya,Traiity. -;- Whsit is com- monly known as the " irpn-safe clause " in a policy of ipsuranee, requiring the insured to '■' keep a set of bopl^s, which sha,ll clearly and plainly present a, complete record of business transacted, inelfudi,ng all purchases, sales, and shippients, both fpr cash and credit," is a prpmisaory warranty. JEtna Ins. Cp- v. John- spn (Qa.), 9^61. Clause in rider attached tp, p.<;l,iQy. -^ It cannot b(8 contended that an " iron-safe clause," whiclj is. contained in, a ridpr at- tached to a fire insurance policy and not in, the policy itself, is, not a pafrt of the, contract, where the rider also contains the description of 1;he property insured. King r. Concordia Fire Ina.'Cp. (Mich.), 6-87. Necessity of exa,pt copipliance. by in- sured. — Th.e, propiissory warranty contained in an iron-sa^e clause in a policy pf fire in- surance must be compjied) with by the in- sured; but in deterpiiining what it requires, a fair and liber,aJ construction is to be placed nppn it so as to effectuate the. contract of indemnity, rather than to, defeat it. Mtasi Ins. Co. V. Johnson (Ga,.), 9i-461-. WTiat constitutes compliance by in- sured. — It is a sufficient compliance with the psual, " irop-aaf^. clause" pf a, flre insur- ance policy, in reapoet to the keeping.pf books. if from the books kept by the insured, wi% the assistance of those who understand the Siystem on which they were kept, the amount of purchases and the amount of sales can be ascertained, ^nd cash transactions distin- guisJjed from those on credit, .^tna Ins. Co. V. Lipsitz (fia.), 14-1070. What constitutes violation. — The iron- safe clause in a fire insurance policy held not to have been complied with. St. Landry Wholesale Mercantile Co. v. New Hampshire F. Inp. Co. (La.), 3-821. In an action on a policy of fire insurance, where it appears that a small store or " com- missary " in the country was conducted by the insured in connection with a lumber busi- ness, and that tickets were given to the em- ployees for the sums due them for work, which tickets were treated as cash at the store, the amount of each purchase being in- dicated on the ticket by a punch and entered as a cash sale, and it further appears that there were no credit sales, but that the ag- giegate of the cash sales each day was en- tered at the close of the day, and it further appears that all goods were sold at a profit of from twenty-five to fifty per cent., it can- not be said as a matter of law that there was a violation of the requirement of the iron- safe clause of the policy as to keeping books. ^Etpa Ina. Co. '■• Johnson (Ga.), 9-461. {Iflect of violation. — A policy of fire insurance is rendered void by the fail^re"of the insured to comply with the requirements of the " iron-safe clause," where the pplicy so provides, notwithstanding the provision of the Miebigan statute that a policy shall not be avoided fpr a breach of cpndition which does not injure the insurer. King v. Con- cordia Fire Ins. Co. (Mich.), 6-87. Waiver by insurer. — Where a clause in, a policy pf fire insurance requires the in- sured to " keep his bppks and inventory in an irpn safe at night, or at some place secure against fire in another building," and the in- surer feiPws at the time he solicits the in- surance tha.t the insured has no iron safe, the fact that there is no building in town safer tlian the building in which the insured goods arc stored does not constitute a waiver of the requirement that the books shall be kept in another building. King ■(?. Concordia Fire Ins. Co. (Micl).), 6-87. (b) Sufficiency of inventory. Ija g^ner^l, — In deterininiing wha.t con- sti,tu,tes an. inventory within the meaning of an iron-safe clause ia a policy of fire inaur- aJjee, regard; mus.t be had to tlie purpose for which the inventory is required, and in as- certaining this purpose all parts of the clause should be read and construed together. Ruff- ner v. Puitchess Ins. Co. (W. Va.), 8-866. IteB^iite.d lisft with values. — An inven- tpry of a stock of merchandise, within the meaiBing of the term: " inventory " as used in w^flft is. known as the " iron-safe clause " of a fire inattrance policy, is a list of all the ar- tioles pf meBchandise in the stock, sufficiently itemized to. show, the kinds and numbers or INSUEANCE. 937 quantities thereof, together with their values at the time of making tlie same, as nearly as they can be ascertained. Ruffner v. Dutchess Ins. Co. (W. Va.), 8-886. Invoice o£ gbods. — In the casfe of a store \Vhich opens with an entirely new stock of goods at or about the date of the issuance of a policy of fire insurance .on the building and the goods, the invoices of the first lot of goods put into the store, giving the quanti- ties of the poods by items, with the cost prices, will, if they are preserved and kept for production upon the demand of the in- surer as and for an inventory, constitute an inventory within the meaning of the iron-safe clause in the policy, even though they are not pinned together and indorsed " inventory." KuflFner v. Dutchess Ins. Co. (W. Va.), 8- 866. List of goods without prices. — In an action on a policy insuring a store and its contents against fire, where the evidence shows that the insured kept a merchandise account which purported to show goods pur- chased) and that some of the itelus in such account stated the character of the goods and their prices, but that there were other items, aggregating in amount nearly one-half of the whole sum, which merely stated in each ease the name of some person or firm with the added word " bill " and the total amount dtle such person or firm, this evidence, in the ab- sence of any other evidence of a compliance with the requirements of the iron-safe clause in the policy as to keeping brtoks, is insuffi- cient to show compliance with such require- ment. -5]tna Ins. Co. v. Johnson (Ga.), 9- 461. Inventory in foreign langna^ge. — Where the only complaint as to an inven- tory, required by an insurance policy to be taken of the stock of goods insured, is that part of it was in Hebrew, it not being stated what portion thereof was in such lan|;«age, and it not appearing froih the record that any portion of the inventory was in Hebrew, such complaint is without merit, ^tna Ins. Co> f. Lipsitz (Ga.), 14-1070. (17) Provision for suspension of liability. Validity. — A stipulation for a suspen- sion of liability Under a policy of fire insur- ance in case of default in payment of the pre- mium, is a reasonable one, violating no prin- ciple of public policy, and 'becomes effective against the insured upon default. McCul- lougli V. Home Ins. Co. (Tefffi.), 12-626. h. Renewal of policy. Continuance of conditions in orig- inal policy. — Unless otherwise expressed, the renewal of a policy of fire insurance, though a new contract, will be construed to be subject to the terms and conditions con- tained in the original policy. Bickford v. .^tna Ins. Co. (Me.), 8-92. i. Assignment Of policy after loss. Necessity of conSitent liy insarer. — ■ An assignment of a fite insurance poHcy after loss is valid without the consent of the in- surer, although the written transfer purports by its terms to be subject to the consent of the insurer. Georgia Co-operative F. Assoc. V. Borchardt (Ga.), 3-472. An assignment Of A fire insurance policy without the consent of the insurer after a loss does not render the policy void, but the assignee has a right to bring an action there- on. Georgia Co-operative F. Assoc, r. Borch- ardt (Ga.), 3-472. j. Cancellation of policy. (1) What constitutes. Telegcani to agent directing ca,ncel- lation. — Where a fire insurance policy pro- vides that the insurance colnpany may cantjel the same upon five days* notice to the in- sured, a telegram sent by the company to its agent, directing the latter to cancel the pol- icy does not operate per Se as a cancellation, even though it is exhibited to the insured, and until there is some affirmative action on the agent's part, canceling the policy, it re- fflaihs in force and effect. Fireman's Fund Ins. Co. V. Hellner (Ala.) 17-793. Question for jii*y. — In an action against a fire insurance company to recover the amount of a policy issued by it, where the defendant claims that the policy has been cahceled, and the evidence shows that the defendant sent a telegram to its agent di- recting him to cancel the policy, but the evi- dence as to whether the agent served notice on the insured of the cancellation of the pol- icy and demanded its surrender is conflicting, the question whether there has been an eflfec- tive cancellation is one for the jury. Fire- man's Fund Ins. Co. r. Hellner (Ala ), 17- 793. (2) Notice to insured. Necessity^. — Where a fire insurance agent cancels a policy and insures the property in another company, and the assured ratifies the transaction, the company in which the new insurance is effected cannot, after a loss has occurred, object that the original policy was canceled without due notice to the as- sured. Phosnix Ins. Co. r. State (Ark.), 6- Form of notice. — Notice of the cancel- lation of such policy need not be in writing or in any particular form. It is only neces- sary that the company shall positively, dis- tinctly, and unequivocally indicate to the in- sured its intention that the policy shall cease to be binding as such upon the expiration of five days from the time when its intention 19 made known to fhe insured. Davidson r German Ins. Co. (N. J,), 12-1065. Waiver of notice. — The assured may waive a stipulation in a fire insurance policy that it shall not be canceled except upon the giving of a specified notice to him, as the stipulation is for his benefit. Phwnix Ins Co V. State (Al-k.), 6-440. Power ot agent to cancel turithtout no- tice. — Where a property owner Constitutes tne agent of fire insurance companies as His 938 xiNN".. CAS. DIGEST, VOLS. 1-20. agent to keep the property insured and em- powers him to select the insurer, the agent has power to cancel a policy without notice to the insured and to substitute therefor a policy in another company, as an agent for insurance companies may be the agent of the insured for those purposes. Phtenix Ins. Co. V. State (Ark.), 6-440. (3) Return or tender of premiums. Necessity. — Under the cancellation clause in a standard policy of fire insurance the com- pany is not required to pay or tender the un- earned premiums in order to bring about a cancellation of the policy. Davidson v. Ger- man Ins. Co. (N. J.), 12-1065. The return of the unearned portion of a premium paid on a policy of fire insurance is not a condition precedent to the right of the insurer to insist upon a forfeiture in an action brought against it on the policy, where the policy provides expressedly that an un- earned premium shall be returned on the sur- render of the policy, and no surrender has been made. Weddington v. Piedmont Fire Ins. Co. (N. Car.), 8-497. Where risk never attached. — Where, by reason of the breach of a condition prece- dent, a policy of fire insurance never attached and no risk was assumed thereunder, the in- sured may recover back premiums paid by him, unless he has been guiUy of fraud, or unless the contract is illegal and he is in pari delicto; but the failure of the insurer to offer to return the premiums which were paid voluntarily before the insured was noti- fied that the policy was not in force does not preclude the insurer from setting up the breach of condition as a defense to an action on the policy. Parsons, Rich & Co. v. Lane (Minn.), 7-1 k. Reformation of policy. Reformation after loss for mistake in name of assured. — Where, on oral ap- plication for a policy of insurance to indem- nify the applicant against loss by fire for the period of one year, the proper agent of the in- surer agrees to issue to the applicant a pol- icy of insurance as contracted for, but by mistake of the insurer's agent another's name is inadvertently inserted therein as the in- sured, and the policy is delivered to the ap- plicant by the insurer, who collects the pre- mium, and the applicant retains the policy without discovering the mistake until after sustaining a loss by fire nearly three months thereafter, equity will reform the policy so as to make it accord with the oral agreement between the parties. Niagara Fire Ins. Co. r. Jordan (Ga.), 20-363. 1. Loss and adjustment. ( 1 ) What constitutes loss or damage by fire. Overheating -nrithont ignition. — Un- dei- a policy insuring " against all direct loss and damage by fire," the insured is entitled to "recover for a loss resulting from tlie build- ing of a fire in a furnace in a dwelling house with material of a highly inflammable na- ture, not intended for use in such furnace, whereby intense heat and great volumes of smoke are forced through the register, greatly damaging the furnishings of the house and other personal property of the insured, even though there is no actual ignition outside of the furnace. Such a fire is a " hostile '' fire, as that term is used in the law of in- surance, as distinguished from a furnace fire of ordinary character which causes damage by overheating because not properly attended to or watched. For damage caused by a fire of the latter character, known in insurance law as a " friendly " fire, there can be no recovery under an insurance policy, in the absence of actual ignition. O'Connor v. Queen Ins. Co. (Wis.), 17-1118. (2) Rights of mortgagee upon occurrence of loss. Insured property sold by mortgagor. — The right of a mortgagee to recover on a fire insurance policy taken out by the mort- gagor for his benefit is not affected by the subsequent conveyance of the equity of re- demption by the mortgagor. Union Institute for Savings v. Phoenix Ins. Co. (Mass.), 13- 433. Policy in possession of mortgagor. — A policy of fire insurance procured by the mortgagor and made payable to the mortgagee as his interest may appear, in accordance with a covenant in the mortgage that the mortgagor shall keep the property insured for the benefit of the mortgagee, inures to the benefit of the mortgagee in case of loss by 'fire, although the mortgagor has retained possession of the policy and the mortgagee has not been informed at the time of the fire that the policy has been taken out for his benefit. Union Institute for Savings r. Phoenix Ins. Co. (Mass.), 13-433. Right of mortgagee to make proof of loss. — Under a provision of a fire insurance policy procured by a mortgagor for the bene- fit of the mortgagee, that the insured, who is the mortgagor, shall give tne insured notice of loss and that an arbitration of the loss sliall be held in case the parties fail to agree on the amount, the mortgagee has the right, in case of the failure of the insured to take the action required by the policy, to make the statement of the loss and to ask for an arbitration. Union Institute for Savings v. Phoenix Ins. Co. (Mass.), 13-433. Application of conditions of forfelt- nre. — Where a policy of fire insurance con- tains a clause providing that in the event an interest in the policy in favor of a mortgagee is created with the consent of the insurer " the conditions hereinbefore contained shall apply in the manner expressed in such pro- visions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto," the interest of a mortgagee is free from all conditions for forfeiture contained in the body of the policy, except such as are repeated in substance at JNSURANCE. 939 least, at the time of the creation of the pol- icy by beiag ;u that time again written upon the policy or attached or appended thereto. Welch V. British American Assurance Co. (Cal.), 7-396. Tender of amount of mortgage as defense. — An insurance company sued by a mortgagee on a policy taken out by the mortgagor for the mortagee's benefit cannot avail itself of the fact that several months after the commencement of the action the de- fendant offered to pay the plaintiff the amount of the mortgage without any offer to pay in- terest or the costs of the suit. Union Insti- tute for Savings i-. Phoenix Ins. Co. (Miss.), 13-433. (3) Subrogation of insurer to rights of in- sured against person causing loss. Parties to action. — An action to re- cover for the destruction of insured property by fire as the result of the defendant's negli- gence is properly brought in the name of the assured for the use of the insurer who has paid the loss. The insured need not be joined as a plaintiff. Cusman, etc, Co. v. Boston, etc., R. Co. (Vt.), 18-708. Effect of release from assured. — The right of an insurer who has paid a loss under a fire policy to recover from a person whose negligence caused the fire is not defeated by a release obtained from the assured by such person with knowledge of the payment by the insurer. Cushman, etc., Co. -v. Boston, etc., E. Co. (Vt.), 18-708. (4) Arbitration and appraisement. Qualifications of appraiser. — The mere fact that the person selected by the in- sured as his appraiser has, before his selec- tion, made an estimate of the injury to the property for which he has been paid by the insured, is not alone sufficient to disqualify him to act as appraiser, though this fact may be considered by the jury in determining his competency and disinterestedness. Na- tional Fire Ins. Co. v. O'Bryan (Ark.), 5- 334. It is a question for the jury whether a per- son designated as an appraiser is " competent and disinterested " in accordance with the re- quirements of a fire insurance policy. Na- tional Fire Ins. Co. v. O'Bryan (Ark.), 5-334. Right to sue upon policy irhere ap- praisers cannot agree upon umpire. — Under a fire insurance policy providing that in the event of a disagreement as to the amount of the loss each party shall appoint an appraiser, and the two appraisers shall select an umpire and appraise the loss, and that no action shall be maintained on the policy until such appraisement has been made the insured discharges his obligation in that respect wlien he appoints an appraiser in good faith; and where the two appraisers fail to agree upon an umpire, and the ap- praisement fails without the fault of the in- sured, he is not required to propose the se- lection of other appraiser's, but may maintain an action upon the policy. Jerrills v. Ger- man American Ins. Co. (Kan.), 20-251. (5) Effect of adjustment. Adjustment after assignment of pol- icy. — In a suit upon a fire insurance policy brought by the assignee thereof against the company issuing it, the defendant cannot be held bound by an adjustment of a loss sus- tained under the policy, made after the assign- ment between the insurer and the assignor of the policy, unless in such adjustment the assignor acted as the agent of the assignee. Georgia Co-operative F. Assoc, v. Borchardt (Ga.), 3-472. (6) Notice and proofs of loss, (a) In general. As condition precedent to action on policy. — An action on a fire insurance pol- icy cannot be maintained unless proofs of loss under the policy are furnished within a reasonable time after the fire, or the furnish- ing of such proofs is waived. Harp v. Fire- man's Fund Ins. Co. (Ga.), 14-299. Where a fire insurance policy provides that proofs of loss shall be made within sixty days from the fire unless the time is extended in writing by the insurer, and that no action shall be maintainable on the policy unless the insured has complied with its requirements, the making of proofs of loss within such time is, in the absence of a reasonable excuse for delay, a condition precedent to the right to recover. Davis v. Northwestern Mut. Fire Assoc. (Wash.), 15-333. Under a fire insurance policy procured by a mortgagor for the benefit of the mortgagee, providing that in case of loss a statement in writing shall forthwith be rendered to the company by the insured, meaning the mort- gagor, and that an arbitration shall be had in ease the parties fail to agree as to the amount of the loss, and that the insurer shall have the option of rebuilding the property, the making of the statement required is a condition precedent to the right to recover on the policy, and the fact that no such state- ment is made either by the insured or by the mortgagee defeats any right of action on the policy by the mortgagee, notwithstanding a provision in the policy that no act or default of any person other than the mortgagee or bis agents, or those claiming under him, shall afl'ect such mortgagee's right to recover in case of loss. Union Institute for Savings v. Phoenix Ins. Co. (Mass.), 13-433. Effect of failure to furnish on time.— Where a fire insurance policy stipulates that proof of loss must be furnished by the in- sured within sixty days after the fire, but contains no express provision that the policy shall be void or forfeited upon failure to furnish proofs as required, and the policy expressly declares that the happening of cer- tain other contingencies shall void it and f"''t|'er provides that the loss thereunder shall not be payable until sixty days after such proofs are furnished, and that no suit 940 AXX. CAS. DIOEST, VOl.S. 1- l>0. on the paliqy shall be sustainable until after fiifl compliance by the insured Mitii all its requirements, or unless commenced within twelve months after the fire, the failure of the insured to furnish proofs of loss within Bijety days from the fir« will not woTk a for- feiture of the policy, but fa:ilure to fuTniSh such proofs at least sixty days before the expiration of twelve months from the fire, unless there be a waiver of such proofs, \vill prevent the inaintenance of a suit on such policy. Harp v. Fireman's Fund Ins. Co. (Ga.), 14-299. Eff«A!t of ^iliiT« to complete before suit. '-^ Under the Insurance Act of Ontario an action on a fire insurance policy cannot be defended on the ground that the proofs of loss weTe defective ani adjitii^ter to waive. *- In an action by the ihsiired on a policy of Are in- BuranCBj where it ajppears that a condition in the policy 'rtiquiribg the presentation of jproof^ of loss within '^ specified time was waived by a general agent \Vho was sent out by the in- surer for the ptofibse of representing it ifl the adjilBtdient 6f th'e loss, and that the con- duct of saeh Ji^Bl Ms well calculated to lull the inisMl-ed ihtb » false sense kA Security, the lESUEAiNCE. 1)41 insurer is bound by tlie waiver and is estop- ped to set up a coudition in th& policy pro- viding ■' that no officer, agent, or other repre- sentative " shall luxve power to waive any provision or condition of the policy. Bern- hard r. Koehester German Ins. Co. (Conn.), 8-298. In an action by the insured! on a policy of fire insurance, the plaintiff may sho^w that a condition in the policy was waived- by the defendant's general agent and that the de- fendant is bound by such waiver, notwith- standing tlie fact that the plaintiff pleads in teruw a waiver and not an estopped on the part of the in-surer, as an estoppel in pais need not be pleaded. Bernhard i". E,och.ester Gorman Ins. Co. (Conn.), 8-298. When not inferired. — A waiiver of a provision of a fire ilisurance policy requiring notice of loss is not to be inferred where there is no word or act on the part of the in- surance company or any of its agents show- ing any other attitude of the company as to claim on the policy except that of standing upon all of its legal rights. Union Institute for Savings r. Phoenix Ins. Co. (Mass.), 13- 433. Snffieiency of evidence to shonr. — Evidence reviewed, in an action by the in- sured on a fire insurance policy, and held suffieient to justify the trial court in finding that a general agent of- the defendant waived a condition in the policy requiring proofs of loss to be furnished within a specified time. Bernhard v. Rochester German Ins. Co. ( Conn. ) , 8-298. Neiy trial to prove. — An appellate court ^Yhich reverses a judgment for the insured in ii fire insuran-ce poKcy on the ground that proofs of loss were not filed within the time prescribed in the poKey will not grant the re- quest of the insured for a new trial to enable him to amend his complaint by alleging a -waiver by the insurer, -«-here it appears that notwithstanding the express reliance in the trial court by the insurer on the failure to comply with the terms of the policy, the in- sured failed to offer any evidence of waiver, and that the evidence introduced by the in- surer indicated that it stood upon its strict rights raider the policy. Davis r. North- \Yes,tern Mut. Fire Assoe. (Wash.), 15-333. m. Actioa on policy. (1) Nature of action. Whether on policy or adjustment. — Ah' action construed and lield to be upon in- sumnye policies and not upon a written ad- ju.-jtnieiit of the loss and a promise in writing by tlie Insurer to pay the amount shown by the adjustment. Geor.ge Co-operative F. As- soc. V. Bprchardt (Ga.), 3-4^2. (2) Time tn sue. Six months limitation in policy. — The prevision in a po-licy of fire insurance that *^])ii,ding vevf tain, defenses in actixprea«ed, in ypli«fy.— .Wher^ such, a contract as that abov^ cpnsidiered is the sole inducement for taking out the pali,cy, the fact that its terws, are not set forth v,\ the policy presents a further obstacle to its fn^preement, siuce the statute resquiresi all tb^ terms o| tlie contract between tbe insured awiJ tl^e company to be plainly e?tpressed in the policy. Smathers v. Banlcers Jjife Ins. Co. (N. Car.), 18-756. :P9^tie« in 5«pi d,«U«tff. — The enforqe- ment of a contract such as that above consid- ered cannot be permitted on the theory that the statute forbidding discrimination was en- acted for the benefit of policyholders, and should not hi applied to their detriment. The benefit sought to be secured by the statute is the benefit of the polieyholders in general, and not the benefit of an individual poliey- holder who has entered into an agreement of the forbidden class and is seeking- to profit by its terms. Such a pplicyhpldier is in pari d/eMcto with the insurance company as re- gards the violation of the statute. Smathers V. Bankers Life Ins. Co. (N. Oar.), l»-756. Actions on lllegali contract. — The rule which permits a party to an illegal contract who has repudiated the same while the il- legal portion was entirely executory, to re- cover what he has advanced thereon, has no application to an action brought by a poMoy^ holder to enforce such a contract as that above considered, after he has surrendered his policy and received th« full surrender value of the same from the company. In such a case there is no repudiation of the illegal contrflict by the policyholder, or any wrongflil withholding of his money by the inswrance company. Smathers v. Baukers Life Ins. Co. (N. Car.)-, l»-756. Validity! of poUcy taken ont to as- sign to person having no insurable iur terest. — J'oBeJes of life insurance pivable to the insured's estate and tak«» out by hi« for the sole purpose of assigning tliieni to a mSUEANCE. 945 third person having no insurable interest in the life of the insured but who agrees in con- sideration of the assignment to pay the in- sured a certain sum in cash and to pay the premiums on the policies, are void, and no action can be maintained on them by the ad- ministrator of the insured. Bromley v. Washington Life Ins. Co. (Ky.), 12-685. c. Nature of contract. As oontlnuins con^vaot or fv, 19^58. d. Parties. ( 1 y Persons having insurable interest. Uncle of insured. — An uncle of one whose life is insured has no insurable in- terest in the life of the insured by reason of kinship. Metropolitan Life Ins. Co. v. Eli- son (Kan.), 7-909, Effect of cei^satian of interest. ^ A valid policy of insurance on the life of tl>e husband in favor of the wife is not rendered invalid by the subsequent cessation o{ in- surable interest resulting from the procure- ment of a divorce by the wife, in the absence of a provision in the policy respecting cessa- tion of insurs^ble interest. Blum v.. J^ew York Life Ins. Co. (Mo.), 7-1021, A divorced wife is not preclTjded from re- covering under a certificate' of a fraternal in- surance company in which she is named as the beneficiary. White t". BrotJtierhood of American Yeoinen (la.),, 2-350. (2) Right(S of beiieflciairies. When interest of beneficiary at~ taebes. — The interest of the beneficiary in a policy of old-line life insurance becomes a vested right immediately upon the issuance of the policy. Blum v. New York Life Ins. Co. (Mo.), 7-l'e21. SiiEerence between rigbts of bene- ficiary in mutnal benefit association and old line policy. — There is a difler- pnce between a certificate of membership in a mutual benefit association and an ordinary life insurance policy in reference to the vested interests of beneficiaries thereunder. Perry p. Tweedy (Ga.), 11-46. Rigbt to terminate policy irltbont consent of beneficiary. — The interest of one named as the beneficiary in a life insur- ance policy is a vested interest and the con- tract cannot be terminated by the insured or insurer without the consent of the beneficiary Vols. 1-20 — Ann. Cas. Digest. — CO. oxeept in the manner provided in Uie policy or by law. Washington h. Ins. Co. t;. Ber- wald (Tex.>, 1-682. Bight to change beneficiary. — In or- dinary life insurance, where no power of divestiture or to change the beneficiary is reserved in the policy, the issuance oi the policy confers a vested right upon the per.son so named as, beneficiary, and the insureldf eanr not transfer such interest to any other per- son without the consent of such beneficiary. Perry v. Tweedy (Ga.>, 11-46. Where a policy of life insurance la ex- pressed to be for the benefit of the wife of the insured, if living, and if not living for the benefit of his children, the interest of the children, though oonting«nt upon the death of the wife prior to the death of the insured, is so substantial that they cannot he deprived thereof by a subsequent change of the bene- fieiary. Bhira r. New York Life Ins. Co. (Mo.>, 7-1021. The Missouri statute providing that a hus- band whose life is insured fbr the benefit of his wife may, upon her death or divorcement before bis decease, designate another benefi- ciary, applies only to a policy in which the wif^ is the sole beneficiary. Blum v. New York Life Ins. Co. (Mo.), 7-1021. Where a wife has acquired a vested right as the benefieiaiy in a policy of (nsuranee on her husband's life, her interest oannot be affected or impaired by a subsequent statute providing that " i« the. event o>S the death or divorcement of the wife before the decease of her husband, he shall have the right to desig- nate ^ftotije]; Ipenefijciary." Btow V. Hew York Life tns, Co. (Mo,), 7-1021. Bi^ht oi; bcine^iary to. prvce^ds as against creditors ot. insured.. — IheMass- chusetts statute (St, 1,90.7, c. 576, J 7a) pro- viding that the beueHeiary in, a. policy oi life insurance shall be entitled to the proceeds of the pplicy as ag»inst the ?reditois and representfl,tiYes, oit the insured, and that the benefiioiary may sue P» nd has no opera- tion tQ increase or extend those rights. Blinji I). D^me (Mass.)., 20-1184. Sligh,t to proccedis of p«li,cy where i^n^ sured, anryives honkeficiary. — The New York statute authprizing a wife to take out a policy of iifsurance on the life qf her hus- band, and providing that the proceeds o{ the policy shall be payabJe to her for her own use, free fro,m the claims, of tlie representa- tives, of her husband, or of any of hisi cred- itojs„ does not apply to a, policy taken out by tile husband for the benefit of his wife; and the;-efore wfeere a hnsband takes, aut » policy payable to his wife " for h.«r sole use, if living,, in cottformity with the stia,tute) and if not living, to theie children," the inteicest of the wife in the proceeds is contingent ujmmh her survivorship of hfx hnetbandj. and if both the hu^hand aiad wife die ■wL1(h,(iut. having had any issue,, j^nd tbei wife predieceasfis the husband, his, estate, and not h, 12-685. Recovery for deatb by suicide con- trary to constitution of order under incontestable clause. — Where a certificate of merabership in a fraternal oiJer provides that it shall be incontestable after two years INSUEANCE. 949 from the date, the beneficiary is entitled to the insurance upon the death of the insured by his own hand, although the constitution of the order provides that benefits Will not be paid in cases of suicide. Supreme Court of Honor r. Updegraff (Kan.), 1-309. (3) Paid-up insurance. Snrrender of j^olic'y as condition pre- cedent to right to paid-up insurance. — The provision in a policy of life insurance that the policy must be surrendered within six months is not a condition precedent to the right to the paid-up insurance, and the time of the surrender therein named is not of an essence of the contract. Lenon v. Mu- tual Life Ins. Co. (Ark.), 10-467. Lapse of time barring rigbt. — A pol- icy holder's right to a paid-up policy of life insurance . is barred if the demand therefor is not maxJe within five years after the lapse of the original policy ; but where the demand is made within that time^ the rights are fixed. Lenon v. Mutual Life Ins. Co. (Ark.), 10-467. Recovery of paid-up insurance after death -of insured ivhere paid-iip policy not issued. — Where a policy of life insur- ance gives the right to paid-up insurance, an action for the paid-up insurance may be malnlsained oft the death Of the insured, thotigh no paid-up policy bias been issued. Lenon v. Mutual Life Ins. Co. (Ark.), 10- 467. (4) Cause of death. 'Violation of criminal lavr, — Where an insured begins a personal difficulty by an assault with a weapon capable of inflicting great "bodily harm or death, and is killed afterwards while retreating from the difii- ciiity in good faith and not for the purpose of gaining a vantage ground to renew it, his death is not a proximate result of his orig- inal act, and consequently is not within a clause of the -policy of insurance limiting the liability of the insurer in case the insured ^eets his death in consequence of his viola- tion Or attempted violation of any criminal law. Supreme Lodge v. Bradley (Ark.), 3- 87.2,. Where a policy of life insurance contains a slif»ltlktion excepting liability on the policy " if death is caused or superinduced at the hands, of justice, or in. violation of or attempt to vibiate any criminal law," and the insured is slain ty a husband, either while attempt- ing to have sexual intercourse Avith the wife, or imftiediately after the completion of the act, the deatli of the insured is not caused or superinduced in the violation of, or the at- teinpt to violate, any criminal law, within the meaniiig of the policy as properly inter- preted. Supreme Lodge v. Crenshaw (Ga.), 12-307. Even though the killing by the husband of the paramour of the wife is done under such circufnstaTices that the law would class the a6t as justifiable hoihicide, such killing is not " at the hands 6f justice," either punitive or preventive, within the meftning of a clause in a life insurance policy excepting deaths " caused or superinduced at the hiinds of jus- tice," etc. Death by the punitive hand of justice i& *hen the law comulands the kill- ing. Death by the hands of preventive jus- tice is where the law permits the killing. In each instance the killiiip' must be by some person authorized to carrj' out the commands of the law, or who is permitted h\ tlie la\',- to do the act ih tlie adviureement of public justice. Suprenie Lodge v. Crenshaw (Ga.), 12-307. Suicide. — A provision that a policy of life insilrance sliaH be void if the insured shall die by his own hand " whether sane or insane " covers every Case of suicide irre- spective of the state of mind of thfe insbred-. Moore r. Northwestern Mutual Life Ins. C6. (Mass.), 7-656. (5) Limitation of time to sue. Vtllidit^ of limitation. — The provision in a policy of life insurance that no siiit shall be maintaiiied Oh the poli'cy unless be- gTln within 6ne year from the death of thte insUi-ed, which period is much less than the time pl'e&cribed by the statute of limitattohs, is void as against public policy. Union Cen- tral Life Ins. Co. v. Spinks (Ky.), 7-913. Whcii time of limitatittn begiA^ t6 run. — Where a policy of life insurance pro- vides that no suit shall be brought thereon " unless said suit is commenced within two years frotti the time When the right of acliOri accrues," the right of action accrues and the period of limitation begiiis to run when the sum specified in the Contract becomes pay- able according to its terlVis, and not when an admmisti-ator is appointed for the estate of the insured; and this is so though the policy, being payable by its tel-ms to the insui-ed, can Only be sued on by his administratol'. Wilkinson v. J6hn HAnfidck Miltual Life Ins. Co. (R. L), 8-1063. g. tlah'eeliaiiori and forfeiture. Forfeiture for nonpayment of pre- miums in absence <6t provibioft in pol- icy. — A life insurance policy, when once it takes effect by payment of tlie first v^ar's premium and delivery of the policy, does not terminate at the end of the vear. but it is a contract for the life of the assured. If the policy contains no provision for a forfeiture thereof by reason of a failure of the assured to pay subsequent premiums annually, a fail- ure to pay such premiums on the day named will not constitute a forfeiture of such pol- icy. All that the company can demand in such case is the right to set off against the amount of indemnity it has bound itself to pay the amount of the premiums remaining unpaid, with interest thereon. Haas v. Mo^ tual Life Ins. Co. (Neb.), 19-58. Forfeiture for ndhpa^ment of pre- mium when insurer indebted to in- ?"i®.^- ~ ^ ljf« insurance policy cannot be forfeited for the nonpayment of a premium 950 ANN. CAS. DIGEST, VOLS. 1-20. or assessment where the company has in its possession dividends declared under the pol- icy sufficient to pay the same, which it has the right to apply to such payment; but the mere fact that the company is indebted to the insured in a certain amount at the time of his default in the payment of a premium or assessment does not prevent a forfeiture for nonpayment, unless the company has the right, and is under some obligation, to apply the amount in question to the payment of the premium or assessment. Caywood r. Supreme Lodge (Ind.), 17-503. Return of policy to insurer -nritliont consent of insured and beneficiary. — An insurance policy cannot be returned to the company without the consent of the as- sured and of the beneficiary. Lawrence v. Penn Mut. L. Ins. Co. (La.), 1-965. h. Assignment of policy. Validity of assignment to person baT- ing no insurable interest, — One has the right to procure insurance on his own life and assign the policy to another, who has no insurable interest in the life insured, pro- vided it be not done by way of cover for a wager policy. Bvlander v. Allen (Ga.), 5- 355. An agreement by which one-half of the in- surance provided for in a life insurance pol- icy is assigned and transferred by the insured and the beneficiary to one having no insur- able interest in the life of the insured, upon consideration that the assignee shall pay the premiums as they accrue, and that the bene- ficiary shall receive part of the insurance, contravenes public policy, and neither the assignee nor the beneficiary can recover upon the policy. Metropolitan Life Ins. Co. v. Eli- son (Kan.), 7-909. It is against public policy and contrary to law to permit any person to obtain an insur- ance upon the liie of another human being, by an assignment or otherwise, where such person has no insurable interest in the life of the insured. Metropolitan Life Ins. Co. v. Elison (Kan.), 7-909. i. Recovery of money paid on policy. Right of insurer to recover money paid on presumption of death from ab- sence Trhere insured returns. — An ad- ministration, by virtue of statute, upon the estate of a person presumed to be dead by seven years' absence, establishes a right of action by the administrator on life insur- ance policies held by the absentee, and the payment of the insurance money to the ad- ministrator to avoid suit on the policies is conclusive on the insurer, and the money cannot be recovered by the insurer after it appears that the insured is in fact alive. New York Life Ins. Co. v. Chittenden (la.), 13-408. j. Actions. (1) In general. Right of action for refusal to de- liver policy. — Where a life insurance com- pany retains a policy of insurance that it has agreed to deliver, wholly repudiates it, and absolutely refuses to receive any pre- mium thereon, the insured may maintain an action for damages for breach of contract. Michaelsen tv. Security Mutual Life Ins. Co. (U. S.), 12-37. (2) Defenses. £.egal execution of insured. — The legal execution of the insured for a crime com- mitted by him is no defense to an action by his personal representative on a life insur- ance policy held by him, in the absence of a stipulation in the policy exempting the in- surance company from liability for death from such a cause. Collins v. Metropolitan Life Ins. Co. (111.), 13-129. Right of foreign corporation to ques- tion validity of statute. — A foreign in- surance company cannot question the valid- ity of a statute providing that misrepresen- tations in an application for a life insurance policy shall be unavailable as a defense un- less a copy of such application is delivered ■with the policy to the insured. Metropoli- tan Life Ins. Co. v. Hawkins (D. C), 14- 1092. (3) Pleading. Excuse for nonpayment of premlnma. — In an action on a life insurance policy, where the complaint shows that the insured, prior to his death, was in default in pay- ment of an assessment of the policy, a fur- ther allegation that the insurance company, at the time of such default, owed the in- sured a certain amount for services rendered, which sum it had the right to apply and should have applied on the unpaid assess- ment, but which it failed and refused to ap- ply thereon, is sufiicient to avoid the ad- mitted default in payment of the assessment, being a mere statement of the pleader's con- clusions as to the right and duty of the com- pany. In order to avoid such a default, the facts from which the right and duty of the company arise must be clearly and positively alleged. Caywood v. Supreme Lodge (Ind.), 17-503. Ansiver alleging breach of varranty. — In an action on a policy of life insurance, an answer which seeks to defeat a recovery on the policy because of a breach of war- ranty by the insured must not only set up the warranty and the breach but must also allege an election by the insurer to avoid the policy because of the breach, and the re- turn of. or an offer to return, the premiums, especially where the warranty is in regard to a fact immaterial to the risk. Modem Woodmen of America r. Vincent (Ind.), 14- 89. (4) Evidence. (a) Presumptions and burden of proof. Good health of insured at time of is- suance. — In an action brought by the bene- ficiary in a life insurance policy to recover the amount of the policy, the burden is upon INSURANCE. 951 the plaintiff to prove that the first premium was paid and the policy delivered while the insured was in good health, where the con- tract between the insured and the insurance company, consisting of the policy and appli- cation taken together, made it a condition precedent to the policy's taking effect that the insured should be in good health at that time. Lee v. Prudential Life Ins. Co. (Mass.), 17-236. Falsity of -warranties. — In an action on a life insurance policy, where the defend- ant pleads that the insured made false war- ranties in his application for insurance, the burden of proving that fact is upon the de- fendant. Schofield V. Metropolitan Life Ins. Co. (Vt.), 8-1152. Falsity of representations made for revival of policy. — In order to defeat a recovery upon a policy which has been re- vived upon a representation by the assured that he was in good health and that there was nothing in his habits or condition which was likely to impair his health or shorten his life, the insurer must prove that the representations are untrue, and were made by the insured knowingly with the fraudu- lent intent to mislead and deceive, that they were material to the risk, and were relied upon by the insurer, ^tna Life Ins. Co. v. Rehlaender (Neb.), 4-251. Defense of suicide. — In an action against a life insurance company to recover the amount of a policy issued by it on the life of a person since deceased, the burden of proving the defense of suicide by the insured is upon the defendant. Metropolitan Life Ins. Co. V. Be Vault (Va.), 17-27. (b) Admissibility. Proofs of death. — In an action to re- cover the amount of a life insurance policy or benefit certificate, the proofs of death filed with the company or society are admis- sible in evidence in its behalf, as admissions on the part of the beneficiary, and suffice to make out a prima facie case as to the truth of the facts stated therein, as against the beneficiary. Beard v. Royal Neighbors (Ore.), 17-1199. Continuance of disease after policy issued. — In an action on a benefit certifi- cate, where there is evidence tending to show that the insured was diseased before the policy was issued, evidence of the continu- ance of the disease after the issuance of the policy and until the death of the insured is competent for the purpose of testing the truth of the statements made in the applica- tion for the insurance. Nophsker r. Supreme Council (Pa.), 7-646. Declarations of insured as to disease. — In an action on a benefit certificate it is competent, for the purpose of contradicting a statement made to the examining physician by the insured at the time of his application for insurance that he had never had a certain disease, to introduce in evidence declarations, made to third persons by the insured at times prior to and not remote from that of his examination, that he was suffering from such disease. Nophsker v. Supreme Council (Pa.), 7-G46. Mailing of letter in Colorado to show insured had tuberculosis. — In an action on a policy of insurance on the life of a per- son who has died of consumption, where the defendant pleads that the insured had con- sumption at the time he took out the policy, it is not erroneous to exclude evidence of the fact that during a certain winter the brother of the insured received a single letter from the insured which had been mailed in Colo- rado, as that fact has no tendency to prove that the insured had consumption or that he resided in Colorado. Schofield i\ Metropoli- tan Life Ins. Co. (Vt.), 8-1152. Motives. — In an action for damages for the cancellation of a life insurance policy upon which the holder voluntarily ceased payment, he cannot testify as to his motive in abandoning the policy, or as to whether he subsequently took out other insurance in lieu of that abandoned. Green v. Hartford Life Ins. Co. (N. Car.), 4-360. (c) Sufiiciency. Falsity of irarranties. — Evidence re- viewed, in an action on a life insurance pol- icy, and held to justify a trial court in re- fusing to direct a verdict for the defendant sought on the ground that the insured made false warranties in his application for insur- ance. Schofield V. Metropolitan Life Ins. Co. (Vt.), 8-1152. Good health of insured irhen policy issued. — In an action brought by the bene- ficiary in a life insurance policy to recover the amount of the policy, where the burden is upon the plaintiff to prove that the first premium was paid and the policy delivered while the insured was in good health, where the evidence on behalf of the plaintiff shows that the insurance company examined the insured, with a view to ascertaining the con- dition of his health before the policy was written; that the policy was delivered by an agent of the defendant, who, to a certain ex- tent, was charged with the duty of ascertain- ing whether it ought to be delivered and whether the company ought to receive the payment of the premium upon it; and that such agent, on the day of the payment of the premium, did ask the daughter of the in- sured how her father was, it is error for the trial court to direct a verdict in favor of the defendant. Such evidence, although weak .'hould be submitted to the jury, and it should be left for them to determine whether the insured was in good health at the time when the first premium was paid. Lee v Prudential Life Ins. Co. (Mass.), 17-236 Falsity of representation as to use of liquor. — In an action on a policy of life insiirance, evidence examined and held in- sufficient to support the defense that certain representations made by the insured at the time when he applied for the policy in suit to the effect that he had neveV us^ btoxi: eating liquors to excess, were false, and that 952 ANN. CAS. DIGEST^ VOLS. 1-20. the policy was invalidated thereby. Metro- politan Life ins. Co. i;. De Vault (Va.), 17- 27. Falsity of representation made for revival of policy. — Where an insurance company treats a statement of the assured as to health made to obtain a revival of the policy as a representation, pleads its falsity, alleges that the stabement was knowingly and intentionally made in order to deceive and cause the company to revive the policy, and the cause is tried and the jury properly instructed on that issue, a verdict against the company will not be set aside if there is competent evidence to sustain it. ^tna Life Ills. Co. ('. Rehlaender (Neb.), 4-251. Defense of suicide. "■ In an action on a policy of life insurance, the defense of sui- cide by the insured cannot avail unless the evidence excludes every hypothesis of acci- dental death, and, consequently, in a case where the testimony is as consistent with death by accident as with death b^ suicide, a. verdict in favor of the plaintiff will Tiot be disturbed on appeal. Metropolitan Life Ins. Co. V. De Vault (Va.), 17-27. 8. Accident Insueance. a. Accidents insured against. (1) Exterhal, vidleht, and accidental means. Blood poisoning from v^onnd. -^. An accident insurance policy insuring against death by external violence and accidental means covers a death resulting from the accidental wounding of a finger of the in- sured, by means of which blood poisoning intervenes, as the wound is the proximate cause of death, and blood poisoning is merely incidental to the wound. Central Accident Ins. Co. V. Rembe (lU.), 5-155. In an action on a policy insuring " against the effect of bodily injury caused solely by external, violent, and accidental means " and prpviding that the insurer shall be liable only for disability or death resulting " proxi- mately and solely from accidental causes," evidence that the insured sustained an acci- dental fall, which caused an abrasion of the skin of the leg, with the result that blood poisoning set in and death ensued, is suffici- ent to justify the jury in finding that the death of the insured resulted " proximately and solely from bodily injuiy caused solely by external, violent, and accidental means." Gary v. Preferred Accident Ins. Co. (Wis.)j 7-484. Where a person intentionally strikes an- other in the mouth during a qiiarrel, with the result that the skin of his hand is broken, blood poisoning sets in, and death ensues, the death is not within a policy in- suring against death resulting directly " from budily injuries sustained through external, violent, and accidental means," as the injury from which the blood poisoning results is not due to .the aticident. Fidelity, etc., Co. r. Carroll (U. S.), 6-955. Iioss oi business time liy disease. — A policy insuring " against loss of business time resulting from Bodily injuries effected through external) violent, and accidental means " is an insurance against loss of busi- ness time by, disease, provided the disability is proxiraately caused by a bodily injury effected through external) violent, and acci- dental means. jEtna Life Ins. Co. v. Fitz- gerald (Ind.), 6-551. Disease froni sleeping on hand. — Dis- ease resulting from a person's sleeping on the hand held to be an accidental and . violent injury within the meaning of an accident in- surance policy. iEtha Life Ins. Co. v. Fitz- gerald (Ind.), 6-551. Intentional physical eicertion. — Under a policy of insurance providing for the pay- ment of a certain sum upon the death of the assured from " bodily injury caused by violent, accidental, and external and visible means," there can be no recovery where the death of the insured results from a violent physical exertion which was intended and therefore not accidental. In re Scarr 12-181. In an action for slich ati injury it is error to refuse an instruction that the |)laintiff has received no " wound " within the Uieaning of that provision yjf the fMjlJcy, and t6 give an INSUEAKCE. i>5a instruction that " any lesion of the body re- sulting from external violence, whether ac- companied or not by rupture of the skin or mucous membrane " is a wound. Fidelity, etc., Co. V. Thompson (U. S.), 12-181. (3) Total disability. What sufficient to constitute. — In an action on an accident insurance policy, a finding by the jui;y that the insured was wholly and continuously disabled from at- tending to every kind of business, held not to be sustained by the evidence. Order of United Commercial Travelers D. Barnes (Kan.), 7-809. Sleaning of urord " immediate." — As used in a policy insuring against aceidenial injury which shall immediately disable the insured and prevent him from the prosecu- tion of ajiy and every kind of business per- taining to his occupation, the word " im- mediately " is not synonomoms with " in- stantly," " at once," and " without delay," but the disability is immediate, within the meaning of the contract, when it follows di- rectly from an accidental hurt, within such time as the processes of nature consume in bringing the insured to a state of total in- capacity to prosecute every kind of business pertaining to his occupation. Order of United Commercial Travelers v. Barnes (Kan.), 7-809. (4) Sunstroke. Meaning or xroxd. — The veord " sun- stroke." when used in an insurance policy in describing one of the risks covered, should not be interpreted as applying only to the effect produced by the heat of the sun, un- less the context or other special considera- tions require it. The term unexplained de- notes, a condition produced by any beat, so- lar, or artificial. Continental Casualty Co. V. Johnson (Kan^), 10-851. X!xposnre to heat of furnace. — In an action upon an accident insurance policy con- taining a provision that loss of time due to sunstroke shall be deemed to be due to ex- ternal, violent, amd purely accidental causes and shall entitle the insured to full benefits according to the terms of the policy, where the plaintiff's claim is based upon the loss whicli he aHeges was due to sunstroke, he is not precluded from recovery by the fact that his disability was occasioned by exposure to the heat of a fui'nace instead of the sun. Continental Casualty Co. v. Johnson (Kan.), 10-851. (5> Death by accident. Meaning of term " killed." — A person is " killed " by an accident at the time his death occurs and not at the time^of the ac- cident, within the meaning of the constitu- tion of an accident insurance society which pr«*vides that if a member is injured wliile in default in the payment of his dues,, " the delinquent meoAeu shallj ueqeive no indemnity therefor, nor shall his beneficiaries receive anything should he be killed during such period of delinquency." Roth v. Traveller's Protective Assoc. (Tex.), 2fl-97. b. Accidents excepted. (1) Voluntary exposure to unnecessary danger. Meaning of term. — The term " volun- tary exposure to unnecessary danger," ajS used in an accident policy exempting an in- surer from liabilities caused by such expos- ure, means the conscious or intentional ex- posure to obvious danger, with the realiza- tion that an injury will probably result therefrom, involving gross or wanton neg- ligence on the part of the insiired. Hunt V- United States Accident Assoc. (Mich.), 10- 449. Evidence. — Evidence in an action on an accident policy examined and held suflBcieut to require the submission to the jury of the question whether the death of the insured resulted " from voluntary exposure to un- necessary danger or obvious risk of injury." Bakalars v. Continental Casualty Co. (Wis.), 18-1123. (2) Injuries from poison. Eating spoiled oysters. — Eating spoiled oysters, though an accidental means of death, is within the terms of an excepting clause in an accident insurance policy pro- viding that insurance is not payable for in- juries resulting from poison or anything ac- cidentally taken or administered. Maryland Casualty Co. v. Hudgins (Tex.), 1-252. Contact urlth poison ivy. — Under a policy of insurance against the effects of bodily injury caused solely by external, vio- lent, and accidental means, but excepting from the provisions of the policy injuries re- sulting from poisoning, no recovery can be had for an injury resulting from inflamma- tion of the ej'es in consequence of accidentally coming in " contact with poison ivy. Pre- ferred Accident Ins. Co. v. Robinson (Fla.), 3-931. Blood poisoning. — A clause in an ac- cident insurance policy exempting the in- surer from liability for death resulting from the "taking of poison or contact with poisonous substance" does not extend to a case where the insured, a physician, acci- dentally outs his finger with a bottle while attending a syphilitic patient, with the re- sult that poisonous germs enter the wound and cause blood poisoning, resulting in death. Central Accident Ins. Co. r. Rembe (111.) 5-155. Death from blood poisoning resulting from an accidental fall is not within the provision ^i an accident insurance policy exemptins the insurer from liability for any injurv resulting f^om any poison or infection, or from anything accidentally or otherwise takeii, administered, absorbed, or inhaled" where tUe acoidental fall is the proximate cause of the death. Gary v. Preferred A«.i dent Ins. Co. (Wis.), 7-484. *^'*'^'^''* ^'^'^ 954 ANN. CAS. DIGEST, VOLS. 1-20. (3) Injuries caused by disease. Disease as partial cause. — Under an accident insurance policy providing that the insurer shall be liable for injuries or death caused solely by accidental means, but ex- pressly exempting it from liability for death resulting wholly or in part, directly or in- directly, from any bodily disease or infirm- ity of the insured, the insurer is not liable for a death caused partly by accidental in- jury and partly by diabetes. \Yhite v. Standard Life, etc., Ins. Co. (Minn.), 5-83. Death from blood poisoning. — Death from blood poisoning resulting from an acci- dental fall is not within the provision of an accident insurance policy exempting the in- surer from liability for death " resulting either directly or indirectly, wholly or in part, from . . . bodily infirmity or disease of any kind." Gary v. Preferred Accident Ins. Co. (Wis.), 7-484. Injury caused by bodily infirmity or disease. — Disability only, and not death, as the result of a bodily infirmity or disease, is contemplated by a rule of an accident in- surance society that it shall not be liable in case of injury, disability, or death happen- ing to the member while intoxicated or in consequence of his having been under the in- fluence of any narcotic or intoxicant, or dis- ability when caused, wholly or in part, by any bodily or mental infirmity or disease. Roth V. Travelers' Protective Assoc, (Tex.), 20-97. (4) Injuries received while on roadbed of railroad. Walking betT^een double tracks. — ^The provision in an accident policy that the lia- bility of the company shall not exceed a cer- tain limited amount for injuries received by the assured while on the roadbed of any railroad company except crossing the same at a public highway, is applicable where it appears that the insured, at the time of his accident, was walking between double rail- road tracks ten feet apart which allowed only four feet of space to be occupied by a man's body between passing trains. McClure i". Great Western Accident Assoc. (la.), 12-41. (5) Injuries while under influence of in- toxicants. Construction of clause, — A condition in an accident policy excepting injuries sus- tained while the insured is " under the in- fluence of any intoxicant" means not every and any influence however slight, but such degree of influence as will materially impair the ability of the insured to care for him.self and guard against casualties, such phrase being the equivalent of " intoxicated " or " drunk " in the ordinary meaning of those ■H^ords. Bakalars v. Continental Casualty Co. (Wis.), 18-1123. A provision in an accident insurance policy limiting the amount of the insurer's lia- bility on the policy in case of an injury oc- curring to the insured " while under the in- fluence of any intoxicant or narcotic," is a reasonable stipulation intended to require the insured so to limit his use of intoxicants that he will retain full control over his faculties of mind and body, and a recovery for the full amount of the policy is not authorized by a finding that the insured, at the time of the accident, was not under the influence of liquor so as to prevent him from being " fairly able to take care of himself." Furry V. General Accident Ins. Co. (Vt.), 13-515. Question for jury. — In an action on an accident insurance policy, the question whether the insured was intoxicated at the time of the injury is properly submitted to the- jury, where the evidence is conflicting as to any considerable use of intoxicating liquor by the insured or its eifect on him. Bakalars V. Continental Casualty Co. (Wis.), 18-1123. (c) Notice and proof of injury. Necessity of notice. — Under an acci- dent insurance policy indemnifying " against loss . . . caused by bodily injury effected exclusively by external, violent, and acci- dental means, provided written notice of the injury, whether fatal or nonfatal, together with the fullest information obtainable at the time, be given by the insured or the bene- ficiary to the home office of the company witliin ten days of the event causing such injury," the provision as to notice is a con- dition precedent to the creation of liability on the policy; and no recovery can be had on the policy where, after the happening of an accident resulting in an injury, the in- sured, not considering the injury of any con- sequence, or knowing for more than ten days thereafter that he is injured, fails to give notice of the accident, and thereafter is con- fined to his bed and dies, although the bene- ficiary of the insured gives notice within ten days of the time when the injury manifests itself by the sickness of the insured. Hatch »;. United States Casualty Co. (Mass.), 14- 290. An accident insurance policy is not for- feited by a failure of the beneficiary to give notice of the death of the insured as required by a clause in the policy providing that " im- mediate notice in writing of any accident and injury on account of which claim is to be made shall be given the secretary of said company," where the clause contains no sug- gestion of forfeiture for failure to give the notice, and there is no general clause to the effect that a failure to comply with the terms and conditions of the policy shall work a forfeiture, though there is another clause of the policy providing that a failure to furnish proofs of death within a specified time works a forfeiture of the policy. Preferred .Occi- dent Ins. Co. r. Fielding (Colo.), 9-916. The failure of the beneficiary under a pol- icy of accident insurance to comply with its terms with respect to the notice of the death of the insured will not work a forfeiture of the policy, unless the policy in express terms, or by necessary implication, provides for*for- feiture in such ease. Preferred Accident Ins. Co. r. Fielding (Colo.), 9-916. INSURANCE. 955 Meaning of Immediate notice. — Un- der the Indiana statutes concerning foreign insurance companies a provision in a policy of accident insurance issued by a foreign in- surance company that immediate notice of injury shall be given to the company amounts to a requirement of notice within a reason- able time. .Sltna Life Ins. Co. v. Fitzgerald (Ind.), 6-531. Sufficiency of proof of death. — Proof of the death of a person insured against an accident held sufficient. .(Etna Life Ins. Co. V. Milward (Ky.), 4-1092. Waiver by rejection of proofs fur- nished. — Where an accident insurance com- pany refuses the preliminary proofs of death tendered by the beneficiary in a policy, and demands proofs which the policy does not obligate the beneficiary to furnish, it waives the preliminary proofs which the policy does require, and therefore cannot claim that an action which the beneficiary subsequently brings without having made the preliminary proofs is premature. Preferred Accident Ins. Co. V. Fielding (Colo.), 9-916. Waiver by denial of liability on other grounds. — In an action on a policy of accident insurance, it is erroneous to in- struct the jury that the failure of .the in- sured to give notice of the injury within a reasonable time as required by the policy was waived by the insurer by its subsequent de- nial of liability, which was based on another ground and did not mention the failure to give notice, .^tna Life Ins. Co. v. Fitz- gerald (Ind.), 6-551 d. Proximate cause. Meaning of term. — In construing an accident insurance policy, the term " proxi- mate cause " must be understood to have been used by the parties to the contract in its common and accepted meaning, as adopted and approved in law under like conditions and circumstances. Cary v. Preferred Acci- dent Ins. Co. (Wis.), 7-484. The term " proximate cause," as used in an accident insurance policy, means the efficient cause from which the injury results, whether such- cause produces the injury directly or through the medium of intervening causes or agencies which it sets in motion, and whicli are united by close causal connection. Cary V. Preferred Accident Ins. Co. (Wis.), 7-484. e. Actions. (1) Time to sue. Validity of limitation in policy. — Under the North Carolina statute (Rev. 1903, § 4809) providing that no insurance company shall limit the time in which suit shall be brought on a policy to less than one year, a stipulation in an accident insurance policy that no legal proceeding shall be brought to recover any sum thereby insured within ninety days after receipts of proof, nor at all unless commenced within one year from the date of the alleged accident, will be construed to give the assured twelve months after his right of action accrues, which would be a year after the time for fil- ing proofs of injury, plus ninety days. Heilig V. Mtna. L. Ins. Co. (N. Car.), 20- 1290. Limitation in policy as binding on infant. — Under an accident policy stipulat- ing that an action thereon must be brought within a year after the right of action ac- cruing, the fact that the insured is an in- fant does not relieve him of the obligation to bring his suit within the year stipulated, since, by suing on the contract, the infant affirms it, and therefore is bound by its terms. Heilig v. JEtna, L. Ins. Co. (N. Car.), 20-1290. (2) Pleading. Negativing matters of defense. — In an action on a policy of accident insurance to recover for the death of the insured, if the plaintiff makes out a prima faoie case by alleging and proving that the death was caused by violent, external, and accidental means within the life of the policy, it is not necessary for him to negative a violation of the provisions of the policy that might be set up as matters of defense to defeat or di- minish the recovery. Mtna, Life Ins. Co. v. Milward (Ky.), 4-1092. (3) Evidence. Burden of proof of cause of death. — In an action on an accident insurance policy to recover for the death of the insured, the burden of proof is upon the plaintiff to show that the death was caused by external vio- lence and by accidental means, but when the death by unexplained violent external means is established the evidence raises a presump- tion against suicide or murder, and is •prima facie proof that the injuries were accidental, without any direct or positive testimony on that point. Preferred Accident Ins. Co. v. Fielding (Colo.), 9-916. Sufficiency as to cause of death. — In an action on an accident insurance policy to recover for the death of the insured, testi- mony, to the effect that the results which followed the injury as its necessary conse- quences, and which would not have taken place had it not been for the injury, caused the death of the insured, is sufficient to sup- port the conclusion that the injury was the proximate and sole cause of the death. Pre- ferred Accident Tns. Co. v. Fielding (Colo.) 9-916. ' Evidence revie\ved in an action on a pol- icy of accident insurance and h<^ld sufficient to justify the jury in saying that the death of the insured was not due to suicide, but was accidental within the policy, .Etna Life Ins. Co. V. Milward (Ky.), 4-1092. Sufficiency of evidence as to excepted """,■ — Evidence reviewed, in an action by the insured on a policy insuring a"ainst ac- cident except for injury resultinsr from voluntary or unnecessary exposure to dan- ger, and held to show that the trial iudoe erred m directing a verdict for the defend- 956 ANls. CAS. DIGEST, VOLS. 1-20. ant, inasmuch as the jury would have been justified in finding that the plaintiff had no anticipation of the accident and did not realize that there was any danger. Hunt i'. U. S. Accident Assoc. (Mich.), 10-449. (4) Instructions. Cause of death. — In an action on an ac- cident insurance policy insuring against ac- cident and death from external, violent, and accidental means, "independently of all other causes," the giving of an instruction which does not use the language quoted is not reversible error, where the jury are in- structed that the plaintiff must establish that the death of the insured was caused by accidental, external, and violent means solely, and the evidence shows clearly that the death was so caused. Central Accident Ins. Co. v. Rembe (111.), 5-155. 9. Health Insdbanpe. What constitutes coafinement to house. — Within the meaning of an insur- ance contract for sick benefits, it cannot be said that an assured is not confined " con- stantly in the house " during an illness char- acterized by recurring periods of severity, al- though at intervals he may occasionally^ step into his yard, or make vjsitg to his physician, or other short and unusual trips, the assured at all times being unable to resume tJie ordi- nary duties or pleasures of life. Breil V. Claus Groth Plattdutchen Vereen (Neb.), 18- 1110. Validity of provision requiHng no- tice of illness. — A provision in a health insurance policy requiring notice of any ill- ness for which claim can be made to be given at the office of the insurer within ten days from the beginning of the illness, and stipu- lating that failure to give such notice shall limit the insurer's liability to one-fifth of the amount payable under the policy, is enforce- able except when sudden or extreme illness or other cause renders it impossible for the insured to comply with such provision. Craig V. U. S. Health, etc., Ins. Co. (S. Car.), 15-216. What notice of illness sufficient. — A provision in a health insurance policy requir- ing written notice of illness to be given at the ofiice of the insured within a, specified time is complied with by mailing a properly addressed notice within such time. The notice need not be mailed in time for the insurer to receive it within the period speci- fied in the policy. Craig r. U. S. Health, etc., Ins. Co. (S. Car.), 15-216. Where under the provisions of a health in- surance policy the regular attendance of the insured by a physician is requisite to a claim for illness, the illness for which claim can be made does not commence until the insured comes under the care of a physician, and therefore a provision in the policy requirins; notice "of any illness for which claim can be made " to be given within ten days from tlia beginning of the illness is complied with by giving notice within ten days from the com- mencement of the physician's visits. Craig V. U. S. Health, etc., Ins. Co. (S. Car.), 18- 216. 10. Liability Insubance. a. Validity and construction of contract. Validity of stipulation liqiiting tim« to siie. — A stipulation in a policy of em- ployers' liability insurance that no action may be maintained against the insurer un- less it is brought flithin thirty days after final judgment a,gainst the employer has been rendered and satisfied, is contrary to public policy and void. Travelers Ins. Cq. t'. Hen- derson Cotton Mills (Ky.), 9-162. Construction in genera). — In constru- ing a contract of indemnity insurance con- taining several provisions, the provisions must be construed together to ascertain the meaning of the contract. Finley v. United States Casualty Co. (Tenn.), 3-962. As cqi^tFact of indemnity or directly against liability. — A contract of iude^n- nity insurance construed and hel4 to be a contract of indemnity against loss or dam- age by reason of liability, and not a contr^rt of insurance directly against liability. Fin- ley V. United States Casualty Co. (Tenn.), 3-962. b. Parties. Employee as privy to contract. — Un- der a policy insuring one against loss or damage by reason of liability for injuries sustained by an employee of the assured, th# employee is not in privity with the parties to the contract, but the contract is between the insurer and the employer for th^ benefit of the latter. Finley v, Uijitef} States Cas- ualty Co. (Tenn.), 3-962. c. When liability accrues. After payment of loss. — Under a pol- icy insuring one against loss or damage by reason of liability for injuries sustained by an employee of the assured, the amount of the insurance does not become available un- til the assured has paid the loss, after giving notice to the insurer in the manner provided by the policy. Finley v. United States Cas- ualty Co. (Tenn.), 3-962. After entry of judgment against in- sured. — Under a contract of indemnity in- suring a railroad company against legal lia- bility for injury to or death of persons, the liability of the insurer becomes fixed when a final judgment is rendered against the rail- road company, and it is obliged to pay the amount of indemnity, though the judgment has not been paid. Stephens v. Pennsyl- vania Casualty Co. (Mich.), 3-478. Payment of judgment hy promissory notes. — Where it is provided in a casualty insurance policy that " no action shall lie ajrain-t the company as respects any loss un- der this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satis- faction of a judgment within sixty days from TNSUEANCE. 1)57 date of such judgment, and after trial of issue," the policy constitutes a contract of indemnit}-, and payment and satisfaction of a judgment rendered against the assured may be made by the execution and delivery of promissory notes, if they are executed in good faith and are so accepted by the judg- ment creditor, and thereupon a cause of ac- tion accrues in favor of the assured and against the company. Kennedy i: Fidelity, etc., Co. (Jlinn.), 10-673. d. Extent of liability of insurer. Iiiability for costs of action by ser- vant. — Under a policy of employers' lia- bility insurance, the insurer is liable for the costs of an action brought against an em- ployer for the death of an employee, where the insurer did not defend the action, and the employer had to defend it and could not make settlement. Travelers Ins. Co. v. Hen- derson Cotton Mills (Ky.), 9-162. Alloivance of interest against in- surer, — When, in an action against a rail- road company for damages, an appeal is taken from a judgment for the plaintiff and the judgment is affirmed, the liability ilnder the contract of indemnity against legal lia- bility is adjusted and settled by the judg- ment in the appellate court, and interest can be charged only from the date of the latter judgment and not from the date of the judg- ment in the lower court. Stephens v. Penn- sylvania Casualty Co. (Mich.), 3-478. e. Actions. Notice of accident as coiidition pre- iK^dent. — Where a policy of insurance cover- ing the liability of an employer for injuries received by his employees is subject to con- ditions, stipulated therein to be of the essence of the contract, that the employer shall give immediate notice of any accident causing in- jury to a workman, and on an arbitration held in pursuance to a clause in the policy it appears that on December 28th the employer signed a proposal form for the insurance and received a covering note to which no condi- tions were attached, and that on January 3d following the insurers sealed and on January 9th delivered to the employer the policy, which was expressed to be in force from January 1st, the employer can recover on the p&licy for a liability arising out of the in- jury of a workman which occurred on Janu- ary 2d, although no notice thereof was given to the insured Until January 14th, one day befoi-e the employee's death, there being no proof that the employer knew or had oppor- tunity to know of the condition as to notice at the time of the accident. In re Coleman's Depositories (Eng.), 11-253. »egati«ing exbeptions in policy in pleading. — In an action by an employer on a policy of employers' liability insurance pro- viding that the insurer shall not be liable for injuries td employees under twelve years of age, the petition need not allege that the em- ployee for whose death the plaintiiT has paid was over twelve years of age, as the plaintiff is not requirfed to negative the eicistence of all exceptions contained in the policy. Trav- elers Ins. Co. V. Henderson Cotton Mills (Ky.), 9-162. Allowance of interest on recovery. — In an action on a policy of employers' lia- bility insurance, the jury, in finding for the plaintiff, may, under the prayer of the peti- tion for " all proper relief," allow interest from the bringing of the suit, though the petition contains no specific prayer for such interest. Travelers Ins. Co. v. Henderson Cotton Mills (Ky.), 9-162. 11. Mutual Insueance. a. Statutory regulations. Mutual insurance coiupanies witbin constitutional guaranties. — The prop- erty of a mutual insurance company afid the equitable property rights of its members are within the guaranties of the state constitu- tion as regards the inhibition against laws impairing the obligation of contracts, and the inhibition of the National Constitution as regards the equal protection of the laws and deprivation of property without due process of law. Huber v. Martin (Wis.), 7- 400. Validity of statute distributing as- sets without consent tof company. A law enacted during the life of a mutual in- surance company providing for the distribu- tion of its assets or a bestowal thereof upon another without the consent of all of its members, no authority in that regard being contained in the charter of such company, is unconstitutional. Huber v. Martin (Wis ) 7-400. b. Powers of company. Mabing rates wiith view to create surplus. — It is competent for a mutual in- surance corporation, there being no limita- tion in its charter to the contrary, to make rates for insurance with a view of probably creating a surplus and of subsequently dis- tributing the same to members so far as ex- perience shall show that the same is not needed in the business. Huber v. Martin (Wis.), 7-400. c. Membership. (1) Commencement and termination. In absence of charter provision. — If the charter of a mutual insurance company contains no provision on the subject, mem- bership commences only with the taking out of a policy and lasts only for the policy period. Huber v. Martin (Wis.), 7-400. Under charter provisions. — Under the charter of a mutual insurance company pro- viding in effect that one can become a mem- ber only by taking out a policy of insurance and that the membership can survive only to the end of the policy period upon which it is based, no one can rightly be treated as a member for any purpose at any time unless he then holds an unexpired policy of insur- ance, Huber r. Martin (Wis.), 7-400 958 A^'X. CAS. DIGEST, VOLS. 1-20. (2) Rights of members. In geueral. ~ The title to the property of a mutual insurance corporation is iu the company, but the equitable interests therein are vested in the members the same as in the case of a stock corporation. While the cor- poration owns the property, the members own the corporation. Huber v. Martin (Wis.), 7-400. The interests of policy holders in a mutual insurance company are twofold, they being both insurers and insured. As insurers they are enabled to share in the losses and profits of the business on the basis of a partnership, except so far as the charter or policy con- tract provides otherwise. Huber v. Martin (Wis.), 7-400. Members as Btockholders. ^ As regards rights and remedies, the policy holders in a mutual insurance company are stockholders therein the same as owners of stock in a stock corporation, there being no charter pro- vision to the contrary. Huber v. Martin (Wis.), 7-400. For all except corporate purposes, the property of a mutual insurance company, the same as that of any other corporation, be- longs to its members, whether they are stock- holders in the technical sense or in the broader one which includes policy holders in such a company. Huber v. Martin (Wis.), 7-400. Right to invoke equitable jurisdic- tion to prevent misappropriation of as- sets. — A member of a mutual insurance company, suing for himself and others simi- larly interested, may invoke equity jurisdic- tion to redress or prevent any wrong in- juriously affecting the property rights of the corporation, when its officers will not move appropriately to that end. Huber v. Martin (Wis.), 7-400. d. Assessments. When statute of limitations runs against assessments. — The statute of lim- tations does not begin to run in favor of the policy holder of an insolvent mutual insur- ance company against an assessment until his contingent liability to assessment has been made absolute in the manner prescribed by law, as by the decree of a court of competent jurisdiction. Swing r. Brister (Miss.), 6-740. Forfeiture for nonpayment of assess- ments. — A provision in a certificate of mu- tual insurance that a member failing to pay assessments and dues within thirty days after the date when due, " shall be suspended, and his certificate become null and void, and all rights and benefits, which may have accrued to the insured or his beneficiary, shall be for- feited to the association," is not self-execut- ing but intends that the certificate shall be- come void only after some affirmative action by the association, especially in view of a subsequent provision for reinstatement after the suspension of a delinquent member which ^yidently contemplates some $ct of suspen-i sion or notice thereof after which the privi- lege of reinstatement may be exercised. Brooks V. Conservative Life Ins. Co. (la.) 11-339. e. Beorganization. Effect of invalid reorganization. — In case of success in form, of an attempt to reorganize a mutual insurance company on the stock plan under a law authorizing it. and the insurance business formerly carried on by the old company being continued osten- sibly by the new creation, using the former's assets and good will, if the attempt is fruit- less because of the enabling act being void, such continued business is to be regarded as really that of the old corporation and as be- longing to it. Huber v. Martin (Wis.), 7- 400. f. Dissolution. Who are proper distributees of as- sets on dissolution. — In case of a distri- bution of the surplus of a mutual insurance company or its other assets, there being no charter provision to the contrary, only exist- ing policy holders are legitimate distributees. Huber v. Martin (Wis.), 7-400. g. Actions. Right of action for renunciation of contract. — The rule that renunciation of a continuous executory contract by one of the parties before the day of performance gives the other party the right to sue at once for damages, does not apply to a mutual life insurance policy. Kelly v. Security Mut. Life Ins. Co. (N. Y.), 9-661. Where a mutual life insurance company has wrongfully declared a forfeiture of a policy issued by it, the insured cannot main- tain an action at law to recover damages for breach of the contract, as the policy is still in force, and the insured has no right to sue for damages before the arrival of the time for performance by the insurer, his only remedy being a suit in equity to compel the insurer to recognize the contract. Kelly v. Security Mut. Life Ins. Co. (N. Y.), 9-661. Estoppel to raise defense that con- tract is ultra vires. — When a mutual fire insurance company authorized by its charter to insure property upon an assess- ment or mutual plan only enters a state other than that by which it was created, gives the bond required by such state of stock companies issuing standard policies, and proceeds to do an insurance business on standard insurance lines, instead of mutual or assessment lines, both the company and the sureties on the bond are estopped from pleading in an action for loss upon a standard policy issued by it, that such policy is an ultra vires contract. Minneapolis F., etc., Ins. Co. p. Norman (Ark.), 4-1045. INSURANCE AGENTS, See Instt«ance, 1*2. mSURiilN^CE COMMISSIONERS — INTEREST. 959 INSURANCE COMMISSIONERS. Investigation of fires, see Fires, 8. INTENT. Abstraction of documents by defendant in criminal case, see Criminal Law, 6 n (1). Construction of contract as governed by in- tent of parties, see Contracts, 3 a. Creation of partnership, see Partnership, 1 a. Creation of spendthrift trust, see Spend- thrifts. Criterion in determining question of fix- tures, see Fixtures, 1 b. Element of common-law offenses in general, see Criminal Law, 1. Element of Inrceny, see Larceny, 1 b. Element of offense of selling adulterated or misbranded food, see Food, 6 b. Element of robbery, see Robbery, 1. Element of statutory oflfenses in general, see Criminal Law, 1. Element of tort, see Torts. Fraudulent intent in general, see Fraud and Deceit, 2. Fraudulent intent in selling property, see Fraudulent Conveyances, 1 c. Intent to kill, see Assault and Battery. Legislative intent in enacting statute, see Statutes, 4 b. Materiality of intent in acceptance of goods sold under verbal contract, see Frauds, Statute op, 9 b (1). Place of contract as governed by intent of parties, see Conflict or Laws, 3 a. Proof of criminal intent in bigamy, see Bigamy, 4. Proof of intent by direct testimony, see Evi- dence, 2. Testamentary intent in construction of wills, see Wills, 8 a (1). INTEREST. 1. COilPUTATION OF INTEREST, 959. 2. Rate of Interest, 960. 3. Suspension of Interest, 960. See Usury. Allowance of interest on award in condemna- tion proceeding, see Eminent Domain, 7 d. Allowance on arrears of annuities, see An- nuities. Allowance on county warrants, see Coun- ties, 3. Allowance on recovery of damages, see Dam- ages, 7. Changing rate of interest in note, see Al- teration OP Instruments, 2. Computation of interest in determining amount in controversy, see Appeal and Error, 3 b. Including interest in estimating municipal indebtedness, see Muwicipai, Cor?oba- TIONS, 8 b, Interest on local assessments, see Special or Local Assessments, 8. Liability of clerk for interest on funds paid into court, see Clerks of Courts. Liability of personal representative for in- terest, see Executors and Adminis- trators, 8 c. Liability of surviving partner for interest, see Partnership, 7. Operation of statute of limitations on lia- bility for interest, see Limitation of Actions, 7. Payment of interest as removal of bar of statute of limitations, see Limitation OF Actions, 5 a. Periods for payment of interest on munici- pal securities, see Municipal Corpora- tions, 8 e (2). Power of municipality to contract for in- terest on warrants, see Municipal Corporations, 7 a. Rate of interest under right of subrogation, see Subrogation, 3 a. Right of legatee to interest, see Wills, 10 e. Right of vendor to interest on purchase money, see Vendor and Purchaser, 3 b. Taxes as interest bearing debt, see Taxa- tion, 7. Pecuniary interest in subjeet-matter. Agency coupled with interest, see Agency, 1 h; Brokers, 1 b. Insurable interest, see Insurance, 5 d ( 1 ) . Necessity that witness to will be disinter- ested, see Wills, 3 e ( 2 ) . Party in interest, see Judges, 4 b ( 1 ) . Pecuniary interest as affecting competency of jurors, see Jury, 5 u. Pecuniary intel'est as disqualifying judge, see Judges, 4 a. Real parties in interest as concluded by judgment, see Judgments, 6 a (2). 1. Computation of Interest. Unliquidated claims. — Interest is al- lowable on unliquidated claims from the date of demand and the institution of a suit is a sufficient demand. Trimble r. Kansas Citv etc., R. Co. (Mo.), 1-363. Money received under mistake.— Wbere money has been paid and received under a mutual mistake of fact, and no fraud or misconduct can be imputed to the party from whom the money is sought to be re- covered, interest will not be allowed except from the time when the mistake was discov- ered and a demand for repayment made. Lee V. Laprade (Va.), 10-303. Application of payments. — A partial payment on a note is to be applied first to the payment of the interest due on the note, and then, there being more than enough to pay the interest, the remainder is to be ap- plied to the payment of the principal of the note- and subsequent interest is to be com- puted on the remainder of the prinoinal Jones-Downe* Op, v. Oh«,dl«r [T^, Mex /; 960 ANN. CAS. DIGEST, VOLS. 1-20. 2. RaTE of iN'TEfiEST. Contract for interest without fixing Tat*. — Where there is an agreement to pay iaterest and no rate is stated the legal rate is implied. Patrick v. Kirkland (Fla.), 12- 540. A promissory note for a certain svim •' with interest at the rate of — per cent. per annum, from until paid," draws interest at the legal rate from its date. Hornstein i: Cifuno (Xeb.), 20-1267. ITnifoTiu operation of gta'tnteSi — The California statute prescribing the interest to be charged on loans of not exceeding a cer- tain sum on certain kinds of personal prop- er^, but not prescribing the interest to be charged on loans of greater sum or on other kinds of personal property, violates the .pro- Tision of the state constitution requiring that all laws of a general nature shall have a uniform operation. Ea; p. Sohncke (Cal.)-, 7-475. 3. Suspension or iNiBBEST. Effect of gatnisli'toent proceeflings. — Garnishment proceedings do not suspend the running of interest when a pafty fails to avail himself of a statute providi'ng tliat the defendant in garnishment may admit his lia- bility to the prineip*l defendaTit and pay the money into court. Stephens i. Pennsylvania Casualty Co. (Mich.), 3-478. INTEBFEBENCE "WITH CONTtlACT ftELATlbNS. 1. PROCUBINC BBEAOH Ot CONtBAfeT IN 66Jrt:6Ai,, 960. 2. INDUCIXO ilA.STER TO DiSCHAEGE SER- VANT, 960. 3. Enticing Servant to Desert Mas- ter, 960. 4. Interference with Contract of AgenOt, 960. 5. Eight oe Injunction, 961. See Conspiracy, 2; Labor Combinations. Liability for causing discharge of servant, see Master and Servant, 8. 1. PfitKiufiiNG BfifeACH OF Contract in GfeNliRAt. If one wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of that third person, it is action- able. Thicker Coal, etc., Co. v. Burke (W. Va.), 8-885. To procure another to break Ms contrSict is an actionable wrong, unless thftre be a sufficient justification for such intiSrferendfe. South Wales itinera' Federatioh v. Glamor- gan Coal Co, (Eng.), 2-436. The maliciojig proctirement of a brfeach of a contract of .employment resulting in Jaifi- age, "^^erfe the pi^cUrenient was daring the subsistence of the contract, is an actionable wrong. Employing Printers Olub v. Dr. Blosser Co. (Ga.), 2-694. Persons who conspire, to induce others to break a valid contract with third persons are liable to an action therefor. Thacker Coal, etc., Co. V. Burke (W. Va..), 8-885. 2. Inducing Master to Discharge Servant. Whoever intentionally and without legal justifieation or excuse has procured an em- ployer to discharge his employee, to the dam- age of the latter, is liable to an action for damages at the suit of the employee; and this ife so though there was no binding rel. Galle v. New Orleans (La.), 2-92. Limiting number of saloons. — Pro- visions in the charter of the city of Texar- kana limiting the number of saloons to be licensed in any one-half block in the city, making the determination of the city council upon applications for licenses final, and au- thorizing such council to refuse to issue li- censes to nonresidents of the state, examined and held to constitute reasonable and valid regulations of the liquor traffic. Ex p. Ab- rams (Tex.), 18-45. A provision in a state statute regulating the sale of intoxicating liquors, which re- stricts the right to obtain a license to per- sons who have resided in the county wherein the license is sought, for more than two years next before the filing of the petition there- for, is valid,and does not, as applied to non- residents of the state, violate the provisions of the Federal Constitution that the citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states, and that no state shall deny to any person within its jurisdiction the equal protection of the law. Such re- striction constitutes a valid exercise of the police power, in that it facilitates the arrest of liquor dealers who violate the laws, and makes them subject to the process of the lo- cal courts in civil actions upon their bonds, and also facilitates inquiry into the charac- ter of applicants for licenses. De Grazier v, Stephens (Tex.), 16-1059. Place of sale. — The Michigan statute making it a penal oflfense for any person to keep a saloon where spirituous or intoxicat- ing liquors are sold within one. hundred rods of a public school in a specified county, is not unconstitutional, either as being private legislation of a class which infringes the constitutional rights of persons residing in the county named, or as being violative of the Fourteenth Amendment to the Federal Constitution. White v. Bracelin (Mich.), 8-256. Sales of liquor to be drank on prem- ises. — The sale of intoxicating liquors to be drunk on the premises is not so dangerous mTOXICATIXG LIQUORS. 969 to society or detrimental to the public wel- fare as to render a statute licensing such trifEc in intoxicating liquors unconstitu- tional. Sopher v. State (Ind.), 14-27. The Indiana statute of 1875, providing for the licensing and regulation of the liquor traffic, is a constitutional enactment, and an aflBdavit charging the keeping of a place where intoxicating liquors are sold to be drunk on the premises fails to charge a pub- lic offense, where the place is kept and the sales are made in pursuance of a license granted under the statute. Sopher v. State (Ind.), 14-27. (2) Municipal regulation. Discretion of municipal officers. — The discretion vested in the city of New Or- leans to regulate the sale of liquors does not give that body absolute control, and where the refusal to grant permission to sell is arbitrary, discriminatory, and unjust, a writ of mandamus will issue. State ex rel. Galle V. New Orleans (La.), 2-92. Regulations as to infants and fe- males. — A municipal ordinance making it unlawful for any person maintaining a sa- loon or drinking shop, or an apartment there- to attached, to permit females to enter such place of business, is unconstitutional. State V. Nelson (Idaho), 3-322. A city may by ordinance prohibit females from entering, for immoral purposes, places where intoxicating liquors are sold. State r. Nelson (Idaho), 3-322. A municipal ordinance making it unlawful for a, person maintaining a place where in- toxicating liquors are sold to permit females to enter the same is not unconstitutional as unreasonable or oppressive because it pro- vides as a punishment for the violation thereof a fine of not less than $25 nor more than $200 or imprisonment for not less than ten nor more than sixty days. State v. Nel- son (Idaho), 3-322. Forbidding seats for customers. — A municipal ordinance declaring it to be un- lawful for , a saloonkeeper to keep in his saloon any chairs, seats, or stools, or to per- mit persons to sit on kegs, boxes, barrels, and casks in a saloon run by him, is a, valid and reasonable exercise of the power con- ferred by statute on the municipality to license and regulate places where intoxicat- ing liquors are sold. Pate v. Jonesboro (Ark.), 5-381. A municipal ordinance making it unlawful for any saloonkeeper to suffer or permit any infant or woman to drink in a saloon or to be or remain therein over five minutes, but providing that it shall be a defense if the person charged with the violation of the ordi- nance shall show that the infant or female was of good repute, sober, and orderly, and had the consent of the parent or guardian of the infant or husband of the female, or that the presence of such infant or female was a reasonable necessity, is a valid police regu- lation, as it is competent for the legislative body to provide what shall be a prima facie case of the violation of an ordinance, and to place upon the accused the burden of show- ing that the case falls within one of the exceptions named in the ordinance. Com- monwealth v. Price (Ky.), 13-489. d. Local option laws. Delegation of legislative power. — The local option law is not unconstitutional as an unwarranted delegation of legislative power to the people, or as special legisla- tion, or as an incomplete enactment; and whether it is unconstitutional because mak- ing no provision for the sale of liquors for medicinal or sacramental purposes, or for sales in imported original packages, is a question which cannot be raised by one not charged with the violation of the law in making theae particular sales. In re O'Brien (Mont.), 1-373. A local option statute which is a complete expression of the legislative will is not in- valid as a delegation of legislative authority on the ground that such law is to become operative by a vote of the people of the dis- trict affected. People v. McBride (111.), 14- 994. Due process of law. — A local option statute which, by prohibiting the sale of in- toxicating liquors in certain districts, has the effect of depriving dramshop keepers within such districts of the use of their bar fixtures for the sale of such liquors, does not deprive them of their property without due process of law. People v. MeBride (111.), 14- 994. Equal protection of laws. — A local option statute which prohibits the sale or exchange of intoxicating liquor in any quan- tity, and provides a more severe penalty for subsequent offenses, does not deny the equal protection of the laws to persons violating such statute, on the ground that under the general law relating to sales of intoxicating liquors in quantities less than a gallon the punishment is the same for first and subse- quent offenses. People v. McBride (111.), 14-994. Completeness of enactment. — The Oregon Local Option Act is complete in it- self and requires nothing else to give it va- lidity, and it is not violative of a provision of the state constitution that no law shall "be passed, the taking effect of which shall be made to depend upon any authority, ex- cept as provided in this constitution." Fouts V. Hood River (Ore.), 7-1160. Special or local laws. — The Oregon Local Option Act does not violate the pro- vision of the state constitution prohibiting special or local laws for the punishment of crimes or misdemeanors or for the regulation of the practice in courts of justice. Fouts V. Hood River (Ore.), 7-1 160. There is nothing in the Oregon constitu- tion to prevent the adoption of a special or local law prohibiting the sale of into.xicating liquors within any precinct, county, ward or city in the state. Fouts v. Hood River 9T0 ANN. CAS. DIGEST, VOLS. 1-20. Title and subject of statute. — A stat- ute which enables particular communities to determine by popular vote whether sales of liquor may be licensed therein, and prescribes methods for restoring districts which are thus made anti-saloon territory to their former condition, embraces but one subject, and does not violate the constitutional pro- vision that statutes shall not embrace more than one subject. People v. McBrlde (111.), 14-994. A constitutional provision that no act shall contain more than one subject, which shall be expressed in its title, is not violated by provisions in a local option law for the punishment of perjury and forgery committed in connection with petitions for the submis- sion to popular vote of the question whether the sale of intoxicating liquor shall be pro- hibited in a particular district. People v. McBride (111.), 14-994. The exemption from a local option statute of sales of intoxicating liquors by druggists is not invalid on the ground that the title of the statute does not expressly indicate that the statute regulates sales by druggists. People V. McBride (111.), 14-994. The use of the words " popular vote " in the title of a local option statute, which pro- vides that the votes cast by a majority of the legal voters voting on the proposition shall govern, is not misleading. People v. McBride (111.), 14-994. A provision in a local option statute that " yes " shall be a vote in changing the dis- trict to anti-saloon territory and that " no " shall have the contrary effect, is not invalid on the ground that it may deceive the voters. People V. McBride (111.), 14-994. Prescribing rules of evidence. — A provision in a local option statute that the issuance and the posting of a United States internal revenue tax stamp or receipt for the sale of intoxicating liquor shall be prima fade evidence of the sale of liquor by the person to whom it is issued at the place where it is posted, is not invalid, as the is- suance and posting of such receipt tends to prove that such person is engaged in the sale of intoxicating liquor at such place. People 17. McBride (111.), 14-994. Suspension of license lairs. — A pro- vision in a local option statute that during the time any district is anti-saloon territory the operation therein of ordinances relating to intoxicating liquors and dramshop licenses shall, so far as they are inconsistent with the statute, be suspended, is not invalid. People !'. McBride (III.), 14-994. Provision for refunding unearned portion of license fee. — A provision in a local option statute that in case the terri- tory within which a municipality is situated shall become anti-saloon territory the mu- nicipality shall refund the unearned portion of license fees, is not a legislative compul- sion of the incurring of a debt by the mu- nicipality, and is not invalid. People l'. Mc- Bride (111.), 14-994. Definition of intoxicating liquors. ^ A provision in a local option statute that the words " intoxicating liquors " shall in- clude all distilled, spirituous, vinous, fer- mented, and malt liquors is not invalid on the ground that it does not specify the quan- tity of water which might be mixed with such liquors without affecting their character as intoxicants. People v. McBride (111.), 14- 994. Interference with interstate com- merce. — A local option statute prohibiting the taking of orders or the making of agree- ments in anti-saloon territory for the sale or delivery of intoxicating liquors, but not' purporting to control the importation of liquor from other states, does not violate the interstate commerce clause of the Federal CJonstitution. People v. McBride (111.), 14- 994. Who may raise constitutional ques- tions. — A person who has been convicted of selling liquor in a local option district, but who was not prosecuted for perjury or forg- ery, on whose trial a United States internal revenue receipt was not offered as evidence of the sale of intoxicating liquors, who did not sell as a druggist, and was not engaged in interstate commerce, cannot dispute the validity of the statute under which he was convicted on the ground that it creates new criminal offenses of forgery and perjury, that it changes the quantvim of evidence necessary to convict by making an internal revenue re- ceipt prima facie evidence, that it regulates sales by druggists, that it conflicts with the commerce clause of the Federal Constitution, and that it creates debts of municipalities without their consent, unless the invalidity of such provisions affects the validity of the act as a whole. People ;;. McBride (111.), 14-994. The validity of a provision in a local op- tion statute that the failure to give notice of election so required by such statute shall not invalidate the vote can be questioned only on the failure to give notice. People v. Mc- Bride (111.), 14-994. e. Searches and seizures. As the Indiana statute of 1907 relative to the seizure of intoxicating liquors unlawfully kept, provides for a judicial hearing, after due notice, in which the owner of the liquor seized has an opportunity to contest the ground upon which the forfeiture is claimed, it cannot be contended that such statute is unconstitutional as authorizing the taking of property without due process of law. Rose V. State (Ind.), 17-228. 4. License Laws. a. Operation and effect of statute. The Indiana statute of 1875, providing for the licensing and regulating of the sale of intoxicating liquors, does not authorize a wrong which would be illegitimate in the absence of statute, but, on the contrary, op- erates to deprive the retailer of liquors of many of his common-law rights and privi- leges by imposing regulations and restric- INTOXICATING LIQUORS. 971 tions thereon. Sopher v. State (Ind.), 14- 27. The Tennessee statute of 1903 imposing a tax on retail liquor dealers in all parts of the state applies to territory covered by the Tennessee " four-mile law," which prohibits the sale of such liquors within four miles from any schoolhouse or incorporated insti- tution of learning. There is no confliot be- tween the two statutes as applied to such territory, the purpose of both being to pre- vent the sale of intoxicating liquors therein. Foster c Speed (Tenn.), 15-1066. That portion of the charter of the city of Texarkana which limits the number of sa- loons to be conducted in any one-half block in the city is not in conflict with article 16, section 20 of the Texas constitution, as pro- hibiting the sale of intoxicating liquors with- out first submitting the question to a vote of the people. Such charter provision does not amount to a prohibition of the liquor traffic, but is merely a regulation thereof. Ex p. Abrams (Tex.), 18-45. b. Validity and effect of license. Qno trarranto to test validity. — A liquor license is not a franchise, and conse- quently its validity cannot be tested by quo warranto proceedings. State v. Gibbs (Vt.), 18-525. c. Who may obtain license. Corporations. — A corporation may law- fully receive a license to vend intoxicating liquors at wholesale, in Nebraska, but no au- thority exists for licensing a corporation to engage in the retail traffic in such liquors. Chapter 82, Laws of 1907, which prohibits corporations from being interested in any manner in the retail traffic in intoxicating liquors, is in pari materia with the Slocomb law, under which the right of corporations to sell intoxicating liquors at wholesale has long been assumed, if not expressly recog- nized. Rohrer v. Hastings Brewing Oo. (Neb.), 17-998. d. What places may be licensed. (1) Vicinity of church. Meeting place of " faith curists." — The fact that an unorganized body of per- sons known as Faith Curists, who believe in God and Christ, hold meetings for Bible study and religious and secular instruction of the young in a building, the upper part of which is occupied as a dwelling and the downstairs rear portion of which is used for storage purposes, does not constitute such building or such body of persons " a church," within the meaning of the New Jersey stat- ute providing that no license to sell intoxi- cating liquors shall be granted in any place within a specified distance of a church. George v. Board of Excise (N. J.), 9-1112. (2) Vicinity of schoolhouse. Public or private schools. — The word " schoolhouse " as used in the New York statute absolutely prohibiting the sale of in- toxicating liquors within two hundred feet of a building occupied exclusively as a schoolhouse, is intended to apply primarily to common public schools devoted to such general elementary and intermediate instruc- tion as is adapted to the education of chil- dren and youth, and perhaps secondarily to such semi-public and private schools as are conducted for the same purpose. Matter of Townsend (N. Y.), 16-92:. Training school for nurses. — A build- ing used as a training school for nurses is not a " schoolhouse " within the meaning of the word as used in such statute. Matter of Townsend (N. Y.), 16-921. (3) Separate places in same building. Necessity of separate licenses. — Two places where liquor is sold, having separate bars, a separate set of attendants, a separate stock of liquors, and separate entrances opening on the street, may not be maintained under one license to sell liquor. Malkan v. Chicago (111.), 3-1104. The meaning of " place " in the Illinois Dram Shop Act, and an ordinance of the city of Chicago, is a room where a bar is located and a saloon is run and not the whole building in which the right to sell liquor is given. Malkan v. Chicago (111.), 3-1104. e. Powers of municipal officers. In Nebraska the mayor in cities of the second class having more than 5,000 and less than 25,000 inhabitants has the right to cast a deciding vote in a contest over an applica- tion for a liquor license in case of a tie vote of the council. Rohrer c. Hastings Brewing Co. (Neb.), 17-998. f. Consent to granting of license. Park commissioners or owners of public park. — Park commissioners in whom is vested the legal title to park lands are owners thereof and have a legal right to sign an application for a dram shop license. Theurer v. People (111.), 1-57. Under an ordinance requiring an applica- tion for a dram shop license to be signed by a majority of the property owners according to frontage on the streets surrounding the block on which the saloon is proposed to be kept, all the frontage, including the park frontage, must be included in the estimate whether the owners have a legal right to sign the application or not. Theurer v. Peo- ple (111.), 1-57. Bona fide freeholders. — Under the Ne- braska liquor laws a petition for a liquor license must be signed by bona fide free- holders. Dye V. Raser (Neb.), 16-274. One made a freeholder for the sole pur- pose of qualifying him as a petitioner for a liquor license is not a lona fide freeholder within the meaning of the NetSraska liquor laws. Dye v. Easer (Neb.), 16-274, Time of acquisition of title. — The lapse of a considerable time after the ac- 972 ANN. CAS. DIGEST, VOLS. 1-20. quisition of title by such a freeholder does not of itself qualify him to sign a. petition for a liquor license. Dye u. Baser (Neb.), 16-274. Otruers of nnoocnpied property. — It seems that under a statute requiring an ap- plicant for a liquor license to obtain the consent of two-thirds of the owners of build- ings occupied exclusively as dwellings and located within two hundred feet of the pro- posed saloon, it is unnecessary for an ap- plicant to obtain the consent of owners of buildings which though originally occupied as dwellings have been vacant for some time, are being held for sale, and are located in a neighborhood which is rapidly becoming a business district. Matter of Townsend (N. Y.), 16-921. Consent procured by purchase. — The consent of a property owner to an applica- tion for a dram shop license is not valid if procured by purchase. Thcurer v. People (111.), 1-57. Withdrawal of consent. — The signer of an application for a dram shop license may withdraw consent at any time before the proper tribunal has acted finally upon the application. Theurer v. People (111.), 1-57. Consent by agent of property oTirner. — A property frontage consent may be signed by an authorized agent of the owner. Theurer v. People (111.), 1-57. g. Objections to granting of license. Right of lessees to object. — A lessee of real property is not the owner thereof within the meaning of the Rhode Island statute which provides that no license shall be granted authorizing the sale of liquor, " at any building or place where the owners of the greater part of the land within two hundred feet of such building or place shall file with the board having jurisdiction to grant licenses their objection to the grant- ing of such license;" and, consequently, an objection filed by such a lessee, either alone or in conjunction with the owner of other adjoining property, is ineffectual to prevent the granting of a license. American Woolen Co. V. Town Council (R. I.), 16-1227. h. Liability for license fee. Sales irithont license. — A hotel com- pany which has engaged in the sale of in- toxicating liquors without having applied for or obtained the license required by stat- ute is guilty of a violation of law, but does not become indebted to the state for the cost of a license during the period of illicit sell- ing. Commonwealth v. Central Hotel Co. (Ky.), 12-172. i. Bond of liquor dealer. Under the New Hampshire statutes the state may maintain an action for breach of the bond of a licensed dealer in intoxicating liquors, though he has not been conviet/prl criminally of the charge alleged as a. breach. State V. Corron (N. H.), 6-486. j. Granting or refusing license. An applicant for a bar-room license to whose character no objection is found should not be refused a license in a neighborhood where others are engaged in selling liquors on the objection of a minority of the prop- erty holders or on the ground that no more bar-rooms are needed. State ex rel. Galle i'. New Orleans (La.), 2-92. Remedy for irrongfnl refusal.— Where the authorities vested with power to grant a liquor license, wrongfully and arbitrarily deny an application therefor, the remedy of the applicant is by an action to obtain it and to recover compensation for any dam- ages sustained, or by writ of mandamus to compel the authorities to perform their of- ficial duties. Montpelier v. Mills (Ind.), 17- 57. k. Revocation of license. Revocability in general. — A license to sell intoxicating liquors is granted in pur- suance of the police power, and not of the tax- ing power, of the state. Its primary purpose is not revenue, but regulation. It is subject to revocation. Claussen v. Luverne (Minn.), 14-673. Revocation of license as a tort. — A municipality is not liable in tort for the mistaken action of the city council in at- tempting to revoke a license to sell intoxi- cating liquors. Claussen v. Luverne (Minn.), 14-673. Recovery of license fee. — Where a license to sell intoxicating liquors fails with- out fault on the part of the licensee, as where it is revoked because of the adoption of the policy of prohibition by the state in which it is issued, the licensee is entitled to re- cover back the unearned portion of the li- cense fee, and, consequently, a petition which states the issuance of such a license to the plaintiff, and the subsequent revocation or cancellation thereof by reason of the adop- tion of a state constitution containing a clause prohibiting the sale of intoxicating liquors within the state, is not demurrable for failure to state a cause of action. Alls- man V. Oklahoma City (Okla.), 17-184. 5. Offenses against Liquoe Laws. a. Transportation of liquors. Knowledge or intent of carrier. — The Massachusetts statute (Rev. Laws, c. 100, i 49) providing that intoxicating liquor which is to be transported for hire for de- livery in a no-license city shall be delivered to the carrier in packages marked with the names of the seller and the purchaser and with the kind of liquor therein contained, and that the delivery of such liquor by a carrier shall be deemed to be a sale by the person making such a delivery, does not make intent an element of the offense; and a carrier or its servant may be convicted of INTOXICATING LIQUORS. 973 illegally transporting intoxicating liquor, though it does not know and has no reason to surmise that there is intoxicating liquor in a package delivered for transportation by a seller who fails to mark the package as required. Com. r. Mixer (Mass.), 20-1152. The general rule that a carrier cannot or- dinarily insist on obtaining knowledge ef the character of the goods offered for transpor- tation is modified where a statute expressly or impliedly confers that right; and the Massachusetts statute (Rev. Laws, c. 100, § 49) imposing on the carrier criminal re- sponsibility for transporting intoxicating liquors clothes the carrier with the power to obtain such knowledge as may protect it, or to refuse to take the proffered article for transportation. Com. v. Mixer (Mass.), 20- 1152. b. Sales of liquors generally. Iioan of liquor as sale. — A loan of in- toxicating liquors to be drunk as a beverage and to be repaid out of liquor which the borrower has ordered is a sale in violation of the Texas local option statute, and it is immaterial that the person making the loan is a member of a club. Tombeaugh v. State (Tex.), 14-275. Engaging in business of selling. — Under the statutes of South Dakota there is no material distinction between selling in- toxicating liquors without a license and en- gaging in the business of selling such liquors witliout a license. The term "engaging in the business without license," used in the statute, is equivalent to the term " selling without a license." State v. Ely (S. Dak.), 18-92. Sale by clnb. — The furnishing and de- livery of intoxicating liquors by a social club to its members for consumption on the prem- ises, with the understanding that the liquors shall be paid for by the individual members to whom they are furnished and delivered, constitutes a sale in a dram shop within the meaning of the Illinois statute prohibiting the sale of liquor without a license, though the sale is merely an incident to the main purposes of the club, and is made without profit, and though the club has been organ- ized in good faith for social purposes, and not as a shift or device to evade the provi- sions of the licensing statute. South Shore Country Club v. People (111.), 10-383. c. Sunday sales. Bona flde hotel guests. — Where a per- son enters the caf^ of a hotel on Sunday, and orders beer or other intoxicating liquor, and the person in charge informs him that liquors cannot be served on Sunday except to lona fide guests of the hotel, and thereupon the hotel register is brought down from the oflice to the cafe, and the person ordering the liquor registers, and is served with liq- uor and a chfiese sandwich, and consumes the same, such person cannot be considered a bona fide registered guest of the hotel within the meaning of the statute which prohibits the sale of intoxicating liquor on Sunday except to such a guest. Cake v. District of Columbia (D. C), 17-814. Under the circumstances above considered, the hotel keeper cannot be heard to contend that he supposed that the person purchasing the liquor came to the hotel for a meal, and was entrapped into making the sale in that belief. It is the duty of a hotel keeper, making a sale of liquor on Sunday to satisfy himself that the purchaser is a hona fide registered guest of the hotel, and whatever subterfuge may be indulged in on the part of the purchaser, none can be tolerated on the part of the hotel keeper. Cake v. Dis- trict of Columbia (D. C), 17-814. In a prosecution against the proprietor of a hotel and cafg for selling intoxicating liquor on Sunday, where the defense inter- posed is that the person served with the liquor was a iona fide registered guest of the hotel the burden of proving that fact rests on the defendant, and the question whether such person was a hona fide registered guest is one of fact for the jury, or for the court where the trial is had before the court with- out a jury. Cake v. District of Columbia (D. C), 17-814. d. Gifts of liquors. Dispensing hospitality. — The Missouri statute prohibiting the sale and giving away of intoxicating liquors is not intended to forbid the mere gift of a drink of liquor by a private person who is in no sense a dealer in liquors, to one of his friends as an act of courtesy or hospitality. State v. Pulks (Mo.), 13-732. €. Keeping liquors. It is not an offense under the Kansas stat- utes for a person not authorized to sell in- toxicating liquors to keep them for his own use, but such a person cannot keep such liquors except in a dwelling liouse not used in connection with a place of business, with- out making out a prima facie case that they are kept for unlawful purposes. State i;. White (Kan.), 6-132. f. Place of sale. Place of shipment or place of sale. — The giving and forwarding, in prohibition territory, of an order for liquor to be shipped _ U O. D." and the shipment of the liquor in pursuance thereof from license territory constitute a sale at the point of shipment, and not at the point of destination. Go- "gMy v. State (Tex.), 13-827. • * x^ll ^" °'''^*'' ^°^ whiskey is sent by an infant through the mail to the defendant at ms place of business, and the defendant fills the order by delivering the whiskey to a car- rier consigned to the infant at his place of residence, who there receives it from the ear- ner the sale is made at the defendant's place of buBineas and not at the infan.s place of residence. Harper v. State (Ark.). 18-435 974 ANN. CAS. DIGEST, VOLS. 1-20. Place of delivery or place of sale. — Where a liquor dealer, pursuant to an order received at his place of business, selects from his stock liquor of the kind and quantity or- dered, and delivers it either in person or by an agent to the purchaser, without the inter- vention of a common carrier, the place of de- livery is the place of sale. Lochnar v. State (Md.), 19-579. g. Quantity sold. " Wholesale " dlstingnished from " re- tail." — The word " wholesale " as used in the Massachusetts statute providing that the prohibition to sell intoxicating liquors shall not apply to " sales of cider at wholesale by the original makers thereof " refers more to the quality of the sale than to the ■ purpose of the purchaser with regard to selling again, tha principal distinction between retail and wholesale sales being that the former are sales made in small quantities such as are adapted to the wants of individual purchas- ers, while the latter are sales made in large quantities such as ordinarily would be be- yond the needs or desires of ordinary con- sumers. Commonwealth v. Greenwood (Mass.), 18-183. h. Sales or gifts to minors. Sales for medicinal purposes. — A stat- ute prohibiting the sale of intoxicating liq- uors to minors does not prohibit a sale to them for medicinal purposes. Atkinson v. State (Tex.), 3-839. Liability of physician prescribing liqnor for minor. — When a locality adopts the provisions of a local-option law pro- hibiting the sale of intoxicating liquors ex- cept for medical purposes, the operation in such locality of a statute prohibiting the sale of intoxicants to minors except on the written consent of the parents or guardians is suspended, and therefore it is not an of- fense for a physician to give a minor a pre- scription for intoxicating liquors to be used as a medicine. Atkinson v. State (Tex.), 3- 839. Giving liqnor to minor as act of bospitality. — The Michigan statute pro- hibiting the giving of intoxicating liquors to minors does not preclude one in exercising the hospitality of his home from giving in- toxicating liquors to an infant guest. People V. Bird (Mich.), 4-1062. Minor purchasing liquor as agent for another. — The member of a trading com- pany who orders -a, minor in the employ of the company to purchase intoxicating liquor for him for his personal use is not a person " having the management or control " of the minor, within the meaning of the statute making it lawful to sell liquor to a minor by permission of such person. Tony v. State (Ala.), 6-865. The sale of intoxicating liquor to a minor who is acting as agent for another is a sale to the minor, where a minor does not disclose Lis agency but merely applies for the liquor and pays for it when it is handed to him. Tony V. State (Ala.), 6-865. Filling order by delivery to carrier. — The delivery to a carrier of whiskey con- signed to an infant pursuant to an order re- ceived from him by mail is a sale directly to the infant, and not a sale through the car- rier as the infant's agent. Harper v. State (Ark.), 18-435. Ignorance of infancy. — Ignorance of the fact of infancy is no defense to a prose- cution under the Arkansas statute (Kirb. Dig., § 1943) which provides that "any per- son who shall sell . . any ardent, vinous, malt, or fermented liquors ... to any minor " shall be guilty, etc. Harper v. State (Ark.), 18-435. i. Persons liable for unlawful sales. Sales by agent or servant. — It is no defense to a prosecution for selling intoxicat- ing liquors without a license that the de- fendant was acting not for himself, but as the servant of another. Lochnar v. State (Md.), 19-579. Sale by servant contrary to instruc- tions. — A liquor dealer forbidden by stat- ute to sell liquor to a minor is liable for a sale to a minor, although the sale is made without the knowledge of the dealer by his agent who is under instructions from the dealer not to sell to minors. State v. Gil- more (Vt.), 13-321. In a prosecution for the violation of the Michigan statute requiring saloons to be closed on holidays, it is no defense that the defendant instructed his barkeeper not to open the saloon and was himself innocent of guilty intent. People v. Kriesel (Mich.), 4-5. Person assisting minor in making purchase. — One who assists and directs an intending purchaser of liquor, in a pro- hibition county, in making out an order for the liquor and in doing so represents the pur- chaser, and not the liquor dealer, is not guilty of a violation of the prohibition law. Go- lightly V. State (Tex.), 13-827. 6. Pbosecutions. a. Statute applicable. A general prohibition law repealing all laws in conflict with it supersedes the pro- visions of a city charter as to sales of liquor without a license, and therefore sales of liq- uor in the city must be prosecuted under the general law and not under the city charter. State V. Swink (N. C), 19-422. b. Jurisdiction. Justices' Courts. — In Montana a jus- tice's court has jurisdiction of the offense of selling intoxicating liquor in violation of a local option law, if the offense was com- mitted in the county in which such court is established, and the prosecution need not be brought in the township in which such offense was committed. State r. O'Brien (Mont.), 10-1006. INTOXICATING LIQUOKS. c. Limitation of prosecution. A prosecution under the Virginia statutes for Belling liquors without a license is gov- erned by the provision of the statute of limi- tations relating to prosecutions for violations of the revenue laws, and not by the general piovision relating to misdemeanors. Quillin V. Commonwealth (Va.), 8-818. d. Indictment, information, or complaint. (1) In general. Averring adoption of statute. — Where prohibition has been adopted in a state by the vote at a general election, as provided by statute, an indictment for selling liquor need iiot allege that the election was held, and re- sulted in prohibition. The courts take ju- dicial notice of general elections. State v. Swink (N. C), 19-422. In a prosecution for the violation of a local option law which has become effective not by its own terms but by the observance of cer- tain conditions precedent by the people and officials of the county, the complaint is suffi- cient which alleges the ultimate fact that the law had become operative and that the sale of liquor was made in violation thereof. State V. O'Brien (Mont.), 10-1006. Charging offense in terms of statute. — An information for the violation of the Vermont statute making it unlawful to ex- pose or keep for sale intoxicating liquor need not show how the liquor was kept or exposed for sale if it charges the offense in the terms of the statute. State v. Paige (Vt.), 6-725. Informing accused of nature of ac- cusation. — The form of indictment pro- vided in the Florida statute prohibiting the sale of intoxicating liquors is not open to the objection that it does not inform the ac- caused of the nature of the accusation against him. Csesar ■!/. State (Fla.), 7-45. Specification of illegality in sale. — An indictment for selling intoxicating liquors contrary to the law is fatally defective if it fails to allege in what respect the sale was contrary to the law. State v. Dolan (W. Va.), 6-450. Possibility of obtaining license. — Since it is no defense to a prosecution for selling intoxicating liquors without a license that it was impossible for the defendant to obtain a license, it follows that an informa- tion for the offense is not demurrable for failure to allege facts showing that it was possible for the defendant to procure a li- cense, or that the business of liquor selling could lawfully be engaged in in the county bv persons having a license. State v. Ely (S. Dak.), 18-92. (2) Place of sale. An information for the violation of the Vermont statute making it unlawful to ex- pose or keep for sale intoxicating liquor sufficiently shows where the liquor was kept and exposed if it designates a town in a county within the state as the place. State V. Paige (Vt.), 6-725. (3) Description or character of liquor. An information for the violation of the Vermont statute making it unlawful to ex- pose or keep for sale intoxicating liquor need not aver that the liquor exposed was not of the kinds which the statute specifically ex- cepts from its prohibition. State v. Paige (Vt.), 6-725. An information for the violation of the Vermont statute making it unlawful to ex- pose or keep for sale intoxicating liquors need not specify the kinds of liquor kept or exposed. State f. Paige (Vt.), 6-725. An indictment charging the defendant with bringing into a certain county " on one cer- tain day, more than one-half gallon, to wit, one gallon of spirituous, vinous, or malt liq- uors," against the form of the statute, etc., while possibly not fatally defective, is vague and uncertain and subject to criticism, in failing to specify which of the prohibited kinds of liquor the defendant brought into the county. State v. Williams (N. Car.), 14-562. In a prosecution for the illegal sale of liquor of a, certain class which the statute makes it unlawful to sell, it is not necessary to allege or prove that the particular liquor is intoxicating. State v. York (N. H.), 13- 116. (4) Price of liquor sold. A complaint for the violation of a city or- dinance by selling liquors without a license must allege a price or consideration for the sale. Cannelton v. Collins (Ind.), 19-692. (5) Name or designation of purchaser. In a prosecution for selling intoxicating liquors under the Ohio statutes, it is neces- sary to a sufficient charge against the accused that the affidavit, information, or indictment as the ease may be, allege the name of the purchaser of such intoxicating liquors, or that his name is to the affiant, informant, or grand jury unknown. State v. Kidgwav (Ohio), 4-94. ■ An indictment for the unlawful sale of in- toxicating liquors must charge a sale to some person by name or to some person unknown to the jurors. State v. Tisdale (N. Car.). 13-125. A state statute making the possession of a license issued by the United States govern- ment to sell or manufacture intoxicating liq- uors prima facie evidence of the doing of the acts permitted by said license when in viola- tion of the laws of the state, does not create the specific offense of carrying on the general business of retailing liquor in prohibition ter- ritory which may be so charged in an indict- ment without naming the purchaser of the liquor. State v. Tisdale (N. Car.), 13-125. e. Election as to offenses. Where an information for selling intoxi- cating liquors without a license alleges that the defendant was engaged in the business on May 1, 1907, and thereafter continuously down to June 10, 1907, inclusive, the prose- 976 ANN. CAS. DIGEST, VOLS. 1-20. cution is at liberty to prove as many sales as it can between the dates specified, and can- not be required to elect on what particular sale it will rely. State v. Ely (S. Dak.), 18-92. One charged in a single count with a sale of intoxicating liquor to a minor, may, when the evidence for the prosecution proves two distinct sales on different days, require the prosecution to elect on which offense it in- tends to reply, and this right to compel an election is a personal privilege. Com. v. Coyne (Mass.), 20-1069. In such a prosecution, although the ac- cused does not except to the refusal of the court to require the prosecution to elect on which of two distinct offenses shown by the evidence it will rely before he introduces his proof, he does not waive his right to require an election, and a renewal of the request at the close of the evidence, and before the be- ginning of the arguments, does not come too late. Com. v. Coyne (Mass.), 20-1069. In a prosecution for selling liquor to a minor, the refusal of the court to require the prosecution to elect on which one of two distinct offenses shown by the evidence it will rely for a, conviction is not cured by the voluntary concession of the district attorney, in his closing argument, that he will ask for a conviction for but one offense. Com. v. Coyne (Mass.), 20-1069. Purchase with money furnished by prosecuting attorney. — Where, in a crim- inal prosecution for the sale of intoxicating liquor in violation of a local option law, the evidence shows, prima facie, a sale of liquor in violation of the statute, it is no defense that the prosecuting attorney furnished the money with which purchases of the liquor were made by the state's witnesses. State v. O'Brien (Mont.), 10-1006. f. Defenses. Impossibility of obtaining license.— It is no defense to a prosecution for selling intoxicating liquors without a license, that it was impossible for the defendant to obtain a license because of the fact that prohibition was in force in the county at the time when the sales alleged in the information were made. State v. Ely (S. Dak.), 18-92. Failure of municipality to levy li- cense tax. — Inasmuch as there was n. valid ordinance in force in the city of Texarkana, prior to the enactment of the statute known as the Baskin-McGregor law, providing for the levy of an occupation tax equal to one- half the state tax on liquor dealers, which ordinance was continued in force by the spe- cial charter afterwards granted to the city, it was unnecessary for the city council to fix or levy any new tax on the business after the enactment of the Baskin-McGregor law, and their failure to do so constitutes no defense to a prosecution for the illegal sale of liquor within the city. Ex p. Abrams (Tex.), 18-45. Wrongful grant of license to others. — In a prosecution for selling intoxicating liquors without a license, in violation of the provisions of a city charter, it is no defense that the city council has violated the provi- sions of the charter in granting licenses to liquor dealers other that the defendant. Ex p. Abrams (Tex.), 18-45. Wrongful refusal to grant license. — On a prosecution for the violation of a mu- nicipal ordinance forbidding the sale of in- toxicating liquors without a license, it is no defense that the municipal authorities de- clined to consider the defendant's application for a license and wrongfully refused to issue a license to him. Montpelier v. Mills (Ind.), 17-57. On such a prosecution the court cannot try collateral issues properly pertinent and ma- terial in the proceedings to obtain a license, and the fact that the defendant may have been amply able and willing to meet all the con- ditions necessary to entitle him to a license, and that he tendered proof of the necessary facts and payment of the prescribed fees, cannot justify him in making a sale without a license in direct violation of the terms of the ordinance. Montpelier v. Mills (Ind.), 17-57. License issued without authority. — A license emanating from a body without authority to issue licenses is no protection against a criminal prosecution for selling in- toxicating liquors without a license; and, when such a so-called license is produced by way of defense to a crimina,l prosecution, the question of the authority to issue the license not only may, but necessarily must, be in- vestigated in every case. State i;. Laborde (La.), 12-711. Where the authority to issue licenses for the sale of intoxicating liquors has been taken away from a town by the paramount authority of a parish election, whereby pro- hibition has been established throughout the parish within whose limits the town is situ- ated, a license from the town authorities is no protection against criminal prosecution for selling intoxicating liquors without a license. State v. Laborde (La.), 12-711. Ignorance of intoxicating properties of liquor sold. — In a criminal prosecution for selling intoxicating liquors in violation of a statute absolutely prohibiting the sale of intoxicating liquors under certain con- ditions, ignorance on the part of the accused of the fact that the liquor sold by him had intoxicating properties is no defense, and evidence that the liquor in question was sold to the accused under a guarantee that it con- tained no alcohol and would not intoxicate, is properly excluded. Haynes v. State (Tenn.), 12-470. g. Evidence. (1) Admissibility. Intoxicating character of liquor sold. — In a prosecution for selling intoxicating liquor without license, where the common- wealth elects to prosecute the accused for selling to a particular person, it cannot prosecute him for selling to any other person or show that he made sales to any other per- raTOXLCATlAG LIQUOES. N I son, in aid of its proof; but where the con- troverted question in the ease is the intoxi- cating character of the liquor sold, testimony that similar liquor procured from the ac- eused by other persons produced intoxication is admissible, and the fact that such> testi- mony discloses that such liquor was bought from the accused is not prejudicial error. Devine r. Commonwealth (Va.), 13-361. Intent or knowledge of defendant. — The South Dakota statute requiring all sa- loons in which intoxicating liquors are sold or kept for sale to be closed on Sunday im- poses on the keeper of a saloon the affirm- ative duty to see that his saloon is closed, and in a prosecution under the statute it is not error to exclude testimony tending to show that the defendant had no knowledge of or did not authorize the opening of his sa- loon. In such a prosecution it is no defense that the defendant's saloon was not legally licensed, since the statute does not exclude such saloons expressly or by implication. State V. Grant (S. Dak.), 11-1017. Other sales by defendant. — In a prose- cution for furnishing a person with whiskey in violation of the local option law, evidence of other similar acts by the defendant may be shown for the purpose of rebutting the in- ference of accident, mistake, or inadvertence. People V. Giddings (Mich.), 18-844. Sales by third persons. — In a prose- sution for furnishing a person with whiskey in violation of the local option law, it is re- versible error to admit evidence that a third person who lived with the defendant had on one occasion furnished some one with liquor. People V. Giddings (Mich.), 18-844. Tasting of liqnor by jnry. — In a prosecution for unlawfully keeping intoxi- cating liquors for sale without a license, it is not error to permit the jury to taste the liquor seized and produced in evidence at the trial, for the purpose of aiding in the deter- mination of the question whether the liquor is intoxicating. Schulenberg v. State (Neb.). 16-217. (2) Weight and sufficiency. Keeping liquors for sale. — When ten eases, containing one hundred and twenty quart bottles of ^\hiskey, are deposited in one lot, the quantity alone, in the absence of any other explanation, is sufficient evidence that the whiskey was intended for unlawful sale. State f. Intoxicating Liquors (Me.), 20-668. Intoxicating character of liquor sold. — In a prosecution for the sale of cider al- leged to contain a greater percentage of al- cohol than the law allows, evidence examined and held to entitle the accused to a verdict of acquittal. Devine v. Commonwealth (Va.), 13-361. The jury are warranted in finding from their own knowledge on the subject and with- out specific proof, that whiskey is spirituous or distilled liquor. State -v. York (N. H.), l.S-116. Sunday sales. — In a prosecution for fail- ing to keep a saloon closed on Sunday, evi- VoLs. 1-20 — Ann. Cas. Digest. — 62. dence examined and held sufficient to sustain a conviction. State v. Grant (S. Dak.), 11- 1017. Sales to minors. — Evidence reviewed in a prosecution for selling intoxicating liquor to a minor child and held sufficient to justify a conviction. Tony r. State (Ala.), 6-865. h. Instructions. Quantity of liquor sold. — In a prose- cution for the illegal sale of intoxicating liq- uor, where the defense interposed is that the sales made by the defendant were sales of cider at wholesale and therefore legal under the statute, an instruction to the jury that a sale made to a purchaser for his own con- sumption and not to sell again Is a sale at retail, whether it is made in a, quantity of one gallon or more, and that a sale at whole- sale is a sale made to one who has the real, or at least the apparent, purpose to sell again to his own customers, is erroneous, because of its failure to call to the attention of the jury the principal distinction between sales at wholesale and sales at retail, viz., that sales at wholesale are sales in large quantities, while sales at retail are sales in small qtiantities. While the apparent pur- pose of the purchaser with regard to a resale may be an important circumstance which it is proper to call to the attention of the jury, the decisive point is the quantity sold rather than the purpose of the purchaser.. Com- monwealth V. Greenwood (Mass.), 18- 183. Intoxicating character of liquor sold. — Under the statutes of South Dakota, which make it a criminal olTense to engage in the business of selling or offering for sale any " spirituous, vinous, malt, brewed, fermented, or other intoxicating liquors " at retail with- out a license, the state, on a prosecution for such offense, is not obliged to prove that the liquor sold by the defendant was intoxicat- ing, provided it belonged to one of the classes of liquor mentioned in the statute, and, con- sequently, an instruction to the jury that they can find the defendant guilty on proof that he sold liquor which was either brewed, fermented, or malt, the statute " making such liquor intoxicating," is not erroneous. State V. Ely (S. Dak.), 18-92. In such a prosecution it is not error for the court to instruct the jury that they can find the defendant guilty on proof that he sold "any mixture which contained any per- centage of intoxicating liquors," even though the information does not expressly charge a sale of such a mixture, since a sale of a mix- ture containing any percentage of intoxicat- ing liquor would necessarily involve a sale of such liquor. State v. Ely (S. Dak.), 18- i. Sentence and punishment. The charter of the city of Atlanta and the ordinances passed under it give authority tn the recorder, on conviction of a person charged with keeping spirituous, fermented, or malt liquors for illegal sale, to sentence 978 ANN. CAS. DIGEST, VOLS. 1-20. him to pay a fine of five hundred dollars, and also to work on the streets and public places of the city for thirty days. Loeb v. Jennings (Ga.), 18-376. j. Appeal and error. Proof of other violations of law. — In a criminal prosecution for the sale of intoxicating liquor in violation of a local option law, it is not prejudicial error to ad- mit evidence of another such sale when the evidence is not introduced for the purpose of showing another offense and the court limits the effect of the evidence by appropriate in- structions. State V. O'Brien (Mont.), 10- 1006. 7. Local Option. As to constitutionality of local option laws, Bee supra, 3 d. a. Adoption of law. (1) Petition for submission to voters. Signatures. — Under a liquor license act making it the duty of a municipal council to submit a local option law to a vote of the municipal electors on the filing with the clerk of the municipality of "a petition in writing signed by at least tiventy-five per cent, of the total number of persons . . . qualified to vote at municipal elections," a document in the form of a petition' but signed by only two electors, and having at- tached to it the signatures of others suffi- cient to make up the required number which had been previously afiSxed to and detached from other petitions in the same form is not a sufficient petition within the meaning of the statute, even in the absence of any fraud. In re Williams (Can.), 14-481. (2) Consent of inhabitants. Fraudulent census enumeration. — Where the proportion of the inhabitants of a city whose consent is necessary to authorize the sale of intoxicating liquors therein varies according to the population of the city, a citizen thereof, especially if he is a resident taxpayer, may maintain an action to correct a fraudulent census enumeration of the in- habitants of such city. Semones v. Needles (la.), 15-1012. The census enumerator who fraudulently added such census is a proper and necessary party to such action, notwithstanding the fact that before the commencement thereof he had made his return to the county auditor and his enumeration had been forwarded to the state executive council. Such census enu- merator is properly taxed with the costs, especially if he defended the suit. Semones V. Needles (la.), 15-1012. b. Mode of determining adoption. Province of court. — In a criminal prose- cution for the sale of intoxicating liquor in violation of a local option law, it is the province of the court to determine whether the local option law under which the prose- cution is brought has been adopted, and hav- ing determined that the law has become operative, it is proper for the court to in- struct the jury tha.t such is the case. State V. O'Brien (Mont), 10-1006. c. Regularity and validity of election. In a criminal prosecution for the sale of intoxicating liquor in violation of a local op- tion law, evidence to impeach the regularity of the election adopting the local option law under which the prosecution is brought is properly excluded. State v. O'Brien (Mont.), 10-1006. In a criminal prosecution for the sale of intoxicating liquor in violation of a local option law, where the law under which the prosecution is brought has been put in force by election and other proceedings provided for by statute, it is not incumbent on the state to show that the election was in all respects regular. State v. O'Brien (Mont.), 10-1006. d. Evidence of adoption. Judicial notice. — On a writ of review from the Circuit Court to a municipal court in a prosecution under the local option law, the Circuit Court cannot take cognizance of the adoption of such law by the voters of the county, though that fact was entered of rec- ord in the municipal court, but the transcript must contain the record entry in question. Gay V. Eugene (Ore.), 18-188. Certified copy of results of election.— In a criminal prosecution for the sale of intoxicating liquor in violation of a local option law, the adoption of a local option law may be proven by a certified copy of the record of the county commissioners, showing the result of the election as declared by the board, and by a certified copy of the affidavit of the publisher of a newspaper, showing the due publication of such result. State v. O'Brien (Mont.), 10-1006. e. Effect of adoption. Effect of adaption. — The adoption of a local option law in a county prohibits the sale of liquors in the incorporated towns therein, though the latter are given by the general incorporation law the power to license saloons within their corporate limits. In re O'Brien (Mont.), 1-373. The Oregon local option law (Laws 1905, p. 41), which provides that its clauses may be made applicable to any county or sub- division thereof or any precinct therein by a vote taken at an election ordered for the pur- pose, is in the nature of a floating enactment until it is made applicable to a particular locality in the mode prescribed, but when this has been done, the law attaches to such locality and relates back to the date of its promulsation. Gav r. Euepne (Ore.), 18- 188. INTOXICATING LIQUORS. 979 8. Civil Damage Acts. a. Who may su