QJnrnpU ICam ^rlynnl IGibtary KF8914.H6T"""""'"">"-'''"^^ A self ction of cases on trial practice : 3 1924 020 119 099 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020119099 A Selection of Cases on TRIAL PRACTICE At Common Law and Under Modern Statutes By EDWARD W. HINTON Professor of Law, University of Chicago CHICAGO CALLAGHAN AND COMPANY 1915 Copyright, 1915 BY Callaghan & Company PREFACE. From an early period law schools have recognized the/import- ance of pleading and evidence and have offered well organized courses in these subjects, but until recently the law of procedure has been inadequately treated. In most schools, where the sub- ject was noticed at all, it was covered by a lecture course on general practice, or more frequently, the practice of a particular jurisdiction, supplemented by more or less unsatisfactory work in a "moot court" of some sort. Several causes were responsible for this condition of affairs. First, the absence of any text adapted to class room needs ; second, the tendency to confuse the law of practice with the art of advocacy, a subject difficult, if not impossible, to teach by ordinary methods ; third, the assumption that practice was essen- tially a local matter, to be picked up in the office and court room after graduation. The result was that graduates came to the bar well trained in the substantive branches of the law, but practically untrained in the law of procedure. It is not surprising, there- fore, that eases were badly tried and the records filled with errors, resulting in a general demand for a reform of the practice. No doubt this part of the law may be vastly improved, but the editor is skeptical as to the success of "simplified procedure" without adequately trained men to administer it, or as to any real reform, not based on thorough understanding of the system that has come down from the common law, modified by patch- work legislation. m IV PREFACE. When the editor undertook to organize a course in practice some years ago, it soon became apparent to him that the same methods of study and instruction, which had proved satisfactory in other branches of the law, should be applied to this perplexing topic. As there was no collection of cases, it wa.s necessary to send the students to the original reports, an unsatisfactory method even with small classes, because it is impracticable to have the material under the student's eye during discussion in the class room. An increasing number of students made it impossible to rely on the library, and hence the present selection of cases has been prepared to meet the needs of students. The material has been collected during the last ten years for class room use. Probably no two instructors would agree in all particulars as to the precise topics which should be included in such a collec- tion, or as to the relative amount of space which should be assigned to each. In an attempt to solve the problem, the editor has been guided by his own experience both as a trial lawyer and teacher of practice, and by the following considerations : While it might be theoretically desirable to treat the entire field of adjective law as one connected whole, which would include plead- ing and evidence in their relation to trials, there were many practical reasons for excluding them from the present work. There were satisfactory case books on those subjects by Pro- fessors Thayer, Wigmore, Ames and others, which the present editor could not hope to equal. Further, the student needs a knowledge of the common law pleading at an early stage in his course in order to understand much of the substantive law, which is not true, or at least not to the same extent, in the case of practice. Hence it seemed undesirable to encroach on existing courses in pleading and evidence. The subjects, parties to actions, remedies for defective pleading, and the amendment of the plead- ings, might conceivably be treated under either pleading or practice, but seem to fall more naturally into the pleading courses. The subject of chandery practice can be best understood in con- nection with the equity pleading. These exclusions leave the following principal topics for this work : Process, defaults, con- tinuances, conduct of the trial, trials without a jury, new trials and bills of exceptions. The space allotted to each has been based, as far as possible, on their relative importance and diflS- culty. Since our procedure, like other branches of the law, has been derived from the common law, English eases have been freely PREFACE. V used, and in fields where the subject has been developing, and the former state of the law appeared to throw light on its present condition, the matter has been traced back to a considerable extent. The American cases have been taken from the Federal Courts and from the leading common law and code states. It is believed that a study of the cases will demonstrate that the law of procedure, while superficially variant in details in the several jurisdictions, is in the main surprisingly uniform, and no more local than torts or contracts. The present compilation is, of course, intended primarily for the use of students, but it is hoped that it may also be found useful to practitioners. In conclusion the editor wishes to acknowledge his indebtedness to the work of the late Professor James Bradley Thayer for many of the ideas he has attempted to embody in this collection. Edwaed W. Hinton. Law School University of Chicago September, 1915. TABLE OF CONTENTS Section 1. Section 2. Section 3. CHAPTER I. PEOCBSS. PAGE Form and Requisites 1 (a) Summons 1 (b) Notice 19 Service 37 (a) Common Law and Sta,tutory Methods. . . 37 (b) Privilege and Exemption from Service.. 62 (c) Waiver of Process or Service 78 (d) The Service Required in' Various Actions 108 Returns 146 (a) Substance and Form 146 (b) Falsifying 154 (c) Amendment 162 CHAPTER II. JUDGMENTS BY DEFAULT. Section 1. When Allowed 174 Section 2. Effect 181 Section 3. Setting Aside and Opening 189 CHAPTER III. CONTINUANCES. CHAPTER IV. CONDUCT OP THE TKIAL. Section 1. Selection of the Jury 222 (a) Challenges to the Array 222 vii VIH TABLE OF CONTENTS. Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 1. Section 2. Section 3. Section 1. Section 2. PAGE -Continued. (b) Challenges to the Polls 235 1. For Cause 235 2. Peremptory 256 Introduction of Evidence 263 (a) Preliminary Questions 263 (b) Offers and Objections 276 Demurrers to the Evidence 286 Direction of the Verdict 311 (a) When Proper 311 (b) The Motion or Request 355 Nonsuits 374 (a) When Permitted or Directed 374 (b) When Set Aside or Reviewed 401 Argument of Counsel 412 Instructions 430 (a) Questions for the Judge or Jury 430 (b) Rules Governing the Charge 513 (c) Requests and Exceptions 571 Verdicts 590 (a) Return and Entry 590 (b) General Verdicts 609 (c) Special Verdicts < .. . 626( (d) Special Findings 637 CHAPTER V. TRIALS BY THE COURT. Waiver of the Jury 653 Propositions of Law 663 Special Findings 673 CHAPTER VI. NEW TRIAIjS. Grounds 683 Motion or Application 735 CHAPTER VII. BILLS OP EXCEPTIONS. CASES ON TRIAL PRACTICE CHAPTER I. PROCESS. Section 1. Form and Requisites. (a) Summons. A writ is a latin letter of the king's, from thence in parch- ment sealed with his seal. All writs have a salutation, Rex to such a one salutem, and a conclusion expressing the name of the one which is witness to the writs, called Teste (who in writs out of the chancery is the king himself; in other writs the chief justice of the place) the place, as apud Westmonasterium, etc., and the time, both day and year of the making of it, if it be returnable, the day of the return is also appointed in it.^ WRIT IN DEBT. George the Third, etc. To the sheriff of , greeting : Command C. D., late of , that justly and without delay he render to A. B. the sum of £ ... . of good and lawful money of Great Britain, which he owes to, and unjustly detains from him, as it is said ; and unless he shall so do, and if the said A. B. shall make you secure of prosecuting his claim, then sum- mon by good summoners, the said C. D. that he be before us, on wheresoever we shall be in England, (or, in C. P. before our justices at Westminster, on ,) to shew wherefore he hath not done it, and have there the names of the summoners, and this writ. Witness ourself , etc. L. S.^ 1 Finch's Law, Book IV, p. 337. 2 Tidd's Appendix, 20. H. T. P.— 1 ^ 2 PROCESS. [Chap. I. "The first process, or proceeding upon the original writ, in actions of account, eonvenant, debt, annuity and detinue, is a summons, or warning to appear according to the exigency of the writ; being nothing more than a copy of the writ itself, made out by the plaintiff's attorney for the sheriff, and delivered by one of his officers to the defendant, or left at the usual place of his abode." 3 "It was a general rule or maxim of law, that the sanction of the king's original writ, issued out of chancery, was an essential preliminary form to the institution of a suit in the common law courts. Non potest quis sine brevi agere; * this was the prevail- ing doctrine. The practice of proceeding by bill without the original writ from chancery, in personal actions and in eject- ment, formed an exception to the rule. The practice of com- mencing an action by bill only obtained in each of the superior courts in the case of certain persons, privileged in regard to their official characters, or as officers of the courts, to be sued as being already present in court. And in the king's bench and exchequer the proceedings by bill in other cases was introduced by fictions, and afterwards sanctioned and legalized by usage. But the great variety of writs and bills led to so much intricacy and confusion, that, as regards personal actions, the former writs, bills, and pro- ceedings were abolished, and the writs of summons, capias, and detainer were introduced by 2W. 4, c. 39, and which writs do not, as formerly, set out the whole form and cause of action, but are only adopted as modes of bringing the defendant into court, and then, and not before, the declaration, stating the full form and cause of action, is delivered." ^ U. S. Compiled Statutes, 1913. § 1534. (R. S. § 911.) Sealing and testing of w^rits. All writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issu- ing from the Supreme Court [or a circuit court] shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those 3 Tidd's Practice, 2 Am. Ed. p. 103. 6 Chitty's Pleading, 16 Am. Ed. * * See III Blacliatoiie Comm. * p. p. 106. 273. Sec. 1.] FORM AND EEQTHSITES. 3 issuing from a district court shall bear teste of the judge, or, when that office is vacant, of the clerk thereof. The seals of said courts shall be provided at the expense of the United States. § 1535. (R. S. § 912.) Teste op process. Day of. All proc- ess issued from the courts of the United States shall bear teste from the day of such issue.^ § 1580. (R. S. § 948.) Amendment of process. Any [cir cuit or] district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where the defect has not prejudiced, and the amendment will not injure the party against whom such process issues. §1591. (R. S. §954.) Defects op form; amendments. No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof ; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such con- ditions as it shall, in its discretion and by its rules, prescribe. Illinois Constitution and Statutes. All process shall run; In the name of the People of the State of Illinois ; and all prosecutions shall be carried on : In the name and by the authority of the People of the State of Illinois ; and conclude : Against the peace and dignity of the same. Const. 1870, Art. VI, § 33. [1. Process — ^Form — "When returnable.] § 1. Be it enacted by the People of the State of Illinois, represented in the General Assenibly: The first process in all actions to be hereafter com- menced in any of the courts of record in this State shall be a summons, except actions where special bail may be required; 8 See also § 1536, set out in Peas- lee V. Haberstro, 15 Blatch. 472, Tpost, p. 18. 4 PROCESS. [Chap. I. which summons shall be issued under the seal of the court, tested in the name of the clerk of such court, dated on the day it shall be issued, and signed with his name, and shall be directed to the sheriif, (or, if he be interested in the suit, to the coroner of the county,) and shall be made returnable on the first day of the next term of the court in which the action may be commenced. If ten days shall not intervene between the time of suing out the summons and the next term of court, it shall be made return- able to the succeeding term. The plaintiif may, in any case, have summons made returnable at any term of the court which may be held within three months after the date thereof.'' [8. Summons.] § 8. Upon the filing of every bill, the clerk of the court shall thereupon issue a summons, tested, dated and sealed as a summons in common law suits, directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of this state, requiring him to appear and answer the bill on the return day of the summons ; and where there are sev- eral defendants residing in different counties, a separate sum- mons' shall be issued to each county, including all the defendants residing therein.* [9. Summons, When return able.] § 9. Every summons in chancery shall be made returnable to the next term of the court after the date thereof, or the next succeeding term thereafter. [10. Alias, pluries, etc.] §10. If, in any suit in chancery, the process shall not be returned executed on or before the return day thereof, the clerk, if required, shall issue an alias, pluries, or other process, without an order of the court therefor. FORM OP summons. State of Illinois, | Cook County. ^ ^ The People of the State of Illinois, to the Sheriff of said County, Greetings : We command you that you summon if he shall be found in your county, personally to be and to appear before the Superior Court of Cook County, on the first day of the term thereof, to be holden at the Court House, in the City of Chicago, 7 § 1, Chap. 110, R. S. 1913. § 38, and §§ 1756, 1757, 1759, R. S. General Practice Act. 1909. For corresponding provisions in s Chap. 32, R. S. 1913. Missouri, see Const. 1875, Art. VI, Chancery Practice Act. Sec. 1.] FORM AND REQUISITES. 5 in said Cook County, on the first Monday of January next, to answer unto in a plea of trespass on the case upon promises, to the damage of said plaintiff, as it is said, in the sum of twenty-five hundred dollars. And have you then and there this writ, with an endorsement thereon in what manner you shall have executed the same. Witness, , Clerk of our said Court, and the Seal thereof, at Chicago, aforesaid, this 1st day of December, A. D., 1911 Seal of the | Clerk. . Superior Court l of Cook County I Wisconsin Statutes, 1911. [2629. Jurisdiction, How acquired.] § 2629. A civil action in a court of record shall be commenced by the service of a summons. From the time of such service or the issuance of a provisional remedy the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings. [2630. Summons, Contents of.] § 2630. The summons shall contain : (1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county desig- nated by the plaintiff as the place of trial, and the names of the parties to the action, plaintiff and defendant. (2) A direction to the defendants summoning them to appear within twenty days after service of the summons, exclusive of the day of service, and defend the action. (3) A notice that in case of failure so to do judgment will be rendered against them according to the demand of the complaint. It shall be subscribed by the plaintiff or his attorney with the addition of his postoffice address, at which papers in the action may be served on him by mail. There may, at the option of the plaintiff, be added at the foot, when the complaint is not served with the summons and the only relief sought is the recovery of money, whether upon tort or contract, a brief notice specifying the sum to be demanded by the complaint. [2631. Form.] § 2631. Such summons ^ shall be substantially in the following form : 9 The summons provided by the treated as process, though it serves Wisconsin code is not technically the same purpose, JPorter v. Vander- PROCESS. [Chap. I. Court County A. B., Plaintiff vs. C. D., Defendant. 2'he State of Wisconsin, To the said defendant: You are hereby summoned to appear within twenty days after service of this summons, exclusive of the day of service, and de- fend the above entitled action in the court aforesaid; and in case of your failure so to do judgment will be rendered against you according to the demand of the complaint, of which a copy is herewith served upon you. E. F., Plaintiff's Attorney. P. 0. address County, Wis. If the complaint be not served with the summons the words "of which a copy is herewith served upon you" may be omitted or erased. DOAN V. BOLBY. 38 Missouri, 449. [1866.] "Wagner, Judge, delivered the opinion of the court. Plaintiffs instituted suit in 1862, in the Jefferson County Circuit Court, against the defendants, on a promissory note. A summons in the usual form, except that it did not run in the name of the State of Missouri, was issued and served upon the defendants. There was no appearance on the part of the defendants, and judgment was duly given against them in behalf of the plaintiffs. The summons commenced, "To the sheriff, etc.," and not "The State of Missouri to the Sheriff, ' ' as prescribed by the Constitu- tion, and this is the only error urged for a reversal. It is insisted by the counsel for the defendants in error, that as no exceptions were taken, or motion made for a new trial, in the court below, this court cannot take cognizance of the matter cook, 11 Wis. 70; see also McKenna the Federal Statute, Middleton V. Cooper, 79 Kans. 847, post, p. 28. Paper Co. v. Rock River Co., 19 Fed. But summons from a Federal court 253. sitting in Wisconsin is governed by Sec. 1.] DOAN V. BOLET. here. In the case of Bateson v. Clark, 37 Mo. 31, the distinction between what is properly matter of error and exception was briefly examined and pointed out, and the rule laid down, that error apparent on the face of the record, which includes the pleadings, summons and judgment, may be taken advantage of by writ of error in this court whether any motion was made or exceptions taken in the court below or not. It is not contended that the writ was entirely void by reason of not running in the name of the State, but that it was simply voidable.! Undoubtedly it would have been quashed on motion 1 McGrath, J., in Forbes v. Dar- ling, 94 Mich.. 621 (1893): The validity of the foreclosure proceed- ing is attacked on the ground that the subpoena issued in the cause, and returned as served, was not styled, "In the Name of the Peo- ple of the State of Michigan." The subpoena was returned, served, but Traneina Forbes did not appear, and the bill was taken as confessed. The statute (§7290) provides that the style of all process from courts of record in this State shall be, ' ' In the Name of the People of the State of Michigan. ' ' Section 35 of article 6 of the Constitution provides that the style of all process shall be, "In the Name of the People of the State of Michigan." In Tweed v. Met- calf, 4 Mich. 579, and again in Wisner v. Davenport, 5 Id. 501, it was insisted that certain tax rolls were void, because the warrant to the township treasurer was not styled, "In the Name of the People of the State of Michigan ; ' ' but the Court held that the common- law definition of the term "proc- ess" is a writ issued by some court or officer exercising judicial powers, and, further, that the term "proc- ess ' ' was intended to mean writs is- sued in the exercise of that judicial power created and established by the Constitution. In Johnson v. Insurance Co., 12 Mich. 216, the objection was made that the scire facias was not tested, "In the Name of the People of the State of Michigan. ' ' The Court held that neither the Constitution nor the statute required the writ to be so tested; that the objection, which was a purely technical one, was itself insufficiently taken; and that it was therefore unnecessary to determine whether the Constitution could be satisfied by a substantial compliance therewith. There the scire facias was styled as follows: "The People of the State of Michi- gan;" and the Court held that the fact that the words "In the Name of the People of the State of Michi- gan; were inserted in the Consti- tution between inverted commas favored the idea that the phrase must be used verbatim. In the present case the caption of the process was as follows: "State of Michigan. "The Circuit Court for the County of Newaygo, in Chan- cery. ' ' "To Francina Forbes — Greeting." This is not even a substantial compliance with this provision of the Constitution. The object of this provision undoubtedly is to make this style the distinguishing feature of all process. The requirement is 8 PROCESS. [Chap. I. in the court below, or it might have been amended on a direct application for that purpose. It has ..been held that the provi- sions of the State Constitution requiring all writs and process to run in the name of the State of Missouri is merely directory, and therefore an omission to comply with the requirements would be merely irregularity — Davis v. Wood, 7 Mo. 162. Now the statute declares that when a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall the judgment upon such verdict, or any judgment upon confession, nihil dicit, or upon failure to answer, be reversed, impaired or in any way affected for any default or defect of process. The process here was certainly defective; it might have been taken advantage of at the proper time, but, as the parties did not avail themselves of the defect, it is cured by virtue of the statute. — E. C. 1855, p. 1255, § 19. The other judges concurring, the judgment will be affirmed. CASE V. HUMPHREY. 6 Connecticut, 130. [1826.] This was an action on the case, for a false return of a writ of attachment against the plaintiff. The declaration stated, That on the 16th of September, 1823, a writ of attachment was issued, in favour of Benjamin Weed, against the plaintiff, on a promis- sory note ; that it was directed to the defendant, as an indifferent person, by Benjamin Weed, jun., a justice of the peace, who signed the writ ; that it was delivered to the defendant to execute ; that the plaintiff had a good defence to the action, of which he had neither notice nor knowledge ; but that the defendant fraudu- coustitutional, and the defect jur- Complainants are entitled to the isdictional. costs of both courts. The decree below must therefore The other justices concurred, be reversed, and defendants en- In State Bank v. Buckmaster, 1 joined from proceeding to sale un- 111. 176 (1826), it was held that der the decree for foreclosure, with- such an omission might be supplied out prejudice, however, to any sub- by amendment after motion to dis- sequent proceedings to foreclose miss, said mortgage. Sec. l.J CASE v. Humphrey. 9 lently indorsed upon the writ, that he had made service of it, and returned it to the county court of Hartford county, to which it was returnable; that at the term of that court, in November, 1823, Benjamin Weed recovered judgment against the plaintiff, by default; and that by execution issued upon the judgment, the paintiff's property was subsequently taken and sold. The cause was tried, upon the issue of not guilty, at Litchfield, February term, 1826, before Hosmer, Ch. J. The trial judge excluded the record of the judgment and directed a verdict for defendant. Plaintiff moved for a new trial. Hosmer, Ch. J. No doubt can be entertained, that the plain- tiff's declaration was sufficient to withstand a demurrer; and that he has done what it was necessary he should do ; and that is, he has averred, that the writ was lawfully directed to the defendant, as an indifferent person, and that a lawful judgment was rendered upon it. Did the testimony offered sustain this allegation ? The writ in question was directed to the defendant, as an indifferent person; and the justice who administered the pre- liminary oath, certified in the following terms: "Personally appeared Samuel "Weed, and made solemn oath, that he verily be- lieved the plaintiff to be in danger of losing the within described debt, unless an indifferent person be deputed for the immediate service of the writ. ' ' The law requires, if a sheriff or constable cannot bfe obtained to serve process, that before the direction of it to an indifferent person, an affidavit, in certain prescribed words, shall be made, by the plaintiff, or his agent, and the same shall be certified on the writ. Stat. p. 35. Certain positions relating to this subject are perfectly incon- trovertible. The certificate of the justice, regarding the administration of the oath, is the only source of evidence to which the court can. recur. From this it must appear, at least by reasonable con- struction of the words of it, and not from conjecture, presump- tion or any thing de hors, that the prerequisites of the law have been complied with. Stanton v. Button, 2 Conn. Rep. 527. The oath must be administered, in the prescribed words of the law, and not in what the justice may, perhaps, very erroneously, consider equivalent expressions; and from his certificate this 10 PROCESS. [Chap. I. must appear. It likewise must appear that the person making affidavit was the plaintiff in the suit or his agent. The service of writs, in general, is required to be made by a known public officer; and it is no unwarrantable inference that the protection and security of the citizen are interested in the prevention of any unnecessary departure from this principle. The plaintiff's declaration, if the facts are stated truly, is an illustration and proof of this position. The direction of a writ to an indifferent person is an exception from the general rule ; and all exceptions from the common principle are to receive a strict construction. To the direction of the writ in question there are two decisive objections. In the first place, the oath was administered to Samuel Weed, who certainly was not the plaintiff in the suit; nor is it said that he was his agent. He was a stranger, incapable of making a legal affidavit. The law is peremptory, that the oath shall be made, by the plaintiff, or his agent ; and he was neither. It cannot be presumed, as there is nothing from which a pre- sumption can be made, that he was authorized by the plaintiff; unless we admit, to aid the justice 's certificate, that all mankind were his agents : for every man in the community, from the nature of the case, is equally within the scope of this liberal conjecture. There is a second objection precisely as fatal to the legality of the direction. The justice has not certified that he administered the oath prescribed by law ; but that the deponent swore to some- thing, which the justice considered of the same import. The direction of the writ not being legal, the indifferent person was, in no sense, an officer, nor invested with authority to make service. There being no service, nor even possibility of it, under the illegal direction, the judgment of the court was extra-judicial and void. The jurisdiction of a court, if it extend to the parties and subject matter, when legally before them, can never be called into exercise, unless through the medium of a process, complete in law, and duly served ; or in other words, the court must first have cognizance of the process before it can do any legal act in the cause. Grumon v. Raymond et al. 1 Conn. Rep. 40. Between a writ not duly directed to an indifferent person, and one that has no direction in fact, there is no legal difference. It results, most clearly, that the evidence offered, of a writ not lawfully directed, of a judgment in fact only, and not in law, did not sustain the averment, that a writ was legally directed, Sec. 1.] CASE v. Humphrey. 11 or that a judgment was legally rendered ; and for this reason, it was correctly repelled. The plaintiff has contended that it is too late for the court to act upon the objections to the writ and judgment, which have been discussed. He first insists that the only remedy for the unauthorized di- rection of the writ was by plea of abatement ; and to sustain this position he relies on the words of the statute, p. 35, that, "if any writ, etc. shaU be directed to an indifferent person, except in the cases and under the regulations above mentioned, it shall abate. ' ' The law, most manifestly, has been misconceived by the confound- ing of two expressions of a very different meaning. It is not said that the defendant shall take his redress by plea of abate- ment, but that the writ shall abate. This is a generic term, derived from the French word abattre, and signifies to quash, beat -down, or destroy. 3 Black. Comm. 168. The modes of abatement are various , but the thing is simple and uniform. A plea of abatement is one mode of quashing a writ, but it is not the only one. Sometimes it is the duty of the court to abate the writ ex officio, and the instances where this is the legal and proper remedy are numerous. "Where a writ is nullity, so that judgment thereon would be incurably erroneous, it is de facto abated. Earl of Clanriekard's case. Hob. 288. Case of Pines, 3 Rep. 85. Hughson v. Webb, Cro. Eliz. 121. Cooke v. Gibbs, 2 Mass. Rep. 193. Wood v. Ross, 11 Mass. Rep. 271. And even the explicit admission of its validity by the party never concludes the court. In the case before us, it never could have been the intention' of the legislature to suspend the remedy on a plea of abatement, but to enjoin on the court that a writ, incomplete, without direction to a person who could serve it and attended with a defect, palpable, fatal and unamendable, should be quashed. Eno v. Prisbie, 5 Day, 127. When they declared that such writ shall abate, the term was used in its most comprehensive sense, not prescribing a mode, but commanding the thing in a manner the most absolute and imperious. If, however, the law had prescribed that the writ should be dismissed, on plea of abatement, it would have made no difference in the case. The prescription of one mode of redress, where the common law gives another remedy, does not operate a repeal of the common law if there is no inconsistency between them ; but they shall both have a concurrent efficacy. Dr. Poster's case, 11 12 PROCESS. [Chap. I. Eep. 63. 1 Black. Com. 89. The common law must be nega- tived by the statute or the matter must be so clearly repugnant as to imply a negative in order to effect a repeal of it. The result on this part of the argument is, that the statute has not required a plea of abatement in the case supposed ; and if it had, it would not take away the common law remedy. New trial refused. OAKLEY qui tam v. GILES. 3 East, 167. [1802.] In action to recover penalties on a statute, the defendant was served on the 3d of November with a copy of process in the name of William Giles, his true name being Edward; in consequence of which he did not appear, but the plaintiff afterwards served him with notice of declaration by his right name, and proceeded to judgment against him for want of a plea, and sued out execu- tion last night. Park thereupon moved to set aside the proceedings for irregu- larity, and cited Doe v. Butcher (3 T. E. 611) and Corbett v. Bates (3 T. R. 660), in which the distinction was taken in this respect, where the defendant himself appears when sued by a wrong name, and where the plaintiff enters an appearance for him, according to the statute by his right name ; in the latter case the defect is not cured, and the Court will set aside the sub- sequent proceedings for irregularity. The Court, however, refused a rule ; saying that the defendant having been the real person served with the process, ought to have pleaded in abatement, and cotdd not take advantage of the mis- nomer in any other manner than that which the law had marked out: if this were allowed, pleas in abatement for a misnomer might be struck out of the books. Park, at the close of the day renewed his motion, and obtained a rule nisi for setting aside the proceedings on payment of costs, upon a further affidavit, stating that the defendant's attorney had been misled by the authorities and books of practice, and had advised the defendant not to appear and defend himself against what was deemed to be nugatory process; and also swearing to merits. ' Sec. 1.] GILL V. HOBLIT. 13 GILL V. HOBLIT. 23 Illmois, 420. [I860.] Writ of error to a judgment by default. Mr. Chief Justice Caton delivered the opinion of the Court : We are asked in this case to reconsider the question decided in Orendortf v. Stanberry, 20 111. 90. The judgment was rendered against GiU, the plaintiff in error, by the Logan Circuit Court, upon a summons issued by the clerk of that court, as follows : "The State of Illinois Logan County ^ 'The People of the State of Illinois to the Sherifif of Cook County : "We command you that you summons George Michael and Elijah Wicklin and Richard T. Gill, if they shall be found in your county, personally to be and appear before the Circuit Court of said county, on the first day of the next term thereof, to be holden at the Court House in Lincoln, on the third Monday in the month of September next, to answer Samuel Hoblit in a plea of assumpsit, to his damage, $600, as he saith ; and have you then and there this writ and make return thereon in what man- ner you execute the same. Witness J. C. Webster, Clerk of our Circuit Court at Lincoln, this 21st day of August, in the year of our Lord one thousand eight hundred and fifty-seven. (seal) Teste J. C. Webster, Clerk of Circuit Court." This summons was returned by the sheriff of Cook County served on Gill ; the other defendants not found. Where was the defendant below commanded to appear and answer the com- plaint of the plaintiff ? The summons was directed to the sheriff of Cook County, who was commanded to summon the defendants, if they should be found in his county, to appear before the circuit court of said county, at the court house in Lincoln. There can be no dispute that the county of the sheriff to whom the summons was directed, was Cook County. In that county he was com- manded to search for the defendants, and if found there, to sum- mon them to appear before the Circuit Court of that county. If the sheriff obeyed the command of the writ, he summoned Gill to appear before the Circuit Court of that county. His return shows that he served the writ as he was commanded by it. Had he 14 PROCESS. [Chap. I. summoned the defendant to appear before the Logan Circuit Court, he would have disobeyed the mandate which he had received, and for that reason the act would have been void. Where then was the defendant bound to appear? Not in Logan County surely, for he was not required to go there, but before the Circuit Court of Cook County, to be holden at Lincoln, and when he could find no such place in that county, he was not bound to seek another court in a different county. It was not a matter of doubt even, as was urged upon the argument, whether he should appear before the Cook or the Logan Circuit Court, which doubt he was bound to solve by hunting up Lincoln, in Logan County, and there appearing. He was no more bound to go into Logan County, than he was into Peoria. He was bound to obey the summons, or if that was impossible, he was bound to do nothing. But the summons was in fact void, for it contained a mandate to the defendant which he was not bound to obey, and which, in fact, it was impossible for him to obey. We adhere to our former decision, and reverse the judgment and remand the cause. Judgment reversed.^ PARSONS v. SWEET. 32 New HampshAre, 87. [1855.] The original writ in this action, dated March 24, 1855, was made returnable to the Court of Common Pleas, May term, 1855, and bore the teste of John J. Gilchrist, Esquire. At the first term in the Common Pleas the defendants pleaded in abatement of the writ that it did not bear the teste of the chief, first, or senior justice of that court. To this plea the plaintiff demurred, and the plea was adjudged to be bad on account of defect in form. At the second term in the Common Pleas the defendants moved that the writ be quashed for the same cause that had before been pleaded in abatement, and the motion was denied. 1 And so where summons required Mich. 157 ; Bobb v. Graham, 4 Mo. defendant to appear at a time al- 222, where summons did not fix the ready past, Hendricks v. Pugh, 57 time for appearance. Sec. 1.] PARSONS v. sweet. 15 No evidence was offered on the motion. On the 24th of March, 1855, John J. Gilchrist, Esquire, was not in fact chief, first or senior justice of the Court of Common Pleas, he having before that time resigned his ofi&ce of chief justice of that court and of the Superior Court. Peelet, C. J. The Constitution of New Hampshire, article 87, provides that "all writs issuing out of the clerk's office in any of the courts of law, shaU be in the name of the State of New Hamp- shire; shall be under the seal of the court whence they issue, and bear the teste of the chief, first, or senior justice of the court, and shaU be signed by the clerk of said court. ' ' Provisions of the Constitution are to be interpreted by the same rules that are applied in the construction of similar pro- visions in statutes; and the party that would avail himself of any provision in the Constitution must do it in the same manner and in the same time and order, that would be required in cases of like provisions in statutes. Ripley v. "Warren, 2 Pick. 594; Marston v. Brackett, 9 N. H. 336, 349. Before the Revolution all writs in the Province of New Hamp- shire were in the king's name; and probably when the change was first made, by substituting the name of the State for the regal style, one object was to avoid all appearance of recogniz- ing the royal authority. If beyond this tbere is any design to give authenticity and credit to legal process, by requiring an actual attestation of the chief, first, or senior justice of the court, the practical construction which has uniformly been put on this provision of the Constitution has wholly defeated that object; for the ordinary process of the court never in fact bears the actual signature of the chief justice, but his name is printed into the blank writs before they are delivered out of the clerk's office. The teste of the writ is therefore in practice a mere matter of form. A writ which issues without the proper teste is not in terms declared by the Constitution to be void, and we think is not to be held so by construction. In the same article of the Constitu- tion writs are required to be signed by the clerk, but a writ is not void because it wants the signature of the clerk, and the ob- jection will be overruled, if not seasonably made. Lovell v. Sa- bine, 15 N. H. 37. In Massachusetts, upon the construction of a similar provision in their Constitution, it has been decided that the want of a 16 PROCESS. [Chap. I. proper teste is mere matter of form, and must be taken advan- tage of by seasonable objection otherwise it will be held to have been waived. Ripley v. Warren, 2 Pick. 592. In this case the want of a proper teste did not make the writ void. The plea in abatement was defective in form, and over- ruled. The motion to quash the writ was addressed to the dis- cretion of the court, and that discretion was properly exercised by denying the motion. As a general rule, a motion to quash a writ for a cause which might be taken advantage of by plea in abatement, must be made within the time limited for filing pleas in abatement. Trafton v. Rogers, 13 Maine 315. Our practice requires such pleas to be filed within the first four days of the first term, and the Court of Common Pleas were well warranted in holding that the defendants had waived their right to insist on the objection, by neglecting to make the motion until the second term. Even if the plea in abatement had been sufficient, or the mo- tion to quash had been seasonably made, the writ might have been amended, for it was not void, and the court had jurisdic- tion; as we understand to have been held in Reynolds v. Dam- rell, decided in Hillsborough County, July, 1849, and not re- ported. We have not overlooked the case of Hutehins v. Edson, 1 N. H. 139, in which it was held that a writ of execution, not under the seal of the court, was void. The general language used in that ease might tend to the conclusion that writs of mesne as well as final process, were void, unless under the seal of the court. It is obvious, however, that there is an important distinction between the two kinds of writs, because to a writ of final process the defendant has no opportunity to object, by plea or motion, that it wants a seal or other constitutional requisite ; whereas in the case of mesne process he may plead the defect, or make it the ground of motion ; and it may perhaps be found, when a case shall arise which presents the question, that the doc- trine of Hutehins v. Edson ought not to be extended beyond the point expressly decided. Foot v. Ejiowles, 4 Met. 386 ; Brewer V. Sibbley, 13 Metcalf 175 ; People v. Dunning, 1 Wendell 17 ; Jackson v. Brown, 4 Cowen 550. Sec. 1,] GARLAND V. BBITTON. 17 GAEIiAND V. BRITTON. 12 Illinois, 232. [1850.] This was a bill to foreclose a mortgage. The process served was not attested by any seal. At the return term the bill was taken for confessed, and a decree was entered by Treat, Justice, at November term, 1847. The plaintiff in error now seeks to reverse the judgment of the Circuit Court and assigns for error the want of a seal to the summons. Treat, C. J. This was a suit in chancery to foreclose a mort- gage. The summons issued and served on the defendant was not under the seal of the court. The bill was taken for confessed, and a decree of foreclosure entered. The defendant sued out a writ of error. The statute declares that "all process issuing from the said Circuit Courts shall be sealed with the judicial seal which shall be provided for that purpose ; but in case there shall not be a judicial seal the clerk shall affix his private seal until a public one shall be provided." R. S., ch. 29, sec. 40. This statute is imperative in its requirements. If a court has a judi- cial seal it must be affixed to all of its process ; if it has not, the clerk must use his private seal, but he ought in such case to certify that no public seal has been provided, for the presump- tion is that every court has a seal. The writ in this case did not purport to be under the seal of the court nor the private seal of the clerk. It was, therefore, without validity, and the service of the same was without effect. The defendant not being before the court, by the service of process, or by appearing in the case, the decree was unauthorized and must be reversed. See Hannum V. Thompson, 1 Scammon, 238, and Anglin v. Nott, ibid, 395. Decree reversed.'^ 1 Semble, same result in case sum- summons was not sealed. In In- mons is not signed by the clerk, Her- suranee Co. v. HaUock, 6 Wall. (U. nandes v. Drake, 81 ID. 34. In S.) 536, an unsealed order of sale Choate v. Spencer, 13 Mont. 127, was held void. a judgment by default was held sub- But see. Strong v. Catlin, 3 Pin- ject to collateral attack where the ney, 121, -post 188. H. T. P.— 2 18 PROCESS. [Chap. I. RUDD V. THOMPSON. 22 Arkansas, 363. [I860.] Mr. Chief Justice English delivered the opinion of the court. The defendants in error recovered a judgment by default, in the Desha Circuit Court, against the plaintiffs in error for $25,000 debt and $1,500 damages. The counsel for the defendants admits that the recovery, upon the declaration, was excessive, offers to remit the excess, and asks an affirmance under the rule, etc. But two objections are taken to the writ, which are founded in fact, as it appears in the transcript before us: 1st, that it has no seal, and 2nd, that it was directed to Henry Smith, the sheriff, and was served and returned, as appears from the return endorsed by Thomas McKallister, the coroner of the county. 1. It has been the practice of this court to reverse judgments by default in cases where the summons was without the official, seal of the clerk, and such writs were treated as void. But in Mit<;hell V. Conley, 13 Ark. 418, the court, upon a review of its previous decisions, held that writs were not void for such defects, but voidable, and that the court below possessed the power to amend them on application. Here no application was made to amend, and the defect in the writ is cause of reversal. 2. The writ being directed to the sheriff, the coroner had no authority to execute it. Hughes v. Martin, 1 Ark. 386. If the sheriff was disqualified to serve the writ, there should have been an affidavit of the fact, and the writ directed to the coroner. Gould's Dig., chap. 38, sec. 7, 8; 14 Ark. 59. The judgment must be reversed, the cause remanded and the plaintiff in error must be regarded as in court under the rule, etc. PEASLEB V. HABERSTRO. 15 Blatchford (U. 8. C. C), 472. [1879.] Wallace, J. The motion to set aside the summons in this action must be granted, upon the ground that the summons was Sec. 1.] PEASLEE V. HABBRSTRO. 19 not signed by the clerk or under the seal of the court. Section 911 of the Revised Statutes of the United States prescribes, that "all writs and processes issuing from the courts of the United States shall be under the seal of the court from which they issue, and shall be signed by the clerk thereof." This provision is not inconsistent with, and therefore, is not repealed by, the subsequent Act of Congress (Act of June 1st, 1872, § 5, 17 U. S. Stat, at Large, 197), now embodied in section 914 of the Revised Statutes, which enacts that "the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District courts, shall con- form, as near as may be, to the practice, ple"kdings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held." Giving due effect to the later act, the practice, and forms and modes of proceeding, in the courts of the United States, in common law actions, is to conform to, and be regulated by, that of the state courts, when there is no statute of the United States prescribing different practice or forms or modes of procedure. When the statutes of the United States are silent, the practice of the state courts will prevail, but, when those statutes speak, they are controlling. If the summons in this case had been signed by the clerk, it could be amended as regards the seal.^ As it is, there is no summons in the nature of process known to this court. The summons is set aside. (b) Notice. U. S. Compiled Statutes, 1913. § 1039. (JuD. code, § 57.) Absent defendants in suits to enforce liens, remove clouds on titles, etc. "When in any suit commenced in any District Court of the United States iSee Jump v. McClurg, 35 Mo. At common law, signing by the 193, aUowing an amendment of an filazer does not appear to have been unsealed writ of attachment. See necessary, rrost v'. Eyles, 1 H. Bl. also, Redmond v. Mullinax, 113 N. 120. C. 505; Baker v. Swift, 87 Ala. 530. 20 PROCESS. [Chap. I. to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be desig- nated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be ; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week fgr six consecutive weeks. In case such absent de- fendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order and of the performance of the direc- tions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudi- cation of such suit in the same manner as if such absent defend- ant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or de- fendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within sucTi district; and when a part of the said real or personal property against which such proceed- ings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state; Provided, however, that any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said District Court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just ; and thereupon said suit shall be proceeded with to final judgment according to law. Sec. 1.] POEM AND REQUISITES. 21 Revised Statutes of Missouri, 1909. § 1770. Orders op publication. In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or de- mand to or against any real or personal property within the jurisdiction of the court, if the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the state, or is a cor- poration of another state, kingdom or country, and cannot be served in this state in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents or ab- sentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition, and, in suits in partition, describing the property sought to be par- titioned, and requiring such defendant or defendants to appear on a day to be named therein and answer the petition, or that the petition will be taken as confessed. If in any case there shall be sufficient time to make publication to the first term, the order shall be made returnable to the next term thereafter, that will allow sufficient time for such publication. § 1772. Publication to issue on return op non est. When, in any of the cases contained in section 1770, summons shall be issued against any defendant, and the sheriff to whom it is di- rected shall make return that the defendant or defendants can- not be found, the court, being first satisfied that process cannot be served, shall make an order as is required in said section.^ iFor corresponding provisions in 11, §22, Chap. 110, §8; Wisconsin Illinois and Wisconsin, see Illinois, Statutes, 1911, §§ 2639, 2640. B. 8. 1913, Chap. 22, §12; Chap. 22 PROCESS. [Chap. I. DOUGLAS V. FORREST. 4 Bingham, 686. [1828.] Best, C. J. This was an action brought by the assignees of Stein & Co., bankrupts, against the executor of the will of John Hunter. On the 31st of May, 1799, the testator acknowledged himself to be indebted to Stein & Co. in the sum of £447 6s 3d ; and on the 11th of June in the same year, he acknowledged that he owed £75 to Robert Smith, one of the bankrupts, and one of the firm of Stein & Co. These debts were contracted in Scotland, of which country the deceased was a native, and in which he had a heritable property. Shortly after the year 1799 the de- ceased went to India. He died in India in 1817, having never revisited Scotland. On the 25th of February, 1802, two decrees were pronounced in the Court of Sessions in Scotland against the deceased, one at the instance of Stein & Co., and the other at the instance of Robert Smith. In the first of these the deceased was ordered to pay to Stein & Co. £447 6s 3d, with interest, from the day of , besides expenses of process, etc. In the second decree the deceased was ordered to pay Robert Smith the sum of £75, with interest, from the day of , besides expenses of process, etc. It appeared from these decrees that the deceased was out of Scotland at the time the proceedings were instituted in these causes. He never had any notice of those proceedings. The decrees stated that the deceased had been (according to the law of Scotland) summoned at the market cross of Edinburgh, and at the pier and shore of Leith. A Scotch advocate proved that, by the law of Scotland, the Court of Session might pro- nounce judgment against a native Scotchman who had heritable property in that country for a debt contracted in Scotland, al- though the debtor had no notice of any of the proceedings, and was out of Scotland at the time. After such proclamations as were mentioned in these decrees had been made, the same wit- ness proved that a person against whom such a decree was pro- nounced, might, at any time within forty years, dispute the merits of such decree; but that after the expiration of forty years, it was conclusive against him and all who claimed under him. The questions to be decided are, first, whether an action can Sec. 1.] DOUGLAS v. forbest. 23 be maintained in England on these judgments of the Court of Session in Scotland. Secondly, whether the replication is an an- swer to the pleas of the statute of limitations. On the first question we agree with the defendant's counsel that if these decrees are repugnant to the principles of universal justice this court ought not to give effect to them ; but we think that these decrees are perfectly consistent with the principles of justice. If we held that they were not consistent with the prin- ciples of justice, we should condemn the proceedings of some of our own courts.^ If a debt be contracted within the city of Lon- don, and the creditor issues a summons against the debtor, to which a return is made, that the debtor hath nothing within the city by which he may be summoned, or, in plainer words, hath nothing by the seizure of which his appearance may be enforced, goods belonging to the debtor in the hands of a third person, or money due from a third person to the debtor, may be attached; and unless the debtor appears within a year and a day, and dis- putes his debt, he is forever deprived of his property or the debts due to him. In such eases the defendant may be in the East Indies whilst the proceedings are going on against him in a court in London, and may not know that any such proceedings are instituted. Instead of the forty years given by the Scotch law, he has only one year given to him to appear and prevent a decision that finally transfers from him his property. Lord Chief Justice De Grey thought this custom of foreign attachment was an unrea- sonable one, but it has existed from the earliest times in London, and in other towns in England, and in many of our colonies from their first establishment. Lord Chief Justice De Grey and the Court of Common Pleas, after much consideration, decided against the validity of the attachment, according to the report in 3 "Wilson, 297, because the party objecting to it had never been summoned or had notice. The report of the same case in 2 Blackstone, 834, shows that the court did not think a personal summons necessary, or any summons that could convey any in- formation to the person summoned, but a summons with a return of nihU; that is, such a summons as I have mentioned, namely, one that shows that the debtor is not within the city, and has noth- iFor former chancery practice, gee Daniel's Chancery Practice, p. 449. 24 PROCESS. [Chap. I. ing there, by the seizing of which he may be compelled to appear. The 54 G. 3, ch. 137, not only recognizes the practice on which these decrees are founded, as being according to the law of Scot- land, but enacts that on notices being given at the market cross at Edinburgh, and on the pier and shore of Leith, to debtors out of the kingdom, in default of their appearance the creditors may issue a sequestration against their effects. Can we say that a practice which the legislature of the United Kingdom has recog- nized and extended to other eases is contrary to the principles of justice ? INDIANA & ARKANSAS LUMBER CO. v. BRINKLEY. 164 Fed. Rep. 963 (C. C. A. 1908). The defendant appealed from a decree holding void certain judgments of the state court enforcing special assessment liens. Sanborn, Circuit Judge. The basic principle of. the juris- prudence of the English-speaking nations is that no person shall be deprived of his life, liberty, or property without due process of law; that is to say, without notice and an opportunity to be heard before the decision respecting the justice of the disposition of his life, liberty, or property that is sought. Const. U. S. Amend. 14; Const. Ark., art. 2, § 21; 2 Kent's Comm. 13; Alex- ander v. Gordon, 101 Fed. 91, 96, 98, 41 C. C. A. 228. In the absence of legislative power to proceed otherwise, there is but one way to make a person a party to a suit or to direct to him an adequate notice of a proceeding to deprive him of his prop- erty or to bring his person within the jurisdiction of a court, and that is to direct the notice to him by his name and to serve it upon him in person. And where the authority is granted by a statute to notify him otherwise on certain conditions, those conditions must be fulfilled, the method prescribed must be sub- stantially followed or the court fails to obtain jurisdiction of his person, and its decree against him is ineffectual and void. There was a provision of the statutes of Arkansas that, upon condi- tion that it appeared in the complaint that the heirs of a de- ceased person or the owners of property to be disposed of in a suit were unknown, a warning order might be made by the clerk against such unknown heirs or owners. But there was no other Sec. 1.] IND. & ARK. LBR. CO. V. BRINKLET. 25 provision in the legislation of Arkansas whereby the heirs of a deceased person might be brought within the jurisdiction of one of its courts in a personal action without making them parties to the suit by name. The expression of one method of obtaining constructive service of such parties is the exclusion of all others, and this legislation was a denial of authority to obtain jurisdic- tion of unknown heirs or owners by constructive service in any other way than that there prescribed. The plaintiff in the suit to enforce the levee assessment either knew, or he did not know, who the heirs of R. C. Brinkley were. If he knew, there was but one way in which he could bring them within the jurisdiction of the court, and that was by making them defendants by their true names both in his complaint and in his warning order, and by directing the order to them by those names, for there was no authority granted by statute, by the common law, or by the prac- tice of the courts to obtain jurisdiction of a defendant, whose name was known, in a personal suit in any other way. There was no statutory or other authority to obtain jurisdiction of such a defendant in a personal suit by publishing a notice to a class of which he might be a member without naming him. If, on the other hand, the plaintiff did not know the names of those heirs, there was only one way in which he could bring them within the jurisdiction of the court, and that was by averring that fact in his complaint and procuring a warning order di- rected to them as unknown heirs. He pursued neither course. He did not make the defendant, or the other heirs of R. C. Brink- ley, deceased, defendants by their names, and the court acquired no jurisdiction of them if their names were known to him, and he did not allege in his complaint that their names were un- known to him, and the courl^ acquired no jurisdiction of them if their names were not known to him. The inevitable conclusion is that where, in a suit m personam in chancery, the only author- ity to obtain jurisdiction of persons by publishing a warning or- der directed to heirs of a deceased person without naming them is conditioned by the appearance in the complaint of the aver- ment that their names are unknown, the court acquires no juris- diction of them by the issue and publication of such an order in the absence of the requisite averment.^ 1 See also Manning v. Heady, 64 Wis. 630. 26 PROCESS. [Chap. I. KENNEDY v. THE NEW YORK LIFE INSURANCE CO. 101 New York, 487. [1886.] Appeal from order of the General Term of the Supreme Court in the second judicial department, made February 12, 1884, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term. (Reported be- low, 32 Hun. 35.) This action was brought to recover damages for an alleged breach of contract by defendant to sell and convey to plaintiff certain premises. Defendant acquired title under a foreclosure sale ; it was ready and willing to convey, but plaintiff declined to accept a con- veyance, claiming defendant's title was defective, in that the summons in the foreclosure suit was served by publication, and that the affidavit upon which the order for such service was made was insufficient to give the court jurisdiction. Miller, J. The right of the plaintiff to recover in this action depends upon the construction to be placed on section 135 of the Code of Procedure. In Carleton v. Carleton (85 N. Y. 313), upon which the re- spondent relies, the affidavit stated, ' ' that defendant has not re- sided in the State of New York since March, 1877, and deponent is advised and believes is now a resident of San Francisco, Cali- fornia," and it was held that this was not sufficient under the Code of Procedure (section 135) to authorize the granting of the order; that it was merely an allegation of non-residence, and did not tend to establish that defendant could not, after due diligence, be found within the state. It will be seen that in the case cited the affidavit as to resi- dence is upon information and belief and does not show posi- tively and distinctly that the defendant was a non-resident. Considerable stress is laid upon this fact, and in the opinion it is said: "Cases may arise where the proof of residence in a distant state at the very time, and of an absolute location there, would be so strong and conclusive as to render it entirely ap- parent that no act of diligence would be of any avail ; and if the affidavit here had stated positively and distinctly that the de- fendant was at the time not only a resident of the state of Cali- fornia, but was then actually living in that state, there would be Sec. l.J KENNEDY V. N. T. LIFE INS. CO. 27 ground for claiming that due diligence would be unavailing." It would thus seem that where the proof of non-residence is clear and conclusive, and that the defendant is living out of the- state and in a distant state, there may be strong reasons for hold- ing that proof of due diligence is not required and a different result arrived at. The ease under consideration differs somewhat from Carleton V. Carleton (supra). The affidavit here states that the defend- ants "cannot, after due diligence, be found within this state" (they being residents of other states as therein named), and "that the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence." Here is a clear statement that the defendants are non-residents of the state and reside in other and distant states, and that the summons which has been issued cannot be served by reason thereof. This supplies the defect in the affi- davit in the case cited in reference to the proof of non-residence and establishes beyond question the fact, making the case consid- ered stronger in this respect than the one cited. The allegation as to non-residence is preceded by the statement that the defend- ants cannot, after due diligence, be found within this state, which, taken in connection with the subsequent averment as to non-residence, may be considered, we think, as a statement either that an attempt has been made to find the defendants, or at least that they are so remotely located out of the state and have such a fixed residence that it would be impossible after due diligence to find them within the state for the purpose of serving summons on them.i 1 Potter, J., in McCracken v. mons by publication. Those facts Flanagan, 127 N. T. 493. "It is, do not imply that any diligence has from an examination of this statute, been exercised to find and serve the and the decisions in relation to it, defendant personally with process, pretty evident that some degree of It needs no argument to show that diligence must be exercised to find the averment in the affidavit that the party, and what is a due degree the defendant cannot be found in depends upon circumstances sur- the state does not tend to prove rounding each case, and that the the exercise of due diligence to find simple averments in the affidavit the defendant, for the statute in that the defendant is a non-resident question not only requires that it be and cannot be found within the state stated in the affidavit that the de- are not alone sufficient to support fendant cannot be found, but ex- an order for tte service of a sum- pressly requires the averment that 28 PROCESS. [Chap. I. The statement as to due diligence is not absolutely an allega- tion of a conclusion of law, or an opinion, but, in connection with what follows, a statement of facts which tend to establish that due diligence has been used. The two cases are clearly distinguishable, and we think the affidavit here contained allegations sufficient to call upon the judicial mind to determine whether due diligence had been em- ployed to find the defendants, for the purpose of serving the summons issued. In granting the order, the judge so held, and as the language employed will bear this interpretation, the court should not, certainly in a collateral proceeding, determine that the affidavit was entirely defective and set aside the order. The order of the General Term should be reversed and the judgment of Special Term affirmed. McKENNA V. COOPER. 79 Kansas, 847. [1909.] BuRCH, J. In this ease Cooper, the plaintiff, claiming title under a sheriff's deed, recovered in ejectment against McKenna, who claimed under a tax deed. The tax deed was invalid, and the material question is whether the sheriff's deed established title sufficient to authorize a recovery by the plaintiff. The sheriff's deed was issued pursuant to foreclosure proceed- ings based upon service by publication, and it is claimed the affi- davit and notice are defective in substance. It is not necessary to discuss their validity in this respect. The attack made on them is collateral, and they stand within the principles applied in the case of Sharp v. McColm, ante, p. 772. It is further claimed that the notice is void because it does not have the form of process, which must run in the name of the state and bear the signature of the clerk and the seal of the court from which it issues. "The style of all process shall be 'The State of Kansas,' and he cannot be found after due dili- from the statement that the defend- gence. Hence, the statute forbids ant cannot be found within the that due diligence may be implied state." Sec. 1.] MC KENNA V. COOPER. 29 all prosecutions shall be carried on in the name of the state." (Const, art. 3, § 17.) "The style of all process shall be 'The State of Kansas.' It shall be under the seal of the court from whence the same shall issue, it shall be signed by the clerk, and dated the day it is issued." (Civ. Code, §700.) The word "process" has many meanings. In its broadest sense it comprehends all proceedings to the accomplishment of an end, including judicial proceedings. Frequently its significa- tion is limited to the means of bringing a party into court. In the constitution process which at the common law would have run in the name of the king is intended. In the code process issued from a court is meant. The legislature may authorize steps to be taken involving the use of process the equivalent of that which was known to the law of England and which formerly ran in the name of the king. If this be done such process must bear the style of the sover- eignty — ' ' The State of Kansas. ' ' But the legislature in its dis- cretion may authorize steps to be taken involving the use of other means than process in the strict sense. Notices not issuing from the court itself, but given by some executive officer or inter- ested person, may be employed, and in such case the form of process is not essential, although persons or property be sub- jected to the jurisdiction of a court. Notices in proceedings by executors, administrators and guardians to sell real estate are not process. The treasurer's notices relating to the sale and con- veyance of land for taxes are not process, although the sover- eignty of the state is intimately concerned. In' some states the original summons to the defendant in an action is a mere notice by the plaintiff's attorney, and hence is not process in the sense of constitutional or statutory provisions prescribing the style and requisites of process. "But we think a summons is not process within the meaning of section 14, article 6, of our state constitution. It is merely a notice given by the plaintiff's attorney to the defendant that pro- ceedings have been instituted, and judgment will be taken against him if he fails to defend. This notice is not issued out of or under the seal of the court, or by the authority of the court, or any judicial officer. The fact that the court acquires jurisdic- tion by its service does not prove it process, for it is competent for the legislature to provide that the court shall acquire juris- 30 PKOCESS. [Chap. I. diction by the service 'of the complaint without a summons, or in any other manner by which the defendant may be notified that proceedings have been instituted against him. 'Process,' in a large acceptation, is nearly synonymous with proceedings, and means the entire proceedings in an action from the beginning to the end. In a stricter sense it is applied to the several judicial writs issued in an action. 7 Comyn's Dig. 120; 3 Black. Com. 279 et seq. ; Bouvier's Law Die. In this last sense it is mani- festly used in the constitution, and when used in this sense we believe it only applies to judicial instruments issued by a court, or other competent jurisdiction and returnable to the same." (Hanna et al. v. Eussell et al. 12 Minn. 80, 85.) The meaning of the constitution of Illinois, which provides that all process shall run in the name of "The People of the State of Illinois, ' ' is thus explained : "This object is manifest. It was to provide a name or title by which the sovereign power of the state should be designated. In England the king is supposed to be the fountain of justice and the source of power, and the sovereign power is there desig- nated by his name and title. In Kentucky, and some of the other states, it is 'The Commonwealth;' in Missouri, and some others, it is 'The State.' Here it is 'The People,' etc. Where, by the law of England, whence we have mainly borrowed our system of jurisprudence, writs or process are issued, or other proceedings are had expressly in the name of the king, here they should run in the name of 'The People.' The latter is to be used instead of the former. The meaning is not that everything shall be done expressly in the name of 'The People,' but that nothing shall be done in any other name. "Whenever the name of the sovereign power is invoked or expressed, that shall be its designation." (Curry v. Hinman, 11 111. 420, 423.) (See, also. Leas & M'Vitty v. Merriman, 132 Fed. 510; Gilmer V. Bird, 15 Fla. 410 ; William Tweed v. Horace Metcalf, 4 Mich. 579 ; Case Manfg. Co. v. Perkins, 106 Mich. 349, 64 N. W. 201 ; Piano Manfg. Co. v. Kaufert, 86 Minn. 13, 89 N. W. 1124; Brooks V. Nickel Syndicate, 24 Nev. 311, 53 Pac. 597 ; Bailey v. Williams, 6 Ore. 71 ; Town of Davis v. Davis, 40 W. Va. 464, 21 S. E. 906; Porter v. Vandercook and others, 11 Wis. 70.) Section 73 of the code provides that the party to an action may make service by publishing the necessary notice, and no form of notice is prescribed. Therefore the legislature hap dis- Sec. 1.] TURNEE V. GREGORT. 31 tinguished this notice from the process referred to in section 700 of the code, quoted above, and from the process spoken of in the constitution. (Nichols v. Burlington and Louisa County Plank Road Company, 4 G. Greene (Iowa), 42.) The conclusion must be that the notice employed in obtaining service by publication is not process within the meaning of the constitution or statute, need not bear the style of "The State of Kansas,"! need not bear the seal of the court in which the action is pending, and need not be signed or issued by the clerk of such court. The proceedings are sufficient to sustain the sheriff's deed, and the judgment of the district court is affirmed. TURNER V. GREGORY. 151 Missouri, 101. [1899.] Gantt, p. J. This is an action in ejectment for one hundred and twenty acres of land in the northern part of Bates county. Benjamin F. Metzler is the common source of title. By warranty deed of April 18, 1878, Metzler and wife con- veyed the land in suit to Singleton V. Turner and that convey- ance was recorded April 20, 1878, in the recorder's office of Bates county. The land was swamp land and was never occu- pied by Turner. Metzler and wife resided in Johnson county, Missouri, and Singleton V. Turner resided in Maraposa county, California. The plaintiff testified: "My name is Singleton Vaughn Tur- ner. I live in California and was living there when I received the deed to the land in suit, from Metzler and wife. I am the person mentioned in said deed, the original of which I have mailed to my attorneys at Butler, Missouri. I formerly, prior to coming to California, lived in Holden, Johnson county, Mis- souri, some fifteen miles from the land in suit. While living in Holden I was usually called Vaughn Turner and the same is true in California where I reside. In signing papers I have usually signed my name S. V. Turner. ' ' On cross-examination, he says : 1 Accord: Bank v. Hunt, 93 Ky. 67. 32 PROCESS. [Chap. I. ' ' Vaughn Turner has been the name by which I have always been called and known since my boyhood. It is the same by which I went in the neighborhood of the land. I answered to that name always. ' ' The defendant read in evidence a sheriff's deed from the sheriff of Bates county reciting a judgment against these lands in favor of the collector for delinquent taxes thereon for the years 1885 and 1886, which judgment was rendered against Vaughn Turner and declared to be a lien on said lands, and decreed their sale to satisfy such judgment, interest and costs. It further recited a sale thereof June 17, 1889, and that Oscar Eeeder was the highest and best bidder and purchaser thereof, and the conveyance to said Reeder. Defendant then read a deed from Reeder to himself of date June 27, 1889. Defendant also produced other witnesses who knew plaintiff during his residence in Missouri and testified he was known as Vaughn Turner. It is at once apparent that one of the prime questions in this ease is whether a suit against Vaughn Turner and an order of publication against Vaughn Turner and a judgment against Vaughn Turner is sufficient to divest the title of Singleton Vaughn Turner, whose title to the land depends upon a warranty deed to Singleton V. Turner, duly recorded prior to the assess- ment and levy of the taxes, which are the basis of the judgment, and prior to the commencement of the suit against Vaughn Tur- ner. The validity of the tax deed depends upon the order of publication. It is a fundamental rule of our law, founded in the plainest principles of natural justice that no man shall be deprived of his life, liberty or property without due process of law. Notice of the proceedings against him is essential to their validity. Ac- cordingly whenever it is feasible our laws provide for actual, personal service on the defendant of the notice of the action, and in all proceedings the Christian and surname of both the plain- tiff and the defendant should be set forth in the pleadings and process with accuracy. (Martin v. Barron, 37 Mo. loc. eit. 304 and 305.) When a party is sued by a wrong name and actually served with process, if he does not appear and plead the misnomer in abatement the judgment will not be void. ( Corrigan v. Schmidt, 126 Mo. loc. cit. 311.) But a distinction exists between a case of personal service and a Sec. 1.] TURNER V. GREGORY. 33 case where the defendant is a non-resident, where the only notice is by publication. This at best is but constructive service of no- tice, and where resort is had to this method, a substantial, even rigid observance of the law is required, otherwise the judgment will be void. (Hutchinson v. Shelley, 133 Mo. 400; Winning- ham V. Trueblood, 149 Mo. 572; Young v. Downey, 145 Mo. 250.) , Hence in notifying a person by publication, as he can only be designated by his name, if his name be omitted, or a wrong name is attributed to him, it is at once evident that he receives no notice in fact ^ and has no opportunity of filing a plea in abate- ment. These general principles are settled law, but considerable difficulty has been experienced at times in their application. What shall be considered the name of a defendant is not always so plain. One general rule has been to hold the first Christian name as essential and to hold that the middle name is no part of the man's name, or at least not necessary to his designation. Ac- cordingly in Corrigan v. Schmidt, 126 Mo. 304, the order of publication was directed to Owen Corrigan, whereas the defend- ant 's name was John Owen Corrigan, and it was held the process was void. On lihe other hand in Beckner v. McLinn, 107 Mo. 277, the defendant was named Mary Anji Byers, and in the order of publication she was described as Mary E. Byers. It was held 1 Ellison, J., in Green v. Meyers, a. requisite to jurisdiction. A per- 98 Mo. App. 438, "In so concluding son may know that an action is we are not unaware of those cases pending against him, and he may wherein the Supreme Court of this know that notice by an order of State and the United States and publication was intended for him, this court have decided that in the yet such knowledge will not supply absence of matter of estoppel, an the place of a proper order published order of publication, or notice of with substantial correctness. In sale by publication, against a per- other words, knowledge, in such son by the initial of his Christian cases, will not supply notice. But name was not sufficient. Skelton v. in the matter of record of judg- Sackett, 91 Mo. 377; Turner V. Greg- ments and deeds, the reverse is ory, 151 Mo. 100 ; Marx v. Hanthorn, true ; knowledge will supply notice. 148 tr. S. 172; Mosely v. Eiely, 126 If there be knowledge there need Mo. 124; Burge v. Burgei (not yet not be notice. So that if one has reported). But they are to be dis- knowledge of a deed it is not nee- tinguished from cases of the kind essary that he have the notice which now being considered. An order of the law attaches to its being re- publication is a mode of, service as corded." H. T. P.— 3 34 PROCESS. [Chap. I. she was properly notified, as the middle name was no part of her name in law. (Phillips v. Evans, 64 Mo. 23; Smith v. Ross, 7 Mo. 468 ; State v. Martin, 10 Mo. 391 ; Franklin v. Talmadge, 5 Johns. 84.) A similar ruling has heen made in many other states. (14 Ency. Plead. & Prac. p. 276, note 1.) Again much controversy has arisen as to whether an order of publication which indicated the defendant merely by the initials of his Christian name was sufficient, and in Skelton v. Sackett, 91 Mo. 377, it was held that an order of publication to Q. R. No- land was not sufficient to give jurisdiction over Quinces R. No- land, in a tax case where the record title was in Quinces R. Noland. On the other hand in Elting v. Gould, 96 Mo. 535, the order of publication to R. 0-. Elting was held sufficient where the record title was a patent to R. 0. Elting. In Nolan v. Taylor, 131 Mo. 224, in a proceeding to collect taxes, M. Jeff Thompson appeared from the record to be the owner of the land, and the judgment was rendered against Jeff M. Thompson, and it appeared that the warrants were located and the land entered in the name of M. JefE Thompson. It was said : ' ' This is the name he himself used and by which we must assume he was commonly known. He adopts and uses the given name of JefE and enters the land in that name." It was held that the judgment was valid. These cases proceed upon a prin- ciple. They are the construction of our statute, section 7682, R. S. 1899, which requires all actions to enforce the state's lien against the delinquent owners of real estate to be brought ' ' against the owner of the property. ' ' In Vance v. Corrigan, 78 Mo. 94, and in State ex rel. v. Sack, 79 Mo. 661, it was held to be a compliance with this statute to make the owner of the land of record a defendant. This ruling was followed in Cowell v. Gray, 85 Mo. 169, and many times since. When, therefore, the question of the sufficiency of the order in the Elting case was presented to the court, this court looked to the record and found that the record owner was R. 0. Elting. Hence while it was true that while the owner of this land was named Richard 0. Elting, he was entitled to have notice by that name, yet if of his own accord he saw fit to take the title to his land by the name of R. O. Elting and place it of record, this was an assertion that as owner of that land his name was R. 0. Elting, Sec. 1.] TURNER V. GREOORT. 35 and when sued by that name for taxes on that land, he was estopped to say that his initials were not a sufficient designa- tion of himself. We have then as to this class of cases a reason- able rule for the determination of this question of the name of the owner. Apply this rule to this case and we find that the record owner of this land was Singleton V. Turner. In his deed of record he is designated Singleton V. Turner no less than four times, and strange to say he signs his own name in full after that of his grantors, making in all five times his name appears on the record to which the collector was required to go to find the owner of this land before bringing suit. It is argued, however, that he was kuown by his middle name of Vaughn. There is no evidence that he ever signed his name that way, nor is he responsible for the fact that others so designated him. He has done nothing to estop himself from disputing the validity of these proceedings against him. Not having been sued by his real name, and that name appearing of record as owner of the land in suit in the county in which he was sued, the order of publication and judg- ment must be held void and subject to attack collaterally as well as directly. This conclusion is in harmony with all of our de- cisions. In Mosely v. Reily, 126 Mo. 124, it will be observed the land- owner had been sued by his correct initials and judgment ob- tained and the land sold. Subsequently by the same initials he conveyed the land to a third person who sued the purchaser at the tax sale. When Mosely, the purchaser from Clements, brought ejectment and came into court and claimed title under C. T. Clements, we think he was clearly estopped from denying the validity of a judgment against his grantor by the same name which the grantor used in conveying him the land. That case was decided correctly upon the principle, of estoppel. (City Council V. King, 4 McCord, 487.) II. As to the other contention that the sheriff's deed to Oscar Reeder was void because Reeder was the collector who brought the suit, we have ruled otherwise in Walcott v. Hand, 122 Mo. 621, to which we still adhere. The judgment is reversed and cause remanded.^ Sherwood and Burgess, J. J., concur. 2 See also riemming v. Bo'apl, 61 versed in the notice : Dautremoiit v. la. 417, holding judgment void Iron Co., 104 Minn. 165, where the where defendant's initials were re- notice used the wrong middle initial. 36 PROCESS. [Chap. I. FLADLAND v. DELAPLAINE. 19 Wisconsin, 459. [1865.] By the Court, Downee, J. Davenport Rood conveyed the premises in dispute to John Liedburg, who executed a mortgage to Rood to secure the purchase money. Suit was brought to fore- close the mortgage in the circuit court for the county of Dane by Jesse Rhodes, the assignee of Rood, and he and Liedburg were the only defendants to the action. There was no personal service on Liedburg, nor did he appear in the action, and if there was any service on him at all, it was by the publication of an order for him to appear and plead. The record in this court shows neither the date of the order nor the time it was filed in the circuit court. The defendants in error, plaintiffs below, trace their title to the premises through the foreclosure decree and sale under it. It is insisted that the proceedings in that action are void, and we think they are as to the defendant Liedburg. The Revised Statutes of 1839, which the counsel for the defend- ants in error claim were in force at the time the order of pub- lication was made, provide (sec. 45, p. 287) that "the court may by order direct such absent defendant to appear, plead, answer or demur to the complaint's bill of complaint at a certain day therein to be named, not less than three nor more than six months from the date of such order." The tenth subdivision of section one of "An act concerning the construction of statutes" (R. S. 1839, p. 35), provides that the word "month" shall be construed to mean a calendar month, unless otherwise expressed. Accord- ing to these provisions the order should have required Liedburg to appear and answer the bill on a day certain, not less than three months from the date of the order. The order made fixes no day on which he should appear and answer, but requires him to do it in less than three months. In proceedings against absent or non-resident defendants, where there is no personal service, the courts have uniformly held that the directions of the statute must be strictly followed. In this case there is no pretense that the circuit court obtained jurisdiction as to Liedburg and his property in any other way than by virtue of the order and its publication. This order was not such as the statute authorized. If it would be valid when it required the defendant to answer within ninety days, instead of on a certain day beyond the period Sec. 2.] seevice. 37 of three calendar months, it would be valid if it required him to answer in thirty days or any shorter time. It is clear to us that the proceedings in the foreclosure suit are entirely void as to Liedburg.^ Section 2. Service. (a) Convmon Law and Statutory Methods. Illinois Statutes, 1913. [11. Service of summons — Continuance.] § 11. Service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some person of the family, of the age of ten years or upwards, and informing such person of the contents thereof. If service is not had at least ten days before the return day of such sum- mons, the cause shall stand continued till the next term of the court.^ [2. Service — Return — Fees — ^By copy.] § 2. It shall be the duty of the sheriff or coroner to serve all process of summons or capias, when it shall be practicable, ten days before the return day thereof, and to make return of such process to the clerk who issued the same, by or on the return day, with an endorsement of his service, the time of serving it, and the amount of his fees: Provided, that when such process shall have been directed to a foreign county, the officer executing the same may make return thereof by mail ; and the clerk may charge the post- age and tax the amount in his fee bill. Service of summons, except when otherwise expressly provided by statute, shall be made by leaving a copy thereof with the defendant in person.^ 1 Accord: Brownfield v. Dyer, 70 i Chap. 22, Chancery Practice Ky. 505. See, also, McDermaid v. Act. Eussel, 41 111. 489, reversing default . 2 Chap. 110, General Practice Act. where notice required appearance Before the amendment of this after the proper time; Calkins v. statute the court had held that the Miller, 55 Neb. 601, quashing order service should be by reading instead for same reasons ; Jennings v. John- of delivfery of copy, Law v. Grommes, son, 148 Fed. 337, where the order 158 111. 492. failed to designate the day for ap- pearance. 38 PROCESS. [Chap. I. [8. Service on corporation — Return.] § 8. An incorporated company may be served with process by leaving a copy thereof v?ith its president, if he can be found in the county, in which the suit is brought. If he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superin- tendent, general agent, cashier, principal, director, engineer, con- ductor, station agent, or any agent of said company found in the county; and, in case the proper officer shall make return upon such process that he cannot in his county find any clerk, secre- tary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any other agent of said company, then such company may be notified by publication and mail in like manner and with like eifeet as is provided in sections twelve (12) and thirteen (13) of an act entitled "An act to regulate the practice in courts of chancery. ' ' Missouri R. S. 1909. [1760. Writ, How served on persons and foreign corpora- tions.] § 1760. A summons shall be executed, except as other- wise provided by law, either: First, by reading the writ to the defendant and delivering to him a copy of the petition; or, second, by delivering to him a copy of the petition and writ; or, third, by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years; or, fourth, where defendant is a corporation or joint stock company, organized under the laws of any other state or country, and having an office or doing business in this state, by delivering a copy of the writ and peti- tion to any officer or agent of such corporation or company in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent or employee in any county where such service may be obtained, and when had in conformity with this subdivision, shall be deemed personal serv- ice against such corporation, and authorize the rendition of a general judgment against it; or, fifth, where there are several defendants, by delivering to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned, a copy of the writ, or by leaving such copy at the usual place of abode of the defendant, with some person of his family over the age of fifteen years; sixth. Sec. 2.] SMITH V. wintle. 39 where any action shall be commenced against any county, a copy of the original summons shall be left with the clerk of the county court fifteen days at least before the return day thereof. All copies of said writ shall be made by the officer serving same, and for each copy necessarily made by him he shall be entitled to a fee of ten cents.^ SMITH V. WINTLE. Barnes Notes, 405. [1734.] Defendant moved to set aside the proceedings, upon an affi- davit that he was never served with process. A rule was made to show cause. Upon showing cause, plaintiff, who served the writ, made an affidavit that he put a copy through a crevice of the door of the Permit Office in Moorfield's, defendant having locked himself in, that he plainly saw him through the crevice, that he was very near the door, and that he acquainted him what the paper (put through the crevice) was, which the court held to be sufficient service and discharged the rule. Darnal for plaintiff; Birch for defendant. GOGGS V. LORD HUNTINGTOWEB. I 1 Bowling <& Lowndes, 599. [1844.'] Saunders moved for leave to enter an appearance for defend- ant. The affidavit in support of the application stated that in order to serve the defendant with a copy of the writ of summons, a person went three times to his residence, where he saw a female servant, who said, her master was not at home. On the third occasion she let down over the garden wall a basket into which the writ was put. The servant then took back the basket and shortly afterwards the voice of the defendant was heard in lAs amended by Laws of 191^, pp. 138-9. 40 tEOCfiss. [Chap. I. the yard, saying to the servant, "Take it back, I will not have it." The party called on a subsequent day when the servant said she had given the writ to her master. There were several authorities to show that personal service was not necessary where it clearly appeared that the process had come to the hands of the defendant. Paeke, B. In consequence of those cases, the judges have come to a determination that in future there shall be no equiva- lent for personal service. Alderson, B. Service means serving the defendant with a copy of process and showing him the original, if he desires it. Lord Abinger, C. B. You may take a rule for distringas. Rule refused. SLAGHT V. BOBBINS. 13 New Jersey Law Rep. 340. [1833.] HoRNBLOWEE, C. J. The plaintiff in certiorari seeks to reverse this judgment on two grounds. First, that the summons was not legally served; and, secondly, that the justice adjourned the cause in the absence of defendant, and then proceeded on the day to which he had adjourned the cause to give judgment against the defendant without giving him any notice of the adjournment. The validity of the second reason depends on the sufSeiency of the first. If the defendant was legally summoned it was his own fault that he had not notice. He ought to have attended and he would then have known the time to which the cause was ad- journed. The question then arises, was the summons legally served? The constable returned that he had "served the sum- mons on the defendant by offering to read the same to him, but he would not stay to hear it." The act of assembly points out two modes of service : First, by reading it to the defendant if found and giving him a copy if required; and secondly, by leaving a copy at his residence, etc. The object of the summons is to give notice to the defendant, and when the constable finds or meets with him, and thus has an opportunity of making a personal service, it is his duty to do so, and it is better service so far as the defendant is concerned than service by leaving a Sec. 2.] heath v. white. 41 copy at his place of residence. In this case the defendant refused to remain and hear the summons read to him, he would not stay to hear it ; and without furnishing the court with any reason or excuse for his doing so, he now seeks a reversal of the judgment because the summons was not read to him; thus attempting to take advantage of his own improper conduct. We are of opinion the service, was sufficient,^ and his not knowing of the adjourn- ment was his own folly. Let the judgment be affirmed. It appears in this case the original certiorari was lost and a rule of this court was granted in May term, 1831, that a new certiorari should issue by way of substitute. By mistake an alias certiorari was issued, this was wrong ; there is no such writ as an alias certiorari. Let the certiorari be amended and made eomformable to the rule of court. HEATH V. WHITE. 2 Bowling & Lowndes, 40. [18^4.] Peacock showed cause against a rule obtained by Ball, calling upon the plaintiff to show cause why the appearance entered for the defendant in this cause, the declaration and notice thereof served on the defendant, and all subsequent proceedings thereon should not be set aside, on the ground of irregularity. The cir- cumstances of the case were these : The plaintiff had entered an appearance for the defendant and served him with notice of declaration, on affidavit of personal service of the writ of sum- mons, by one Charles Thornton. The defendant had obtained the present rule on an affidavit made by himself, stating that no writ of summons purporting to be issued out of this court in this cause, nor any copy thereof, had been served upon him, nor had any copy of the said writ ever come to his possession or knowledge ; and that the first intimation or notice whiah he had of any proceedings having been taken against him was the receipt of the notice of declaration. In answer to this was produced an 1 And so in Borden v. Borden, 63 Wis. 374, where on refusal to re- ceive a copy it was left in the door. 42 PROCESS. [Chap. I. affidavit of C. Thornton, the party serving the writ of summons, to the following effect: That on going to defendant's place of residence he saw the defendant's man-servant, who, on inquiry, stated that his master was at home; that upon knocking at the front door of the defendant's house he was told by a female, who answered it, that the defendant was not at home; that afterwards the defendant's wife came to the door and said he had been gone out some time, but would be back in ten minutes ; that deponent waited upon the premises for ten minutes and then again knocked at the front door of the house; that the defend- ant's wife then repeated that the defendant had gone out; that deponent, having turned round towards the window of the house, saw the defendant looking through it at him ; that he thereupon immediately called out to him as loud as he could, stating that he had got a writ against him at the suit of the plaintiff, and held the copy for him to see, and threw it down and left it for him in his, the defendant's garden, before the said window, whilst the defendant was present thereat, the defendant's wife being at the time close to deponent's elbow, and deponent told her she had better pick it up and take it into the house, and give it to her husband as deponent had seen him, to which she replied, "I shall not touch it;" that deponent thereupon came away from the defendant 's premises, leaving the copy of the writ where he had thrown it down; and that deponent had been previously informed in the neighborhood of the defendant's residence, that the defendant was a man that kept out of the way, and was rather difficult to be met with. It is submitted that a service effected under the circumstances detailed will be considered a sufficient personal service. In Thompson v. Pheney (1 Dowl, 443), Mr. Justice Patteson says, "I do not mean to say that it is necessary to leave the process in the actual corporal possession of the defendant ; for, whether the party touches him or puts it into his hand, is immaterial for the purpose of personal service. Personal service may be, where you see a person and bring the process to his notice. If the deponent had informed the defendant of the nature of the process, and thrown it down, that wotild do." In the present case the deponent sees the defendant at the window, explains to him the purpose of his visit, and throws a copy down in his sight. (Wightman, J. The window may have been closed and the defendant so far off that the defendant may never have heard a word he said.) If Sec. 2.] MAHER V. KELLEY. 43 this is not a personal service the defendant may always avoid being personally served. In 1 Chit. Arch., p. 115, 7th ed., it is laid down that "if after informing the defendant of the nature of the process, and tendering the copy, he refuses to receive it, then placing it on his person, or throwing it down in his presence, or leaving it at his house, would be sufficient service. Where a writ was put through the crevice of a door to the defendant, who had locked himself in, the service was deemed sufficient ; and the same, where it was inclosed in a letter, which was proved to have been received by the defendant, and that he took out the copy. ' ' And he cites several authorities. (Wightman, J. I think it is safer to adhere to the general rule, that there should be actual personal service. If you cannot effect that you can then have a distringas.) Saunders, amicus curiae, cited Goggs v. Lord Huntingtower, in which the Court of Exchequer held that for the future they would allow no equivalent for personal service. Ball, in support of the rule, was not called upon. Wightman, J. Every case must depend in a great measure on its own circumstances. I can conceive if the party is standing in the same room close to the defendant it may not be necessary that he should actually force a copy of the writ into the de- fendant 's hands ; laying it down before him would be sufficient. And, on the other hand, it would be absurd to hold it a personal service if defendant, being at a window at the top of his house, the party were to lay down the writ in the road at some distance off. I think that in the present case there has been no such personal service as is required, and the rule must, consequently, be absolute. Ride absolute.^ MAHER V. KELLEY. 26 Illinois, 348. [1861.] Appeal from an order refusing to set aside a judgment by 1 default 1 See, also, Van Eanssellaer v. i The statement has been con- Petrie, a How. Prac. 94, where de- densed. fendant left before the ofBeer of- fered a copy. 44 PROCESS. [Chap. I. Caton, G. J. The service in this ease was this : ' ' Served the withra writ on the within named Hugh Maher by informing him of the contents of the within writ, and he accepting service the 12th of October, 1860." This service was not sufficient. The statute requires the service to be by reading or by copy. If he had acknowledged service in writing upon the process, it might have estopped him to deny a sufficient service. But in this case there was neither the service required by the statute nor its full equivalent. The officer says he informed the defendant of the contents of the writ ; but in this he may have misunderstood the substance of the writ. The defendant was not bound to take the understanding of the officer of the purport of the writ. If the particular mode of service required by the statute can in any case be dispensed with, it can only be where the court can see that the information conveyed to the defendant was quite as full and beneficial as if the service had been in strict conformity to the statute. The judgment below is reversed. PALMER V. BELCHEE. 21 NeirasJca, 58. [18137.] Reese, J. The original action was instituted before a justice of the peace in Valley county. Plaintiff in error appeared spe- cially and objected to the jurisdiction of the court, alleging as the ground of such objection the defect in service of the summoiis. The objection was overruled by the justice, to which plaintiff in error excepted and removed the cause into the District Court by proceedings in error. In that court the judgment of the justice of the peace was affirmed. Plaintiff now alleges error and assigns therefor the ruling of the District Court in affirming the decision of the justice of the peace. The return of the sheriff, to which objection is made, is as follows : "August 23, 1884. Received this writ, and on the 23d day of August, 1884, I served the same on the within named defendant, H. J. Palmer, by leaving a copy of the within sum- mons with George Palmer, and by him the said George Palmer, in my presence at the time of said service delivered, the same being a true copy of the within summons with aU endorsements Sec. 2.] palmer v. belcher. 45 thereon certified by me to be a true copy to said H. J. Palmer, ' ' properly signed by the officer. The objection to this service is that the sheriff delivered a copy of the summons to George Palmer instead of to plaintiff in error, and that George Palmer, who delivered it to plaintiff in error, not being an officer with authority to serve a summons, had no power to make the service by delivering it to plaintiff. In other words, the sheriff served the summons on the wrong person, and the fact that he gave it to the one intended to be served would not con- stitute a valid service. We concede all that is claimed by plaintiff as to the duty of courts to see that proper service of summons is made before asserting jurisdiction and rendering judgment thereon ; and that there must be a compliance with the requirements of the statute before jurisdiction can be obtained. If then the service does not come up to these requirements the decision of the District Court was wrong. Section 911 of the civil code, prescribing the manner of service of summons, in so far as it applies to the case at bar, is as follows : ' ' The summons must * * * be served at least three days before the time of appearance, by delivering a copy of the summons with the endorsement thereon (certified by the con- stable or person serving the same to be a true copy) to the defendant, or leaving the same at his usual place of residence. ' ' By an examination of the return of the sheriff, it appears that he served the summons on plaintiff in error by leaving a copy, properly certified, with George Palmer, and that George Palmer at that time, in the presence of the sheriff, delivered it to plaintiff in error. That is, by some mistake, perhaps, the sheriff gave the copy to George. George at once handed it to plaintiff in error. At any rate, the return clearly shows that the copy was delivered to plaintiff in error in the presence and by the act of the sheriff, although passing through the hand of another. It was clearly the act of the sheriff, and it would have been perfectly competent for him to have returned that he delivered the copy to plaintiff in error instead of stating the manner of delivery as he did. Had the sheriff requested George Palmer to return to him the sum- mons, and he then have handed it to plaintiff, the service would have been perfect. "Why any more so than for George to hand it at once to plaintiff? Suppose plaintiff had been so situated as to be just out of the direct reach of the sheriff, and another 46 PROCESS. [Chap. I. person, standing between and in each of both, had taken the copy from the hand of the sheriff and handed it to plaintiff, as was possibly done in this case, why would the service not have been good ? We can see no reason for holding it otherwise, even though the return had been made in the language of the one in the case at bar. The decision of the District Court in holding the service to be a compliance with the statute is afSrmed. Jvdgment affirmed.^ The other judges concur. SAVINGS BANK OF ST. PAUIi v. AUTHIBR. ■ 52 Minnesota, 98. [1892.] Dickinson, J. This is an appeal from an order setting aside a judgment entered upon default against the above named respondent and another in the District Court. The court was right in setting aside the judgment, for no jurisdiction over the defendant had been acquired by a service of the summons upon him. It was shown so as to leave no room for doubt that the service, upon proof of which the judg- ment was entered, was really made upon another person — one John E. Dailey. The latter, discovering the mistake, mailed to the defendant the copy of the summons served upon him, with a letter explaining the matter. The copy so sent by mail was received by the defendant before the entry of the judgment. Within a few days after the entry of the judgment the applica- tion was made to set it aside. The facts as to the service being as above stated, it is perfectly useless to try to sustain the judgment, or to oppose the order setting it aside. The transmission of the summons by mail was- wholly unauthorized by law as a mode of service,^ and of no iln Krotter v. Norton, 84 Neb. By. v. Sayer, 13 Neb. 280; Schwa- 137, a wife was held properly served forth v. Eeilly, 2 Dil. 127. by delivery of copy to her husband i And so where a notice was for her in her presence. In the ab- mailed to a non-resident instead of sence of statutory authority the writ being published as required by the must be served by the proper of- statute, Wilson v. Trenton, 53 N. J. fleer, and service by an unauthorized L. 645. person will not confer jurisdiction, Sec. 2.] amy v. watertown. 47 more effect, although the defendant received it, than would have been his finding it in the street if it had been lost. The statute not only prescribes that service shall be made by delivering a copy thereof to the defendant personally (special provision being, however, made for a different mode of service at the house of his usual abode), but it in terms declares that the provision with reference to the service by mail of notices and other papers in action shall not apply to the service of a summons. 1878, G. S., ch. 66, §§ 59, 78. The judgment being void for want of jurisdiction, the re- spondent was entitled to have it set aside, even though he made no showing of a meritorious defense. Heffner v. Gunz, 29 Minn. 108 (12 N. W. Rep. 342). As the judgment might properly have been set aside without condition, the appellant has no reason to complain that conditions were imposed upon the respondent not prejudicial to the appel- lant. He cannot complain that the respondent was allowed to answer, interposing any defense which he might then have. Order affirmed. AMY V. WATERTOWN. 130 V. S. 301. [18^8.] This was an action in contract to recover on bonds issued by the municipality of Watertown, in Wisconsin. Judgment for the defendant. The plaintiff sued out this writ of error. The case is stated in the opinion. Mr. Justice Beadlet delivered the opinion of the court. The principal question in this case is, whether the defendant, the city of Watertown, was served with process in the suit so as to give the court below jurisdiction over it. In order to under- stand the bearing of the facts of the case, it will be necessary to give a brief abstract of the laws of Wisconsin which relate to it, and these are mostly to be found in the charter of the city of Watertown and the acts supplementary thereto. The state laws are referred to because they govern the practice of the Federal Courts in the matter under consideration. By the fifth section of the act of June 1, 1872, Rev. Stat. § 914, it is declared that 48 PROCESS. [Chap. I. ' ' the practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings and forms and modes of proceeding exist- ing at the time in like causes in the courts of record of the State within which such Circuit or Districts Courts are held." Were it not for this statute the Circuit Courts themselves could pre- scribe, by general rule, the mode of serving process on corpora- tions as well as on other persons. By the temporary Process Act of September 29, 1789, 1 Stat. 93, if not otherwise provided, the forms of writs and executions (except their style), and modes of process in the Circuit and District Courts, in suits at common law, were directed to be the same as in the Supreme Courts of the States respectively. By the permanent Process Act of May 8, 1792, 1 Stat. 275, it was enacted that the forms of writs, executions and other process, and the forms and modes of proceeding, in suits at common law, should be the same as directed by the act of 1789, subject to such alterations and additions as the said courts should deem expedi- ent, or to such regulations as the Supreme Court of the United States should think proper by rule to prescribe to any Circuit or District Court. So that the practice in United States courts, in the old States, was made to conform to the state practice, as it was in 1789, subject to alteration by rule of court. In 1828 a law was passed adopting for the Federal Courts in the new States, admitted since 1789, the forms of process, and forms and modes of proceeding of the highest courts of those States re- spectively, as then existing, subject to alteration by the courts themselves or the Supreme Court of the United States. 4 Stat. 278. By the act of August 1, 1842, the provisions of the act of 1828 were extended to the States admitted in the intermediate time. This review of the statutes shows that after 1792 it was always in the power of the courts, by general rules, to adapt their practice to the exigencies and conditions of the times. But the statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading and forms and modes of proceeding, must conform to the state law and the practice of the state courts, except where Congress itself has legislated upon a particular subject and prescribed a rule. Then, of course, the act of Congress is to be followed in preference to the laws Sec. 2.] amy v. watertown. 49 of the State. With regard to the mode of serving mesne process upon corporations and other persons, Congress has not laid down any rule ; and hence the state law and practice must he followed. There can be no doubt, we think, that the mode of service of process is within the categories named in the act. It is part of the practice and mode of proceeding in a suit. As the attempted service of the summons in 1873 can have no effect upon the solution of the present controversy, the question then arises whether the attempted service in December, 1882, was a sufficient and legal service. The court below held that it was not. We have already quoted the return of the marshal on that occasion. It appears from this return that he made the attempted service by delivering a copy of the summons to Wm. H. Eohr, the last mayor of the city, a copy to Henry Bieber, city clerk, a copy to Chas. H. Gardner, city attorney, and a copy to Thomas Baxter, the last presiding officer of the board of street commissioners of the city of Watertown, the office of mayor being vacant and there being no president of the common council nor presiding officer thereof in office. Was this such a service upon the city as the law requires? It clearly was not, unless by the law of Wisconsin, the circumstances of the case were such as to dispense with a literal compliance with the charter. The charter requires service on the mayor of the city. No such service was made. There was no mayor in office at the time. The last mayor had resigned, and his resignation had taken effect. Service on him was of no more avail than service on an entire stranger. The question then is reduced to this, whether, in case the mayor has resigned, and there is no presiding officer of the board of street commissioners (a body which seems to take the place of the common council of the city for many purposes), service of process on the city clerk, and on a conspicuous member of the board, is sufficient. If the common law (which is common reason in matters of justice) were permitted to prevail there would be no difficulty. In the absence of any head officer the court could direct service to be made on such official persons as it might deem sufficient. But when a statute intervenes and displaces the com- mon law we are brought to a question of words and are bound to take the words of the statute as law. The cases are numerous which decide that where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations. Kibbe H. T. P.— 4 50 PROCESS. [Chap. I. V. Benson, 17 Wall. 624 ; Alexandria v. Fairfax, 95 U. S. 774 ; Settlemier v. Sullivan, 97 U. S. 444 ; Evans v. Dublin, etc., Ry., 14 M. & W. 142 ; Walton v. Universal Salvage Co., 16 M. & W. 438 ; Brydolf v. Wolf, Carpenter & Co., 32 Iowa, 509 ; Hoen v. Atlantic & Pacific Railway Co., 64 Missouri, 561 ; Lehigh Valley Ins. Co. V. Fuller, 81 Penn. St. 398. The courts of Wisconsin strictly adhere to this rule. Congar v. Railroad Co., 17 Wiscon- sin, 477, 485 ; City of Watertown v. Robinson, 59 Wisconsin, 513 ; City of Watertown v. Robinson, 69 Wisconsin, 230. The two last cited related to the charter now under consideration. In the first case service was made upon the city clerk and upon the chairman of the board of street commissioners whilst the board was in session, in the absence of the mayor, who could not be found after diligent search. The court, after referring to the provisions of the charter and the Revised Statutes on the subject, say: "The question whether the Revised Statutes eonti-ol as to the manner of service is not a material inquiry here, because both the charter and general provision require the service to be made upon the mayor, but no service was made upon that officer as appears by the return of the sheriff. The principle is too ele- mentary to need discussion, that a court can only acquire juris- diction of a party, where there is no appearance, by the service of process in the manner prescribed by law." In the last case (decided in 1887) service was made in the same manner as in the previous one, and the court say: "When the statute pre- scribes a particular mode of service, that mode must be followed. Ita lex scripta est. There is no chance to speculate whether some other mode will not answer as well. This has been too often held by this court to require further citations. * * * When the statute designates a particular officer to whom the process may be delivered, and with whom it may be left, as service upon the corporation, no other officer or person can be substituted in his place. The designation of one particular officer upon whom service may be made excludes all others. The temporary incon- venience arising from a vacancy in the office of mayor affords no good reason for a substitution of some other officer in his place, upon whom service could be made, by unwarrantable construction not contemplated by the statute." It is unnecessary to look farther to see what the law of Wisconsin is on this subject. It is perfectly clear that by that law the service of process in the present case was ineffective and void. Sec. 2.] amy v. watertown. 51 There is a question entirely outside of the one which we have been discussing; it is, whether the state law, as thus ascertained, is objectionable on the score of being repugnant to the Constitu- tion of the United States. Does it impose embarrassments in the way of the creditor in pursuit of his claim, which did not exist when his debt was created? The point is not distinctly made by the counsel of the plaintiffs in error, although it is hinted at in their brief. But no statute has been pointed out to us, showing any change in the law of the State in this regard. As the record stands, we have no sufficient ground for discussing the question in the present case. With motives we have nothing to do. Certainly imp'roper motives cannot be attributed to a state legislature in the passage of any laws for the government of the State. Individuals may be actuated by improper motives, and may take advantage of defects and imperfections of the law for the purpose of defeating justice. The mayor of Watertown may have been actuated by such a motive in resigning his office immediately after being inducted into it. But he had a legal right to resign ; and if the plaintiffs are prejudiced by his action it is damnum absque injuria. The plaintiffs are in no worse case than were the creditors of the city of Memphis after the repeal of its charter and the establishment of a taxing district in its stead. The State has plenary power over its municipal corporations to change their organization, to modify their method of internal government, or to abolish them altogether. Contracts entered into with them by private parties cannot deprive the State of this paramount authority. See Meriwether v. Garrett, 102 TJ. S. 472. The cases of Broughton v. Pensacola, 93 U. S. 266, and Mobile V. Watson, 116 U. S. 289, cannot aid the plaintiffs in this case. Those were eases in which a new name was given to an old cor- poration, or a new corporation was made out of an old one^ that was the substance of it — and the question was whether the new corporation, or the old corporation by its new name, was liable for the old debts; and we held that it was. That was a question of liability, not a question of procedure. There the way was open for looking into the actual relations of the old and new corporations, and deciding according to the justice of the case. Here we are bound by statute ; and not by the state statute alone, but by the act of Congress, which obliges us to follow the state statute and state practice. The Federal Courts are bound hand 52 PROCESS. [Chap. I. and foot, and are compelled and obliged by the Federal legisla- ture to obey the state law ; and according to this law the judgment of the Circuit Court was correct and is, therefore, Affirmed. SETTLEMIER v. SULLIVAN. 97 V. 8. 444. [1878.] Plaintiff brought ejectment for certain lands in Oregon, claim- ing title through mesne conveyances from the patentee. The defendant claimed through an execution sale under a judgment by default in the state court. The sheriff's return showed service by delivering copy to the defendant's wife, a white person over fourteen years of age, at his usual place of abode. The trial court directed a verdict for plaintiff.^ Mr. Justice Field, after stating the case, delivered the opinion of the court. If the certificate of the sheriff were the only document in the record referring to the service of the complaint and notice, there would be no doubt as to the correctness of the ruling of the court below. Service upon the wife of the defendant was not service upon him.2 No theoretical unity of husband and wife can make service upon one equivalent to service upon the other. Personal citation to the defendant, or his voluntary appearance, is the essential preliminary to a purely personal judgment. The statute of the State in force at the time required service in cases other than those brought against corporations, or persons laboring under some disability, as minors, or as being of unsound mind, to be made by delivering a copy to the defendant personally ; or, if he could not be found, to some white person of his family above the age of fourteen years, at his dwelling-house or usual place of abode. If it be admitted that substituted service of this kind upon some other member of the family is sufficient to give the court jurisdiction to render a personal judgment against its head, binding him to the payment of money or damages, it can 1 The statement has been con- a wife was properly served by de- densed. livery of copy to husband. Barnes 2 Semble. That at common law Notes, 406. Sec. 2.] settejEmier v. sullivan. 53 only be where the condition upon which such service is permis- sible is shown to exist. The inability of the officer to find the defendant was not a fact to be inferred, but a fact to be affirma- tively stated in his return. The substituted service in actions purely in perscmem was a departure from the rule of the common law, and the authority for it, if it could be allowed at all, must have been strictly followed. Such we find to be the ruling of the Supreme Court of Oregon. In TruUenger v. Todd (5 Ore. 39), judgment was entered by default for want of an answer by the clerk, in vacation, under the act of 1868, upon a certificate of the sheriff that he had served the summons upon the defendant "by delivering a copy thereof to a person of the family above the age of fourteen years, at the dwelling-house or place of abode of the defendant ; ' ' and the court held the certificate insufficient to authorize the entry of judgment in not containing the fact that the defendant could not be found. The statute, so far as the manner of service was con- cerned, was similar to that of 1861, a summons being substituted for the notice. "The statute," said the court, "in providing how service shall be made, evidently implies that when a summons is placed in the hands of an officer for service, that he will use ordinary diligence, at least, to find the party against whom the summons is issued, in order that he may make personal service upon him ; but after using ordinary diligence, if he should fail to find such party, constructive service may be made; and when such service is made the certificate should contain the fact that the party could not be found." The court having thus held the judgment void, the only question left for its determination was whether it could entertain an appeal from it, as a void judgment could be disregarded and treated as a nullity whenever any right was claimed under it, whether set aside or not. It maintained the appeal solely for the purpose of reversing the judgment and thus purging its records. Here it is contended that the recital in the entry of the default of the defendant in the case in the State court, "that, although duly served with process, he did not come, but made default," is evidence that due service on him was made, notwithstanding the return of the sheriff, and supplies its omission. But the answer is, that the recital must be read in connection with that part of the record which gives the official evidence prescribed by statute. This evidence must prevail over the recital, as the latter, in the 54 PROCESS. [Chap. I. absence of an averment to the contrary, the record being com- plete, can only be considered as referring to the former. We do not question the doctrine that a court of general juris- diction acting within the scope of its authority — that is, within the boundaries which the law assigns to it with respect to sub- jects and persons — is presumed to act rightly and to have juris- diction to render the judgment it pronounces, until the contrary appears. But this presumption can only arise with respect to jurisdictional facts, concerning which the record is silent. It cannot be indulged when the evidence respecting the facts is stated, or averments respecting them are made. If the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. But if the record give the evidence or make an averment with respect to a jurisdictional fact, it will be taken to speak the truth, and the whole truth, in that regard ; and no presumption will be allowed that other and different evidence was produced, or that the fact was otherwise than as averred. "If, for example," to give an illustration from the case of Galpin v. Page (18 Wall. 366), "it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particu- lar place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also. ' ' We are of opinion that the principle here stated applies in this case. The record from the State court showed service upon the wife of the defendant in that case, and not upon the defendant ; and in the absence of any finding of the court that other service was made, or the finding of a fact from which other service must necessarily be inferred, none will be presumed. Other service will not be presumed from its assumption in a recital in the entry of a default. It follows that the judgment of the court below must be affirmed ; and it is So ordered.^ 3 Accord : Lane v. Garbee, 105 ceived actual notice. Land Co. v. Mo. 355; the result is not affected Lane, 109 Va. 304. by the fact that the defendant re- Sec. 2.] craig v. gisborne. 55 Mr. Justice Bradley, with whom concurred Mr. Chief Justice Waite and Mr. Justice Harlan, dissenting. I dissent from the judgment in this case. The entry of judgment recites that process was duly served. The return of the sheriff, though it does not state all the facts necessary to make the service good, yet does not contradict the recital; and no allegation was made that the defendant could have been found to be personally served with process. Under these circumstances I think the judgment cannot be assailed collaterally. CRAIG V. GISBORNE. 79 Massachusetts, 270. [1859.] Action of Tort. The officer made this return upon the writ: "Suffolk, ss., April 25, 1859. By virtue of this writ I have made diligent search for the within named Frederick N. Gisborne, but could neither find him nor any last and usual place of abode of his in my precinct, except on board of the steamer bound for Liverpool via Halifax, where he had taken passage, and was then hid away in some part of said steamer. I therefore attached a chip as the property of said Gisborne, and left him a summons in his berth on board of said steamer, for his appearance to answer as within directed. ' ' In the Court of Common Pleas the plaintiff moved for a de- fault. But Bishop, J., ruled that the service was insufficient and that the court had no jurisdiction. To this ruling the plaintiff excepted. Hoar, J. There was no service of the writ in any manner authorized by law. The officer returns that he found no last and usual place of abode of the defendant; and the defendant's berth in a steamer in which he had taken passage is clearly not such. There was no personal service, and the fact that he was hidden in the steamer is no reason for substituting for personal service the leaving of a copy where he might find it. Exceptions overruled.'^ 1 In People v. Judge, 38 Mich. copy had been left with an uncon- 310, service was vacated where a scions defendant. 56 PROCESS. [Chap. I. PHOENIX INS. CO. V. WULP. 9 Bissell, 285 (U. S. C. C). [188p.] Gresham, J. The defendant, Bertha Wulf, owned certain real estate in Indianapolis, which she conveyed, her husband joining, to a third person, who conveyed it back to her husband, Henry Wulf. The husband, the wife joining, then mortgaged the same property to the Phoenix Mutual Life Insurance Com- pany to secure a loan. The mortgage showed upon its face that it was to secure a loan to the husband. The loan was not paid at maturity, and afterward the mortgage was foreclosed in this court. Bertha Wulf subsequently brought suit in this court to set aside her deed to the third party, his deed to her husband, and the mortgage of herself and husband to the insurance com- pany, on the sole ground that she was a minor when she executed those instruments. The service in the foreclosure suit was after Bertha Wulf had attained her majority, and the decree against her was by default. The marshal's return shows that the subpoena in the fore- closure suit was properly served on Henry Wulf, in compliance with equity rule 13. As to the wife, the return reads thus: ' ' I served Bertha Wulf by leaving a copy for her with her hus- band. ' ' Sometime after the wife commenced her suit, as already stated, the marshal appeared and asked leave to amend his return, so as to show that he had served the subpoena on her by leaving a copy for her with her husband, at her dwelling house or usual place of abode. The defendant, Henry Wulf, occupied a building at the corner of Virginia avenue and Coburn street, in Indianapolis, both as a dwelling and a family grocery. In the lower story there were two rooms, the main one being occupied as a grocery and the back smaller one for storage purposes. These two rooms were separated by a hall which was entered by a door from Coburn street, and also from Virginia avenue through the grocery. A stairway led from the hall to the second story, where the family dwelt, eating and sleeping. The hall and stairway were accessible in both ways, and were, in fact, approached in both ways. The deputy marshal found the husband in the grocery and there served the subpoena on him, and then inquired for his wife, and was informed that it was early in the morning and she was Sec. 2.] phoenix ins. co. v. wulf. 57 upstairs in bed where the family lived. The officer, then, in the grocery, handed to the husband a copy of the subpoena for his wife. Upon these facts was there a valid service on the wife under the 13th equity rule, which declares that the service of all subpoenas shall be by delivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy- thereof at the dwelling house or usual place of abode of each defendant with some adult person who is a member or resident in the family ? It is urged by counsel that the officer handed to the husband a copy of the subpoena when he was not at the ' ' dwelling house or usual place of abode ' ' — that the grocery room was as distinct from the residence in the upper story as if the two had been in separate buildings wide apart. That construction of the rule is narrow and unreasonable. It is conceded that if the officer had handed the copy to the husband in the hall the service would have been good, because the upper story was approached only through the hall, and it was therefore connected with the dwelling. There were but two ways of ingress to the residence or upper story — one from Virginia avenue, through the grocery, and the other through the door opening from Coburn street. The family passed in and out both ways, as best suited their convenience. A copy was left with one who understood its contents and was likely to deliver it to the person for whom it was intended. The case of Kibbe v. Benson, 17 Wallace, 625, is cited against the sufficiency of the service. That was an action of ejectment in the Circuit Court of the United States for the Northern District of Illinois, which had adopted the statute of that state relating to actions of ejectment. After judgment was entered for the plaintiff by default, the defendant filed a bill in equity to set aside the judgment on the ground that he had no notice or knowledge of the pendency of the suit, and for fraud. The Illinois statute required that in actions of ejectment, when the premises were actually occupied, the declaration should be served by delivering a copy to the defendant named therein, who should be in the occupancy of the premises, or, if absent, by leaving the same with a white person of the family of the age of ten years or upwards "at the dwelling house of such defendant." On the trial of the equity suit one Turner swore that when he called at Benson's house to serve upon him the declaration, he was 58 PROCESS. [Chap. I. informed by Benson's father that Benson was not at home, and that while the father was standing near the southeast corner of the yard, adjoining the dwelling house and inside the yard, and not over 125 feet from the dwelling house, he handed him a copy of the declaration, explaining its nature, and requesting him to hand it to his son, after which the father threw the copy upon the ground muttering some angry words. There was a conflict in the testimony, but the Circuit Court decided that even if the copy was handed to the father, as testi- fied to by Turner, the service was not sufficient, and set aside the judgment which had been entered by default, and the decree was affirmed on appeal. In deciding the case the Supreme Court say, "it is not unreasonable to require that it (copy of the declara- tion) should be delivered on the steps or on a portico, or in some out house adjoining to or immediately connected with the family mansion, where, if dropped or left, it would be likely to reach its destination. A distance of 125 feet and in a corner of the yard is not a compliance with the requirements. ' ' ^ Rule 13 should receive a liberal construction. It does not require the copy of the subpoena to be left with a person in the dwelling house ; it is sufficient if the person who receives the copy is at the dwelling house. The rule is satisfied by a service outside the dwelling house at the door, just as well as inside the house. I think Bertha "Wulf was in court when the decree of fore- closure was entered. This is not a motion to correct the plead- ings, judgment or process. Courts have the power to permit officers to amend their returns to both mesne and final process, and the power is exercised liberally in the interest of justice, especially when the rights of third parties are not to be affected by the amendment. In the exercise of a sound discretion they have allowed officers to amend their returns according to the real facts after the lapse of several years, and when there is no doubt about the facts such amendments have been allowed after the officer's term has expired. 1 A hotel at which a non-resident boarding house may continue to be was stopping for several weeks was the defendant's usual place of abode not his usual place of abode within or residence during a considerable the meaniQg of the statute, White v. absence. Lee v. McFee, 45 Minn. Prince, 36 lU. 416. But a hotel or 33. Sec. 2.] eable v. mcveigh. 59 I think justice requires that the amendment should be allowed in this case. EARLE V. McVeigh. 91 V. S. 503. [1875.] Two suits were commenced by the respondents against the present complainant, and his son, who was not served, to enforce the payment of the several promissory notes described in the declarations in those suits; and the plaintiffs therein obtained service of process in the respective suits on the same day in the words following : ' ' Executed the within summons February 24, 1862, on James H. McVeigh, by leaving a copy thereof posted at the front door of his usual place of abode ; neither he nor his wife, nor any white person, who is a member of his family and above the age of sixteen years, being found at his said usual place of abode. ' ' Declarations in due form were filed in the respective suits, and, the defendant not appearing in either, judgment was ren- dered against him in the first suit for the sum of $3,535.49, and in the second for the sum of $8,014.34, with interest in each ease, as set forth in the record. Proceedings were subsequently taken to sell certain lands to satisfy these judgments. The plaintiff filed a bill to enjoin, and the ease was removed to the Circuit Court of the United States for the Eastern District of Virginia, where the temporary injunc- tion was made perpetual. Mr. Justice Clifford delivered the opinion of the court. * * * Notice to the defendant, actual or constructive, is an essential prerequisite of jurisdiction. Due process with personal service, as a general rule, is sufficient in all cases ; and such it is believed is the law of the State where the judgments were recovered in this controversy, in all cases where such service is practicable. But the laws of that State also provide for service in three classes of cases in which personal service cannot be eff'ected : (1) Resi- dents who are temporarily absent from home. (2) Service may also be made upon persons not residents of the State. (3) Where the party resides in the State, in case it is not known in what particular county he has his residence. 60 PROCESS. [Chap. I. 1. Temporary absence from home will not defeat service, as in that ease the statute provides that notice may be given to the party by delivering a copy of the process to the party in person ; or, if he be not found at his usual place of abode, by delivering such copy and giving information of its purport to his wife, or any white person found there, who is a member of his family, and above the age of sixteen years ; or, if neither he nor his wife nor any such white person be found there, by leaving such copy posted at the front door of his usual place of abode. 2. Persons not residing in the State may, in a proper case, be served by the publication of the notice once a week for four consecutive weeks in a newspaper printed in the State. Code 1860, p. 703. 3. Provision is made in respect to the third class, that on affida- vit that a defendant is a non-resident of the State, or that dili- gence has been used to ascertain in what county or corporation he is, without effect, or that process directed to the officer of the county or corporation in which he resides or is has been twice delivered to such officer more than ten days before the return- day, and been returned without being executed, an order of publication may be entered against such defendant. Code, p. 707. Doubtless constructive notice may be sufficient in certain cases ; but it can only be admitted in cases coming fairly within the provisions of the statute authorizing courts to make orders for publication, and providing that the publication, when made, shall authorize the court to decide and decree. HoUingsworth v. Bar- bour, 4 Pet. 475 ; Regina v. Lightfoot, 26 Eng. L. & Eq. 177 ; Nations v. Johnson, 24 How. 205 ; Galpin v. Page, 18 Wall. 369. When the law provides that notice may be posted on the "front-door of the party's usual place of abode," in the absence of the family, the intention evidently is that the person against whom the notice is directed should then be living or have his home in the said house. He may be temporarily absent at the time the notice is posted, but the house must be his usual place of abode, so that, when he returns home, the copy of the process posted on the front door will operate as notice, which is all that the law requires. By the expression, "the usual place of abode," the law does not mean the last place of abode, for a party may change his place of abode every month in the year. Instead of that, it is only on the door of his then present residence where Sec. 2.] earle v. mcveigh. 61 the notice may be posted, and constitute a compliance with the legal requirement. -^PPly that rule to the case before the court, and it is clear that the notice was insufficient. Neither the complainant nor his family resided there; on the contrary, the case shows that his family left that city six weeks before the same was occupied by the Federal forces, and that they departed, leaving no white person in the house from which they departed, and that these facts were well known to the attorney of the respondents and to the officer who made the returns in question, which was made seven months after the complainant had left the county and was residing within the Confederate lines. Tested by these considerations, it is clear that the house where the notice, if any, was posted, was not at that time the usual place of abode of the defendant in those suits; and it follows that the judgments founded on such defective notices are abso- lutely void. Special reference is made to the act of the 10th of February, 1862, as having some bearing on the case, but the record shows that the present complainant had left his former residence seven months before the passage of that act and followed his family within the insurgent lines. He abandoned the business in which he was engaged and was known, as is admitted in the stipulation of the parties, throughout the whole period of the rebellion, as having sympathized with it and adhered to its fortunes. Other defenses failing, it is suggested by the respondents that the complainant, when he departed from the city, left an agent resident there; but it is a sufficient answer to that suggestion to say that the agent referred to did not reside in the house where it is alleged the notices were posted, and that he had no authority whatever to accept or waive notice to the complainant in any such proceeding. Concede that due service might have been made under the act providing for proceedings against non-residents; still it is clear that the concession cannot benefit the respondents, as they did not attempt to comply with the conditions contained in either section of that act. Sess. Acts, 1861, p. 58. Viewed in any light, it is plain that the case falls within the rule that the service of process by posting a copy on the door of a dwelling house is not a good service, if it appears by competent evidence that the house was not the usual place where the 62 PROCESS. [Chap. I. defendant or his family resided at the time the notice was posted. Harris v. Hardeman, 14 How. 340 ; Buchanan v. Rucker, 9 Bast, 192; Boswell v. Otis, 9 How. 350; Oakley v. Aspinwall, 4 Comst. 513. Even in proceedings in rem, notice is requisite in order that the sentence may have any validity. Every person, said Mar- shall, C. J., may make himself a party to such a proceeding, and appeal from the sentence, but notice of the controversy is necessary in order that one may become a party; and it is a principal of natural justice, of universal obligation, that, before the rights of an individual can be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. The Mary, 9 Cranch, 144. No man shall be condemned in his person or property without notice, and an opportunity to be heard in his defense, is a maxim of universal application, and it affords the rule of decision in this ease. Decree affirmed. (b) Privilege and Exemption from Service.^ COLE V. HAWKINS. 2 Strange, 1094. [1729.] A copy of a bill of Middlesex was served on the defendant, whilst he was attending the sittings, in a cause wherein he was a defendant. And upon motion against the attorney for a con- tempt, it was contended to be right, because it was not an arrest, which restrained him of his liberty. But the court said that the privilege was designed as well to prevent any interruption of the business of the court, and it was equally a contempt. And they would have committed the attorney if he had not consented to waive the proceedings and pay costs. ' For the privilege of members of legislative bodies, see Rhodes v. Walsh, 23 L. R. A. 632, note; Berlet V. Weary, 60 L. E. A. 609. Sec. 2.] walpole v. Alexander. 63 WALPOLE V. ALEXANDER. 3 Douglas, 45. [1782.] The defendant obtained a rule to show cause why he should not be discharged out of custody on filing common bail. The application was made on three grounds: 1. That he had come from France as a witness in a cause of Simond v. Hankey, to be tried at the sittings; 2. That he had been discharged by a com- mission of bankrupt subsequent to the debt for which he was arrested; and 3. That a suit was pending in France respecting the same subject matter. The attorney-general and Cowper showed cause. As to the privilege of the defendant as a witness it appears that he arrived in London on the 20th of December, 1781. On the seventeenth of that month the cause in which he was to be a witness was put off, in consequence of a letter received from him, stating that he could not attend until after the next term. He swears in his affi- davit that on coming to town he was served with a subpoena, by his own desire, which was on the 20th of December, the last day of the sittings. Whether the subpoena was for the sittings after the last or the next term, does not appear on the affidavit, but as no subpoena issued after the 12th of December, it must have been for the last term, when, by consent, the cause was postponed. He was arrested on the 28th of December, at which time there was no process by which he could be compelled to attend as a witness. The protection afforded to witnesses is not on their own account, but for purposes of justice ; and when the defendant found that the cause could not come on at those sit- tings and that it was unsafe for him to remain, he might have returned. It is stated in the affidavit that an application was intended to be made for permission to examine him upon inter- rogatories, but that allegation is insufficient, for the consent of both parties is necessary to that proceeding, and it does not ap- pear that it could have been obtained. (The court giving no opinion on the two latter grounds of the application, the argu- ments of counsel on those heads are omitted.) Lord Mansfield (stopping Dunning, who was for the rule). This is the first case of a witness coming from abroad who has required the protection of the court. That protection is extended to witnesses coming from abroad, as well as to those who are 64 PEOCESS. [Chap. I. resident in this country. Although in England a party may have the benefit of the evidence of a witness who has been ar- rested, by means of a habeas corpus ad testificrnidum, yet, in order to encourage witnesses to come forward voluntarily, they are privileged from arrest. This privilege protects them in com- ing, in staying, and in returning, providing they act bona fide, and without delay, which is a question of reasonableness. Every reason which applies to the protection of a witness at home holds more strongly with regard to a witness who comes from abroad. The creditor is not injured by his coming; for unless he came, there would be no opportunity of arresting him. The service of the subpoena abroad would be an useless form; he cannot be punished for not coming; if he comes at all, then it must be voluntarily. The cause depending on the evidence of a witness who is out of the country, the time of trial must necessarily be uncertain. The only question then to be considered is whether, in such case, the witness comes bona fide or eollusively. There never was a fairer case than the present. The parties would not consent to examine the witness upon interrogatories, or to put off the trial ; an application was therefore made to me, upon affidavits and letters from the witness. I' proposed, and it was so settled, that at all events the cause should go on after this term, whether the witness came or not. In the meantime he arrived before the sittings were over; but I do not wonder that the parties did not apply to bring on the cause, for it was near Christmas. It is admitted that he was protected for some time — why not until the next sittings? "Was he to go back again to Paris, merely to return here this term, putting the parties to an enormous expense 1 I am of opinion that all the rules which apply to the protection of witnesses here hold with regard to witnesses coming from abroad, and that the defendant must be discharged. AsHURST and Willes, Justices, of the same opinion. BuLLEK, Justice. It is not true that the privilege of a witness depends upon the subpoena. I have found a case (E. 27, Car. 2) where a man was discharged who came to London to make an affidavit which might have been made in the country, but it was for the furtherance of justice, and he was therefore pro- tected. No subpoena is necessary where the witness lives abroad. Rule absolute. Sec. 2.] MEEKINS V. SMITH. 65 The discharge, being on the privilege, was without the terms of filing common bail.i MEEKINS V. SMITH. 1 B. BlacJcstane, 636. [1791.] In this ease one Davis was arrested by an officer of the sheriff of Middlesex, as he was returning from Westminster Hall, where he had been to justify himself as bail for the defendant, but was rejected. Upon this a rule was granted to show cause why he should not be discharged out of custody, on the ground that he was entitled to privilege from arrest, both in going to and returning from the court, his attendance being in the course of the cause and the administration of justice. Adair and Clayton, ' sergeants, showed cause, contending that as bail were not com- pelled to attend by process (as witnesses were), but came volun- tarily into court, they had no claim to such a privilege. It was holden in the case of King v. Fielding, Comb. 29, 'that a person coming to court to swear the peace was liable to be arrested, and in an anonymous case, Salk. 544, a person who came to con- fess an indictment had no privilege eundo et redeundo, because there was no process against him. Although it is stated in Impey's Pract. C. B. 125, that bail are privileged, the case there cited from Barnes was this: "The defendant being arrested in returning from attendance on the court to justify his bail was ordered to be discharged. ' ' Johannet v. Lloyd, Barnes, 27. Be- sides, it was highly improper that any man should become a security for the debts of another, while his own were unpaid. The court seemed much inclined to think that not only the witnesses, but all persons who were coming to or returning from it, either directly on the business of the court, or in any manner relative to that business, were entitled to a freedom from arrest, and that to arrest them was a contempt of the court. Several 1 Under similar circumstances a in Wood v. Neal, 5 Gray, 53^, and witness was discharged from arrest May v.Shumway, 16 Gray, 86. H. T. P.— 5 66 PROCESS. [Chap. I. eases were also mentioned of barristers, who were arrested on the circuit, being discharged by the judge. Gould, J., recollected the instance of a Mr. Hippisley, a bar- rister ^ who was discharged from an arrest on the circuit by Mr. Justice Birch at Salisbury. And Heath, J., mentioned a similar thing having been done by the late Mr. Baron Burland. At length it was agreed that the rule should be enlarged till this day, when Davis was brought up by habeas corpus, which issued in the meantime, and offered again to justify as bail, but was again rejected, it appearing that he was an uncertified bank- rupt, and in desperate circumstances. The court, therefore, or- dered him to be remanded, and at the same time laid down this general rule, viz., that all persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not (in which number bail were in- cluded) , were entitled to privilege from arrest eunda et redeundo, provided they came bona fide. But here there was a manifest intention on the part of Davis to impose upon the court, and on that account he was not to be permitted to avail himself of the exemption. Bule discharged.^ Gould, J., referred to the year book 11 Ed. 4, 3, where it is said by Choke that a mainpernor shall have the privilege of the court. PERSON V. GRIER. 66 New York, 124. [1876.] Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special 1 See Hoffman v. Circuit Judge, The arrest of a party attending a 113 Mich. 109; Greenleaf v. Bank, trial is not an actionable trespass, 133 N. C. 292. but a ground for discharge, Came- 2 The sheriff was held not liable rou v. Lightf oot, 2 W. Blaekstone, for a failure to arrest a bankrupt 1190. voluntarily attending a sitting of the Commissioners. Arding v. Flower, 8 Term Eep. 534 (1800). Sec. 2.] peeson v. geieb. 67 Term, setting aside a service of the summons upon defendant Grier. (Reported below, 6 Hun. 477.) Said defendant was the only one served. He is a resident of Pennsylvania, and was served while in attendance at a circuit in Chemung county as a witness in an action in the Supreme Court wherein the plaintiff herein was a defendant. J. McGuire for the appellant. Defendants were not exempted by any statute from the service of civil process unaccompanied by an arrest while attending court as a witness, or in going to or returning from such court. (Pollard's Case, 7 Abb. (N. S.) 71). Allen, J. It is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as weU as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo. This rule is especially applicable in all its force to suitors and witnesses from foreign states, attending upon the courts of this state. In some instances witnesses and suitors, residents of the state, have only been dis- charged from arrest upon filing common bail ; but the service of process upon non-resident witnesses and suitors has been abso- lutely set aside, thus giving color to a distinction between the two classes in respect to their immunity. Whether any distinc- tion should or does in fact exist, is at least doubtful. This im- munity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. Wit- nesses might be deterred, and parties prevented from attending, and delays might ensue or injustice be done. In Norris v. Beach (2 J. R. 294) the defendant, a resident of the State of Connec- ticut, attending in this state to prove a will, was held exempt from the service of a capias and discharged absolutely from the arrest. The like relief was granted in Sanford v. Chase (3 Cow. 381), and the defendant, a resident of Massachusetts, arrested upon civil process while attending as a witness before arbitrators, was discharged absolutely without filing common bail, the court saying: "The privilege of a witness should be absolute." The court in Hopkins v. Coburn (1 Wend. 292) expressly affirm the absolute immunity of foreign witnesses attending our courts from the service of civil process for the commencement of an 68 PEOCESS. [Chap. I. action. The same rule was held in Seaver v. Robinson (3 Duer. 622), and Merrill v. George (23 How. 331), and the service of a summons upon persons attending from other states as witnesses in this state was in each case set aside. This court, in Van Lieuw V. Johnson (decided in March, 1871, but not reported), sub- stantially adjudged that a summons could not be served upon a defendant, a non-resident of the state, while attending a court in this state, as a party. Four of the judges taking part in that decision were of the opinion that neither a party nor a witness attending a court in this state from a foreign state could be served with summons for the commencement of an action. The order denying an application to set aside the summons in that case was affirmed upon the ground that the party had lost his privilege by remaining within the state an unreasonable and unnecessary time after the close of the trial upon which he had attended. Chuech, Ch. J., and Folgee, J., dissented from this result, being of the opinion that the privilege had not been lost. The authorities, as well as the principle upon which the privilege rests, clearly lead to an affirmance of the order. The defendant Grier attended in this state, in good faith, as a witness, and the summons was served upon him while he was so attending and during the continuance of the freedom from arrest. The courts will not take jurisdiction of a party whose rights are thus in- vaded. It would be, in effect, and for all practical purposes, a withdrawal of the shield and protection which the law uniformly gives to witnesses, if a party coming from a foreign state could be served with process and an action commenced against him, the judgment in which would conclude him in all jurisdictions and could be enforced by action everywhere. The order must be affirmed.^ 1 Same rule was applied to a non- taking of depositions in a case pend- resident party attending the taking ing in the court of another state, of depositions in a case pending in See also Christians v. Williams, 111 a Federal Court in another state. Mo. 429, in which the privilege was Parker v. Marco, 136 N. Y. 585; denied a resident party attending but see Grier v. Young, 120 111. 184, court in another county, but ap- denying the privilege where a non- parently recognizing a different rule resident party was attending the in case of a non-resident. Sec. 2.] bishop v. vose. 69 BISHOP V. VOSE. 27 Co)mecticut, 1. [1858.] This was an action of assumpsit, brought by the plaintiffs, partners under the name of Bishop & Co., against Francis Vose and Charles L. Perkins of the city and state of New York, and John B. Kettell, of Boston, in the state of Massachusetts, late^ partners under the name of Vose, Perkins & Co. The writ was served as a summons on Vose, in the city of Bridgeport in this state on the 24th day of January, 1857, and no other service was made in the case. At the first term of the court Vose filed a written motion that the cause be stricken from the docket, on the ground that all the defendants were inhabitants and residents of other states, and that no service of the writ was made except upon him personally in the manner stated, and that at the time of such service he was necessarily attending court at said Bridgeport as a party and witness in a case there on trial. The court on the motion found that Vose came into the state to attend the trial of a suit then pending in the Superior Court for the county of Fairfield, at the December term, 1856, in which he and the other defendants in the present case were plaintiffs, and the present plaintiffs were defendants ; that he attended as such plaintiff, and to testify as a witness therein ; that he (remained in attendance in court after the testimony was closed on the afternoon of the '23d day of January, 1857, and during the argument which then commenced and was concluded by the plaintiff's counsel on the afternoon of the 24th day of said January, and until after the cause was committed to the jury by the judge ; and was intending to leave, and did in fact leave in the first practicable conveyance there- after, viz. : in the train which left Bridgeport for New York on the evening of the 24th of January, 1857 ; and that the process in this suit was served upon him on the 24th day of January, after the termination of the trial. The suit was brought upon a contract executed in the state of New York. The questions of law arising upon the motion and on the facts found thereon were reserved for the advice of this court. Ellsworth, J. * * * Another question is made of a dif- ferent and novel character, but which is easily disposed of. "Was Mr. Vose privileged from being served with a summons because 70 PROCESS. [Chap. I. he came here to attend the trial of a case which he caused to be brought in one of our courts? We think he was not. Had he been an inhabitant of Connecticut, his attendance in court would have given him no such immunity. Why should it any more because he comes here from another state? This would seem to be an additional reason why our citizens should be allowed to sue him here and bring him to trial within our own jurisdiction. At any rate he can not be placed on any better ground than our own citizens. In King v. Coit, 4 Day, 130, our court decided that while the defendant was attending the General Assembly he was not subject to a suit by any form of service whatever, not even to a writ of error, which is nothing but a summons, but the decision was placed on the jpeculiar language of the statute, which declares that a member of the assembly shall not be ar- rested, sued or imprisoned or anywise molested or troubled, or compelled to answer to any suit, bill, plaint, declaration or other- wise, before any other court, judge, or justice, eases of high treason and felony excepted ; and even in this case Judge Reeve, in a dissenting opinion, held that this statute ought not to be so construed as to render void and inoperative the service of a writ by leaving a copy or by a mere summons. He held that the statute introduced no new rule of law; for it was conceded on all hands that at common law, although an arrest would be void and the person set at large on motion, the suit would not abate, and that was all that was intended by the statute. And we sup- pose there can be no doubt that in all such cases of parties or witnesses, they can not be arrested or detained, and will be dis- charged at once on motion to the court, because the court needs their attendance and assistance to enable it to discharge its duties to the parties and the public; but a mere summons works no prejudice to the court or the parties, and the action goes into court to take its trial at some proper and convenient time. Gen- erally, if not universally, at the common law, parties and wit- nesses are liable to be sued, though their bodies can not be at- tached or detained, and hence all the books speak of their being entitled to their liberty, but nothing more, and the suit never abates for any such cause. 1 Phill. on Ev. 5, 6 ; 1 Sw. Dig. 497 ; King V. Coit, supra. Numerous other cases are cited in 1 U. S. Dig., p. 236 et seq. It is said again to be unjust and to involve a want of comity to foreigners when they come here of necessity to sue our citi- Sec. 2.] bishop v. vose. 71 zens, who can not be found elsewhere and have no property else- where, to allow them to be sued and compelled to submit their causes to our courts of justice. But why is this unjust or un- eourteous? We confess we do not see it. From the first it has been the law, both common law and statute law, that a foreign citizen, if found here, whether here on business or pleasure or hastening through the state with railroad speed, is liable to be sued like any other person and is not entitled to any personal or peculiar immunity. And we are at a loss to discover why our citizens should be obliged to go into a foreign jurisdiction in pursuit of their debtors, when those debtors are here and can be sued here and can receive here that consideration which is meted out to all indiscriminately. The very difficulties which are urged here by the defendant may, for aught we know, be urged in greater force in any other state or country. It is said that at all events, however the. law may be as to a party, a witness from abroad stands on a different ground, and that he certainly ought not to be liable to be sued here while in attendance on our courts as a witness. Perhaps this is so. We are not prepared to say that it is not, since a witness may be said not voluntarily to put himself under our jurisdiction like a party. Distinguished judges have thought there was a difference and a material difference in this respect, that foreign witnesses ought to be encouraged to come and testify in person, and there- fore should be protected from all jurisdictional process of a civil nature, while this is not necessary as to parties, who are not here except from pure choice, whether they be plaintiff's or defend- ants. We believe that such is the law of New York and perhaps is held elsewhere. Norris v. Beach, 2 Johns. 294 ; Bours v. Tuck- erman, 7 id. 538 ; Sanford v. Chase, 3 Cow. 381 ; Seaver v. Rob- inson, 3 Duer, 622 ; 1 Greenl. Ev., sec. 316 ; Lightf oot v. Cameron, 2 W. Bla. 1113. However this may be, we know of no decisions that carry the exception beyond the case of a witness, and there is no principle of comity or public policy to be derived from them which will sustain the doctrine claimed by the defendants. We advise judg- ment for the plaintiffs. In this opinion the other judges concurred.^ iSemble, accord, Baisley v. Bais- 120 111. 184; Mullen v. Sanborn, 25 ley, 113 Mo. 544; Grier v. Young, L. E. A. 721, note. Contra, 72 PROCESS. [Chap. I. HARE V. HYDE. 16 Queen's Bench (N. 8.), 394. [1851.'] Pashley, in the present term, obtained a rule nisi to discharge the defendant in this cause from custody. It appeared that the defendant was indicted and tried for embezzlement at the "West Riding Quarter Sessions. He was acquitted and ordered to be discharged. Immediately afterwards he was arrested on a ca. sa. at the suit of the plaintiff in this cause. It did not distinctly appear on the affidavits whether he had actually left the dock or not ; but it was clear that he had been discharged by the Quarter Sessions and arrested in court immediately afterwards, and whilst the Quarter Sessions were still sitting. Lord Campbell, C. J. I am of opinion that the defendant had no privilege in respect of his having been tried and acquitted and ordered to be (discharged. He was after that in the same position as any other of the circumstantes in court. The cases show that an acquitted prisoner has no privilege redeiindo; and it follows that, whilst remaining as a spectator, he has no privi- lege more than any one else. The question then comes to be, whether any person arrested on civil process in a court of justice is entitled to be discharged. I do not think he is. It is not a proper course to execute an arrest in such a place; and I do not say that the court in some cases may not discharge the person so arrested, but no such case is made here. We are not asked to vindicate the dignity of the Court of Quarter Sessions, but applied to by the defendant, who is in custody. Patteson, J. This is the defendant's rule. He has no privi- lege, and has been arrested, so far as he is concerned, rightly; though it may be that the arrest was a contempt of the Court of Quarter Sessions. Coleridge, J., and Wightman, J., concurred. Rule discharged.^ Mathews v. Tufts, 87 N. T. 568. In 27 Vt. 762, where process was served Chittenden v. Carter, 82 Conn. 585, while the defendant was in custody the privilege was sustained in case on a criminal charge. But this rule of a non-resident witness, distin- will not protect an abuse of crimi- guishing Bishop v. Vose. nal process. See Hurlburt v. Pal- 1 Same result in Scott v. Curtis, riier, 39 Neb. 158 (defendant taken Sec. 2.] moletor v. sinnen. 73 MOLETOR V. SINNEN. 76 Wisconsin, 308. [1890.] Appeal from the Circuit Court for Sheboygan County. Action for a breach of promise to marry. The plaintiff appeals from an order setting aside the service of the summons and complaint, and vacating an order of arrest. The facts will sufficiently ap- pear from the opinion. Cole, C. J. Did the Circuit Court properly set aside the service of the summons and complaint in this action and vacate the order of arrest therein? The defendant was brought into this state upon a requisition upon the governor of Illinois, hav- ing been charged with the crime of seducing the plaintiff under a promise of marriage, and alleging that he was a fugitive from justice. Upon an examination before a magistrate he was bound over for trial. At the April term of the Circuit Court of She- boygan county, 1889, an information was filed in that court charging the defendant with having committed the crime of se- duction. At the October term of that court the defendant was duly arraigned, and a plea in abatement was interposed, setting up the statute of limitations as a defense to the action. This plea was sustained by the court and the defendant was dis- charged from custody. Within ten minutes after his discharge and before he had departed from the courtroom the deputy sheriff made service of summons and complaint and order of arrest upon him, at the suit of the plaintiff for a breach of promise. It appears that the defendant, at the time of the alleged se- duction, was a resident of Sheboygan county. He left the state in January, 1888, and remained outside the state, except that he returned in the night-time in the same month and transacted some business, and immediately left. He was brought back on a requisition as a defendant in a criminal action, and as a fugi- tive from justice. It is said by the counsel for appellant that the affidavit of the defendant upon which the order of the court into another county in order that criminal charge) ; McNab v. Ben- he might be served) ; Byle v. Jones, nett, 66 111. 157 (same) ; WUlard v. 79 Mo. 261 (defendant arrested and Zehr, 215 111. 148 (fraudulent ex- brought into county on fictitious tradition). 74 PROCESS. [Chap. I. setting aside the service and order of arrest is based is insuffi- cient, because it fails to show any fraud or abuse of the process of the court by the appellant, or by any person acting for her, in the procurement of the return of the defendant on the crim- inal prosecution, nor does it show that the defendant was, at the time he so returned on the requisition, a hana fide citizen of Illi- nois. But it appears from the affidavit of the plaintiff which was used to obtain the order of arrest that the defendant was not a resident of this state, but resided in the city of Chicago, and that he was about to return to that state; and, while the promise of marriage was made and the alleged seduction was accomplished, in 1887, it does not appear that the plaintiff had anything to do in procuring the defendant's return on the requi- sition of the governor, nor does it appear that there was any fraud used on the part of any one to get the defendant within the state. In that respect the ease is distinguishable from Town- send v. Smith, 47 Wis. 623, and eases where jurisdiction is ob- tained by fraudulent means. It is assumed, in this case, as a fact, that the defendant had committed the crime of seduction, as alleged, and had withdrawn himself from the state to avoid a prosecution therefor, so as to be a fugitive from justice in a legal sense. Still, having been forcibly brought to the state on a requisition, and the court hav- ing exhausted its jurisdiction over him in respect to the crime vdth which he was charged, could he properly be arrested in a civil action until a reasonable time and opportunity had been given him, after his discharge, to return to the state from which he had been forcibly taken ? This is the question involved in the appeal; and we think sound principle requires that, where a person has been brought within the jurisdiction of a court upon a requisition as a fugitive from justice, and has been tried for, or discharged as to, the offense charged against him, he ought not to be subject to arrest on a civil process until a reasonable time and opportunity has been given him to return to the state from which he was taken. In the courts of the United States the weight of judicial opinion is in favor of the proposition that, where a party in good faith is brought within the jurisdiction of a state, or detained therein, being a nonresident, either as a party to a suit or as a witness in another suit, he is not subject to service. Small v. Montgomery, 23 Fed. Rep. 707 ; Junea Bank V. McSpedan, 5 Biss. 64; U. S. v. Bridgman, 9 Biss. 221; Blair Sec. 2.] moletoe v. sinnen. 75 V. Turtle, 1 McCrary, 372, 5 Fed. Rep. 394; Atehinson v. Morris, 11 Fed. Rep. 582. Many of the state courts hold the same rule. Compton V. Wilder, 40 Ohio St. 130; People ex rel. Watson v. Judge, 40 Mich. 780; Cannon's Case, 47 Mich. 482; Baldwin v. Branch Circuit Judge, 48 Mich. 525; Jacobson v. Hosmer, 76 Mich. 234; Sherman v. Gundlaeh, 37 Minn. 118; Chubbuck v. Cleveland, 37 Minn. 466 ; Palmer v. Rowan, 21 Neb. 452 ; Wanzer V. Bright, 52 lU. 35; Williams v. Reed, 29 N. J. Law, 385; HiU V. Goodrich, 32 Conn. 588. The last three cases go upon the same ground as Townsend v. Smith, 47 Wis. 623. The reason for the rule that a person is exempt from arrest under the circumstances disclosed in this case is that sound pub- lic poUey requires that a person shall be privileged from arrest while going to or from court in all judicial proceedings. The privilege should exist to subserve great public interests and the due administration of justice. Moreover, as was said by Camp- bell, J., in Cannon's Case, 47 Mich. 482, "it is very well known that the perversion of extradition proceedings has on more than one occasion led to difficulties between nations, and to refusals by state executives to deliver up persons charged with crime whose arrest was supposed to be desired for sinister purposes. ' ' The temptation is certainly strong to make such requisitions sub- servient to private interests; and they are often resorted to to enforce a collection of private debts, or to remove a citizen from his home into a foreign jurisdiction in order to get service on him in a civil action. For the most cogent reasons, therefore, we think courts of justice are bound to see that no improper use be made of such proceedings, which would look like a violation of good faith and a perversion of measures which had to be re- sorted to in order to bring the party accused within their juris- diction. We do not deem it necessary to comment in detail upon all the cases cited. We will observe, however, that in cases of extradi- tion by a foreign government under a treaty, the Supreme Court of the United States holds that a person who has been brought within the jurisdiction of a court by virtue of proceedings under an extradition treaty could only be tried for one of the offenses described in said treaty and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity had been given him, after his release or trial upon such charge, to return to the country from whose 76 PROCESS. [Chap. I. asylum he had been forcibly taken under those proceedings. U. S. V. Rauscher, 119 U. S. 407. A distinction is made in some of the authorities between civil and criminal eases. In criminal cases some courts hold that even a forcible seizure in another country, and the transfer by vio- lence or fraud to this country is no sufficient reason why the party should not answer when brought within the jurisdiction of a court which has the right to try him for such an offense. See Ker v. Illinois, 119 U. S. 436 ; Mahon v. Justice, 127 U. S. 700. The offense having been committed in the state to which the party is brought, he may be there tried for it ; and neither comity to a sister state, nor any just appreciation of the rights of a citizen entitle him to be released. He may be held to answer for the crime he has committed. This question is fully consid- ered in State ex rel. Brown v. Stewart, 60 Wis. 587. But it is obvious there is no fair analogy between civil and criminal cases in this respect, and a different rule applies.^ It follows from these views that the order of the Circuit Court must be affirmed. By the court. Order Affirmed. 1 And so in Compton v. Wilder, 40 Ohio St. 130 (same state of facts). Privilege also recognized in case of a non-resident held to bail on a criminal charge, Kaufman v. Garner, 173 Fed. 550; Martin v. Bacon, 76 Ark. 158, 6 Am. & Eng. Annotated Cases, 336. Contra : Netograph Manufactur- ing Co. V. Scrugham, 197 N. Y. 377, 27 L. E. A. (N. S.) 333, in which Werner, J., said : ' ' The privilege should, therefore, not be extended beyond the reason of the rule upon which it is founded. Since the ob- vious reason of the rule is to encour- age voluntary attendance upon courts and to expedite the adminis- tration of justice, that reason fails when a suitor or witness is brought into the jurisdiction of a court whUe under arrest or other compulsion of law. Such a suitor or witness does nothing to encourage or promote vol untary submission to judicial pro- ceedings. He comes because he can- not do otherwise. That seems to be the basis for the exception to the general rule of privilege which is illustrated in cases where persons are brought into the jurisdiction of a court under extradition from other states or foreign countries. (Wil- liams V. Bacon, 10 Wend. 636 ; Slade V. Joseph, 5 Daly, 187; Adri- ance v. Lagrave, 59 N. Y. 110; Peo- ple ex rel. Post v. Cross, 135 N. Y. 536.) The privilege is held not to exist in such cases. From time im- memorial it has been the law that persons actually in custody under criminal process are not exempt from service of process in civil suits. (1 Chitty's Cr. L. 661; Foster Cr. L. 61, 62; Tidd's Pr. 306; 2 Arehb. Pr. 122.) Sec. 2.] stein v. valkenhuysen. 77 STEIN V. VALKBNHUYSBN. Ellis, Blackburn <& Ellis, 65. [1858.] "WiGHTMAN, J. In this case it appears that the defendant, being indebted to the plaintiffs on a cause of action which ac- crued abroad, was induced by a Mr. Smith to believe that he would have benefit from a personal interview with some party in England, and to come here in consequence, and that, on his doing so, he was immediately arrested. The first question is one of fact : Was he induced to come by a fraud to which the plain- tiffs were privy ? Now, on these affidavits, I entertain no doubt whatever that all the representations of Smith were mere fictions, made solely for the purpose of inducing the defendant to come to England that he might be arrested, and that the plaintiffs were parties to this delusion which produced the desired effect of bringing the defendant here, where he never would have come had he known the truth. Then, having no doubt at all that the defendant was lured to this country by the fraud of the plain- tiffs, the next question arises, and it seems to be that the plain- tiffs are disabled from taking advantage of their own fraud. It is much as if the plaintiffs had given the defendant an express undertaking that he should not be arrested whilst in England. I cannot doubt that, by giving such an undertaking, the plain- tiffs would disqualify themselves from procuring an arrest. Bringing the defendant here by fraud has at least as much effect as if there were an express promise. In Hitchcock v. Hunter (5 Jurist, 770) this court, after consideration, thought the stat- ute not imperative. If we have a discretion (and I do not doubt the authority of that case), this is a ease for the exercise of it. But I proceed on the ground that a party cannot avail himself of his own fraud. H. Hawkins inquired whether the rule was to be absolute to set aside the service of the writ as well as the order. Per Curiam. The whole was an abuse of the process. It must all be set aside. Rule absolute accordingly.^ 1 Accord: Wanzer v. Bright, 52 fraud, see Jaster v. Currie, 198 TJ. m. 35. As to what constitutes S. 144. 78 PROCESS. [Chap. I. (e) Waiver of Process or Service. REX V. HAEE AND MANN. 1 Strange, 145. [1719.] Scire facias out of the petty bag to repeal letters patents, re- turnable coram nobis in Ccmcellaria nostra in octabis purificOr tionis beatae Mariae virginis ubicunque time fuerit. The de- fendants, salvis, etc., pray oyer of the writ, and then plead in abatement, that the writ ought to have been returnable coram, domino rege in CoMcellaria sua ubicwnque eadem Cancellaria tunc foret in Anglia, and not generally ubicunque tunc foret. To this the attorney general demurs. YoRKE (counsel for defendants). In order to avoid the force of this argument in the present case, some objections have been made of the other side. The first is that our exception comes too late, for that it is now aided by the appearance of the defendant. And this was enforced by observing, that it was absurd to say this defendant had an hardship put upon him by being summoned to appear in Scotland, when the court was at Westminster at the return, and he has appeared here. The answer to this is that it is not helped by appearance, be- cause the defendant has come in specially, saving to himself all advantages whatsoever, and has challenged this defect by plea. I may agree, without prejudice to this question, that possibly if the defendant had come in and not replied upon this excep- tion, but pleaded over some matter of bar, that might have pre- cluded him from taking this advantage afterwards. But when he expressly comes in for this special purpose, I apprehend he may insist upon it. I do admit that any error in mesne process is salved by the party's appearance, and he shall not afterwards take advantage of it, because the only intent of mesne process is to bring the defendant into court, and when he is come in, that is out of the case, for he might have come in upon the writ without it. But an original writ (as a scire facias to repeal letters patents was determined to be in the case of The King v. Eyre) is of another nature, for that is not only to bring in the party, but also to found the jurisdiction of the court in that particular cause, and Sec. 2.] wbstall v. finch. 79 to be the ground work of all the proceedings of the court after- wards. And I know no case in the law where it has been held that an appearance has cured any error in the original writ.^ WESTALL V. FINCH. Barne's Notes, 406. [1735.] Defendant moved to stay the proceedings, the process not having been served upon him, but upon another person, and obtained a rule to show cause. Upon showing cause, it was in- sisted by plaintiff that although the process might be served upon a wrong person, yet an appearance being now entered, the defendant was in court, and the mistake was cured. But per Cur.: The appearance is entered by plaintiff according to the statute,^ and by no means cures the mistake. Let the rule be absolute. Havfkins, for defendant ; Weight, for plaintiff. HAWKINS V. TAYLOR. 56 ArJumsas, 45. [1892.] Taylor was plaintiff in a judgment in the Circuit Court of Franklin county against P. E. Cravens & Co., upon which execu- tion was issued on February 26, 1890, and on same day placed in the hands of J. D. Hawkins, sheriff of Crawford county. On the 26th day of April, 1890, he, as such sheriff, endorsed the execu- tion, "no property found," and on April 28, 1890, mailed the execution vsrith his return endorsed thereon to the circuit clerk of Franklin county, by whom it was received on the same day. On May 12, 1890, notice was served on Hawkins of a motion for summary judgment for failure to return the execution within sixty days, which motion was filed on June 13, 1890. Defendant moved to strike the motion from the files ; this motion was over- 1 The court held that the writ was ^ See note to Collins v. Page, posi properly framed. 174. 80 PROCESS. [Chap. I. ruled. Defendant answered, stating (1) that the execution was returned as required by law; (2) that the judgment upon which the execution was issued was void and the execution a nullity. Upon the evidence the court rendered judgment against defend- ant for the amount of the execution and interest, with ten per cent damages thereon. Defendant has appealed. CocKRiLL, C. J. The proceeding was instituted by motion for summary judgment under sections 3963-4, and it is argued that the plaintiff's cause should fall because those sections, as held above, do not apply. But the complaint contains all the allega- tions necessary to a recovery under section 3061. The defendant demurred to it, and, after the demurrer had been overruled and the cause continued to another term, consented to an order set- ting aside the continuance, filed his answer and went to trial. Either of these acts was sufficient to enter his appearance and waive the formal issue and service of summons. The defendant was therefore in court, and cannot now be heard to object that he was brought in by notice instead of summons.^ PLANO MFG. CO. v. EASEY. 69 Wisconsin, 246. [1887.] Cole, C. J. This action was commenced before a justice of the peace of Rock county, where, after trial, a judgment was rendered in favor of the appellant. From this judgment the respondent took an appeal to the Circuit Court, in which court he recovered the judgment from which this appeal is taken. It is now claimed that the Circuit Court never acquired jurisdic- tion of the cause and had no power to render the judgment it did ; that the municipal court of Rock county has exclusive juris- diction of all appeals from justices' courts of that county, and that the appeal of the respondent in the first instance should have, been to that court. That point was so ruled in Taylor v. De Camp, 68 Wis. 162. The learned counsel for the respondent seeks to avoid the consequences of this decision by insisting that, 1 See also Dennison v. Hyde, 6 Mich. 332; Walker v. King, 1 How. Conn. 508; Cofrode v. Gartner, 79 (Miss.) 17. Sec. 2.] plano mpg. go. v. rasey. 81 under the circumstances, the objection to the jurisdiction of the Circuit Court must be deemed waived and no longer available. He says, quite truly, that the Circuit Court would have had jurisdiction of the action if it had been commenced in that court ; might have tried it and rendered judgment therein,- and upon the record he says, we should presume that the parties volun- tarily appeared in that court, submitted themselves to its juris- diction, and are bound by its judgment. It certainly would be a most unwarranted presumption to sustain that view, contrary to everything appearing in the rec- ord. For we find in the record papers sent to the Circuit Court by the justice, among which are the notice of appeal, affidavit and undertaking, given by the respondent on his taking his ap- peal to the Circuit Court, all of which we are asked to ignore or treat as of no effect whatever. This is surely a summary and novel way of disposing of the record of a court — ^to utterly dis- regard it or shut our eyes to its existence. We do not feel at liberty to do that in any case. "We must therefore assume and hold, according to the real fact, that this case was attempted to be taken by appeal from the justice to the Circuit Court. It is elementary law that the Circuit Court acquires jurisdiction of appeals from the justices' courts under the statute. And prob- ably a hundred cases could be found where this court has decided that the Circuit Court only acquires jurisdiction of an appeal where the requirements of the statute, regulating appeals, are complied with. So a defective affidavit, or notice of appeal, or a claim before the justice, exceeding his jurisdiction, have been held fatal to the jurisdiction of the Circuit Court. We shall not attempt to cite the cases upon this question of practice. What, then, results from the fact that the respondent took his appeal from the justice to the Circuit Court, which under the statute had no jurisdiction of the cause? It is too plain for argument that the judgment cannot stand, and must be reversed. It may come with bad grace for the appellant to object to the jurisdiction of the Circuit Court, after having gone into that court and tried the cause upon the merits. But still it has the right to take advantage of the objection, because it is in its nature a question of jurisdiction of the subject-matter, which consent cannot supply. For while consent gives jurisdiction of the person, it never confers jurisdiction of the subject-matter. In Dykeman v. Budd, 3 Wis. 640, the parties attempted by H. T. P.— 6 82 PROCESS. [Chap. I. consent to give the Circuit Court jurisdiction of a cause on appeal where, under the statute, such court could only acquire jurisdic- tion by an order of the County Court, changing the venue. The court in the opinion says: "If jurisdiction could be acquired of appeals by the Circuit Court by stipulation of parties, consent would open a clear and direct path from the justice to the Circuit Court, without the intervention of the County Court at all." See the note to this case. Also Clark v. Bowers, 2 Wis. 123; Verbeck v. Verbeck, 6 Wis. 159; Miles v. Chamberlain, 17 Wis. 447; Felt v. Felt, 19 Wis. 193; Ohse v. Bruss, 45 Wis. 442; Palmer v. Peterson, 46 Wis. 402. We deem it unnecessary to refer to cases where it has been held that an appearance or consent gives jurisdiction of the person; those cases are dis- tinguishable from the one before us. The real proposition here is, did the Circuit Court acquire jurisdiction of the subject matter on the appeal? We think it did not, though that court would have jurisdiction of a claim of $160, the price of the reaper, if the action had been commenced in that court. It follows, therefore, from these views, that the judgment of the Circuit Court must be reversed. ST. LOUIS RAILWAY CO. v. McBRIDB. 141 U. 8. 127. [1890.] Mr. Justice Brewer delivered the opinion of the court. This was an action commenced by the filing of a complaint on September 19, 1890, in the Circuit Court of the United States for the Western District of Arkansas. The defendants in error were plaintiffs below. They alleged that they were respectively the widow and children of James A. McBride, deceased, and his next of kin and heirs at law, and that there were no personal representatives of the said deceased. They further alleged that they were citizens and residents of the Western District of Arkansas; that the railway defendant was a corporation and citizen of the State of Missouri, doing business in the State of Arkansas and the Indian Territory, owning maintaining and operating a line of railway through said States and Territory; that on the 20th day of July, 1890, the deceased, James A. Mc- Sec. 2.] st. louis ry. go. v. mc bride. 83 Bride, was in the employ of defendant; and that on that day, and in the Indian Territory, while at work as a brakeman on a freight train, he was, through the negligence of said defendant, so injured that on the 22d day of July he died. The complaint further disclosed the circumstances under which the accident occurred ; alleged the dependence of the plaintiffs upon the de- ceased for support and prayed judgment for twenty thousand dollars damages. The record contains no process, or service thereof. On the 4th day of November, 1890, the defendant filed a demurrer, on three grounds as follows : ' ' 1st. Because the court has no jurisdiction of the person of the defendant. 2d. Because the court has no jurisdiction of the subject matter of the action. 3d. Because the complaint does not state facts sufficient to constitute a cause of action." This demurrer was overruled; and in January, 1891, a trial was had, resulting in a verdict for plaintiffs in the sum of four thousand dollars. No answer appears in the record, though it is proper to say that counsel for defendants in error, in their brief, states that service of process was made upon the defendant by delivering a copy to its station agent at Fort Smith, Arkansas ; and that an answer was filed denying the defendant's negligence, and setting up also contributory negligence on the part of the deceased, but not denying any of the allegations in respect to the citizenship and residence of the parties. The fact of an answer seems also to be implied from the record of the trial, which recites that "after all the evidence had been introduced by both parties to maintain their respective issues, etc. ' ' Judgment was entered on the verdict for the sum of four thousand dollars, and of this judgment plaintiff in error complains. As the judgment did not exceed five thousand dollars, the case can only come to this court on the question of the jurisdiction of the Circuit Court. 25 Stat. 693, c. 236 ; McCormick Harvesting Machine Co. v. Walthers, 134 U. S. 41. The action was one to recover money, the sum claimed being in excess of iwo thousand dollars, and was between citizens of different States, and was brought in the district and State of the residence of the plaintiffs. It was a case, therefore, within the general jurisdiction of the Circuit Courts of the United States, under section 1 of chapter 866, 25 Stat. 433 ; and if the jurisdic- tion was founded only on the fact that the action was between 84 PROCESS. [Chap. I. citizens of different States it was brought in the Circuit Court of a proper district. The contention of plaintiff in error is, that the jurisdiction is not founded only on the matter of diverse citizenship, but that it is an action based upon a statute of the United States, and to enforce a right given solely by such statute, and is therefore one which must be brought in the district of which the defendant was an inhabitant. Its contention goes further than this. It insists that under a proper construction of the United States statutes there was no cause of action existing in favor of the plaintiffs. It will be observed that the action is one to recover damages for the wrongful acts of defendant, in causing the death of the husbaJtid and father of the respective plaintiffs. Such an action did not survive at common law. The wrongful acts of defendant were done in the Indian Territory. On May 2, 1890, an act was passed by Congress with respect to the Terri- tory of Oklahoma and the Indian Territory. Act of May 2, 1890, 26 Stat. 81, c. 182. The 31st section extended over the Indian Territory the provisions of certain specified statutes of Arkansas, among them one chapter relating to "pleadings and practice, chapter 119;" and in that chapter, by sections 5225 and 5226, it is provided that in case of injuries causing death a right of action survives, the statute being substantially like that now in force in most States of the Union. The plaintiff in error con- tends that the effect of the act of Congress extending this chapter over the Indian Territory was not to put in force therein all its sections, but only those relating to pleadings and practice; and that, therefore, there being no other law than the common law in force in the Indian Territory, the complaint stated no cause of action. And further, as heretofore stated, that, if those sec- tions in respect to the surviving of actions were extended to the Territory, the action was founded on the statute of the United States alone, and such an action must be brought in the district of which the defendant is an inhabitant. The first of these questions is not open to inquiry in this ease. The complaint making no reference to the Federal statute, alleges wrongful acts on the part of the defendant and prays to recover damages therefor. Whether upon those facts the plaintiffs are entitled to recover is not a matter of jurisdiction, but one of the merits of the controversy. Suppose in a State where there is no statute providing for the surviving of such an action a Sec. 2.] st. douis ry. co. v. mc beide. 85 suit is brought by the widow and children of a deceased person, alleging that his death was caused by the wrongful act of the defendant, and the defendant having been served with process enters its appearance and denies all liability, and the trial court improperly holds that there was liability and renders judgment for damages, is there anything other than a matter of erroneous ruling upon the merits? Could it be held that the court had no jurisdiction, no right to hear and determine the controversy between the parties ? So, here, whether there was or was not a statute in force in the Indian Territory, providing that an action should survive in case of death, and whether upon the facts stated in the complaint the plaintiffs had a cause of action against the defendant, were questions entering into the merits of the controversy, and not matters affecting the jurisdiction of the court. If it had jurisdiction of the parties, it had the right to inquire and determine whether upon those facts the plaintiffs were entitled to judgment. Neither can the other contention of plaintiff in error be sus- tained. Assuming that service of process was made, although the record contains no evidence thereof, and that the defendant did not voluntarily appear, its first appearance was, not to raise the question of jurisdiction alone, but also that of the merits of the ease. Its demurrer, as appears, was based on three grounds : Two referring to the question of jurisdiction, and the third, that the complaint did not state facts sufficient to constitute a cause of action. There was, therefore, in the first instance, a general appearance to the merits. If the case was one of which the court could take jurisdiction, such an appearance waives not only aU defects in the service, but all special privileges of the defendant in respect to the particular court in which the action is brought. The first part of section 1 of the act of 1887, as amended in 1888, gives, generally, to the Circuit Courts of the United States, jurisdiction of controversies between citizens of different States where the matter in dispute exceeds the sum of two thousand dollars, exclusive of interest and costs. Such a controversy was presented in this complaint. It was, therefore, a controversy of which the Circuit Courts of the United States have jurisdic- tion. Assume that it is true, as defendant alleges, that this Ls not a case in which jurisdiction is founded only on the fact that the controversy is between citizens of different States, but 86 PROCESS. [Chap. I. that it comes within the scope of that other clause, which provides that ' ' no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant," still the right to insist upon suit only in the one district is a personal privilege which he may waive, and he does waive it by pleading to the merits. In Ex parte Schollenberger, 96 U. S. 369, 378, Chief Justice Waite said: "The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive." The judiciary act of 1789, section 11, 1 Stat. 79, besides giving general jurisdiction to Circuit Courts over suits between citizens of different States, further provided, generally, that no civil suit should be brought before either of said courts, against an inhabitant of the United States, by any original process, in any other district than that of which he was an inhabitant, or in which he should be found. In the case of Toland v. Sprague, 12 Pet. 300, 330, it appeared that the de- fendant was not an inhabitant of the State in which the suit was brought, nor found therein. In that case the court observed : "It appears that the party appeared and pleaded to issue. Now, if the ease were one of a want, of jurisdiction in the court, it would not, according to well-established principles, be competent for the parties by any acts of theirs to give it. But that is not the case. The court had jurisdiction over the parties and the matter in dispute; the objection was that the party defendant, not being an inhabitant of Pennsylvania, nor found therein, personal process could not reach him. * * * Now, this was a personal privilege or exemption, which it was competent for the party to waive. The cases of Pollard v. Dwight, 4 Cranch, 421, and Barry v. Foyles, 1 Pet. 311, are decisive to show that, after appearance and plea, the case stands as if the suit were brought in the usual manner. And the first of these cases proves that exemption from liability to process, and that in case of foreign attachment, too, is a personal privilege, which may be waived, and that appearing and pleading will produce that waiver. ' ' In Lexington v. Butler, 14 "Wall. 282, the jurisdiction of the Circuit Court over a controversy between citizens of different States was sustained in a case removed from the state court, although it was conceded that the suit could not have been commenced in Sec. 2.] jones v. meemll. 87 the first instance in the Circuit Court. See also Claflin v. Com- monwealth Ins. Co., 110 U. S. 81. Without multiplying authorities on this question, it is obvious that the party who in the first instance appears and pleads to the merits waives any right to challenge thereafter the jurisdic- tion of the court on the ground that the suit has been brought in the wrong district. Charlotte Nat. Bank v. Morgan, 132 U. S. 141 ; Fitzgerald Construction Co. v. Fitzgerald, 137 U. S. 98. It follows from these considerations that the Circuit Court had jurisdiction; and, as that is the only question before us, the judgment must be Affirmed. JONES V. MEERILL. 113 Michigan, 433. [1897.] Ejectment by Susan L. Jones against Esther E. Merrill. The plaintiff claimed title under a foreclosure sale based on a decree pro confesso. There was a jugment for plaintiff on a directed verdict, and the defendant sued out a writ of error. Montgomery, J. The validity of the foreclosure proceeding depends wholly upon the question of whether the court obtained jurisdiction by an acceptance of service signed by the defendant in that proceeding in Montana. The language of the acceptance indorsed upon the subpoena was as follows: "I hereby admit due personal service upon me of the within subpoena this 11th day of September, 1894. "Melissa C. Livermore." We had occasion to refer to this subject in Allured v. VoUer, 107 Mich. 476. In that case it appeared that there was an atjceptance beyond the jurisdiction of the court, in which accept- ance there was also a waiver of formal service by an officer, and a permission to the plaintiff to proceed with the case the same as though service had been made as commanded in said summons. As was said in that case, the authorities are not harmonious upon the subject of a mere acceptance of the service of a writ beyond the jurisdiction of the court. It became unnecessary for us to determine the effect of such acceptance in that case, as we 88 PROCESS. [Chap. I. deemed that there was an express waiver and authority in writing conferred upon the .plaintiff to proceed with the case. In the present case it is unnecessary to determine the effect of a mere acceptance of a service shown upon its face to be beyond the jurisdiction of the court. In this case the acceptance purports to be an acceptance of due personal service, which means a service which will confer jurisdiction upon the court. The case of Cheney v. Harding, 21 Neb. 65, goes further than is necessary to sustain the holding of the circuit judge in this case. In that case the admission of service showed upon its face that the service was made at the residence of the party, in another State. Yet the court held that the defendant was bound by such acknowledgment or acceptance of service, even though outside the territorial jurisdiction of the court to which it was returnable. In the early case of Dunn v. Dunn, 4 Paige 430, Chancellor Walworth said : "In all cases where the court has jurisdiction over the subject-matter of the suit, if the defendant, who is beyond the limits of the State, thinks proper to waive that ob- jection by a voluntary appearance, or by consenting to accept as regular the service of process upon him at the place where he resides or is found, he cannot afterwards object to the regularity of the proceedings against him, founded on such service. ' ' In the case of Vermont Farm Machine Co. v. Marble, 20 Fed. 117, it appeared that the defendant accepted service of the subpoena, "to have the same effect as if duly served on him by proper officer." It was held that in so accepting service the defendant subjected himself to the jurisdiction of a court sitting in a district of which he was not a resident. See, also, Ex parte Schollenberger, 96 U. S. 369 ; Laramore v. Chastian, 25 Ga. 592 ; Shaw V. National State Bank, 49 lowd,, 179. The case of Weather- bee V. Weatherbee, 20 Wis. 499, distinctly holds the opposite doctrine. But that case is in conflict with our own holding in Allured v. VoUer, and an attempt was made to distinguish it in Keeler v. Keeler, 24 Wis. 522. We think it an entirely safe rule that a party may waive service of process by any act clearly evidencing an intention to do so. The bare admission of the fact of service beyond the territorial jurisdiction of the court should not be deemed a waiver. But an admission of service so worded as to clearly evidence an intent to waive further service Sec. 2.] anonymous. 89 should be held to amount to a waiver. Such intent is clear in the present ease.^ ANONYMOUS. 1 cutty, 129. [1819.] Waif ord moved to set aside the writ of latitat on the ground of irregularity, it appearing that the writ was served on the 25th of January, but tested only on the 30th, on which day it was return- able. He thought it necessary, however, to state that on the 28th of January, before the return of the writ, the defendant's attor- ney wrote a letter to the plaintiff, stating that he would appear and receive a declaration, and at the same time offered security for costs. The time for appearing was not yet out. Abbott, C. J. At the time the defendant's attorney wrote that letter, he had not discovered the error in the writ. I think, how- ever, he is bound by his undertaking. This is not the time, therefore, for him to take advantage of the objection. The writ is in itself defective, but the defendant's attorney has waived the objection by undertaking to appear, and consequently it is now too late to avail himself of it. Rule refii^ed.^ 1 Accord : Eichardson v. Smith, 11 But an appearance in an action is Allen, 134; Compare Weatherbee v. a very different matter. An appear- Weatherbee, 20 Wis. 499; and see ance may be made without the is- foUowing remarks of Dixon, C. J., suing or service of any process in Keeler v. Keeler, 24 Wis. 522. whatsoever, whether by publication ' ' The admission by the defendant or otherwise. It may be made as of the service of process is but evi- well by a party residing without the dence of such service. It is evi- state as one within it. An appear- dence of the same force, and no ance is a waiver of all previous de- greater, than if proof of service fects in the service of process, and were made in some other manner. of the process itself, if none has In either case, the court acquires been issued. Upper Miss. Trans, jurisdiction, if at all, through the Co. v. Whittaker, 16 Wis. 220. service of the process; and in both The defendant having, therefore, alike, the service is void, if it ap- made a valid appearance in the ac- pears that it was made out of the tion, it follows that the judgment state without an order of publica- must be affirmed, tion. And the waiver by the party i Compare Scholfleld, J., in Soles of any other service made out of v. Sheppard, 96 111. 131, "All that the state does not cure the defect. is shown by the affidavit filed in 90 PROCESS. [Chap. I. YORK V. TEXAS. 137 V. 8. 15. [1890.] On the 14th day of November, 1888, a personal judgment was rendered in the District Court of Travis County, Texas, against the plaintiff in error, which judgment was subsequently affirmed by the Supreme Court of the State. Error is now alleged in this, that the District Court had no jurisdiction of the person of the defendant. The record discloses that on October 20, 1885, the defendant leased from the State certain school lands, at a stipulated rental. The lease provided that in all suits there- under the venue should be laid in Travis County, Texas. The State filed its petition on February 15, 1888, alleging non-pay- ment of the rent due in 1886 and 1887. The defendant being a non-resident, a citizen of St. Louis, Missouri, a notice in accord- ance with the provisions of the statute was served upon him personally in that city. No question is made but that the service was in strict conformity with the letter of the statute. On March 9, 1888, the defendant appeared by his counsel and filed a special plea, challenging the jurisdiction of the court on the ground that he was a non-resident and had not been served personally with process within the limits of the State. This plea was overruled. Thereafter, and on the 5th day of October, 1888, the defendant appeared by his attorneys in open court, demanded a jury, paid the jury fee, and had the cause transferred to the jury docket. On the 6th day of October he again filed a plea to the jurisdiction, on the same ground, which was also overruled. On the 14th day of November, when the cause was reached and called for trial, he again appeared by his attorneys, waived his right of trial by a jury and his demand of a jury and declined to further answer to the cause — ^relying solely upon his plea to the jurisdiction. The court thereupon proceeded to render judgment against him, which, as heretofore stated, was affirmed by the Supreme Court. 73 Texas, 651. support of tHs motion is, that tlie constitute an appearance. No scire attorney for the defendant in error facias hag been served, nor has made an agreement that he would there been any publication of notice. enter the appearance of his client, The defendant in error is not in and has violated that agreement. court. This might give a cause of action Motion denied. against the attorney, but it does not Sec. 2.] york v. texas. 91 Mr. Justice Beewee, after stating the case as above reported, delivered the opinion of the court. It was conceded by the District and the Supreme Courts that the service upon the defendant in St. Louis was a nullity, and gave the District Court no jurisdiction; but it was held that, under the peculiar statutes of the State of Texas, the appearance for the purpose of pleading to the jurisdiction was a voluntary appearance, which brought the defendant into court. Plaintiff in error questions this construction of the Texas statutes ; but, inasmuch as the Supreme Court, the highest court of the State, has so construed them, such construction must be accepted here as correct, and the only question we can consider is, as to the power of the State in respect thereto. It must be conceded that such statutes contravene the estab- lished rule elsewhere — a rule which also obtained in Texas at an earlier day, to-wit, that an appearance which, as expressed, is solely to challenge the jurisdiction, is not a general appearance in the cause and does not waive the illegality of the service or submit the party to the jurisdiction of the court.^ Harkness v. Hyde, 98 U. S. 476; Eaquet v. Nixon, Dallas (Texas), 386; DeWitt V. Monroe, 20 Texas, 289 ; Hagood v. Dial, 43 Texas, 625 ; Robinson v. Schmidt, 48 Texas, 19. The difference between the present rule in Texas and else- where is simply this : Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service, without submitting himself to its jurisdiction. In Texas, by its statute, if he asks the court to determine any question, even that of service, he submits himself wholly to its jurisdiction. Elsewhere he gets an opinion of the court before deciding on his own action. In Texas he takes all the risk himself. If the service be in fact insufficient, aU subsequent proceedings, including the formal entry of judgment, are void; if sufficient, they are valid. And the question is, whether under the Constitution of the United States the defendant has an inviolable right to have this question of the sufficiency of the service decided in the first instance and alone.2 iBut see Griggs v. Gilmer, 54 ate as a general appearance has Ala. 425 post 174. been held unreasonable, HnfE v. 2 But a rule of court attempting Shepard, 58 Mo. 242. to make a special appearance oper- 92 PROCESS. [ Chap. I. The Fourteenth Amendment is relied upon as invalidating such legislation. That forbids a State to ' ' deprive any person of life, liberty or property, without due process of law." And the proposition is, that the denial of a right to be heard before judgment simply as to the sufficiency of the service operates to deprive the defendant of liberty or property. But the mere entry of a judgment for money, which is void for want of proper service, touches neither. It is only when process is issued thereon or the judgment is sought to be enforced that liberty or property is in present danger. If at that time of immediate attack pro- tection is afforded, the substantial guarantee of the amendment is preserved, and there is no just cause of complaint. The State has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured without unreasonable burden to parties and litigants. Antoni v. Greenhow, 107 U. S. 769. It certainly is more convenient that a defendant be permitted to object to the service, and raise the question of jurisdiction, in the first instance, in the court in which suit is pending. But mere convenience is not substance of right. If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and under process thereon his property, real or personal, had been seized or threatened with seizure, he could by original action have enjoined the process and protected the possession of his property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the opinion of the Supreme Court or in any of the statutes pi the State, of which we have been advised, gainsaying this right. Can it be held, therefore, that legislation simply forbidding the defendant to come into court and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his property and his rights against any attempt to enforce a judgment rendered without due service of process, and therefore void, deprives him of liberty or property, within the prohibition of the Fourteenth Amendment? We think not. The judgment is affirmed. Mr. Justice Bradley and Mr. Justice Gray dissented. Sec. 2.] goldet v. morning news. 93 GOLDEY V. MORNING NEWS. 156 V. S. 518. [1894.] Plaintiff brought suit in the State Court against the defendant, a foreign corporation, and caused summons to be served on its president while casually in the State. The defendant removed the case to the Circuit Court of the United States, where the service was vacated and the action dismissed on motion. Plain- tiff sued out a writ of error.^ Mr. Justice Gray, after stating the case, delivered the opinion of the court. It was contended, in behalf of the plaintiff, that the defendant, by filing in the State Court a petition for the removal of the case into the Circuit Court of the United States, had treated the case as actually and legally pending in the court of the State, and had waived all defects in the service of the summons. The position is supported by a decision of Mr. Justice Curtis in Sayles v. Northwestern Ins. Co., 2 Curtis, 212; by a dictum of Chief Justice Chase in Bushnell v. Kennedy, 9 Wall. 387, 393 ; by opinions of Judge Coxe in Edwards v. Connecticut Ins. Co., 20 Fed. Rep. 452, and Judge Sage in TaUman v. Baltimore & Ohio Railroad, 45 Fed. Rep. 156; and by the judgment of the Court of Appeals of New York in Fanner v. National Life Asso- ciation, 138 N. Y. 265. But the ground of the decision in Bushnell v. Kennedy was, in accordance with earlier and later decisions, that the restriction, in former judiciary acts, upon the jurisdiction of the Circuit Court over a suit originally brought by an assignee, which his assignor could not have brought in that court, did not apply to its jurisdiction by removal of an action originally brought in a State Court. Green v. Custard, 23 How. 484; Lexington v. Butler, 14 Wall. 282 ; Claflin v. Commonwealth Ins. Co., 110 U. S. 81 ; Delaware County v. Diebold Co., 133 U. S. 473. And the theory that a defendant, by filing in the State Court a petition for removal into the Circuit Court of the United States, neces- sarily waives the right to insist that for any reason the State Court had not acquired jurisdiction of his person, is inconsistent with the terms, as well as with the spirit, of the existing act of 1 The statement has been con- densed for a full statement see post, p. 111. 94 PROCESS. [Chap. I. Congress regulating removals from a Court of a State into the Circuit Court of the United States. The jurisdiction of the Circuit Court of the United States depends upon the acts passed by Congress pursuant to the power conferred upon it by the Constitution of the United States, and cannot be enlarged or abridged by any statute of a State. The legislature or the judiciary of a State can neither defeat the right given by a constitutional act of Congress to remove a case from a court of the State into the Circuit Court of the United States, nor limit the effect of such removal. Gordon v. Longest, 16 Pet. 97; Insurance Co. v. Morse, 20 Wall. 445; Barron v. Burnside, 121 U. S. 186 ; Southern Pacific Co, v. Denton, 146 U. S. 202, 207-209. As was said by this court in Gordon v. Longest, "One great object in the establishment of the courts of the United States and regulating their jurisdiction was to have a tribunal in each State, presumed to be free from local influence, and to which all who were non-residents or aliens might resort for legal redress." 16 Pet. 104. The act of Congress, by which the practice, pleadings and forms and modes of proceeding, in actions at law in the Circuit Court of the United States, are required to conform, as near as may be, to those existing at the time in the courts of the State within which it is held, applies only to cases of which the court has jurisdiction according to the Constitution and laws of the United States. Eev. Stat. § 914 ; Southern Pacific Co. v. Denton, above cited ; Mexican Central Railway Co. v. Pinkney, 149 U. S. 194. By the act of Congress, under which the present action was removed by the defendant into the Circuit Court of the United States, any action at law, brought in a court of a State between citizens of different States, in which the matter in dispute exceeds the sum or value of $2,000 may be removed into the Circuit Court of the United States by the defendant being a non-resident of that State, by filing a petition and bond in the State Court "at the time or at any time before the defendant is required by the laws of the State, or the rule of the State Court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff ; ' ' and it shall then be the duty of the State Court to proceed no" further in the suit; and, upon the entry of a copy of the record in the Circuit Court of the United States, "the cause shall then proceed in the same manner as if it had been S^<^- 2.] GOLDEY V. MOBNING NEWS. 95 originally commenced in said Circuit Court." Act of August 13, 1888, c. 866 ; 25 Stat. 434, 435. It has been held by this court, upon full consideration, that the provision of this act, that the petition for removal shall be filed in the State Court at or before the time when the defendant is required by the local law or rule of court "to answer or plead to the declaration or complaint," requires the petition to be there filed at or before the time when the defendant is so required to file any kind of plea or answer, "whether in matter of law, by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action," because, as the court said, "Construing the provision now in question, having regard to the natural meaning of its language, and to the history of the legislation upon this subject, the only reasonable inference is that Congress contemplated that the peti- tion for removal should be filed in the State Court as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of his defenses should be tried and determined in the Circuit Court of the United States." Martin v. Baltimore & Ohio Railroad, 151 U. S. 673, 686, 687. As the defendant's right of removal into the Circuit Court of the United States can only be exercised by filing the petition for removal in the State Court before or at the time when he is required to plead in that court to the jurisdiction or in abate- ment, it necessarily follows that, whether the petition for removal and such a plea are filed together at that time in the State Court ; or the petition for removal is filed before that time in the State Court and the plea is seasonably filed in the Circuit Court of the United States after the removal, the plea to the jurisdiction or in abatement can only be tried and determined in the Circuit Court of the United States. Although the suit must be actually pending in the State Court before it can be removed, its removal into the Circuit Court of the United States does not admit that it was rightfully pending in the State Court, or that the defendant could have been com- pelled to answer therein; but enables the defendant to avail himself, in the Circuit Court of the United States, of any and every defense, duly and seasonably reserved and pleaded, to the 96 PROCESS. [Chap. I. action, "in the same manner as if it had been originally com- menced in said Circuit Court." How far a petition for removal, in general terms, without specifying and restricting the purpose of the defendant's appear- ance in the State Court, might be considered, like a general appearance, as a waiver of any objection to the jurisdiction of the court over the person of the defendant, need not be con- sidered; because, in the petition filed in the State Court for the removal of this action into the Circuit Court of the United States, it was expressed that the defendant appeared specially and for the sole and single purpose of presenting the petition for removal.^ This was strictly a special appearance for this purpose only, and, whether the attempt to remove should be successful or unsuccessful, could not be treated as submitting the defendant to the jurisdiction of the State Court for any other purpose. Likewise, in the motion filed by the defendant in the Circuit Court of the United States, immediately after the action had been removed into that court, for an order setting aside the summons and the service thereof, it was expressed that the defendant appeared by its attorney specially for the purpose of applying for this order. Irregularity in a proceeding by which jurisdiction is to be obtained is in no ease waived by a special appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Harkness v. Hyde, 98 U. S. 476; Southern Pacific Co. v. Denton, 146 U. S. 202 ; Mexican Central Railway v. Pinkney, 149 U. S. 194. The necessary conclusion appears to this court to be that the defendant's right to object to the insufficiency of the service of the summons was not waived by filing the petition for removal in the guarded form in which it was drawn up, and by obtaining 2 The application for removal need jurisdiction over the person except not state that the appearance is where based on disqualifications of limited to that purpose. By. v. the judge. Freeman v. Burks, 16 Brow, 164 U. S. 271. But it is Nebr. 328; Julian v. Star Pub. Co., sometimes held that an appearance 209 Mo. 35; but see dissenting should be treated as general unless opinion. expressly limited to a jurisdictional An application for time within matter, Deshler v. Foster, 1 Morris which to determine whether to enter (la.) 403. a general or special appearance does An application for a change of not operate as a waiver, Lowrie v. venue is usually held to be such an Castle, 198 Mass. 82. appearance as waives objections to ^^^•2-] LOWE V. STEINGHAM. 97 a removal accordingly. And it is gratifying to know that this conclusion is m accord with the general current of decision in the Circuit Courts of the United States, Parrott v. Alabama Ins. Co., 5 Fed. Eep. 391; Blair v. Turtle, 1 McCrary, 372; Atchinson v. Morris, 11 Bissell, 191; Small v. Montgomery, 5 McCrary, 440, explaining Sweeney v. Coffin, 1 Dillon, 73, 76; Hendrickson v. Chicago, etc., Eailway, 22 Fed. Eep. 569; Elgin Co. V. Atchison, etc., Eailway, 24 Fed. Eep. 866 ; Kauffman v. Kennedy, 25 Fed. Eep. 785 ; Miner v. Markham, 28 Fed. Eep. 387; Perkins v. Hendryx, 40 Fed. Eep. 657; Clews v. Woodstock Co., 44 Fed. Eep. 31 ; Bentlif v. London & Colonial Corporation, 44 Fed. Eep> 667; Eeifsnider v. American Publishing Co., 45 Fed. Eep. 433 ; Forrest v. Union Pacific Eailroad, 47 Fed. Eep. 1; O'DonneU v. Atchinson, etc., Eailroad, 49 Fed. Eep. 689; Ahlhauser v. Butler, 50 Fed. Eep. 705 ; McGillin v. Claflin 52 Fed. Eep. 657. Judgment affirmed. LOWE V. STEINGHAM. 14 Wisconsin, 222. [1861.] By the court, Paine, J. This was an action of replevin com- menced before a justice of the peace. The defendant appeared, and before answering moved to dismiss the suit, because the writ was returnable on the third day after it issued, not excluding a Sunday which intervened. The motion was denied, and the defendant excepted. He then answered and went to trial, and the plaintiff recovered judgment. The defendant appealed, and made the same objection in the Circuit Court, which was over- ruled and an exception taken. We think the objection was good, and if properly taken advantage of, that the writ ought to have been quashed. The statute provides that the warrant "shall be made returnable on the third day after it shall issue (Sundays excepted), etc. E. S., chap. 120, see. 134. f * * But although the objection was good, we think the defendant waived it in several ways. The record of the justice shows that the parties appeared by their counsel, which, of course, in the 98 PROCESS. [Chap. I. absence of any qualification, must be construed to be a general appearance. And it is a familiar rule, that a general appearance waives any defect in the process. This is too well settled to need the citation of authorities. To avoid the effect of this rule, it is the common practice, when it is desired to take advantage of such defects, to appear specially for that purpose only. We think it is also a waiver of such a defect for the party, after making his objection, to plead and go to trial on the merits.^ To allow him to do this would be to give him this advantage. After objecting that he was not properly in court, he could go in, take his chance of a trial on the merits, and if it resulted in his favor, insist upon the judgment as good for his benefit, but if it resulted against him, he could set it all aside upon the ground that he had never been properly got into court at all. If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. Caughey v. Vance, 3 Chand. 315-16; Thayer v. Dove, 8 Blackf. 567. We also think the defendant could not take advantage of this objection on an appeal to the Circuit Court, the judgment being over $15. The object of an appeal in such cases is to try the case anew in the Appellate Court on its merits, and not to review errors of the justice. The taking of such an appeal isi equivalent to an appearance, and gives the Appellate Court jurisdiction over the person, whether the service of the process before the justice was sufficient for that purpose or not. Bamum v. Fitzpatrick, adm'r, etc., 11 Wis. 83, and cases cited. See also Hester v. Murphy, 1 Ark. 55 ; Ball v. Kuykendall, 2 id. 195 ; Ser v. Bobst, 8 Mo. 506; Matlock v. King, 23 id. 400. The remedy of the party in such a case vs^ould seem to be that pointed out in Wood V. Randall, 5 Hill, 264, that is a common law certiorari. HAHKNESS V. HYDE. 98 V. 8. 476. [1878.] Mr. Justice Field delivered the opinion of the court. This was an action to recover damages for maliciously and 1 Accord: Newcomb v. Ey., 182 Mo. 687; Edwards v. Traction Co., 217 lU. 409. Sec. 2.] hardness v. hyde. 99 without probable cause procuring, the seizure and detention of property of the plaintiff under a writ of attachment. It was brought in September, 1873, in a District Court of the Territory oi Idaho for the County of Oneida. The summons, with a copy of the complaint, was soon afterwards served by the sheriff of the county on the defendant, at his place of residence, which was on the Indian reservation, known as the Shoshonee reservation. The defendant thereupon appeared specially by counsel ap- pointed for the purpose, and moved the court to dismiss the action, on the ground that the service thus made upon him on the Indian reservation was outside of the bailiwick of the sheriff, and without the jurisdiction of the court. Upon stipulation of the parties the motion was adjourned to the Supreme Court of the Territory, and was there overruled. To the decision an exception was taken. The case was then remanded to the District Court, and the defendant filed an answer to the complaint. Upon the trial which followed the plaintiff obtained a verdict for $3,500. Upon a motion for a new trial the amount was reduced to $2,500, for which judgment was entered. On appeal to the Supreme Court of the Territory, the judgment was affirmed. The defendant thereupon brought the case here, and now seeks a reversal of the judgment, for the alleged error of the court in refusing to dismiss the action for want of jurisdiction over him. The act of Congress of March 3, 1863, organizing the Territory of Idaho, provides that it shall not embrace within its limits or jurisdiction any territory of an Indian tribe without the latter 's assent, but that "all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Idaho," until the tribe shall signify its assent to the President to be in- cluded within the Territory. 12 Stat. 808. * * * The ter- ritory reserved, therefore, was as much beyond the jurisdiction, legislative or judicial, of the government of Idaho as if it had been set apart within the limits of another country, or of a foreign State. Its lines marked the bounds of that government. The process of one of its courts, consequently, -served beyond those lines, could not impose upon the defendant any obligation of obedience, and its disregard could not entail upon him any penalties. The service was an unlawful act of the sheriff. The court below should, therefore, have set it aside on its attention being called to the fact that it was made upon the defendant on the reservation. The motion was to dismiss the action, but it 100 PROCESS. [Chap. I. was argued as a motion to set aside the service, £ind we treat it as having only that extent. The code of Idaho considers an action as commenced when the complaint is filed, and provides that a summons may be issued within one year afterwards. Had the defendant been found in Idaho outside the limits of the Indian reservation, he might during that period have been served with process. There can be no jurisdiction in a court of a Territory to render a personal judgment against any one upon service made outside its limits. Personal service within its limits, or the voluntary appearance of the defendant, is essential in such cases. It is only where property of a non-resident or of an absent defendant is brought under its control, or where his assent to a different mode of service is given in advance, that it has jurisdiction to inquire into his personal liabilities or obligations without personal service of process upon him, or his voluntary appearance to the action. Our views of this subject are expressed at length in the late case of Pennoyer v. Neff (95 U. S. 714), and it is unnecessary to repeat them here. The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, or what we consider as intended, that the service be set aside; nor, when that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the atten- tion of the court to such irregularity; nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived.^ 1 For a coUeotion of the cases on respondeat ouster. Lockwood, J., in this point, see Corbett v. Casualty Delahay v. Clement, 4 111. 201 Co., 16 L. E. A. (N. S.) 177 and (1841): "This cause was decided note. It seems that at common law at the last December term, but on a error in sustaining a demurrer to a petition, this Court, at the present plea in abatement was not waived term, granted a rehearing. The pe- by a plea in bar after judgment of tition suggests that the Court mis- Sec. 2.] HARKNESS V. HYDE. 101 The judgment of the Supreme Court of the Territory, there- fore, must be reversed, and the case remanded with directions to reverse the judgment of the District Court for Oneida County, and to direct that court to set aside the service made upon the defendant ; and" it is So order&d. took the law, by deciding "that where a demurrer to a plea in abate- ment is sustained, if the defendant files a plea in bar, he thereby waives his plea in abatement. ' ' This Court, in the case of McKinstry v. Pen- noyer et al. (1 Scam. 319), decided, that "if there be judgment for the plaintiff, on demurrer to a plea in abatement, or replication to such plea, the judgment is only inter- locutory, quod respondeat ouster." '' Upon the principles decided in that case, it is the order and judgment of the Court, without the request of the defendant, that he answer over. In complying with this order, it is not perceived how a party can be said to abandon his plea, or waive his right to a correct decision upon his plea. The Court was doubtless led into this error by supposing that the defendant below stood upon the same ground as a party who, after his plea had been held bad on de- murrer, asks and obtains leave of the Court to amend his plea. In this case, the plea is considered as abandoned. So, if a party demurs to a pleading, and the demurrer is overruled, and he obtains leave to withdraw his demurrer and plead or reply, the demurrer is deemed to be waived. In both of these cases, it is considered the act of the party that produces the result. He admits that he was wrong, and he should not be permitted subsequently to come into Court and insist that he was right. In the case at bar, how- ever, there is no such admission. Consequently, if the Court decided the defendant's plea in abatement to be insufficient, when, by law, it should have been sustained, he has a right to have that decision re- viewed on a writ of error. ' ' And so in Grand Lodge v. Cramer, 164 111. 9; Gardner v. James, 5 E. I. 235. In Pepper v. Whalley, 5 Nev. & Man. 437 (1835), after judgment of respondeat ouster on demurrer to a plea in abatement, the defendant pleaded in bar, and on the issue there was a verdict for plaintiff. Defendant moved in arrest because the plea, demurrer, etc., were omitted from the nisi prius record. The Court held the omission proper under the Hilary rules, thus chang- ing the former practice. The Re- porter added the following liote: "Unless the plea in abatement, the demurrer thereto, and the joinder in demurrer and the judgment of respondeat ouster, appeared on the judgment roU, the defendant would have no opportunity of insisting, before a Court of Error, upon the sufficiency of the plea in abate- ment. Quaere, as to the mode of effecting this since the new rules." The judgment of respondeat ouster was interlocutory so that a writ of error would not lie directly. Tidd's Practice, 8th Eng. ed. p. 1195. 102 PEOCESS. [Chap. I. ABBOTT V. SBMPLB. 25 Illinois, 91. [I860.] Mr. Justice Breese delivered the opinion of the court. The first point made in this case, that of the legality of the special October term, has been already settled in the case of Mattingly v. Darwin, 23 111. 618. We there held that such appointment of a special term was regular and in conformity with the statute. It is, however, contended here, that admitting the legality of the special term, yet one of the defendants. Lemon, was not summoned at all, the process as to him having been returned not found. We have often said service of process is unnecessary, if the party appears, appearance being the object of process. When that is effected without service, as by a regular entry of appearance in person, or by attorney, the law is satisfied. This record shows that both defendants appeared by their attorneys, and joined in a motion to quash the summons; and, after that was disposed of, the record shows they again appeared and entered their motion for a new trial, and that they also appeared to except to the ruling of the court directing the order appointing the special term to be entered on the record ; and also appeared and entered their motion to dismiss the case for want of jurisdiction of the persons of the defendants, they not having been summoned to appear at the special October term. It was at no time objected by the defendant Lemon, that he was not served at all, but with his co-defendant Abbott, who was served, joined in the motions that were made. Under these circum- stances we must hold that there was a general appearance of both these defendants for all purposes. Frazier v. Resor, 23 111. 88. When a party only appears for the purpose of showing he is not properly before the court, he should so confine it in his motion, else he may be adjudged to have appeared for all pur- poses — that his appearance, not being limited to a specific pur- pose, will be held to be a general appearance. Judgment affirmed. Sec. 2.] hurlburt v. palmer. 103 HURLBURT v. PALMER. 39 Nebraska, 158. [1894.] In this action under the Nebraska Code, the defendant had filed an answer uniting a plea to the merits with a plea to the jurisdiction on the ground of abuse of criminal process by which service was obtained. The trial court excluded proof of this lat- ter defense on the ground that the answer to the merits amounted to a waiver.i Ryan, C. (after stating the case in detail). * * * These facts present for our determination the question whether or not by answering as one defense by way of a general deniel (modified perhaps by an admission), the defendant of necessity waived his right to plead as a separate defense such facts as would show that jurisdiction of the person of the defendant had been obtained, if at all, by fraud and abuse of the process of the court — the facts above offered to be proved leaving no room for a milder statement as to the propositions in support of which proof was tendered. It is greatly to be regretted that the adjudications of this court upon the proposition stated furnish apparent authority for the contention of each party. * * * The misapprehension of the scope of former decisions of this court as justifying an inference of waiver as to the question of jurisdiction, by pleading the facts defeating it in connection with other matters of defense by way of answer, required the review by this court of its former opinions on that subject, and having found that this court had not gone to the extreme assumed, it was deemed but proper to notice the holdings of other courts upon the same subject. Our conclusion is, that under section 99 of the Code of Civil Procedure it is proper to plead as a distinct defense such facts as do not appear in the record, whereby it is made known that the court has no jurisdiction either of the person or the subject-matter of the action. As an original question it would seem that there should have been no doubt as to this proposition, for it is provided in section 94 of the Code of Civil Procedure, among other provisions, that "the defendant may demur to the petition only when it appears on its face either, 1 Statement has been condensed. —Ed. 104 PBOCEss. [Chap. I. first, that the court has no jurisdiction of the person of the defendant or the subject of the action," etc. In the same Code it is provided as follows by section 96: "When any of the defects enumerated in section 94 do not appear upon the face of the petition, the objection may be taken by answer, and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same," etc. By this section it is expressly provided that the failure to make objection by answer, where the defect does not appear upon the face of the petition, shall be deemed a waiver of such defect ; that is to say, the failure to raise by answer the question of jurisdiction, arising as it did in this case, must be deemed a waiver of all objections on that score. It is a harsh and unnatural construction, and one in direct contravention of the provisions of this section, to hold that by taking objections to jurisdiction in the manner provided thereby, the defendant waives the very objections he shall be deemed to have waived unless he proceeds in that very manner. In view of all the considerations to which attention has been challenged, we conclude that the District Court erred in sustain- ing the objections made to the evidence offered for the purpose of showing that the court had no jurisdiction of the persons of the plaintiffs in error .^ GRANTIER v. ROSECRANCE. 27 Wisconsin, 488. [1871.] Appeal from an order setting aside a judgment by default and vacating the service. Cole, J. There can be no doubt that the record failed to show any legal service of the summons in the action ; and had not this defect been waived by the appearance of the defendant Rose- 2 Accord: Allen v. Miller, 11 diction may be joined with a plea Ohio St. 374; Hapgood v. Dial, 43 in bar, but the objection to jurisdie- Tex. 625; Telephone Co. v. Beeler, tion of the person will be waived, 125 Ky. 366; Johnson v. Detrick, if it should have been taken by mo- 152 Mo. 243. But see Corbett v. tion instead of plea. Neweomb v. Casualty Co., 135! Wis. 505. By., 182 Mo. 687. In Missouri, a plea to the juris- Sec. 2.] mc Arthur v. lepfler. 105 crance, the order appealed from would have to be affirmed. But he, by his attorneys, moved the court to set aside the judgment upon several grounds, one of which was the following: "4th. Because the complaint in this action does not state a cause of action against the defendant Martin Eosecrance." Coming into court and moving that the judgment be set aside upon such a ground was a general appearance in the cause, and. cured all irregularity in the service of process. It is true the notice states that the defendant appears "specially" for the purpose of set- ting aside the judgment; and had he limited the motion solely to the defects in the service of the summons, the appearance would have been a qualified one. But he did not ask to have the judgment vacated for that reason alone, but because the com- plaint did not state a cause of action against him. This was a full submission to the jurisdiction of the court, and was a general appearance. It is substantially the same as though he had come into court before judgment was entered, and demurred to the complaint upon the ground that it stated no cause of action. He expressly asked the court, in his motion, to review the complaint, and to vacate the judgment because the complaint was fatally defective. It is difficult to conceive how a more full or general appearance could be made, so far as the jurisdiction over the person of the defendant Eosecrance was concerned. He must be held to have waived all defects and irregularities in the service of the summons upon him. Stonach v. Glessner, 4 Wis. 275; Barnum v. Fitzpatrick, 11 id. 81 ; Tallman v. McCarthy, id. 401 ; Upper Transportation Co. v. Whittaker, 16 id. 220; Conger v. C. & G. U. E. E., 17 id. 477; Cron v. Krones, id. 401. By the Court: The order of the Circuit Court is reversed, and the cause remanded with directions to reinstate the judg- ment.i McAETHUE v. LEFFLEE. 110 Indiana, 526. [1886.] In the original action of Leffler v. McArthur,^ there was a return of non est, and an affidavit for an order of publication, at 1 But see Godfrey v. Valentine, 39 ^ Statement lias been condensed. Minn. 36; Jones v. Bird, 74 HI. 115. 106 PROCESS. [Chap. I. which stage of the proceedings the attorneys for McArthur filed a demurrer to the complaint and obtained a change of venue to Pulaski County; the latter court granted leave to withdraw the appearance and demurrer, and thereafter judgment by default was entered. McArthur then brought the present suit under the Indiana statute to review the default judgment. A demurrer was sustained to the complaint and the plaintiff appealed. HowK, J. Did the court err in sustaining appellee 's demurrer to appellant's complaint for review, the substance of which we have given? We are of opinion that this question ought to be, and must be, answered in the affirmative. It may be conceded that, upon the facts stated in such complaint, if the appellee had objected to the withdrawal of appellant's appearance in the original action, it would have been error to have overruled such objection, and to have permitted such appearance to be with- drawn. Indeed, upon the facts stated, it would have been com- petent for the court in its own discretion, without any objection on the part of the appellee, to have denied the leave requested for the withdrawal of appellant's appearance. Thus, in Young v. Dickey, 63 Ind. 31, the court said: "Per- haps, when a defendant appears to an action without process and service, the court would not allow him to withdraw his appearance over the objection of the plaintiff, or, at least, in such a case, it would be within the judicial discretion of the court to allow, or not to allow, his withdrawal, according to the merits of the question." N^ew Albany, etc., E. R. Co. v. Combs, 13 Ind. 490. ' ' According to the merits of the question, ' ' as presented by the facts stated in appellant's complaint in the case under considera- tion, we think the court below would have Been fully authorized in the exercise of its discretion, with or without objection on the part of the appellee, to refuse to allow the withdrawal of appellant's appearance. For it was clearly shown by the aver- ments of his complaint that the appellant, by his counsel, not only appeared fully to the original action and filed his demurrer to the complaint therein, in the Starke Circuit Court, but that he there applied for and obtained, upon the affidavit of one of his counsel, a change of venue to the Pulaski Circuit Court. Upon this state of the record, it seems to us that the court below, except for good cause shown, ought to have promptly denied or overruled the motion of appellant's counsel for leave to withdraw their appearance for him. But the court sustained Sec. 2.] mcarthur v. lepJ'ler. 107 the motion of counsel, and allowed them to withdraw not only their appearance for appellant, but also his demurrer to the complaint and his other papers, in the original cause. It is shown by the averments of appellant's complaint herein, admitted to be true by appellee 's demurrer thereto, that the court below, two days after the withdrawal of appellant's appearance and papers, attempted to amend its previous orders so as to show that the leave to withdraw appearance was granted, but that the leave to withdraw demurrer and other papers was denied. But this attempted amendment did not change the previous order, in legal effect. , It has always been held by this court that the withdrawal of a defendant's appearance in a cause, of itself, effects the with- drawal of all his pleadings therein. Thus, in the early ease of Carver v. Williams, 10 Ind. 267, the court said: "If a party appears to a suit and pleads, and then simply fails to appear at the trial, his pleadings stand. But if, after pleading, he comes and withdraws his appearance to the suit, which, by leave of the court, he may do, his pleadings go with his appearance." What was there said has been. quoted with approval and fol- lowed in many of our subsequent decisions. Sloan v. Wittbank, 12 Ind. 444; Smith v. Foster, 59 Ind. 595; Young v. Dickey, supra; Gunel v. Cue, 72 Ind. 34; Love v. Hall, 76 Ind. 326. Appellant's appearance to appellee's action having been with- drawn, with leave of the court first had, and it not appearing that he had afterwards appeared therein either in person or by attorney, of course it was not competent for either the court or the appellee to take any further proceedings against appellant in such cause, until after proof had been duly made of the issue and service on him of process issued therein. No such proof of the issue and service of process was made, or attempted to be made in the original cause, and, therefore, the court below clearly erred in calling and defaulting appellant therein, and in render- ing judgment against him upon such default. Thus, in Dunkle V. Elston, 71 Ind. 585, which, like the case we are now con- sidering, was a suit for the review of a judgment for errors of law apparent in the record, the court said : ' ' The withdrawal of appearance for the defendants by * * * their attorneys, took with it the answers of the defendants. Young v. Dickey, 63 Ind. 31. And a judgment by default was therefore proper, if the defendants had been duly served with process." , 108 PROCESS. [Chap, I. In the ease at bar, as we have seen, one of the errors of law apparent in the record of the judgment sought to be reviewed was that appellant had not been duly served with process in the original cause, and from this error of law it followed of neces- sity that the judgment by default against him therein was im- proper, erroneous, and wholly unauthorized by law. We are of opinion, therefore, that the court clearly erred in sustaining appellee's demurrer to appellant's complaint herein for the review and reversal of the judgment against him described therein. The judgment is reversed with costs, and the cause is remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.^ (d) The service required in various actions. BECQUET V. MacCARTHY. 2 Barnewall & Adolphus. 951. [1831.] Lord Tenterden, C. J., now delivered the judgment of the court. This was an action brought upon a judgment recovered in the Island of Mauritius. That island, at the time of the suit in 1 Accord : Graham v. Spence, 14 court in the case are as valid and Fed. 603. But see Dart v. Hercules, binding as if the process was regu- 34 111. 395, in which Walker, C. J., lar and the service unobjectionable, said : ' ' The only purpose of original By filing a plea in bar a full ap- process is to bring parties into court. pearance was entered, which was And when the defendant enters his not withdrawn by withdrawing the appearance, the object is accom- plea. After it was withdrawn, the plished, and it is not material appearance still remaining, plain- whether the summons issued in the tifiE below was entitled to judgment case was defective or not, or even nil dicit, at any time before another whether it is ever issued. By an plea was filed." appearance to the action, the court And so in Eldred v. Bank, 17 acquires jurisdiction of the person Wall. 545; Creighton v. Kerr, 87 of defendant as fully as it can be U. S. 8. Where the appearance of a had by summons, with proper serv- non-resident has been entered with- ice. When he appears in the case out authority, that fact may be set it is an admission that he has been up as a defense to the judgment, duly served, or that he waives serv- Sheldon v. Griffin, 6 How. (U. S.) ice; and all the proceedings of the 162. Sec. 2.] becquet v. mac carthy. 109 which the judgment was given, belonged to the sovereign of this country, but the French law then prevailed there. The judgment was recovered by a person whose premises had been destroyed by fire which began in the premises belonging to or occupied by the testator, at that time deputy paymaster of the forces in the island. Among other objections taken to the validity of this judgment, one was, that supposing the court to have proceeded upon the article 1384 of the Code Civil, and taking it for granted that the fire originated in premises occupied by the testator, still that was not sufficient to make him liable, because the fire might have begun without the fault of the testator or' any of his servants. The law of France being the law of the colony at the time when the judgment was pronounced, the French court was much more competent to decide questions arising upon that law than we can be. * * * Another objection, and not an unimportant one, was, that the testator, when the proceedings were instituted against him, was absent from the island; and it was urged, that it was contrary to the principles of natural justice that any one should be con- demned unheard, and in his absence. Proof, however, was given that by the law of the colony, in the case of a person formerly resident in the island, absenting himself, and not leaving any attorney upon whom process in a suit might be served, the procurator-general or his deputy was bound to take care of the interests of such absent party. It was said that the law of the island did not provide any means whereby the procurator-general or his deputy might be required to hold communication with, or receive directions from an absent person. There may, per- haps, be some deficiency in the law in that respect; but as the law of the island is, that the process shall be served upon the public officer, it must be presumed that he would do whatever was necessary in the discharge of that public duty; and we cannot take upon ourselves to say that the law is so contrary to natural justice as to render the judgment void in a case where the process was so served.^ For these reasons we are of opinion, that the rule for a new trial should be discharged. ^ Bvie discharffed. 1 In Sirdar Gurdial Singh v. to extend the rule to the ease of a Eajah of Faridkote, (1894) App. foreigner who had returned to hia Cases, 670 the Privy Council refused home state before action brought. 110 PROCESS. [Chap. I. SMITH V. GRADY. 68 Wisconsin, 215. [1887.] Appeals from the Circuit Court for Chippewa County. The plaintiff duly presented to the Chippewa County Court for allowance their verified claim against the estate of Patrick O'Donnel, the defendant's testator, founded upon a judgment recovered by them in the County Court of the county of Peter- borough, in the Province of Ontario and Dominion of Canada, against the testator in his lifetime. The Chippewa County Court disallowed the claim, whereupon the plaintiffs appealed to the Circuit Court. The Circuit Court also disallowed it, and from the judgment of disallowance the plaintiffs have appealed to this court. A duly exemplified copy of the judgment roll in the Ontario court, including the judgment, was offered in evidence by the plaintiffs, from which it appears that the action, which was com- menced by a writ of summons, was a personal action against the defendant for services as solicitors alleged to have been rendered him in Ontario by the plaintiffs; that the only service of such process upon the testator was made upon him personally in the county of Chippewa in this state, and that he made no appear- ance in the action. It also sufficiently appears, by a stipulation of facts made in the case and otherwise, that the testator resided in Ontario and was a subject of Great Britain when he became indebted to the plaintiffs; that he continued such subject until his death; that he was not a resident of Ontario and had no property therein when process was served upon him, or after- wards; that all the proceedings in the Ontario action, including the service of process in this state are regular under the laws of Ontario, and that the judgment is authorized by such laws ; also that the Peterborough County Court is a court of record having jurisdiction of such actions. * * * Lyok, J. The only question which the first appeal herein pre- sents for determination is. Did the service of process in this state upon Patrick O'Donnel, the defendant's testator, give the On- tario court jurisdiction of his person, so as to make valid its personal judgment against him, based entirely upon such serv- ice? "Whatever validity such judgment may have in Ontario or Canada under the laws of that province or dominion, in this Sec. 2.] goldey v. morning news. Ill country the authorities are very uniform that a personal judg- ment, founded alone upon service of process in another state or foreign country, is void. Many of the cases which so hold are cited in the brief of counsel for the defendant. Of these McBwan V. Zimmer, 38 Mich. 765, is worthy of special notice. See also Bischoff V. Wethered, 9 Wall. 812. But it is not necessary to look elsewhere for doctrine or author- ity on this question, for this court ruled upon the subject many years ago in Jarvis v. Barrett, 14 Wis. 591. The question was there settled and further discussion of it foreclosed in the follow- ing terms : " It is a universally acknowledged principle that jurisdiction, cannot be acquired or exercised over persons or property without the territorial limits of the government where the court sits, and that the legislature possesses no power to grant it. It can only be obtained of persons and property within the territory so as to be subjected to the process of the court. Jurisdiction of a defendant cannot, be acquired so as to bind him personally, except by his voluntary appearance, or by due serv- ice of process vrithin the state, and service out of the state is utterly nugatory and void for that purpose. ' ' ^ The claim against the estate of the testator being upon the void judgment alone, it was properly disallowed both by the county and circuit courts. By the court. The judgment of the Circuit Court is affirmed. GOLDEY V. MORNING NEWS. 156 United States, 518. [1894.] This was an action for a libel, claiming damages in the sum of $100,000 brought in the Supreme Court of the State of New York for the county of Kings, by Catherine Goldey, a citizen of the State of New York, against the Morning News of New Haven, a corporation organized and existing under the laws of the State of Connecticut, and carrying on business in that state 1 Aeeord : Grabel v. Massauer, 210 ]Sr. T. 149 (notice by publication) . 112 PROCESS. [Chap. I. only, and having no place of business, officer, agent or property in the State of New York. The action was commenced January 4, 1890, by personal service of the summons in the city and State of New York upon the president of the corporation, temporarily there, but a citizen and resident of the State of Connecticut; and on January 24, 1890, upon the petition of the defendant, appearing by its attor- ney specially and for the sole and single purpose of presenting the petition for removal, was removed into the Circuit Court of the United States for the Eastern District of New York, because the parties were citizens of different states, and the time within which the defendant was required by the laws of the State of New York to answer or plead to the complaint had not expired. In the Circuit Court of the United States, the defendant, on February 5, 1890, appearing by its attorney specially for the purpose of applying for an order setting aside the summons and the service thereof, filed a motion, supported by affidavits of its president and of its attorney to the facts above stated, to set aside the summons and the service thereof, upon the ground "that the said defendant, being a corporation organized under the laws of the State of Connecticut, where it solely carries on its business, and transacting no business within the State of New York, nor having any agent clothed with authority to represent it in the State of New York, cannot legally be made a defendant in an action by a service upon one of its officers while temporarily in said State of New York." Thereupon that court, after hear- ing the parties on a rule to show cause why the motion should not be granted, ' ' ordered that the service of the summons herein be, and the same is hereby, set aside and the same declared to be null and void and of no effect, and the defendant is hereby relieved from appearing to plead in answer to the complaint or otherwise herein." 42 Fed. Rep. 112. The plaintiff sued out this writ of error.^ Mr. Justice Gray, after stating the case, delivered the opinion of the court. This writ of error presents the question whether, in a personal action against a corporation which neither" is incorporated nor does business within the state, nor has any agent or property 1 For that part of the opinion dealing with the question of special appearance, see ante p. 93. Sec. 2.] goldey v. morning news. 113 therein, service of the summons upon its president, temporarily within the jurisdiction, is sufficient service upon the corpora- tion. * The defendant in error has interposed a preliminary objection that the judgment of the Circuit Court upon this question can- not be reviewed, because /)f the provision of the statutes, that there shall be no reversal in this court upon a writ of error "for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court." Eev. Stat. §1011, as amended by Act of February 18, 1875, ch. 80, 18 Stat. 318. But that pro- vision, which has been part of the judiciary acts of the United States from the beginning, has never been, and in our opinion should not be, construed as forbidding the review of a decision, even on a plea in abatement, of any question of the jurisdiction of the court below to render judgment against the defendant, though depending on the sufficiency of the service of the writ. Act of September 24, 1789, c. 20, § 22, 1 Stat. 85 ; Pollard v. Dwight, 4 Cranch, 421 ; Harkness v. Hyde, 98 U. S. 476 ; Mexican Central Railway v. Pintney, 149 U. S. 194. Upon the question of the validity of such a service as was made in this case, there has been a difference of opinion between the courts of the State of New York and the Circuit Courts of the United States. Such a service has been held valid by the Court of Appeals of New York. Hiller v. Burlington & Missouri Rail- road, 70 N. Y. 223 ; Pope v. Terre Haute Co., 87 N. Y. 137. It has been held invalid by the Circuit Court of the United States held within the State of New York : Good Hope Co. v. Railway Barb Fenceing Co., 23 Blatehford, 43 ; Goldey v. Morning News, 42 Fed. Rep. 112; Clews v. Woodstock Co., 44 Fed. Rep. 31; Bentlif v. London & Colonial Corporation, 44 Fed. Rep. 667; American Wooden Ware Co. v. Stem, 63 Fed. Rep. 676 ; as well as in other circuits. Elgin Co. v. Atchison, etc., Railway, 24 Fed. Rep. 866 ; United States v. American Bell Tel. Co., 29 Fed. Rep. 17 ; Carpenter v. Westinghouse Co., 32 Fed. Rep. 434 ; St. Louis Co. V. Consolidated Barb Wire Co., 32 Fed. Rep. 802; Reifsnider v. American Publishing Co., 45 Fed. Rep. 433 ; Fidel- ity Co. V. Mobile Railway, 53 Fed. Rep. 850. It becomes neces- sary, therefore, to consider the question upon principle, and in the light of the previous decisions of this court. It is an elementary principle of jurisprudence, that a court of justice cannot acquire jurisdiction over the person of one who H. T. P.— 8 114 PEOCESS. [Chap. I. has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction upon him or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Whatever effect a constructive service may be allowed in the. courts of the same government, it cannot be recognized as valid by the courts of any other government. D'Arcy v. Ketchum, 11 How. 165 ; Knowles v. Gaslight Co., 19 Wall. 58 : Hall V. Lanning, 91 U. S. 160; Pennoyer v. Neff, 95 U. S. 714: .York V. Texas, 137 U. S. 15 ; Wilson v. Seligman, 144 U. S. 41. For example, under the provisions of the Constitution of the United States and of the acts of Congress, by which judgments of the courts of one state are to be given full faith and credit in the courts of another state, or of the United States, such a judg- ment is not entitled to any force or effect, unless the defendant was duly served with notice of the action in which the judgment was rendered, or waived the want of such notice. Constitution, art. 4, § 1 ; Acts of May 26, 1790, c. 11, 1 Stat. 122, and March 27, 1804, c. 56, 2 Stat. 299, Rev. Stat. § 905 ; Knowles v. Gas- light Co., and Pennoyer v. Neff, above cited. * * * So a judgment rendered in a court of one state against a corporation neither incorporated nor doing business within the state must be regarded as of no validity in the courts of another state or of the United States, unless service of process was made in the first state upon an agent appointed to act there for the corporation, and not merely upon an officer or agent residing in another state, and only casually within the state, and not charged with any business of the corporation there. La- fayette Ins. Co. V. French, 18 How. 404; St. Clair v. Cox, 106 U. S. 350, 357, 359 ; Fitzgerald Co. v. Fitzgerald, 137 U. S. 98, 106 ; Mexican Central Railway v. Pinkney, 149 U. S. 194 ; In re Hohorst, 150 U. S. 653, 663. The principle which governs the effect of judgments of one state in the courts of another state is equally applicable in the Circuit Courts of the United States, although sitting in the state in which the judgment was rendered. In either case, the court the service of whose process is in question, and the court in which the effect of that service is to be determined, derive their juris- diction and authority from different governments. Pennoyer v. Neff, 95 U. S. 714, 732, 733. ' For the same reason, service of mesne process from a court of Sec. 2.] dillon v. heller. 115 a state, not made upon the defendant or his authorized agent within the state, although there made in some other manner rec- ognized as valid by its legislative acts and judicial decisions, can be allowed no validity in the Circuit Court of the United States after the removal of the ease into that court, pursuant to the acts of Congress, unless the defendant can be held, by virtue of a general appearance or otherwise, to have waived the defect in the service, and to have submitted himself to the jurisdiction of the court.2 DILLON V. HELLER. 39 Kansas, 599. [1888.] Plaintiff brought suit under the code against the defendant, a non-resident, to quiet title to a tract of land, and obtained service by publication. The defendant entered a special appear- ance and moved to quash for lack of jurisdiction. This motion was overruled and judgment entered by default. The defendant sued out the present writ of error.^ Valentine, J. The plaintiff in error, who was defendant be- low, claims that the court below erred in the following partic- ulars and for the following reasons, to- wit : "1. That service of summons by publication in actions to ' quiet title ' is not sufficient to give the court jurisdiction of the party defendant. "2. That the court, not having jurisdiction of the party de- fendant, cannot pronounce judgment in the matter. ' ' 3. That the service by publication is null and void and of no effect because it does not run in the name or style of 'The state of Kansas.' "4. That the service by publication is null and void for the reason that it is not dated of the day and date issued. "5. That the affidavit to secure service by publication is wholly insufficient to base a service by publication upon. 2 See also Latimer v. Ey., 43 Mo. For the contrary view, see Pope 105 (suit on a judgment rendered v. Mfg. Co., 87 N. Y. 137. in N. y. on the same state of facts). i Statement has been condensed. 116 PROCESS. [Chap. I. ' ' 6. That the judgment is void and null for the reason that it was obtained without any evidence whatever." While the plaintiff in error does not in terms claim that a court cannot in any case where the defendant is a non-resident and out of the state, obtain jurisdiction to hear and determine the case by virtue of a service of summons only by publication, yet such is the result of his argument; and in support of such argument he cites a number of authorities, the principal of which is the case of Hart v. Sansom, 110 U. S. 151. We do not think, however, that the authorities cited go to the extent claimed for them. Of course a court cannot obtain jurisdiction of the per- son of a non-resident defendant by means only of a service of summons by publication, nor can the court obtain jurisdiction of the person of any person who is a non-resident and out of the state, by any kind of service, or by any kind of process or notice ; for the jurisdiction of the courts of any sovereignty can never extend beyond the domain of the sovereignty which creates them. (Amsbaugh v. Exchange Bank, 33 Eans. 100, 105.) No court in Kansas can compel a non-resident defendant out of the state to come within its territorial boundaries, or to submit himself to its jurisdiction, or to do or perform any other act or thing; but this lack of power on the part of the court does not depend upon the character of the service of process made upon the defendant, but it arises from the well-established doctrine that the jurisdic- tion of one sovereignty (through its courts or otherwise) cannot extend into the territorial boundaries of another sovereignty. Therefore, for the purposes of this case, it will be admitted that the court below did not have jurisdiction of the person of the defendant below, plaintiff in error. But that does not settle this controversy. The court below had jurisdiction of something. It had jurisdiction of the plaintiff below, and it had jurisdiction of the subject-matter of the action. This latter proposition, how- ever, is questioned. Jurisdiction is of two kinds: jurisdiction of the person, and jurisdiction of the property or thing in con- troversy ; or, in other words, jurisdiction in personam,, and juris- diction in rem; and jurisdiction in either case is sufScient to authorize a valid judgment to be rendered. Now it may be ad- mitted, for the purposes of this case, and is admitted, that the old equitable action to quiet title to real estate was purely an action in personam; and indeed it will be admitted that orig- inally every action in equity was purely an action in personam, SeG. 2.] DILLON V. HELLER. 117 but such is not the case under the statutes of this state, and such is not the case with respect to the present action. The present action is purely a statutory action brought by the plain- tiff under § 594 of the Civil Code, and is one of a kind of actions which can be maintained only by a person who is in the actual possession of the property in controversy, either by himself or tenant. Where personal service of summons can be obtained in such an action the action is one in personam as well as in rem, but where service of summons can be had only by publication, then the action is one only in rem. The prpsent action is one only in rem; and the court below had ample jurisdiction to hear and determine the same. For the present, we shall assume that the statutes authorizing service of summons by publication were strictly complied with in the present case, and then the only question to be considered is whether the statutes themselves are valid ; or, in other words, we think the question is this : Has the state any power through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the state belonging to non-resident owners out of the state, where such non-resident owners will not voluntarily surrender jurisdiction of their persons to the state, or to the courts of the state, and where the most urgent public policy and justice require that the state and its courts should assume juris- diction over such property. Power of this kind has always been exercised, not only in Kansas, but in all the other states. Lands of non-resident owners, as well as of resident owners, are taxed and sold for the taxes; and the owners may thereby be totally deprived of such lands, although no notice is ever given to such owners except a notice by publication or some other notice of no greater value, force, or efficacy. (Beebe v. Doster, 36 Kans. 666, 675-677.) Mortgage liens, mechanic's liens, material men's liens, and other liens are foreclosed against non-resident defendants upon service by publication only. Lands of non-resident defend- ants are attached and sold to pay their debts ; and indeed almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property which they may have in Kansas, and the jurisdiction to hear and deter- mine in this kind of cases may be obtained wholly and entirely by publication. (Gillespie v. Thomas, 23 Kans. 138 ; Walkenhorst V. Lewis, 24 id. '420; Kowe v. Parmer, 29 id. 337; Venable v. Dutch, 37 id. 515, 519.) All the states, by proper statutes, au- 118 ' PROCESS. [Chap. I. thorize actions against non-residents, and service of summons therein by publication only, or service in some other form no better ; and in the nature of things such must be done in every jurisdiction, in order that full and complete justice may be done where some of the parties are non-residents. We think a sover- eign state has the pov?er to do just such a thing. All things vifithin the territorial boundaries of a sovereignty are within its jurisdiction; and generally, within its own boundaries, a sover- eignty is supreme. Kansas is supreme except so far as its pow- ers and authority, are limited by the constitution and the laws of the United States. And within the constitution and the laws of the United States the courts of Kansas may have all the juris- diction over all persons and things within the state, which the constitution and laws of Kansas may give to them, and the mode of obtaining this jurisdiction may be prescribed wholly, entirely and exclusively by the statutes of Kansas. To obtain jurisdic- tion of anything within the state of Kansas, the statutes of Kan- sas may make service by publication as good as any other kind of service. In the present case the plaintiff resides within the state of Kansas, and he virtually surrendered jurisdiction of himself to the court below when he commenced this action. He is in the actual possession of the property in controversy and, being in the actual possession thereof, he also in effect surrendered juris- diction thereof to the court when he brought this action, and as much jurisdiction thereof as any court in any action could obtain by virtue of a seizure of the property by its own officers; and service of summons by publication, as authorized by law, was afterward had in this ease ; and this gave the court the power to hear and determine the case, and to render judgment therein, and to enforce such judgment; and this is all that is necessary to give complete and absolute jurisdiction over the thing in con- troversy. Jurisdiction is simply the power to hear and deter- mine and to enforce the judgment,- order or decree made or ren- dered on such hearing. Nothing can be lacking in the present case. The court had the power to hear and determine the ease, the power to render the judgment prayed for, which was to quiet the plaintiff's title and possession; and he was in the actual pos- session of the property; and as the property was and is within the territorial jurisdiction of the court, there would seem to be no good reason why the judgment is not valid, and why the court cannot enforce such judgment. It is said in the ease of Hart v. Sec. 2.] duxon v. heller. 119 Sansom, 110 U. S. 155, that "the courts of the state may per- haps feel bound to give effect to the service made as directed by- its statutes," and also: "It would doubtless be withih the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose." Now cer- tainiy no court would feel bound to give effect to a statute unless the court believed the statute to be valid and an existing law, and if the state may rightfully provide by statute that any one of its courts may authorize a trustee to make or cancel a deed executed by or for a non-resident, or in which a non-resident is interested, then the state could unquestionably authorize the same court by its judgment alone, to cancel or in effect to create the deed, for the trustee appointed by the court is the mere creature of the court and can take no power nor exercise any power except such as emanates from the court itself. There can certainly be no necessity for the circuitous, indirect and cum- brous mode of appointing a trustee to do a thing, when the judg- ment of the court may itself answer the entire purpose. (See Civil Code, § 400.) If jurisdiction cannot be given to the court to render such a judgment, then, a fortiori, jurisdiction could not be given to the court to appoint a trustee for such a purpose. A court without jurisdiction cannot do anything — not even to appoint a trustee. We think the court below had ample juris- diction in the present case. "We think a court may in any case, where the statutes authorize the same, obtain jurisdiction upon service by publication concerning anything present and existing within the boundaries of the state. To hold otherwise would un- settle and overturn a great many titles to land in this state — titles which have long been acquiesced in and supposed to be good and valid, and to be settled and established by the statutes and by numerous judicial decisions. And to hold otherwise would also do great injustice to innocent purchasers of lands hold the same under such titles. We think such titles are good.^ 2 Accord : Hildrith v. Oil Cloth As to when service by publication Co., 112 TJ. S. 294; Arndt v. Griggs, is due process, see Jacob v. Roberts, 134 U. S. 316. 223 U. S. 261. 120 PROCESS. [Chap. I. PENNOYBR V. NEFF. 95 United States, 714. [1877.] Mr. Justice Field delivered the opinion of the court.i This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of September 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered against the plain- tiff in one of the Circuit Courts of the state. The case turns upon the validity of this judgment. It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the state; that he was not personally served with process, and did not appear therein ; and that the judgment was entered upon his default in not an- swering the complaint, upon a constructive service o:^ summons by publication. The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant, who has property within the state. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the iion-resident. And it also declares that no natural person is subject to the jurisdiction of a court of the state, "unless he appear in the court, or be found within the state, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean that, in action for money or damages where a defendant does not appear in the court, and is not found within the state, and is not a resident thereof, but has property therein, the juris- 1 The length of this case made it opinion and parts of the principal necessary to omit the dissenting opinion. Sec. 2.] pennoyer v. nepf. 121 diction of the court extends only over such property, the declara- tion expresses a principle of general, if not universal law. The authority of every tribunal is necessarily restricted by the terri- torial limits of the state in which it is established. Any attemf)t to exercise authority beyond those Limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse. D 'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment ren- dered was not attached, nor in any way brought under the juris- diction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a per- sonal judgment, having no relation to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judg- ment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved. There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment col- laterally. * * * If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be ' unable to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the state court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the payment of the demand of a resident creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent from 122 PROCESS. [Chap. I. the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles of public law respecting the jurisdiction of an independent state over persons and property. The several states of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the constitution. But, except as restrained and limited by that instrument, they possess and exer- cise the authority of independent states, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence, every state has the power to determine for itself the civil status and capacities of its inhab- itants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obli- gations enforced ; and also to regulate the manner and conditions upon which property situated within such territory, both per- sonal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one mentioned; that is, that no state can exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl. Laws, e. 2 ; Wheat. Int. Law, pt. 2, c> 2. The sev- eral states are of equal dignity and authority, and the independ- ence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one state have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. Laws, § 539. But as contracts made in one state may be enforceable only in another state, and property may be held by non-residents, the exercise of the jurisdiction which every state is admitted to pos- sess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a state affecting persons resident or prop- Sec. 2.] pennoyeb v. neff. 123 erty situated elsewhere, no objection can be justly taken ; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the state in which the persons are domiciled or the property is situated, and be resisted as usurpa- tion. Thus the state, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their con- tracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the property by the state within which it is situated. Penn. v. Lord Baltimore, 1 Ves. 444 ; Massie v. Watts, 6 Cranch, 148 ; Watkins v. Holman, 16 Pet. 25 ; Corbett v. Nutt, 10 Wall. 464. So the state, through its tribunals, may subject property sit- uated within its limits owned by non-residents to the payment of the demand of its own citizens against them ; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citizens ; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the state's jurisdic- tion over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident's ob- ligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident have no property in the state, there is nothing upon which the tribunals can adjudicate. * * * [The opinion here reviews Picquet v. Swan, 5 Mass. 35, Boswell V. Otis, 9 How. 336, Cooper v. Reynolds, 10 Wall. 308, and then proceeds :] If, without personal service, judgments in personam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained. 124 PROCESS. [Chap. I. under which property would be seized, when the evidence of the transactions upon which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of pro- ceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the pub- lic is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffec- tual for any purpose. Process from the tribunals of one state cannot run into another state, and summon parties there dom- iciled to leave its territory and respond to proceedings against them. Publication of process or notice within the state where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in pro- ceedings to establish his personal liability. The want of authority of the tribunals of a state to adjudicate upon the obligations of non-residents, where they have no prop- erty within its limits, is not denied by the court below : but the position is assumed that, where they have property within the state, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first established in a personal action, and the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement. Sec. 2.] pennoyee v. neff. 125 that the jurisdiction of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment if void when rendered will always remain void ; it can- not occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to eases where the non-resident defendant pos- sessed property in the state at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execu- tion, the defendant had or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a n^w element of uncertainty in judicial pro- ceedings. The contrary is the law : the validity of ^very judg- ment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In Webster V. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service of process ; and the court said : "These suits were not a proceeding in rem against the land, but were m personam, against the owners of it. "Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal no- tice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nulli- ties, and did not authorize the executions on which the land was sold." The force and effect of judgments rendered against non-resi- dents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consid- eration in the courts of the United States and of the several states, as arttempts have been made to enforce such judgments in states other than those in which they were rendered, under the provi- 126 PROCESS. TChap. I. sion of the constitution requiring that 'full faith and credit shall be given in each state to the public acts, records, and judi- cial proceedings of every other state;" and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, -vrhen thus authenticated, "they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are or shall be taken." In the earlier cases, it was supposed that the act gave to all judg- ments the same effect in other states which they had by law in the state where rendered. But this view was afterwards quali- fied so as to make the act applicable only when the court render- ing the judgment had jurisdiction of the parties and of the sub- ject matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the state itself to exercise authority over the person or the subject matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. * * * [The opinion then reviews Insurance Co. v. French, 18 How. 404; Bissell v. Briggs, 9 Mass. 462; Kilburn v. Woodworth, 5 John. (N. Y.) 37.] Since the adoption of the Fourteenth Amendment to the Fed- eral Constitution, the validity of such judgments may be directly questioned, and their enforcement in the state resisted on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. "Wbat- ever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial pro- ceedings. They then mean a course of legal proceedings accord- ing to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject matter of the suit ; and, if that involves merely a determination of the personal lia- bility of the defendant, he must be brought within its jurisdic- Sec. 2.] pennoyer v. nefp. 127 tion by service of process within the state, or his voluntary ap- pearance. Except in cases affecting thei personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other states, where actions are brought against non-residents, is effectual only where, in con- nection with process against the person for commencing the action, property in the state is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein ; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than to subject the property of a non-resident to valid claims against him in the state, "due pro- cess of law would require appearance or personal service before the defendant could be personally bound by any judgment ren- dered." It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the dis- position of the property, without reference to the title of indi- vidual claimants; but in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attach- ment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the state, they are substantially proceed- ings im rem in the broader sense which we have mentioned. It is hardly necessary to observe that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tri- bunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the state creating the, tribunal may provide. They are considered as rather a continuation of the original litigation than the com- mencement of a new action. Nations et al. v. Johnson et al., 24 How. 195. It follows from the views expressed that the personal judg- 128 PROCESS. [Chap. I. ment recovered in the state court of Oregon against the plaintiff herein, then a non-resident of the state, was without any validity, and did not authorize a sale of the property in controversy. To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything we have said, that a state may not authorize pro- ceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the state, though made without service of process or personal notice to the non- resident. The jurisdiction which every state possesses to deter- mine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affect- ing them may be commenced and carried on within its territory. The state, for example, has absolute right to prescribe the condi- tions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the state, a dissolution may be granted, may have removed to a state where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the state of the de- fendant; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be with- out redress. Bish. Marr. and Div., § 156. Neither do we mean to assert that a state may not require a non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the state to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer desig- nated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the state. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode Sec. 2.] beyeb v. continental, trust co. 129 of notification has been followed, even though he may not have actual notice of them." See also The Lafayette Insurance Co. V. French et al., 18 How. 404, and Gillispie v. Commercial Mut- ual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a state, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations en- forced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becom- ing members of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin V. Adamson, Law Rep. 9 Ex. 345. , In the present case, there is no feature of this kind, and, con- sequently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one state, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein. Judgment affirmed. BEYER v. CONTINENTAL TRUST CO. 63 Missouri Appeals, 521. [ISSS.] Smith, P. J. This is an action somewhat in the nature of a creditor's bill. Briefly analyzed, the allegations of the petition are : ' First. That the Continental Trust Company, a Missouri cor- poration, became insolvent on April 1, 1890, and thereafter re- mained so. Second. That at and since April 1, 1890, defendant L. V. Harkness owned $5,000 of its capital stock. Third. That since April 1, 1890, said Harkness has received $1,200 dividends on his capital stock. Fourth. That between March 25, 1890, and November 5, 1892, said corporation became indebted to the plain- tiff in the sum of $2,118.51, which sum was due plaintiff on said last day. Fifth. That on November 5, 1892, said corporation made an assignment for the benefit of its creditors, and that plaintiff's demand has been presented to the assignee and allowed H. T. p.— 9 \ 130 PROCESS. [Chap. I. and a dividend of three per cent has been paid on it by the assignee, but that no more will be realized. Sixth. That defend- ant Harkness is a non-resident and can not be served vrith proc- ess in this state and that he owns certain real estate in this state (describing it). Seventh. That plaintiff can not, because of defendant's non-residence and the nature of his demand, pro- cure either a personal judgment against defendant, or a judg- ment by attachment process, or otherwise at law, and is without remedy at law. Eighth. Prays for judgment against defendant L. V. Harkness for $1,200, and that his said real estate be ad- judged to be sold to satisfy the same. On filing the petition an order was made, directed to the de- fendant Harkness, notifying him of the commencement of the suit, and stating the object and general nature of the petition to be to recover a judgment against him for $1,200, and to have said real estate charged with the payment thereof. Proof of the publication of the order was made, when defendant Harkness appeared specially in the cause and moved the court to quash the proceedings, on the ground that same were irregular, illegal, and void. The court sustained the motion, whereupon plaintiff has appealed to this court. All the authorities are agreed that a dividend paid by an in- solvent corporation to a stockholder, as against a creditor at that time, is merely a gift as against said creditor, and is, in law, fraudulent and void. Herman v. Britton, 88 Mo. 549 ; Gill v. Bales, 72 Mo. 424 ; Williams v. Boice, 38 N. J. Eq. 364 ; s. c, 6 Am. & Bng. Corp. Cases, 361; Bartlett v. Drew, 57 N. Y. 587; Hastings v. Drew, 76 N. Y. 9. And all persons receiving a gift from an insolvent corporation are held to account to judgment creditors for such gifts, and the proper remedy is by an action in the nature of a creditor's bill by a judgment creditor. Roan V. Winn, 93 Mo. 503. And it has been several times ruled by the appellate courts of this state that an attachment can issue only on a legal demand and not on an equitable claim. Bach- man V. Lewis, 27 Mo. App. 81 ; Beach v. Baldwin, 14 Mo. 597 ; Lackland v. Garesche, 56 Mo. 267. The plaintiff contends that he has the right to reach the money in the hands of the defendant, as a part of the assets of the trust company applicable to the payment of its debts, and its creditors have a lien thereon and the right of priority of payment over its stockholders. But the lien of the creditors of an insolvent cor- Sec. 2.] beykr v. continental trust co. 131 poration upon its assets in the hands of others, is a purely equita- ble lien and can only be enforced in an equitable proceeding. McLean v. Eastman, 21 Hun. 312. It is conceded that upon such mere equitable claim no attachment can issue. And it is, in effect, conceded by the allegations in the petition that the de- fendant Harkness acquired a valid title to the money paid him as a dividend by the trust company, as against it and its assignees. Bartlett v. Drew, 57 N. Y. 587 ; Von v. Grant, 16 Mass. 7. Turning to the allegations of the petition, it is seen that no connection is there traced between dividends and the real estate. It is not alleged that the dividends were used by the defendant Harkness in the purchase of the real estate. But the plaintiff contends that the proceeding can be upheld under a provision of the statute, section 2022, Revised Statutes, which provides that, "in all actions at law, or in equity, have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court," etc. The prayer of the petition is for judgment against defendant for the amount of the dividends received by him of the trust company and for a decree that the defendant's lands be sold as upon execution and the proceeds thereof applied to the satis- faction of the judgment. The first part of the decree prayed for is no more than a judgment in personam, and could not be effect- ive in the absence of actual notice — that is, notice by summons. The general rule is that where a decree or judgment creates a personal duty or obligation, or declares a personal charge, the proceedings are ineffective unless there be actual notice. Pen- noyer v. Neff, 95 U. S. 714. This brings us to the consideration of the decisive question in the case, which is that of jurisdiction of the res— the property. Jurisdiction of the res is said to be obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concerning it. So, while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdic- tion may be acquired by acts which are of equivalent import and which stand for and represent the dominion of the court over the thing, and, in effect, subject it to the control of the court. Among this latter class is the levy of a writ of attach- ment, or seizure of real estate, which, being incapable of removal 132 PROCESS. [Chap. I. and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court, by the officer of the court levying the writ and return of that fact into court. So the writ of garnishment or attachment, or other form of service on a party holding a fund which be- comes the subject of litigation, brings that fund into court, though the money remain in the actual custody of one not an officer of the court. An action commenced in partition of real estate, foreclosure of a mortgage, or enforcement of a lien, and the like, so far as they effect the property in the state, are sub- stantially proceedings in rem. There are cases, not partaking of the nature of proceedings in rem, where the judgment is to have effect on personal rights, as in divorce suits, or in proceedings to compel conveyances, or other personal acts, in which the legislature has properly made the jurisdiction to depend on the publication of notice, or on the bringing the suit to the notice of the party in some other mode, when he is not in the territorial jurisdiction. Cooper v. Eeynolds, 10 Wall. 308; Boswell v. Otis, 9 Efow. (U. S.) 336; Pennoyer v. Neff, supra; Hawes on Jurisdiction, § 233. The case in hand does not fall within any of these categories. Substituted service by publication, or in any other authorized form, may be sufficient to inform non-residents of the object of proceedings taken when property is once brought undei* the con- trol of the court by seizure, or some equivalent act. The juris- diction of a court to inquire into and determine their obligations at all, is only incidental to its jurisdiction over property. In this case there has neither been a seizure nor its equivalent. Nor is there any pretense of the existence of a lien of any kind which it is sought to enforce against the property. The court could acquire no jurisdiction over the property until it should, by its findings and decree, establish the plaintiff's claim and pronounce judgment thereon in his favor, for the amount thereof, and cause a seizure of the same under its decree. Prom the commencement of the suit until then, the court had not acquired jurisdiction over the property. The judgment being personal and on substituted service, would, of course, be void. "Wilson v. Railroad, 108 Mo. 588 ; Smith v. McCutchem, 38 Mo. 415 ; Lati- mer V. Railroad, 43 Mo. 105. The proceeding up to the time of the seizure of the property, under the decree, would constitute no legal impediment to the Sec. 2.] beyee v. continental trust co. 133 sale of it by the defendant, because there had been no previous seizure, or other equivalent act, bringing it under the control of the court. It was until then as if no such suit had been com- menced. If this be so, which can hardly be disputed, the validity of the judgment would depend upon whether the defendant had disposed of the property before the seizure of it under the decree. If he had, the decree would be ineffectual. This would introduce an element of uncertainty into judicial proceedings, which is not sanctioned by the law, for as said in Pennoyer v. Neff, supra, the validity of every judgment depends upon the jurisdiction of the court before it is rendered. And while the statute provides that on substituted notice, the court is authorized to afford relief in all actions at law, or in equity, which have for their object the enforcement or establishment of any right, claim, or demand against any real or personal property within its jurisdiction, this authority must be limited and confined to those cases where it obtains jurisdiction over the res by seizure, or its equivalent, or in those where there is some lien against the property in ex- istence when the action is commenced, which may be enforced by its decree. The mere fact that the property is within the terri- torial jurisdiction of the court will not be sufficient, unless it has, in some way, acquired jurisdiction over it. It is immaterial whether the proceeding against the property be by an attach- ment, or biU in equity. It must be substantially a proceeding in rem.^ This is the result of all the authorities at which we have looked, including Wilson v. Railroad, supra; Arndt v. Gregg, 134 U. S. 316 ; Cooley, Const. Lim. 500, 501, cited by the plaintiff. If the state has the constitutional power to enact a statute authorizing a decree on substituted notice, in a case""like this, we do not think it has yet done so. In our opinion, the ruling of the court below on the motion was not erroneous and therefore the judgment will be affirmed. All concur. iFor an elaborate discussion of dent without seizure of property, the cases in which service by publi- see Pana v. Bowler, 107 IT. S. 529^ cation may be had on a non-resi- Arndt v. Gregg, 134 U. 8. 316. 134 PROCESS. [Chap. L BICEERDIKB v. ALLEN. 157 Illinois, 95. [1895.] Mr. Justice Magrudeb delivered the opinion of the court: This is a creditor's bill, filed on December 17, 1891, in the Superior Court of Cook county by the appellees, as executors of the estate of Edwin C. Allen, deceased, against appellant and others, based upon a judgment recovered by said testator, in his lifetime, on November 20, 1873, against appellant and one Pratt, and claimed to have been revived by judgment of revival entered on December 9, 1891, upon which execution was issued and returned unsatisfied after 'demand made. Amendments were filed to the original bill, and afterwards a supplemental bill was filed. Answers were filed by the appellant, and other defendants alleged to have in their hands stock belonging to appellant. A receiver was appointed by agreement of parties with directions to sell the stock, and hold the proceeds to abide the final disposi- tion of the case. The answer of the appellant here to the creditor's bill below set up, among other things, that in the scire facias proceeding to revive the judgment, the revival judgment was void, because the court obtained no jurisdiction over the apellant by personal service or entry of appearance ; and that section 26 of the Practice Act (chap. 110, sec. 26 of Rev. Stat.; 2 Starr & Cur. Stat., page 1789) was unconstitutional, as being in conflict with section 2 of article 2 of the constitution of Illinois, which provides that "no person shall be deprived of life, liberty or property without due process of law," and also as being in conflict with section 1 of the fourteenth amendment to the constitution of the United States. Appellant's answer to the bill admits, that the judgment was recovered against himself and Pratt on November 20, 1873, as alleged in the bill, and that, on October 1, 1891, appellees instituted proceedings by scire facias in said Superior Court to revive said judgment,, and that execution was issued upon the judgment as revived and returned nulla bona. The answer also sets out in full all the proceedings in the suit to revive from the praecipe for a scire facias to the judgment of revival. Upon the hearing, appellees introduced in evidence the said proceedings as set out in the answer ; the appellant introduced no evidence whatever, but, at the close of the evidence introduced Se6. 2.] BICKEEDIKE V. ALLEN. 135 by appellees, made a motion to dismiss the bill, upon the alleged grounds, that the court had no power to enter a judgment of revival for want of jurisdiction over appellant, and that the said section 26 was unconstitutional as aforesaid; and also be- cause of certain alleged defects in the affidavit for publication and the publication notice in the scire foQias proceeding. This motion was overruled, but no exception is shown by the bill of exceptions to have been taken to the order overruling it. The court below rendered a decree, finding 4hat the original judgment remained due and unpaid ; that it had been duly and regularly revived; that the proceedings hy^scire facias to revive it were valid and legal, and directed that there should be paid out of the proceeds of the sale of said stock the original judg- ment and interest from the date of its rendition, and the costs accrued both in the original proceeding and in the scire facias proceeding. From this decree the present-appeal is prosecuted. First, as to the alleged unconstitutionality of section 26 : That section is as follows: "It shall not be necessary, to file a declaration in any scire facias to revive a judgment or foreclose a mortgage, in any court of record in this State. And in any such case of scire facias to revive a judgment, where the plaintiff in the judgment sought to be revived, or his attorney, shall file an affidavit in the office of the clerk of the court out Of which the writ issues, showing that the defendant in the scire facias resides or has gone out of the State, or is concealed within the State, so that process cannot be served on him, and stating the place of residence of such defendant, if known, 6r that on due inquiry his place of residence cannot be ascertained, then in such case notice to the defendant may be given by publication and mail, in the same manner as is provided by statute for notice in like cases in chancery." (2 Starr & Cur. Stat., page 1789.) The provision for notice in cases in chancery, so far as applicable, is as follows : ' ' The clerk shall cause publication to be made in some newspaper printed in his county * * * containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to such defendant whose place of residence is stated in such affidavit. The certificate of the clerk, that he has sent such 136 PROCESS. [Chap. I. notice in pursuance of this section, shall he evidence." (Rev. Stat. 111., Chap. 22, § 12.)i Where the defendant is a non-resident of the State of Illinois, and the proceeding is not in rem, but in personam, the publica- tion of notice and the mailing of a copy thereof to an address outside of the State, . without personal service or appearance, would not give to a court in this State such jurisdiction over the person of the defendant as to make a judgment in personam against him valid and impervious to collateral attack, except in cases affecting the personal or civil status and capacities of the citizen of the State towards a non-resident, as, for instance, in reference to the dissolution of the marriage relation, and except in cases where another mode of service than that of personal service may be regarded as having been assented to in advance, as, for instance, the appointment of agents in the State to receive service, and requirements as to service upon corporations created by the State. (Pennoyer v. Neff, 95 U. S. 714.) A proceeding in rem is not merely a direct proceeding against property, but any action between the parties where the direct object is to reach and dispose of property owned by them or of some interest therein. For example, suits by attachment against the property of debtors, suits for the partition of land, to fore- close mortgages, to enforce liens or contracts respecting property, may be regarded as proceedings in rem so far as they affect property in the State. (Penoyer v. Neff, supra.) In such pro- ceedings iji rem, where the object is to reach and dispose of property within the State, or of some interest therein, service by publication, or in some mode other than upon the person, may be sufficient. The theory of the law is, that when a man's property is brought under the control of the court by seizure, such seizure informs and notifies him of the proceedings taken for its sale or condemnation. In such cases constructive notice is permitted and becomes effectual solely by reason of the attach- ment or seizure of the property. The jurisdiction of the court to determine the obligations of the defendant constructively notified is incidental to its jurisdiction over the property. The judgment has no effect beyond the property reached or affected in that suit. ' ' Jurisdiction is acquired in one of two modes : 1 The publication in this case was that the defendant had concealed i based on an affidavit to the effect himself to avoid service, see p. 105. Sec. 2.] bickerdike v. adden. 137 First, as against the person of the defendant by the service of process ; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court." (Boswell's Lessee v. Otis, 9 How. 336.) "But," says Mr. Justice Field in Pennoyer v. Neff, sttpra, "where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of v process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability." (See, also, Webster v. Reid, 11 How. 437.) So far as section 26 applies to defendants residing out of this State we do not see how it can be upheld as a valid law in view of the principles hereinbefore announced. That is to say, where the proceeding by scire facias is instituted to revive a judgment rendered against a non-resident, the judgment of revival cannot be regarded as valid, if such non-resident has not been personally served, or has not entered his appearance, but has only been served by publication and the mailing of a notice to him to his residence outside of the State. The scire facias proceeding to revive a judgment is not a proceeding in rem; certainly not, where the original judgment sought to be revived is a judgment in personam. Although the non-resident may receive the notice mailed to his residence out of the State, he is not bound to appear, because "no State can exercise direct jurisdiction and authority over persons or property without its territory. ' ' ( Pen- noyer V. Neff, supra.) We held, in Cloyd v. Trotter, 118 111. 391, that service out of the State by copy of the bill and notice in a chancery case, so far as property in this State was sought to be affected, would give the court jurisdiction to decree con- cerning it, but not to render a personal decree against the defendant for the recovery of money or costs, and to award a general execution against him for the collection of the same. If the statute provided for bringing in a resident of the State by publication of the notice only without the mailing of any 138 PROCESS. [Chap. I. notice to him, the same objection might lie as in case of a non-resident. A judgment in personam in the court of a State against one of its citizens who is not served with process, but is served by publication only, cannot be valid, except in cases coming within the exceptions already indicated. In "Webster v. Reid, supra, it was said : ' ' These suits were not proceedings in rem against the land, but were in nersonam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached." So, in Pennoyer v. Neff, supra, it was said, that such judgments were not binding in the State where rendered any more than they were outside of such State, and that, since the passage of the fourteenth amendment to the Federal Constitution, their enforce- ment in the State could be resisted "on the ground that pro- ceedings in a court of justice to determine the personal rights and obligations of parties, over whom that court has no jurisdic- tion, do not constitute due process of law." But this statute does something more than require the pub- lication of the notice ; it requires a copy of the notice to be sent by mail addressed to the defendant whose place of residence is stated in the affidavit. Suppose that a defendant resides in this State, and has a known residence here, but conceals himself so that process cannot be served upon him, and that the notice specified in the statute is sent to him by mail. If he receives the notice so sent he has received personal notice just as much as though a summons was served upon him by the sheriff. The certificate' of the clerk is made proof of the mailing of the notice. "Proof of the mailing of notices, properly addressed, is prima facie evidence of their having been received by the party addressed. ' ' (Meyer v. Krohn, 114 111. 574; Young v. Clapp, 147 id. 176.) When, therefore, in any collateral proceeding, a judgment of revival based *upon notice, given through the mail as well as by publication to a resident of the State, is relied upon, it is prima facie valid. In such case the judgment cannot be said to have been rendered without jurisdiction over the defendant.* The 2 The validity of such judgments 22. But see Moss v. Fitch, 212 Mo. has been recognized in other juris- 484; De la Montanya v. De la Mon- dictions, Bryant v. Shute, 147 Ky. tanya, 112 Cal. 101. 268; Hamil v. Talbott, 72 Mo. App. Sec. 2.] bard well v. collins. 139 proceeding by scire facias to revive a judgment is not a new suit, but merely the continuation of the old one. It does not determine the obligations of the defendant to the plaintiff as involved in the original controversy and as settled by the former judgment, but merely seeks a revival of the former judgment in order to have execution of it. The defendant cannot show any matter, which was pleaded or might have been pleaded in the former action. The only defenses, which can be set up in the scire facias proceeding, are that no judgment was rendered, or, if one was rendered, that it has been satisfied or discharged. (21 Am. & Eng. Ency. of Law, pages 855, 864; Smith v. Stevens, 133 111. 183.) Hence, we are inclined to think that section 26, taken in con- nection with section 12 of the Chancery act, is a constitutional enactment so far as it provides for service by publication of notice and mailing of copy thereof to residents of the State, whose residence is stated in the affidavit. BAEDWBLL v. COLLINS. 44 Minnesota, 97. [1890.] Appeal by defendant Henry H. Collins, impleaded with Emilie Anderson and others, from an order of the District Court for Hennepin County, Young and Smith, JJ., presiding, refusing to set aside, as to him, a judgment by default in an action to enforce a mechanic's lien. Mitchell, J., after holding that the statute provided for service by publication without regard to the residence of the defendant . i # * * The only remaining question, therefore, is whether it is competent for the legislature to authorize such iGen. St. 1878, c. 81, tit. 2, §28: may be taken, without giving se- " Service by publication of the sum- ourity as to those parties, at the mons, in the manner provided in expiration of twenty days after the section five of title one of this chap- completion of the period of publi- ter for publication of the notice of cation; but such parties, or any of sale therein specified, may be made them, shall be permitted to appear upon all parties to the action against and defend, upon good cause shown, whom no personal judgment is at any time before final decree." sought; and in such case judgment 140 PROCESS. [Chap. I. service in such actions upon residents of the State personally present, and capable of being found and personally served, vi^ithin its jurisdiction. Is such service '-'due process of law?" In determining this question, it becomes important, first, to consider the character of an action to foreclose a mortgage. It is not an action to rem, but an action in personam. It is true it has for its object certain specific real property against which it is sought to enforce the lien of the mortgage, and in that sense it partakes somewhat of the nature of a proceeding in rem, but not differ- ently, or in any other sense, than do actions in ejectment, replevin, for specific performance of a contract to convey, to determine adverse claim to real estate, and the like. The rights and equities of all parties interested in the mortgaged premises are to be adjudged in the action, which proceeds, not against the property, but against the persons ; and the judgment binds only those who are parties to the suit, and those in privity with them. Whalley V. Eldridge, 24 Minn. 358. Next, it is not only an action in personam, but is also strictly judicial in its character, proceeding according to the due course of common law, like any other ordinary action cognizable in courts of equity or common law. These facts are important for the reason that what would be due process of law in one kind of proceeding might not be such in another, for reasons that will be alluded to hereafter. No court has ever attempted to give a complete or exhaustive definition of the term ' ' due process of« law, ' ' for it is incapable of any such definition. All that can be done is to lay down certain general principles and apply these to the facts of each case as they arise. Mr. Webster, in his argument in the Dart- mouth College case, gave an exposition of the words "law of the land ' ' and ' ' due process of law, ' ' which has often been quoted by the courts with approval, viz. : ' ' The general law, which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial." In judicial proceedings, "due process of law" requires notice, hearing and judgment. It does not mean, of course, the general body of the law, common and statute, as it was at the time the constitution took effect; for that would deny to the legislature the power to change or amend the law in any particular. Neither, on the other hand, does ' ' the law of the land" or "due process of law" mean anything which the legislature may see fit to declare to be such; for there are certain fundamental rights which our system of jurisprudence Sec. 2.] bard well v. collins. 141 has always recognized, which not even the legislature can dis- regard in proceedings by which a person is deprived of life, liberty or property ; and one of these is notice before judgment in all judicial proceedings. Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove > certain ancient landmarks, or take away certain fundamental rights, which have been always recognized and observed in judi- cial procedures. Hence, it becomes important, in determining what kind of notice should constitute "due process of law" in any judicial proceeding affecting a man's property, to ascertain what notice has always been required and deemed essentially necessary in actions or proceedings of that kind, according to that system of jurisprudence of which ours is derivative. In proceedings in rem, as in admiralty and the like, where the process of the court goes against the thing, which is in the custody of the court and is technically the defendant, and persons are not made parties to the suits but come in rather as intervenors, it is not essential to the jurisdiction that the persons having an interest in the thing to be effected' by the judgment should have personal notice of the proceeding, or in fact any other notice- than such as is implied in the seizure of the thing itself. There are other proceedings in the nature of proceedings in rem, many of them not strictly judicial, and none of them proceedings according to the course of common law, such as the probate of wills, administration on the estates of deceased ' persons, the exercise of the right of eminent domain, the exercise of the power of taxation, which affect property rights, but in which personal notice to persons interested in the subject or object of the proceedings has never been deemed necessary. Some form of substituted service of notice, as by publication, has always, from considerations of public policy or necessity, been deemed appropriate to such proceedings, and hence, as to them, "due process of law." But we think that, from the earliest period of English jurisprudence down to the present, as well as in the jurisprudence of the United States derived from that of England, it has always been considered a cardinal and funda-' mental principle that, in actions in personam proceeding accord- ing to the course of common law, personal service (or its equiva- lent, as by leaving a copy at his usual place of abode) of the writ, process or sumjnons must be made on all defendants 142 PROCESS. [Chap. I. resident and to be found within the jurisdiction of the court. We do not mean that the term "proceeding according to the course of the common law," as used in the books, is to be under- stood as meaning, necessarily and always, personal or actual service of process; for, although service by publication is of modern origin, there has always been some mode by which juris- diction has been obtained at common law by something amounting to or equivalent to constructive service, where the defendant could not be found and served personally. But what we do mean to assert is that the right to resort to such constructive or sub- stituted service in personal actions proceeding according to the course of the common law rests upon the necessities of the case, and has always been limited and restricted to casesi where per- sonal service could not be made because the defendant was a non-resident, or had absconded, or had concealed himself for the purpose of avoiding service. As showing what means were re- sorted to as amounting or equivalent to constructive service, and how strictly it was limited to cases of necessity by both courts of common law and courts of chancery, reference need only be had to 3 Bl. Comm. 283, 444. As a substitute for the means formerly resorted to in England in such cases, most of the American states have adopted service of the process or summons by publication. But we have found no statute, except the one now under consideration, which has assumed to authorize such a mode of service, and have found no case where its validity has been sustained by the courts, except as to defendants who could not be found within the jurisdiction,: either because of non-residence, or because they had absconded or concealed themselves to avoid the service of process. We think this will be found true in every instance, from the earliest decisions on the subject down to the latest utterance of the Supreme Court of the United States in Arndt v. Greggs, 134 U. S. 316 (10 Sup. Ct. Rep. 557), in which that court took occasion to set at rest some misapprehensions as to the scope of their previous decision in Hart v. Sansom, 110 U. S. 151 (3 Sup. Ct. Rep. 586). We think it would be a surprise to the bench and the bar of the country if it should be held that process or summons in ordinary civil actions might be served on resident defendants, present and capable of being found within the jurisdiction of the court, merely by publication in a newspaper. The dangers and abuses that would arise from such a practice Sec. 2.] nelson v. c. b. & q. by. co. 143 are too apparent to require to be named or even suggested. So radical a departure is this from the uniform and well established ideas of what constitutes due process of law in such cases that, although this act has been on the statute books for twenty-four years, we doubt whether one lawyer in twenty is aware of its existence ; and we have yet to hear of any case, except the present, where any one has ventured to act upon it. It is, in our judgment, beyond the power of tlie legislature to disregard so fundamental and long-established a principle of our jurisprudence. Service by publication, under such circum- stances, is not "due process of law," and therefore any statute assuming to authorize it is unconstitutional. It would be of little use to cite authorities upon a subject which has been so much and so often discussed in its many phases, as each case must be determined upon its own facts, and hence the decided cases would ordinarily be in point only by way of analogy. See, however. Brown v. Board of Levee Com 'rs, 50 Miss. 468. Order reversed. NELSON v. C. B. & Q. RY. CO. 225 lUinois, 197. [1907.] 'Plaintiff brought an action on the case against the C. B. & Q. Railroad Company, an Illinois corporation, and being unable to obtain ordinary service in Kane County, because the defendant did not maintain an ofiSce therein, proceeded by publication and mail under the provisions of par. 5 of the Practice Act, now § 8, chap. 110, R. S., 1913. On the motion of the defendant the court quashed the service and dismissed the action, and the plaintiff appealed.^ Mr. Justice Hand delivered the opinion of the court : * * * We are unable to discover from a reading of these sections of the statute why they are not broad enough in their terms to include a case like this, or any other action at law which may be brought against an incorporated railroad company, where no 1 statement condensed. — Ed. 144 PROCESS. [Chap. I. oiSeer or agent of the company is found in the county where the suit is brought with whom a copy of the summons can be left to effect service upon the railroad company, and where it appears the principal office of the railroad company is located within the State of Illinois. * * * We are clearly of the opinion the statute is broad enough to cover a case like the one at bar if the legislature has power to authorize service in such a case in that manner. If, however, under no circumstances a personal judgment in an action at law like this can be based upon a service of process by publication and mail, then the service of process here was bad and was properly quashed — which brings us to consideration of the ap- pellee 's second proposition. * * * [The opinion here reviews Bimeler v. Dawson, 4 Scam. 536; Welch V. Sykes, 3 Gilm. 197; Smith v. Smith, 17 111. 482; Bicker- dike V. Allen, 157 111. 95 ; Bardwell v. Collins, 44 Minn. 97.] Constructive service of process, it is said, is authorized in a certain class of cases, such as when the defendant has gone out of the State, or when he cannot be found, or when he conceals himself so that process cannot be served upon him, as the result of necessity — that is, such constructive service of process is sub- stituted for actual service of process when actual service of process canriot be had upon a defendant. In this case actual service could not be had upon the defendant although the suit was properly brought in the court from which the process was issued and the defendant was a resident of and was in the State, and the question here is narrowed to this : Can the legislature provide a constructive or substituted service of process by publi- cation and mail, in lieu of actual service of process, in a case where the process cannot be actually served upon the defendant ) in the county where the statute expressly authorizes the suit to be commenced, although the defendant resides and is in the State? * * * While the authorities are not in entire harmony upon the subject, the Illinois cases and the greater weight of authority clearly establish, we think, the proposition that a personal judg- ment in an action at law may be rendered against a defendant residing in and who is in the State where the suit or proceeding is pending, who has been notified of the pendency of the suit by constructive service of process, where it appears actual service of process could not be had upon the defendant, if the construe- Sec. 2.] nelson v. c. b. & q. ry. co. 14,5 tive service provided for was required to be had in such manner that the reasonable probabilities were that the defendant would receive notice of the pending action or proceeding before judg- ment or decree was rendered against him. A full discussion of the subject of the right of a court to render a personal judgment or decree against a defendant upon constructive service of process will be found in an exhaustive note to the case of Pinney v. Providence Loan and Investment Co. (Wis.), 50 L. R. A. 577. The learned author, on page 584, says: "As is shown by the cases cited in the preceding sub- division, the court cannot acquire jurisdiction, by constructive or substituted service of process, to render a personal judgment against a non-resident defendant who does not appear, unless he can be deemed to have assented to such mode of service ; but the rule is otherwise with respect to resident defendants — at least if they are within the State at the time of the attempted service. The manner of serving process must necessarily be regulated by every country for itself, and if a State permits process to be served upon one of its own citizens by the leaving of it, in his absence, at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it and treat a sentence founded on it as a nullity. * * * The following cases expressly hold that it is competent for the legislature to authorize personal judgments against resi- dents of the State upon constructive or substituted service of process, under proper conditions : Betancourt v. Eberlin (1882) , 71 Ala. 461 (personal judgment in attachment) ; Fleming v. West (1896), 98 Ga. 778, 27 S. E. 157 (judgment for alimony) ; Bimeler v. Dawson (1843), 4 Scam. 536, 39 Am. Dec. 430; Bicker- dike v. Allen, 157 111. 95, 29 L. R. A. 782, 41 N. B. 740; Sturgis V. Fay (1861), 16 Ind. 429, 79 Am. Dec. 440; Beard v. Beard, 21 Ind. 321 (obiter); Weaver v. Boggs (1873), 38 Md. 255 (obiter); Harryman v. Roberts (1879), 52 id. 65; Continental Nat. Bank v. Thurber, 74 Hun. 632, 26 N. Y. Sup. 956, affirmed by 143 N. y. 648, 37 N. E. 828; Northcraft v. Oliver (1889), 74 Tex. 162, 11 S. W. 1121 ; Hinckley v. Kettle River Railroad Co., 70 Minn. 105, 72 N. W. 835." We are of the' opinion that the constructive service of process provided for in paragraph 5 of the Practice Act, when taken in connection with sections 12 and 13 of the Chancery Act, con- H. T. p.— 10 146 PKocEss. [Chap. I. stitutes due process of law when it appears, as it must before such service can be had, by the return of the oflcer, that the incorporated railroad company against which the suit is brought has no officer or agent in the county in which the suit is brought with whom a copy of the summons can be left to efEect service upon the railroad company, and it further appears the prin- cipal office of the railroad company is in the State of Illinois.^ The judgment of the circuit court will therefore be reversed and the cause remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded. Section 3. Returns. (a) Substance and Form. HARRIMAN v. STATE. 1 Missouri, 504. [1825. ] Pettibone, J. This was an action of assumpsit on a promis- sory note given to the State for loan office certificates, borrowed by the defendants at the loan office in Chariton. A summons was issued out of the Howard Circuit Court, which was personally served by the sheriff of Howard County upon Harrinlan; Green and Delany were returned not found. An alias summons issued to the County of Chariton against Green and Delany, which was returned personally served, by "Alexander Trent, deputy sher- iff;" Harriman appeared and pleaded, and the issues were found against him ; Green and Delany were called, but came not. Their default was entered, the damages assessed against them, and a joint judgment entered against all three of the defendants. It is contended that this judgment is erroneous inasmuch as there is no legal evidence of any service of the summons upon Green 2 Compare : Pinney v. Ins. Co., 106 lie officer, where there had been a Wis. 396 (50 L. E. A. 577), an- failure to file a list of its own offi- tiotated case, holding void a statute cers on whom service could be had. providing for service on a corpora- But see Ex parte SchaUenberger, tion by delivery of copy to a pub- 96 U. S. 369. Sec. 3.] ogle v. copfey. 147 and Delany ; the return by the deputy sheriff in his own name, being no legal evidence. Although the deputy may do any act which the principal sheriff can, yet the law is well settled that every act must be done in the name of the sheriff. This return is, therefore, bad, and affords no evidence of any regular service of the summons upon Green and Delany. We have already decided that the return of the process constitutes a part of the record upon which error will lay. The judgment, as against Green and Delany, is, therefore, clearly erroneous. As against Harriman, the judgment would have been good, had it been several; but being entire and joint against all the defendants, if it is bad as to one it is bad as to all : vide Bac. Abr., tit. Error, letter M., p. 500. The judgment of the Circuit Court must, therefore, be reversed, with costs, and the cause remanded, to be further proceeded in according to law. OGLE V. COFFEY. 2 Illinois, 239. [1835.] Smith, Justice, delivered the opinion of the court : This was an action of debt on a judgment rendered in the State of Kentucky. Judgment was rendered by default in the Madison Circuit Court. The principal error assigned is the want of personal service of the summons on the defendant. The return of the sheriff is not in compliance with the provision of the law directing the manner of making the service and return by the sheriff. The return of the sheriff is, "Executed October 18, 1832, as com- manded within." Whether the date specified is intended for the date of the day of service, or is the day on which the summons is returned is wholly uncertain. The manner of making the service is still more doubtful. Whether it was by reading the summons to the defendant or by delivering a copy, is left to conjecture, and it is impossible to say which course was adopted, or whether either was pursued. The case falls directly within the rule laid down in the cases 148 PKOCESS. [Chap. I. of Wilson V. Greathouse and Clemson and Hunter v. Hamm, decided in June term, 1835. (Ante 174, 176.) The judgment is reversed with costs.^ HAMMOND V. OLIVE. 44 Mississippi, 543. [1870.] On writ of error to a judgment by default. SiMEALL, J. It is complained in this court that there was uot a sufScient service of the writ on Hammond. It has been established by a number of cases in this court that the return of the officer on the summons must show affirmatively a com- pliance with the requirement of the statute. If practicable, he must make personal service, and before he can resort to the secondary mode by leaving a copy at the domicile of the de- fendant, he must declare in his return that the party ' ' could not be found." Foster v. Simmons, 40 Miss. 585, citing the cases, and many others subsequent, not necessary to be referred to. To make a service by "copy at the defendant's usual place of abode" complete, the return must show that every condition of the statute has been complied with. 1st. It must declare that the defendant ' ' could not be found. ' ' 2d. That the copy was left with the wife, or some free white person above sixteen years of age. 3d. If there be no free white person there vsdlling to receive the same, then the copy may be left at some public place at the dwelling house. The statute regards the three modes of service in the order named, as gradations. The second cannot be adopted, if the first can be made, nor the last, until both the others have failed, and the office should manifest, if he adopts the last mode, by his endorsement on the writ of "his acts under it," that he could not make personal service because the defendant could not be found, that he did not leave a copy with the wife, or some other person, etc., because no such person was at the "abode" or would accept the copy. We have been thus minute in the exposition of this subject (although it would seem to be 1 And so where return failed to show time of service, Clemson v. Hamm, 2 111. 176. Sec. 3.] hammond v. olive. 149 unnecessary), in the hope that the officers charged with this duty may be clearly instructed as to its performance. There are two specific imperfections in this return of the sheriff: 1st. "W. J. Hammond," with whom the copy was left, is not said to be a " free white person, ' ' whatever may be thought of the necessity of a change of the statute in this particular, because of the altered condition of the country. It is the simple duty of this court to expound the law as it is written — referring, where it properly belongs, modifications and amendments to legislative wisdom. The statute of Illinois is in its text almost identical with ours, "the copy may be left at the usual place of abode with some white person of the family, ' ' etc., is its language. In Cost V. Eose, 17 111. 277, the return omitted to describe the person with whom the copy was left as "white," this was held to be insufficient. In Thurmond v. Griggs, 2 Scamm. 366, the return was defective because the "person" was not said by the officer to be "of the family." 2d. This return is defective because the officer does not nega- tive his ability to make personal service. The words, "he being absent," in their connection with the context, import that the defendant was not "at home" — ^was absent from "his place of abode." This may be true, but it does not follow that because of such absence "he could not be found;" he might have been at his nearest neighbor, or at .the county town, and it might have been entirely feasible for the sheriff to have "found him." The words "he being absent," are not the equivalent of "could not be found." The officer is guilty of a palpable violation of duty under the law, to substitute the secondary service by copy, at the "abode," if he could, with the use of diligence, make personal service. Nor do we doubt his liability to an action for damages, if it was in his power to make a personal service, and he failed to do so, and thereby injury restilted to the plaintiff. The judgment is reversed and cause remanded.^ lAeeord: Settlemeyer v. Sulli- fendant. We shall consider the ob- van 97 U. S. 444, ante p. 52. jections to this service as presented Compare : Wright, C. J., in Neally in the argument. The return of V. Eedman, 5 la. 386: The errors service is as follows: assigned relate alone to the suf- "Received the within notice, ficieney of the service of the orig- April 14th, A. D., 1857, and re- inal notice, to give the court below turn the within, served on Eezin A. jurisdiction of the person of de- Eedman, by leaving a written and 150 PROCESS. [Chap. I. BOTSFORD V. 'CONNER. 57 Illinois, 72. [1870.] Ejectment for a tract of land to which the defendant claimed title under a judicial sale. The judgment below was for the plaintiff. 1 Mr. Justice Walkee delivered the opinion of the court : Was the service on Charles R. and Mary sufficient to give the court jurisdiction of their persons, so as to render a decree under which they could be divested of their title to this property 1 The return is, "served this writ on the within named Mary 'Conner and Charles R. 'Conner, the others not found in my county, the 26th day of August, 1858." This return fails to state how the writ was served ; whether by copy, by reading, by posting notice or otherwise, does not appear. To give the court jurisdiction of the persons of defendants, a legal service upon them is necessary. The mode of service of summons, when not otherwise provided by statute, is by reading the same to the defendants, and to each of them, and the return should show the time when, upon whom, and the manner in which, service was made, and unless it thus appeared, the court failed to certified copy of the same with Mar- substituted service. The diligence garet Ann Eedman, she being a used is not required to be stated in member of E. A. Eedman 's family, the return. If the oflficer returns and over the age of fourteen years, that the defendant was not found and at his usual place of residence, in his county, he is presumed to in the town of Marengo, Iowa have used the necessary dUigenco. county, Iowa, said E. A. Eedman not If he did not in fact, and defend- being found in my county at the ant is injured thereby, he has his time; this the 14th day of April, remedy; but such failure cannot A. D. 1857. vitiate the return. It is true that "Jas. Crenshaw. he served the notice by leaving a ' ' Sheriff, Iowa County, Iowa. " copy on the same day he received it, The notice was made returnable and this, it is urged, is sufficient to the May term, 1857, of the Iowa evidence that he made no effort to District Court, which commenced serve the defendant personally. But on the 4th day of that month, and it may have been that he knew per- was directed to E. A. Eedman. sonally that defendant was not To this service it is first ob- within his county, and that a strict jected that it does not show that regard to his duty required him to the officer exercised proper dUi- serve the notice at once, by copy, gence to serve defendant personally, i The statement has been con- before resorting to what is styled densed. — Ed. Sec. 3.] botspord v. o'conner. 151 acquire jurisdiction. Ball v. Shattuck, 16 111. 299. And in the ease of Belingall v. Gear, 3 Scam. 575, it was held thati it must affirmatively appear, from the officer's return, that there was a legal service, and that it was such service as gave the court jurisdiction over the person of the defendant. But appellant contends that the decree cures the defective serv- ice ; that it recites that it was shown to the court that due service of process was had upon the two minor defendants, and that the decree can not be contradicted by the summons and return. It is undeniably true, that this, like any other finding of the court, can never be contradicted in a collateral proceeding, by parol, or other evidence outside of the record in that proceeding. It, how- ever, may by other portions of the same record. But such a finding is conclusive, in a collateral proceeding, until thus rebutted. In the case of Clark v. Thompson, 47 111. 25, we said : "It is, however, insisted that when a court of general jurisdiction has proceeded to adjudicate a cause, iwe must presume that the court had evidence that there was such service, or appearance, as con- fers jurisdiction of t^e person ; that the question of jurisdiction is primary, and must first be determined. This is no doubt true, in all collateral proceedings, but is liable to be rebutted. If the record shows service which is insufficient, and the record fails to show that the court found that it had jurisdiction, then the pre- sumption is rebutted, and it must be held that the court acted upon the insufficient service. When a summons and return appear in the record, and there is no finding of the court from which it may be inferred that there was other service, or appearance, it will be presumed that the court acted upon the service which appears ia the record. In this case, the summons and acknowl- edgment of service were not sufficient to confer jurisdiction over the minor defendants, and unless jurisdiction was otherwise obtained the decree, as to them, was a nullity and may be attacked in a collateral proceeding. ' ' This is directly to the point, and fully embraces this question, and must be held to govern it. The return of service being insufficient, we must hold that the court below had no jurisdiction of the persons of the minor heirs, against whom this summons was issued and the decree rendered. Where the service is by summons, verbal testimony can not be received, to prove or aid it. That can be shown alone by the 152 PROCESS. [Chap. I. ofSeer's return.^ It is no doubt otherwise where service is by publication, when parol evidence may be received to prove that the notice was published. The service appearing in the record was defective in not show- ing the manner in which it was made, and as parol evidence could not be rightfully heard to aid it, we can not presume the court acted on other evidence than the return. It therefore rebuts the finding that there was service. KNOWLES V. GAS & COKE CO. 86 V. 8. 58. [1873.] Error to the Circuit Court for the District of Minnesota. The Logansport Gas, Ldght and Coke Company brought an action in the court below, against Alfred Knowles, on a judg- ment recovered by it against the said Knowles and one Thomas Harvey, in the Circuit Court for Cass County, Indiana. The defense to the action now brought was that that court did not have jurisdiction of the person of the defendant. The record of the former judgment was produced on the trial and was some- what anomalous. Three defendants were sued in the Cass County Court — a certain J. W. Bain, Knowles and Harvey — none of whom resided in Indiana. Bain was served with process in New York, and after a long struggle to get the proceedings dismissed as to himself, removed the cause into the Circuit Court of the United States, under the act of 1866, and obtained a judgment in his favor. The cause was then remanded by the Cass County Court and judgment by default was rendered against Knowles and Harvey. In some respects the proceedings seemed to have been conducted as a suit on attachment, the property of the 2 Madison County Bank v. Swan, Mich. 155, holding that the error of 79 Mo. 527. entering a default on an insufficient Compare : Jones v. Brick Co., 120 return, could not be cured by amend- Ga. 321, in which it is said that it ment of the return, for the reason is the fact of service rather than that until a proper return was made the proof thereof by the return the defendant was not bound to which is of actual importance. appear. But see Denison v. Smith, 33 Sec. 3.] knowles v. gas & coke co. 153 defendants (who resided in Minnesota) being attached, and other creditors being allowed to come in to participate in the proceeds. Nevertheless the record of the proceedings contained, amongst other things, the copy of a summons in the case, issued to the sheriff of Cass County, against all the defendants, and a return thereto in the following words : "I do hereby certify that I served the within writ, on the 14th day of September, 1865, upon Alfred Knowles and Thomas Har- vey, personally, by reading the same to them. And I further certify that J. W. Bain cannot be found in my bailiwick. " * * * Mr. Justice Bradley delivered the opinion of the court. Upon the first point, that the return was insufficient, the plain- tiff in error relies on a decision of Mr. Justice Nelson at the circuit, in the case of Allen v. Blunt, in which it is supposed to have been held that a return of service by the United States marshal, without showing that the service was made in his district, was insufficient to give the court jurisdiction of the person. What Justice Nelson held in that case was this : That inasmuch as the eleventh section of the' Judiciary Act declares that "no suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ ; ' ' there- fore, the jurisdiction of said courts depends on service or in- habitancy in the district, one of which should appear of record ; and inasmuch as the record in that case contained no allegation on the subject and the jurisdiction of the court depended entirely on the marshal 's return to the process, the return was insufficient to give it. This authority, therefore, is not in point. The case was in the United States Court, and depended upon the peculiar phraseology of the act of Congress referred to therein ; whereas the case in Cass County, now under consideration, was in a State Court ; and it is familiar law that a court of general juris- diction will be presumed to have had jurisdiction of the cause and the parties until the contrary appears. In our judgment, therefore, the return, on its face, shows no ground of error. It will be presumed that the service was made in the proper county. But the defendant also offered to prove by himself and Harvey that neither of them had ever in fact been served with process, and that, in consequence, the court had never, as to them, acquired jurisdiction of the person. 154 PROCESS. [Chap. I. As this subject has lately been considered by us in the case of Thompson v. Whitman, it is unnecessary to go over the subject again. In our opinion the defendant had a right to show by proof that he had never been served with process, and that the Circuit Court of Cass County never acquired jurisdiction of his person. As this was refused him on the ground that the evidence was inadmissible, the judgment must be reversed. We do not mean to say that personal service is in all cases necessary to enable a court to acquire jurisdiction of the person. Where the defendant resides in the State in which the proceedings are had, service at his residence, and perhaps other modes of constructive service, may be authorized by the laws of the State. But in the case of non-residents, like that under consideration, personal service cannot be dispensed with unless the defendant voluntarily appears. Judgment reversed, and a Venire de novo awarded. (b) Falsifying. BARE, V. SATCHWBLL. 2 Strange, 813. ['1739.] A scire facias was returnable on the general return day (which was Sunday) and not served till the Monday. On affidavit whereof Sergeant Whitaker moved to set it aside, the sheriff having returned a scire feci. Sed per curiam, if that be a false return, the defendant will have his action against the sheriff. But we will not try the truth of the return on a motion to set aside the proceedings.^ GOUBOT V. DE CROUY. 1 Crompton & Meeson, 772. [1833.] In this case the sheriff returned to a capias against the de- fendant, that he was not to be found in his bailiwick from the 1 See also Eex v. EMns, 4 Burr. 2129. Sec. 3.] Columbian granite co. v. townsbnd. 155 time of the delivery of the writ until the 18th of February ; and that upon that day and until the return, the defendant was and yet is in the service of the Sicilian minister at the British court as a domestic servant. , Busby moved to set aside the return on strong affidavits, show- ing fraud and collusion between the sheriff's officer and the de- fendant; that the defendant was in trade; that he had said he was endeavoring to get attached to the embassy ; and that he had been taken and coUusively discharged by the officer. Bailey, B. We cannot interfere upon motion. Your only course is by bringing an action against the sheriff for a false return. "We cannot investigate the truth of the return on affi- davits. , Bute refused. COLUMBIAN GRANITE COMPANY v. TOWNSEND. 74 Vermont, 183. [1902.] Taft, C. J. The defendant undertakes to impeach the officer's return, which is good on its face, by a plea in abatement, which is demurred to.- Nothing is better settled than that an officer's return is con- elusive between the parties, except in a proceeding to set it aside. Yatter v. Pitkin & Miller, 72 Vt. 255, 47 Atl. 787. Mr. Gould says that a defendant cannot falsify such a return by plea in abatement, but must resort to his remedy against the officer, if it be false. Gould's PL, chap. V, § 135. In Barr v. Satchwell, 2 Stra. 813, a scire facias was return- able on the general return day, which was Sunday, and not served till the Monday. On affidavit whereof Sergeant Whitaker moved to set it aside, the sheriff having returned a scire feci. Sed per curiam,: "If there be a false return, the defendant will have his action against the sheriff. But we will not try the truth of the return on a motion to set aside the proceedings. ' ' The defendant seeks to avoid this rule, the plaintiff objecting, by reason of a stipulation below that * ' no question shall be raised as to" the form of the plea, but that the question for the court to consider shall be, whether, upon the facts set forth in the plea, 156 PROCESS. [Chap. I. there was a service of the writ. ' ' But this cannot be. "When the parties go into special pleadings, the rule is universal that they shall be confined strictly to the matters put in issue. Campbell V. Hyde, 1 D. Chip. 65. And when pleadings close in a demurrer, no fact can be treated as in the case that does not appear from the pleadings and is not admitted by the demurrer, though ad- mitted on hearing. Hartland v. Windsor, 29 Vt. 354. Parties can, of course, submit a case on agreed facts; but those facts must be within the issue, for the court tries only such issues as the parties make by their pleadings. Carpenter v. Welch, 40 Vt. at p. 255. A demurrer admits only such facts as are well pleaded and therefore never admits an allegation that the pleadings show that party is estopped to make, for such an allegation is not well pleaded. Gould's PI., chap. IX, § 25. Hence the facts here alleged in contradiction of the return, not being well pleaded, are not admitted by the demurrer and cannot be considered. Judgment affbrmed and cause remanded.^ SIBERT V. THORP. 77 Illinois, 43. [1875.] This was an action of assumpsit by William W. Thorp against Jeremiah Sibert and Jeriel Wilday upon a promissory note. The defendant Sibert, whom the sheriff's return, showed was alone served with the summons, pleaded in abatement that at the time of the commencement of the suit he was a resident of Morgan county, Illinois, and was not, at the date of the com- mencement of the suit, found in the county of Morgan, and that process issued to the sheriff of Morgan county was served upon the defendant in the county of Scott, and not in the county of 1 Accord : Slayton v. Chester, 4 The rule making the return con- Mass. 478 (plea in abatement) ; elusive, and limiting the aggrieved Stenson v. Snow, 10 Me. 263 ; Hal- party to an action against the officer lowell V. Page, 24 Mo. 590 (motion for a false return, does not violate to quash return); Tilman v. Davis, the "Due Process" clause of the 28 Ga. 494 (motion to set aside de- Constitution, Miedreich v. Lowen- fault). stein, 232 V. 8. 236. Sec. 3.] sibebt v. thorp. 157 Morgan ; and that at the time of such service of process, the de- fendant was not found or served with process by the sheriff in Morgan county, but was served in the county of Scott. The plaintiff replied that process was issued and served upon the defendant in the county of Morgan and State of Illinois, and that defendant was not found and served with process in the county of Scott. The defendant rejoined : 1st, that it does not appear of record that he was served with process in the county of Morgan, as alleged; and, 2d, that defendant was found and served with process in the said county of Scott, and not in the county of Morgan, as alleged, etc. The court sustained a special demurrer to this rejoinder, and rendered judgment against the defendant for the amount shown to be due on the note, and the defendant appealed. Mr. Justice Scholfield delivered the opinion of the court: The question presented by the record in this case is, can the defendant, by pleading, raise an issue of fact on the return of a sheriff, endorsed on a summons, in the discharge of his official duty? The old common law authorities seem to answer the question in the negative. Comyn, in his Digest (title "Eeturn," "G"), says: "No averment can be taken in pleading against the sheriff's return. 15 East, 378. If false, the remedy is by action. Lofft, 371." And to the same effect is Allen on Sheriffs, 371. But in this country many courts have held that the sheriff's return, on original process, is only prima facie evidence of the facts recited, and consequently that it may be shown to be in- correct. See Watson v. Watson, 6 Conn. 334 ; Wendell v. Merg- ridge, 19 N. H. 112; Rowe v. Table Mountain Water Co., 10 Cal. 441; Carr v. Com. Bank of Racine, 16 Wis. 50; Bond v. Wilson, 8 Kans. 228. In the Mineral Point R. R. Co. v. Keep, 22 111. 15, the ques- tion was discussed, although it was held to have been waived by the pleading, whether it was competent to show that the per- sons upon whom the writ was served were not in fact agents of the company, as recited by the return, and it was said: "We are not inclined to think the return of the officer, as to the fact of agency, when a corporation is sued should be conclusive. Great injustice and ruin to incorporated companies might be the 158 PROCESS. [Chap. I. consequence had the officer the undisputed power to select any person he might choose as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. * * * y^q think, therefore, that the fact of the agency could have been put in issue by plea in abatement of the writ, the defendants answering for that purpose only." In Owen v. Eanstead, 22 111. 162, bill in chan- cery was filed to set aside a judgment at law, on the ground that the defendant was not served with process, or, if served, it was under such circumstances as deceived him as to the truth of what was done. The bill was sustained, and the remedy was held to be appropriate. In Brown v. Brown, 59 111. 315, motion was made to set aside a decree for divorce, for the reason, sup- ported by affidavits, that the person with whom a copy of the summons had been left was not, as stated in the sheriff's return, a member of the defendant 's family. It was held that the decree should have been set aside. The court, after alluding to the general rule that the return of an officer can not be disputed, observe: "Where it is sought to contradict the return collater- ally, and after rights have been acquired upon its faith, or inno- cent persons are to be injuriously affected, courts should firmly apply the rule. Such has been the action of this court in cases of that character. "While, however, this is the well established general principle, cases have occasionally occurred, and will continue to do so, which, in order to prevent the perpetuation of a great wrong, must be treated as exceptional." In Hickey v. Stone et al., 60 111. 459, it was held, on the authority of the previous decision just referred to, that a bill in chancery was proper to set aside a judgment at law, where there was no appearance, on the ground that the defendant had not been served with process, notwithstanding the sheriff's return showed there had been service. The general principle recognized by these decisions is, neces- sarily, that the return of the sheriff is not an absolute verity, but merely that it is prima facie evidence of the truth of the matters therein recited, and, consequently, that it may be put in issue, before judgment, by plea in abatement. We are aware that, in thus holding, we are in conflict with dicta in many of the early decisions, still it is the logical result of the previous Sec. 3.] higham v. state teavelees ass'n. 159 decisions to which we have referred, and we do not perceive, in practice, that it can be productive of harmful results. Considered as a question of abstract right, there can be no good reason why a party shall be denied to show to the court which is about to render judgment against him, that he is not, in fact, within its jurisdiction, and compelled to suffer a present wrong, with the mere probability of being able to repair it by another action against the officer by whose act it was caused. By allowing the truth of the return to be questioned before judg- ment, the delinquency or dishonesty of the officer is more speedily shown, there is greater certainty that injustice is not done by rendering judgment against those who, in fact, have not had the notice to which they are entitled by law, a multiplicity of actions is avoided, and it is not possible that the rights of innocent par- ties can be injured thereby. Our conclusion is that the court below erred in not carrying the demurrer back, and sustaining it to the replication of the appellee. The judgment is reversed and the cause remanded. Jiidgment reversed} HIGHAM V. STATE TEAVELERS ASS'N. 183 Fed. Bep. 845. [1911.] Van Valkenbuegh, District Judge. Robert Higham, plain- tiff's husband, was insured in the defendant company against injury and death resulting through external, violent, and acci- dental means. The petition alleges that in March, 1907, the said Robert Higham received such accidental bodily injuries which, independently of all other causes, resulted in his death. Suit is brought for the recovery of $5,000 therefor. The defendant is a mutual insurance corporation organized and existing under the laws of the state of Iowa, with its headquarters and only office at Des Moines, Iowa. It is not authorized to do business in the 1 There is an equally sharp con- On a scire facias to revive a judg- fliet as to the power of a court of ment the falsity of the original re- equity to relieve against a false re- turn can not be shown by extrinsic turn. See Smoot v. Judd, 184 Mo. evidence, Bank v. Beed, 231 111. 246. 508, and cases there cited. 160 PROCESS. [Chap. I. state of Missouri by the superintendent of insurance and main- tains no agents or representatives in the latter state who solicit insurance or make any contract of insurance, or collect or receive any insurance premiums, or who adjust or settle losses, or pay the same for such insurance corporation. Section 7992, Rev. St. Mo. 1899 (Ann. St. 1906, p. 3801) pro- vides that in the case of such corporations service of summons shall be valid and legal "if made by delivering a copy of the summons and complaint to any person within this state who shall solicit insurance on behalf of any such insurance corpora- tion, or make any contract of insurance, or collects or receives any premium for insurance, or who adjusts or settles a loss or pays the same for such insurance corporation, or in any manner aids or assists in doing either." Service in this case was made upon one Dr. B. F. "Watson, as a proper person to be served under this statute. The defendant, appearing specially for the purposes of this motion, contends that he was not such a repre- sentative of the company as would make service upon him satisfy the requirements of due process of law. The summons, with return of service, has been lost; but it is conceded that one was served upon Watson, and the plaintiff, in opposition to the motion, has filed Watson's deposition upon which she relies to establish his relationship to the defendant corporation. So that we are not concerned here with the form of the return, the only question being whether the service was valid and legal. Plaintiff contends, first, that the return is conclusive, and that its truth cannot be controverted, citing Newcomb v. Railroad, 182 Mo. 678-704, 81 S. W. 1069. While this may be conceded, for the purposes of this case so far as it concerns the physical acts of the sheriff and recitals respecting the person upon whom service was made and the date of such service, it does not follow that the conclusions of law stated by the sheriff in his return may not be controverted. ^ In the federal court it is proper practice to try the question of the sufficiency of the service of a summons by motion to quash the return, supported by affidavit, and in the absence of statute a federal court is not required by the act of conformity to follow the state practice of trying this 1 In a number of States the same of the officer, Walker v. Lutz, 14 rule is applied to questions of fact Nebr. 274; Carr v. Bank, 16 Wis. not within the personal knowledge loc. 56. Sec. 3.] HIGHAM V. STATE TRAVELERS ASS N. 161 question.2 Wall v. Chesapeake & Ohio Ry. Co., 95 Fed. 398, 37 C. C. A. 129. And such is the uniform practice. Commercial Mutual Accident Co. v. Davis, 213 U. S. 245, 29 Sup. Ct. 445, 53 L. Ed. 782; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222 ; Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569. 2 On the method of raising, the question the principal case follows the established Federal rule, for which the following reasons were given in Am. Cereal Co. v. Petijohn, 70 Fed. 276: Showalter, Circuit Judge. "This is a bUl in chancery- filed originally in the superior court of Cook county. The complainant is a corporation organized and do- ing business in Ohio. The defend- ant, a Minnesota corporation, hav- ing removed the cause to this court by a special appearance for that purpose in the state court, thereupon filed its motion in this court to quash the sheriff's return of serv- ice, on the ground that the person named in said return as the agent of defendant was not, in fact, the defendant's agent or employe, within the sense of § 4, c. 110, Eev. St. lU., relating to the service of process on corporations. Said mo- tion is in writing, and defendant proposes to support the same, and make out its denial of said agency or employment — in other words, to try the question — ^by affidavits. Complainant now moves to strike said motion so made by defendant from the files, on the ground that said matters cannot be tried or de- termined, against the objection of complainant, otherwise than by plea in abatement. In support of this position, complainant's counsel cites decisions by the supreme court of Illinois, and one, at least, by a learned federal judge, wherein the state ruling is followed. I find, however, that the practice of mak- ing the question by motion, and not by plea, prevails quite generally in the federal courts; and this, I con- clude, upon reflection, is the correct practice. The determining consid- eration is that the matter at issue, however it may result, will not end the suit, — if found against the de- fendant, the defendant is in court and must plead; if in favor of the defendant, the return on the writ is vacated or quashed, and the suit remains pending, — whereas a plea, either in abatement or in bar, if made out by proof, puts an end to the proceeding. The view that a motion to be determined on affi- davits is the proper practice in such cases is sustained by English de- cisions. Hemp V. Warren, 2 Dowl. (N. S.) 758; Preston v. Lament, 1 Bxch. Div. 361." But a plea in abatement is used in a number of the states. See Greer v. Young, 120 111. 184. H. T. P.— 11 162 PROCESS. [Chap. I. (e) Amendment. SHENANDOAH V. E. R. CO. v. ASHBY. 86 Virginia, 232. [1889.] Lewis, P., delivered the opinion of the court. It appears from the record, that on the 4th of September, 1874, Thomas N. Ashby instituted an action of debt in the said court against the Shenandoah Valley Railroad Company for the sum of $5,231.90 and $11.90 costs, upon the transcript of a record of a judgment which he had previously recovered against the said company in one of the courts of "West Virginia. On the original summons sued out in the action, return was made by John T. Lovell, a deputy of L. Leach, sheriff of "Warren county, as follows: ' ' Executed the within summons in debt on September 5, 1874, upon M. B. Buck, one of the directors of the Shenandoah Valley Railroad Company, by delivering to him a copy thereof. John T. Lovell, D. S., for L. Leach, S. W. C." At the ensuing October term a judgment by default was ren- dered for the plaintiff for the sum claimed in the declaration, which judgment was several years afterwards asserted by the trustees of the plaintiff, the defendants in error here, as a lien upon the property of the defendant company, in a certain chan- cery suit pending in the Circuit Court of Roanoke city, wherein the Fidelity Insurance Trust and Safe Deposit Company was plaintiff, and the said railroad company was defendant. But the claim was rejected on the ground that the judgment was void, because there had been neither service of process upon, nor voluntary appearance by, the defendant in the action wherein the judgment was recovered. Subsequently the said trustees, after due notice, to-wit, on the 20th of October, 1887, moved the said Circuit Court of "Warren county, to permit the said return to be amended, which motion was granted, and the return was accordingly amended by the said Lovell so as to read as follows: "Executed the within summons in debt on September 5, 1874, upon M. B. Buck, one of the directors of the Shenandoah Valley Railroad Company, by delivering to him a copy hereof, in the Sec. 3.] shenandoah v. r. r. co. v. ashby. 163 county of Warren, Virginia, in which county he resided at the time. John T. Lovell, D. S., for L. Leach, S. W. C." The defendant company, the plaintiff in error here, complains of this action of the Circuit Court permitting the return to be amended, and the principal ground of its complaint is that, as the original return does not show that the summons was served in conformity with the provisions of the statute relating to the service of process in such cases upon the officers of a corporation, the service was without legal effect, and consequently the judg- ment founded upon it is void and cannot be validated by amend- ment of the return. There is no doubt that the original return is defective, and does not of itself show that the defendant company was legally brought before the court, since the statute expressly enacts that service of process in such a case upon an officer of a corporation shall be in the county or corporation in which he resides, and that "the return shall show this, and state on whom and when the service was; otherwise the service shall not be valid." Code 1873, Chap. 166, § 7; Code 1887, § 3227. It must therefore be conceded that, unless leave to amend the return was rightly granted, the judgment is void. Barksdale v. Neal, 16 Gratt., 314; 4 Minor Inst., 532. Without the amend- ment the record presents a case, not of a defective service merely, but of no service at all. In other words, it presents the case of a judgment rendered by a court without having acquired juris- diction over the defendant, which is simply a nullity. The rule that a court of general jurisdiction, acting within the scope of its authority, is presumed to act rightly, and to have jurisdic- tion to render the judgment it pronounces, until the contrary appears, applies only as to those matters concerning which the record is silent; nor can it operate in a case like the present to supply jurisdictional facts which the return, according to the statute, must show affirmatively. Harris v. Hardeman, 14 How., 334; Settlemier v. Sullivan, 97 U. S., 444; Eichards v. Ladd, 6 Sawyer, 40 ; Dorr v. Rohr, 82 Va. 359. Wb are of opinion, hQW|ever, that the Circuit Court did not err in permitting the return to be amended, and that, viewing the case in the light of the amended return, the judgment is valid and unassailable. Tl?e case is not within the principle that proceedings which are void db initio cannot be rendered valid by amendment, for here the effect of the amendment was not to 164 PROCESS. [Chap. I. confer jurisdiction upon the Circuit Court, but only to perfect the proof of the jurisdiction which it had previously acquired, but of which the evidence prescribed by the statute was wanting. In other words, the amendment, by relating back to the original return and becoming, in effect, a part of it, shows, in the pre- scribed form and manner, that the defendant company was duly served with process, and hence had notice and an opportunity to be heard, which are essential requisites to the jurisdiction of all courts. The extensive power with which every court is ordinarily clothed to permit an amendment of a return of its own process, whether original, mesne, or final, for the correction of a casual and honest mistake or omission, is not affected by the statute above referred to, and may be exercised in all cases, where it exists at all, as well after judgment as before. In some cases it has been exercised even to the extent of taking away altogether a cause of action growing out of the original return, and even though a suit or motion founded on the original return was pend- ing at the time. And it makes no difference that the officer by whom the return was made has gone out of office or is dead. There is no specific limitation of time within which the power may be exercised, although after a considerable lapse of time, it should be exercised with caution, and in no case ought it to be exercised, unless the court can see that it will be in furtherance of justice. In a proper case, however, leave to amend, so as to make the return speak the truth, ought to be and usually is, liberally granted, and when the amendment is made, the same effect is to be given to the return, as amended, as though it had at first been put in its present form. In other words, "the amendment takes effect by relation, and operates as if made at the same time as the original return." Freem. Executions, §§ 359, 360; 4 Min. Inst., 839 ; Stone v. Wilson, 10 Gratt. 529 ; Walker v. Common- wealth, 18 Id. 13, 51 ; Richards v. Ladd, 6 Sawyer, 40 ; Stotz v. Collins, 83 Va. 423, and cases cited. This being so, it follows that the objection founded upon the form of the original return cannot be sustained. Nor is the po- sition maintainable that the amendment operates to the prejudice of certain creditors of the defendant company, whose debts are secured by mortgages executed subsequent to the rendition of the judgment in October, 1874. Sec. 3.] Chicago pl. mill co. v. merchants' n't'l bk. 165 There are cases which hold, and we do not question the doe- trine, that an amendment of a return will not be permitted to affect injuriously the rights of third persons, which have attached in the meantime, and which were acquired upon the faith of the verity of the original return. But the present is not a case of that class. The judgment was duly docketed, and there is noth- ing in the record to show that, when the mortgages were executed, the judgment was not supposed to be valid. At all events, the liens were acquired subject to the right of the plaintiff in the judgment to have the record perfected, as has been done. The order permitting the amendment must therefore be af- firmed with costs.^ CHICAGO PLANING MILL CO. v. MERCHANTS' NATIONAL BANK. 97 Illinois, 294. [1881.] ^ "Writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding. On June 10, 1876, defendant in error sued out a summons against the plaintiff in error, which is a corporation having its place of business in Cook county, Illinois. The summons was returned by the sheriff with this return: ' ' The president of the within named company not being found in my county, served this writ by reading and delivering a copy thereof to William H. Jenkins, secretary of said company, this 13th day of June, 1876. "Peancis Agnew, Sheriff. "By Walter, McDonald, Deputy." On July 6, 1876, the court found that "due personal service of process of summons issued in said cause has been had on defendant, etc., that defendant made default," etc., and gave judgment by default for $4,052.66. On August 15, 1877, the plaintiff below having been notified and being in court, the defendant being present by its attorney, 1 See Ins. Co. v. Wolf, 9 Biss. 112 lU. 29 (amendment sixteen 285, ante p. 56; Spellmeyer v. GofE, years after judgment). 166 PROCESS. [Chap. I. the sheriff asked leave to amend his return iipon the summons in accordance with the facts. To show the reason of doing so, and why leave should be granted, he filed the affidavit of Walter McDonald, the deputy sheriff who made the service and return and who made affidavit that he served the summons in accord- ance with the directions written in pencil upon the said sum- mons; that at the time he served said summons and made said return he did not personally know that Jenkins was secretary of said company, defendant. He did not know who was the president of said planing mill company, that he made no inquiry as to who the president was, and that he made no attempt to find said president. The return upon said summons, in so far as it implies that the president of said planing mill company could not have been found in Cook county, is incorrect, and was made by inadvertence. He made the service upon the person he was directed to serve, and made no attempt to serve any one else. He also filed the affidavit of A. C. Hesing, that he was at the time president of the company, defendant, and that he was con- tinuously in the city of Chicago, at his office or residence, dur- ing the lifetime of the summons ; also, that Wm. H. Jenkins was not the secretary of the company at the time of the service, but that Washington Hesing was such secretary. Also the affidavits of Washington Hesing and Wm. H. Jenkins, to the fact that Jenkins had resigned his position as secretary of the company more than a month before the summons was issued, and that at the time of the service Washington Hesing was secretary, and not Jenkins. The plaintiff below resisted the application of the sheriff to amend, and filed the affidavit of Alfred B. Mason, its attorney. The court granted leave to amend the return, and the sheriff afterwards amended the return so as to read as follows : "By leave of court the above return is stricken out and amended in accordance with the facts, so as to read as follows: Served this writ by reading and delivering a copy thereof to William H. Jenkins, by direction, as secretary, this 13th day of June, A. D. 1876. "Francis Agnew, Sheriff. "By Walter M.cDonald, Deputy." Upon this record the plaintiff in error comes into this court and assigns for error that the court erred. Sec. 3.] Chicago pl. mill co. v. merchants' n't 'lbk. 167 1. In finding that the defendant had due personal service of the summons. 2. In ordering that the default of defendant be taken and entered. 3. In rendering judgment in favor of the plaintiff against the defendant as in default, and asks that the judgment be vacated. Mr. Justice Scholtteld delivered the opinion of the court: This case was considered by us at our September term, 1877, and an opinion was filed, and judgment rendered thereon, sub- sequently, in vacation. Planing Mill Co. v. National Bank, 86 111. 587. By inadvertence the judgment was made to affirm the judgment of the Superior Court, when it was in reality intended to affirm only an order of that court allowing an amendment of the sheriff's return to the summons, and to reverse the judgment of the Superior Court. Upon having our attention called to this mistake, we, of our own motion, ordered a rehearing of the cause ; and we have heard additional arguments on the question of whether it was proper to allow the amendment to be made to the sheriff's return to the summons. The question has been thoroughly discussed on both sides, and we have given such careful and deliberate consideration to it as we have deemed necessary to a correct conclusion. That the return, as originally made, was sufficient, and that as amended, it is insufficient to sustain the judgment, is fully shown by the former opinion. In the earlier cases in this court it was held the Circuit Court may authorize a sheriff to amend his return, either before or after the rendition of a decree or judgment, and this, too, with- out notice to the opposite party of an intention to apply for leave to amend. Montgomery v. Brown, 2 Gilm. 581 ; Moore v. Purple, 3 id. 152; Morris v. Trustees, etc., 15 111. 266; Johnson V. Donnell, id. 97; Turney v. Organ, 16 id. 43; Coughran v. Guteheus, 18 id. 390 ; Dunn v. Rodgers et al., 43 id. 262 ; Hawes v. Hawes, 33 id. 286; Toledo, Peoria and Warsaw Railroad Co. ' V. Butler, 53 id. 328. In 'Conner v. "Wilson, 57 111. 226, this doctrine was, how- ever, in part overruled and it was there said: "The true rule of practice, upon much and mature reflection, we think, should 168 PROCESS. [Chap. I. only permit such amendments as a matter of course, and with- out notice, during the term at which the cause is determined." Since then it is held amendments may be made by the sheriff to his return after the expiration of the term at which the cause is determined, only upon notice to all parties interested. Na- tional Ins. Co. V. Chamber of Commerce, 69 111. 22; Mass. Mut. Life Ins. Co. v. Kellogg, 82 id. 614; Barlow v. Standford, id. 298. In each of the foregoing cases and so far as we have been able to discover in all the cases hitherto decided by this court, in which the sheriff has been permitted to amend his return after judgment, the amendment has been in affirmance of judgment; and the question we are now to consider is, was the Superior Court authorized to allow an amendment, which, instead of being in affirmance of judgment, creates such error as necessi- ' tates it reversal by this court? Under the English statutes and decisions thereon no amend- ment was admissible save in affirmance of judgment. Blacka- moer's Case, 4 Coke's R., part 8, p. 452, side p. 156a; 1 Tidd's Practice (4th Am. ed.), 696; Wooden & Hazel's Case, 1 Leonard, 134 ; Thompson v. Crocker, 1 Salkeld, 49 ; "Walker v. Slaekoe, 5 Modern, 69. And this seems to be the ruling in every state of the Union where the question has been directly the subject of adjudication. Stewart v. Springer, 45 Mo. 113 ; Kitchen v. Eein- sky, 42 id. 427 ; McClure v. Wells, 46 id. 311 ; Grower v. Smith, 49 id. 318 ; White River Bank v. Downer, 29 Vt. 332 ; Davis v. Putnam, 5 Gray, 321 ; Hopkins v. Busch, 3 Ga. 222 ; Moyer v. Cook, 12 Wis. 335; Newhall v. Provost, 6 Cal. 85; Powell y. Commonwealth, 11 Gratt. 822; Dorsey v. Pierce, 5 Howard (Miss.), 173; Hughes v. Lapice, 5 Smedes & Marshall, 451; Englis V. Furness, 3 Ab. Pr. Rep. 82; Gasper v. Adams, 24 Barb. 287. But counsel contend that the decisions in England and in the other states, bearing upon the question, depend so much upon matters of local practice, and special statute, that they are not of controlling authority here; and they say that the fourth section of our statute of "Amendments and Jeofails" expressly author- izes the amendment of sheriffs' returns, according to the truth, whether that be in affirmance of judgment, or to produce error therein. We can not concur in this view. A statute allowing such Sec. 3.] Chicago pl. mill, co. v. meechants' n't'l bk. 169 amendments would, in our opinion, be a most dangerous one to the stability of judgments, and we shall not assume that the legislature intended so to enact, in the absence of phraseology admitting of no other reasonable construction. The first section of our statute of "Amendments and Jeofails" empowers the court in which an action is pending to "permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just at any time before judgment ren- dered therein." The word "return" does not occur in this section. The second section includes "returns" and authorizes their amendment after judgment, but then only in affirmance of judg- ment. It is as follows : "After judgment rendered in any cause, any defects or im- perfections in matters of form, contained in the record, plead- ings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court in affirmance of the judgment, so that such judgment shall not be reversed or an- nulled." * * * The fourth section is: "AU returns by any sheriff or other officer, or by any court or subordinate tribunal to any court, may be amended in mat- ters of form, or according to the truth of the matter, by the court to which such returns shall be made in its discretion, as well before as after judgment." It is to be kept in mind that no authority is given in either of the preceding sections in express terms to amend returns before judgment. It was thought necessary in the second section, al- though the word process had been previously used, to expressly name "returns" as being amendable — and it is but fair to as- sume that the same idea obtained in the enactment of the first and fourth sections — that is, that to embrace returns they must be specifically named — and, not having been named in the first section, nor their amendment provided for before judgment in the second section, it was necessary to confer this power of amendment in the fourth section. The concluding words of the fourth section are strongly con- firmatory of this view. They are, "as well before as after," from which the only reasonable implication is provision for amendment, "after," already exists, but it is necessary now to 170 PROCESS. [Chap. I. confer power to amend lefore. The words are not equivalent in meaning to "either before or after," but clearly imply the "conferring of a like power to do before that which there is already power to do after." This view leaves the second section only applicable to amend- ments to returns after judgment; and, as has been seen, they can, by virtue of it, only be made in affirmance of judgment. The order of the court allowing the amendment to the sheriff's return was erroneous, and it is reversed ; but the judgment below must be affirmed. Judgment affirmed. Ceaig, J. I do not concur. In my opinion the fourth section of the statute cited in the opinion authorized the amendment of the sheriff's return.^ HALL V. GRAHAM. 49 Wisconsin, 553. [1880.] Appeal from the Circuit Court for Grant County. ' The verified complaint in this case alleges that defendant was indebted to plaintiff in the sum of $490.40, "balance due upon a mutual and open account current," and demands judgment against him for that amount with interest thereon from January 1, 1879, and for costs, etc. Annexed to the complaint on file is the summons in due form, except that the sum for which judg- ment would be taken (exclusive of interest and costs) was left blank, and that the postoffice address of the attorney subscrib- ing it was not given. Upon the summons is indorsed an affidavit of "Samuel Morris, Constable," which states that on the 14th of January, 1879, the affiant "served the within summons and complaint on the defendant within named, by delivering to him personally a true and correct copy thereof, at Potosi in said Grant county," and that the affiant personally knew the said Graham to be the defendant therein named. On the 11th of February, 1879, plaintiff's attorney filed an affidavit of no an- 1 See Stewart v. Stringer, 45 Mo. restoring the original defective re- 113, where the court permitted an turn, amendment to be withdrawn, thus Sec. 3.] park IjAnd co. v. lane. 171 swer or appearance by the defendant. Thereupon it was re- ferred to the clerk of the court to take proof of the plaintiff's demand, and upon the coming in of his report the court rendered judgment for the plaintiff as demanded. Defendant appealed from the judgment. Drton, J. The Circuit Court had no jurisdiction to render the judgment appealed from, because there was before the court no such proof of the service of the summons as the statute re- quires. Subd. 2, § 2642, R. S. ; Matteson v. Smith et al., 37 Wis. 333. The affidavit of the person who is alleged to have served the summons, and which constitutes the only return of such service, fails to state that a copy of the summons was left with the defendant. The motion papers for an amended return were submitted after the decision of this case ; but it was too late to make such an amendment of the record as would cure the error, after the appeal. The defect was jurisdictional and could not be cured. Proof of the service of the summons is a condition precedent or prerequisite to the rendition of a judgment by de- fault.i By the court. The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings ac- cording to law. PAEK LAND CO. v. LANE. 106 Virginia, 304. [1906.] Buchanan, J., delivered the opinion of the court. The first error assigned is to the refusal of the court to per- mit the return upon the original summons against the appellee to be amended upon the appellant's motion. When the summons was returned and filed the return on it became a matter of record and could not be amended without permission of the court. Goolsby v. St. John, 25 Gratt. 146, 160, 4 Minor, 937 ; Stotz v. Collins & Co., 83 Va. 423, 2 S. B. 737 ; Freeman on Executions, § 358. This permission is usually 1 Compare : Blaisdell v. Pope, 19 pending motion to vacate the judg- Mo. 157, allowing an amendment ment. 172 PROCESS. [Chap. I. granted upon proper application made in the cause in which the writ or summons issued. But it is not granted as a matter of course, but only in the furtherance of justice and in the exercise of an enlightened discretion after notice to the opposite party. Code, § 3451 ; 3 Freeman on Executions, § 358 ; Shenandoah Valley R. Co. v. Ashby's Trustees, 86 Va. 232, 9 S. E. 1003, 19 Am. St. Rep. 898. The object of the amendment of a record, as Mr. Freeman says, whether made by the court in the entries on its minutes, judg- ments or other proceedings, or by the sheriif in the history of his proceedings as stated in his return, is, or always should be, to obtain a record which shall speak the exact truth. A court will not suffer a proposed amendment to be made without first being satisfied that it is true. 3 Freeman on Executions, supra; Bagley, Petitioner, 132 Mass. 457. The court therefore prop- erly permitted the parties to introduce evidence as to the ques- tion whether or not, when the deputy-sheriff delivered a copy of the summons to the wife of the appellee, he explained its pur- port to her. The only persons who appear to have been present at that time were the deputy-sheriff and the appellee's wife. The ofS- cer^ in his examination in chief, testified positively that when he delivered the process to the appellee's wife he did explain its purport to her, but on his cross-examination he stated that to the best of his recollection he did so, but admitted that a few days before he was testifying he had made an affidavit in which he had stated that he did not recollect whether he had or not. The appellee's wife testified positively that the officer did not give her information as to the purport of the summons, but only asked her to hand it to her husband when he returned home. The other two witnesses knew nothing as to what took place when the summons was delivered except what they were told. The sheriff testified that his deputy told him a few days after it was delivered that he had explained its purport. The ap- pellee, on the other hand, testified that his wife told him when she gave him the process, that the officer did not tell her what the paper was, but only asked her to hand it to her husband when he returned home. If this hearsay evidence was admissible, and it is by no means clear that it was, it is of little value. The trial court saw the witnesses, their manner of testifying and their bearing. The Sec. 3.] park land co. v. lane. 173 number of witnesses on each side were tke same. Their evidence was in direct 9onflict. The officer's return and his affidavit to some extent lessened the weight of his testimony, and the court might very properly have held, as it did, that it was not satis- fied that the proposed amendment was true, and therefore re- fused to permit it to be made. Indeed, the evidence was of such a character that no matter which way the trial court decided the question, an appellate court would not feel justified in reversing its action. It is further insisted that the court erred in holding, upon the facts disclosed upon the motion to amend, that the summons had not been duly served on the appellee. There were two ways of serving process upon the appellee — one by personal service and the other by substituted or con- structive service. Although the appellee received from his wife the copy of the summons left with her for him a few days after- wards, in ample time to have made defense to the suit, and from that copy actually learned, or if he had read it carefully might have learned, its contents, the service was not a good personal service. Service upon the wife of appellee was not service upon him. It was not served in the manner required by law to be good personal service, and besides the appellee did not receive it until after the return day. The service upon appellee 's wife was a substituted service, and no proposition of law is better settled than that where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is author- ized must be strictly complied with, or the service will be invalid. Staunton Building, etc., Co. v. Haden, 92 Va. 201, 205, 209, 23 S. E. 285, and authorities cited. Crockett's Admr. v. Etter, etc., 105 Va. 679, 54 S. B. 864. CHAPTER II. JUDGMENTS BY DEFAULT. Section 1. When Allowed. COLLINS V. PAGE. Style, 124. [1649.] A plaint was entered in the Court of Plymouth against Page for three-score pounds, and a pone taken out against his goods, and upon this a default, and thereupon another pone issued out to attach the defendant's goods; and the defendant at three other courts successively makes default, and upon the fourth default judgment was given against him ; whereupon defendant brings a writ of error in this court to reverse the judgment, and assigns for error, that here is a judgment given before any appearance, which cannot be, but in this ease the goods attached are only forfeited for the default made by the defendant's non-appear- ance. The counsel on the other side desired time to answer the exception. Roll, Justice : The custom upon which this judg- ment is given is not reasonable. Therefore if you answer not the exception Tuesday next, the judgment shall be reversed.^ GRIGG V. GILMER. 54 Alabama, 425. [1875.] Action by attachment and service by publication; defendant filed a plea in abatement for insufficiency of the affidavit ; at the 1 ' ' The 12 G. 1, c. 29, and 5 Gr. of the personal service of the proc- 2, c. 27 (to which the 2 W. 4, c. 39, ess, enter an appearance for the de- s. 1 and 16, refers), provide that if fendant, and proceed the same as if the defendant do not duly appear, the defendant himself had ap- then the plaintiff may upon affdamit peared. ' ' 3 Chitty, Practice, 289. made and filed in the proper Court 174 Sec. 1.] GRiGG V. GiuaEE. 175 next term the following judgment was entered : ' ' This day come the parties by their attorneys, and the defendant withdrawing his plea, and saying nothing in bar or preclusion of the plain- tiff's demand, and it appearing to the satisfaction of the court, etc., it is therefore considered by the court that the plaintiff re- cover of said defendant her demand in the complaint mentioned, but the same being uncertain, a writ of inquiry is awarded to ascertain the same." On defendant's motion this entry was amended so as to convert it into a default for want of appear- ance.i Brickell, C. J. An appearance is a submission to the juris- diction of the court, in obedience, or in answer to process. Though we have a rule of practice, prescribing particularly the mode in which the appearance shall be entered, and thereby made known to the court and to the opposing party and counsel, the rule is but seldom, if ever, observed. The entry on the mar- gin of the dockets of the court of the name of an attorney, op- posite to the name of a party to a suit, is accepted in practice as an appearance for such a party. The consequence resulting from an appearance thus made, may be limited by the steps taken, or the pleadings interposed subsequently. If these refer to, and are for the purpose of vacating an irregular service of process, or for showing to the court there has been no service of process, or for taking advantage of defects in the process on error or appeal, such appearance will not be deemed a general appearance, curing such irregularities or defects. Lecatt v. Salle, 1 Port. 287; Nabors v. Nabors, 2 Port. 162; Wilson v. Outlaw, Minor 196 ; Lampley v. Beavers, 25 Ala. 534. A judgment by default is, in our practice, a judgment for the want of an appearance. It is distinguished from other judg- ments by the recital, "the defendant being called, came not but made default." An appearance in a civil suit at law is purely voluntary. No process can issue to compel it, nor can the plain- tiff, in any event, enter it for the defendant. A defendant may decline to make it, incurring no other consequence than an ad- mission of the plaintiff's cause of action, as averred in the com- plaint, and a judgment against him on such admission. McGehee V. Childress, 2 Stew. 506. The judgment can never be entered 1 The statement has been con- densed. 176 JUDGMENTS BT DEFAULT. [ChAP. II. if there is an appearance, unless the defendant has filed an af- firmative plea, and does not subsequently appear to sustain it. If there is an appearance, and a failure to plead, a judgment nil dicit, not a judgment by default, must be rendered. Stewart V. Goode, 29 Ala. 476. Or, if the defendant appears, and subse- quently withdraws his appearance, making "no further de- fense, ' ' nil dicit is the proper judgment. Summerlin v. Dowdle, 24 Ala. 428. So, when there is an appearance, and a motion to quash the summons as irregular, which is overruled and no fur- ther defense is made, a judgment nil dicit is proper. Eaton v. Harris, 42 Ala. 491. The appearance of the defendant, and the subsequent withdrawal of a plea filed, is properly followed by a judgment nil dicit. Kennedy v. Young, 25 Ala. 563. The plea in abatement filed by the defendant, because of the insufficiency of the affidavit on which the attachment issued, was an appearance ; for until an appearance is effected, there can be no pleading. Stephen on Plead., Appendix xxii; 1 Chit. PL, 427 ; Stephens v. Arthur, Salk. 544. The judgment on this plea, if in favor of the plaintiff, on issue found, would have been final, leaving nothing more to be done than an assessment of the dam- ages, if the action sounds in damages. Jones & Co. v. Donnell, 9 Ala. 695. If a demurrer had been interposed and sustained, the judgment would have been respondeat ouster. Massey v. "Walker, 8 Ala. 167. If, on demurrer, or on issue found, the judgment had been for the defendant, it would have been final, that the writ be quashed, and the defendant go hence, and re- cover costs. A plea on which a final judgment may be ren- dered is, of necessity, an appearance. It is insisted, however, for the appellee, the withdrawal of the plea in abatement remitted the cause to the condition in which it was before the plea was filed. We cannot assent to the proposi- tion. It is not in accordance with our former decisions, and would operate to the prejudice of the plaintiff, who, by its with- drawal, has been deprived of the opportunity of testing the truth or sufficiency of the plea, and obtaining a judgment which would have been final, or of respondeat ouster, compelling a plea in bar. For no subsequent plea in abatement or dilatory plea could have been interposed. Houck v. Scott, 8 Port. 161. The with- drawal of the plea was the voluntary act of the defendant, which the plaintiff could not prevent. It was either a confession of its insufficiency, or a waiver of the matter of defense it eoii- Sec. 1.] cox v. capron. 177 tained. Whether the one or the other the defendant was before the court, and failing to plead further, a judgment for the want of a plea, which is a judgment nil dicit, was the proper judg- ment. That was the judgment originally entered, and in its amendment, so as to convert it into a judgment by default, the court erred. For the error the judgment must be reversed and the cause remanded. COX V. CAPRON. 10 Missouri, 691. [1847.] McBride, J., delivered the opinion of the court. * * * The first question presented for our decision is the action of the Circuit Court on the plaintiff's motion for a judgment by nil dicit. The reasons assigned in the motion are, first, because there is no sufficient plea to said declaration — ^the plea of not guUty having been withdrawn ; second, because the special plea of said defendant is insufScient in law, and does not contain a substantial defense to the action ; and, thirdly, because the said defendant has withdrawn the plea of not guilty, without having pleaded any plea that is sufficient in law or amounts to a sub- stantial defense to the action. Tidd, in his treatise on practice, 1st vol., 609, says, that judg- ment by default, which is an implied confession of the action, is either non sum informatus, where the defendant's attorney, hav- ing appeared, says that he is not informed of any answer to be given to the action ; or by nil dicit, where the defendant himself appears, but says nothing in bar or preclusion thereof; and the latter judgment, which is the more usual, is either for want of any plea at all, or for want of an issuable plea, after a judge's order for time on the terms of pleading issuably; or where the defendant pleads a plea not adapted to the nature of the action, or which may be considered as a nullity,^ or is false and vexa- tious, or not pleaded in due time or in proper manner. These rules laid down by Tidd do not apply to the case at bar ; - For the case of a plea not abatement not verified, see, 1 Tidd adapted to the action, or a plea in Prae. 8 Bng. Ed. p. 610-11. H. T. p.— 12 178 JUDGMENTS BY DEPATJI/T. [ChAP. II. for in this case a plea suited to the action was put in in proper time,2 and replied to by the plaintiff, who could not thereafter, with any legal propriety, ask the court for a judgment by nil dicit. If the reasons existed which are set forth in his motion, his proper course would have been to ask leave of the court to withdraw his replication to the plea of justification, and de- murred to it.3 Not having done this, whether the plea was suf- ficient or not, the court did right in overruling his motion. BLBWITT V. MAESDBN. 10 East, 237. [1808.] To an action against the acceptor of a bill of exchange the defendant pleaded a sham plea of judgments recovered in the Court of Piepoudre in Bartholomew fair, which were framed in terms obviously denoting fictitious proceedings; and Parke for the plaintiff in consequence applied for a rule to show cause why the plaintiff should not be at liberty to sign interlocutory judgment in this case as for want of a plea, (treating it as a nullity; it being palpably and upon the face of it a sham plea,) and why the defendant's attorney should not pay the costs occasioned by the plea and of this motion. And on cause shown by the Attorney-General, he did not attempt to justify what had been done, but endeavored to excuse the pleader and the defend- ant's attorney, upon the ground of their having been misled by an improper practice which had crept in of putting such sham pleas upon the files of the court. He observed that it might be difficult to prevent altogether the practice of putting in 2 It has been held that a plea be entered pending a demurrer, or a filed out of time cannot be ignored, motion attacking the jurisdiction or but must be stricken from the files the pleadings, but this rule does not before a judgment of nil dicit can apply to other classes of motions, be entered. Pett v. Clark, 5 Wis. e. g., a motion for the production of 198; but see Flanders v. Whittaker, books at the trial, Hill v. Meyer, 47 13 111. 707, holding that a demurrer Mo. 585, or a motion for security for was properly ignored where filed costs, Fears v. RUey, 148 Mo. 60, or without leave. a motion to vacate an arrest on civil » A judgment by default can not process, PhiUips v. Kerr, 26 lU. 213. Sec. 1.] MANLOVE V. GALLIPOT. 179 sham pleas of judgment recovered in the usual form; and he would not discuss the different merits of the respective forms of pleading them. The court said that there might be occasions where they would not enter into any question as to the truth of a plea of judg- ment recovered, pleadeS in the usual form, upon motion, but await the time for producing the roll when such a plea would be regularly disproved; but they expressed great indignation against the abuse which had grown up of late and was continually increasing, of loading and degrading the rolls of the court with sham pleas of this nonsensical nature, making them the vehicles of indecorous jesting; by which it sometimes happened that the time of the court, which ought to be better employed, and was sufiBciently engaged with the real business of the suitors, was taken up in futile investigations of nice points which might arise on demurrer to such sham pleas. And therefore in order effectually to put a stop to this practice in future, they made the rules absolute in this and several other causes wherein the same form of plea had been filed.^ MANLOVE v. GALLIPOT. 2 Illinois, 390. [1837.] LocKwooD, Justice, delivered the opinion of the court : This was an action of ejectment brought in the Schuyler Cir- cuit Court. The defendants filed their plea of not guilty, on which the plaintiff joined issue. Subsequently to the joining issue on the plea of not guilty the plaintiff had the defendants called, and upon their not appearing, had their default entered, and judgment that the plaintiff recover his term and costs of suit. This was clearly erroneous. After issue is joined, the plaintiff, to obtain judgment, must proceed and try his cause by a jury, in the same manner as if the defendants had answered to their names when called.^ 1 For the case of a plea merely stricken out for failure to appear at false, see Idle v. Grutch, 1 Chitty the trTal, Cooper v. Buckingham, 4 Eep. 525 note. 111. 456. 1 Defendant 's pleas can not be 180 JUDGMENTS BY DEFAXJI/T. [ChAP. II. The judgment of the Circuit Court is reversed with costs, and the cause remanded with directions to the court below to set aside the judgment by default. MILLNER V. MILLER. 4 Bibb. (Ky.), 431. [1816.] Opinion of the court by Chief Justice Botle. This was an action of debt upon an obligation for the payment of money. The defendant appeared and pleaded, 1st, payment; 2ndly, a setoff. And issues being thereupon joined, the cause was continued until the next term of the court; when the defendant failing to appear, judgment was taken against him by default, and a writ of inquiry awarded, which being executed a final judgment was entered for the plaintiff. To reverse which, the defendant prosecutes this writ of error with supersedeas. The errors assigned question the correctness of taking judg- ment by default, and awarding a writ of inquiry, when issues were joined in the cause. "Where the defendant pleads a negative plea upon which issue is joined, it is no doubt erroneous to take judgment by default, or to swear the jury to inquire of damages. It was accordingly so ruled by this court in the case of Williams v. Cheek (Pr. Dec. 76). But the law appears to be well settled, if the defendant pleads an affirmative plea, and afterward makes default, that judgment may be given against him for the default. As in an action of debt, if the defendant pleads an acquittance or release, and after makes default, judgment shall be entered upon the default, because the duty is acknowledged (7 Vin. Abr. 475). So in replevin, if the defendant avows, and afterward makes default, judgment shall be thereupon given for damages; because the taking and detention are acknowledged. (lb.) In this ease both the pleas of the defendant in the court below are in the affirmative. They admit the obligation on which the action is founded, but contain matter in discharge of it. It was incumbent, therefore, on the defendant to have sus- Sec. 2.] grekn v. hearne. 181 tained his pleas by proof, and not having appeared for the purpose on the day given him by the court, it was strictly cor- rect to enter judgment against him for his default. Judgment affirmed. Section 2. Effect. GREEN V. HEARNE. 3 Term Rep., 301. [1789.] This was an action on a bill of exchange against the defendant as acceptor; and the declaration stated in the usual form that he did accept, etc. The defendant suffered judgment to go by default in Hilary 1787; and, at the execution of the writ of inquiry in the last vacation, the bill of exchange was produced, but it did not appear to have been accepted; and no other evi- dence was produced. The jury having given a verdict to the amount of the bill, a rule was obtained at the beginning of the term to show cause why the judgment, and the writ of inquiry executed thereon, should not be set aside; the former on an affidavit of merits, namely, that in fact the defendant had not accepted, and on the ground of negligence in the defendant's attorney ; the latter, for insufficient proof. Lord Kenton, Ch. J., said, as to the first ground, that the defendant should have applied sooner to set aside the judg- ment. And, with respect to the other objection, that the bill produced did not correspond with that declared on, he observed that it might have been accepted, though not in writing; and that, by suffering judgment to go by default, the defendant had admitted the cause of action to the amount of the bill. BuuLEE, J. When a defendant suffers judgment to go by default, he admits the cause of action. And thus far an action on a bill of exchange, and an action for money had and received, are alike; but beyond that there is no similarity. For, in the latter, the defendant only admits something to be due; and, as the demand is uncertain, the plaintiff must prove the debt before the jury. But, in the former, as the bill of exchange is set out on the record, the defendant, by suffering judgment to go by default. 182 JUDGMENTS BY DEFAUITT. [ChAP. II. admits that he is liable to the amount of it : ^ here then the defendant has admitted that he did accept the particular bill of exchange set out in the declaration ; and the only reason for pro- ducing it to the jury on executing the writ of inquiry, is to see whether or not any part of it has been paid. (See Bevis v. Lindsey, 2 Str. 1149.) Rule discharged. EANDOLPH V. COOK. 2 Porter (Ala.), 286. [1835.] Mr. Chief Justice Satfold : The action was assumpsit, brought by the defendants in error, on a promissory note drawn in their favor by Randolph. The note bears date on the 5th of June, 1832; is payable one day after date, and the writ was issued and served on the 6th of the same month. The declaration eon- tains one count only, which is on the note in the usual form, and is captioned as of June Term of the County Court, 1832, this being the return term. At the same term, T. J. Abbott, Esq., an attorney of this court, entered a formal appearance for the defendant, on the Appearance book, in the manner prescribed by the rule of court for entering appearances of record ; but no plea appears to have been filed. At the succeeding December term, the record states, that the parties came, by their attor- neys ; and for want of a plea, judgment was rendered by default ; to reverse which the defendant below prosecutes this writ of error. He assigns, as ground of error, that no cause of action is shown in the plaintiff's declaration, inasmuch as the note declared on was not past due when the action was brought. The plaintiff in error insists that he had the whole of the 6th of June to pay the note, and that no action could be legally brought till the 7th, fractions of days not being recognized by the law. This position is not contested by the counsel for the 1 The writ of inquiry appears to have been unnecessary. Shepherd v. Carter, 4 Term Bep. 275. Sec. 2.] Randolph v. cook. 183 defendant in error; therefore, it is unnecessary to examine it. But admitting the principle, that the suit was prematurely brought, it is insisted that advantage could only have been taken of it, on or previous to the trial below, and that the objec- tion has been waived. This is the only question necessary to be considered. A rule, which appears to be well sustained by numerous authorities, and salutary in principle, is that matter merely abateable, where the defendant has had legal notice of the process, must be taken advantage of by plea; else the objection is considered to have been waived. This, I understand to be the rule which has uniformly prevailed in this court, and that it holds equally, whether the abateable matter be apparent on the writ, or arises from extrinsic circumstances. If there be a mis- nomer of plaintiff or defendant, the process having been duly served on the true defendant, and a good declaration filed, for a cause of action corresponding with that indicated by the writ, the exception can only be taken by plea, within the time allowed for pleading. An objection to the service of the writ, whether it relates to the officer making it, or the time or manner of execution, has uniformly been considered to be waived by the regular aj^pearance of the defendant, and suffering a judgment by nil dicit, or by pleading to the merits of the action. Even a judgment by default, where there has been due service of the writ, and there is no error apparent on the record, is an admission of the cause of action as alleged in the declaration. The premature commencement of this suit is the only objection to it. After having been regularly served with the writ, the defendant, by his attorney, entered his formal appearance at the return term, and at the trial term, suffered judgment by default. I have no hesitation in saying, that in cases where the record does not disclose the fact that the suit has been pre- maturely commenced, the exception is allowable on motion to exclude the evidence : in such cases this would be the only means of defence. * * * The only difficulty I have felt in this case has been to determine whether the appearance of the defendant, and the judgment by default did not cure, or constitute a waiver of the objection. In reference to this principle, respectable authority has maintained that a judgment by default cures only such defects in the declara- tion as would have been aided by a general demurrer — that the 184 JUDGMENTS BY DEFAULT. [ChAP. II. effect of a demurrer to the pleadings is, that it reaches back through the whole record, and attaches ultimately upon the first substantial defect in the pleadings, on which ever side it may have occurred. It is also said that the objection, "that the right of action had not accrued at the commencement of the suit, may be pleaded in abatement; as where an action on a contract is commenced before the time appointed for the per- formance;" but that this plea is seldom necessary; because, if the defect appear upon the face of the declaration, it is fatal on demurrer; and if not it may generally be taken advantage of on the trial. The remarks of Judge Gould do not fully embrace the particular point under consideration ; where the- defect does not appear in the declaration without reference to the capias ad respondendum, but appears from the latter; and where there is no plea to the merits, nor any exception taken in the court below. It is clear, however, that the issuance of the capias, with us, is the commencement of the suit. From the other authorities to which I have referred, it appears, that if the defect appears from the pleadings, and has not been waived by the defendant's plea, it is available in error ; nor do those cases limit the inspec- tion of the revising tribunal to the pleadings in their technical acceptation, but seem to consider the objection fatal, if it appear in any part of the record, and to regard the process by which the suit is commenced as matter of record, for ascertaining the time. Several other early English eases are to the same effect. In Ward V. Honeywood (Doug. 61), it appeared from the plaint that suit was commenced before the maturity of the note, which was the cause of action. The Court of King's Bench, held, that the plaint was to be considered as the original and commence- ment of the action, and the defect thus appearing of record, the exception was available in error. There are various other decisions to the same effect. Hence I conclude, that the judgment must be reversed.^ 1 But some statutes of Jeofails f eetive pleading. Wiim v. Levy, 2 make a default operate much in the How. (Miss.) 902. same way as a verdict in curing de- Sec. 2.] bowdell v. parsons. 185 BOWDELL V. PARSONS. 10 East, 359. [1808.] The declaration set out a contract by which the defendant was to deliver certain hay to plaintiff on request as he should want it, and alleged a failure to deliver, although requested so to do, without stating any time or place. After judgment, by default and writ of inquiry executed, the defendant moved in arrest because of such omission.^ Lord Ellenboeough, C. J. It appears to me that the second count IS sufficient to sustain judgment for the plaintiff, as well as the first. The question comes now to be considered by us after the stat. 4 Ann. c. 16 for the amendment of the law ; the first section of which enacts "that in all cases where any de- murrer shall be joined, etc., the judges shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfec- tion, omission, or defect in any writ, etc., declaration, or other pleading, etc., except those only which the party demurring shall specially and particularly set down and eSpress as cause of demurrer; notwithstanding that such imperfection, omission, or defect, might theretofore have been taken for matter of sub- stance, and not aided by the stat. 27 Eliz. c. 5 : so as sufficient matter appear in the said pleadings upon which the court may give judgment according to the very right of the cause." Now it is admitted, according to what was said by Lord Mansfield in Collins v. Gibbs (2 Burr. 899), that this being a motion in arrest of judgment is to be considered exactly the same as if the question had arisen on general demurrer. Then what does the statute say upon the subject: after specifying the want of several matters of form, of which no advantage or exception shall be taken, it proceeds to say that "the court shall give judg- ment according to the very right of the cause as aforesaid, with- out regarding any such imperfections, omissions, or defects, or any other matter of like nature, except the same shall be spe- cifically and particularly set down and shown for cause of demurrer." Now is not the omission to repeat a venue (for 1 Statement of the pleading has been condensed. 186 JUDGMENTS BY DEFAULT. [ChAP. II. it must be always remembered that there is one venue well laid in the declaration) a less material omission than the want of alleging pro ut patet per recordum, where a record is pleaded; which is one of the instances specified where the omission shall not be taken advantage of without being specially shown as cause of demurrer; for that is an omission to refer to that by which alone the allegation is to be proved; but here the omission is of that which is mere form. It is said that a request must be alleged : and so it is : but then it is said that it is not duly alleged : the imperfection however consists only in the want of a time and place, where a venue was before laid; an omission by no means of equal importance with several of those instanced in the statute. The case of Bach v. Owen (5 Term Rep. 409), is relied on, as having been decided on this objection since the statute; where Mr. Justice Buller said, "that the want of a request was a substantial defect in the declaration, and that where it was necessary to allege a special request, the general words, though often requested, would not answer the purpose." There was no judgment however in that case; but leave was given to amend; and the cases referred to in the margin of the report, if cited by him, as supporting that position, are aU before the statute of Anne. Another case was cited of "Wallis v. Scott (1 Strange, 88), which came on upon general demurrer subsequent to that statute : but there judgment was ultimately given for the plaintiff when the court was full. And though one of the judges in the first instance threw out an opinion, that where a request was by law necessary (which he thought it was not in that instance), the general averment would not be sufficient, but it must be particularly set forth, that the court might judge whether it were sufficient: yet it is to be observed, that the healing opera- tion of the statute of Anne was not presented to the considera- tion of the court. Nor was it so in the case of Bach v. Owen; for if it had, I think the objection there must have been over- ruled; because it was not only an objection of like nature, but of less force than several of those stated in the statute. In this case there is an allegation of a request, which it is admitted would be sufficient if time and place were laid with it; and I am of opinion that the want of those since the statute is not a sufficient objection in arrest of judgment. Sec. 2.] maunsell v. lord massaebbne. 187 MAUNSBLL v. LOED MASSAEBENE. 5 Term. Bep., 87. [1792.] The defendant having suffered judgment by default in an action on a bill of exchange for £200 Irish money, the plaintiff moved to refer it to the master to see what was due for principal, interest, and costs : Park opposed it on the ground that this was foreign money, the value of which could only be ascertained by a jury.i Bagshaw V. Playn, Cro. Bliz. 536 : and Eands v. Peck, Cro. Jae. 617 ; and he observed that this was one of the reasons why this court refused to grant a similar application in Messin v. Lord Mass- areene, ante, 4 vol. 493. Baldwin, in support of the rule, said, that it would not be more difficult for the master than a jury to ascertain the value of this money. But the court (Lord Kbnyon, C. J., being absent) said, that there was the same reason for refusing this applica- tion that there was in the case of Messin v. Lord Massareene; and they "■ Discharged the Bule.^ TEIPP V. THOMAS. 3 Barnewall & Cresswell, 427. [1824.] Case for words imputing subornation of perjury. Judgment by default. At the execution of the writ of enquiry the plaintiff 1 Semble, that the Court had the wagon. This is an unlawful entry power to assess damages without a into a man's house (which is his jury even in tort oases. See Bruce castle), an invasion upon his wife V. Eawlins, 3 Wilson, 61 (1770), in and family at peace and quietness which it was said by Chief Justice therein, frightened and surprised by Wilmot on an application to set these defendants; who under pre- aside an assessment of damages by tense of information received, and a jury. "This is an inquest of color of legal authority, demand the ofS.ce to inform the conscience of the keys of, and search all the boxes and Court, who, if they please, may drawers in the house, themselves assess the damages, but 2 After default in debt on an in- T am of opinion we ought not to in- demnity bond the damages must be terpose in this ease, which differs proved, widely from the case of stopping the 188 JUDGMENTS BY DEPAtTI/T. [ChAP. II. offered no evidence, but his counsel addressed the jury, and they assessed the damages at £40. Ludlow now moved to set aside the inquisition, and contended that the jury were not justified in giving damages without some evidence by which they might be guided in fixing the amount; or that the damages should, at all events, have been nominal. Abbott, C. J. I think that we cannot disturb the finding of the jury. The defendant by suffering judgment by default admitted the speaking of the words as alleged in the declaration. It was, therefore, unnecessary to give evidence to that effect. The plaintiff, did not produce any evidence in aggravation, it cannot therefore be presumed that the jury were misled, or that they estimated the damages on erroneous grounds. Rule refused. STRONG V. CATLIN. 3 Pinney (Wis.), 121. [1850.] Action of assumpsit brought by Albert Catlin against Moses M. Strong. The summons by which the action was commenced was not sealed with the seal of the court. It was served personally on the defendant. He did not appear, and being in default, the court in term time, without interlocutory judgment having been entered, ordered the clerk to assess the plaintiff's damages, and he reported that he had assessed them at $298.95, and upon his report judgment was given for the plaintiff and against the defendant for that sum and costs, and the defendant brought this writ of error. Larrabee, J. The summons by which this action was com- menced had no seal; but this was clearly one of those defects provided for in the statute of amendments, and was cured by verdict. "Where the defendant suffers a default to be entered against him in an action of assumpsit, the judgment in the first instance is only interlocutory ; and this must be entered before the plaintiff can proceed to have his damages assessed, or to complete his final judgment in the case. Sec. 3.] dobbs v. passer. 189 No interlocutory judgment was entered, but a final one, of which complaint is now made. This must be reversed, and the plaintiff can proceed to enter his interlocutory judgment at the next term of the Circuit Court.^ Judgment reversed. Section 3. Setting Aside and Opening. DOBBS V. PASSER. 2 Strange, 975. [1734.] The plaintiff signed judgment in ejectment, and before he had lost any trial the defendant applied to set it aside, though strictly regular, upon payment of costs, and taking notice of trial ; which the plaintiff refused. And the court being applied to, a dis- tinction was offered between ejectments and all other actions, because the right was not bound, but a new ejectment might be brought. Sed per curiam, That distinction held formerly in many instances where it is now exploded, you could not formerly have a new trial as you now may; and great incon- veniences may arise from changing the possession, timber may be felled, etc., and as the Common Pleas makes no difference, and we are got into their way in all other actions, it is proper to do it here too.^ {Vide Doe ex dem. Troughton v. Roe, 4 Burr. 1996.) HART'S ADM'R v. WALKER. 31 Missouri, 26. [I860.] This was an action on a promissory note. On the second day of the return term, a judgment by default for want of an answer 1 In a number of states the stat- not to give him the advantage of a utes provide for an assessment of nicety in pleading. ' ' Forbes v. Mid- damages by the Court unless a jury dleton, 2 Strange, 1242. is demanded. See Par. 59, Ch. 110, The requirement of a detailed afll- m. E. S., 1913. davit of merits appears to have or- 1 ' ' The Court said that it was iginated somewhat later. See Oak- never to be done, but where the de- ley v. Giles, 3 Bast, 167, ante, p. 12. fendant was to plead to the merits. 190 JUDGMENTS BY DEFAUI/T. [ChAP. TI. was taken against the defendants. On the same day and before the adjournment of the court, the defendants moved the court to set aside the judgment by default and for leave to file an answer immediately. The court overruled the motion. There was no bill of exceptions signed by the judge. The term con- tinued more than three days. The defendants appealed to the Supreme Court. Scott, Judge, delivered the opinion of the court. It appears from the record that the term of the Stoddard Circuit Court, at which the judgment in this cause was rendered, continued for more than two days. The defendants therefore had the whole of the second day on which to plead, even though the cause was set for that day and was called on that day in its turn. The arrangement of the docket could not deprive them of a right conferred by law. Having the whole of the second day on which to plead, a judgment by default could not be taken on that day against the defendants. It could not be taken earlier than the third day. As the judgment by default was not taken regularly, the defendants were entitled to have it set aside without an affidavit of merits. The granting the motion was not a favor, and the court could impose no terms. It was a legal right and they could insist on it as such. After the motion was overruled, the defendants should have filed a bill of exceptions and preserved their motion in it and the action of the court upon it, which should have been signed by the judge. As the matter stands, there being no bill of exceptions, the judgment must be affirmed. ^ CLOUGH V. MOORE. 63 New Hampshire, 111. [1884.] Clark, J. The power to set aside, vacate, modify, or amend judgments for sufScient cause, is unquestioned. Adams v. Adams, 51 N. H. 388 ; Judge of Probate v. Webster, 46 N. H. 518 ; Bel- lows V. Stone, 14 N. H. 203. In some form of procedure a party 1 And so in case of defective serv- ice. Norton v. Ry., 97 Cal. 390. Sec. 3.] .clough v. moore. 191 is entitled to relief from a judgment rendered by accident or mis- take or through fraud, or in respect to which any fact exists which proves it to be against conscience to execute the judgment of which the party was prevented from availing himself by fraud, accident, or mistake, unmixed with any fault or negligende of himself or his agents. Currier v. Gilman, 55 N. H. 364 ; Hibbard V. Eastman, 47 N. H. 507 ; Wingate v. Haywood, 40 N. H. 437. Whether the motion to bring forward" these actions and vacate the judgments should be granted, is a question of fact to be de- termined at the trial term. Bank v. Clement, 58 N. H. 533. It is contended that the facts upon which the motion is based furnish no sufficient cause for granting it if proved by competent evidence. It is a fundamental principle of the law, that judg- ment ought not to go against a party without an opportunity to make defence ; and judgments rendered without notice are void- able. Gay V. Smith, 38 N. H. .171, 174. Ordinarily it would seem to be sufficient cause for vacating a judgment that it was rendered without notice to the defendant, who, having a 'suffi- cient defence, was prevented from making it for want of such notice, without fault or negligence on his part. A party^ ought not to be permitted to retain the fruits of a judgment to which he is not entitled, neither should he be compelled to submit to a judgment which unjustly concludes his rights without an oppor- tunity to be heard. Such a result can happen only through a defective administration of justice. It is conceded that a judg- ment obtained by fraud should be vacated, because a party ought not to be permitted to profit by his fraud. How does the fact that a party is free from fault entitle him to retain the benefits of an unjust judgment? To enforce a judgment obtained without notice is no less injurious to the defendant, than to obtain a judgment fraudulently without any attempt to give notice. In either case the defendant is defrauded, and the plaintiff obtains an unjust advantage. There is no conclusive presumption that a copy or summons left at the defendant's place of abode came to his knowledge. Upon the question of actual notice, the return that a copy or summons was left is evidence, but not conclusive. The rights of the plaintiff are secured by permitting him to have judgment upon proof that the statutory notice has been given. If his cause of action is weU founded, his judgment is in no danger of being reversed or vacated. If it is not well founded, the defendant 192 JUDGMENTS BY DEFAULT. [ChAP. IT. should not be compelled to submit to it unless he has in some way forfeited his right to question its validity ; and upon showing that he has a defence, and that he had no notice of the plaintiff 's action, he ought ordinarily to be permitted to try his case. Judg- ments are rendered on default upon a return of service by leav- ing a copy or summons at the last and usual place of abode of the defendant, or by publication, upon the assumption that the de- fendant having notice of the suit has admitted the plaintiff's claim by failing to appear and contest it. The record shows a legal service ; but in every case where the defendant has no actual notice of the suit, the record, so far as it implies notice, is in- correct, and the judgment is rendered upon an erroneous assump- tion of fact. To hold the return of service conclusive evidence of notice would in all such cases deprive the defendant of any opportunity of defence. If the defendant is entitled to relief, this is the appropriate form of remedy. It is comparatively speedy and inexpensive. There is no occasion or excuse for compelling a party to resort to another process, when, by bringing forward the original action, all errors may be corrected and justice administered. Mclntire V. Carr, 59 N. H. 207; Metcalf v. Gilmore, 59 N. H. 417, 435; Moore v. Carpenter, ante 65. No serious inconveniences can result from granting relief from judgments rendered without notice. It is not to be apprehended that a defendant having a valid defence will suffer judgment to go against him by default, with a view of obtaining an opportunity to make his defence at some future time by a perjured denial of notice of the original action. Nor is it to be assumed that judgments will be modified or vacated except for sufficient cause. The finding of the court must be set aside. The facts and conclusions stated in the reserved case in Moore v. Carpenter were not competent evidence. No judgment or decree had been rendered in that case. The verdict or findings of a tribunal upon which no judgment has been rendered are not competent evi- dence to control or influence the judgment of another tribunal upon the same question. King v. Chase, 15 N. H. 9, 13, 14; Hay- ward V. Bath, 38 N. H. 179. Upon competent evidence, the court at the trial term will determine whether justice requires that the defendant's motion should be granted. Exceptions sustained. Sec. 3.] ins. go. of north America v. swineford. 193 INSURANCE CO. OF NORTH AMERICA v. SWINEFORD. 28 Wisconsin, 257. [1871.] Dixon, C. J. * * * The facts shown by the affidavits in excuse of the default and failure to answer, and as a reason for setting aside the judgment and letting the defendants in to a trial on the merits, are, in our judgment, insufficient. They show a case of inexcusable neglect and delay, and are in some respects inconsistent with good faith and fair dealing on the part of the defendants or their agents. The loss occurred more than eight months before the action was commenced, and it was over three months after service of process when judgment by default was taken. In the meantime, both before and after the commencement of the action, negotiations were pending for a voluntary settle- ment and payment of the loss. The liability of the company was not seriously denied, and promises of payment were made as well on the part of the general agent of the company as of one or more of its special agents. The plaintiff was induced to believe that her claim had been or would be allowed by the company, and payment made without objection. It furthermore appears that before the suit was commenced, and, the inference is, a con- siderable time before, the agents of the company — the local one at Fond du Lac, one of the general agents for the northwestern states at Chicago, and a special agent deputed for that purpose — had fully investigated the facts touching the loss. It does not' appear that any new fact or material circumstance has b^en dis- covered since those agents made their investigation. The facts are such as they ascertained, and as were known by them before the action was commenced. With eight months intervening, and three agents engaged in the investigation, the defendants should have been prepared at the end of the time either to pay or put in their answer. There was no good reason for their not having an- swered. The sickness, disability or business engagements of one of the agents at Chicago, was no excuse. His partner was not sick or disabled, and he had been upon the ground and knew the facts. The agent who was sick had not. The answer might have been prepared under the direction of either of the three agents who had investigated, and have been verified by any one of them. The failure to answer was, therefore, the result of mere inexcusable negligence on the part of the company or its agents, unless the practice of the company of requiring the pleadings in actions H. T. P.— 13 194 JUDGMENTS BY DEFAULT. [ChAP. II. against it to be sent to the home office for examination and advice, made it otherwise. But such practice did not necessarily inter- fere with or prevent an answer in time ; and if it had, the question would be, whether the law should conform to the practice of the company, or the practice of the company to the law. "We think the law would prevail in such a case, and that the company must so regulate its business as to conform to the law, unless some reasonable excuse is shown. On the whole, we are of opinion that no case was made out to justify the setting aside of the judgment, and that the order of the court below was right.^ By the court. Order affirmed. ELLIS v. BUTLER. 78 Iowa, 632. [1889. ] Appeal from an order refusing to set aside a judgment by default in an action for attorney fees. Robinson, J. * * * I. The affidavit was made by the at- torney for defendant, and shows that on the evening of the twenty-third of January he learned that it was necessary for him to go to Elma, in Howard County, the next day, on urgent and important business ; that he at once called on the judge who was holding the term, at his hotel, and informed him that it was necessary to go to Elma, as aforesaid, requesting that he be ex- cused from attendance at court; that he was informed by the judge that he would be protected so far as it could be done ; that he had no reason to believe that the cause would be reached for trial at that term, and that the court had stated on the morning of the twenty-third of January that it would not be reached for trial at that term ; that before leaving for Elma he prepared an answer, a copy of which is attached to and made a part of the affidavit ; that he did not file the answer for the reason that he lAnd so where the sickness of an his attorney, excusable mistake, attorney would not have prevented neglect, etc., there is frequently him from obtaining an extension of room for a fair difference of opinion, time to plead, before the original which is expressed by saying that period expired. Byers v. Jacob, the trial judge has a wiae discretion 164 Mo. 141. in such matters. Hulbert v. Tred- From the nature of the question way, 159 Mo. 665. involved, negligence of the party or Sec. 3.] ellis v. butler. 195 was awaiting a decision on the motion ; that before starting for Elma he had no reason to believe that he should not return to Charles City on the evening of the twenty-fourth ; that he was unavoidably detained at Elma on that evening until it was too late to reach Charles City, to which he had to "drive, a distance of twenty-five miles; that he left Elma early the next morning, and arrived at Charles City at about eleven o'clock in the fore- noon. It is insisted that the affidavit does not show due diligence on the part of the defendant, and does not excuse his default. It is said that the moton to transfer the cause to the law side of the calendar did not assail the petition ; hence it did not suspend the necessity of pleading. See Code, sections 2635, 2636, 2640. The motion was filed under the provisions of section 2516 of the Code. That provides that a defendant ' ' may have the correction made by motion at or before the filing of his answer, ' ' where the wrong proceedings have been adopted. It is clear that defendant had a right to insist upon a ruling on his motion before he filed his answer ; hence he was not negligent in not filing it until after that ruling was made. Appellant relies in part upon the alleged promise of the judge to protect him so far as he could, and upon the statement of the court that the case would not be reached for trial at that term ; but we must presume that thfe court, in ruling on the motion, con- sidered all matters of which it had personal knowledge, and that, so far as such matters may not have been fully shown by the rec- ord, they tend to sustain its ruling. The court knew what it had announced in regard to the trial of this cause, and what the .judge had said to the attorney for defendant; and we must conclude that nothing was so announced or said which justified defendant in believing that an answer would not be required within the time fixed by law. But the affidavit shows that the attorney for defendant was called away from court on urgent and important business; that the motion to transfer to the law side of the calendar had not been determined; that before he left he prepared an answer, which set forth a meritorious defense to most of plaintiffs' claim; that when he left he expected to return to Charles City in the evening when a ruling on the motion might be expected, and be- fore the case was called for trial; that he was unavoidably detained at Elma, and in consequence was not able to reach 196 JUDGMENTS BY DEFAULT. [ChAP. 11. Charles City until eleven o'clock of the morning during which the case was reached for trial, and default and judgment were entered against his client. These matters could not have been within the knowledge of the court. They show an intent to appear and defend on the merits, and we also_ think they show due diligence on the part of defendant to prepare and present his defense. It was within the power of the court to impose such terms upon the setting aside of the default as would have been just to defendant, and as would have protected the plaintiffs. We are of the opinion that it erred in refusing to set the default aside. See Code, § 2871; Ordway v. Suchard, 31 Iowa, 481; Westphal v. Clark, 46 Iowa, 264; Jean v. Hennessy, 74 Iowa, 349 ; McNulty v. Everett, 17 Iowa, 581 ; Wishard v. McNeil, ante p. 40. II. It is claimed that the affidavit of merits was not sufficient. It incorporated a copy of the answer which had been prepared, and stated that the allegations of the same were true. The an- swer contains a denial of all averments of the petition, not ad- mitted, and states that defendant consulted plaintiffs for about half an hour, but never retained or employed them in regard to the claim mentioned in the petition, nor any other; that in August, 1888, he visited their office to pay for the consultation, when they demanded of him two hundred and fifty dollars ; that he promptly refused to pay that sum, and left their office, but returned a short time thereafter and tendered them the sum of fifteen dollars, which tender was refused; that defendant has been, at all times since said tender was made, ready and willing to pay the amount of the tender. We think the answer showed a good defense as to the claim of plaintiff in excess of fifteen dol- lars. It not only denied the allegations of the petition so far as they were not admitted, but set out the facts of the case as claimed" by the defendant. If his claims are well founded, the judgment against him was excessive. III. Appellees object that the affidavit was not made by the defendant, but by his attorney. ^ The affidavit shows that the attorney had knowledge of the matters alleged in the answer, and that he must have had special knowledge of the cause of the delay in filing it. The affidavit was therefore sufficient. Jean v. Hen- nessy, supra. Reversed. 1 Where the afSdavit is made by Peoples Ice Co. v. Sehlenker, 50 an agent or attorney, it must appear Minn. 1. that he had personal knowledge. CHAPTER III. CONTINUANCES. Revised Statutes Missouri/ 1909. § 1956. Applications for continuance to be in writing, unless. Every application for a continuance shall, unless the adverse party consent that it be made orally, on oath in open court, be made by motion in veriting, accompanied by the affi- davit of the applicant, or of some other credible person, setting forth the facts on which the application is founded. § 1957. Neglect of party no cause for continuance. A continuance shall not be granted for any cause growing out of the fault or negligence of the party applying therefor. § 1958. Continuances — Attorney in legislature. In all suits at law or in equity pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party, is a member of either house of the general assembly, and in actual attendance on the sessions of the same, and that the attendance of such party, attorney, solicitor or counsel in court is necessary to a fair and proper trial of such suit; and on the filing of such affidavit the court may continue such suit, and when so continued no trial or other proceedings shall be had therein until the adjournment of the general assembly, nor for ten days there- after. Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly. 1 For corresponding provisions in utes 1913, Ch. 110, Par. 62, 63, 64, niinois. See Kurd's Revised Stat- 65, 67. 197 198 CONTINUANCES. [ChAP. III. § 1959. Applications shall state what pacts. Applica- tions for a contimiance on account of the absence of witnesses or their evidence shall state facts which show: First, the mate- riality of the evidence sought to be obtained, and due diligence upon the part of the applicant to obtain such witness or testi- mony ; second, the name and residence of such witness, if known, or, if not known, the use of diligence to obtain the same, and also facts showing reasonable grounds of belief that the attend- ance or testimony of such witness will be procured at the next term; third, it shall also state what particular facts the afiflant believes the witness will prove, and that he knows of no other person whose evidence or attendance he could have procured at that term, by whom he can prove or so fully prove the same facts ; fourth, that such witness is not absent by the connivance, consent or procurement of the applicant, and such application is not made for vexation or delay, but in good faith for the purpose of obtaining a fair and impartial trial. • § 1960. Insufficient application oveerulbd, otherwise SUSTAINED. If the court shall be of the opinion that the affi- davit is insufficient, the court shall permit the same to be amended; and if after such amendment the affidavit does not contain a sufficient statement of facts as herein required, the court shall overrule the same; but if, upon the contrary, the court shall find the affidavit sufficient, the cause shall be con- tinued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in said affidavit, in which event the cause shall not be continued, but the party moving therefor shall read as the evidence of such witness the facts so stated in such affidavit, and the opposite party may disprove the facts disclosed, or prove any contradictory. state- ments made by such absent witness in relation to the matter in issue and on trial. § 1961. Amendment of pleading, when cause for continu- ance. When a party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the opposite party could not be ready for trial in consequence thereof, a continuance may be granted to some day of the same term, or to the next regular term of the court. DAT V. SAMSON. 199 DAY V. SAMSON. Barnes' Notes, 448. [1741.] Upon showing cause against a rule for putting off a trial it was objected to the affidavit, ex parte Defendentis, that it was made by a third person, and not by the party himself; but this was overruled by the court. There may be many cases where a third person can swear another to be a material witness, and the defendant himself cannot ; as where a factor sells goods for his principal, and employs a porter to deliver them ; the factor knows the porter to be a material witness, but the principal does not, etc. The court took another objection to the affidavit, which runs thus: That A. B. and C. D. are material witnesses for defendant in this cause, without whose evidence defendant cannot safely proceed to trial, as defendant is advised, and verily believes. The belief seems to go through the whole, as well as to A. B. and C. D. being material witnesses. As to the other necessary part of the affidavit (that is) that the party cannot safely make defence without their testimony, though the former part (that is) A. B. and C. D. being material witnesses, ought to be positively sworn ; belief, as to it, is not sufficient ; but as to the latter part it is. These two requisites ought not to be coupled, but disjoined. The court enlarged the rule that the affidavit might be amended; which being done, a rule was made to put off the trial. Skinner for defendant ; Wynne for plaintiff. LORD V. COOKE. 1 Wm. Blackstone, 436. [1763.] Motion to put off a trial, on the usual affidavit of the absence of a material witness, who was gone to the East Indies, and not expected home under eighteen months. The court would not grant the rule nisi, unless the defendant would engage to make a special case, stating the nature of the demand, and what it was the witness could prove. Which being accordingly done, the court thought it not sufficient to stay the trial ; and therefore discharged the rule that had been obtained to show cause. 200 CONTINUANCES. [ChAP. III. HILL V. PROSSER. 3 Dowling, 704. [1835.] This was an application by the defendant to postpone the trial of a cause till the sittings in Trinity term, upon an affidavit of the absence of a material witness. W. H. Watson, in showing cause, objected that there was no affidavit of merits. Parke, B. Generally, upon such a supervenient discovery as the absence of a material witness, it is not necessary to swear to merits for the purpose of a motion of this nature.^ Tlie rule was disposed of on other grounds. REX V. LE CHEVALIER D'EON. 3 Burrow, 1513. [1764.] Monsieur D'Bon, who came over hither in the quality of secretary to M. le Due de Nivernois, the late French ambassador, and after the duke's departure, remained here charged with the affairs of France, was afterwards (upon a particular occasion) invested with the character of minister plenipoten- tiary. Upon the arrival here of the present French ambassador, the Count de Guerchy, M. D'Eon set up a press in his own house, and in his book there printed under his own inspection, libelled the Count de Guerchy. Upon this, an information was filed against him by Mr. Attorney General, not only for print- ing and publishing this libel, but as an infractor of the law of nations : and notice of trial was given. Whereupon M. D 'Eon (by his counsel) moved to put off the trial, on account of the absence of several material witnesses, whom he specified in his affidavit : and his affidavit contained the usual assertions requisite for putting off a trial, and particularly "that they were material witnesses for him; that he could not safely go to trial without their evidence ; and that he had hopes and expecta- tion of procuring their presence by next Michaelmas term. ' ' - But see City of Elgin v. Nops, 212 111. 20. REX V. LE CMEVALIEB d'eON. 201 Upon showing cause against putting off the trial, it appeared that the libel was not printed or published till March or April ; and that these witnesses went away from England to Prance, in the preceding November or December.. It appeared also, that they were natives of, and resident in Prance; that they were in the service of that crown ; and that there was no probability of their being sent over, or even permitted to come over, to give evidence on behalf of M. D'Eon (who stood, at this time, in no favorable light at his own court, but very much otherwise). After a full hearing of counsel on both sides (M. D'Eon being present), the court were unanimous that there appeared no sufficient reason for putting off the trial. They granted that in all cases, whether criminal or civil, and whether the nature of the proceeding be instantaneous or otherwise, a trial shall not be so hurried on, as to do injustice to the defendant; an affidavit in common form may be sufficient where no cause of suspicion appears : but men take such latitude to swear in the common form, that where a suspicion arises from the nature of the question or from contrary affidavits, the court will examine into the ground upon which the delay is asked; and have, in criminal as well as civil cases, refused to put off a trial, notwithstanding an affidavit in common form. It is necessary therefore in such a ease as this (1st), to satisfy the court that the persons are material witnesses ; 2dly, to show that the party applying has been guilty of no laches nor neglect, in omitting to apply to them and endeavor to procure their attendance; and 3dly, to satisfy the court that there is a reasonable expectation of. his being able to procure their attend- ance at the future time to which he prays the trial to be piit off. But in the present case, all these reasons fail. These witnesses are sworn to be material, as the defendant apprehends and believes. But on the contrary, it appears (negatively) that they can not be material: for, as they were gone out of England some months before the printing or publica- tion of this book; they could not be conusant of the facts of the offence laid in this information. If their knowledge relates to any circumstances that may serve to mitigate the punishment in case he should be convicted, that sort of evidence will not come too late after conviction of the offence, and may be laid before the court by affidavits. But if it should appear upon the case proved at the trial. 202 CONTINUANCES. [ChAP. III. "that the defendant was prejudiced by refusing this delay," the court could set it right by granting a new trial : which had often been said upon like occasions; but no case had yet hap- pened, where any prejudice appeared to have been done by the court's refusing, upon particular circumstances, to put off a trial notwithstanding the formal affidavit. As to their beiijg sent out of the kingdom by the Count de Guerchy himself, on purpose to prevent their giving testimony in the cause (which has been alleged), there neither is any proof of it, nor is it possible that it could be so : they were actually gone before the fact which is the subject of the charge was com- mitted. It is impossible that they could be sent abroad by M. de Guerchy to prevent their giving evidence in this cause, the foundation of which did not exist at the time when they went. If they had been material witnesses for the defendant in this cause, and had been sent away by the person on whose account the prosecution is carried on, that indeed would have been a sufficient ground for putting off the trial till they could be had. But here is no pretence for such an insinuation. Neither does it appear, that there has been the least endeavor used by this gentleman or any on his behalf, to get them over. And as to any expectation of their returning to England by the next Michaelmas term or at any future time, there does not seem to be any probability of it: nor does the defendant lay before the court any grounds of such an expectation. On the contrary, the reverse is highly probable ; the presumption seems strong, that they will not come. They cannot be compelled to come: and it does not seem likely that they will be ordered to come, for this purpose. These are foreigners, natives of and resident in France, and in the actual service of that king : which renders this case quite different from the ordinary eases of English witnesses being accidentally gone abroad, or gone for a small time only, and expected to return to their own country, their natural home and residence. Upon the whole, they were clearly of opinion "that the putting off the trial could not tend to advance justice, but on the con- trary would delay it;" and therefore discharged the rule for showing cause why it should not be put off. Rule discharged. M. D'Eon was soon after tried and convicted, upon so clear evidence, that he made no defence, and from the proof against WOKSLET V. BISSET. 203 him by witnesses and writings under his hand, it was impossible for him to make any defence. Yet he seems to have sheltered himself under some salvo, in swearing the persons in France to be "material witnesses." WOESLEY V. BISSET. 3 Douglas, 58. [1782.] In an action for criminal conversation with the plaintiff's wife the defendant obtained a rule to show cause why the trial of this cause, which stood for the sittings after this term, should not be put off on account of the absence of Lord Chol- mondeley, who was at Paris, whom the defendant apprehended to be a material witness, and whom he expected home in the course of a few months. But it not appearing that any appli- cation had been made to Lord Cholmondeley to know whether he would come over and give evidence, the rule was discharged. Lord Mansfield saying that it was by no means of course to put off a trial on such a general affidavit. DALE V. HEALD. 1 Carrmgton & Kirwan, 314. [1844.] This was an action on a policy of insurance, in which notice of trial had been given for the Durham Spring. Assizes, 1844. At the sitting of the court on the first morning of the assizes Knowles, for the defendant, applied to put off the trial until %la.e next assizes on an affidavit, which stated that issue in the cause had been joined on the 23rd of February, 1844 (which was just in time to allow of notice of trial being given for the assizes) ; that the action involved a question of French law, and that after issue joined, a messenger had been sent to France for the purpose of procuring the attendance of a material and necessary witness, which messenger had not yet returned. Temple, for the plaintiff, opposed the application on the ground that the attendance of the witness might have been procured at an earlier period. 204 CONTINUANCES. [ChAP. III. RoLFE, B., however, was of opinion that a party could not be presumed to know what evidence he would require until after issue joined, which in this case had been done just in time to admit of notice of trial being given for the assizes, and as there appeared to have been no delay on the part of the defendant in procuring the attendance of the witness in question, he accord- ingly allowed the application, on condition of the defendant bringing the money into court, and paying costs. MACKUBIN V. CLARKSON. 5 Minnesota, 247. [1861.] By the Court, Atwatee, J. The first error alleged on the part of the appellant, is the refusal of the court below to grant a continuance on the affidavit of the defendant. The affidavit stated that he (defendant) had stated the facts in this case to H. L. Moss, Esq., his attorney, and that he is advised by his said attorney that he cannot safely proceed to trial without the testimony of August Hageman, who is a material witness in this action. That said Hageman had resided in St. Paul during the past year, and that since the commencement of the court he had informed the defendant that he would be ready at any time to attend and be present at the trial of the cause. That on the evening of the 3d of October the deponent had sent to the residence of Hageman to have him in attendance before the court, and was informed that within the last ten days he had gone to Memphis, Tennessee, and would be absent three months. The affidavit further stated, that relying upon the promises of the witness he had not subpoenaed him, had no knowledge of his intention to leave, and expected to be able to procure his testimony at the next term, etc. The affidavit also stated that one Kittel was also a material witness for the defendant. That he had been absent from the state since the cause was at issue ; that he had been unable to ascertain his residence or whereabouts, but that he was expected to return to the state, and that deponent expected to be able to procure his testimony at the next term of the court. The affi- davit did not state what was expected to be proved by either witness. EVANS V. POND. 205 There was no error in the refusal to grant a continuance on this affidavit. There was no diligence whatever shown to pro- cure the attendance of Hageman. If a party chooses to rely upon the promise of a witness to be in attendance, without sub- poenaing him, he does so at his own risk, and cannot, on that ground, claim a continuance if the witness does not keep his agreement. (Beaulieu v. Parsons, 2 Minn. 37.) The affidavit is also defective in not showing wherein the witnesses were material. The facts which the party proposes and expects to prove by the witnesses should be set out in the affidavit, so that the court may judge of the materiality of the witness. The party himself is not to be the judge of the materiality of testi- mony. If this were so, there are probably few cases in which an adjournment would not be obtained, once at least, and per- haps many times. "We are aware of no authorities which sustain a continuance on such an affidavit, and if there are any, t^ey are entitled to little weight. The least that can be required on this point is, that the party should state that he has stated the facts which he expects to prove by his absent witnesses to his counsel, and that he is advised by his counsel that he cannot safely proceed to trial without the testimony of such witnesses. But the better and correct practice is as above stated, to set forth the facts in the affidavit, that the court may be advised as to whether the testimony is necessary or otherwise. ^ * * * EVANS V. POND. 30 Missouri, 235. [I860.] EwiNG, Judge, delivered the opinion of the court. The only question in the case is the ruling of the Circuit Court, in refusing a continuance. 1 And so as to the steps taken to did they exist, should berset out in obtain the testimony — Cooper, J., in the affidavit. It is not enough, un- Washington County v. MeOoy, 1 der any circumstances, merely to Minn. 100. ' ' There is no allegation swear to the judicial conclusion, that that a subpoena ever issued, or that due diligence had been used. It is he refused to obey its mandate, or for the CouVt or Justice to say that even a request had been made, whether the acts of the party amount or notice given him of the time and to due diligence, and not for the place where his testimony was to affiant." have been taken. All these things, 206 CONTINUANCES. [ChAP. III. It appears from the record that the cause was set for trial on the 6th of May, 1858 (the suit being on a promissory note) ; that it was called for trial on that day, but not tried ; was again called on the 7th; whereupon the appellant filed his motion, with an affidavit, for a continuance on account of the absence of certain witnesses, which was overruled. The affidavit alleges that after the cause was set for trial and in ample time before the day of the trial, the affiant caused subpoenas for said wit- nesses to be issued and placed in the hands of the sheriff; that the sherifE returned said subpoenas "not found," and that as soon as the affiant discovered this fact, which was not until the 6th day of May, 1858, he searched for said witnesses, and had used his best endeavors to find them and procure their attendance. The bill of exceptions shows that the subpoena for the witnesses, on account of whose absence the application for a continuance was made, did not issue until the 5th of May, only one day before the cause was set for trial ; and this was the first time any steps were taken to procure the attendance of the absent witnesses. We think the application fails to disclose any sufficient grounds for a continuance, and that it was properly refused.^ Judgment affirmed. Judge Scott concurs. Judge Napton absent. CONNER V. SAMPSON. 22 Texas, 20. [1858.] Error from Teavis. Tried below before the Hon. A. "W. Ter- rell. Suit by defendants in error against plaintiff in error. Defendant in the court below applied for a continuance, on ac- count of the absence of a material witness; and made affidavit that he had used due diligence to procure his testimony, by hav- ing the witness duly subpoenaed, during the term at which the 1 Pinney, J., in Davis v. Eiver Side situation or location of the absent Co., 84 Wis. 262. "There is no ab- witness or desired evidence, the solute standard of diligence. It de- facilities which may be employed to pends upon the usual course of pr.o- obtain it, and all facts and circum- cedure and course of business, the stances of the ease." MATNAKD V. CLEVELAND, 207 application was made ; but it did not appear from the affidavit, or otherwise, on the record, at what time, or under what circum- stances, the witness was subpoenaed. The court below overruled the application. RoBEETS, J. The application for a continuance is defective in this, that it does not show that the witness had been served with a subpoena, a reasonable time before the trial, to enable him to be present at the trial. The point was decided at Tyler (1858), that it must appear from the affidavit, unless it otherwise appear of record, that reasonable time has been given the witness to make necessary preparations to attend the court at the time of the trial, otherwise the party could not be held to have used due diligence to procure his attendance. What this reasonable time is, must depend upon the distance of the witness from the court, and other surrounding circumstances. A party should, if prac- ticable, have his witnesses served with a subpoena before the commencement of the court. If, however, he relies upon having done it during the term, he must show that it has been done a reasonable time before the trial. i This affidavit would be literally true, although the witness had been served with a subpoena twenty miles from the courthouse five hours before the cause was called for trial. There is no return upon a subpoena, or other evidence on the record, which shows that diligence has been used. Without some such exhibi- tion of diligence, in some way or other, upon the record, we can- not say that the court below erred in overruling the application for continuance. Judgment affirmed. MAYNARD v. CLEVELAND. 76 Georgia, 52. [1885.] Clarke, J. At the trial, defendant moved for a continuance for the want of, and in order to obtain, the testimony of one Brantly. By him he desired and expected to prove that, in wit- ness's presence, Wilde C. Cleveland had actually paid to him $500. Defendant had all along known that Brantly was present at the transaction, and that he lived out of the county. But, 208 CONTINUANCES. [Chap. III. although the case had been in court several years, he had not sued out his depositions, nor engaged him to attend, nor even consulted him on the subject. As an excuse for this apparent negligence, he made the following showing : Defendant 's counsel stated that, at the preceding term, he had heard that complain- ant expected to prove by Wilde C. Cleveland that the latter did not in fact pay to defendant the $500 for which defendant had given him a receipt. Thereupon, he called on said Cleveland to know what his testimony would be on that point. W. C. Cleve- land replied that, to the best of his recollection, defendant's statement was correct. Defendant himself swore that said Cleve- land had told him that his (defendant's) statement of the mat- ter was correct; and also testified that said Cleveland and said Brantly were the only persons present at the transaction. Both defendant and his counsel swore that they had no intimation of any change in W. C. Cleveland's mind on that point until the evening preceding the trial, when they discovered in depositions executed that afternoon Cleveland's contrary evidence. Defend- ant swore that he was misled by this course of W. C. Cleveland (who was brother to complainant) into the belief that his own statement would be confirmed by that of W. C. Cleveland, and contradicted by nobody, and therefoi-e did not deem it needful to procure Brantly 's testimony. He also exhibited a postal card received from said Cleveland as follows : "Dear Sir — I promised Judge Hall" (who was and is defend- ant's counsel) "at your last court to come over to Forsyth dur- ing this term. He requested me so to do; and while I hope sin- cerely that you will neither need me or sustain any loss, yet I am willing to do anything for you, and will be over Monday night or Tuesday morning, and desire to see you and Judge Hall together. I am exceedingly sorry that you are troubled in this suit as you are, and truly hope that you will come out victorious in toto. February 22, 1884. Wilde C. Cleveland." The case was called Thursday, the 28th of February. Cleve- land had come as promised, but had not apprised defendant or his counsel of any change in his mind, and having sudden occasion to leave the county on Wednesday afternoon, by consent, his depositions were taken at the instance of complainant. Immedi- ately upon discovering what said Cleveland had sworn, every .effort practicable was made to get Brantly there. It was aseer- MAYNABD V. CLEVELAND. 209 tained that he was somewhere abroad, traveling in the interest of a Macon mercantile house, and could not be found. Defendant swore that he did not ask the continuance for delay, but in order to get Brantly's testimony. The court overruled the motion. It was not disputed below, or here, that the testimony of Brant- ly was highly material. The court placed its judgment on the proposition of law, that as the misleading of the defendant was not done by complainant or his counsel, a continuance could not be allowed. This court has repeatedly held that continuances are in the discretion of the court, and that, when refused, unless there is an abuse of discretion, this court will not interfere. But where it plainly appears that the court below acted on an erroneous notion of the law, and that without that error, the showing would have been satisfactory, and that in consequence of the refusal of the continuance the party has suffered a serious disadvantage, we hold that a tribunal for the correction of errors of law has distinct ground for reviewing the decision. That defendant suffered a serious disadvantage is clear. He and Wilde C. Cleveland were both parties to the transaction under inquiry. Their testimony conflicted on the precise point. Brantly, as appears by his affidavit in support of the motion for a new trial, would have sworn positively to seeing W. C. Cleve- land actually pay over ,a large roll of money to defendant, at the time and place referred to, when said Cleveland denied that any money passed. "Who can say that this would not have turned the scales in the hands of the jury in favor of defendant? But it is claimed that it has been held that the absence of cumulative evidence is no ground for a continuance; and that if a party has one witness present to testify to the same point, he cannot continue to get another. Surely, where the only witness present to testify to the point is a party at interest, and where the other party contradicts him, it cannot be the iron rule of the law that he may not have needful time and fair opportunity to bring in disinterested testimony to settle the dispute. It cannot be the policy of the law, which discourages an unnecessary and expensive array of witnesses to one point, to encourage parties to rely on their own contradicted statements. In 5 Georgia, 80, it is held, ' ' It would be no reply to his want of diligence that he and his counsel did not think the testimony would be needed in the cause until it was on trial." That was a suit against indorsers of a bill of exchange, who, by the well- H. T. p.— 14 210 CONTINUANCES. [ChAP. III. settled common law, were entitled to demand and notice. The bank cashier, who made the demand and served the notices, though residing in Columbus, where the trial occurred^ had not been subpoenaed, nor even requested to attend. When the cause was being tried, the cashier could not be found. For want of this indispensable part of the plaintiff 's case, he was non-suited. On his motion for a new trial, we are not surprised that the court should hold the language above cited. The case cited by defendant in error in 23 Georgia, 613, has for a head-note, "A party is not entitled to a continuance on the grounds of the absence of testimony, unless he has taken some steps to procure that testimony. ' ' But the showing set forth that defendant had "failed to take the witness's depositions, because he expected the witness to be present at the trial. ' ' Here was a plain case of laches. In 55 Georgia, 21, during the trial, defendant moved to con- tinue because he was surprised at the testimony of plaintiff's witness, and desired to procure contradictory evidence. There was no diligence in trying to learn what the plaintiff's witness would say, no authorized reliance on his favorable testimony, no misleading: Held, that there was no legal surprise at the testi- mony of his adversary. In King v. The State, 21 Ga. 221, the defendant, indicted for assault with intent to murder, claimed surprise because the prose- cutor testified to his guilt, and asked a new trial in order to get the evidence of two witnesses, whom he all along knew to have been present at the difficulty, but had not summoned, because he did [not?] anticipate his need of them. He was not misled by anybody. Such surprise was manifestly entitled to no favor, and received none. Susan Eberhart, convicted of murder, asked a new trial because a continuance had not been allowed her. Her grounds were, first, that owing to the recency of the homicide, and her arrest, and the public excitement against her, she could not safely go to trial ; second, her counsel had not had sufficient time to prepare her defense. The first ground was mere matter of opinion, and obviously was better left to the discretion of the presiding judge than to a distant reviewing tribunal, who could not so well know the state of the public feeling. The latter ground showed no par- ticular, either as to fact or law, wherein the counsel could not be prepared. This, too, was rightly left to the discretion of the MAYNABD V. CLEVELAND. 211 court, where the counsel were well known. In that case, the Supreme Court held that, as there was no abuse of discretion apparent, a new trial would not be granted. None of these decisions seem at aU in the way of a new trial in the case at bar. In Wilson v. Brandon & Shannon, 8 Ga. 136, it was ruled that "where, on the trial of a cause, a witness, from mistake, failed to prove a necessary fact, to make out the defense to an action, the witness having previously assured the defendant that he could and would do so, whereby the defendant was pre- vented from procuring other evidence to prove the same fact, which it would have been in his power to do ; and a recovery was had in consequence of such mistake, both on the part of the wit- ness and the defendant : Held, that such mistake operated as a surprise on the defendant, and that a new trial should be granted. ' ' The case at bar is claimed to be distinguished from that last cited, because the misleading witness here was not the defend- ant's, on whom he had a right to rely, but the complainant's, on whom he was not authorized to rely. Can it be possible that this makes any difference? When W. C. Cleveland was summoned, or examined, as a witness at complainant's instance, did that give complainant any exclusive property in him or his evidence, so that defendant might not consult his knowledge of the facts, and rely upon his statements as to his evidence ? Nothing is more common than for both sides to subpoena the same witness. His testimony may be indispensable to both. In part it may favor one, in part the other. Here Cleveland's postal shows that Judge Hall had asked him to attend in favor of defendant, and that he had promised to do so. The presumption of law is, that a wit- ness, summoned to court by either side, comes as an impartial witness to the truth. The mere fact that one party has first sum- moned him may, indeed, excite the suspicion of the other party, that his adversary has ground to expect to be benefited by the testimony. Thus he may be put upon inquiry. But when he has actually inquired of the witness himself, and been told that, on a certain point, he will support the inquirer, then whether the inquiring party may rely on him or not, depends on all the considerations which ought to influence a reasonable man. Why, in this case, should Maynard have distrusted W. C. Cleveland ? There appeared no conflict of interest between them. They were both defendants to this bill, brought to make both liable for 212 CONTINUANCES. [CilAP. III. wrong-dealing between them. Cleveland seemed to be his friend. Even down to the date of the postal card, strong assurance was given to his confidence. If anything is to be inferred against the prudence of trusting him, from the fact that the complainant had first called him, that inference seems exceedingly weak when we consider that the complainant might have called him to attest other facts in the case, and not this particular one ; and that he might have been exercising his right to put upon the stand a party to whom he was opposed, in the hope of forcing a confes- sion. Furthermore, it is a fact that the pleadings of complainant did not allege that the money was not paid, as Maynard claimed. Therefore, it did not appear that W. C. Cleveland was called by complainant for the express and sole purpose of proving that denial. "We think that, when that fact was not expressly put in issue by the pleadings ; when defendant had no ground whatever to expect contradiction from any other source, because he, Cleve- land and Brantly only were present ; when Cleveland, his friend, on special inquiry, told him and his counsel, separately, that de- fendant's statement was correct; and when, without' any intima- tion to the contrary, he gave the assurances contained in the postal card, Maynard could not be charged with unauthorized credulity in relying upon his support in his testimony ; nor could, he be charged with negligence in not encumbering the ease and increasing the labor and cost by taking Brantly 's interrogatories to prove what was not denied by the pleadings, and, it seemed, was not to be denied by any witness, but rather to be attested by two. We think that the continuance ought to have been allowed. Brown v. State, 65 Ga. 332. JARVIS V. SHACKLOCK. 60 Illinois, 378. [1871.] Mr. Chief Justice Lawrence delivered the opinion of the court : We are asked to reverse the judgment in this case, because the motion for a continuance and the subsequent motion for a new trial were both overruled. The continuance was asked on two grounds; the absence of a witness and the illness of defendant's counsel. As to the first, it is only necessary to say that the afifi- SMITH V. CREASOn's EXECUTORS. 213 davit does not state the defendant had no other witness by whom he could prove the facts stated in his aiSdavit as completely as by the absent witness. As to the illness of counsel, it appears that the case was first called on the 25th of November, and then passed because of the illness of defendant 's counsel ; that it stood over until the 12th of December, when defendant was notified by plaintiff's counsel that the cause would be called the next day, and the application for continuance was then made. Illness of counsel would certainly be a good cause for contin- uance where the court can see that a fair trial is likely to be prevented by such illness, and the party moving for a continuance has shown no unreasonable carelessness. But this suit is of the simplest character. Its trial involved no question of law, and but one of fact, to-wit : whether certain property had been sold through the agency of the plaintiffs. The evidence is in a small compass, and a few minutes' conversation between the de^fendant and counsel would have enabled any practicing lawyer to try the case as well as if he had been engaged in it from the beginning. The defendant, as appears by the record, is himself a lawyer, and must have perfectly upderstood that no preparation would be necessary to try a case of this character for any lawyer com- petent to practice at all. The motion for a continuance was properly overruled.^ SMITH V. CREASON'S EXECUTORS. 5 Dana (Ky.), 298. [1837.] Judge BwiNG delivered the opinion of the court: The only question, which we deem necessary to determine in this case, is, shall a party who has made out good grounds for a continuance, on account of the absence of witnesses, be ruled to trial upon the admission of his adversary, that his witnesses who are absent, if present, would swear to the facts which he states, he expects to prove by them ; or shall he be required to admit the fact proposed to be proven by them? 1 See also Eosecrans v. Telephone Co., 65 la. 444. 214 CONTINUANCES. [ChAP. III. The common law rule, of confronting the jurors "with the wit- nesses, in a public, oral, examination, has ever been regarded by the wisest jurist, as a most invaluable rule in the ascertainment of truth. By such an examination, a party has not only the benefit of the naked fact detailed, but also the benefit of the deportment, the manner, the physiognomy, the impression, detail, and intelli- gent reasons given by his witnesses, which are calculated to force conviction upon the triers, and greatly outweigh the same num- ber of witnesses on the other side. Of all these he would be de- prived, if compelled to go to trial upon the naked admission that his witnesses would swear to the facts which he proposes to prove by them. Such admission, if not forgotten, would make but lit- tle impression, amid a consistent and rational detail, of a simi- lar number of witnesses, deposing, orally, to facts of a counter- acting character. His right to bring his witnesses before the ju^ry, is a legal right, and which may be of essential advantage to him, especially in the establishment of controverted facts, and of which he ought not to be deprived. If therefore entitled to a continuance, in such a case, he ought not to be deprived of it by any admission short of the admission of the fact intended to be proved by his absent witnesses. "We perceive no error in the construction given by the Circuit Court to the writing sued on. Judgment affirmed. ALDEN V. CARPENTER. 7 Colorado, 87. [1883.] Stone, J. Appellee brought suit against the appellant, E. K. Alden, and one A. L. Price, upon a promissory note, of which the following is a copy : * * * Defendant Alden filed an affidavit for continuance, on the ground of the absence of a certain witness, by whom he expected to prove that said defendant Alden "authorized said Price to sign ' a note for the indebtedness to plaintiff, on the express condition that the said note should contain a provision for its renewal at the option of defendants at maturity, and that this provision ALiDEN V. CARPENTER. 215 was afterwards omitted from the note when executed by said Price, as aforesaid, without said Alden's consent." The motion for continuance was argued by counsel and taken under advise- ment by the court, and afterwards, when the court was about to announce its decision granting the continuance, the plaintiff offered to admit that the witness, if present, would swear to what was stated in the affidavit it was expected to be proved by him, whereupon, against the objection of defendant Alden, the court allowed the offer of plaintiff and denied the continuance. This ruling of the court was expected to, and is made one of the grounds of error, counsel for appellant objecting that the offer of appellee was not made in apt time. We see on error in this ruling of the court. Such offer is a privilege of the party against whom the continuance is sought, and the allowance of the offer, as made, is within the discretion of the court, and we see no good reason why such discretion may not be exercised as well after the court has decided that the evidence is material, as when the motion is first made. It certainly would be unreason- able to expect that a party would admit the assumed testimony while he was at the same time contesting the insufficiency of the grounds for continuance. It is only when he knows that the continuance will otherwise be granted that such adverse party has any reason for admitting the supposed testimony sought by the continuance. The ruling of the court below was in accord- ance with the provisions of section 158 of the Civil Code practice.^ Another point made by counsel for defendants is that the offer of plaintiff should have been to admit the truth of the supposed testimony, and not merely that the absent witness would swear to the same if present. For the same reason error is assigned to the ruling of the court in allowing plaintiff, on the trial, to introduce evidence contradicting the admitted testimony of the absent witness. There was no error in this. Admitting the testimony of an absent witness, in order to avoid a con- tinuance of the ease, is not to be taken as an admission of the truth of such testimony; nor does such admission preclude the party admitting it from rebutting the same on the trial. Boggs V. The M. N. Co. 14 Cal. 358 ; Blakeman v. Vallejo, 15 Cal. 639 ; O'Neil V. N. Y. etc. Co. 3 Nev. 141 ; State v. Geddis, 42 Iowa, 264. 1 Such a provision, as applied to Process" clause. Geary v. Ry., 138 civil cases, does not violate the "Due Mo. 251. 216 CONTINUANCES. [ChAP. III. THOMPSON V. THORNTON. 41 California, 626. [1871.] By the Court, Wallace, J. : This is an action of ejectment, and issue was joined by the filing of the answer. The cause came on for trial on November 2d, 1870. The defendants on that day were present at the court, in Stockton, where the action was to be tried, but their counsel, who resided in San Francisco, was unable to attend the court, by reason of the sickness of two members of his family — so extreme in its character that the attending physician forbade him to leave, he being of opinion "that no prudent man could think of leaving his family for any length of time in the condition they were in." On the morning of the day upon which the trial came on the defendants, for the first time, ascertained that their coimsel could not attend, and the reason why he could not, and at once, upon receiving a telegraphic dispatch from him, made applica- tion to the court to continue the cause, after making an ineffectual effort to obtain other counsel, they having no opportunity to prepare the ease for the defense. The Court refused to continue the case, even for a short time, to allow preparation for a defense by new counsel, if any could be found ; but compelled the defend- ants to proceed, in the absence of their counsel, under the cir- cumstances stated. The defendants swear that they were utterly unable to conduct the defense of the action themselves, and wholly unable to procure counsel, for the reason that no time whatever was allowed for counsel to prepare for trial. The defendants also swear that they have fully and fairly stated the facts of the case to their counsel, and that he has advised them that they have a defense upon the merits. The counsel also swears that he is, and for several years has been, acquainted with all the facts of the case ; that he has been the counsel for one of the defendants for about six years ; and that he believes that the defendants have a substantial defense upon the merits of the action, and that he has so advised them. The defendants being, under these circumstances, compelled to go to trial, judgment was rendered against them ; and they thereupon moved for a new trial, upon the ground of accident and surprise ; and their motion was supported by affidavits showing the foregoing facts in sub- stance. The affidavits were not contradicted; but the motion SOLOMON V. HOWARD. 217 was, nevertheless, denied, and the defendants brought this appeal from the order denying the motion. I think that the Court erred in denying the motion for a new trial. The affidavits show that the defendants have a meritorious defense to the action. They were not in default in the slightest degree. There was no lack of diligence on their part. They were ready for trial, and in attendance upon the Court with their witnesses. Everything that they could do of themselves, in the way of preparation, had been done ; and but for the sickness in the family of their counsel they would have been ready to pro- ceed to trial; and even when it was ascertained that he could not, for that reason, attend upon the Court, they only desired time for some other counsel to familiarize himself with the de- fense. This, at least, should have been allowed them. The order denying a new trial is reversed, and the cause re- manded; the remittitur to issue forthwith. SOLOMON V. HOWARD. 12 Common Bench, 463. [1852.] This was an action upon a bill of exchange for £295 17s., drawn by the plaintiff upon and accepted by the defendant, dated the 12th of September, 1851, and payable six months after date. The bill in question was drawn for the price of certain goods which had been sold by the plaintiff to the defendant, who was a master-mariner trading between Liverpool and Shanghae, in China, subject to the following agreement, which was written at tl)e foot of the invoice : ' ' Any of the above goods that cannot be sold at the invoice price, we (the plaintiff) guarantee to take back again. I. Solomon." The writ of summons was served upon the defendant on the 24th of March last. After three summonses for time to plead, upon the usual terms, the defendant, on the 22nd of April, pleaded nan accepit; and afterwards obtained leave to amend by paying £52 into court, and pleading a plea of partial failure of consideration as to the rest. The plaintiff [defendant?] sailed for Shanghae on the 8th of 218 CONTINUANCES. [ChAP. III. April ; and, the cause standing for trial at the sittings in London after this term, John Henderson moved for a rule to show cause why the trial should not be postponed until his return, which was ex- pected to be in the month of February next. The affidavits upon which he moved gave a detailed account of the dealings between the plaintijff and the defendant, and Stated that the defendant's evidence was essential to make out his defense, and that, beyond the amount paid into court, he had a good defense to the action upon the merits. He stated that the parties had been before Talfourd, J., at chambers, for a commission to take the examina- tion of the defendant at Shanghae, when that learned judge doubted whether an examination of a party under a commission was warranted by the late statute. (Jebvis, C. J. I do not see why we should go out of the way to defeat the act, by giving such undue weight to the words ' ' on trial. ' ' The clause speaks of "depositions." These must be taken before the trial. It is not necessary, however, to decide the point here.) This application rests upon the undoubted power of the court to postpone a trial, where it appears to be essential to the ends of justice that it should be done. (Jeevis, C. J. Your only ground for the mo- tion is that it did not suit the convenience of the defendant to wait in England till after issue joined.) He was compelled to go, or give up his command. (Jeevis, C. J. How would it have been, before the late act, if the defendant had taken his witnesses abroad with him ?) No doubt in that case he would be compelled to have recourse to a commission. Jeevis, C. J. I think there ought to be no rule in this case. The defendant has brought the difficulty upon himself, by with- drawing before issue joined. He must take the consequences. Ceesswell, J. It would be scarcely fair to the plaintiff to aUow a defendant who is under terms to go to trial at a particular time to obtain a postponement of the trial on grounds which existed and were not disclosed when those terms were entered into. Bvle refused.^ 1 See Eose v. Stuyvesant, 8 John- a defendant was kept away by sud- son, 426, holding it an abuse of dis- den sickaess in his family, cretion to refuse a continuance where COVELL V. MARKS. 219 COVELL V. MARKS. 2 Illinois, 525. [1838.] Wilson, Chief Justice, delivered the opinion of the Court : The plaintiff in this action declared upon a promissory note for four hundred dollars. Upon the calling of the cause, the plaintiff asked and obtained leave to amend his declara- tion, which he did instanter by adding to the description of the note, the words "with twelve per cent, interest from the date until paid." The defendants thereupon moved the court for a continuance of the cause, which was refused, and judgment ren- dered against the defendants. The refusal of the court to con- tinue the cause, and the rendition of the judgment are assigned for error. The rule is, that where the amendment to the declara- tion is a substantive one, it entitles the defendant to a contin- uance. The amendment in this case is clearly of this character. It made the note a different one from that at first declared on, by increasing the defendants' liability to the extent of the interest that might be due on the note. This in effect made the amended declaration a new one, which the defendants could not be called on to answer without ten days' notice preceding the commence- ment of the term of the court. The copy of the note upon the back of the declaration, was no notice to the defendants of the one declared on. They were dif- ferent not only in terms, but in their legal effect; and the one copied could not be given in evidence under the declaration. The judgment of the Court below is reversed with costs, and the cause remanded. Judgment reversed. COLHOUN v. CEAWFOBD. 50 Missouri, 458. [1872.] Bliss, Judge, delivered the opinion of the court. Suit was brought upon two promissory notes, and in the orig- inal petition the plaintiffs failed to allege their partnership and that of defendants. Defendants demurred and plaintiffs had 220 CONTINUANCES. [ChAP. III. leave to amend, which was at once done by inserting the omitted' allegations and filing the petitions anew. Defendants then ap- plied for a change of venue from the Common Pleas to the Circuit Court, and obtained leave in said court to answer, but not an- swering, interposed several motions which were overruled, and the court permitted the plaintiffs to file an amended petition instanter, containing in the body of it the interlined allegations. Defendants then moved for a continuance of the cause because of such amendments, but the court overruled the motion, and no answer being filed, gave judgment by default. The chief error assigned is the refusal of the court to grant a continuance. Some eight months had elapsed since the plain- tiffs were entitled, under the statute, to a judgment in the Com- mon Pleas. No defense upon the merits had been set up, and every step seems to have been for delay merely. In consequence of the omission of a formal allegation it had become necessary for plaintiffs to amend their petition, and the amendment was irregularly made. Taking advantage of this irregularity, after having removed the cause to another court, the action of defend- ants made it necessary for the plaintiffs to file an amended peti- tion ; but this of itself did not entitle them to a continuance. The statute (Wag. Stat. 1040, section 10) provides that "where a party shall amend any pleading or proceeding, and the court shall be satisfied by affidavits or otherwise that the opposite party could not be ready for trial in consequence thereof, a continuance may be granted to some day in the same term, or to another term of the court." Defendants do not pretend to bring themselves within this section; do not allege that they could not be ready for trial in consequence of the amendments ; do not even put the allegations in issue, and had no shadow of claim to a continuance. Not only should the court be satisfied that the party could not be ready for trial, and that his inability arises from the amend- ment, which implies that he wishes to put in issue the new facts embraced in such amendment, but it should also appear that he has a meritorious defense to the claim shown by the new matter as well as by the original pleading. Counsel rely upon a rule of the Circuit Court which provides that every material amendment after answer to the pleading amended, is cause for continuance. This rule stretches the statute, and, so far as it contradicts or goes beyond it, should not be enforced. But, even if valid, the defendants do not bring COLHOUN V. CRAWFORD. 221 themselves within it, for they have never answered. The term "answer," to make it at all consistent with the statute, must mean an answer to the merits, and such answer has never been made. ' This appeal is so clearly made to enable the defendants to get further time upon their debt, that the plaintiffs are entitled to an affirmance and to the ten per cent, damages claimed by them. The other judges concur. CHAPTER IV. CONDUCT OF THE TRIAL. Section 1. Selection of the Juey. (a) Challenges to the Array. 1. Tidd's Practice, 2 Am. Ed. 715. The first process for convening the jury is a venire facias which is a judicial writ, commanding the sheriff, or other officer to whom it is directed, to cause to come before the king at West- minster (by bill, or by original wheresoever, etc.) on a certain day therein mentioned, twelve free and lawful men of the body of the county, each of whom has ten pounds a year of lands, tenements, or rents, at the least, by whom the truth of the matter may be better known, and who are in no wise of kin either to the plaintiff or to the defendant, to make a jury of the country between the parties in the action, because as well the plaintiff as the defendant, between whom the matter in variance is, have put themselves upon that jury; and that he return the names of the jurors, etc.^ CHAM V. MATTHEW. Crake, Elizabefh, 581. [1597.] , Trespass. Upon the case, the parties pleaded to issue. The plaintiff for his expedition of trial surmised that he was servant to the Sheriff of Cornwall, where the action was brought and triable, and prayed a venire facias to the coroners ; and the de- fendant nan dedixit; whereupon process was awarded to the coroners. And after trial and verdict for the plaintiff, Glenville 1 Under this practice the jurors wards a writ of distringas issued to were not expected to appear upon enforce their attendance. Tidd's the return of the venire, and after- Practice, 718. 222 SeO. 1.] VIOAES V. LANGHAM. 223 moved that this process was mis-awarded and a mis-trial; for process ought not to be awarded to the coroners but where the challenge is principal ; and here to say, that he was servant to the sherifE is no principal challenge, as 21 Edw. 4. pi. 67. is, but only to the favor. Wherefore, etc. The Court held, forasmuch as if the sheriff had returned this panel, it had been a good cause to quash the array for favor, that the plaintiff to avoid that delay, might well show it, and have process to the coroners ; and so much the rather, this being a judicial writ, and not orig- inal, as Plow. 74. Wimbishe's case is. And the clerks said there were many precedents accordingly. Wherefore it was adjudged for the plaintiff. VICARS V. LANGHAM. Hohart, 235. [1618.] A writ of error was brought in the Exchequer Chamber, upon a judgment given in Exchequer between Vicars and Langham, and the error assigned was, that the Sheriffs of Londpn having returned a jury, and they being called, and some not appearing, the defendant ( ?) prayed a tales; and after the jury made full by tales, then the plaintiff challenged the whole panel by exception to the sheriffs ; whereupon the jury was quashed, and a new jury impaneled by the coroners ; by which the cause was tried. Now the exception was, that the paintiff having prayed a tales to the sheriffs and obtained it, was estopped to challenge the panel for exception to the sheriffs. But it was resolved that there could be no challenge neither to the panel, nor to the poll, till first there were a full jury; so- that the jury not appearing full, there was a necessity to have a tales., or else the challenge could not have been taken ; and so the cause would have remained pro defectu juratorum, if that the plaintiff had not prayed it, for the defendant would not, and so the judgment was afSrmed. And note, that in this case there were none sworn before the challenge, but only impanelled. But if the principal panel do once appear full, then the challenge must be taken to the panel before any be sworn, or else it comes too late. 224 CONDUCT OF THE TElAL. [ChAP. IV. Note that where the plaintiff sues his ven. fac. to the sheriff, he is not estopped thereby, to challenge the panel for kindred or other cause that was before the ven. fac. And though a juror may be challenged for a cause happened since he was sworn, yet the panel cannot be so ; for no ill affection of the sheriff, arising since the jury sworn, can make the jury suspected, that was im- panelled before. REX V. JOHNSON. 2 Strcmge, 1000. ),1735.] The defendants in an information m natura de quo wwrramto obtained the common rule for a special jury, which was drawn up as usual, for the sheriff to attend with the freeholders book, and that he should return the twenty-four struck by the master. The prosecutor took out the venire to the sheriff of Cheshire. And the defendant challenged the array, on account of an interest the sheriff had, as being a freeman of Chester, whose rights were to be tried. And upon arguing this challenge before the Chester Judges, viz., Mr. Verney and Mr. Jessop, they were of opinion to allow the challenge ; though it was much insisted on, that since the late act the sheriff had no influence, he being only to return the list brought him as struck ; but the right of challenging not being taken away, nor his power of marshaling the panel and putting which he pleased first, it was determined to be a good challenge, and the array was quashed.^ 1 Baylis v. Lucas, 1 Cowper, 112 : three of the jury were his own rela- "XJpon a rule to show cause why tions. The Court said, that every the writ of inquiry executed in this trial ought to be fair and indiffer- case should not be set aside, excep- ent: and, therefore, ordered the rule tion was taken that the jury were for a new trial to be made absolute, returned by the attorney for the Mr. Justice Ashhurst. — If the un- plaintiff. Mr. Justice Aston. — The der-sheriff is attorney in the cause rule must be made absolute. Upon and returns the jury, no doubt it is a motion for a new trial in a cause a good cause of challenge. Fer Cur. from the Oxford circuit in the year Let the rule be made absolute." 1756, it was objected, that Penoyer For an example of misconduct by Watkins, who was under-sheriff, was a sheriff's bailiff, see Bex v. Whit- attorney for the plaintiff, and that taker, 2 Cowper, 752. Sec. 1.] MONTGOMERY V. STATE. 225 MONTGOMERY v. STATE. 55 Florida, 97. {1908.1 "Whitfield, J. (after stating the facts). Having been con- victed of embezzlement, the plaintiff in error insists here on writ of error that the trial court erred in overruling his challenges to the array of jurors made on the ground that there was illegal discrimination in the selection and summoning of the jurors. * * # The constitutional guaranty of equal protection of the laws does not give to any person a right to a jury composed in whole or in part of his own or of any particular race ; but every person being tried in a court of justice is entitled to have a jury selected and summoned without illegal discrimination of any character. A large discretion is necessarily allowed the officers charged with the responsible duty of selecting jurors. This discretion should be carefully exercised so as tovaid in the proper administration of the law by securing the best juries possible without illegal dis- crimination against any qualified citizen of the state. Illegal discrimination in selecting persons to serve as jurors affects the validity of the panel or venire as an entirety without reference to the impartiality of individual jurors on the panel. In the eyes of the law aU persons of all races are regarded alike, and no person has any right to insist that a person of his race or color shall be on the jury by which he is tried when charged with crime, or when he is otherwise a party to an action or proceeding. But every person has a right to insist that officers of the law in selecting lists of names of persons to compose the juries in the courts shall not in such selection discriminate against any citizen subject to jury duty because of his race, color or previous con- dition of servitude, and if such officers do so discriminate they violate the constitution of the United States and the entire list of jurors so selected is vitiated and illegal. Montgomery v. State, 53 Fla. 115, 42 South Rep. 894 ; Virginia v. Rives, 100 U. S. 313, 323; State v. Brown, 119 Mo. 527, 24 S. W. Rep. 1027; 25 S. W. Rep. 200; Lewis v. State, Miss. 45 South. Rep. 360; State v. Casey, 44 La. Ann. 969, 11 South Rep. 583 ; Bullock v. State, 65 N. J. L. 557, 47 Atl. Rep. 62, S. C. 86 Am. St. Rep. 668 ; Lavtrrence v. Commonwealth, 81 V., 484 ; State v. Sloan, 97 N. C. 499, 2 S. E. Rep. 666. H. T. P.— 16 226 CONDUCT OF THE TRIAL. [ChAP. IV. On a former writ of error in this case (53 Fla. 115, 42 South. Rep. 894), it was held that an allegation that the "refusal of the sheriff to select any men of the African race to serve on the jury- is on account of their race, color and previous condition of servi- tude, " is a suiScient charge of discrimination to entitle defendant to prove it.i This is the law of the case and is applicable to both challenges now before the court. Where testimony is admitted without objection in a judicial proceeding it is treated as received by consent. When so ad- mitted the testimony, if not illegal, should be given all the probative force that its ordinary meaning and effect will afford. The testimony in support of the challenges is not full and clear ; but it was admitted without objection and no testimony was offered in rebuttal. Under these circumstances the evidence adduced by the defendant in support of his challenges to the jurors should be given all the probative force and effect that the meaning of the testimony naturally and ordinarily affords to the mind without technical requirements or limitations. There is uncontroverted testimony that the people of one race and color are numerically in the majority in Duval county where the trial was had, and that about two-thirds of the men of that race are of fair character, sound judgment and intelligence, and fully qualified for jury duty; but that in the list of several hundred names drawn for duty, not more than half a dozen, if any, names of men of that race are found; and also that colored men were drawn on the juries when N. B. Broward was sheriff, but it has been a long time since men of that race have served on the jury in court. A portion of this testimony may be merely opinions or conclusions, but it was admitted without objection and was not impeached or contradicted in any way. If testimony that is not strictly admissible as distinguished from being illegal is admitted without objection, and it is not controverted in any way, the courts are not required to give such testLmomy a narrow or restrictive probative force and effect. While the presumption is that the officers have legally dis- charged their duty in selecting and summoning the jurors under statutes that do not authorize any illegal discrimination, yet this is but a presumption that may be overcome by evidence to the 1 Til* motion to quash, though the facts therein charged. Martin v. verified, is not sufScient evidence of Texas, 200 IT. S. 316. Sec. 1.] CLINTON v. bnglebrecht. 227 contrary. There is uncontroverted testimony that the people of one race and color are largely in the majority of the population in the county where the court was held ; that about two-thirds of the men of that race are fuUy qualified for jury duty; that a list of several hundred names of men selected for jury duty for the year does not contain the names of a half dozen, if any, men of that race; that men of that race have served on the jury in the past in the county; and that the people of that race are en- gaged in pursuits that should improve their intellectual and moral condition. As there has been no change ir^ the law that would exclude men of any race from jury duty, this evidence tended to show a discrimination on account of race or color ; and such uncontroverted evidence is at least suflScient to require some proof that, notwithstanding the facts in evidence, there was no discrimination on account of race or color against any person of any race in the selection and summoning of the jurors. See Hubbard v. State, 43 Tex. Grim. Rep. 564, 67 S. W. Rep. 413 ; Whitney v. State, 43 Tex. Grim. Rep. 197, 63 S. W. Rep. 879 ; Eastling v. State, 69 Ark. 189, 62 S. W. Rep. 584 ; State v. Mur- ray, 47 La. Ann. 1424, 17 South. Rep. 832 ; Haggard v. Gommon- wealth, 78 Ky. 366 ; Lewis v. State, Miss. 45 South Rep. 360. As there was uncontroverted evidence tending to show dis- crimination against persons on account of race or color in the selection of jurors whose names were on the panels, sufficient to overcome the presumption in favor of the legality of the acts of the officers, the challenges interposed should have been sustained. See Smith v. State, 42 Tex. Gr. Rep. 220, 58 S. W. Rep. 97; Kipper v. State, 42 Tex. Gr. Rep. 613, 62 S. W. Rep. 420; Whit- ney V. State, 42 Tex. Gr. Rep. 283, 59 S. W. Rep. 895. The judgment is reversed and the cause is remanded for further proceedings according to law. CLINTON v. ENGLEBRBGHT. 13 Wallace (U. S.), 434. [1871.] Error to the Supreme Gourt of the Territory of Utah. The principal question for consideration in this case was raised by the challenge of the defendants to the array of the 228 CONDUCT OF THE TEIAL. [ChAP. IV. jury in the Third District Court of the Territory of Utah. * # # The act of the Territorial legislature, passed in 1859, and in force when the jury in this cause was summoned, required that "the county court" in each county should make out from the assessment rolls, a list of fifty men qualified to serve as jurors; and that thirty days before the session of the District Court, "the clerk of said court" should issue a writ to the Territorial marshal or any of his deputies, requiring him to summon twenty- four eligible men to serve as petit jurors. These men were to be taken by lot, in the mode pointed out by the statute, from the lists previously made by the clerks of the county courts, and their names were to be returned by the marshal to the clerk of the District Court. Provision was further made for the draw- ing of the trial panel from this final list, and for its commple- tion by a new drawing or summons in case of non-attendance or excuse from service upon challenge, or for other reason. For the trial of the cause the record showed that the court originally directed a venire to be issued in conformity with this law, and that a venire was issued accordingly, but not served or returned. The record also showed that under an order sub- sequently made, an open venire was issued to the Federal mar- shal, which was served and returned with a panel of eighteen petit jurors annexed; the court, in making this order, acting apparently on the theory that it was a court of the United States, and to be governed in the selection of jurors by the acts of Con- gress. The jurora thus summoned were summoned from the body of the county, at the discretion of the marshal. Twelve jurors of this panel were placed in the jury-box, and the defend- ants challenged the array on the ground that the jurors had not been selected or summoned in conformity with the laws of the Territory and with the original order of the court. This chal- lenge was overruled. Exception was taken, and the cause pro- ceeded. Both parties challenged for cause. Each of the defend- ants claimed six peremptory challenges. * * * The Chief Justice delivered the opinion of the court. It is plain that the jury was not selected or summoned in pur- suance of the statute of the Territory. That statute was, on the contrary, wholly and purposely disregarded, and the control- ling question raised by the challenge to the array is, whether the law of the Territorial legislature, prescribing the mode of Sec. 1.] CLINTON v. englebrecht. 229 obtaining panels of grand and petit jurors, is obligatory upon the District Courts of the Territory. It was insisted in argument that the challenge to the array was waived by the defendants through the exercise of their right to challenge peremptorily and for cause; and we were referred to the judgment of the Supreme Court of New York, in the case of The People v. McKay (18 Johnson, 217) as an authority for this proposition. But that case appears to be an authority for the opposite conclusion. "We are not of opin- ion," says the court, "that the prisoner's peremptory challenge of jurors was a waiver of his right to object now to the want of a venire." In that case there had been no venire, but the jury had been summoned in a mode not warranted by law. In the case before us there was a venire, but if it was not author- ized by law it was a nuUity; and we are not prepared to say that the efforts of the defendants to secure as far as they could, by peremptory challenges and challenges for cause, a fair trial of their case, waived an inherent and fatal objection to the entire panel. "We are, therefore, obliged to consider the question whether the District Court, in the selection and summoning of jurors, was bound to conform to the law of the Territory. * * * The process for summoning jurors to attend in such cases may be a process for exercising the jurisdiction of the Territorial courts when acting, in such cases, as Circuit and District Courts of the United States; but the making up of the lists and all matters connected with the designation of jurors are subject to the regulation of Territorial law. And this is especially true in eases arising, not under any act of Congress, but exclusively, like the case in the record, under the laws of the Territory. There is nothing in this opinion inconsistent with the cases of Orchard v. Hughes (1 Wallace, 73), or of Hunt v. Palao (4 Howard, 589), properly understood. The first of these cases went upon the ground that the chancery jurisdiction conferred upon the courts of the Territories by the organic act was be- yond the reach of Territorial legislation; and the second, in which the Territorial Court of Appeals was called a court of the United States, was only intended to distinguish it from a State court. Upon the whole, we are of opinion that the jury in this case was not selected and summoned in conformity with law, and 230 CONDUCT OF THE TEIAL. [ChAP. IV. that the challenge to the array should have been allowed. ^ This opinion makes it unnecessary to consider the other ques- tions in the ease. Judgment reversed. EHODES V. SOUTHERN EY. CO. 68 South Carolina, 494. [1903.] Mr. Justice Gaby. * * * The second exception is as follows: "Because it is respect- fully submitted, that his Honor erred in refusing to quash the panel of jurors upon the following grounds: (a) That the jury list of 'qualified electors' was not prepared by the county auditor, the county treasurer, and the clerk of the Court of Common Pleas, in Barnwell County, where said case was tried, as is re- quired by law, but by the board of county commissioners and the clerk of the board of county commissioners, and that sub- sequent adoption and ratification of the acts of the said board of county commissioners and clerk, by the said county auditor, county treasurer, and clerk of the pourt of Common Pleas, did not cure such illegal preparation of said list, (b) That the jury list required by law to be deposited with the ballots in the jury box, was not so deposited, but was found outside of the said box unenclosed, in the office of the clerk of said Court, (c) That what purported to be said jury list, when found, did not consist of one list but of two jury lists, (d) That the said jury lists were made out from the list of taxpayers and not from the qualified electors, as required by law." "We will first consider subdivision "a." The plaintiff intro- duced in evidence the affidavit of the county auditor, county treasurer and clerk of the Court, in which they stated. "That each of said commissioners being exceedingly busy with the manifold duties in their respective offices, at their own expense, employed R. C. Roberts, Jr., the clerk of the county supervisor, to make a list of the qualified electors of said county, under the 1 And so in Lincoln v. Stowell, 73 not be made after challenge for 111. 246. cause. But a challenge to the array can Sec. 1.] BHODEs v. southern ry. co. 231 provisions of the Constitution, between the ages of twenty-one and sixty-five years, and of good moral character, and to fur- nish to the said commissioners for their action the said list, which was duly done by the said clerk. That upon the said names being furnished to the said commissioners by the said clerk, the said commissioners inspected the same and passed upon the qualifications of the persons whose names appear upon the said list; and the said board, upon the said investigation, judicially found that the said names included not less than one from every three of such qualified electors, under the provisions of said Constitution, and as far as their judgment advised, such parties are of good moral character and between the ages of twenty-one and sixty-five years, and living within the said county of Barnwell; and that the same, in the judgment of the said deponents, are all otherwise well qualified to serve as jurors, being persons, in their opinion, of sound judgment and free from all legal exceptions. That throughout the whole trans- action the said R. C. Roberts, Jr., exercised none of the func- tions of this board; but only acted in pursuance of his employ- ment as a clerk in the preparation of the lists of said qualified electors, and in no manner jiesired, nor did he usurp, any of the prerogatives of the said board, or relieve the said board of any of their liabilities or responsibilities to the public, under the law with reference to the drawing of said jurors. That the said board itself judicially passed upon the qualifications, as aforesaid, of each of the said electors, and their names were only placed in the jury box after their said fitness had been so determined. That upon the list of jurors so selected being accepted by the said board, they caused the names of the electors so accepted to be written, each on a separate paper or ballot, so as to resemble each other as much as possible, and so folded that the names written thereon, in their judgment, were not visi- ble on the outside, and placed them with the said list in the regular jury box. * * * And in aU other particulars the said juiy box has been kept securely locked with three separate and strong locks with keys, etc., as required by law; and that at the same time the said deponents placed in a special apart- ment in the said jury box, known as the ' ' Tales ' ' box, the names of not less than one hundred nor more than four hundred of such persons whose names appeared on the said lists as reside within 232 CONDUCT OF THE TRIAL. [ChAP. IV. five miles of the court house, and the names of such persons were likewise placed in the said jury box." The fact that the clerk of the board of county commissioners prepared a list of the electors from the tax books, which was canvassed and revised by the proper officers, was a mere irregu- larity, and, therefore, an insufficient ground for quashing the array of jurors. In the case of State v. Massey, 2 Hill, 379, the defendant appealed upon the ground that the jury list had not been made from the tax returns according to the act of 1799. After citing the provisions of the act, the Court used this lan- guage : ' ' This is purely directory to public officers in the dis- charge of their duty; if they fail to discharge it, and the jury is drawn from the old list, it does not vitiate the array, nor is it any objection to the polls. The jurors are still ioni et legates homines. 2 Hawk P. C, book 2, Chap. 3, § 14. The party is not prejudiced if the jury for his trial are from the vicinage, the district where the offense is committed, and have all the other legal qualifications. It will be observed that the act does not declare a venire issued for jurors drawn from the old list to be void; nor does it direct the array to be quashed. It was not intended to secure any right, benefit or privilege to the defend- ant; it was merely to regulate the drawing of the jury in such a way as to divide the duty of serving upon the jury among the inhabitants of a district." In Thompson & Merriam on Juries, sectional page 134, it is said : ' ' Statutes which prescribe the time and manner of select- ing the general list as described, are generally treated as direc- tory. The primary object which they have in view is the just apportionment of jury duty among the citizens of the county or other jurisdiction, rather than the preservation of the rights of litigants. If the names of persons not qualified for this duty get inadvertently into this list, and if such names are drawn as members of the panel for a particular term, persons having litigation at that term have a complete remedy by challenging for cause any member of the panel of being disqualified or par- tial. The general rule, therefore, is that irregularities in the general list constitute no ground for challenging the array. Thus, if the officers charged with such duty fail to make the list as required by law, and the jury in default of such list is drawn from the old lists, this does not vitiate the array nor is it a cause Sec. 1.] MC GANN V. HAMILTON. 233 of challenge to the polls. If the jurors are qualified individ- ually, the parties to suit are not prejudiced. " ^ Subdivision "b" will next be considered. In refusing the motion, the presiding judge said: "As to that list not being in the box, it appears from the facts of the case that it was left in the clerk's office; the clerk of the Court and perhaps the other member of the board thought it was in the box, it was intro- duced in open Court and appears to be regular." This was only another irregularity, and is disposed of by what was said in ^considering subdivision " a. " The same may be said of subdivision "c." Subdivision "d" is disposed of by the fact that the presid- ing Judge found as a fact that the lists were made out from the qualified electors. McGANN V. HAMILTON. 58 Connecticut, 69. [1889.] Carpenter, J. This case was tried to a jury in the City Court of New Haven. The defendant's attorney challenged the array of jurors on the following grounds. * * * "Second, because the names of the jurors drawn were not put into the box to be drawn, on paper rolled up, but were on straight, unfolded slips of paper, which were not rolled up, but lay flat in the box." The court disallowed the challenge. * * * In respect to the second cause. The charter requires that the clerks of the City Court "shaU write each juror's name thus chosen, fairly on a separate piece of paper, and roll up and put the same into a box, which he shall provide and keep for that purpose; and whenever the sheriff of said city, or the officer acting in his stead, shall receive a warrant from the clerk of said court to summon a jury, he shall, in the presence of the judge or assistant judge and clerk of said court, take out of said box as many papers as his warrant directs." 1 Compare Ey. v. Schwab, 127 Ky. a third person to write the names 82, where the panel was qua«hed be- and place them in the wheel, cause the commissioners permitted 234 COiroUOT OF THE TEIAL. [ChAP. IV. The most that the court found on this point is what the clerk testified to, namely, "that when he had written the names of the jurors on separate pieces or slips of paper, he rolled about and shuffled the slips containing the names, before he put the same into the jury box, so that the order of drawing out the names from the jury box could not be foreknown." The object of the charter was to make it impossible for the officer drawing the jurymen to exercise any partiality or dis- cretion even. Had the directions of the charter been strictly followed it would have been impossible to have seen the names before drawing them, and the officer serving a jury warrant could not have exercised any choice or discretion by drawing names which he desired to draw, if any, or by omitting to draw names which he preferred not to draw, if any. As it was, the names of some of the jurors might have been on the upper side of the paper, and might have been seen ; the names of others might have been on the under side and not seen. It was possi- ble for him to see some of the names, and if for any reason he wished to draw them or omit drawing them, he could have done so. The presence of the judge and clerk could not prevent that ; but, if the paper had been rolled up as directed, he could have had no choice, and the presence of the judge and clerk would have prevented or detected his drawing any more pieces of paper than his precept required, and thus fraud or partiality would have been impossible. The statute in precise terms told the clerk what to do. It did not permit him to exercise any discretion. He was not at liberty to substitute for the action required some other action which he might consider as good or better. Obedience was his first and only duty. Disobedience made it possible for the officer easily to defeat the object of the statute. The statute having directed the way in which the thing should be done, all the other ways were impliedly prohibited. We are constrained to hold, therefore, that the court erred in overruling the second cause of challenge.^ 1 See also Ins. Co. v. Adams, 110 because the jury wheel was not kept Pa. St. 553, where panel was quashed locked as directed by the statute. Sec. 1.] SELECTION OF THE JURY. 235 (b) Challenges to the Polls. (1) For Cause. Tidd's Practice. 2 Am. Ed. 780. ChaJlenges to tke polls, in capita, are exceptions to particular jurors; and according to Sir Edward Coke, they are of four kinds; first, propter honoris respectum, as if a lord of parlia- ment be impaneled on a jury, in which case he may challenge himself, or be challenged by either party. Secondly, propter defectwm., as if a juryman be an alien born, or a slave or bond- man; so if he be not resident in the county, or have not the necessary qualification of estate. All incapable persons, as in- fants, idiots, and persons of non-sane memory, are likewise ex- cluded upon this ground. Thirdly, propter affectum, as that a juror is of kin to either party, within the ninth degree ; that he has been arbitrator, or declared his opinion on either side ; that he has an interest in the cause; that there is an action depend- ing between him and the party; that he has taken money for his verdict, or even eat and drank at either party's expense; that he has formerly been a juror in the same cause ; that he is the party's master, servant, tenant, counsellor, steward, or attor- ney, or of the same society or corporation with him. All these are principal causes of challenge : Besides which, there are chal- lenges to the favour, where the party objects only on account of some probable grounds of suspicion, as acquaintance, and the like; the validity of which must be left to the determination of triers,! who, in case the first man called be challenged, are two 1 Per Curiam in O 'Fallen Coal Co. for error. The practice here insisted V. Laquet, 198 lU. 125. * » * upon is very unusual, to say the Upon the empaneling of the jury, least. Under our practice the com- coimsel for defendant challenged one petency of a juror, whether raised of the jurors "to the favor," and by principal challenge or challenge demanded triers, as at common law, to the favor as at common law, is to test his fitness. The Court dis- triable by the Court without the regarded the demand and proceeded intervention of triers, and the rul- to question the juror as to his com- ing of the trial court as to the com- petency. At the conclusion of that petency of a juror is reviewable upon examination counsel again demanded appeal of writ of error. We can see triers, but the request was again de- no good reason for departing from nied and the juror held competent. that practice. The common law This ruling of the Court is assigned method of trying challenges would 236 CONDUCT OP THE TEIAL. [ChAP. IV. indifferent persons named by the court; and if they try one man and find him indifferent, he shall be sworn; and then he and the two triers shall try the next; and when another is found indifferent and sworn, the two triers shall be superseded, and the two first sworn on the jury shall try the rest. Fourthly, a juror may be challenged propter delictum, as for a conviction of treason, felony, perjury, or conspiracy; or if, for some infa- mous offense, he has received judgment of the pillory, tumbrel, or the like, or to be branded, whipped or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, praemunire, or forgery. MYLOCK V. SALADINB. 1 Wm. Blackstone, 480. [1764.] This was an action of trespass for false imprisonment in which the first verdict was set aside, as excessive. A rule was then obtained for a change of venue on affidavit showing preju- dice against the defendant and a popular subscription to aid the plaintiff. 1 Lord Mansfield, C. J. I have no doubt of the propriety of changing the venue, where an indifferent trial cannot be had, nor of the power of this Court to change it, when such a case appears. A juror should be as white paper, and know neither plaintiff nor defendant, but judge of the issue merely as an abstract proposition upon the evidence produced before him. He should be superior even to a suspicion of partiality. Upon the motion for a new trial, we were all clear from the Recorder's report, which was as sensible and good a one as ever w£is made be cumbersome and attended with and the appointment of triers by unnecessary delay in the trial of the Court is almost universally obso- causes, without any beneficial re- lete. If the court committed an suits. It is said in the American error in holding competent the juror and English Encyclopedia of Law objected to, notwithstanding the (vol. 12, p. 357) : Even where, as challenge by the defendant, it had in New York, there is still a dis- the right to have that ruling eor- tinction between principal challenges rected upon a proper assignment of and challenges to the favor, the error. Court is generally the trier of both, i Statement has been condensed. Sec. 1.] o'coNNOE v. gillaspt. 237 to this Court, tliat the verdict was against the weight of evi- dence, and that there had been a popular run against the de- fendant. If the prejudice be general, though not universal, it is sufficient to warrant this rule. It is impossible for the defend- ant to come at particular facts, so as to form a case for a legal challenge. Here is no universal accusation of the citizens of Chester; only a well-grounded apprehension of danger arising from the general prejudice. The subscription indeed is denied in terms, but elusively. It is not denied that contributions were made; perhaps without any formal subscription. The opposition made to this motion, and the struggle against it, are sufficient to show that the plaintiff thinks he shall have an un- due advantage. Otherwise there is not an iota difference, whether he tries it in the city or the county. The town is the same, the time the same, the expense exactly the same. Rule made absolute. O'CONNOR v. GILLASPY. 170 Indiana, 428. [1907.] Action by an employee for personal injuries. Montgomery, J. * * * Parties litigant in cases of this class are entitled to a trial by a thoroughly impartial jury, and have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show their impartiality and disinterestedness. In the exercise of this right counsel must be allowed some latitude, to be regulated in the sound discretion of the trial court, according, to the nature and attendant circum- ' stances of each particular case. The examination of jurors on their voir dire is not only for the purpose of exposing grounds of challenge for cause, if any exist, but also to elicit such facts as will enable counsel to exercise their right of peremptory chal- lenge intelligently. Questions addressed to this end are not barred though directed to matters not in issue, provided they are pertinent, and made in good faith. It does not appear from the record that an acci- dent or indemnity insurance company was in any manner inter- ested in this action, but the laws of this State authorize the in- 238 CONDUCT OP THE TRIAL. [ChAP. IV. corporation of companies for indemnifying employers against liability for accidental injuries to employes, and it is a matter of common knowledge that numerous companies are engaged in such insurance in this State. Although the pertinency or rele- vancy of the inquiry does not affirmatively appear from the record, the circumstances mentioned forbid the assumption that counsel acted in bad faith and without some knowledge or in- formation inducing a belief that such insurance company was interested in the result of the trial. We accordingly hold that the judge did not abuse his discretion or commit error in per- mitting appellee's counsel over objection to ask each juror upon his voir dire whether he or any member of his family was in anywise interested as stockholder, officer or agent of the Aetna Insurance Company, or of any insurance company engaged in the business of insuring against accidents. Brusseau v. Lower Brick Co. (1907), 133 Iowa 245, 110 N. W. 577; Foley v. Cud- ahy Packing Co. (1903), 119 Iowa 246, 93 N. W. 284; Viou v. Brooks-Scanlon Lumber Co. (1906), 99 Minn. 97, 108 N. W. 891 ; Antletz V. Smith (1906), 97 Minn. 217, 106 N. W. 517; Spoo- nick V. Backis-Brooks- Co. (1903), 89 Minn. 254, 94 N. W. 1079; Howard v. Beldenville Lumber Co. (1906), 129 Wis. 98, 108 N. W. 48; Faber v. C. Reiss Coal Co. (1905), 124 Wis. 554, 102 N. W. 1049; Cripple Creek Mining Co. v. Brabant (1906), 37 Colo. 423, 87 Pac. 794; Vindicator, etc.. Mining Co. v. First- brook (1906), 36 Colo. 498, 86 Pac. 313; Swift & Co. v. Platte (1903), 68 Kan. 1, 72 Pac. 271, 74 Pac. 635; Dow Wire Works Co. V. Morgan (1906), (Ky.), 96 S. W. 530; Blair v. McCor- mack Const. Co. (1907), 107 N. Y. Supp. 750.i 1 Accord. Gatzow v. Buenving, sence of any statement tending to 106 Wis. 1 ; Comm. v. Thresker, 11 show that there was some special rea- Gray, 55. But an unreasonable and son or ground for putting that ques- suggestive examination should not tion to particular jurors called into be permitted. Howard v. Lumber the jury box for examination, it Co., 129 Wis. 98. cannot be said that the Court erred Harlan, J., in Connors v. TJ. S., in disallowing it. If the previous 158 17. S. 408: "Particular stress examination of a juror on his voir is laid upon the refusal of the Court dire or the statement of counsel, or to aUow the question to jurors, any facts brought to the attention of 'Would your political affiliations or the Court had indicated that the party predilections tend to bias your juror might, or possibly would, be judgment in this case either for or influenced in giving a verdict by his against this defendant?' In the ab- political surroundings, we would not Sec. l.J BUET V. panjaud. 239 BURT V. PANJAUD. 99 U. S. 180. [1878.] Ejectment. Begun in the State Court in Florida and removed to the Circuit Court of the United States.^ Mr. Justice Millee delivered the opinion of the Court. A bill of exceptions presents the errors we are called upon to examine. It appears that, before the jury was sworn to try the case, one of the panel, Henry Holmes, was sworn on his voir dire, and was asked whether or not he had aided or abetted the late rebel- lion against the United States, when he was told by the presid- ing judge that it was optional with him whether he would answer the question or not ; and said Holmes declined to answer. The defendant excepted to this ruling, and then moved that Holmes be excluded for cause, which the court overruled, and defendant excepted again. It appears affirmatively that Holmes was not sworn as one of the jury, and no reason is given for it. 1. We are of opinion that, since Holmes did not sit on the jury, no harm was done to defendant. The object of both motions was to exclude him as one incompetent to sit. It is immaterial to the defendant how this was brought about. It is possible that if defendant had shown affirmatively that he was excluded by reason of his peremptory challenge, and that in doing so the exercise of his right of peremptory challenge had been abridged, the result might be otherwise. It is sufficient to say that the record does not show that he was on the jury, but in fact that be was not, or that in getting rid of him any right of defendant was abridged or lost. 2. But we are further of opinion that a juror is no more than a witness obliged to disclose on oath his guilt of any crime, or say that the Court could not prop- statement showing the necessity for erly, in its discretion, if it had re- propounding it — as an idle one that garded the circumstances as exeep- had no material bearing upon the tiona.1, have permitted the inquiry inquiry as to the qualifications of the whether the juror 's political afSlia- juror, and as designed only to create tions or party predilections would the impression that the interests of Was his judgment as a juror. But the political party to which the ac- no such excoptional circumstances ouaed belonged were involved in the are diedoeed ^ the recotrd, and the trial." Court might well have deemed the i Statement has been condensed, question — ^unaccompanied by any 240 CONBUCT OF THE TRIAL. [ChAP. IV. of any act which would disgrace him, in order to test his qualifi- cation as a juror.2 The question asked him, if answered in the affirmative, would have admitted his guilt of the crime of treason. Whether pardoned by a general amnesty or not pardoned, we think the crime was one which he could not he required to dis- close in this manner. Nor would this ruling deprive the party of his right of challenge. Like a conviction for felony, or any other disqualifying circumstance, the challenger was at liberty to prove it by any other competent testimony. He did not offer to do this, and as the juror's incompetency was not proved, the court was not bound to exclude him. DUNBAE V. PARKS. 2 Tyler's Bep. (Vt.) 217. [1802.] The plaintiff brought trover for a horse. On the trial of the issue to the jury, after the examination of all the witnesses on the stand, and before argument, Mr. Sias, one of the jurors, observed to the Court that he knew some matters which had relation to the cause; and requested information whether it would be improper for him to communicate his knowledge to his brethren of the panel after they were charged, and should retire to the jury-room. Curia. As the juror had a doubt in his mind relative to his conduct, it is highly commendable in him to apply to the Court for advice. Let the witness's oath be administered to him.^ He was accordingly sworn, and testified, standing in the jury- box, to a material fact. Upon his cross-examination, John Mattocks, counsel for the plaintiff, put a question to the witness, the answer to which would indicate for which party as a juror he would eventually decide. Sed per Curiam. This must not be suffered. Examine the witness solely as to facts, and such as came to his knowledge before he was sworn as a juror. 2 On this ground it was formerly ant was guilty. Hex v. Edmonds, 4 thought improper in a criminal case B. & Aid. 471. to ask a juror whether he had ex- i See also, Wright v. Crump, 7 pressed an opinion that the defend- Mod. 1, post, p. 318n. Sec. 1.] STATE V. stentz. 241 STATE V. STENTZ. 30 WaShmgion, 134. [1902.] White, J. The information in this case was filed by the prosecuting attorney of Spokane county on November 5, 1901, charging the appellant with the crime of manslaughter. * * * On the information, the name of E. M. Sperry, among others, was indorsed as a witness for the state. While impaneling the jury in the cause, said R. M. Sperry was drawn as a juror, and, upon being questioned as to his competency, testified in sub- stance that he knew the defendant by sight, and that he had no opinion as to the defendant's guilt or innocence. This question was then asked him by the prosecuting attorney: "I ask you to state whether or not from any cause, whether I have mentioned it or not, you would be hindered or impeded in giving a fair-and impartial trial to the defendant." He answered: "The only cause is that I am liable to be a witness in the case. For that reason, I guess I would not be eligible to sit on the jury." He further testified that that fact would not prejudice or bias him for or against the defendant, and that he felt satisfied he could give the defendant a fair and impartial trial. On cross-examina- tion, he said he had not been subpoenaed as a witness, but he "distrusted that there was a subpoena issued for him which had not yet been served"; that "some of the prosecuting attor- neys had talked with him with reference to something in the case." The following appears from the record: "Mr. Nuzum (for the defendant) : I submit, your Honor, that this juror's name appears as a witness in this information — indorsed on the information, and although the subpoena has not been served on him, his name appears here as one of the wit- nesses for the state, and we submit a challenge for cause. * * * "Mr. Sullivan: I think when the prosecutor says if he is called on the jury he will not call him as a witness, I think that ought to disqualify the juror; they have talked to him, we haven't. ' ' The Court : The challenge is denied. "Defendant excepts. Exception allowed." * * * [The defendant used his last peremptory challenge to this H. T. p.— 16 242 CONDUCT OF THE TRIAL. [ ChAP. IV. juror. In the trial Sperry was called as a witness and gave ma- terial testimony.] ^ A witness called upon to testify to such facts might not be incompetent as a juror, but a witness who knows about the con- troverted facts in the case — the res gesta, as we might say — such a reckless driving of the accused on the public highway imme- diately preceding the commission of the offense, a short distance from where the offense was committed, it seems to us knew ma- terial, controverted facts that would of necessity bias and influ- ence his judgment as a juror. To permit such a person to sit upon the jury was to deprive the accused of a trial by an im- partial jury. It is true that we have a statute that declares: "A juror may be examined by either party as a witness, if he be otherwise competent. If he be not so examined, he shall not communicate any private knowledge or information that he may have of the matter in controversy to his fellow jurors, nor be governed by the same in giving his verdict." Section 5001, Bal. Code. This section must be construed in connection with the con- stitutional guaranty to an accused person of an impartial trial, and the statutes relative to challenging jurors. The law, by simply declaring that a juror shall not be governed by any knowl- edge that he may have of the facts, does not obviate the bias that may really exist in the mind of the juror. A juror may be challenged for actual bias. Section 4988, Bal. Code. Actual bias is defined as "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he (the juror) cannot try the issue impartially and without preju- dice to the substantial rights of the party challenging. ' ' Section 4983, Bal. Code. Can it be said that, if the court had known of the knowledge of this juror of the controverted facts in the case, it would have allowed him to act as a juror ? We think not. If the court had known the facts as to the knowledge of the juror, and had not sustained a challenge for actual bias, we think it would have been an abuse of sound discretion. * * * It is a violation of the defendant's constitutional rights to deny his challenge to a juror who has formed, from newspaper ac- counts, an opinion as to the defendant's guilt, where it would 1 Inserted by the Editor. Sec. 1.] REYNOLDS V. UNITED STATES. 243 take strong evidence to change such opinion, even though the juror says he could lay aside his opinion, and try the case wholly upon the evidence, as if he had heard nothing about it. State v. Murphy, 9 Wash. 204 (37 Pac. 420). It needs no argument to show that it would require strong evidence to remove from the juror Sperry's mind the fact that the accused was driving reck- lessly along the highway just preeediug the commission of the offense, and that this was an important fact as to his guilt. The juror Sperry seemed to realize this fact himself, judging from his answers. If all the jurors who tried the cause had been per- sonally cognizant of the same facts, as the juror Sperry, convic- tion would inevitably have followed, and, as was said in the case of State V. Murphy, supra, ' ' the trial would have been little less than a farce, and our boasted constitutional privilege of a trial by an impartial jury would be a privilege existing more in theory than practice." The discretion of the trial court to determine partially or impartially in a jury is subject to review by the Appellate Court under the constitutional guaranty to the accused of a trial by an impartial jury. State v. Kutten, 13 Wash. 203 (43 Pac. 30). 2 A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his pei-emptory challenges before the final selection of the jury. In as much as the appellant was compelled to get rid of the juror Sperry by a peremptory challenge, the accused was deprived of one per- emptory challenge to which he was by law entitled. For that reason the judgment of the court is reversed and the cause re- manded for a new trial. REYNOLDS v. UNITED STATES. 98 U. S. 145. [1878.] Mr. Chief Justice Waits delivered the opinion of the court. * * * 2. As to the challenges by the accused. 2 In the omitted parts of the opin- 111 Ala. 11; State v. Barber, 113 ion the Court reviewed Common- N. C. 711; White v. State, 73 Miss. wealth V. Joliffe, 7 Watts 585 ; Har- 50 ; Fellows Case, 5 Greenl. 333 ; din V. State, 66 Ark. 53 ; Atkins v. State v. Martin, 28 Mo. 530. State, 60 Ala. 45; Baldwin v. State, 244 CONDUCT OF THE TRIAL. [ChAP. IV. By the Constitution of the United States (Amend. VI.) the accused was entitled to a trial by an impartial jury. A juror, to be impartial, must, to use the language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt. 155 b. Lord Coke also says that a principal cause of challenge is "so called because, if it be found true, it standeth sufficient of itself, without leav- ing anything to the conscience or discretion of triers" (id. 156b) ; or, as stated in Bacon's Abridgement, "it is grounded on such a manifest presumption of partiality that, if found to be true, it unquestionably sets aside the * * * juror." Bac. Abr., tit. Juries, B. 1. "If the truth of the matter alleged is admitted, the law pronounces the judgment; but if denied, it must be made out by proof to the satisfaction of the court or the triers." Id. E. 12. To make out the existence of the fact, the juror who is challenged may be examined on his voir dire, and asked any questions that do not tend to his infamy or disgrace. All of the challenges by the accused were for principal cause. It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill-will ; but all unite in holding that it must be founded on some evidence and be more than a mere impression. Some say it must be positive (Gabbet, Criminal Law, 391) ; others, that it must be decided and substantial (Armi- stead's Case, 11 Leigh (Va.), 659; Wormley's Case, 10 Gratt. (Va.) 658; Neely v. The People, 13 111. 685) ; others, fixed (State V. Benton, 2 Dev. & B. (N. C.) L. 196) ; and, still others, deliber- ate and settled ( Staup v. Commonwealth, 74 Pa. St. 458 ; Curley V. Commonwealth, 84 Id. 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to neces- sarily set the juror aside. Mr. Chief Justice Marshall., in Burr's Trial (1 Burr's Trial, 416), states the rule to be that "light impressions, which may fairly be presumed to yield to the testi- mony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient ob- jection to a juror; but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." The theory of the law is that a juror who has formed an opinion can- Sec. 1.] REYNOLDS V. UNITED STATES. 245 not be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every ease of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court wiU practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that char- acter, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed im- partial. The case must be one in which it is manifest the law left nothing to the "conscience or discretion" of the court. The challenge in this case most relied upon in the argument here is that of Charles Eead. He was sworn on his voir dire; and his evidence, taken as a whole, shows that he "believed" he had formed an opinion which he had never expressed, but which he did not think would influence his verdict on hearing the testi- mony. ^ "We cannot think this is such a manifestation of par- 1 The examination of the juror A. "I have. ' ' Eead was as follows: Q- "Is that based upon evi- Q. "Have you formed or exr dence?" pressed any opinion as to the guilt A. "Nothing produced in or innocence of this charge?" court." A. "I believe I have formed an Q. "Would that opinion influ- opinion." ence your verdict?" By the Court : ' ' Have you formed - A. "I don 't think it would. ' ' and expressed an opinion?" By Defendant: "I understood A. "No, sir; I believe not." you to say that you had formed an Q. "You say you have formed opinion, but not expressed it." an opinion?" A. "I don't know that I have 246 CONDUCT OP THE TRIAL. [ChAP. IV. tiality as to leave nothing to the "conscience or discretion" of the triers. The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse them- selves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is often times more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so. Such a case, in our opinion, was not made out upon the challenge of Read. The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been ex- pressed. Under these circumstances, it is unnecessary to consider the case of Ransohoff, for it was confessedly not as strong as that of Read. IRVINE v. KEAN. 14 Sergeant & Bawle, 292. [1826.] Per Cwiami. There is but one exception in this case which appears to the court to be of any weight. The admission of Jacob Cramer as a witness was right, and the charge of the expressed an opinion; I have formed A. "I do." one. ' ' Q. "Do you now entertain that opinion?" Sec. 1.] IRVINE V. kean. 247 President of the Court of Common Pleas, to the jury was correct. But the plaintiffs challenged Francis McBwen, a juror, who being called objected himself to being sworn, "because he had heard all the evidence at the former trial, and had made up and expressed his opinion on the facts then given in evidence, but said that his mind was always open to conviction, on another state of facts. " The court overruled the challenge. This juror, if he had been on the former jury, would have been liable to a challenge, yet, in that case, his mind might have been open to conviction, if different evidence had been given on the second trial. But the law presumes that a man who has once made up his mind, especially if he has delivered it to others, wiU not be perfectly impartial. The presumption is a safe one, and gen- erally accords with the truth. In the present case it was im- possible to say whether any new evidence would be given; and therefore, from the juror's own account of the state of his mind, it would have been hazardous to permit him to be sworn. It is objected, that if this rule prevails, it will be difficult to procure a jury in any case which has been the subject of much conversa- tion, because every man forms some opinion upon the state of facts which he has heard. It is very true that men generally form an opinion upon the case as it comes to their knowledge; but, when that knowledge is derived from common report, any sensible man knows the uncertainty of such reports, and keeps his mind open to a change of opinion when the whole truth shall be ascertained. Upon this principle, it was held by the Supreme Court of New York, 8 Johns. 445, to be no cause for challenge that the juror had said, ' ' if the report of the neighbors was true, the defendant was in the wrong." The case before us is very different, where there had been a former trial, in which it must be' supposed that all the evidence in the power of the parties had been produced. On the trial of Aaron Burr, Chief Justice Marshall laid down the rule, "that to have made up and de- livered an opinion that the prisoner entertained the treasonable designs with which he was charged, and that he retained those designs and was prosecuting them when the act charged in the indictment was alleged to have been committeed, was good cause of challenge." (1 Burr's Trial, 419, 420.) It is the opinion of the court, that after the impression made on the mind of McEwen by the first trial, there was danger of his no longer being per- fectly impartial ; and it being altogether uncertain whether the 248 CONDUCT OF THE TRIAL. [ChAP. IV. state of the facts would be altered on the second trial, the plain- tiff's challenge ought to have been allowed. The judgment is therefore to be reversed, and a venire de novo awarded. CHICAGO, ETC., RT. CO. v. ADLEB. 56 Illinois, 344. [1870.] Mr. Justice Walker delivered the opinion of the court : This was an action brought by appellee to recover a penalty against appellants for the failure to ring a bell or sound a whis- tle at the crossing of a highway with their engine and trains. The suit was instituted under the one hundred and thirty-eighth section of the railroad law of the 5th of November, 1849. On the trial in the court below, the jury found a verdict for $1,150, for various breaches of the statute, upon which a judgment was rendered. It is first urged, that the court below erred in refusing to allow the peremptory (?) challenges of jurors made by appel- lants. Four of the jurors who tried the case were asked on their voir dire if the evidence were evenly balanced, which way they would incline to find, and each answered that he would, in such case, lean against the defendants, and one of them stated he would do so because the company were able to stand it, and he thought a private individual should "have a little mite the advantage. ' ' It is a fundamental principle, that every litigant has the right to be tried by an impartial and disinterested tribunal. Bias or prejudice has always been regarded as rendering jurymen in- competent. And when a juror avows that one litigant should have any other than the advantage which the law and evidence give him, he declares his incompetency to decide the case. He thereby proclaims that he is so far partial as to be unable to do justice between litigants, or that he is so far uninformed, and his sense of right is so blunt, that he can not perceive justice, or, perceiving it, is unwilling to be governed by it. The rule is so plain and manifest that the party claiming to recover must prove his cause of action, it is a matter of surprise that an adult can be found who would not know that such is Sec. 1.]' MC CARTHY V. THE CASS AVENUE BY. CO. 249 the common sense as well as the common honesty of the rule. No ordinary business man would be wUling that a claim pressed ■against him should be allowed, and he be compelled to pay it, when the evidence for and against the claim was evenly bal- anced. And how such men can bring themselves to apply a different rule, as jurors, to the rights of others, is incompatible with the principles of justice. Nor does the fact that jurors, who avow, under oath, that they would incline to favor a recov- ery by the plaintiff on evidence evenly balanced, declare that they are impartial, in the slightest degree tend to prove their impartiality. Their statement only tends to prove that they are so far lost to a sense of justice, that they regard what all right- thinking men know to be wrong, as just and impartial. To try a cause by such a jury is to authorize men who state that they will lean, in their finding, against one of the parties, unjustly to determine the rights of others, and it would be no difficult task to predict, even before the evidence was heard, the verdict that would be rendered. Nor can it be said that instructions from the court would correct the bias of jurors who swear that they incline in favor of one of the litigants. In suits for the recov- ery of penalties, the law does not warrant a recovery, unless the proof clearly preponderates in favor of the plaintiff. And to admit jurymen, who avow that they will not even require a preponderance, would be to violate the rule. The objection was well taken to the jurors, and the court erred in permitting them to act on the trial below. McCarthy v. the cass avenue rt. co. 92 Missouri, 536. [1887.] Black, J. The plaintiffs are the parents of John McCarthy, an unmarried minor. Their cause of action is based upon alleged negligence in violating an ordinance of the city of St. Louis, by which drivers and conductors of street cars are required to keep a vigilant watch for persons on foot, and especially chil- dren, either on the track or approaching the same, and, upon the first appearance of danger to such persons, to stop, in the shor1;est time and space possible. 250 CONDUCT OF THE TRIAL. [ChAP. IV The first contention is that the court erred in overruling the plaintiff's challenge to four jurors for cause. The examination of one of them will present the question as to the others, and, as reported in the bill of exceptions, is as follows : Upon a special jury of eighteen being called and sworn, plaintiff's counsel asked juror Sawyer whether, in an action brought to recover dam- ages under the statutes of Missouri, on account of killing a per- son, he would have any bias or prejudice one way or the other ; the juror answered that he did have a bias against such a case — that he was prejudiced against all damage cases. Being asked if such bias existed at this time, he answered that it did. Asked if it would require evidence to remove said prejudice in this case, he said in answer: "Well, I suppose there would have to be evidence anyway" — that it would require strong evidence. Counsel for the plaintiffs then made his challenge for cause, and, thereupon, the court asked the juror if he could hear the evidence in the case and render a verdict according to the law and the evidence ; the juror answered that he believed he could. By the court : ' ' Suppose a case in hand, one in which the evi- dence, in other respects, sustains plaintiff 's cause of action, could you, under the evidence and instructions of the court, give the plaintiff a verdict?" Answer: "Yes, sir." Plaintiff 's counsel then asked : ' ' My question still is, would the prejudice that exists in your mind now, against all damage ^ suits, including this, be such that it would require evidence to remove it before you could find a verdict for plaintiffs?" An- swer: "If you will allow me I will answer it in this way — if the evidence went to show that the party was entitled to dam- ages, then as a matter of justice, I would be in favor of award- ing damages; otherwise, I could not." Q. "Would you start into the case with a prejudice against it which would require evidence to remove ? " A. " Not in this case. I have no prejudice against this ease, because I don't know anything about it." It is not every opinion of a juror concerning the matter in litigation, which will operate as a disqualification. To have that effect, it must be such an opinion as will influence his judgment in the consideration of the cause. This is substan- tially the rule of the statute. Sec. 2796. Opinions formed, but not of a fixed character, and which readily yield to evidence, do not disqualify the juror. State v. Walton, 74 Mo. 270. If he have such a bias or prejudice against a class of cases that his Sec. 1.] NORTHERN PACIFIC R. R. CO. V. HERBERT. 251 judgment will be warped, then he should be set aside and not accepted as a juror ; but it ought to appear that his bias is such as to influence his judgment. Again, the competency of a juror is a mixed question of fact and law. It is for the court to try this question of fact, and the finding of the trial court as to the competency of the juror ought not to be disturbed, unless it is clearly and manifestly against the evidence. This rule is to be deduced from what has been heretofore said by this court. State ex rel. v. National Bank, 80 Mo. 626; Montgomery v. Railroad, 90 Mo. 446. Now, from the examination of the juror in this case, it clearly appears that he had no opinion as to this case. His evidence, as a whole, shows that he was opposed to unfounded personal dam- age suits; but if the evidence showed that the plaintiffs were entitled to damages, then he would be in favor of awarding them. What more could be asked of any juror? But applying the rule before asserted, it becomes clear that we ought not to disturb the finding of the circuit court, as to the competency of these jurors. 1 NORTHERN PACIFIC R. R. CO. v. HERBERT. 116 TJ. S. 642. [1885.] Mr. Justice Field delivered the opinion of the court. After stating the facts as above reported/ he continued: 1. As to the challenge to a juror. It appears that one Weaver, summoned as a juror, testified that he was a lumber dealer, and that the company gave him a place on its right of way for a lum- ber yard, without rent, and also that he had heard the accident to the plaintiff spoken of and explained. It was not shown, however, that he had any actual bias for or against either party, or any belief or opinion touching the merits of the case. He was, nevertheless, challenged, and the allowance of the challenge constitutes the first error assigned. It does not appear whether 1 See Anson v. Dwight, 18 la. 241. ability to disregard it. Theobald v. Where the examination discloses a Transit Co., 191 Mo. 395. strong bias, the Court should not be i For a statement of this case, see influenced by the juror's professed post, 689. 252 CONDUCT OP THE TRIAL. [ChAP. IV. the challenge was for cause or was peremptory. Under the stat- ute of .Dakota each party is entitled to three peremptory chal- lenges. It is for the party asserting error to show it ; it will not be assumed. But if we regard the challenge as for cause, its allowance did not prejudice the company. A competent and unbiased juror was selected and sworn, and the company had, therefore, a trial by an impartial jury, which was all it could demand. United States v. Cornell, 2 Mason, 104; Heaston v. Cincinnati & Port Wayne Railroad Co., 16 Ind. 275, 279 ; Atchi- son, Topeka & Sante Fe Railroad Co. v. Franklin, 23 Kansas, 74; Carpenter v. Dame, 10 Ind. 125, 130; Morrison v. Love joy, 6 Minn. 349, 350.^ HILDRETH v. CITY OF TROY. 101 New York, 234. [1886.] Andrews, J. This action was brought to recover for injuries sustained by the plaintiff from the negligence of the defendant in failing to keep Congress street in the city of Troy in safe condition for travel, and resulted in a verdict for the plaintiff for $1,800. It appears that upon the impaneling of the jury, the plaintiff "excused" eight jurors drawn from the regular panel, residents of the city of Troy, upon the ground that they were interested in the result of the action, to which proceeding the city attorney objected on the ground that residents and tax- payers of the city are not disqualified as jurors in city cases, if otherwise competent. The court overruled the objection and held that all such jurors were disqualified, to which ruling the attorney for the defendant excepted. Thereafter four additional jurors, residents of the city, were drawn and the same pro- ceeding was had, and they were likewise excluded. The jury box was filled from other names in the panel, and none of the jurors who sat were objected to or challenged. It is not claimed that the jurors excluded by the ruling of the court were inter- ested except as taxpayers of the city. By the rule of the com- 2 And so in State v. Eeynolds, 171 Mo. 552; Glasgow v. Ey., 191 Mo. 347. Sec. 1.] HILDRETH V. CITT GP TROT. 253 mon law the inhabitants of a municipality, or the members of any body\politic, were incompetent to sit as jurors in a case in which the corporation was a party. They were deemed to be interested and such interest was a good cause of principal chal- lenge. (Coke upon Littleton, 157, a, b.) The common law has been modified in this State by general statutes making the in- habitants of a town or county competent jurors in suits brought by or against such town or county (1 R. S. 357, § 4; id. 384, § 4; 2 id. 420, § 58), and as to the inhabitants of cities, by special provision, inserted in nearly all cases, in the charters of incorporation. The charter of Troy, enacted in 1816, provides: ' ' That upon the trial of any issue, or upon the taking or making of any inquisition, or upon the judicial investigation of any facts whatever, to which issue, inquest or investigation the mayor, recorder, aldermen and commonalty of said city are a party, or in which they are interested, no person shall be deemed an incompetent juror by reason of his being an inhabitant, free- holder or freeman of the said city." (Chap. 1, § 16, Laws of 1816.) This provision has never been repealed or amended, and was in force at the time of the trial of this action. The ruling of the learned trial judge excluding from the jury the residents of Troy on the ground of interest, was in contravention of this explicit provision of law and was plainly erroneous. The question presented is, whether the error of the judge is ground for the reversal of the judgment. The proceeding on the part of the plaintiff was in substance a challenge. It was so treated by the attorney for the city and by the court. The court ruled that residents of the city were legally disqualified as jurors, and excluded them on that ground alone. The right of a party to except to a determination of the court upon a challenge to a juror, and to have such determination reviewed on appeal is expressly given by the Code (§ 1180). This section recognizes the determination of a challenge as involving a legal right, which may be reviewed and, if erroneous, set aside. The General Term disposed of the question on the ground that the rejection of a competent juror was not ground of error, where the jurors who actually try the case are competent. We cannot assent to this view. In our judgment the adoption of this principle would seriously imperil the system of jury trial and lead to practices which the statutes regulating the drawing of jurors were designed to prevent. The main purpose of the statutes for the drawing 254 CONDUCT OF THE TRIAL. [ChAP. IV. and selection of trial jurors is the securing of a fair and impar- tial jury. To this end, provisions are made, which, if followed, prevent the selection of a jury either by the court, or the officers of the court, or by either of the parties to the action, and exclude from the jury box all jurors not indifferent, or who for any reason are disqualified to act as jurors; while at the same time they secure to the parties the advantage of a. jury constituted by lot from all the qualified jurors undrawn on the panel. By the Stat. 3, Geo. II, § 11, "for the better regulation of juries," it is pro- vided that the first twelve persons drawn, and appearing, and approved as indifferent, should be the jury to try the case. This provision was incorporated into the Revised Laws of 1813 (1 R. L. 331, § 20), and into the Revised Statutes (2 R. S. 420, § 61), and was re-enacted in the Code -of Civil Procedure (§ 1166), without any substantial change. The section of the code is in this language: "The first twelve persons who appear as their names are drawn, and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn ; and constitute the jury to try the case." Sections 1032 and 1033 enumerate causes for which jurors may be discharged or excused. The language of section 1166 is mandatory. Blackstone refers with just admiration to the safeguards thrown around the selec- tion of a jury by the English statutes, and observes that they are admirably designed for the avoiding of frauds and secret man- agement, by electing the twelve jurors out of the whole panel by lot. (2 Bl. Com. 365.) It is said that no injury resulted to the defendant from the erroneous exclusion of the city jurors, since a competent jury actually tried the case. The court can- not say that the trial would have resulted differently if the city jurors had not been excluded. On the other hand the contrary cannot be affirmed. It is certain that except for the erroneous ruling the jury would have been differently constituted. Jurors differ in intelligence, judgment, and fitness to act as jurors. It is, we think, the legal right of a party to have the jury selected from the competent names in the jury box, and that the range of selection shall not be limited by excluding without cause com- petent jurors from the panel. It cannot be doubted that if an incompetent juror had been admitted against the objection of the defendant, the judgment would be set aside, and yet in many cases it would be impossible to show any actual injury. A person not a resident of the county, or over sixty years of age, or vidth- Sec. 1.] HILDBETH V. CITY OF TEOY. 255 out the requisite property qualification, is not a competent juror (Code, § 1027), but it would, we conceive, be no answer to an exception taken to his admission, that no actual injury was shown to have resulted. The violation of the legal right of the party to have the case tried by competent jurors, would be conclusive. The error in this case was in improperly rejecting competent jurors. The court added a disqualification, not only not found in the statute, but which the statute declares shall not constitute a dis- qualification. The law allows in a civil case two peremptory challenges to each party. The action of the court was equivalent to allowing the plaintiff fourteen peremptory challenges, because it excluded from the jury without adequate cause, upon the motion of plaintiff, fourteen jurors presumably competent. If the court had in form allowed the plaintiff more than two peremptory challenges, would it be an answer to an exception, that nevertheless there was no legal injury, since a competent jury was subsequently impaneled? "We think the error of the court in excluding the city jurors is available to the defendant on this appeal. The learned trial judge doubtless decided the point under the misapprehension that the case was governed by the common law, without having in view the Statute of 1816. But the charter is declared on its face to be a public act, and the judge is presumed to have had notice of its provisions. It does not appear whether his attention was specially called to the provision in Section 16, but the counsel for the plaintiff took the objection to the jurors specifically on the ground that as residents of Troy they were interested, and so disqualified, and the de- fendant's counsel insisted that they were not disqualified for that reason, and the court ruled the point for the plaintiff. We think he must bear the consequences of the error, and that he cannot escape by charging the defendant with a violation of duty in omitting to call the attention of the court to the provision of the Statute of 1816, which, so far as appears, may not have been known to him at the time. The judgment should be reversed. The statute makes elaborate provision for securing an impartial jury. It provides that the first twelve competent jurors drawn, who are indifferent and not discharged or excused, shall con- stitute the jury. The law prescribes thp qualifications of jurors. The court cannot add to, or detract from them. It cannot itself select the jury, directly or indirectly. It cannot in its discretion, or capriciously, set aside jurors as incompetent, whom the law 256 CONDUCT OF THE TRIAL. [ChAP. IV. declares are competent, and thus limit the selection of a jury to jurors whose names may be left. If this is done, a legal right is violated, for which an appellate court will give redress. The jury system to be successfully administered, requires not only absolute impartiality in fact, in the drawing of jurors, but such an adherence to forms and methods of procedure as will secure public confidence and prevent any suspicion of improper or un- fair dealing. We have not lost sight of the cases holding that a mere irregu- larity on the part of ministerial officers in the selection and drawing of jurors is not ground of error, unless it appears that it operated to the prejudice of the party. (Friery v. People, 2 Keyes, 424, 425 ; Ferris v. People, 35 N. Y. 125 ; People v. Ran- som, 7 "Wend. 417.) But the erroneous exclusion by a judge on the trial from a particular panel, of a class of persons regularly drawn, on the ground of incompetency, stands, we think, upon a different principle and is governed by different considerations. The judgment should be reversed. All concur.^ (2) Peremptory Challenges. STATE V. POTTER. 18 Gownecticut, 166. [1846.] Williams, C. J. * * * 2. Again it is said the prisoner has been deprived of a right to a peremptory challenge, which he was entitled to. It is not denied that time and opportunity were given to the prisoner to challenge a juror ; but it is claimed that he had not all the time the law allows him. Dickerman, a talesman, had been examined, and there was no cause of challenge known against him. The court then told the counsel if they intended a peremp- tory challenge they must make it at that time. They had then a reasonable opportunity to make their challenge ; but they claim they may make it at their own time, provided it is done before the jurors are sworn. The statute, it is said, gives them power 1 And so in Searle v. Bishop of Springfield, 203 Mass. 492. Sec. 1.] STATE V. potter. 257 to challenge peremptorily twenty jurors summoned and impan- elled, — and much criticism has been had upon the word "im- panelled. " It is claimed that it means the jury sworn to try the cause ; and that until sworn they are not impanelled. That they form a jury when thus impanelled, is true ; but that they are not impanelled until sworn, is not true. On the other hand we learn from high authority that a jury are said to be impanelled when the sheriff has entered their names into the panel — a little piece of parchment. Co. Litt. 158 b. The Statute of 3 Geo. II says, a sheriff shall not return a sep- arate panel for every separate cause, but one and same panel for every cause. 3 Bla. C. 358. And we can hardly open a book upon the subject but it speaks of the panel returned by the sheriff. 4 M. & Sel. 467. A prisoner has, by statute, a right to a copy of the panel, in certain cases, before the time of trial. 3 Bac. Ab. 742, tit. Juries, B. 8 (Gwil, ed.). If it applied only to jurors sworn, then it would imply that jurors might be challenged after they were sworn, which is not claimed. But it is said the clerk informs the prisoner that if he would challenge them, or any of them, before they are sworn he shall be heard. This certainly is the form. "We understand it to mean that his challenges must be made before the jurors are sworn; but we do not suppose that the prisoner is therefore to direct at what time before they are sworn this shall be done. He is called upon then to make his challenges, and when he has had a fair opportunity to do this, he has had the privilege the statute con- fers upon him. He has a right to plead, to examine witnesses, to be heard by counsel ; but the court directs the time when he shall plead, when his witnesses shall be heard, and the order in which his counsel shall speak. The prisoner may think it would be better for him that his counsel should have the closing argument, particularly in cases where he assumes the burden of proof, as in cases of insanity ; and we see not why he may not as well claim to exercise his rights in his own time in that case as in this. The order of time and manner of proceeding on all such subjects, must of course be under the direction of the court, unless the statute pre- scribes otherwise. To make the statute what it is claimed it should read, the accused may challenge peremptorily twenty H. T. P.— 17 258 CONDUCT OF THE TEIAL. [ChAP. IV. jurors returned and impanelled at any time before they are sworn. But it is said that by the English practice the party has a right to challenge until the juror is sworn. There each juror is sworn as soon as he has been examined and opportunity given for challenges. By our practice the jurors are none of them sworn until all have been examined and opportunity offered for challenge. Here, when one has been examined and oi)portunity to challenge given, he is directed to take his seat as a juror, just as in England after he has been sworn ; and the delay in swear- ing him is not to give any privilege to the prisoner which he could not claim elsewhere, but to prevent multiplying oaths and to save the delay incident to the administration of the oath twelve times instead of once. The prisoner now claims, as matter of right to himself, a privilege which he could have no pretense to claim after the person challenged had been declared a juror by the English practice; and if the principle claimed here by the prisoner is correct, that he must be allowed this privilege to the last moment before the trial commences, the practice is wrong then, which deprives him of this privilege by swearing each juror before he has had full opportunity to make his challenge. The effect of the practice in both cases is the same. In the one case his opportunity is closed when the juror is sworn; in the other case when he is directed to take his seat. Our practice gives one advantage to the prisoner, that if any- thing new has occurred since the juror was directed to take his seat as juror, the party will not be absolutely precluded from taking the benefit of it, as he is in England after he is sworn, unless by consent. Tyndal's Case, Cro. Car. 291-2. And for that reason the court (when a motion was made to challenge the juror soon after the notice given) inquired of the counsel whether any- thing had occurred since the notice given by the court which called for the exercise of this right, to which it was answered there had not; by which it appears that the sole question is whether the court or the prisoner shall direct as to the time of challenge before the jury are sworn. For if the prisoner had this right, it must be conceded that the reason which prompts him to the exercise of it is not to be inquired into. If, on the other hand, he has not the right, then it is apparent that the court, out of humanity to the prisoner, were disposed to listen to any reason which called for a dispensation of the rulfi Sec. 1.] HUNTER V. PABSONS. 259 they had established, as they were not precluded entirely by administering the oath, as would have been the case in England.) As no such cause existed, they saw no reason to rescind the rule they had made, conformable to our practice, of which they had given notice merely that the party should not claim to be sur- prised thereby. It being a case in which life was concerned, the court were willing to find cause to relieve against the operation of a good rule, if it was like to prejudice the party; but they did not intend thereby to weaken its effect by yielding it upon a claim of right. And -no case has been brought in support of this claim, except one from Ohio. Hooker v. State of Ohio, 4 Ohio R. 348. Upon looking at that case, we find that the court below had decided that they would allow no challenge for cause until the prisoner had made all his peremptory challenges. This judgment was very properly reversed by the Superior Court, conformably to our constant practice as well as to well settled principles. In giving their reasons, the court remark that this right of peremptory challenge should be kept open to the latest possible period, to- wit, up to the actual swearing of the jury; in other words, that in this respect they follow the English practice, which we have shown is substantially followed here. HUNTER V. PARSONS. 22 Michigan, 95. [1870.] Campbell, Ch. J. Parsons sued Hunter upon a promissory note, the genuineness of which was disputed, it being claimed either that an original and imperfect instrument had been altered, or that a false one entirely had been substituted. Upon the opening of the trial, plaintiff below examined all the panel on their voir dire, and then for the first time challenged one of them peremptorily. It was claimed he should have chal- lenged him after his preliminary examination and before he proceeded to question the rest. We see no error in this. There is no rule of practice forbidding the exercise of the right of per- emptory challenge at any time before ^the jury is sworn. And 260 CONDUCT OF THE TRIAL. [ChAP. IV. unless a party has ascertained what jurors can be excluded for cause, and therefore need not be challenged peremptorily, he may lose the chief value of this privilege. 4 Bl. Com., 353 ; Peo- ple V. Bodine, 1 Denio, 281. STATE V. HAYS. 23 Missouri, 287. [1856.} Ryland, j. * * * The first point of the defendant's counsel is in regard to the impaneling of the petit jury who tried the case. The bill of ex- ceptions shows that when the cause was taken up for trial, the defendant moved the court to compel the State, by her circuit attorney, to make her peremptory challenges to the panel before the defendant should be compelled to make his peremptory challenges, which the court refused to do, and compelled the defendant to strike from the panel his peremptory challenges, without knowing which of the panel the State would strike oif, upon her peremptory challenges, making both parties challenge at the same time, to which opinion the defendant excepted. The record does not show us how this was done. There might have been thirty-six jurors present, free from all objection. Then the State having four peremptory chal- lenges, and the defendant twenty, the remaining twelve would be the jury. If so, the defendant has not been deprived of any advantage or legal right. He has challenged his twenty, but he says he may have challenged some of those who had been chal- lenged by the State, and had he known whom the State would have challenged, it would have given him the power to have challenged others. All this may be so, and still he has lost no right or privilege. He has the thirty-six men from whom his jury were to be selected. The State could refuse four and he twenty. No one of the jurors was put on his panel against his right, nor in violation of his right. Suppose the State's four and his twenty were confined, as it is possible they might be, to the same twenty men, leaving sixteen behind, why then the State has just as much right to complain of having lost her four chal- lenges, because she did not know those whom he would challenge. Sec. 1.] STATE V. hays. 261 as he has. The first twelve then called will make the jury, and the fact that there are sixteen of which to make a jury, instead of twelve, can surely be no deprivation of any right or privilege. We do not think this such an error as would justify the court in reversing. The prisoner does not appear to have been deprived of any legal right. In what order the parties shall exercise this right is a matter within the discretion of the Circuit Court. The simplest rule upon this subject, and one to which there would seem to be no objection, is that of requiring the parties to chal- lenge as the jurors are called and pronounced qualified, the plaintiff always speaking first. This rule, I believe, has been generally practiced; at least as far as my experience upon the Circuit Court extends, I never knew it deviated from, and that experience embraces a period of eighteen years. But as the rule adopted in this case deprives the prisoner of no legal right, and it does not appear that the discretion was exercised oppressively, it forms no ground for a reversal. The right of peremptory challenge is a right to reject, and not to select a juror; In the case of the United States v. Marchant et al. (4 Mason, 160), Justice Stoet said: "The right to challenge for cause is un- limited, but the right of peremptory challenges, without cause, is limited. What is the right of peremptory challenge but a right to exclude from the trial any persons who are disagreeable to the party on trial? Suppose the panel to consist of seventy- two persons and the challenges to be limited to twenty, all that the prisoner can do is to exclude twenty from this list, and it depends altogether upon the order in which the jurors are called who may be excluded or not. If the prisoner challenge the first twenty who are called, the twelve next called from the remaining fifty-two constitute the jury. It is true, if he chooses to suffer any person to be sworn before he has exhausted his challenges, to that extent he selects his jury ; but this is a new incident to his right to exclude jurors to a limited extent, and not the principal object contemplated by the law." Mr. Justice Blackstone, in his Commentaries (4 Black. Com. 353), with his usual per- spicacity and accuracy, states the reasons on which the right of peremptory challenge is founded. He says : "In criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause aX, all, which is called a peremptory challenge, a provision full of that 262 CONDUCT OP THE TRIAL. [ChAP. IV. tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons : 1. As every one must be sensible what sudden impressions and un- accountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner, when put to defend his life, shall have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for his dislike. 2. Because, upon challenge for cause, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke resentment ; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside." Being satisfied, from authority as well as from the reason of the case, that the right of peremptory challenge was given to exclude rather than to select, and the prisoner having exercised that right in this case, we can not see how he has been injured or deprived of his legal rights in the mode adopted in this case for impaneling the jury. We conclude, therefore, that, although the rule, heretofore so long practiced, of requiring the parties to challenge as the juror is called up to be sworn, after having been qualified to serve and so pronounced by the court, the State always to speak first, is the best and least objectionable mode, yet a deviation therefrom, without showing that in consequence thereof the prisoner has been injured, will not authorize a reversal. The point, therefore, is ruled against the prisoner.^ COLLISON V. I. C. R. R. CO. 239 Illinois, 532. [1909.] Cartwright, C.J. * * * The first thing which occurred on the trial which is claimed to be an error is that the court, in em- 1 In civil cases the practice in three jurors ; but when there are Missouri is now regulated by the several plaintiffs and defendants following statute: they shall join in their challenges. Sec. 7281, E. S. 1909: "In trials and the plaintiff shall, in all cases, of civil causes each party shall be announce his challenges first." entitled to challenge, peremptorily, Sec. 2.] stowe v. querneb. 263 paneling the jury, compelled the defendant to examine and pass upon the second panel of four jurors hefore the same were examined and accepted by the plaintiff. The statute ^ provides that the jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiff, which means that the plaintiff shall pass upon the jurors until four have been accepted and tendered to the defendant, when the defendant is to pass upon the jurors until a panel of four is accepted and tendered back. When one panel of four is complete the plaintiff is to pass upon and accept the next panel of four and tender the same to defendant, and so on. The plaintiff is not called upon to tender a second panel of four to the defendant before the defendant has tendered back the first panel of four (Spies v. People, 122 111. 1), but when four are taken by both sides the plaintiff must go ahead with the next panel. The ruling was wrong, but the rights of the defendant do not appear to have been prejudiced in any way by it and therefore it is not ground for a reversal. Section 2. Introduction of Evidence. (a) Preliminary Questions. STOWE V. QUERNER. L. R. 5 Exchequer, 155. [1870.] Bbamwell, B. In this case the question which was argued before us yesterday arose thus: During the trial of an action on a policy of insurance it became necessary to produce the 1 Sec. 21, Oh. 78, E. 8. 111. 1913. touching their qualifications to try Upon the impaneling of any jury in any such causes; provided, that the any civil cause now pending, or to jury shall be passed upon and ac- be hereafter commenced in any Court cepted in panels of four by the par- in this State, it shall be the duty of ties, commencing with the plaintiff, the Court, upon request of either Sec. 69, Oh. 110 lb. In all civil party to the suit, or upon its own actions each party shall be entitled motion, to order its full number of to a challenge of five (5) jurors twelve jurors into the jury box, be- without showing cause for such chal- fore either party shall be required lenge. to examine any of the said jurors 264 CONDUCT OP THE TRIAL. [ChAP. IV. policy, and the plaintiffs gave evidence of a duly stamped policy having been executed, and of its being in the possession of the defendant. Notice to produce had also been given. Upon its being called for, however, the defendant declined to produce it, and thereupon the plaintiffs proposed to read a document which purported to be a copy, and which they had received from the defendant's broker. The defendant objected, and offered to displace the effect of the evidenc^ of the existence of the policy which had been given by the plaintiffs, and to render the copy inadmissable by showing that no policy had ever been executed at all. The judge refused to hear this interlocutory evidence, and allowed the document to be admitted and read. We are all of opinion that he was right. If the objection on the part of the defendant had been that there was a policy, but that it was not stamped, it would perhaps have been well founded. But here it was objected that there was no policy executed at all ; an objection which goes to the entire ground of action, and one which, if it had prevailed, might have left the jury nothing to decide. For, suppose the judge had ruled that the copy was inadmissible on the ground that there was no original ever in existence, the plaintiffs would in fact have had no case left, and the judge would himself have decided the whole of it. The difference between this case and Boyle v. "Wiseman, 10 Ex. 647, is very wide. There the plaintiff had the means, if he had chosen, of giving the alleged original in evidence, but here if the copy had been excluded the plaintiffs would have been left without any means of proof whatever. Put an illustration analagous to the presen\t. Suppose an action to be brought for libel, and a copy of a letter which is destroyed, but which con- tained the libel complained of, is produced and tendered in evidence. Could the defendant say, ' ' Stop ; I will show that no letter was in point of fact ever written, and I call upon you, the judge, to hear evidence upon this point, and if I satisfy you that no such letter ever existed, you ought not to admit the copy?" Surely not; for that would be getting the judge to decide what is peculiarly within the province of the jury. The distinction is really this : where the objection to the reading of a copy concedes that there was primary evidence of some sort in existence, but defective in some collateral matter, as, for instance, where the objection is a pure stamp objection, the judge must, before he admits the copy, hear and determine Sec. 2.] glassell v. mason. 265 whether the objection is well founded. But where the objection goes to show that the very substratum and foundation of the cause of action is wanting, the judge must not decide upon the matter, but receive the copy, and leave the main question to the jury. It was further said there was no stamped policy in existence. But the real objection, as I have already observed, was that there was no policy at all, and therefore, of course, no stamped policy. The want of stamp was not the actual point relied on, and it was in a manner merged in the other objection. We are, therefore, of opinion that this rule should be discharged. ^ GLASSELL v. MASON. 32 Alabama, 719. [1858.] Action by the assignee of a promissory note alleged to have been lost or destroyed, in which the plaintiff gave evidence tending to show the execution, contents, assignment and loss of the instrument. The court refused an instruction to the effect that the plaintiff was bound to satisfy the jury that the note was destroyed. Verdict for plaintiff, and defendant took the case up on writ of error. ^ Stone, J. * * * The rule which requires preliminary proof of the destruction or loss of a written contract, before evidence of its contents can be received, is a rule affecting the grade of the evidence — not the measure of proof. It is a rule of law founded in good policy ; a failure to comply with which does not simply leave the party's evidence insufficient. It goes farther, and pronounces it wholly illegal. It is not one of 'the questions of fact within the issue before the jury. It is an outside inquiry, preliminary to the introduction of any evidence to the jury as to the contents. If this were not the case, a plaintiff who proved a just demand against the defendant, and the amount of it, must yet lose his ease, if he failed to convince the jury that the written evidence of his contract was lost or destroyed. Suppose, 1 Accord. Grady v. Ins. Co., 60 Siegfried v. Levan, 6 S. & E. 307. Mo. 116 ; Powell V. Adams, 9 Mo. i Statement has been condensed. 766; Bk. v. Myers, 6 S. & R. 11; 266 CONDUCT OP THE TRIAL. [ChAP. IV. « in such case, the jury should return a special verdict ; and, in addition to finding the issue joined in favor of the plaintiff, should, of their own motion, further find that the note or bond was not lost. What judgment would be rendered on such verdict ? Evidently for the plaintiff, because the verdict, to the above extent, would not be responsive to the issue. The jury would be pronouncing on the legality, not the sufficiency of the evidence. This preliminary proof is always addressed to the court, and may be made by the party himself, when the facts are within his knowledge. See 1 Greenlf . Ev. § 349, and note § 558 ; Thomas v. DeGraffenreid, 17 Ala. 602 ; also authorities cited in Brister v. The State, 26 Ala. 107.2 The paper called an assignment was properly admitted in evidence. DOE Dem. JENKINS v. DAVIES. 10 Adolphus & Ellis (N. S.), 314. [1847.] Lord Denman, C. J. It was admitted that the defendants were entitled to the verdict, if one Elizabeth Stevens was legiti- mate; that is, if her mother was the wife of her father, John Davies. The plaintiff began, and brought forward facts to make this improbable, particularly the declarations of John Davies, who was reported to have said that he had not married her, because she was a bad woman. It appeared, however, that they lived together and passed as man and wife. Some members of the famity had treated her as his wife ; others had treated her daugh- ter, Elizabeth Stevens, as their relation. Witnesses were then called for the defendants, who gave addi- tional evidence to the same effect ; and then an attorney produced a certificate of the marriage of John Davis with Eleanor Dillon, and stated that he had received it from Elizabeth Stevens when he was inquiring into the pedigree. He was then asked whether 2 See also Jackson v. Frier, 16 accuracy of tlie copy is a question Johnson, 193 ; Smith v. Sleap, 1 Car. for the jury. Eosendorf v. Baker, & K. 48. When a copy of a lost in- 8 Or. 241. strument has been introduced, the Sec. 2.] winslow v. bailey. 267 Stevens made any statement respecting her mother's marriage; and the question was objected to on various grounds. First : That she was not yet conclusively proved to be a member of the family. The answer is, that it was the duty of the judge to decide whether it was proved to him, and he decided that it was. There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence ; and apprehension of immediate death to admitting evidence of dying declarations; and search to secondary evidence of lost writings; and stamp to certain written instruments; and so is consanguinity or aifinity in the declarant to declarations of deceased relatives. The judge alone has to decide whether the condition has been fulfilled. If the proof is by witnesses, he must decide on their credibility. If counter evidence is offered, he must receive it before he decides, and he has no right to ask the opinion of the jury on the fact as a condition precedent. See Bartlett v. Smith (11 M. & W. 483). In this case the judge thought the condition had been fulfilled, and we are of the same opinion. It is further objected that the question whether Elizabeth Stevens was a member of the family was in fact the issue for the jury, as she was not contended to be so unless she was legitimate ; and, if she was decided to be legitimate, her declarations to prove her legitimacy were superfluous. The answer is, that neither the admissibility nor the effect of the evidence is altered by the accident that the fact which is for the judge as a condition precedent is the same fact which is for the jury in the issue.i WINSLOW V. BAILEY. 16 Maine, 319. [1839.] Emery, J. The suit is on a note of the 28th of , May, 1835, given in payment for a bond assigned by the plaintiff to the defendant. 1 See also, Hitchins v. Eardly, L. E., 2 P. & D. 248, where the same situation was presented. 268 CONDUCT OP THE TRIAL. [ChAP. IV. The defendant resisted payment because, he alleged, that the note was obtained by false representations of the quantity of timber on lands reserved for public use in the town of Chester, in the county of Penobscot, containing 1,000 acres more or less, for which the bond was given to Winslow. There was a certifi- cate of Jeremiah Jameson, dated May 14, 1835, that he had explored the tract, and that it contained 10,000 feet of the best quality of pine timber to the acre in his opinion. It was also proved that the plaintiff, between the 10th and 20th of May, 1835, had been on to the land, and that there was very little timber on the tract. And it was proved that this paper was in the plaintiff's possession at and about the time it was made, and that he used it to induce others to purchase the land, and was in his possession a short time before the sale of the bond, and a few days after in the hands of one of the defendants. After these facts and circumstances were proved the defendants offered the Jameson certificate, which they alleged was false. To the admission of this paper in evidence, to show that it was used by the plaintiff in the sale of the bond to induce the defendants to purchase, the plaintiff objected until proof was introduced to show that it was so used. And it is insisted that the proof of this fact should have been addressed to the court, that it was a fact to be decided by the court, and exclusively within their province. We conceive, with the plaintiff's counsel, that the authorities cited by him do establish that it is the exclusive right of the court to decide on the legality and com- petency of all testimony which is to be read or given to the jury. That the certificate was made by Jameson was not contested. That the plaintiff had it in his possession at and about the time it was made being proved, as well as the fact that the plaintiff had it in his possession a short time before the sale, and had used it to induce others to purchase the bond, would not alone be evidence that it was used to induce the defendants to purchase. It was, therefore, necessary to exhibit some other proof, by which the court should be persuaded to the conviction that it ought to go to the jury as tending to maintain the ground of defense. That proof was given of the subsequent possession of this very paper by one of the defendants. We think this well justified the court in permitting it to be read. The subsequent remarks of the court were full of good sense, and were of the most favor- able character towards the plaintiff's case; that if the jury were Sec. 2.] sempde v. calleby. 269 not satisfied that. it had been used to induce the defendants, it would not be evidence in the case. Though fraud is not to be presumed, it is usually proved by circumstances. It is most natural to suppose from the circumstances that the plaintiff obtained the certificate on the 14th of May, 1835, of the quantity of pine timber of the best quality to the acre on the tract, and had used it before the sale to induce others to purchase, that it was a principal consideration of himself and others, with whom he should deal, to take the land thus loaded with a most valuable commodity. This may properly be presumed. It is not pre- tended that there were any gold or silver mines on it, or slate or granite quarries to work upon the imagination of purchasers. The defendants, having in their possession this paper, did come before the jury with strong moral evidence that they received it from the plaintiff in a rightful manner. He never complained that it had been wrongfully withdrawn. It was most natural to suppose it would be delivered over by him to the purchasers, with the design that it should be accredited. But if it was not so done, he had the liberty to call upon Wilson, the witness, or introduce any testimony to render it doubtful to the jury whether it had been so employed. SEMPLE V. GALLERY. 184 Pennsylvania St. 95. [1898.] Mr. Justice Fell. The^court, at the time a witness was called, heard testimony on the question of the good faith of an assign- ment by which the witness had divested himself of all interest in the controversy, and permitted him to testify. At the close of the testimony the court was requested to submit to the jury the same question on which it had passed, and to instruct them to disregard the testimony of the witness if tliey found that the assignment had not been made in good faith. The sixth section of the Act of May 23, 1887, P. L. 158, provides that a person incompetent to testify as a witness because of interest may become fully competent "by a release or extinguishment, in good faith, of his interest, upon which good faith the trial judge shall pass as a preliminary question. ' ' It was not intended by this provi- 270 CONDUCT OF THE TEIAL. [ChAP. IV. sion to make the decision of the court subject to review by the jury, and to change the long established rule of evidence that it is the province of the court finally to decide preliminary ques- tions of fact upon which the admissibility of testimony depends. Whether a release has been executed in good faith is a question preliminary to the question of competency, and as such it is decided as a preliminary question, but its decision is not pre- liminary merely to a second decision by the jury. The compe- tency of a witness, as to questions of both fact and law is to be determined by the court. ^ WILSON V. UNITED STATES. 162 V. S. 613. [1895.] Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. * * * In the case at bar defendant was not put under oath, and made no objection to answering the questions propounded. The com- missioner testified that the statement was made freely and volun- tarily, and no evidence to the contrary was adduced. Nor did defendant, when testifying on his own behalf, testify to the contrary. He testified merely that the commissioner examined him "without giving him the benefit of counsel or warning him of his right of being represented by counsel, or in any way informing him of his right to be thus represented." He did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. His answers were explanations, and he appeared not to be unwilling to avail himself of that mode of averting suspicion. It is true that, while he was not sworn, he made the statement before a commissioner who was investigating a charge against him, as he was informed; he was in custody but not in irons ; there had been threats of mobbing him in the night before the examination; he did not have the aid of counsel; and he 1 And so on the question of to a party as admissions. Jones v. Agency or Conspiracy, where dee- Hurlburt, 39 Barbour (N. Y.) 403; larations of the alleged agent or co- but see Swearingen v. Leach, 7 B. conspirator are sought to be imputed Monroe, 285. Sec. 2.] burton v. state. | 271 was not warned that the statement might be used against him or advised that he need not answer. These were matters which went to the weight or credibility of what he said of an incrim- inating character, but as he was not confessing guilt but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law. "When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with th^ direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant.^ Com- monwealth V. Preece, 140 Mass. 276 ; People v. Howes, 81 Mich. 396 ; Thomas v. State, 84 Georgia, 613 ; Hardy v. United States, 3 Dist. Col. App. 35. The question here, however, is simply upon the admissibility of the statement, and we are not pre- pared to hold that there was error in its admission in view of its nature and the evidence of its voluntary character; the ab- sence of any threat, compulsion or inducement; or assertion or indication of fear ; or even of such influence as the administration of an oath has been supposed to exert. Judgment affirmed. BUETON V. STATE. 107 Alabama, 108. [1894.] On the trial of an indictment for murder, where the : defend- ant 's confession had been admitted, the court gave the following charge: (28) "Where confessions by the defendant are ad- 1 Morton, C. J., in Commonwealth testimony, the humane practice in V. Preece, 140 Mass. 276 * * * this Commonwealth is for the judge, Where a confession is offered in evi- if he decides that it is admissible, to dence, the question whether it is vol- instruct the jury that they may con- untary is to be decided primarily by sider all the evidence, and that they the presiding justice. If he is satis- should exclude the confession, if fled that it is voluntary, it is admis- upon the whole evidence in the case, sible ; otherwise it should be ex- they are satisfied that it was not the eluded. Where there is conflicting voluntary act of the defendant. 272 CONDUCT OF THE TEIAL. [ChAP. IV. mitted in evidence by the court, if the jury believe the confessions are Jrue, they can not disregard them, although they may believe that they were not voluntarily made." The court refused the following instructions requested by the defendant : (67) "The court charges the jury that they are the final judges as to whether the confession as testified to by Lawrence P. Evans, the State's witness, was voluntary or not." (68) "The court charges the jury that in passing on the credibility of the statement made by the defendant, as testified to by the witness for the State, they may take into consideration the circumstances under which they were made, and if the jury believe from the evidence before them that such statements were not freely, voluntarily and in- telligently made, then the jury should reject them as wanting in credibility, and as not entitled to weight, in passing on the guilt or innocence of the defendant. ' ' ^ Coleman, J. (after holding that the confessions were properly received). * * * Charge 28 given at the instance of the prosecution and charges 67 and 68, refused to the defendant, will be considered in part together. These relate to the province and power of the jury as to confessions after they have been admitted by the court. It is the established law of this State, and that which prevails almost universally, that confessions of a defendant are not admis- sible against him, in a criminal prosecution, unless voluntarily made. Whether voluntarily made or not, we hold is a question of law to be determined by the court from the facts, as a condi- tion precedent to their admission. Bonner v. State, 55 Ala. 242, and authorities ; Young v. The State, 68 Ala. 569. Having been declared competent and admissible, they are before the jury for consideration. The jury have no authority to reject them as incompetent. But the jury are the sole judges of the truth and weight to be given confessions, as they are of any other fact. In weighing the confessions, the jury must tate into con- sideration all the circumstances surrounding them, and under which they were made, including those under which the court declared as matter of law they were voluntary. In weighing confessions, the jury necessarily consider those facts upon which their admissibility, as having been voluntarily made, depends. 1 The statement has been abridged. Sec. 2.] burton v. state. 273 While there is no power in the jury to reject the confessions as being incompetent, there is no power in the court to control the jury in the weight to be given to facts. The jury may, therefore, in the exercise of their authority and within their province, determine that the confessions are untrue, or not entitled to any weight, upon the grounds that they were not voluntarily made. The court passes upon the facts merely for the purpose of determining their competency and admissibility. The jury pass upon the same facts, and in connection with other facts, if there are other facts, in determining whether the con- fessions are true and entitled to any and how much weight. The court and jury each have a well defined and separate prov- ince. Young's Case, supra. It follows, that although the jury may come to the conclusion that the confessions were not volun- tary, yet if from extrinsic evidence or from their character and the circumstances the jury are satisfied that they are true the jury should act upon them. Being competent and the jury being satisfied beyond a reasonable doubt of their truth, the jury may very properly convict on such evidence. There was no error in giving charge 28. The statement in the opinion of the case of Goodwin v. The State, supra, that it is the "duty" of the jury to discard and reject the confessions altogether if they are of opinion that the confessions were not voluntarily made, al- though they may believe them to be true, is herein modified in so far as it conflicts with the opinion in the present case. .Charge 67 requested by defendant is not full enough. The jury consider whether confessions were voluntary in passing upon their weight, but the jury is not authorized to determine their admissibility. The charge was calculated to mislead. Charge 67 was properly refused, as invading the province of the jury. It required the jury to reject the confessions abso- lutely, if in their opinion they were not voluntarily made. It was their duty to consider them and their province to give them such weight as they saw proper.^ 2 ' ' Evidence was also given of her wife in the absence of the prisoner declarations in the prisoner's ab- ought not to have been admitted in sence, after she was confined to her evidence, as it was not proved that bed, all of which tended to show the she considered herself at the time as circumstances of violence he had a dying person ; the evidence not be- eommitted upon her. It was ob- ing express on that head; but that jected, that the declarations of the if the evidence were admissible, it H. T. p.— 18 274 CONDUCT OF THE TRIAL. [ ChAP. IV. STATE V. HYDE. 234 Missouri, 200. [1910.] On the trial of an indictment for the murder of Col. Thomas H. Swope by poison, in order to show design and motive, the State introduced a large amount of evidence, tending, as it was claimed, to show attempts on the part of the defendant to poison other members of the Swope family. Defendant was convicted and appealed.^ Fereiss, j. * * * The claim that defendant attempted to poison Sarah Swope. by handing to Stella a capsule with a request that she ask the nurse to give it to Sarah, and further claim that he inoculated them both with typhoid by giving them candy, are neither one supported by any evidence^ worthy of consideration. According to the expert testimony in this case, the percentage of fatalities in typhoid fever does not exceed two per cent — one in fifty. The defendant, knowing this fact as a physician, would not be likely to select typhoid fever as a direct instrument of murder. To meet this situation, the State advances the theory or suggestion ought to have been left to the jury Easter term, 1790, all agreed that to consider whether the wife were it ought not to be left to the jury to at the time conscious of approaching say, whether the deceased thought death. Objection was also made, she was dying or not; for that must that these being declarations of a be decided by the judge beforp he wife against her husband were not receives the evidence. And if a on that account evidence. The dying person either declare that he Court was of opinion, that the rea- knows his danger, or it is reason- son of the rule that a wife shall not ably to be inferred from the wound be admitted to give evidence against or state of illness that he was sensi- her husband did not apply to this ble of his danger, the declarations case. And upon the other point, that are good evidence. But as to the evidence of the state of the wife's declarations themselves in this case, health, at the time the declarations all the judges, except two, thought were made, was suificient to show that there was no foundation for that she was actually dying; and supposing that the deceased con- that it was to be inferred from it, sidered herself in any danger at that she was conscious of her situa- all. ' ' Eex v. John, 1 East P. C. tion: and no particular direction was 357. given to the jury on the subject. See also State v. Brennan, 164 The jury having found the prisoner Mo. 487; State v. Monich, 74 N. J. guilty, these points were referred to L. 522. the judges ; who at a conference in i Statement has been abridged. Sec. 2.] state v. htde. ■ 275 that "it would serve as a mask and cover for deaths that might be otherwise produced" (State's brief) ; in other words, afford an opportunity to poison the typhoid patient. This theory of the State concerning the germ inoculation is built upon a series of inferences upon inferences, without any substantial underly- ing basis of fact. We are of opinion that none of the testimony of other alleged crimes should have been given to the jury. Having been ad- mitted, it should have been withdrawn from their consideration. We also think that the better practice would be that the court should, as a preliminary matter, when the State proposes to offer evidence of other crimes, either hear the evidence or satisfy itself as to its character and scope by inquiry of the prosecuting attorney, and determine whether there is sufficient evidence of the other alleged crime to justify its submission to the jury. We do not mean to say that the evidence upon such preliminary hearing must prove beyond a reasonable doubt that the other crime had been committed, but that there should appear sub- stantial evidence sufficient to take a case to a jury. A satisfac- tory precedent is found in the case of Commonwealth v. Eobinson, 146 Mass. 571,2 -where such preliminary hearing was had. As to the degrees of proof on such hearing the court said (1. c. 581) : "Where, in a case like the present, the admissibility of testimony 2 Allen, J., in Commonwealth v. of the jury in weighing the whole Eobinson, 146 Mass. 571. * * * evidence. They must still be satis- "But where, in a case like the fled, in a criminal case, upon the present, the admissibility of the tes- whole evidence, beyond a reasonable timony depends upon the determina- doubt. Ordinarily, questions of fact tion of some prior fact by the Court, are exclusively for the jury, and there is no rule of law that, in order questions of law for the Court. But to render the testimony admissible, when, in order to pass upon the ad- such prior fact must be established missibUity of evidence, the deter- by a weight of evidence which will mination of a preliminary question amount to a demonstration, and shut of fact is necessary, the Court in the out all doubt or question of its ex- due and orderly course of the trial istence. It is only necessary that must necessarily determine it, as far there should be so much evidence as as it is necessary for that purpose, to make it proper to submit the and usually without the assistance, whole .evidence to the jury. The at that stage, of the jury. If, un- fact of the admission of the evi- der such circumstances, testimony is dence by the judge does not in a admitted against a party's objec- legal sense give it any greater weight tion, it may often happen that he with the jury; it does not affect the may stUl ask the jury to disregard burden of proof, or change the duty it. ' ' 276 CONDUCT OF THE TEIAL. [ChAP. IV. depends upon the determination of some prior fact by the court, there is no rule of law that, in order to render the testimony- admissible, such prior fact must be established by a weight of evidence which will amount to a demonstration, and shut out all doubt or question of its existence. It is only necessary that there should be so much evidence as to make it proper to submit the whole evidence to the jury. ' ' In a case like this, involving a large amount of testimony concerning other crimes which would occupy days in presenta- tion, it would be impracticable to give a preliminary hearing to all the details. In such case the court may properly be guided by the offer of proof and by such testimony as can be con- veniently presented ; enough to satisfy the court that the evidence is relevant and of sufficient weight to authorize its submission to the jury. The great danger that evidence of other crimes, even if it fails to establish them, and even if it is by an instruc- tion withdrawn from the jury, will prejudice the jury against the defendant and obscure their judgment upon the real issues before them, suggests the propriety of determining in advance of its introduction that such testimony is competent. (b) Offers and Objections. CHICAGO BY. CO. v. CARROLL. 206 Illinois, 318. [1903.] Mr. Justice Ricks. * * * When this witness retired from the stand, appellee announced that he rested his case. Appellant's attorney then said: "We desire to offer evidence, your honor, on the question of inspec- tion of the cars, and so forth." The court replied : "Very well; I won't receive any evidence except as to the ownership of this line at this stage." Exception was taken, and it is now urged that, inasmuch as appellee was allowed to show the inscription on the cars, it tended to show ownership, and that appellant should have been allowed to show that it did inspect its cars ; that in the absence of proof of ownership appellant was not required to prove anything, and that as there was no evidence, until the Sec. 2.] Chicago ry. co. v. careoll. 277 testimony of this son, of ownership, the court should have opened the case and allowed proof upon the question of inspection. It may first be said, there was evidence of ownership and operation of the car by appellant already in the record, and it would be a dangerous rule of practice to sustain error upon an assignment such as this. Appellant, in fact, offered no evidence upon the matter. No witness was put upon the stand; no question was asked. Nothing was done except a mere conversation or talk had between counsel for appellant and the court. Such procedure as that does not amount to an offer of evidence, and the remarks of the court did not amount to a refusal to admit evidence. There can be no refusal to admit that which has not been offered, and counsel cannot, by engaging in a mere conversation with the court, although it may relate to the procedure, by merely stating what he desires to do, get a ruling from the court upon which he can predicate error. If appellant desired to make the contention it now makes, it should have at least put a witness upon the stand and proceeded far enough that the question relative to the point it is now said it was desired to offer evidence upon was reached, i and then put the question and allow the court to rule upon it, and then offer what was ^xpected to be proved by the wit- ness, if he was not allowed to answer the question asked. It was not stated to the court that appellant did inspect the cars or could prove that the cars had been regularly inspected or recently inspected, or that the inspection that was made was an examination of the trolley-pole or its attachments, and to now hold that the case should be reversed upon the mere statement of counsel that he desired to offer evidence upon the question of the "inspection of the cars, and so forth," would, as we think, be setting a dangerous precedent, and one that would tend to irregularity in such matters. Stevens v. Newman, 68 111. App. 549 ; Beard v. Lofton, 102 Ind. 408 ; Morris v. Morris, 119 id. 341 ; Ralston v. Moore, 105 id. 243 ; Smith v. Gorham, 119 id. 436 ; City of Evansville v. Thacker, 2 Ind. App. 370 ; Darnell v. SaUee, 7 id. 581 ; First Nat. Bajak v. Stanley, 4 id. 213 ; Lewis v. State, id. 504 ; Huggins v. Hughes, 11 id. 465 ; 8 Ehcy. of PI. & Pr. 236. 278 CONDUCT OP THE TEIAL. [ChAP. IV. GRIFFIN V. HENDERSON. 117 Georgia,, 382. [1903.] Lamak, J. The eaveatrix, among other grounds, objected to the probate of her mother's will, for the reason that the testatrix had made the will under a mistake of fact as to the conduct of the daughter, who was her sole heir at law. Civil Code, § 3262. No demurrer or exception was filed to this ground of the caveat. One of the grounds of alleged error was that the court refused to permit the eaveatrix to testify as a witness to any communica- tions made to her by her mother, or conversations between them. ' ' The court so ruling, no questions were propounded to the wit- ness (eaveatrix), who would have testified that Mrs. A. C. Brown treated her entirely different after her marriage to her husband, Mr. C. M. Griffin, than she had done prior to the marriage," and to other facts which relate to the question of a mistake of fact. * * * It is expressly stated that no questions were pro- pounded to the witness; and while the motion says what she would have testified, it does not appear that the coart was in- formed thereof at the time he excluded her; and therefore wfe are not permitted to consider this assignment of error. No mat- ter how competent a witness might be, a court will not grant a new trial merely because he was not allowed to testify. It must appear that the excluded testimony was material ; and the almost universal rule of practice is that what that material testimony was must be expressly called to the attention of the trial court at the time of its exclusion. Bigby v. Warnock, 115 Ga. 386; Southern Mutual Ins. Co. v. Hudson, 113 Ga. 438; Freeman v. Mencken, 115 Ga. 1018. In a few instances there may be an exception — as in cross-examinations, where the examining counsel may not know what the answer will be, or is exercising a right to test the witness; but ordinarily the exclusion of oral testi- mony can be made available as error only by asking some perti- nent question, and, if an objection is sustained, informing the court at the time what the answer will be, so that he can then determine whether the fact is or is not material. It will not do to state thereafter what the witness would have answered. The error, if any, must have been committed on the trial; and the ruling must have been made, not on a question only, but in the light of the facts about which the witness would have testified. SkC. 2.] GRIFFIN V. HENDERSON. 279 Where a question is asked, the answer excluded, and no state- ment made to the judge as to what the witness would have sworn, there is nothing before the court. It is impossible for the judge on the motion for a new trial, or for this court, on a bill of exceptions, to say whether the complaining party would have been benefited or injured by the answer. The witness may not have known anything of the subject inquired about; and if a new trial should be granted because the answer was excluded, it might happen that on the second trial the question would be again propounded, allowed, and the witness give hearsay, inadmissible, or irrelevant testimony, or the answer might be harmful instead of helpful, or the witness might reply, "I do not know," with the result that the time and money of the parties and the country has been wasted for so inconsequent a conclusion. That this is not unlikely to occur is shown by the experience of all practicing lawyers, who have often seen a long heated argument as to the right to ask a question followed by the laughter of all bystanders when the court held it competent, and the witness replied that he knew nothing about the matter. Parties can often agree in the presence of the court as to what the witness would testify, or, if not, the witness, or examining attorney, can state what the answer would be ; and where the subject-matter is important, the judge may, in his discretion, retire the jury until its admissibil- ity has been settled. We are well aware that the rule may be perverted into a means of getting inadmissible evidence before the jury, or by forcing their constant withdrawal, retarding the trial. The courts must rely upon the good faith of counsel not to bring about such a result. But it would never do to grant a new trial until it appeared, not only that the question was proper but that the answer was material and would have been of benefit to the complaining party. Where a witness is not allowed to answer a question, he is, as to that particular matter, as though he were absent; and the rule requiring a showing as to what an absent witness would testify, and the materiality of his testimony, stands on the same principle as a showing required in rulings when the court will not admit evidence. See Civil Code, § 5129 ; Thompson v. State, &5 Ga. 47. While the rule as to assigning error on the exclusion of testimony is not without its exceptions, the practice in other jurisdictions is substantially that in this state. Railroad v. Stonecipher, 95 Tenn. 311 ; Omaiia 280 CONDUCT OF THE TRIAL. [ChAP. IV. Ins. Co. V. Berg, 44 Neb. 522 (3) ; and see many cases cited in 2 Cye. L. & P. 697.i WILLIAMS V. WILCOX. 8 Adolphus & Ellis, 314. [1838.] On a rule nisi for a new trial. Lord Denman, C. J. * * * A single point, however, still remains to be mentioned, on which the defendants claim a new trial. In order to establish the an- tiquity of the weir, the plaintiff tendered in evidence what pur- ported to be a copy of an ancient grant found in a chartulary of Haghmon Abbey ; the single objection now relied on against its reception is, that no search was proved to have been made for the original. The note of the learned judge is very specific as to the objection made at the trial, and his memory clear as to what then occurred ; but he has no minute or recollection of this point having been pressed ; and it is an objection so much upon the surface, that, if brought clearly to his notice, it is scarcely conceivable but that it must have prevailed ; indeed we think that it must have been acquiesced in by the counsel on the other side. We do not doubt that it was in fact made ; but, as the whole class of that evidence, of which this document formed a single item, was also objected to, and the attention of the learned judge was naturally directed to that more general and important objection, it is probable that this was not so made as to attract his notice. In all cases, and especially in one so circumstanced as this, it is the business of the counsel to take care that the judge 's attention is drawn to any objection on which he intends afterward to rely. Justice requires this, not so much to the judge, as to the oppo- site party, who may be willing, as in the present case would | probably have been done, rather to waive the benefit of the evi- dence than put his verdict in peril on the issue of the objection. If, by inadvertence, this was not done at the trial, we think we ought not, either upon general principles or with a view to the 1 And so in Jackson v. Hardin, 83 Mo. 175. Sec. 2.] levin v. russell. 281 particular circumstances of this case, to allow the objection now to prevail,' The admitted document was but one of many to prove what in the end was unquestionable and unquestioned, the very great antiquity of the weir; its admission, therefore, occa- sioned no injustice ; its rejection could not and ought not to have varied the verdict. The rule, therefore, on all points will be discharged. LEVIN V. RUSSELL. 42 New York, 251. [1870.] Grovee, J. * * * The omission of the plaintiff to file a statement of his interest in the property, the mortgage, as required by statute, to preserve his lien against the creditors of the mortgagor, was obviated by the proof showing that the plaintiff took possession of the prop- erty by virtue of his mortgage in the lifetime of the intestate and before any lien of any creditor had attached and that he retained such possession until the property was taken from him by the defendant. The testimony of the plaintiff as to the trans- action between him and the intestate was not competent evidence against the defendant, and had such testimony been' properly ob- jected and excepted to, its admission would have been erroneous ; but there was no ground assigned for the objection. It is the well settled law that objections to testimony without assigning any ground therefor will be disregarded unless it clearly appears that the objection, if properly made, would have been decisive of the case, and could not have been obviated. It does not so appear in the present case. After the plaintiff had been examined and cross-examined by the appellant in regard to such transactions, the counsel for the appellant moved to strike out the testimony. This motion was denied by the t-ef eree, to which an exception was taken. It is entirely clear that a party who has sat by during the reception of incompetent evidence without properly object- ing thereto, and thus taken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence preju- dicial to him, a legal right to require the same to be stricken out. The denial of the motion was not, therefore, any ground of excep- 282 CONDUCT OF THE TRUL. [ChAP. IV. tion.i I have examined the other exceptions to the rulings of the referee upon the competency of evidence and think none of them well taken. The judgment appealed from must be affirmed with costs. NOONAN V. CALEDONIA MINING CO. 121 U. 8. 393. [1886.] Mr. Justice Field. * # * The objection to the introduction of the articles of incorpora- tion at the trial was that they were ' ' immaterial, irrelevant, and incompetent" evidence. The specific objection now urged, that they were not sufficiently authenticated to be admitted in evi- dence, and that the certificates were made by deputy officers, is one which the general objection does not include. Had it been taken at the trial and deemed tenable, it might have been obviated by other proof of the corporate existence of the plaintiff or by new certificates to the articles of incorporation. The rule is universal, that where an objection is so general as not to indicate the specific grounds upon which it is made, it is unavailing on appeal, unless it be of such a character that it could not have been obviated at the trial. The authorities on this point are all one way. Objections to the admission of evidence must be of such a specific character as to indicate distinctly the grounds upon which the party relies, so as to give the other side full opportunity to obviate them at the time, if under any circum- stances that can be done. United States v. McMasters, 4 Wall. 680 ; Burton v. Driggs, 20 Wall. 125 ; Wood v. Weimar, 104 U. S. 786, 795.1 1 The motion to strike out is to be objection is sufficient to preserve the used where an improper answer is question where the evidence is wholly given to a proper question. State inadmissible and the objection could V- Sykes, 191 Mo. 62. not have been obviated. Bailey v. 1 It has been held that a general Kansas City, 189 Mo. 503. Sec. 2.] eschbach v. hurtt. 283 ESCHBACH V. HUETT. 47 Marylmd, 61. [1877.] Miller, J. This is an action for malicious prosecution, brought by the appellee against the appellant. * * * The question which the defendant's counsel insist that this exception presents, and which they have argued with great ability is, whether under the declaration in this case, and the issue joined on the plea of not guilty, evidence of the bad repu- tation of the plaintiff for honesty and integrity is admissible, either as tending to show probable cause, or in mitigation of damages. The exact question thus discussed has never been expressly adjudicated in this State, and it must be conceded that elsewhere there is much conflict of authority upon the subject. But we do not propose to review the numerous cases that have been cited in argument, nor to express any opinion as to the admissibility of such evidence, because in our judgment that question is not presented by the ruling of the Superior Court, to which the defendant excepted. We may observe, however, that the present state of the English adjudications on this sub- ject is thus laid down in Addison on Torts (4th Bng. Ed.), 767 : ' ' When the plaintiff in his declaration avers that up to the time of the prosecution by the defendant, he had borne a good char- acter, and claims damages for injury to his character, it may be shown on cross-examination of the plaintiff's witnesses that he was at the time a man of notoriously bad character. But where the plaintiff does not in his declaration claim damages in respect of injury to reputation, general evidence of the plaintiff's char- acter is inadmissible. Such general evidence affords no proof of probable cause for a prosecution. ' ' But as we have said the question is not raised by the excep- tion, and this we shall proceed to show. The record states that the plaintiff, to sustain the issue joined on his part, offered testimony tending to prove that he carried on the business of selling wood and coal by taking orders at No. 2 North Street, in Baltimore City, but owned no wood and coal of his own, and that he had been engaged in the business for some ten years ; he then offered testimony tending to prove the allegations of the declaration but offered no testimony as to his general reputa- tion. After the plaintiff had closed, the defendant offered to 284 CONDUCT OF THE TEIAL. [ChAP. IV. produce testimony tending to prove that the plaintiff's reputa- tion for credit was bad, and that his reputation for honesty- was bad before the said charge was made against him by the defendant, and for this purpose called James Diggs as a wit- ness, and put to him this question, "Do you know the standing of George "W. Hurtt for credit and honesty among the men and parties in the same business with him in this community?" To this question the plaintiff's counsel objected and the court sus- tained the objection. The judge then proceeded to give his reasons for this ruling sustaining the objection to this question, and said the "gravamen of the action was the false imprison- ment of the plaintiff with malice and without probable cause, and that the averment in the narr. with reference to his good repute, was matter of inducement and not traversable ; the ques- tion of character therefore was not in issue, and the evidence proposed to be given was inadmissible." The defendant then (as the exception states) through his counsel excepted to the court 's ruling, and the exception was duly signed. Now whether the reasons which the court gave in support of the ruling ex- cepted to were erroneous or not is wholly immaterial. What this court must determine is whether the testimony offered was admissible, and not whether a right or wrong reason was assigned for its rejection. What then was the testimony actually offered and rejected? It was simply an offer to prove by the witness, Diggs, then on the stand (if he could have so testified), that the plaintiff's reputation for credit and honesty among those in the same business with him in the city of Baltimore was bad. To the question by which it was sought to elicit from the witness this testimony the plaintiff objected, and it was this objection which the court sustained. The sustaining of this objection and the refusal to allow this question to be put to the witness was the ruling which the court was called upon to make and did make, and to which the defendant excepted, and which alone is before us for review. But it is clear that evidence of the plain- tiff's bad reputation among a particular class of persons is not admissible in such an action. No case can be found to sustain the admission of such testimony. None of the decisions go further than to say that the general bad reputation or the notoriously bad character of the plaintiff may be admitted. We must, therefore, afSrm this judgment whatever may be our opinion upon the general question argued at bar. If the Sec. 2.] eschbach v. hurtt. 285 defendant had at the trial witnesses who could have proved the plaintiff's general bad repute or notoriously bad character for honesty or integrity before he made the criminal charge against him, it was his duty to have called them, or one of them to the stand and propounded appropriate questions for the purpose of eliciting such proof, and then upon objection made and sustained by the court and an exception taken, the question would have been presented for review in this court, and it would have been a real and substantial question in the cause. But if he had no witnesses ready so to testify he was not injured by the opinion of the court expressed, even though it were erroneous and the subject of an exception. It was not competent for him simply to make an- offer of proof which he had no witnesses to sustain, and insist upon the court deciding the question which that offer raised, for that would be invoking from the court below and from this court a decision upon a mere moot question. If such a practice were allowed it would be quite possible for a party, without having any witnesses at all to the point, to raise any controverted or difficult question as to the admissibility of evidence, which the cause on trial admitted of, and obtain a reversal of the judgment against him, if the court below should, in the opinion of this court, have ruled erroneously on such a question. Nor was it competent for the defendant, as the excep- tion shows was the case, to make an offer of proof, without stating he could sustain it by a competent witness, and for the purpose of sustaining it produce a witness who could only prove quite a different thing and whose testimony was clearly inad- missible, and then because the court rejected the testimony of such a witness, complain that besides rejecting it the court expressed an opinion that the proof contained in such general offer would be inadmissible even if witnesses should be called who could support it by their testimony. We should, therefore, be compelled to affirm this judgment, even if we were of opinion that under this declaration, and on the issue joined on the plea of not guilty, evidence of the general bad reputation of the plaintiff was admissible.^ 1 And so where a general objec- assigned. Tooley v. Bacon, 70 N. Y. tion is sustained without any reason 34. 286 CONDUCT OF THE TRIAL. [ChAP. IV. Section 3. Demueeers to the Evidence.^ MIDDLETON v. BAKER. CroTce's Elizabeth, 752. [1600.] Ejectione fiemae. It was held by all the court upon evidence to a jury that if the plaintiff in an ejectione firmae, or other action, gives in evidence any matter in writing or record, or a sentence in the spiritual court (as it was in this case), and the defendant offers to demur thereupon, the plaintiff ought to join in the demurrer, or waive the evidence, because the de- fendant shall not be compelled to put a matter of difficulty to lay gents, and because there cannot be any variance of a matter in writing ; but if either party offers to demur upon any evidence given by witness, the other, unless he pleaseth, shall not be compelled to join; because the credit of the testimony is to be examined by a jury, and the evidence is certain ( ? ) , and may be enforced more or less, but both parties may agree to join in 'demurrer upon such evidence. And in the queen's case, the other party may not demur upon evidence shown in writing or record for the queen, unless the queen's counsel will thereto assent ; but the court in such case shall charge the jury to find the matter special, as appears 34. Hen. 8, Dyer, 53. But this is by prerogative. WORSLEY V. PILISKER. 2 Rolle, 117. [1620.] The plaintiff in an ejectione firmae gave in evidence to the jury an indenture of bargain and sale enrolled in the Chancery, exemplified under seal, and in the fine of the exemplification there was a memorandum in this manner, viz., that the plea was enrolled, but no time of the enrollment was mentioned; the plaintiff offered to give divers circumstances in evidence by which he would prove that the enrollment was within six months, where- upon Sir Henry Yelverton, Attorney-General of the King, and 1 For a review of the leading cases Sloeum v. N. T. Life Ins. Co., 228 on demurrers to the evidence, see U. S. 364 (1912). Sec. 3.] woesley v. pilisker. 287 counsel of the other party, offered to demur, claiming that the time of the enrollment by the statute of 27 H. 8, was made part of the record, and the enrollment for this reason could not be proved otherwise, because if a bargain and sale, and the enroll- ment within six months, should be pleaded, and afterwards if nul tiel record should be pleaded, it is a good plea, and the time of enrollment is a matter of record and can not be tried by the jury. If the plaintiff will not join in the demurrer, then he ought not (?) to be non-suited, by Dodeidge, J., and Sie Henet Montague, C. J., vide 4 Coke, Hinds' case accord.^ Sie Henry Yelverton. "We wish to demur, and the plaintiff is held to join with us, and the court can not exclude us from our demurrer. Dodridge. Although the plaintiff can not re- fuse to join in the demurrer unless he will waive his evidence, yet the court is not bound, but may deny and hinder you from demurring by overruling the matter if it seems clear to them in law.2 See 5 Coke, Baker's case. Sir Heney Yelveeton, Attor- ney-General, the time of the enrollment should be inserted in the record, because this is made a part of the record by the statute of 27 H. 8, and if it should be omitted, although it was actually enrolled within six months, the bargain and sale is void. Montague, C. J., and Haughton held contra, because the statute says, "except it be enrolled," therefore it is sufficient if it was enrolled. And while this matter was in debate, a clerk was sent to the Office of Enrollment to learn their usage and custom, and whether they were accustomed to insert the time of enrollment, and he returned and certified to the court on his oath that they said to him that before the year of 16 Elizabeth, at which time the Office of Enrollment was estab- lished, they did not insert the time, but their custom was to do so now ; and the enrollment of the bargain and sale in question in this case was made in 5 Elizabeth, wherefore Sie Heney Montague, the Chief Justice, with the assent of the court, re- ferred this to the jury upon the evidence which the plaintiff had produced, whether this was enrolled or not. 1 See Crawford v. Jackson, 1 to refuse to compel a joinder yx de- Kawle, 427, where verdict was di- murrer where the evidence is clearly rected for defendant on plaintiff's against the demurrant, see Univer- refusal to join. sity v. Snyder, 100 Va. 567. 2 As to the discretion of the Court 288 CONDUCT OF THE TRIAL. [ChAP. IV. HALL V. BROWDER'S ADMINISTRATORS. 4 Howard (Miss.), 224. [1839.] Mr. Justice Smith delivered the opinion of the court. This was an action of trover instituted by Jno. F. Carmiehael, as administrator de bonis non of Harriet Browder, deceased, in the Circuit Court of Wilkinson county, to recover damages for the conversion of thirty-four bales of cotton. Christopher E. Hall, who is the appellant in this court, and who was the defendant in the suit below, filed his demurrer to the evidence adduced by the plaintiff on the trial in support of his demand, and the facts established by this evidence are stated and admitted upon the record. Upon the demurrer to the evidence there was joinder by plaintiff, and a decision of the court overruling the same. After which decision, the cause was submitted to the jury upon the evidence thus demurred to ; who, having found for the plaintiff the amount of damages sustained by him by reason of the conversion, judgment final was entered for the amount of the verdict. From this decision and judgment of the court the defendant has appealed, and insists before this court that there was error in the proceeding below, in the following particulars, to wit : 1. That there was error in submitting the cause to a jury upon the evidence, after overruling the demurrer; whereas the court ought to have pronounced a final judgment upon the demurrer. And 2. That there was error in overruling the demurrer to the evidence offered at the trial. To test the correctness of the first proposition it is necessary to inquire into the object and effect of a demurrer to evidence. A demurrer in law is the tender of an issue in law, upon the facts which have been established by the pleadings, and a de- murrer to the evidence is a tender of an issue in law upon the facts established by the evidence, and by necessity involves the admission of the truth of the facts intended to be proved by the evidence. The object of a demurrer to evidence then, is to raise the question of the relevancy, or the sufficiency in law of the facts intended to be proved, and by it admitted to be true, to maintain the issue in favor of the adverse party. This pro- ceeding exchanges the issue in fact, which is made up and closed to the jury, to an issue in law, and transfers it to the court. Sec. 3.1 WRIGHT V. PnSTDAR. 289 It is the peculiar province of the jury, to decide upon the weight of the evidence, in reference to the facts put in issue by the pleadings; but the necessarj'- incidents of a demurrer to evidence supersedes this office of the jury, and makes the deter- mination of the issue in fact, dependent upon the decision of the question of law. It follows, therefore, as the inevitable effect of a demurrer to evidence, to which there is a joindure, that the jury are discharged from the further consideration of the issue submitted in the first instance to them. The court, therefore, erred in not rendering judgment on the demurrer, and awarding a writ of enquiry to assess the damages, consequent upon the trover and conversion, instead of submitting the cause in chief to a jury.i WRIGHT V. PINDAR.i Aleyn, 18. [B. R. 1648.] In a trover and conversion brought by an administrator, upon not guilty pleaded, the defendant upon the evidence confesses, 1 Accord: Gluck v. Cox, 90 Ala. 331; Knox t. Garland, 7 Call. (Va.) 241. The demurrant is not entitled to have the case reopened for fur- ther proof. Galveston Ey. v. Tem- pleton, 87 Ter. 42. The damages may be assessed con- ditionally by the first jury, or a new jury may be called for that purpose. Gluck V. Cox, 90 Ala. 331. 1 The following account of this case is given in Style 22. The Case of Wright and Pynder was moved again to have the judg- ment of the Court. Roll, J., said, that matter of fact ought to be agreed in a demurrer to an evi- dence, otherwise the Court cannot proceed upon the deinurrer, for the judges cannot try the matter in fact, for that were for the judges to give H. T. P.— 19 the verdict, which belongs to the jury to do, and to waive the mat- ter in law, which they should de- termine, and he said, that if a deed be pleaded the party must show it in Court, but if it be given in evi- dence it is not necessary to show it if i^ can otherwise be proved to the jury, and so is it of a record given in evidence, and cited one Worsley's Case, 17 Jae. Bolls, J., took also two other exceptions to the pleading. 1. That the goods mentioned in the schedule appear not to be the same contained in the declaration. 2. No title is made to the indenture by him who brings the action, and con- cluded upon the whole matter that the demurrer was not good, and that there ought to be a venire facias de novo to try the matter again. Bacon, 290 CONDUCT op THE TKIAL. [ChAP. IV. that he did convert them to his own use ; but further saith, that the intestate was indebted to the king, and that 18 May, 14 Car., it was found by inquisition that he died possessed of the goods in question; which being returned, a venditioni exponas was awarded to the sheriff, who, by virtue thereof, sold them to the defendant. And to prove this the defendant showed the warrant of the treasurer, and the office-book in the exchequer, and the entry of the inquisition, and the venditioni exponas in the clerk's book; to which the plaintiff ^ saith, that the matter alleged is not sufficient to prove the defendant not guilty; and that there was no such writ of venditioni exponas. And the defendant saith, that the matter is sufficient, and that there was such a writ. And it was resolved, that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the court. And if the matter of fact be uncertainly alleged, or that it be doubtful whether it be true or no, because offered to be proved only by presumptions and probabilities, and the other party will demur thereupon, he that alleges this matter cannot join in demurrer with him, but ought to pray the judgment of the court, that he may not be admitted to his demurrer, unless he will confess the matter of fact to be true. And for that the defendant did not so in this case, both parties have misbehaved themselves, and the court cannot proceed to judgment. But it was clearly agreed, that upon evidence the court for reasonable cause, at their discretion, may permit any J., much to the same effect, but dif- whether he ought to join. The Court fered in this, that there ought not advised to search precedents for a to be a venire facias de novo, but venire facias de novo after a de- said that judgment ought to be murrer upon an evidence, and if given against one party, to wit, the there be any, they held that the same defendant, for ill joining in de- jury ought to come again, and not murrer, to the intent the party that another. EoU said, if a special ver- is not in fault may be dismissed, diet be found insuflS.cient, a new and the parties here have waived the venire facias ought to issue, and he trial per pays by joining in de- saw no difference between that and murrer. But Roll answered that this case. no judgment at all could be given, 2 Generally the party holding the for both parties be in fault, one by affirmative of the issue can not de- tendering the demurrer, the other by mur to the evidence of the adverse joining in it, and the defendant party. Pickell v. Isgrigg, 6 Fed. might have chosen whether he would 676 ; Bennett v. Perkins, 47 W. Va. have joined or no, but might have 425; Stiles v. Inman, 55 Miss. 469. prayed the judgment of the Court Sec. 3.] fitz-hareis v. boiun. 291 matter to be shown to prove a record, Com. 411b. And the opinion of the court was, that an alias venire facias should be awarded, and not a venire de novo, because no verdict was given. FITZ-HARRIS v. BOIUN. 1 Levinz, 87. [B. R. 1662] Error of a judgment in the Palace Court in assumpsit, where to prove the consideration an arrest was to be proved by the plaintiff ; and for that he did not produce the writ,^ the defend- ant demurred on the evidence, and thereupon judgment was given for the plaintiff ; and now to reverse the judgment it was said for the plaintiff in error, that the king's writs are matters of record, and are not to be proved but by themselves; and it was agreed by the Court that the writ ought to have been pro- duced in evidence, but by the demurrer it is confessed, the arrest being matter of fact, though it be to be proved by a matter of record, and the jury might of their own knowledge know that there was a writ. Dyer 239. Plowd. Com. Scholastica's case. And by the demurrer on the evidence all matters of fact are confessed that the jury could not know of their own conusance and the judgment was affirmed. CORT V. BIRKBECK. 1 Douglas, 218. [B. R. 1779.] Lord Mansfield. This is an action on the case, in which the plaintiff states, precisely and specially, his ground of action, which is (as stated in the first and fifth counts), that he is pos- sessed of certain mills at Settle, and that no tenant, inhabitant, and resident within the manor can spend or use corn ground which has not been ground at the plaintiff's mills. The breach 1 See Chichester v. Philips, T. Raymond 405, post 317. 292 CONDUCT OF THE TRUL. [ChAP. IV. assigned is, that the defendant used ground within the manor, several quantities of corn, etc., which the defendant well knew to have been ground elsewhere than at the plaintiff's miUs. To this the defendant has pleaded not guilty. The issue is — on the custom, — the defendant being subject to it, — and the breach. The plaintiff must prove all the three points. The defendant does enough if he disprove any of them. The parties go to trial by the authority of the court, to inquire into the truth of these facts. This is not like an ejectment or an action for money had and received, where conclusions only are stated in the declaration, and the premises appear in evidence. Everything to be proved is here set forth, and they have nothing to do at the trial with the question, whether the facts as alleged in the declaration are or are not sufficient to entitle the plaintiff to recover. If that had been intended to be disputed, it might have been done in limine, by a demurrer to the declaration. As to the evidence, it seems to me that the custom established by the decree in the Court of Exchequer is the same, in substance, with that on which this action is brought. It is admitted on the record that the mills are the same and that the defendant is resient in the manor. (His Lordship then stated all the material part of the evidence.) To this evidence the defendant has demurred, and the only question is whether, if the jury believed the evi- dence, it is competent to maintain the issue. ^ As to that ques- tion, there is no doubt but the proceedings in the Exchequer are evidence to prove the custom and that the parol testimony of Armistead is evidence to show that the defendant used flour not ground at the plaintiff's mills. The demurrer seems to be founded on a mistake concerning the nature of this proceeding. It was argued as if it had been a demurrer to the declaration, or a motion in arrest of judgment, on the objection that the custom could not be supported in law beyond the case of corn in a grindable state, and could not extend to flour imported or given to inhabitants, and ground before it came to their posses- sion. But that is not now before the court; nor was it under the cognizance of the jury. Nothing can be stronger to show 1 In Cocksedge v. Fanshaw, 1 was sufficient to satisfy the jury of Douglas 118, the same judge ob- the fact of the custom, for, by the served: "But what is now brought demurrer, the defendant admits before this Court on this demurrer? every fact which the jury could have Not a question whether the evidence found upon the evidence. ' ' Sec. 3.] gibson v. hunter. 293 this than the judgment which we must give, viz., "That the evidence was sufficient to maintain the issue." This will not be final. The consequence will be the same as if a verdict had been given for the plaintiff. But there is one defect which would not have been, if there had been a verdict, namely, that no damages have been assessed, and therefore there must be a writ of inquiry. After that the defendant may take advantage of any objection to the declaration by moving in arrest of judgment or bringing a writ of error. We are all of opinion that the evidence was sufficient. GIBSON V. HUNTEE. 2 H. Blackstane, 187. [House of Lords, 1793.] Assumpsit by the holder against the acceptors of a bill of exchange payable to a fictitious payee, and endorsed, after ac- ceptance, by the drawers in the name of the fictitious payee for value to the plaintiff. Evidence was given of a long course of dealings in similar bills between the drawers and acceptors for the purpose of raising an inference from these circumstances that, at the time of accepting the bill, the defendants knew the payee to be fictitious. The defendants demurred to the evidence and the plaintiff was forced to join.^ Judgment was entered for defendants on the demurrer, and the plaintiff sued out a writ of error.2 1 The demurrer in this case, after this they are ready to verify : where- reeiting the evidence at length, con- fore, for want of sufficient matter in eluded as follows: "And the said that behalf, shown in evidence to Thomas Gibson and Joseph Johnson the jury aforesaid, the said Thomas say, that the aforesaid matters, to Gibson and Joseph Johnson pray the jurors aforesaid, in form afore- judgment, and that the jury afore- said, shown in evidence by the said said may be discharged from giving Eobert Hunter, are not sufficient in any verdict in the said issue, and law to maintain the said issue within that the said Robert Hunter may be joined on the part of the said Eobert precluded from having his said ac- Hunter, and that they, the said tion against the said Thomas Gibson Thomas Gibson and Joseph Johnson, and Joseph Johnson. " to the matters aforesaid, in form 2 This condensed statement is aforesaid shown in evidence, have taken from Gould on Pleading, p. no necessity, nor are they obliged by 466. the law of the land to answer; and 294 CONDUCT OP THE TRIAL. [Chap. IV. Lord Chief Justice Eyre thus delivered the unanimous answer of the judges. The questions referred by your Lordships to the judges arise upon a proceeding which is called a demurrer to evidence and which, though not familiar in practice, is a proceeding well known to the law. It is a proceeding by which the judges, whose prov- ince it is to answer to all questions of law, are called upon to declare what the law is upon the facts shown in evidence analogous to the demurrer upon facts alleged in pleading. My Lords, in the nature of the thing, the question of law to arise out of the fact cannot arise till the fact is ascertained. It is the province of a jury to ascertain the fact, under the direction and assistance of the judge; the process is simple and distinct, though in our books there is a good deal of confusion with respect to a demurrer upon evidence, and a bill of exceptions, the distinct lines of which have not always been kept so much apart as they ought to have been.3 My Lords, in the first stage of that process, under which facts are ascertained, the judge decides whether the evidence offered 3 Simrall, C. J., in Stiles v. In- man, 55 Miss. 469 (1877): "On account of the advantages of this mode of procedure, by which the case is withdrawn from the jury and referred to the Court for its judg- ment on the law arising on the facts, it is growing in favor with the pro- fession. But this case is another example of what we have on a for- mer occasion remarked: that the manner in which it may be availed of is not well or generally under- stood. ' ' There was no mode in which the jury could be compelled to find a special verdict. The demurrer to the evidence is a convenient sub- stitute for the special verdict. The special verdict introduces into the record the facts. The demurrer upon the evidence does precisely the same thing. The whole operation is under the supervision of the Court, and it should never be allowed, if it is not a proper case, or if the facts are not correctly and fully stated. 2 Tidd's Pr. 865. "It is altogether irregular to make the demurrer to the evidence matter of record by bill of excep- tions. It is as much part of the record proper as the demurrer to pleadings, or the verdict of the jury. Both are of the same nature: the former takes the opinion of the Court on the facts shown in the pleadings; the latter, on the facts shown in evidence. ' ' The correct formula is to reduce to writing a recitation, first, of the organization of the jury; second, a statement of the facts shown in evi- dence by the plaintiff in support of the issue on his side; and then eon- elude with the allegation that the said matters are not sufficient in law to maintain the plaintiff's issue — wherefore he prays judgment, etc. ' ' The writing incorporating the Sec. 3.] GIBSON V. HUNTER. 295 conduces to the proof of the fact which is to be ascertained; and there is an appeal from his judgment by a bill of exceptions. The admissibility of the evidence being established, the question how far it conduces to the-proof of the fact which is to be ascer- tained is not for the judge to decide, but for the jury exclusively; with which judges interfere in no case, but where they have in some sort substituted themselves in the place of the jury in attaint, upon motions for new trials. When the jury have ascer- tained the fact, if a question arises whether the fact thus ascertained maintains the issue joined between the parties, or, in other words, whether the law arising upon the fact (the question of law involved in the issue depending upon the true state of the fact) is in favor of one or other of the parties, that question is for the judge to decide. Ordinarily he declares to the jury what the law is upon the fact which they find, and then they compound their verdict of the law and fact thus ascer- tained. But if the party wishes to withdraw from the jury, the application of the law to the fact, and all consideration of what matters of fact and the formal de- murrer should be transcribed on the minutes of the Court, and thereby become parcel of the record. 2 Tidd's Pr.; Walk. Am. Law, 609. "For the purpose of curing the irregularities in our practice, we have been thus minute in the descrip- tion of the nature and function of this pleading; and we append to this opinion an approved form of it. ' ' The demurrant in this case made a wide departure from the estab- lished practice. "The demurrer, embracing the facts shown in evidence, was not spread on the minutes, nor otherwise manifested, except by the bill of ex- ceptions. ' ' ' We are not inclined to overlook such grave irregularities as occurred in this case. In reality, the de- murrer must have been put in ore tenus; and there would have been not so much as a written memorial of it in the papers, but for the necessity of bringing the ease to this Court, when it was disclosed in the bill of exceptions. "It need hardly be said that this demurrer may be taken to the evi- dence of that party on whom is the burden of proof — that is, the party who assumes the affirmation of the issue. It follows that the plaintiff may demur to the evidence of the defendant adduced to maintain an affirmative issue by him. "The judgment is reversed and a repleader awarded, and cause re- manded. ' ' See Golden v. Knowles, 120 Mass. 336, disregarding an oral demurrer. A bill of exceptions is not necessary to preserve the evidence on de- murrer. Ey. V. Sparrow, 98 Va. 630. But it seems that a bill of excep- tions may be necessary to preserve the question that ihe party was er- roneously compelled to join in a demurrer which did not contain all of the proper admissions. Crowe v. People, 92 111. 230. 296 CONDUCT OF THE TRIAL. [ChAP. IV. the law is upon the fact, he then demurs in law upon the evi- dence, and the precise operation of that demurrer is to take from the jury and to refer to the judge, the application of the law to the fact. In the nature of things, therefore, and reasoning by analogy to other demurrers, and having regard to the distinct functions of judges and of juries, aad attending to the state of the proceeding in which the demurrer takes place, the fact is to be first ascertained. My Lords, with this short introduction, I proceed to the first question proposed to the judges, which is, "Whether upon the state of the evidence given for the plaintiff in this case it was competent to the defendants to insist upon the jury being dis- charged from giving a verdict by demurring to the evidence and obliging the plaintiff to join in demurrer?" Your Lordships' question is confined to this particular case ; but it will be neces- sary for me to proceed by steps. All our books agree that, if a matter of record, or other matter in writing, be offered in evi- dence in maintenance of an issue joined between the parties, the adverse party may insist upon the jury being discharged from giving a verdict, by demurring to the evidence, and obliging the party offering the evidence to join in demurrer. He cannot refuse to join in demurrer ; he must join or waive the evidence. Our books also agree that if parol evidence be offered, and the adverse party demurs, he who offers the evidence may join in demurrer if he will. We are therefore thus far advanced, that the demurrer to evidence is not necessarily confined to written evidence. The language of our books is very indistinct upon the question, whether the party offering parol evidence should be obliged to join in demurrer. Why is he obliged to join in demurrer, when the evidence which he has offered is in writing? The reason is given in Croke's report of Baker's case, because, says the book, "there cannot be any variance of matter in writ- ing. ' ' Parol evidence is sometimes certain, and no more admitting of any variance than a matter in writing, but it is also often loose and indeterminate, often circumstantial. The reason for obliging the party offering evidence in writing to join in de- murrer applies to the first sort of parol evidence, but it does not apply to parol evidence which is loose and indeterminate, which may be urged with more or less effect to a jury, and least of all will it apply to evidence of circumstances, which evidence is meant to operate beyond the proof of the existence of those Sec. 3.] gibson v. hunteb. 297 cireumstanees, and to conduce to the proof of the existence of other facts. And yet, if there can be no demurrer in such cases, there will be no consistency in the doctrine of demurrers to evi- dence, by which the application of the law to the fact on an issue is meant to be withdrawn from a jury and transferred to the judges. If the party who demurs will admit the evidence of the fact, the evidence of which fact is loose and indeterminate, or, in the case of circumstantial evidence, if he will admit the existence of the fact which the circumstances offered in evidence conduce to prove, there will then be no more variance in this parol evidence than in a matter in writing, and the reasons for compelling the party who offers the evidence to join in demurrer will then apply, and the doctrine of demurrers to evidence will be uniform and consistent. That this is the regular course of proceeding, in respect to parol evidence of the nature that I have been describ- ing, I think may be collected from the known case upon this subject, Baker's case. There is also another case, Wright v. Pindar, as it stands reported in Aleyn's Reports, which carries the doctrine further, and home to every case of evidence cir- cumstantial in its nature, affording ground for a conclusion of fact from fact ; and the two cases taken together, I think, prove satisfactorily that the course is that which I have already sup- posed, and which would remove all the difficulties that are in the way of obliging the party to join in demurrer upon parol evi- dence. Baker's case, after stating that the party must join in demurrer, or waive his evidence, where a matter in writing is shown in evidence, goes on thus: "If the plaintiff produces witnesses to prove any matter in fact upon which a question in law arises, if the defendant admits their testimony to be true, there also the defendant may demur in law upon it, but then he ought to admit the evidence given by the plaintiff to be true." Those cases have very carefully marked the precise ground upon which a party may demur to evidence, and prove that if a party may demur, the other party must join in demurrer. According to Aleyn's report of the case of Wright v. Pyndar, which case underwent very serious consideration, it was resolved, "that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the court ; and if the matter of fact be uncertainly alleged, or that it be doubtful whether it be true or no, because offered to be proved by presumptions or probabilities, and the other party demurs 298 CONDUCT OP THE TRIAL. [ChAP. IV. thereupon, he that alleges this matter, cannot join in demurrer with him, but ought to pray the judgment of the court, that he may not be admitted to his demurrer, unless he will confess the matter of fact to be true. ' ' It seems to follow as a necessary con- clusion, that if he will confess the matter of taht to be true, there he is to be admitted to his demurrer, and that if he is admitted, the other party must join in demurrer. My Lords, it is said in some of our books that upon a demurrer entered upon parol evidence the party offering the evidence may choose whether he will join in demurrer or not. But after having stated the two authorities which I have mentioned, I think those passages in the books must be understood with the qualification mentioned in both those authorities, "unless the adverse party will confess the evidence to be true." The matter of fact being confessed, the ease is ripe for judgment in matter of law upon the evidence, and may then be properly withdrawn from the jury ; and, being entered on the record, will remain for the decision of the judges. And this operation of entering the matter upon record, and in- deed the whole operation of conducting a demurrer to evidence, ought to be under the direction and control of the judge at nisi prius, or of the court, if the trial be at the bar of one of the king's courts. I take the whole proceeding upon a demurrer to evidence to be under the control of the judge before whom the trial is had. In the case of Worsley v. Filisker, which is reported in 2 Eolle's Reports, 117, Mr. Justice Dooderidge, who was one of the ablest men upon the bench, said, "the court might deny and hinder a party from demurring by overruling the matter in demurrer, if it seempd to them to be clear in law" ; and the court did in point of fact, in that case, overrule the demurrer and leave the case to the jury. The demurrer in that case was cer- tainly frivolous; but if it had been overruled improperly, it might, I presume, have been the subject of a bill of exceptions. If the court may overrule, it may also regulate the entry of the proceedings upon the record, and the admissions which are to be made, previous to the allowing of the demurrer. And, my Lords, after this explanation of the doctrine of demurrers to evi- dence, I have very confident expectations that a demurrer like the present will never hereafter find its way into this House. My Lords, the answer to the first question that the judges have agreed upon, and which I have endeavored to lay a foundation for, in what I have now offered to the House, is, ' ' That upon the Sec. 3.] Stephens v. white. 299 state of the evidence given for the plaintiff in this case, it was not competent to the defendants to insist upon the jury being discharged from giving a verdict, by demurring to the evidence and obliging the plaintiff to join in demurrer, without distinctly admitting upon the record every fact and every conclusion which the evidence given for the plaintiff conduced to prove. ' ' Your Lordships' second question is, Whether, on this record, any judgment can be given ? To which we answer, that we con- ceive no judgment can be given. The examination of the wit- nesses in this case has been conducted so loosely, or this demurrer has been so negligently framed, that there is no manner of cer- tainty in the state of facts upon which any judgment can be founded. I will not detain your Lordships with particular observations upon the state of the facts as they are contained in this demurrer, because all the observations I could have made were made to your Lordships from within your House at the time these questions were put, and, I believe, felt by everybody that heard them. To the third question. In case no judgment can be given, what ought to be awarded? "We answer, that there ought to be an award of a venire facias de novo: the issue joined between these parties, in effect, has not been tried, and the case of Wright v. Pyndar is expressly in point, that another venire facias should issue. Accordingly a venire de novo was awarded. STEPHENS V. WHITE. 2 Washingion (Va.) 203. [1796.] This was an action on the case brought by the appellant against the appellee in the District Court of Winchester. The declara- tion states that the plaintiff by the advice of the defendant, who was an attorney authorized to practice law, commenced in Novem- ber, 1779, in the County Court of Frederick, an action of debt for £62 against B. Chambers, executor of William Williams, and then and there employed the defendant to prosecute the said suit to judgment, who in consideration thereof undertook to conduct the same to the best of his skill and judgment ; yet the defendant had neglected to do his duty as an attorney, by failing to file a 300 CONDUCT OP THE TBIAL. [ChAP. IV. declaration, whereby the judgment obtained in the said suit was reversed, and the plaintiff had lost his said debts of £62 and costs, and had sustained injury to £ — . Plea not guilty. At the trial the defendant filed a demurrer to the evidence, stating that the plaintiff had proved, by one witness, that after the judgment against Chambers had been obtained, the defendant requested the witness to inform the plaintiff, "that he had re- covered a judgment against Chambers in the suit in which the defendant had been employed by the plaintiff." That it also appeared from the docket of the court in which the judgment was obtained that in July, 1784, the letter "W was placed opposite to the said suit, and the clerk of that court proved that it was customary to write the initial letter of the attorney's name oppo- sie to the suit in which he was concerned ; that the letter W, on that docket, was intended to denote that the defendant appeared as attorney at that court for the plaintiff. The same witness declared that he believed Peter Hogg, then a practicing attorney, ordered the said suit for the plaintiff, but of this he was not certain. That from the same docket it appeared the suit was instituted in November, 1779, and that in March, 1780, no attor- ney appeared of record for the plaintiff; that the suit was put to issue in March, 1783, and it did not appear from any evidence that the defendant appeared as attorney in that suit before July, 1784. That the verdict was given in October, 1784, in favor of the plaintiff for £61 19s. 3d. debt and £49 lis. 4d. damages, and that the same was written on the back of an award, which was the only paper except the writ now filed in that cause. That the judgment was reversed with costs for the want of a declara- tion. That it did not appear that P. Hogg was marked as an attorney upon that docket after the year'1778. That Chambers always had been, and yet is, a resident in the state of Pennsyl- vania. The demurrer being joined, the jury found a verdict for the plaintiff, and assessed his damages at £146 18s. 7d., subject to the opinion of the court upon the demurrer to evidence. The defendant then moved in. arrest of judgment, first, be- cause there is no consideration stated in the declaration, and secondly, because no damages are laid. Judgment for the defendant, from which plaintiff appealed. EoANE, J. * * * The third point respects the demurrer to evidence. The judgment to be given is that the evidence is, Sec. 3.] powle v. Alexandria. 301 or is not, sufficient to maintain the issue joined on the part of the appellee. Of this the jury are the only competent judges, and therefore if the case he withdrawn from their decision by this mode of proceeding, the court must presume any and every fact which the jury might out of complicated testimony have inferred. But those conclusions of fact must be such as the jury might from a just and reasonable construction have made, and not arbitrary inferences, or such as might be drawn from a part only of the whole evidence. The charge is that the defendant commenced and mismanaged the suit. The evidence of the first witness, if it stood alone, might- correspond with this charge, since a jury might consider the message sent to the appellant as having reference to an en- gagement before made to commence and prosecute the suit. But the appellant, not satisfied with this, produced the dockets of the court, which prove strongly, if not satisfactorily, that the appellee was not retained in the cause until July, 1784, and thus every presumption of an engagement at a prior period, arising out of the first piece of testimony, is completely demolished. With an accurate attention to the whole evidence, a jury could not reasonably and properly infer an original engagement, and consequently could not consider the charge laid in the declaration as being sustained. I therefore think that the District Court was wrong in the opinion given upon the motion in arrest of judgment, but that the judgment upon the demurrer to evidence is correct.^ FOWLE V. COMMON COUNCIL OF ALEXANDRIA. 11 Wheaton, 320. [1826.] Mr. Justice Story delivered the opinion of the Court. This is a writ of error from the Circuit Court sitting at Alex- andria for the District of Columbia. The original action was 1 Under the Virginia practice it Green v. Judith, 5 Eandolph, 1; does not appear to be necessary to Hansbrough v. Thorn, 3 Leigh, 147. make formal admissions on the rec- This appears to have been the Eng- ord, but the scope of the admissions lish practice just prior to the de- will be determined by the Court. cision in Gibson v. Hunter. 802 CONDUCT OF THE TEIAL. [ChAP. IV. brought against the defendants to recover damages asserted to have been sustained by the plaintiff, in consequence of the neglect of the defendants to take due bonds and security from one Philip G. Marsteller, licensed by them as an auctioneer for the years 1815, 1816, 1817, and 1818, according to the express provisions of the statute in this behalf enacted. At the trial below, upon the general issue, one of the principal points in controversy was, whether the said Marsteller was, in fact, licensed by the defendants as an auctioneer during the years above stated; and both parties introduced a good deal of evi- dence, for the purpose of supporting or repelling the presumption of the fact. The defendants demurred to the evidence as insuffi- cient to maintain the plaintiff's action, and the record itself contains the whole evidence introduced at the trial, as well as that arising from the testimony of witnesses and that arising from written documents. There is no joinder in demurrer on the record, which is prob- ably a mere defect in the transcript, as the court proceeded to give judgment upon the demurrer in favor of the defendants. With- out a joinder in demurrer, no such judgment could be properly entered; and such joinder ought not to have been required or permitted while there was any matter of fact in controversy between the parties. Indeed, the nature of the proceedings upon a demurrer to evi- dence seems to have been totally misunderstood in the present case. It is no part of the object of such proceedings to bring before the Court an investigation of the facts in dispute, or to weigh the force of testimony or the presumptions arising from the evidence. That is the proper province of the jury. The true and proper object of such a demurrer is to refer to the Court the law arising from facts. It supposes, therefore, the facts to be already admitted and ascertained, and that nothing remains but for the court to apply the law to those facts. This doctrine 'is clearly established by the authorities, and is expounded in a very able manner by Lord Chief Justice Byre, in delivering the opinion of all the judges in the case of Gibson v. Hunter, before the House of Lords. (2 H. Bl. Rep. 187.) It was there held, tliat no party could insist upon the other party's joining in demurrer, without distinctly admitting, upon the record, every fact and every conclusion which the evidence given for his ad- versary conduced to prove. If, therefore, there is parol evidence SeO. 3.] FOWLE V. ALEXANDRIA. 303 in the case, which is loose and indeterminate, and may be applied with more or less effect to the jury, or evidence of circumstances, which is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of other facts, the party demurring must admit the facts of which the evidence is so loose, indeterminate, and circumstantial, before the court can compel the other side to join therein.^ And if there should be a joinder without such admission, leaving the facts unsettled and indeterminate, it is a sufficient reason for refusing judgment upon the demurrer; and the judgment, if any is rendered, is liable to be reversed for error. Indeed, the case made for a demurrer to evidence is, in many respects, like a special verdict. It is to state facts, and not merely testimony which may conduce to prove them. It is to admit whatever the jury may reasonably infer from the evidence, and not merely the circumstances which form a ground of presumption. The principal difference be- tween them is that, upon a demurrer to evidence, a court may infer, in favor of the party joining in demurrer, every fact of which the evidence might justify an inference; whereas, upon a special verdict, nothing is intended beyond the facts found. . Upon examination of the case at bar, it will be at once per- ceived that the demurrer to evidence, tried by the principles already stated, is fatally defective. The defendants have de- murred, not to facts, but to evidence of facts; not to positive admissions, but to mere circumstances of presumption introduced on the other side. The plaintiff endeavored to prove, by circum- stantial evidence, that the defendants granted a license to Marsteller as an auctioneer. The defendants not only did not admit the existence of such a license, but they introduced testi- mony to disprove the fact. Even if the demurrer could be con- sidered as being exclusively taken to the plaintiff's evidence, it ought not to have been allowed without a distinct admission of the facts which that evidence conduced to prove. But when the demurrer was so framed as to let in the defendants' evidence, and thus to rebut what the other side aimed to establish, and to over- throw the presumption arising therefrom, by counter presump- tions, it was the duty of the Circuit Court to overrule the 1 Where the evidence is direct and v. By., 85 111. 500, where judgment certain, specific admissions on the for defendant was afSrmed, though record are not required. Ditto v. the demurrer contained no express Ditto, 4 Dana, 502. See also, Valtez admissions. 304 CONDUCT OF THE TRIAL. [ChAP. IV. demurrer, as incorrect and untenable in principle. The question referred by it to the court, was not a question of law, but of fact. This being, then, the posture of the case, the next consideration is. What is the proper duty of this court, sitting in error ? It is, undoubtedly, to reverse the judgment and award a venire facias de novo. We may say, as was said by the judges in Gibson v. Hunter, that this demurrer has been so incautiously framed that there is no manner of certainty in the state of facts upon which any judgment can be founded. Under such a predicament the settled practice is to award a new trial, upon the ground that the issues between the parties, in effect, has not been tried. Judgment reversed and a venire facias de novo awarded. WOODGATB'S ADMINISTKATRIX v. THRBLKBLD. 3 Bibh (Ky.), 527. [1814.] The judgment in this case was rendered upon a demurrer to evidence tendered by the defendant, in which the evidence given on both sides is stated. This we apprehend cannot regularly be done.^ The defendant could not by demurring cause his own evidence to be taken for true, and the court cannot without usurp- ing the province of the jury decide upon its truth. In principle it is not less absurd for a party to demur to his own evidence, than it would be to demur to his own plea ; and it is believed that there is no precedent to be found in the Bnglish books for the former, no more than there is for the latter practice. The judgment must therefore be reversed and the cause re- manded that a venire facias de novo may be awarded, etc. 1 Accord, Fritz v. Clark, 80 Ind. the demurrant, are taken into ac- 591. count. Oeters v. Supreme Lodge, In Virginia it appears that evi- 98 Va. 201. dence for the demurrant can be con- But see Hart v. Callaway, 2 Bibb, sidered so far as it is not impeached 460 (1811), holding it error to com- and not inconsistent with the evi- pel a joinder in demurrer after the dence demurred to. Green v. Judith, demurrant had introduced his evi- 5 Eandolph 1. And parts of the dence. evidence demurred to, favorable to Sec. 3.] thornton v. bank of "Washington. 305 THORNTON v. BANK OF WASHINGTON. 5 Peters, 36. [1830.] Error to the Circuit Court of the County at Washington, in the District of Columbia. This case was brought before the court to reverse the judgment of the Circuit Court on a demurrer to the evidence offered by the defendants in error, the plaintiffs below, to sustain a claim on Mr. Thornton as indorser on a promissory note discounted at the Bank of Washington for the benefit of one Bailey, the maker of the note. The facts of the case are stated in the opinion of the court, de- livered by Mr. Justice Story. Mr. Justice Story, after stating the facts, delivered the opinion of the court : This case comes before us on a demurrer to the evidence in the court below, taken by the original defendant, now plaintiff in error; and this in our judgment is very important to be con- sidered in the determination of the case. The party who demurs to evidence seeks thereby to withdraw the consideration of the facts from the jury, and is therefore bound to admit not only the truth of the evidence as given, but every fact which that evi- dence may legally conduce to prove in favor of the other party. And if upon any view of the facts the jury might have given a verdict against the party demurring, the court is also at liberty to give judgment against him. The defense set up against this action by the defendant is, that the transaction is usurious, within the meaning of the statute of Maryland against usury, which (it is admitted) is sub- stantially like the English statute on the same subject. To sustain the defense, it has been urged that the receipts of the interest in advance for sixty-four days upon the discount of the note is usury. But we are all of opinion that the taking of inter- est ill advance upon the discount of notes in the usual course of business by a bank is not usury. The doctrine has been long settled, and is not now open for controversy. The taking of the interest for sixty-four days is not usury, if the note, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day. That custom was completely established, not only by the evidence in the present H. T. P.— 20 306 CONDUCT OP THE TRIAL. [ChAP. IV. case, but by that in Renner v. The Bank of Columbia, 9 Wheat. Rep. 581, which is referred to in this record. In the latter case it was expressly held by the court, that under that custom the note was not due and payable before the sixty-fourth day, for until that time the maker could not be in default. Then, again, it is argued, that here there have been successive renewals of the note, or rather successive notes given by way of renewal of the original note, and that these renewals have been on the sixty-third day, and the money credited on that day, on account of the existing note ; and thus in effect sixty-four days ' interest has been taken upon loans for sixty-three days only. If there had been proved any contract between the bank and the party for whose benefit the original discount was made, that the original note should be so renewed from time to time, and the extra day's interest thereupon be taken by the bank, so that the bank would have been bound to make the renewal, and the party would have been bound to renew and not to pay the note at ma- turity, there would have been strong grounds on which to rest the argument. But the difficulty is that no such contract is to be fdund in the evidence, and the party demurring to the evi- dence asks the court to infer it from facts which do not neces- sarily import it, and may well admit of an explanation favorable to the other party. It is quite consistent with every fact in the case that the original discount may have been made without any such contract, and that the application for the renewals may have been made from time to time by the party interested for his own accommodation, and without any previous understanding or co- operation on the part of the bank. For aught that appears, he was at liberty to have paid the original note, or any one of those afterwards given, at the time when it became due. If of choice he had paid it on the sixty-third day instead of the sixty-fourth, there is no pretense to say that it would have been a case of usury. If, instead of payment, he offers a new note for discount, for the purpose of applying the proceeds to the payment or with- drawal of the former note, under the like circumstances, the case is not substantially varied. Each note is considered as a distinct substantive transaction. If no more than the legal interest is taken upon the time the new note has to run, the actual applica- tion of the proceeds of the new note to the payment of the former note, before it becomes due, does not of itself make the transac- tion usurious. Something more must occur. There must be a Sec. 3.] thornton v. bank of Washington. 307 contract between the bank and the party at the time of such discount, that the party shall not have the use or benefit of the proceeds until the former note becomes due, or that the bank shall have the use and benefit of them in the meantime. Such a contract being illegal it not to be presumed ; it must be established in evidence. The argument requires the court to infer such illegality from circumstances in their own nature equivocal and susceptible of different interpretations ; and this in favor of the party demurring to the evidence. Even if the jury might have made such an inference from the evidence, we think it ought not to be made by the court; for the rule of law requires the court in such a case to make every inference and presumption in favor of the other party which the jury might legally deduce from the evidence ;i nor is this any hardship upon the party demurring to the evidence, for it is his own choice to withdraw from the jury, to whom it properly belongs, the consideration of the facts which he relies on as presumptive of usury. Upon the other point suggested in the cause, whether banks are within the statute of usury, we entertain no doubt that they are. But, for the reasons already stated, we are of opinion that the judgment below ought to be afiirmed. 1 Morton, J., in Copeland v. New prima facie case, the defendants may England Ins. Co., 22 Pickering, 135 : demur. But if they wish to set up "The evidence offered in this case any facts in defense, they must re- tends to show, and undoubtedly does sort to the jury to have them estab- show, that the brig insured, in a lished. The depositions introduced squall (not a severe one to be sure), by the plaintiffs were taken by the ran upon a coral reef and was defendants, and thus the facts may totally lost. This proof, by itself, be presented in an order and a form clearly would support the plaintiff's most favorable to the latter. The action. But the defendants contend defendants too, by demurring, admit that the testimony of the same wit- the facts which the evidence con- nesses tends to show, that the ves- duces to prove for the plaintiffs, and sel was run on shore intentionally or cannot avail themselves of such as through the gross incapacity of the it tends to show for the defendants, master. |^ow these are distinct sub- The plaintiffs, by joining in the de- stantive facts, which the defendants murrer, did not admit the truth of wish to establish. It is true the that part of the testimony which is evidence tends strongly, very favorable to the defendants, much strongly, to prove them. But the less any inferences which may be defendants cannot avail themselves drawn from it. If the defendants of these grounds of defense on a wish to set up any facts to exonerate demurrer to the evidence. If the or discharge them, they must look to plaintiffs' evidence does not show a the jury to establish them." 308 CONDUCT OF THE TRIAL. [ChAP. IV. COOLEY V. GALTON. 109 Tennessee, 1. [1902.] Mr. Justice Shields delivered the opinion of the court. This is an action to recover damages for alleged slanderous words spoken by Cooley, the plaintiff in error, of and concerning Galyon, the defendant in error, while being examined as a witness before the master upon a reference to ascertain damages resulting from the wrongful suing out of an injunction issued in the case of Bckle et al. against the Florence Crittendon Home, lately pending in the Chancery Court of Knox county. Galyon and Cooley were both contractors and builders residing in KnoxviUe, and neither was a party to the chancery cause. The declaration contains two counts — one in slander and one in libel — both predicated upon the same words, which are here- inafter set out, in stating the averments of a special plea ffled by the defendant. It is averred that the words were falsely and maliciously spoken and published of and concerning the plaintiff, with respect to his occupation and business as a builder and con- tractor, to his damage, five thousand dollars. The defendant filed a plea of not guilty, and a special plea in which he says that he uttered the language complained of while being examined as a witness in a suit pending in the Chancery Court of Knox county, styled "G. B. Eckle et al. v. Florence Crittendon Home," in answer to questions put to him by counsel in the said cause. * * * While this defense could have been made under the general issue, it could also be made by special plea. Shadden v. McBlwee, 86 Tenn. 148 (5 S. W. 602; 61 Am. St. Rep. 821). Issue was joined, and the case was tried by the circuit judge and a jury, and upon the trial the plaintiff introduced the so- licitor of the complainants in the cause of Eckle and others against the Florence Crittendon Home, as a witness in his behalf, and had him identify the original bill, the answer, the decree denying the complainants relief, and ordering the reference to the master to ascertain the damages sustained by the defendant by reason of the wrongful issuance of the injunction, and the deposition given by defendant, Cooley, in the chancery cause; the original papers being used by consent, all of which were then read in evidence by the plaintiff. Sec. 3.] cooley v. galton, 309 Upon cross-examination the witness identified the depositions of other witnesses taken in the cause, the report of the master allowing damages to the defendant in that cause, and the decree confirming the same, which were then read to the jury by defend- ant 's attorney. Other evidence was introduced by the plaintiff tending to prove that the defendant gave the deposition read, and entertained malice toward the plaintiff. The proof introduced by the plaintiff sustained the averments of the special plea, and upon the conclusion of plaintiff's evidence the defendant filed a demurrer, in proper form, thereto, which was overruled by the court, and the damages of the plaintiff assessed by the jury at five hundred dollars, and judgment given therefor; and the defendant has brought the case before this court, and assigns error. For the plaintiff it is said that the defendant, by calling out and reading in evidence those portions of the record in the chancery cause which the plaintiff had not offered, introduced original evidence in his behalf, and lost his right to demur to the evidence of the plaintiff, and that for this reason the action of the court in overruling the demurrer was correct, regardless of other questions. It is true that, if a defendant introduce any original evidence in his behalf, he cannot demur to the evidence of the plaintiff; but can it be said that the evidence elicited by the defendant in this case was original evidence? Clearly not. The plaintiff had introduced part of the record in the chancery cause, and it was perfectly competent for the defendant to call for the remainder of it. It would have been the better practice to have required the plaintiff to read the entire record; but, having failed to do so, the defendant had the right to call for the rest of it, and examine the witness then upon the stand in relation to it. This was legitimate cross-examination, in the strictest sense, as the evidence brought out related to and was germane to that elicited in the examination in chief. But whether germane or not, the defendant had the right to bring out upon cross-examination any matter pertinent to the issue ; the rule in Tennessee being that the cross-examination is only limited by relevancy and competency of the evidence sought to be intro- duced, and the defendant, by exercising this right, is not pre- cluded from demurring to the evidence. This question was fully discussed in the case of Sands v. Eailway Co., 108 Tenn. 1 (64 S. W. 478), and the rule there stated as here applied. 310 CONDUCT OF THE TRIAL. [ChAP. IV. The question upon which this case must be determined is whether the language imputed to the defendant is actionable. # # * Applying these principles to this case, the question is not whether the words spoken by the defendant were false and malicious, but were they spoken in a judicial proceeding, and were they relevant and pertinent to the subject of inquiry in that proceeding, or responsive to questions propounded to the defendant by counsel while being examined therein as a witness ? If they were, they are absolutely privileged, and the plaintiff's action must fail. That the words were spoken in the course of a judicial pro- ceeding is conceded; and the only question that remains to be determined is, Were the answers of the witness pertinent to the inquiry or responsive to the question asked by the counsel ? The issue being tried in the chancery cause, in relation to which the defendant was examined as a witness for the Florence Crittenden Home, was what damages it had sustained by being delayed in building a house by the injunction issued against it ; and defend- ant was called to testify as to the difference in the cost of material and construction at the time the injunction was issued and when the bill was dismissed, as bearing upon this issue. The plaintiff, Galyon, had offered to build the house for the same price for which the defendant had contracted it when enjoined, and the question arose whether he was a reliable contractor, and would and could comply with a contract to do the building if it were let to him; and, with a view of proving this, the witness was cross-examined by the solicitor for the complainants, and made the answers of which the plaintiff complains. These answers were clearly pertinent to the investigation. If Mr. Galyon was a reliable contractor, his proposition to build the house tended to prove that the defendant had sustained no loss; and, if he was unreliable, the effect of the proposition as evidence was weakened. The answers were also fairly, and evi- dently intended to be directly, responsive to the questions pro- pounded to the witness. If the plaintiff did not pay for the material he used in building, or did not use the character of material called for in his contract, he was not a reliable con- tractor. "We are of the opinion that the words spoken by the defendant of the plaintiff were, on account of the occasion, absolutely Sec. 4. J bushell's case. 311 privileged, and that no action can be maintained upon them. There is, therefore, no evidence to sustain a verdict against the defendant, and the demurrer to the plaintiff's evidence should have been allowed.^ The judgment of the Circuit Court is reversed, the demurrer sustained, and the plaintiff's suit dismissed. Section 4. Direction of the Verdict. (a) When Proper. BUSHELL'S CASE. Vaughom, 135. [1670.] The King's Writ of Habeas Corpus, dat. 9 die, Novembris, 22 Car. 2, issued out of this court, directed to the then sheriffs of London, to have the body of Edward Bushell, by them de- tained in prison, together with the day and cause of his caption and detention, on Friday then next following, before this court, to do and receive as the court should consider; as also to have then the said writ in court. [The sheriffs returned that the prisoners were held under the following order of commitment made at a session of the Court of Oyer and Terminer:] Ordmatum est per Curiam hie quod Fi/nis 40 Marcarum sep- aratim ponatur super Edwardum Bushell, and other eleven per- sons particularly named, and upon every of them, being the twelve jurors then and there sworn, and charged to try several issues, then and there joined between our Lord the King and William Penn and William Meade, for certain trespasses, contempts, un- lawful assemblies and tumults, made and perpetrated by the said Penn and Mead, together with divers other unknown persons, to the number of three hundred, unlawfully and tumultuously assembled in Grace-Church street, in London, to the disturbance of the peace, whereof the said Penn and Mead were then indicted iSee also, Corbett v. Smith, 108 tributory negligence); Gerity v. Tenn. 368 (assumption of risk) ; Haley, 29 W. Va. 98 (contributory Fowler v. Ey., 18 W. Va. 579 (con- negligence). 312 CONDUCT OP THE TRIAL. [ChAP. IV. before the said justices. Upon which indictment the said Penn and Mead pleaded they were not guilty. For that they the said jurors then and there the said William Penn and William Mead of the said trespasses, contempts, unlawful assemblies and tumults, Contra Legem hujus Eegni Angliae, & contra plenam & manifestam Evidentiam, & contra directionem Curiae in materia Legis, hie, de & super p'missis eisdem Juratorihus versus p'fatos Will. Penn & Will. Mead, in Curia hie aperte datam,, & declaratam de p'missis iis impositis in Indactamento p'dicto acquietaverunt, in contemptum D'ni Regis nunc, Legumque Suarum, & ad magnum inpedimentum & ohstruc- tionem Justitiae, necnon ad malu/m exemtplum ommium aliorum Juratorum in consimili casu delinquentium. Ac super inde modo ulterius ordinatum est per Cur' hie quod p'fatu^ Edw. Bushell capiatur & com/mittatur Gaolae dicti D'ni Regis de Newgate, ibidem remansurus quousque solvat dicto D'no Regi 40 Marcos p' fine sue p'dicto, vel deliberatus fuerii, per dehitum legis cursum} Vaughan, C. J. * * * I conclude, therefore, that this retorn, charging the prisoners to have acquitted Penn and Mead, against full and manifest evidence first ; and next, without saying that they did not know and believe that evidence to be full and manifest against the indicted persons, is no cause of fine or im- prisonment. And by the way I must here note, that the verdict of a jury and evidence of a witness are very different things, in the truth or falsehood of them. A witness swears but to what he hath heard or seen generally, or more largely to what hath fallen under his senses ; but a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after ; which differs nothing in the reason, though much in the punishment, from what a judge, out of various cases considered by him, infers to be the law in the question before him. We come now to the next part of the retorn, viz., that the jury acquitted those indicted against the direction of the court in matter of law, openly given and declared to them in court. 1. The words, that the jury did acquit against the direction of the court in matter of law, literally taken, and de piano, are 1 The statement h^s been con- densed, and parts of the opinion omitted — Ed. Sec. 4.] bushell's case. 313 insignificant, and not intelligible ; for no issue can be joined of matter in law, no jury can be charged with the tryal of matter in law barely, no evidence ever was, or can be given to a jury of what is law or not; nor no such oath can be given to, or taken by a jury, to try matter in law, nor no attaint can lie for such a false oath. Therefore we must take off this veil and color of words, which make a show of being something, and in truth are nothing. If the meaning of these words, finding against the direction of the court in matter of law, be, that if the judge having heard the evidence given in court (for he knows no other) shall tell the jury upon this evidence, the law is for the plaintiff, or for the defendant, and you are under the pain of fine and imprison- ment to find accordingly, then the jury ought of duty so to do : Every man sees that the jury is but a troublesome delay, great charge, and of no use m determining right and wrong, and there- fore the tryals by them may be better abolished than continued ; which were a strange new-found conclusion, after a tryal so cele- brated for many hundreds of years. For if the judge, from the evidence, shall by his own judgment first resolve upon any tryal what the fact is, and so knowing the fact, shall then resolve what the law is, and order the jury penally to find accordingly : what either necessary or convenient use can be fancied of juries, or to continue tryals by them at all 1 And how the jury should in any other manner, according to the course of tryals used, find against the direction of the court in matter of law, is really not conceptible. True it is, if it fall out upon some special tryal that the jury being ready to give their verdict, and before it is given the judge shall ask. Whether they find such a particular thing propounded by him ? or whether they find the matter of fact to be as such a witness or witnesses have deposed ? and the jury answer, They find the matter of fact to be so ; if then the judge shall declare. The matter of fact being by you so found to be, the law is for the plaintiff, and you are to find accordingly for him. If notwithstanding they find for the defendant, this may be thought a finding in matter of law against the direction of court ; for in that case the jury first declare the fact as it is found by themselves, to which fact the judge declares how the law is con- sequent. And this is ordinary when the jury find unexpectedly for the 314 CONDUCT OP THE TRIAL. [ChAP. IV. plaintiff or defendant, the judge will ask, How do you find such a fact in particular ? And upon their answer, he will say. Then il^is for the defendant, though they found for the plaintiff, or e contrario; and thereupon they rectifie their verdict. And in these cases the jury, and not the judge, resolve and find what the fact is. Therefore always in discreet and lawful assistance of the jury, the judge 's direction is hypothetical, and upon supposition, and not positive, and upon coercion, viz.. If you find the fact thus (leaving it to them what to find), then you are to find for the plaintiff ; but if you find the fact thus, then it is for the defendant. But in the case propounded by me, where it is possible in that special manner, the jury may find against the direction of the court in matter of law, it will not follow they are therefore finable ; for if an attaint will lie upon the verdict so given by them, they ought not to be fined and imprisoned by the judge for that ver- dict; for all the judges have agreed upon a full conference at Serjeants Inn in this case. And it was formerly so agreed by the then judges, in a case where Justice Hide had fined a jury at Oxford for finding against their evidence in a civil cause, that a jury is not finable for going against their evidence where an attaint lies ; for if an attaint be brought upon that verdict, it may be affirmed and found upon the attaint a true verdict, and the same verdict cannot be a false verdict; and therefore the jury fined for it as such by the judge, and yet no false verdict, because affirmed upon the attaint. But no case can be offered, either before attaints granted in general, or after, that ever a jury was punished by fine and im- prisonment by the judge, for not finding according to their evidence and his direction, until Popham's time; nor is there clear proof that he ever fined them for that reason, separated from other misdemeanor. If juries might be fined in such case before attaints granted, why not since? For no statute hath taken that power from the judge. But since attaints granted, the judges resolved they cannot fine where the attaint lies, therefore they could not fine before. Sure this latter age did not first dis- cover that the verdicts of juries were many times not according to the judge 's opinion and liking. But the reasons are, I conceive, most clear, that the judge could not, nor can, fine and imprison the jury in such cases. Without a fact agreed, it is as impossible for a judge or any Sec. 4.] bushell's case. 315 other to know the law relating to that fact, or direct concerning it, as to know an accident that hath no subject. Henee it follows, that the judge can never direct what the law is in any matter controverted, without first knowing the fact; and then it follows, that without his previous knowledge of the fact, the jury cannot go against his direction in law, for he could not direct. But the judge, qua judge, cannot know the fact possibly, but from the evidence which the jury have, but (as will appear) he can never know what evidence the jury have, and consequently he cannot know the matter of fact, nor punish the jury for going against their evidence, when he cannot know what their evi- dence is. It is true, if the jury were to have no other evidence for the fact but what is deposed in court, the judge might know their evidence, and the fact from it, equally as they, and so direct what the law were in the case, though even then the judge and jury might honestly differ in the result from the evidence, as well as two judges may, which often happens. But the evidence which the jury have of the fact is much other than that : for, 1. Being returned of the vicinage whence the cause of action ariseth, the law supposeth them thence to have sufficient knowl- edge to try the matter in issue (and so they must), though no evidence were given on either side in court ; but to this evidence the judge is a stranger. 2. They may have evidence from their own personal knowledge, by which they may be assured, and sometimes are, that what is deposed in court is absolutely false ; but to this the judge is a stranger, and he knows no more of the fact than he hath learned in court, and perhaps by false depositions, and consequently knows nothing. 3. The jury may know the witnesses to be stigmatized and in- famous, which may be unknown to the parties, and consequently to the court, 4. In many cases the jury are to have view necessarily, in many by consent, for their better information; to this evidence likewise the judge is a stranger. 7. To what end is the jury to be returned out of the vicinage whence the cause of action ariseth? To what end must 316 CONDUCT OF THE TRIAL. .[ChAP. IV. hundredors be of the jury, whom the law supposeth to have nearer knowledge of the fact than those of the vicinage in gen- eral? To what end are they challenged so scrupulously to the array and poll? To what end must they have such a certain freehold, and be probi and legales hmmnes, and not of affinity with the parties concerned? To what end must they have in many cases the view, for their exacter information chiefly? To what end must they undergo the heavy punishment of the villain- ous judgment, if after all this they implicitly must give a verdict by the dictates and authority of another man, under pain of fines and imprisonment, when sworn to do it according to the best of their own knowledge? A man cannot see by another's eye, nor hear by another's ear, no more can a man conclude or infer the thing to be resolved by another's understanding or reasoning; and though the verdict be right the jury give, yet they being not assured it is so from their own understanding, are forsworn, at least in foro con- scientiae. 9. It is absurd a jury should be fined by the judge for going against their evidence, when he who fineth knows not what it is, as where a jury find without evidence in court of either side, so if the jury find upon their own knowledge ; as the course is if the defendant plead solvit ad diem to a bond proved, and offers no proof, the jury is directed to find for the plaintiff, unless they know payment was made of their own knowledge, according to the plea. And it is as absurd to fine a jury for finding against their evidence, when the judge knows but part of it ; for the better and greater part of the evidence may be wholly unknown to him; and this may happen in most cases, and often doth, as in Graves and Short's Case, 40 El. Cro. f. 616. That deeantatum in our books, ad quaestionem facti non re- spondent judioes, ad quaestionem legis non respondent juratores, literally taken, is true : for if it be demanded, What is the fact ? the judge cannot answer it ; if it be asked, What is the law in the case? the jury cannot answer it. Therefore the parties agree the fact by their pleading upon demurrer, and ask the judgment of the court for the law. In special verdicts the jury inform the naked fact, and the court deliver the law ; and so is it in demurrers upon evidence, in arrest of judgments upon challenges ; and often upon the judge 's Sec. 4.] chichester v. philips. 317 opinion of the evidence given in court the plaintiff becomes non- suit, when if the matter had been left to the jury they might well have found for the plaintiff. The prisoners were discharged. CHICHESTER v. PHILIPS. T. Raymond, 404. [B. R. 1680.] The plaintiff Philips in the action, brought the action first in C. B. in Ireland, and declared of the demise of Roger Masterson, Esq., for eleven years. Upon not guilty pleaded, and a trial at the bar in C. B. there was a bill of exceptions put in by the defendant, which was as follows: * * * That the defendant gave in evidence to prove that she was not guilty, that the said Roger Masterson long before the said demise to the plaintiff, viz., 4 January, 1672, by indenture for money bargained and sold the premises to one Edward Chichester for 500 years, that the said Edward Chichester afterwards, viz., 14 February, 1673, did make his last will in writing, and thereof made his brother, John Chichester, his executor and William Hancock overseer. And to prove that he made the said will, she produced an instrument under the seal of the prerogative court of Canterbury, reciting the said will, and that the said John Chichester was beyond the seas, and a grant of the admin- istration to the said William Hancock for so long time as the said executor shall be beyond sea, dat. 3 September, 1674. * » * Whereupon the said Elizabeth, without any further proof of the said will, desired the said justices that they would direct the jury that the said writings produced by her were conclusive evidence to prove that the said Edward Chichester made the said will, and so she was not guilty of the said trespass and ejectment. Nevertheless the said justices did only direct the jury that the said writings were evidence, upOn which they might find that the said Edward made the said will, but not that the same was conclusive evidence in that behalf, and so left it indifferently to the jury, whether the said Edward made the said will or no, though the plaintiff offered nothing against the said will, but the said letters of administration granted by the said archbishop 318 CONDUCT OP THE TRIAL. [ChAP. IV. of Armagh; whereupon the jury found that the said Edward made no such will ; thereupon judgment was given in B. B. for the plaintiif, and the defendant brought a writ of error in B. E. in Ireland, and there the judgment was affirmed; and now she hath brought a writ of error here, and assigns for error, the not allowing of the evidence to be conclusive, as in the bill of exceptions is alleged. And here also judgment was affirmed by the whole court, because though the evidence be conclusive, yet the jury may hazard an attaint if they please ; ^ and the proper way for the defendant had been to have demurred upon the plaintiff's evidence. This question, whether the probate is con- clusive, hath been variously allowed; but of later days it hath been adjudged, that nothing can be given in evidence against it, but forgery of it, or its being obtained by surprise. COLLEGE OF PHYSICIANS v. LEVBTT. 1 Lord Raynumd, 472. [1701.] The plaintiffs brought debt against the defendant for £25 for having practised physick within London five months, without license. Upon nil debet pleaded, it was tried before Holt, chief justice of the king's bench in London at Guildhall, on Tuesday, the 18th of November, 1701, in Michaelmas term, 10 Will. 3. And the defendant 's defense was, that he was a graduate doctor of Oxford. But it was ruled by Holt, upon consideration of all the statutes concerning this matter, that he could not practise within London, or seven miles round, without license of the college of physicians. And by his direction a verdict was given for the plaintiffs.^ 1 The question as to the power of mond, 89, but it is probably inaccu- the Court to set aside a verdict and rate. In Wright v. Crump, 7 Mod- grant a new trial had been raised ern, 1 (1702) the same judge is re- somewhat earlier in Slade's Case, ported as saying: "If a jury give Style 138 (1648). a verdict on their own knowledge, 1 And so in Thomas v. Bishop, 2 they ought to tell the Court so ; but Strange, 955 (1733). the fairer way had been for such of The report seems to indicate that the jury as had knowledge of the Lord Holt directed a verdict for matter, before they are sworn, to plaintiff, on oral testimony in 1696, tell the thing to the Court, and be in Wilkinson v. Kitchin, 1 Ld. Eay- sworn as witnesses. ' ' Sec. 4.] stderbottom v. smith. 319 SYDERBOTTOM v. SMITH. 1 Strange, 649. [1723.] In an action against the endorser of a promissory note, the chief justice directed the jury to find for the defendant, because the plaintiff had not proved ^ diligence to get the money of the drawer, being of the old opinion that the endorser only warrants upon the default of the drawer. Vide Collins v. Butler, post. 1087. COMPANY OF CARPENTERS v. HAYWARD. 1 Douglas, 374. [B. R. 1780.] This was an action on the case, against a carpenter, for the breach of a custom, which was laid to be, that none but members of the company (being a corporation by prescription), or their apprentices, or journeymen, should exercise, in Shrewsbury, or within a certain district round that town, any of the trades mentioned in the title of the company. The cause was tried the last assizes for Shropshire, before Heath, Sergeant, and a verdict found for the plaintiffs. On Thursday, the 13th of April, Howorth obtained a rule to show cause why a nonsuit should not be entered, or a new trial granted ; ^ and the case came on to be 1 Eich V. Johnson, 2 Strange, 1142 i The practice of taking up such (B. E. 1740): "In ejectment for questions by bill of exceptions ap- mines the plaintiff proved himself pears somewhat later, though it was lord of the manor, and that he was tried in Chichester v. Philips (1680), in possession thereof. But the same ante, p. 317. Best, J., (in Bulkeley witness proving, that the defendants v. Butler, 2 B. & C, 434 [1824]): had had possession of the mines ' ' The question appears so clear, that above twenty years; the Court upon I certainly should abstain from say- a trial at bar held this no evidence ing anything upon it, were it not to avoid the statute of limitations, for the importance of all matters there being no entry within twenty touching the law of evidence. At years upon the mines, which are a first I entertained a doubt, whether distinct possession, and may be dif- the objection raised could be taken ferent inheritances: and therefore advantage of by bill of exceptions, directed the jury to find for the de- The respective ofBces of bills of ex- fendants. " captions and demurrers to evidence 320 CONDUCT OF THE TRIAD. [Chap. IV. argued, this day, by Bearcroft, for the plaintiffs, and Howorth, for the defendant. * * * Lord Mansfield. 1. It was properly left to the jury to con- sider whether the evidence produced was sufficient to show that there was such a company ; for that was a mere question of fact ; and they were to decide on its existence, and whether it was originally created by a charter from the crown or was only a voluntary society. There was evidence of its existence as a corporation. 2. The witnesses rejected were clearly interested in the question. If the company had failed in establishing the custom, they would have been discharged from actions to which they are liable for the breach of it. WiLLES and Ashhuest, Justices, of the same opinion. BuLLER, Justice. 1. Whether there be any evidence is a ques- tion for the judge. Whether sufficient evidence is for the jury. 2. The objection to the witness produced for the defendant was certainly decisive ; nor is it true that he could have had no other sort of witnesses. The employers might have been witnesses. The rule discharged. have not been very distinctly under- stood, as appears by the judgment of Eyre, C. J., in Gibson v. Hunter, 2 H. Bl. 187. It appears to me now, that this objection is open on a bill of exceptions, but that the party making it should not be placed in a better situation than if he had de- murred to the evidence. Bills of exceptions were not known to the common law, but were introduced by the 13 Edw. 1 c. 31. UntU that time, if the judge decided wrongly upon any point of law, the suitor was without remedy. The statute was made to relieve parties from that hardship, it should therefore receive a liberal exposition; for which reason, although it appears to have been applicable originally to decisions upon pleadings only (which at that time were carried on ore tenus), yet I think it may fairly be extended to such a case as the pres- ent. In the 2 Inst, p. 427, Lord Coke says it extends to cases where any material evidence given to any jury is by the Court overruled. I think we ought to go further, and say, that where there is not evidence to prove the issue to be tried, and the judge tells the jury there is, that is ground for tendering a bill of ex- ceptions. But it may be asked what then is the of&ce of a demurrer to evidence? It is this. If the party tenders a biU of exceptions, the evidence must be left to the jury; but if the party does not wish that, he may withdraw it from their con- sideration by a demurrer. If, how- ever, he does not demur, he must not be placed in a better situation than if he did. Now, by a demurrer to evidence, all the f adts of which there is any evidence are admitted, and all conclusions which can faiily and logically be deduced from those facts." Sec. 4.] toomey v. london, etc., et. co. 321 TOOMEY V. LONDON, ETC., RY. CO. 3 Common Bench (N. S.), 146. [1857.] This was an action in which the plaintiff sought to recover damages against the London, Brighton and South Coast Railway Company for an injury sustained by the plaintiff from alleged negligence on the part of their servants. The declaration stated, that, before and at the time of com- mitting of the grievances thereinafter mentioned, the defendants were possessed of a public railway station, to-wit, at Forest Hill, for the reception of passengers in and by the defendants' railway, for the profit and advantage of the defendants, and -by reason of the possession and use of the said railway station by the defendants for the purpose aforesaid, they ought to have kept the same in a reasonably safe and secure condition, and so as not to be dangerous to persons lawfully and properly using the same ; nevertheless, the defendants failed in such duty, and by means of the mere neglect and default of the defendants in that behalf, the plaintiff, who was lawfully in and using the said station as a passenger of the defendants, and with their permission, and for their profit and advantage, fell through a door, which the defendants then carelessly, negligently, and improperly left open and unguarded, in the said station, and which was by the neglect and default of the defendants in that behalf dangerous to persons lawfully and properly using the same, into a deep cellar or hole, and thereby sustained divers bodily injuries, and became permanently wounded in health and disabled from following his trade of hawker, or otherwise earn- ing his living, and was put to expense, and spoiled his clothes which he had on, and lost divers of his goods, and money, which he had with him when he fell, and was and is otherwise injured. And the plaintiff claimed £500. The defendants pleaded not guilty. The cause was tried before Cressweld, J., at the first sitting at Westminster in this term. The facts were as follows: The plaintiff, a poor and illiterate person who carried on the employ- ment of 3 hawker, went to the Forest Hill station of the London, Brighton and South Coast Railway, for the purpose of proceed- ing to London by the 10 :30 P. M. train. "Whilst waiting there, he inquired of a person on the platform, unconnected with the H. T. P.— 21 322 CONDUCT OF THE TEIAL. [ChAP. IV. railway, where he should find a urinary; this person told him to go to the right ; he did so, and found two doors, upon one of which was painted the words "For gentlemen," and upon the other the word "Lamproom ; " there being a light over the former, but none over the latter. The plaintiff, being in a hurry, and unable to read, opened the wrong door, stepped forward, and fell down some steps, breaking two of his ribs, and otherwise seriously hurting himself. There was no evidence as to the description of the steps down which the plaintiff fell, nor as to the state in which the door of the lamproom was ordinarily kept; but the plaintiff's son stated, that, when he went some time after the accident to look at the place he found the door locked. On the part of the defendants, it was submitted that there was no evidence to go to the jury of negligence, and that the accident was attributable entirely to the plaintiff's own want of caution in going hastily and in the dark through a strange door. The learned judge was of this opinion, and the plaintiff was nonsuited, with leave to move to enter a verdict for £35 (agreed damages), if the court should be of opinion that there was evi- dence which ought to have been submitted to the jury. Williams, J. I am of opinion that there should be no rule in this case. I think there was no evidence of negligence on the part of the company or their servants which ought to have been submitted to the jury. It is not enough to say that there was some evidence ; for, every person who has had any experience in courts of justice knows very well that a case of this sort against a railway company could only be submitted to a jury with one result. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence. ^ All that appeared, 1 In Bridges v. North London Ey. is bound to maintain? It may be Co., 7 L. B. Eng. & Irish Appeals, said that this is so indefinite as to 213, Mr. Justice Brett stated the amount to no rule, that it leaves the test as follows : ' ' The proposition judge after aU to say whether in his seems to me to be this: are there individual opinion the facts in evi- facts in evidence which if unan- dence would prove the proposition; swered would justify men of ordi- but I cannot think so. It is surely nary reason and fairness in aflS.rm- possible to admit that reasonable ing the question which the plaintiff and fair men might come to a con- SeO. 4.] TOOMET V. LONDON, ETC., RT. CO. 323 was, that the plaintiff inquired of a stranger the way to the urinal, and, being told to go in a particular direction where there were two doors, unfortunately opened the wrong one, and through his own carelessness fell down some steps. If there had been any evidence to show that these steps were more than ordinarily dangerous, that possibly might have led to a different conclusion. But all that appears is, that the door in question led down some steps into a room which was used for the purposes of the company, and not for the convenience of the public. I cannot say that there was such evidence of negligence in the defendants as the learned judge was bound to leave to the jury. WiLLES, J. I am entirely of the same opinion. In order to establish a case of negligence against the defendants, it was incumbent on the plaintiff to prove some fact which was more consistent with negligence than with the absence of it. There was nothing of the sort proved here. There was nothing to show that the door and the steps beyond were more than ordinarily dangerous; and it was necessary and proper that something of the sort should be there for the convenient use of the station by the company. It would be difficult so to arrange every part of a station as to render it impossible for careless persons to meet elusion which one's self would not there facts in evidence upon which, arrive at. And judges may be able if unanswered, men of ordinary rea- reasonably to say frequently, that son and fairness might fairly say although they would not upon the that any such act of commission or facts have come to the same conclu- omission was such as a person of sion to which the jury has come, reasonable care and skill under the yet they or he cannot say but that same circumstances would have done reasonable and fair men might agree or omitted to do? Are there facts with the conclusion of the jury; or, in evidence upon which, if unan- in other words, that, although they swered, men of ordinary reason and would not have arrived at the same fairness might fairly say that the conclusion, it is not contrary to rea- plaintifE had not, in a manner con- son to have arrived at it. tributing to the accident, done any- "The judge must, therefore, be- thing or omitted to do anything fore directing the jury in the terms which a person of ordinary care and above set forth, first determine the skill under the same circumstances following questions : Are there facts would not have done or would have in evidence upon which, if unan- done?" swered men of ordinary reason and See comments on this case by fairness might fairly say that the Lord Cairns in Metropolitan Ry. v. plaintiff had been injured by some Jackson, L. E. 3 Appeal Oases (H. act of commission or omission by of L.) 193. the defendants or their servants? Are 324 CONDUCT OF THE TRIAL. [ChAP. IV. with injury. I think the plaintiff failed to make out that he sustained the injury complained of through any negligence of the company or their servants. Rule refused. RICHARDSON v. CITY OF BOSTON. 19 Howard, 263. [1856.] Gkier, j. * * * 2. At the conclusion of the trial, the court, at the request of defendant's counsel, instructed the jury "that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff. ' ' As it is the duty of the jury to decide the facts, the sufficiency of evidence to prove those facts must necessarily be within their province. The jury cannot assume the truth of any material averment without some evidence ; and it is error in the court to instruct the jury that they may find a material fact of which there is no evidence. An instruction like this is imperative on a jury; it has taken the place, in practice, of a demurrer to evidence, and must be governed by the same rules. If there be "no evidence whatever," ^ as in the case of Parks v. Ross (11 1 See also, O 'Kelly v. O 'Kelly, 8 withhold the facts from the jury. Met. 436. Similar statements are when they are not such as can afford to lie found in most of the states at any ground for finding an accept- this time. But in 1862, the rule was ance; and this includes cases where, stated as follows in Denny v. Wil- though the Court might admit that Hams, 5 Allen (Mass.) 1: "In there was a scintilla of evidence such cases, a refusal of the judge to tending to show an acceptance, they instruct the jury that the evidence would still feel bound to set aside a is insufficient is a good ground of verdict finding an acceptance upon exception. It is not necessary that that evidence. ' What this scintilla there should be absolutely no evi- is, needs to be stated a little more dence. The rule, as stated in definitely; otherwise it may be un- Browne on the St. of Frauds, e. derstood to include all eases where, 15, sec. 321, is sustained by the on a motion for a new trial, a ver- authorities cited: 'Whether there diet would be set aside, as against has been a delivery and acceptance the weight of the evidence. It would suflB.cient to satisfy the statute of be impossible to draw a line theo- frauds is a mixed question of law letically, because evidence in its and fact. But it is for the Court to very nature varies from the weakest Sec. 4.] pleasants v. pant. 325 How. 393), to prove the averments of the declaration, it is the duty of the court to give such peremptory instruction. But if there be some evidence tending to support the averment, its value must be submitted to the jury with proper instructions from the court. If this were not so, the court might usurp the decision of facts altogether, and make the verdict but an echo of their opinions. * * * There was some evidence that the drain constructed by defend- ant was not carried out sufficiently to discharge its contents so as to be swept off by the tides ; but that it caused an accumulation of matter at the outer end of the plaintiff's wharves, insomuch that vessels could not approach them with the same depth of water as formerly. If this be so, it was an injury to the plain- tiff, for which he was entitled to recover damages. This question should have been submitted to the jury, and this instruction given, as requested by plaintiff's counsel. The others are disposed of by the opinion of this court in Boston v. Lecraw. For these reasons the judgment is reversed, and venire de novo awarded. PLEASANTS v. FANT. 22 Wallace, 116. [V. 8. Sup. 1874.] Error to the Circuit Court for the District of Maryland. R. & H. Pleasants sued Fant in the court below, and the single question in dispute was whether the defendant was a partner in the firm of Keene & Co., so as to charge him with a debt conceded to the strongest, by imperceptible diet would be sufifered to stand, the degrees. But the practical line of cause should not be taken from the distinction is, that if the evidence jury, but should be submitted to is such that the Court would set them under instructions. This rule aside any number of verdicts ren- throws upon the Court a duty which dered upon it, toties quoties, then may sometimes be very delicate; but the cause should be taken from the it seems to be the only practicable jury, hy instructing them to find a rule which the nature of the case verdict for the defendant. On the admits." other hand, if the evidence is such As to the difference between di- that, though one or two verdicts ren- lecting a verdict and setting one dered upon it would be set aside aside, see McDonald v. By., 167 N. on motion, yet a second or third ver- Y. 66. 326 CONDUCT OF THE TRIAL. [ChAP. IV. to be due by that firm to the plaintiffs, arising out of some transactions in cotton. The case was tried before a jury, and when the testimony was through, both plaintiffs and defendant prayed instructions of the court, which were all refused, and the court said to the jury: "There is no evidence in this cause from which the jury can find that the defendant had such an interest in the purchase and sale of the cotton by Keene & Co. as will make him, the defend- ant, a partner as to third persons, and the jury will, therefore, find their verdict for defendant." The bills of exception disclosed the testimony on which this instruction was founded, and the question now before this court was whether the verdict founded on that instruction should be set aside and the judgment reversed. The direct testimony ofi'ered to prove the partnership was confined to the statements of Pant in a conversation with one of the plaintiffs and a clerk in their office, and the deposition of Keene, a partner of Keene & Co. The substance of the former was that Fant denied that he was a partner, said he knew from some experience what was necessary to make him a partner, and admitted that he had procured for Keene a loan of $10,000 in gold from a bank of which he was president, and that he was to receive part of the profits of Keene 's venture in purchasing cotton with that money, as compensation for procuring the loan. What portion of the profits he was to receive was not stated. Keene in his deposition denied that Fant was a partner in the transaction, but said that Fant had negotiated for him the loan from the bank, and he had made Fant a promise, which was entirely voluntary, to give him a part of the profits he might realize, and that he had mentioned no particular part or pro- portion of the profits to be so given. After the admission of this testimony, the plaintiffs, on the ground that they had sufficiently shown a relation between Fant and Keene to admit of Keene 's declaration to third persons as to Pant's interest, offered to prove by one of the plaintiffs that Keene had told him Fant was a partner, and asked that the plaintiffs would advance money enough on the cotton then in their possession as brokers to enable him to pay Pant his money and let him out of the firm. This offer was objected to and the objection sustained by the court. A large amount of testimony, however, was admitted, the Sec. 4.] pleasants v. pant. 327 object of which was to show that Fant, as president of the bank, was in the habit of using the money of the bank in private specu- lations, without the knowledge of the directors, but which was very feeble and far from establishing that fact. Verdict and judgment having been given for the defendant, the plaintiffs brought the case here. Mr. Justice Miller delivered the opinion of the court. If the admission of Fant to plaintiffs, and the evidence of Keene, are insufficient to raise a pri/ma facie presumption of partnership, then Keene 's declarations on that subject were inadmissible, and the court was right in its instruction to the jury. If it was sufficient for that purpose then it was erroneous, and the evidence here offered of Keene 's statements to plaintiffs was improperly excluded. The case rests after all on the question whether in Fant's declaration to the plaintiffs and Keene 's deposition there was evidence of a partnership on which a verdict for plaintiff could have been sustained. We have been favored by counsel with a reference, 'very learned and very exhaustive, to the authorities on the question of how far or when a participation in the profits subjects a party to the liability of a partner to third persons. And it must be con- fessed that some of the discriminations, where profits are used as compensation for definite services, are very nice. We do not think that a close examination into these is neces- sary in this ease. According to Keene 's testimony there was clearly no contract binding him to divide the profits with Fant. He says the promise was entirely voluntary, and that no portion of the profits was mentioned. By voluntary he undoubtedly means that it was not a part of the agreement by which he obtained the money, but a gratuitous promise to reward his friendship if he succeeded in his venture. Fant's statement to the plaintiff, as detailed by the latter, differs but very little from this. As a compensation for obtain- ing the loan, he says that Keene agreed to allow him a part of the profits, but how much or what proportion, or whether it was a definite sum to be paid out of the profits, or a proportionate part of the profits, is not shown. If one of the most approved criteria of the existence of the partnership in such cases be applied to this, namely, the right to compel an account of profits in equity, the evidence totally 328 CONDUCT OP THE TRIAL. [ChAP. IV. fails. In a suit for that purpose, founded on this precise state- ment, no chancellor would hesitate to dismiss the bill. But we are pressed with the proposition that it was for the jury to decide this question, because the testimony received and offered had some tendency to establish a participation in the profits, and the question of liability under such circumstances should have been submitted to them, with such declarations of what constitutes a partnership as would enable them to decide correctly. No doubt there are decisions to be found which go a long way to hold that if there is the slightest tendency in any part of the evidence to support plaintiff's case it must be submitted to the jury, and in the present case, if the court had so submitted it, with proper instructions, it would be difficult to say that it would have been an error of which the defendant could have complained here. But, as was said by this court in the ease of the Improvement Company v. Munson, 14 Wallace, 448, recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. The English cases there cited fully sustain the proposition, and the decisions of this court have generally been to the same effect. In the ease of Parks v. Ross, 11 Howard, 362, this court held that the practice of granting an instruction like the present had superseded the ancient practice of demurrer to evidence, and that it answered the same purpose and should be tested by the same rules; and in that case it said the question for the con- sideration of the court was whether the evidence submitted was sufficient to authorize the jury in finding the contract set up by plaintiff. And in Schuchardt v. Aliens, 1 Wallace, 359, this case is referred to as establishing the doctrine that if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. In the case of Pawling v. The United States, 4 Cranch, 219, the court, by Marshall, C. J., said: "The general doctrine on a demurrer to evidence has been correctly stated at the bar. The Sec. 4.] pleasants v. fant. 329 party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw. ' ' It is the duty of a court in its relation to the jury to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial. This is done by making plain to them the issues they are to try, by admitting only such evidence as is proper in these issues, and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied, and finally, when necessary, by setting aside a verdict which is unsupported by evidence or contrary to law. In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence suificient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor, that is the business of the jury, but conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury ihe testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside and a new trial had ? Such a proposition is absurd, and accordingly we hold the true principle to be, that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. In such case the party can submit to a non- suit and try his case again if he can strengthen it, except where the local law forbids a nonsuit at that stage of the trial, or if he has done his best he must abide the judgment of the court, subject to a right of review, whether he has made such a case as ought to be submitted to the jury ; such a case as a jury might justifiably find for him a verdict. 330 CONDUCT OF THE TRIAL. [Chap. IV. Tested by these principles we are of opinion the Circuit Court ruled well. If plaintiffs had secured a verdict on the testimony before us we think that court ought to have set it aside as not being warranted by the evidence.^ It is not possible with any just regard to the principles of law as to partnership, and the rules of evidence as applied to this testimony, to come fairly and reasonably to the conclusion that Fant was Keene 's partner in this transaction. JudgTuent affirmed. PHILLIPS V. PHILLIPS. 93 Iowa, 615. [1895.] KiNNB, J. * * * III. The material question in this case is as to the ruling of the court instructing the jury to return a verdict for proponent. While exception is taken to the court's ruling in withdrawing the issue of undue influence from the jury, we do not under- stand that appellants now seriously question the correctness of 1 Scholfield, J., in Bartelott v. In- ternational Bank, 119 111. 259: * * * "Third— We said in Fra- zer V. Howe, supra (106 111. 573) — and that ruling has been since ap- proved in Simmons v. Chicago and Tomah Railroad Co., 110 111. 340, and other cases, — that the function of the judge on such a motion 'is limited strictly to determining whether there is or is not evidence legally tending to prove the fact aflBrmed, — i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modify- ing or countervailing evidence. ' * * * ' ' Since it was not intended in this case to overrule Simmons v. Chicago and Tomah Railroad Co., supra, it is apparent that 'evidence tending tc prove,' means more than a mere seintUla of evidence, but evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plain- tiff, or the party producing it. It is not intended by this practice that the function of the jury to pass upon questions of fact is to be in- vaded, any more than it is intended that such function is to be invaded by a motion to set aside a verdict, and for a new trial, upon the ground of the want of evidence to sustain the verdict. In neither case is the Court authorized to weigh the evidence and decide where the pre- ponderance is. Hilliard on New Trials, p. 339, sec. 9, et. seq.; John- son V. Moulton, 1 Scam. 532 ; Lowry V. Orr, 1 Gilm. 70 ; Morgan v. Eyer- son, 20 lU. 343." Sec. 4.] phillips v. phillips. 331 the action of the court in that respect. However that may be, there is no question in our minds that the court was justified in holding that no evidence had been introduced warranting the submission of that question to the jury. As to the ruling of the court directing a verdict for proponents, upon the issue of want of mental capacity, we think the court erred in its judgment. At the conclusion of the evidence on part of the contestants the court, in effect, held that a ease had been made requiring the submission to the jury of the question as to whether the testator at the time he made his will was possessed of sufficient mental capacity to execute a valid will. That holding was undoubtedly correct. The testimony of Squire Paxton, who had known deceased many years, and who drew the will, if it is to be believed, showed that the testator was not competent to make a will ; that in fact he was almost, if not entirely, unconscious when his hand was guided to make his mark to the will. No effort was made to impeach Paxton generally. It is true an attempt was made, which was only partially successful, to show that he had testified differently on a , former trial. The case then was in this condition : The court had held at the conclusion of con- testants ' main case, and before proponent entered upon his case, that contestants had made a case to be submitted to a jury. Proponent then introduced evidence tending to show that de- ceased was capable of making a will. Under these circumstances, the court, in directing a verdict, in effect put himself in the place of the jury, and weighed the evidence, and passed upon the credibility of the several witnesses. If, as the court properly held, the contestants when they closed their evidence in chief had overcome the burden which the law cast upon them, ^.nd had in addition thereto made a prima facie case requiring the sub- mission of the issue of mental capacity to the jury, it does not matter what evidence was thereafter introduced — the case was for the jury. In other words, while the trial court may deter- mine as to whether the contestants had given evidence sufficient to support a verdict, if one should be returned in their favor, it cannot, under the rule announced in Meyer v. Houck, 85 Iowa, 319 52 N. W. Kep. 235, pass upon the question as to whether the preponderating weight of all of the evidence is in favor of or against the contestants; that is a question always for the jury. So it is for the jury to determine as to the weight of the evidence, though there be one witness testifying on one side to 332 CONDUCT OP THE TRIAL. [ChAP. IV. certain facts, and many witnesses on the other side testifying to a contrary state of facts. It is not the province, in such a case, of the court to pass upon the credibility of the several witnesses, and say which one told the truth, or that the story of one is more likely to be correct than that of another. The rule laid down in the Meyer Case does not justify any such con- tention, nor can it be extended as is sought to be done by appellee in this case. To do so would be equivalent to doing away with jury trials. In this case it is apparent that the court's mind was changed as a result of the consideration of evidence which was introduced after he had deliberately deter- mined that contestants had made a ease for a jury; this was evidence introduced by the proponent. He was then weighing the evidence, passing upon the credibility of the witnesses, and, as we have said, this he cannot do. The record in this case is such that a trial court might well have refused to disturb a verdict of a jury, if rendered for either party. Though he might, if sitting as a juror, have been satisfied that the evidence preponderated in favor of the proponent, still that would not warrant him in putting himself in place of the jury, and pass- ing upon the weight of the evidence and the credibility of the witnesses — matters as to which the jury are the sole judges. For the error pointed out the judgment is reversed.^ SOWBLL V. CHAMPION. 6 Ad&lphus & Ellis, 407. [B. R. 1837.] Lord Denman, C. J., now delivered the judgment of the court. This case turns upon the question, whether the defendant Champion, being the bailiff for executing process within an inferior jurisdiction, was directed by the other two defendants, being the attorneys who sued out the process, to make a levy in the plaintiff's house, which was proved to be out of the juris- diction. The rule was granted on a doubt whether there was any evidence of such specific direction. 1 See also, Baumann v. Hamburg- 250 ; McDonald v. Street By. Co., American Packet Co., 67 N. J. L. 167 N. Y. 66. Sec. 4.] sowell v. champion. 333 All the defendants pleaded not guilty ; and, secondly, a justifi- cation, under the judgment and fi. fa., averring the plaintiff's house to be within the jurisdiction. The plaintiff contented himself at first with proving the goods seized, and that they were taken by the defendant Champion, under a precept handed to him by the defendants Tresidder and White. At the close of this ease the counsel for Tresidder and White applied to the learned judge to direct their acquittal, which, we think, he properly refused. The ground for the application was the alleged absence of any evidence against them to make them co- trespassers ; but this ground, if true in fact, would by itself have been wholly insufficient to warrant it. The application to a judge, in the course of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discre- tion ; and that discretion is to be regulated, not merely by the fact that at the close of the plaintiff's case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. This is so palpable a failure of justice, when the evidence for the defense discloses a case against a defendant already prematurely ac- quitted, that such acquittal ought never to take place, but where there is the strongest reason to believe that such a consequence cannot follow. In the present case, we think that if, in truth, there had been nothing for the jury to consider, as against these two defendants, the judge would have exercised a sound discre- tion in refusing to direct their acquittal when the application was made; but we are of opinion that, until the judgment was put in, and they appeared to be acting as attorneys in the execu- tion of a judgment, they could be considered only as directing a seizure of the plaintiff's goods without any authority; and although the direction was, in terms, to seize within one jurisdic- tion, and the seizure was, in fact, made in another, yet it was open for the jury, as against wrong doers, to consider, upon the evidence, whether they did not direct the seizure to be made in that place in which they certainly knew that it would take place. The defendants then attempted to establish their justification, but failed ; they proved, however, a judgment against the plain- tiff, and an execution regular in all respects, except that the plaintiff's house was not within the jurisdiction. In the course of this evidence, however, it clearly appeared that the two attor- neys had merely handed the precept to the bailiff to be executed ; 334 CONDUCT OF THE TRIAL. [ChAP. IV. and it was now contended that they were not liable to an action of trespass, if he acted beyond the bounds of his franchise, which it was his duty to know, and not theirs. The plaintiff not dis- puting this general proposition, contended that the attorneys had, in effect, taken upon themselves to order the bailiff to enter the plaintiff's house. The circumstances relied upon to prove this proposition were that, all these persons living near together and being acquainted, and the plaintiff having notoriously no other house than this, and no goods but what were in this, the bailiff must have understood the attorneys, when he received the precept from them, to intend that he should niake the seizure in that identical house ; and, further, that one of the attorneys sent a message to the plaintiff to inform him that Champion was about to be absent a short time, and would not levy on that day. The special pleas, pleaded by all the defendants, were also strongly urged, as showing that they all avowed and justified the fact of levying at the plaintiff's house; Tresidder and White thus adopting the act of Champion, as, indeed, they might fearlessly do, if they believed their own plea that the house was within the jurisdiction. Upon consideration these grounds appear to us all insufficient. 1. The attorney, who places a writ for execution in the hands of an officer, does a lawful act, though he may be fully persuaded that the officer will be likely to execute it in some particular place which may turn out, upon inquiry, to be out of his jurisdiction. The attorney's opinion upon such a point is im- material, unless he induces the officer to act upon it. He is not bound to form any ; the officer must, at his peril, act where he has the power. We think that the circumstances of the case go no further than to show that, when the attorney gave the precept, he thought it would be executed at the plaintiff's house, without directing or authorizing it. 2. If it could be pressed even to the extent of implying that the attorney knew the bailiff intended to do so, we cannot say that is any evidence of his giving such authority. The bailiff may have told him his intention, and the attorney may have either thought him right, or not thought about the matter. That the bailiff's intention originated with some act or word of the attorney is not at all evidenced by the knowledge now supposed. If, indeed, the bailiff had communicated his intention, with respect to a house that the attorney knew to be out of the Sec. 4.] soweuj v. champion. 335 jurisdiction, his acquiescence in an act he must have known to be illegal might possibly have made him a joint trespasser. But every thing here makes it impossible to doubt the attorney's iona fide belief that the house was within the jurisdiction. 3. Furthermore, the plaintiff argues the co-operation of all the defendants in the unlawful entry of the plaintiff's house from the special pleas. He contends that, if the attorney gave no special directions to the bailiff, he would have rested on the general issue, and not have defended himself by asserting the lawfulness of the act, as done within the jurisdiction. The intro- duction, however, of a special plea on the record can furnish no evidence in answer to the general issue. A defendant, by ad- ducing evidence on a second plea, may strengthen against himself a case already made on the first ; but he makes no such case by the mere averments or admissions in such plea. Upon the whole, therefore, we think that, at the close of the case, as the two defendants Tresidder and White would have been entitled, if sued without Champion, to a nonsuit, they were entitled to a positive direction from the judge to the jury that they ought to find a verdict in their favor; and that he was mistaken in leaving it at all as an open question for their con- sideration. It follows that, as these defendants are to have the same benefit now as if the judge had given that strong direction, and a verdict had passed in their favor, a verdict of not guilty ought now to be entered for them. Rule absolute.^ 1 And so in McCormaok v. Stand- fendant. He only asked for the ard Oil Co., 60 N. J. L. 243. A whisky and got it. The State, there- failure of proof by the party having upon rested, and the defendant asked the burden may, of course, be sup- an instruction in the nature of a plied by evidence introduced by the demurrer to the evidence, which the adverse party, or by a co-defendant. Court refused. This instruction, we Philips, C, in State v. Anderson, 81 think, should have been given. The Mo. 78: "The State introduced one evidence did not show that the witness, Henry Smith, who testified, whisky thus sold was less than one in substance, that in the month of gallon. The evidence was, that the September, 1880, he bought some witness 'bought some whisky.' whisky of the defendant, who kept Whether more or less than one gal- a drug store in Eoscoe, in said Ion did not appear. The burden county. He paid him for it, and rested on the State to show that the had no prescription therefor, from quantity was less than one gallon, any physician. Nor was any pre- Section 5472, Revised Statutes. But scription demanded or given by de- the defendant having afterward, in 336 CONDUCT OP THE TRIAL. [ChAP. IV. ABTZ V. CHICAGO, R. I. & P. R. RY. CO. 34 Iowa, 153. [1871.] Action to recover for personal injuries to the plaintiff, caused by a collision of defendant's engine and train of cars with the plaintiff's wagon, in which he was riding, at a highway and railroad crossing. The plaintiff, in his petition, alleged his own care, the defendant's negligence, and the resulting injury. The defendant, by answer, denied the plaintiff's allegations spe- cifically. There was a jury trial, with verdict and judgment for $5,000 for plaintiff. The defendant appeals. The facts are stated in detail in the opinion. Cole, J. * * * There are various questions made by the appellant's counsel, upon the instructions given and refused. We deem it unnecessary to examine them, for the reason that, in our judgment, the case must be finally determined upon the plain and undisputed facts of the ease. The testimony shows, without conflict, and upon this the counsel do not differ, that the railroad and highway are very nearly upon a level, and run substantially parallel for a considerable distance, and are in plain view of each other; that, for the distance of at least six hundred and sixty feet before the plaintiff reached the crossing, he could have an unobstructed view of the railroad and the trains upon it, for at least ten hundred and ten feet, and this distance of view would increase as he approached the crossing; that the plaintiff was' familiar with the locality, and the train was about on time, and with the head-light burning. This being true, we hold, as a matter of law, that the plaintiff cannot recover — since his own negligence must have directly contributed to the injury. But, it is urged by the appellee's counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not; and that this testimony shows that he was not guilty of contributory negligence, or, at the very least, it made that a question of fact for the jury. The difficulty, how- his own testimony, supplied the de- And so in Ey. v. Carey, 115 111. feot, he is not now entitled to a 115. reversal for the error of the Court See also, Bopp v. N. Y. Elec. Co., in refusing his demurrer to the evi- 177 N. Y. 33, where the proof was denee. KeUey v. H. & St. Joe K. B., introduced by a co-defendant. 75 Mo. 141." Sec. 4.] fletcher v. London & n. w. ry. co. 337 ever, with the position is that the conceded or undisputed facts being true, this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict. Suppose the fact is conceded that the sun was shining bright and clear at a specified time, and a witness, having good eyes, should testify that at the time he looked and did not see it shine. Could this testimony be true ? The witness may have been told that it was necessary to prove in the case that he did look and did not see the sun shine ; he may have thought of it with a desire that it should have been so; he may have made himself first believe it was so, and this belief may have ripened into a conviction of its verity, and, possibly, he even may testify to it in the self-consciousness of integrity. But, after all, in the very nature of things, it can- not be true, and hence cannot, in the law, form any basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object, which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist or was n6t seen. But an object and ^ power of sight being conceded, the one may not negative the other. In this case the plaintiff had good eyes; the train was ap- proaching him in the night, with the engine 's head-light burning brightly; if the plaintiff ' looked, he must have seen it, or he must hdve looked very negligently and carelessly — in either case, he was necessarily, in the eyes of the law, guilty of contributory negligence, precluding his right to recover. * * * Reversed.''- FLETCHEE v. LONDON & N. W. RY. CO. L. B. [1892.] 1 Q. B. D. 122. Motion by the plaintiff for a new trial. The action was for damages for personal injuries alleged to have been caused through the negligence of the defendants' servants. 1 Accord : Payne v. Ey., 136 Mo. .'562; Stafford v. Ey., 110 Wis. 331. H. T. P.— 22 338 CONDUCT OF THE TRIAL. [ChAP. IV. At the trial, Wright, J., after hearing the opening of the plaintiff's counsel, stating the case which he expected to prove, nonsuited the plaintiff without the consent of his counsel, and in spite of his insisting that he ought to be allowed to call his witnesses. Lord EscHBR, M. R. I am of opinion that the learned judge struck too soon. I will state the proposition in its broadest form. In my opinion a judge has no right, without the consent of the plaintiff's counsel, to nonsuit the plaintiff upon his coun- sel 's opening statement of the facts. The opening of counsel may be incorrect in consequence of his having had wrong instructions. Owing to some accident, even with the greatest care, the evidence of the witnesses when they are called may differ from that which has been opened by counsel. It is for that very reason that a right of reply in given to the plaintiff's counsel, and in recent times a right to sum up the evidence has been given to the plain- tiff's counsel, and the defendant's respectively, after his wit- nesses have been called. The experience of judges and of prac- titioners shows that the evidence often turns out to be somewhat different from that which appears in the instructions given to counsel. Therefore I state this proposition in its full extent — a judge has no right to nonsuit a plaintiff upon his counsel's open- ing without the consent of the counsel. That is what the learned judge has done in the present case. There was no assent on the part of the plaintiff's counsel. On the contrary, the plaintiff's counsel insisted upon his right to have the plaintiff's witnesses called, but, notwithstanding this, the learned judge persisted in nonsuiting the plaintiff on his counsel 's opening. I think he was wrong in so doing, and the case must go down for trial. Kat, L. J. I will not venlture to say a word about any techni- calities of practice which arise in this case. That which leads me to concur in the judgment of the other members of the court is this — I am simply startled at the notion that a suitor may lose his cause because his counsel in his opening happens by some acci- dent to have omitted to state, or to have misstated, some fact which, if proved, and the case had gone to the jury, might have so influenced them as to induce them to decide in the suitor's favor. That this should be part of the practice of English courts of justice would be to me a very surprising thing indeed. I agree that the case ought to be tried. Lord BsHER, M. R. The application in this court must be Sec. 4. J oscantan v. arms co. 339 allowed with costs. The costs of the trial will abide the result of the next trial. Order for new trial accordingly.'^ OSCANYAN V. AEMS CO. 130 U. S. 261. [1880.] Mr. Justice Field delivered the opinion of the court. This is an action to recover the sum of $136,000, alleged to be due to the plaintiff' upon a contract with the defendant, as commissions on the sales of fire-arms to the Turkish govern- ment, effected through his influence. The defendant pleads the general issue. At the time the transactions occurred, out of which this action has arisen, the plaintiff was consul-general of the Ottoman government at the port of New York. The defend- ant is a corporation, created under the laws of Connecticut. The action was originally commenced in the Supreme Court of New York, and on motion of the defendant, was removed to the Circuit Court of the United States. When it was called for trial, and the jury was impaneled, one of the plaintiff's counsel, as preliminary to the introduction of testimony, stated to the court and jury the issues in the case, and the facts which they proposed to prove. From such statement it appeared that the sales for which commissions were claimed by the plaintiff were made whilst he was an officer of the Turkish government, and through the influence which he exerted upon its agent sent to this country to examine and report in regard to the purchase of arms. The particulars of the services rendered will be more fully mentioned hereafter. It is sufficient now to say that the defendant, considering that the facts which the plaintiff proposed to prove showed that the contract was void as being corrupt in itself and prohibited by morality and public policy, upon which no recovery could be had, moved the court to direct the jury to render a verdict in its favor. The court thereupon inquired of the plaintiff's counsel if they claimed or admitted that the statements which had been made were true, to which they re- plied in the affirmative. Argument was then had upon the 1 Accord : Pietch v. Pietch, 245 111. 454; but see Spicer v. Bonker, 45 Mich. 630. 340 CONDUCT OF THE TEIAL. [ChAP. IV. motion, after which the court directed the jury to find a verdict for the defendant, which was accordingly done. Judgment being entered upon it, the case was brought to this court for review. The reversal of the judgment is sought for alleged errors of the court below in three particulars : 1st. In directing a verdict for the defendant upon the opening statement of the plaintiff's counsel; 2d. In holding that the question of the illegality of the eon- tract could be considered in the case, the same not having been specially pleaded; and, 3d. In adjudging that the contract set forth in the opening statement was illegal and void. Each of these grounds will be carefully examined. 1. Several reasons are presented against the power of the court to direct a verdict upon the statement of the facts which the plaintiff proposed to prove, that might be more properly urged against its exercise in particular cases. The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the court will withhold its direction, as where the evidence is conflicting, and leave the liiat- ter to the determination of the jury. In the trial of a cause the admissions of counsel, as to matters to be proved, are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called. They may limit the demand made or the set-off claimed. Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court 's procedure equally as if established by the clearest proof. And if in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the court may, upon its own motion, or that of counsel, act upon it and close the case. If, on a trial for a homicide, to take an illustration suggested by counsel, it should appear from the open- ing statement that the accused had been pardoned for the offense charged, it would be a waste of time to listen to the evidence of his original criminality; for if established he would still be en- titled to his discharge by force of the pardon. So in a civil action, if it should appear from the opening statement that it is SeO. 4.] OSCANYAN V. AEMS CO. 341 brought to obtain compensation for acts which the law denounces as corrupt and immoral, or declares to be criminal, such as attempts to bribe a public officer, or to evade the revenue laws, or to embezzle the public funds, the court would not hesitate to close the case without delay. Of course, in aU such proceed- ings nothing should be taken, without fuU consideration, against the party making the statement or admission. He should be allowed to explain and qualify it, so far as the truth will permit ; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action. Here there were no unguarded expressions used, nor any ambiguous statements made. The opening counsel was fully apprised of all the facts out of which his client's claim originated, and seldom was a case opened with greater fullness of detail. He dwelt upon and reiterated the statement of the fact which constituted the ground of the court's action in directing a ver- dict for the defendant, namely, that it was Oscanyan's influence alone which controled the agent of the Turkish government ; and for the use of that influence the defendant had agreed to give the compensation demanded — ^that is to say, that whilst an officer of the Turkish government the plaintiff had stipulated for a commission on contracts obtained from it through his personal influence over its agent. Had the case been pending in a court of some of the States, or in an English court, a nonsuit would have been ordered, if the facts stated had been deemed fatal to the action. Involuntary nonsuits not being allowed in the Fed- eral Courts, the course adopted was the proper proceeding. The difference in the two modes is rather a matter of form than of substance, except in the case of a nonsuit a new action may be brought, whereas in the case of a verdict the action is ended, unless a new trial be granted either upon motion or up6n appeal. The language of this court in numerous cases is in accordance with these views, though used with reference to directing a verdict after evidence is received. But, as already stated, it cannot make any difference as to the power of the court, whether the facts be developed by the evidence oi be admitted by coun- sel.i * * * 1 Compare Redding v. Puget Sound Iron Co., 36 Wash. 642. 342 CONDUCT OP THE TRIAI.. [ChAP. IV. Indeed, there can be, at this day, no serious doubt that the court may at any time direct a verdict when the facts are undis- puted, and that the jury should follow such direction. The maxim that questions of fact are to be submitted to the jury, and not to be determined by the court, is not violated by this proceeding any more than by a nonsuit in a State Court where the plaintiff fails to make out his case. The intervention of the jury is required only where some question of fact is controverted. Our conclusion, therefore, is that the first position of the plaintiff is not well taken. The suggestion in the argument, that the counsel who made the opening had been called into the case only two days before the trial, and was not, therefore, fully prepared to open it, does not merit consideration. In the first place, the record does, not show that any application was made to the court for a postpone- ment of the trial on that ground ; in the second place, two days ought to have been ample time for the counsel to acquaint him- self with the essential facts of the case ; and in the third place, no new fact is even now mentioned that would have materially changed his statement. 2. The position of the plaintiff that the illegality of the con- tract in suit cannot be noticed, because not affirmatively pleaded, does not strike us as having much weight. We should hardly deem it worthy of serious consideration had it not been earnestly pressed upon our attention by learned counsel. The theory upon which the action proceeds is that the plaintiff has a contract, valid in law, for certain services. Whatever shows the in- validity of the contract, shows that in fact no such contract as alleged ever existed. The general denial under the Code of Procedure of New York, or the general issue at common law, is, therefore, sustained by proof of the invalidity of the trans- action which is designated in the complaint or declaration as a contract. , Whilst, however, at the common law, under the general issue in assumpsit, it was always admissible to give in evidence any matter which showed that the plaintiff never had a valid, cause of action, in practice many other matters were allowed under that plea, such as went to the discharge of the original cause of action, and showed that none subsisted at the commencement of the suit — such as payment, release, accord and satisfaction, and a former recovery, and excuses for non-performance of the eon- SeO. 4.J OSCANYAN V. ABMS CO. 343 tract ; and also that it had heeome impossible or illegal to perform it. 1 Chitty, Pleading, 493; Craig v. The State of Missouri, 4 Pet. 410-426; Edson v. Weston, 7 Cow. (N. Y.) 278; Young V. Rummell, 2 Hill (N. Y.), 478. It followed that there were many surprises at the trial by defenses which the plaintiff was not prepared to meet. The English courts, under the authority of an act of Parliament passed in the reign of "William IV, adopted rules which, to some extent, corrected the evils arising from his practice of allowing defenses under the general issue which did not go directly to the validity of the original cause of action. And the Code of Procedure of New York did away entirely with the practice in that State, and required parties relying upon anything which, admitting the original existence of the cause of action, went to show its discharge — such as a release or payment, or other matter — to plead it specially, in order that the plaintiff might be apprised of the grounds of defense to the action. "We do not understand that the code makes any other change in the matters admissible under the general denial. But if we are mistaken in this view of the system of procedure adopted in New York, and of the defenses admissible according to it under a general denial in an action upon a contract, our conclusion would not be changed in the present ca^e. Here the action is upon a contract which, according to the view of the judge who tried the case, was a corrupt one, forbidden by morality and public policy. "We shall hereafter examine into the correct- ness of this view. Assuming for the present that it was a sound one, the objection to a recovery could not be obviated or waived by any system of pleading, or even by the express stipulation of the parties. It was one which the court itself was bound to raise in the interest of the due administration of justice. The court will not listen to claims founded upon services rendered in violation of common decency, public morality, or the law. His- tory furnishes instances of robbery, arson, and other crimes com- mitted for hire. If, after receiving a pardon, or suffering the punishment imposed upon him, the culprit should sue the insti- gator of the crime for the promised reward — if we may suppose that audacity could go so far — the court would not hesitate a moment in dismissing his case and sending him from its presence, whatever might be the character of the defense. It would not be restrained by defects of pleading, nor, indeed, could it be by 344 CONDUCT OF THE TKIAL. [ChAP. IV. the defendant's waiver, if we may suppose that in such a matter it would be offered. What is so obvious in a case of such aggravated criminality as the one supposed, is equally true in all cases where the services for which compensation is claimed are forbidden by law, or condemned by public decency or morality. * * * [On the third point, the court held the contract illegal.] Judgment affirmed. WALLNER V. CHICAGO TRACTION CO. 245 Illinois, 148. [1910.] Mr. Jvistice Dunn delivered the opinion of the court : The defendant in error, while a passenger upon a street car of the Chicago Consolidated Traction Company, the plaintiff in error, was injured by a collision with a train of the Chicago, Milwaukee and St. Paul Railroad Company. He sued both corporations in an action on the case. The plaintiff in error appeared and filed the general issue. The railroad company did not appear, and the cause, on the motion of the defendant in error, was discontinued as to it. On a trial the defendant in error recovered a judgment against the plaintiff in error, which the Appellate Court affirmed. The only question presented on this appeal is whether there was an accord and satisfaction between the defendant in error and the railroad company, which was charged as a joint tort feasor with the plaintiff in error. The only evidence on the question of an accord and satisfaction was the following testimony of the defendant in error himself : Q. "You have received from the railroad company a thousand dollars on account of this accident, haven't you?" A. "I believe sO." Q. "On account of your injury?" A. "Yes, sir." Q. "So you don't have any claims against it now?" A. "No, sir. * * * I made this arrangement — got the money from the St. Paul road — abdut October of last year." Q. "They were sued jointly with the street car company in this case ? When you started the suit you started it against both of them?" Sec. 4.] wallnee v. Chicago traction co. 345 Mr. Condon: "When I started it?" A. "Yes, sir." Mr. Bailey: "When your lawyer started it; yes, that is the better way to put it. ' ' A. "Yes, sir." There is no doubt that a release of one of several joint tort feasors releases all and that an accord and satisfaction by one joint tort feasor has the same effect as to all. (City of Chicago V. Babcock, 143 111. 358; West Chicago Street Railroad Co. v. Piper, 165 id. 325.) It is equally certain that payment and acceptance of a sum of money in satisfaction of an unliquid,ated demand is a good accord and satisfaction. (Ennis v. Pullman Palace Car Co., 165 111. 161.) The evidence here is meager but it is uncontradicted. After bringing suit against both corpora- tions jointly, the defendant in error received of the railroad com- pany $1,000 on account of his injury and dismissed his suit as to it, having no further claim against it. This evidence indicates that the payment of $1,000 was received in satisfaction of the liability of the railroad company, which was thereby relieved of all further liability on account of the injury. If the facts of the payment and acceptance of this sum, the dismissal of the suit against the railroad company, and the statement of the defendant in error that he had no further claim against it, are capable of another construction, the burden of furnishing the explanation or qualification which would give them a different effect was upon the defendant in error. The question of accord and satisfaction was raised by motions made at the close of the plaintiff's evidence and at the close of all the evidence to direct a verdict for the defendant. It is in- sisted on behalf of the defendant in error that these motions did not preserve the question for review because they were general and did not set forth the grounds upon which they were made.^ The only grounds upon which such a motion can be made are that the declaration does not state a cause of action, or that the evidence, with all reasonable inferences to be drawn therefrom, taken most strongly against the maker of the motion, does not fairly tend to support a verdict for the plaintiff; and it is not necessary to set out in such motion the particular defect of proof 1 See note to "West Chicago Street , Ey. Co. V. roster, 175 111. 396, 'post p. 359. 346 CONDUCT OF THE TRIAL. [ChAP. IV. claimed to exist. The party making the motion may rely upon the failure of proof in any respect necessary to sustain a verdict. The question presented by such a motion is not necessarily, as insisted upon by defendant in error, whether the evidence tends to support the allegations of the declaration, but is whether there is evidence legally tending to sustain a verdict against the party making the motion. (Wolf v. Chicago Sign Printing Co., 233 111. 501.) The question therefore depends upon the character of the issue. Where evidence of an afSrmative defense is offered, as in this case, it is proper to direct a verdict for the defendant, even though all the averments of the declaration are proved, if the evidence of the affirmative defense is not contradicted or explained.^ It is contended in behalf of defendant in error that the use of the words "on account of," in connection with the payment, indicates a partial payment rather than a full settlement. The fact that the effect of the payment was to extinguish the claim of the defendant in error answers this position. A payment "on account of the accident" means a payment because of the accident, and may be either on account or in full settlement. The defendant in error stated that he had no claim, and the legitimate inference is that the payment was a full settlement. No explanation of the language being offered, it must be given its ordinary meaning. It is insisted that the defense arising out of the release of a 2 The same rule is applied to the and this is given in one of the opin- defense of contributory negligence ions as a reason for refusing to di- made out by the plaintiff 's evidence, reet a verdict. On the whole, that whether on direct or eross-examina- ease appears to have gone on the tion. Ey. v. Houston, 95 U. S. 697; ground that there was room for a Schofield V. Ey., 114 U. S. 615; fair difference of opinion. See com- EUiott V. Ey., 150 U. S. 245 ; Ey. v. ments by Lord Justice Bowen in Truman, 174 U. S. 379 ; Hudson v. Davey v. London & S. W. Ey., L. E. Ey., 101 Mo. 13; Fleming v. Ey., 49 12 Q. B. D. (C. A.) 70. In "Wright Cal. 253 ; Donaldson v. Ey., 21 Minn. v. Midland Ey. Co., 51 L. T. E. 539 293; Hooper v. Ey., 72 Kan. 422; (Q. B. D. 1884), it was held that a Exp. Co. V. Nichols, 33 N. J. L. 434. verdict should have been directed The English cases on this point for the defendant on the ground of are in some confusion. In Dublin, contributory negligence shown by etc. Ey. V. Slattery, 3 Appeal Cases the plaintiff's evidence, but it was (H. of L.) 1155, it was assumed assumed that the burden was on the that the burden was on the defend- plaintiff to show the defendant solely ant to prove contributory negligence, to blame. SeO. 4.] WALLNEB V. CHICAGO TRACTION CO. 347 joint tort feasor was not made or argued in the trial court on the motion to direct the verdict. On this question we can look only to the record. Such defense, was within the scope of the motion. The defendant had a right to rely upon it, and we must presume that it did so in the absence of a show;ing in the bill of exceptions to the contrary. It is further insisted that it does not appear that the plaintiff in error and the railroad company wer,e joint tort feasors, and that the payment of money by one who is not, in fact, a joint tort feasor, and his release, does not discharge others who may be liable. "Without deciding the correctness of this legal proposi- tion, it is sufficient to say that the declaration charges the plaintiff in error and the railroad company as joint tort feasors; that the uncontradicted evidence shows that at the time of the collision the railroad company was running its train at a speed in excess of that allowed by the ordinance of the city, and that the street car was backing off of the crossing when it was struck. It is contended that the plaintiff in error having requested instructions, which were given, submitting to the jury, as a question of fact, whether the defendant in error received $1,000 from the railroad company in settlement of its liability, and stating that if defendant was found guilty only such amount should be allowed plaintiff in the assessment of damages as, to- gether with what he had already received from the railroad com- pany, would compensate him for his injury, thereby conceded that the evidence was subject to more than one interpretation, and cannot now insist that it is subject only to the one interpre- tation which required a verdict in its favor, but is bound by the theory of the case indicated by these instructions. These in- structions were not requested by the plaintiff in error until after the adverse decision of its motion to direct a verdict. The court having refused, on this motion, to adopt the theory of the plain- tiff in error, it was not obliged to abandon its defense on penalty of waiving its right to question, on appeal, this decision of the court. If it proceeded further it must do so according to the court's view of the law, and did not thereby waive its right to question that view in the Appellate Court through its exception taken to the decision of its motion. North Chicago Electric Railway Co. v. Pewser, 190 111. 67 ; Illinois Central Railroad Co. v. Swift, 213 id. 307 ; Chicago Terminal Railroad Co. v. Schiavone, 216 id. 275. -^ 348 CONDUCT OP THE TRIAL. [ChAP. IV. The judgment of the Appellate Court and of the Circuit Court will be reversed and the cause remanded to the latter court for a new trial. Reversed and remanded. VicKEES, C. J., and Cartek, J., dissenting. HOPKINSON V. LEEDS. 78 Pennsylvania St. 396. [1875.] Mr. Justice Williams delivered the opinion of the court, Oc- tober 18th, 1875. This was an action of debt, for an escape of the plaintiff's debtor, after his arrest by the sheriff upon a writ of capias ad satisfaciendum. On the trial, a judgment of non-suit was en- tered against the plaintiffs, and the court in ianc refused to set it aside. If there was no sufficient evidence to maintain the action, the judgment of non-suit was rightly entered ; otherwise the case should have been submitted to the jury with the proper instruc- tions. It appeared from the debtor's own testimony that he was permitted by the sheriff's deputies, upon presenting himself at the sheriff 's office every morning, to go at large until the next day from the time of his arrest until he gave bond for his discharge under the insolvent laws, and that for this indulgence he and his nephew paid them the sum of seventy dollars. This was clearly a permissive escape, for which the defendant was answerable. It is true that under the act of 14th of February, 1729-30, section 14, 1 Sm. Laws 186, the sheriff was not bound to commit the prisoner to jail immediately upon his arrest, but it was his duty to keep him in safe and strict custody, and if he allowed him to go at large for the shortest time, either before or after the return day of the writ, without the consent of the plaintiffs, it was an escape for which he was liable. It is no answer to the escape that the prisoner voluntarily returned and surrendered himself to the custody of the sheriff, or that he was subsequently dis- charged under the insolvent laws. But it is insisted that he was allowed to go at large after his arrest, with the consent of the plaintiff's attorney. Undoubtedly the attorney had authority to consent to his discharge from the arrest, and if he did, the SeO. 4.] HOPKENSON V. LEEDS. 349 sheriff is not responsible for an escape. But to warrant the judgment of non-suit, the evidence of such consent should be clear, direct and positive, and a part of the plaintiff's case. The only evidence tending to show the alleged consent, is the testi- mony of the sheriff's clerk, who was called by the plaintiffs to prove the time the writ came to the sheriff's hands. On his cross- examination, under exception by the plaintiffs, he said : "After the writ had been in our hands a day or two, I had a conversation with Mr. Hart (the plaintiff's attorney) on the subject. I asked Mr. Hart in the vestibule, between our office and the register's, what we should do with Mr. Cooper; whether we, should send him to prison or not. Cooper was then in the sheriff's office in custody. He said there was no necessity of that, but if the deputy would press him, he or his friends would find the money or pay the money." It cannot be pretended that there is anything in this language showing an express consent by Mr. Hart that the prisoner might go at large; and if not, is there anything from which such permission may be fairly implied? If he said there was no necessity of sending Cooper to prison, in answer to the inquiry of the sheriff's clerk, does it follow that he intended to consent to his discharge from the arrest? If so, why did he say in the same breath, and as a part of his answer, that if the deputy would press him he or his friends would find or pay the money? How could the deputy "press him" if he was allowed to go at large ? But whether he could or not, it is clear that the proper meaning and interpretation of the language was a ques- tion for the jury, and not a matter of law for the court. Besides, the evidence shows that the prisoner was permitted to go at large before the conversation took place, and if so, the subsequent assent of the plaintiff's attorney to his being and remaining at large, even if it had been expressly given, would not release -the defendant from his liability to the plaintiffs in this action : Scott V. Seller, 5 Watts 235. But the testimony as to the conversation was no part of the plaintiff's case, and it was improperly ad- mitted in evidence on the cross-examination of the plaintiff's witness. The rule is well settled that the cross-examination should be confined to matters in regard to which the witness has been examined in chief, and to such questions as may tend to show the bias and interest of the witness.^ To permit the defend- 1 For the English and the Federal ination, see Wigmore 's Evidence, rules on the scope of the cross-exam- sec. 1890. 350 CONDUCT OP THE TRIAL. [ChAP. IV. ant, under the guise of a cross-examination, to give evidence in chief is not only disorderly, but unfair to the plaintiffs. Here the defendant was allowed, on the cross-examination of the plain- tiffs' witness, to give evidence upon which he relied to defeat the action, before the plaintiffs had given any evidence tending to show that the prisoner had been permitted to escape after his arrest. Doubtless the defendant had a right to ask the witness on his cross-examination what instructions were given by the plaintiffs' attorney at the time the writ of ca. sa. was placed in his hands, for if any instructions were given, they were part of the res gestm; but he had no right to examine him in regard to conversations which he had with the plaintiffs' attorney after the debtor's arrest under the ca. sa., for they were no part of the matters in regard to which he was examined in chief. But whether they were proper subjects of cross-examination or not, the judgment of non-suit was clearly erroneous. Judgment reversed and a procedendo awarded. DAVIS v. HARDY. 6 Barnwall & Gresswell, 225. [1827.] This was an action against the defendant for maliciously, and without any reasonable or probable cause, indicting the plaintiff for embezzlement at the July sessions for the county of Somerset, 1825. Plea, not guilty. * * * [The evidence of one Stainer, introduced by the defendant, was relied on to show probable cause.] The counsel for the plaintiff then insisted that it ought to be left to the jury to find whether they believed Stainer 's evidence. The learned judge said that there was no contradictory evidence as to the fact of Davis having desired Stainer to conceal from Hardy that the chaise hire had not been paid, and he refused to leave any question to the jury, and nonsuited the plaintiff. A rule nisi for setting aside the nonsuit had been obtained in last Easter term, upon the ground that it ought to have been left to the jury to decide whether they believed Stainer 's evidence or not. Abbott, C. J. I think that the nonsuit in this ease was proper and that the rule for setting it aside must be discharged. The Sec. 4.] davis v. hardy. 351 question for our consideration is not whether Davis was guilty of the charge preferred-against him, nor whether the indictment was preferred from an improper motive ; but the question is, whether Hardy, the prosecutor, had a reasonable or probable cause for preferring the charge against Davis, and I am of opinion, upon the evidence given at the trial, that there was probable cause for his making that charge. The facts are these : Davis hired the chaise in the name of Hardy and received from the assignee of the bankrupt the amount of the chaise hire ; he did not pay it to the innkeeper who let the chaise, nor to Hardy, in whose name it was hired, nor did he ever mention to the latter that he had received the amount. Upon a charge being preferred against him, he was examined before the magistrates, and one of the magistrates was called as a witness on the part of the plaintiff, and proved that he admitted most of the facts above stated. That being the case upon the part of the plaintiff, the learned judge was of opinion that there was suiScient prima facie evidence of the want of probable cause for preferring the indictment, and he refused to nonsuit the plaintiff. Stainer, the innkeeper, who was the proprietor of the chaise, was then called as a witness on the part of the defendant. He proved that the chaise hire was not paid to him ; that he applied to Davis twice for it, and that upon his threatening that unless he was paid he would tell Mr. Hardy, Davis requested him not to tell Mr. Hardy that it was not paid, as it would do him a great injury. Now, if that fact, which was proved by Stainer, had been proved in the course of the plaintiff's case, there can be no doubt that it would have been evidence of a probable cause for preferring the charge; but it is said that it ought to have been submitted to the jury as a ques- tion of fact, whether Davis ever did request Stainer not to inform Hardy that he, Davis, had received the money. But where a witness is unimpeached in his general character, and uncon- tradicted by testimony on the other side, and there is no want of probability in the facts which he relates, I think that a judge is not bound to leave his credit to the jury, but to consider the facts he states as proved, and to act upon them accordingly. I think, therefore, that the judge was well warranted in coming to the conclusion in this case,' that there was a probable cause for preferring the indictment, and this rule must therefore be dis- charged. Batley, J. I think that in this case there was sufScient evi- 352 CONDUCT OF THE TRIAL. [ChAP. IV. dence of probable cause, and such evidence, too, as a jury ought to be directed to proceed upon. If there is nothing in the demeanor of a witness, or in the story he tells, to impeach his credit, and he is not contradicted by testimony on the other side, it is not a case for a jury to deliberate upon.i If the case had been submitted to the jury, and they had disbelieved this witness, I think that we should have been bound to send the case down to a new trial. Rule discharged. MERCHANTS' BANK v. HAVEEHILL IRON WORKS. 159 Massachusetts, 158. [1893.] Morton, J. There was evidence tending to show that the note was put into circulation fraudulently by the Potter-Lovell Com- pany, which received it from the defendants. The plaintiff was bound to show, therefore, that it took the note in good faith and for value before maturity. Emerson v. Burns, 114 Mass. 348. Sullivan v. Langley, 120 Mass. 437. The president and cashier of the plaintiff bank testified that such was the fact. The defend- ants introduced no testimony to contradict those officers, but claimed the right to go to the jury on the question whether the plaintiff took the note for value and without notice of the fraud. The court, however, ruled, as matter of law, that the plaintiff was entitled to recover and directed a verdict for the plaintiff. We think this was error. The jury may have disbelieved the president and cashier, or have believed them only in part, and may have been satisfied on all the evidence that they either had notice or did not take the note for value before maturity. They were not bound, as matter of law, to believe the president and cashier, though their testimony was uncontradicted. Twombly V. Monroe, 136 Mass. 464. There was nothing in the charter of the Potter-Lovell Com- pany which expressly or by implication forbade the company to purchase the note in suit. It was fairly incident to the conduct of a brokerage business that it should at times purchase or dis- 1 See Koehler v. Adler, 78 N. Y. 287, post 368. Sec. 4.] fulbright v. peert county. 353 count notes. If, therefore, the plaintiff's president was bound to know, as matter of law, the powers conferred upon the Potter- Lovell Company by its charter, the admission of his statement that he did not know them could have done the defendants no harm. Because of the error in taking the case from the jury the Exceptions are sustained. FULBRIGHT v. PERRY COUNTY. 145 Missouri, 432. [1898.] BuEGEss, J. This is a suit to set aside the will of John F. Fulbright, late of Perry count;^, Missouri. The suit was begun in the Circuit Court of said county, but by agreement of all parties the venue was subsequently changed to the Circuit Court of Cape Girardeau county, where the case was tried at the August term, 1895. For grounds for setting aside the will the petition alleges that for a long time prior thereto and at the time the said sup- posed will was subscribed by the said John Fulbright, and also at the time the same was published and declared as and for his last will and testament, thp said John Fulbright was not of sound and disposing mind, but on the contrary was of unsound mind, and wholly incapable of making a testamentary disposition of his property. The petition then prays that the probate of said supposed will may be revoked and set aside, and that said instru- ment be declared inoperative and for naught held. The answer of defendants denies that the testator was insane or of unsound mind at the time of the execution of the will in contest, and alleges that he was of sound and disposing mind at that time. That he died on the fifth day of October, 1894, and that his will was duly admitted to probate by the Probate Court of the county of Perry, in this state, on the fifteenth day of October, 1894, and prays that the said last will and testament be declared and established as the last will and testament of said John Fulbright. A trial was had on the issues thus joined, and after the close of all the evidence the jury, in pursuance of an instruction of the H. T. P.— 23 354 CONDUCT OF THE TRIAL. [ChAP. IV. court, returned a verdict for defendants. Plaintiffs appealed. ^ "JP vF The only question for consideration is as to whether or not there was sufficient evidence of the insanity of the testator, and want of capacity to make a will, to take the case to the jury. When the formal execution of a will according to the require- ments of the statute is shown, 'as was done in this case, and the subscribing witnesses testify to the sanity of the testator, and he is of proper age to make a will, a prima facie case in favor of the proponents of the will is made out, and it then rests upon the contestants to overcome this prima facie case by substantial evidence. Carl v. Gabel, 120 Mo. 283 ; McFadin v. Catron, 138 Mo. 197. In Benoist v. Murrin et al., 58 Mo. 307, it was said: "A dis- posing mind and memory may be said to be one which is capable of presenting to the testator all his property, and all the persons who come reasonably within the range of his bounty, and if a person has sufficient understanding and intelligence to under- stand his ordinary business, and to understand what disposition he is making of his property, then he has sufficient capacity to make a will. Harvey v. Sullens, 46 Mo. 147. In McClintock v. Curd, 32 Mo. 411, the most satisfactory test was declared to be whether the mind and memory of the testator were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will. The Supreme Court of Vermont in the case of Converse v. Converse, 21 Vt. 168, lays down the doctrine that if the deceased was, at the time, capable of understanding the nature of the business and the elements of the will, that is, the nature and extent of his property and the persons to whom he meant to convey it, and the mode of distribution, it is sufficient; and in Home v. Home, 9 Ired. 99, it is said, it is sufficient if the testator knew what he was doing and to whom he was giving his property. ' ' Measured by the rule thus announced, had John Fulbright mental capacity to make a will ? Considering the testimony most strongly in favor of the contestants, the claim that John Ful- bright was of unsound mind, and had not sufficient capacity to make a will when he executed the instrument in controversy, is based upon certain peculiarities and eccentricities heretofore stated, and others of a similar character, and these are not enough to satisfy the unprejudiced mind that he had not sufficient mental Sec. 4.] bass v. eublee. 355 capacity to make a will.i They may all have existed and still be consistent with his sanity at the time of the execution of the instrument. In Chafin Will case, 32 Wis. 557, it was held that mental peculiarities and eccentricities of character and conduct of the testator very much like those of the testator in the case at bar. were not sufficient evidence of testamentary incapacity to in- validate the will. If there was any substantial evidence that the testator was not of disposing mind and memory as hereinbefore defined at the time of the execution of the will, then the case should have gone to the jury, but no such evidence was adduced. Mere peculi- arities and eccentricities of character of the testator were not inconsistent with his sanity. Upon the other hand, it was shown by the attesting witnesses to the will that he was sane, and there was no substantial evidence to the contrary. He always attended to his own business affairs, and from all that appears did it as well as anybody could have done. For many years he lived the life of a recluse, aloof from his relations and all others, and it is not strange under the circumstances that he should have given his property to the county in which he had lived for so many years. There was no substantial evidence, we think, that John Pulbright was insane or that he did not have .mental capacity sufficient to execute the will. * * * (b) The Motion or Bequest. BASS V. EUBLEE. 76 Vermont, 395. [1904.] Watson, J. The declaration is special assumpsit in three counts severally declaring on a written contract dated Febru- 1 Opinion evidence founded on When the question of capacity mere eccentricities is not sufficient goes to the jury, the proponent has to take the case to the jury. Winn the burden of satisfying them that V. Grier. 217 Mo. 420. See also, the testator had sufficient capacity. Martin v. Bawdern, 158 Mo. 379, Norton v. Paxton, 110 Mo. 456. where the verdict was directed for the proponents of the will on the issue of due execution. 356 CONDUCT OP THE TRIAL. [ChAP. IV. ary 13, 1901, sealed and subscribed by the plaintiff apd th,e defendant, whereby the defendant promised and agreed to fur- nish to the plaintiff in the ears at Bast Berkshire, in the month of June, 1901, certain specified lots of maple lumber, to be paid for by the plaintiff as therein stipulated. It is further alleged that subsequently the parties by mutual agreement not under seal extended the time 'for the delivery of the lumber without setting a time limit therefor, and that in pursuance of the con- tract so modified as to time, thereafter, between the dates in the several counts alleged, the defendant delivered to the plaintiff a portion of the lumber specified in the agreement, and received payment therefor. Then follow allegations of the defendant's breach of the contract in neglecting and refusing, though re- quested, to deliver the balance of the lumber, etc. At the close of plaintiff's opening evidence, the defendant moved for a verdict on the grounds that (1) there was no evi- dence of any agreement between the parties to extend the terms of the contract beyond its original stipulation; and (2) there was no evidence of such an extension as is set up in the Tvrit. The motion was granted pro form-a, to which the plaintiff ex- cepted. The record shows that the plaintiff testified, in effect, that the defendant could not get the lumber out in June, the time speci- fied in the original contract ; that in June they mutually agreed that, since the lumber could not be ready to ship until in the fall, the time should be extended till fall; and that then they would survey and ship the lumber when it was ready. The subse- quent correspondence between the parties and their actions regarding the lumber tended to show the same thing. Since there was evidence to go to the jury on the question whether the original contract was modified as claimed by the plaintiff, it was error to order a verdict. If the second ground stated in the motion could be considered as covering a variance, if any there be, between the time for the performance of the modified contract as alleged, and that which the evidence tends to show, we do not so consider it, for it appears from the record that it was not treated by the defendant in the court below, and it is not so treated in his brief here. It is urged by the plaintiff that if it was error to direct a ver- dict, he is entitled to final judgment in his favor in this court. Hereon it is argued that the motion for a verdict was equivalent Sec. 4.] BASS V. KUBLRE. 357 to a demurrer to the evidence, and is governed by the same rules, referring to Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 Atl. 656. There, in discussing the defendant's motion for a verdict, made at the close of the evidence, it is said that "such a motion is like a demurrer to the whole evidence, on the ground of its insufficiency to warrant a verdict for the plaintifE if one should be found. ^ The motion could not be entertained, if, as the case stood, there was any evidence tending fairly and reasonably to support the claim of the plaintiff. If the verdict was to be determined by an inference to be made by the jury from facts, any of which were more or less in dispute, the disputed fact or facts were to be determined and the inference made by the jury. So long as any fact from which such infer- ence is to be made is in doubt or dispute, the inference is depend- 1 Scholfield, J., in Bartelott v. In- ternational Bank, 119 111. 259, " * * * First — Although we have said that motions to exclude the en- tire evidence from the jury, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, yet this relates rather to the mode of view- ing the evidence, than to the time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit not iinly all that the testimony of the plaintiff proves, but also all that it tends to prove. (Frazer v. Howe, et al., 106 111. 573.) But none of the technical particularity is re- quired in making such motions, that is required in demurrers to evidence, and no judgment is rendered against the defendant on disallowing the mo- tion. They are usually informal, and most frequently made by simply presenting to the Court an instruc- tion, to be given or refused, instruct- ing the jury that the evidence is ex- cluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sus- tained, most convenient, to present the motion at the conclusion of the plaintiff's evidence, so as to at once terminate the trial ; but we know of uo reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, de- laying the motion until after the introduction of defendant's evidence could only affect the question of costs incident to the examination of the defendant 's witnesses, — and this, obviously, would appeal only to the discretion of the Court, on a mo- tion to re-tax costs, as, in case of the examination of unnecessary wit- nesses. In the following cases the practice seems to have been to en- tertain the motion after hearing the evidence of the defendant. Eeed V. Inhabitants, 8 Allen, 524; Im- provement and Eailroad Co. v. Mun- son, 14 Wall. 342 ; RandaU v. Balti- more and Ohio Eailroad Co., 109 IT. S. 478; Herbert v. Butler, 97 id. 318. And that practice is recom- mended by this Court in City of Mattoon v. FaUin, 113 111. 249." And so in Eberstadt v. State, 92 Tex. 94. See also, Baylis v. Ins. Co., 113 U. S. 316. 358 CONDUCT OP THE TRIAL. [ChAP. IV. ent partly upon the fact to be determined by the jury. It is not wholly a question of law. A motion for a verdict is considered in law as in the nature of a demurrer to the evidence, and, to the extent in the Latre- mouille case indicated, that is, to the mode of viewing the evi- dence, it is governed by the same rules. But the required tech- nicalities of the demurrer and the procedure incident thereto have no place when the court is moved to direct a 'verdict. The province of the court on such a motion is not to weigh the evi- dence and ascertain where the preponderance is, but it is limited strictly to determining whether there is, or is not, evidence from which, if believed, it may reasonably be inferred, in legal con- templation, that the fact affirmed exists, excluding the effect of all modifying or countervailing evidence ; and on overruling the motion no judgment is rendered against the moving party. Bartelott v. International Bank, 119 111. 259. In the case before us a modification of the original contract is essential to be shown to the maintenance of the action. The evi- dence bearing on that question consists of oral testimony, cor- respondence between the parties, and their actions covering a period of six months or more of time, together with inferences to be drawn from the circumstances disclosed by the evidence. A jury trial is most appropriate for the settlement of the facts involved, and the defendant should not be deprived of an oppor- tunity therefor. While it is a long established rule of practice in eases brought into this court upon exceptions to finally dispose of the ease here, it is a part of the same rule that, when a jury trial becomes necessary, or if the decision of this court places the case in such a state that either party has a right to a trial by jury, the cause will be remanded. Peach v. Mills, 13 Vt. 501 ; Porter v. Smith, 20 Vt. 344. Nor could the result be different were the defendant's motion treated as a demurrer to the evidence, and determined by the law governing under that practice; for some of the technical requirements were not complied with. The object of such pro- ceedings is not to bring before the court an investigation of facts in dispute, nor to consider and weigh the force of testimony, and the presumptions and inferences arising from the evidence. The only purpose of such a demurrer is to refer to the courts ques- tions of law arising from the facts ascertained. "Where the parol evidence is loose and indeterminate, which may be urged with Sec. 4.] w. Chicago st. ry. go. v. foster. 359 more or less effect to a jury ; or if the evidence is of circumstances, and is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of the existence of other facts — the defendant cannot demur to the evidence and insist on the jury's being discharged from giving a verdict, and oblige the the plaintiff to join in the demurrer, without distinctly admitting upon the record every fact and every conclusion which the plaintiff's evidence conduced to prove. This was not done. When the facts are not thus admitted upon the record, and there has been a voluntary joinder in demurrer, leaving the facts un- settled and indeterminate, it is deemed a sufficient reason for refusing judgment on the demurrer. Furthermore, there is no joinder of demurrer on the record, without which no final judg- ment can properly be rendered. With the ease standing in this way, it is the settled practice to award a new trial on the ground that the issue between the parties, in effect, has not been tried. 2 Tidd's Pr. (3 Am. ed.) 865-866; Gibson v. Hunter, 2 H. Black. 187 ; Fowle V. The Common Council of Alexandria, 11 Wheat. 320, 6 L. ed. 484 ; Crowe v. People, 92 111. 231. The pro forma judgment is reversed and cause rem,anded. WEST CHICAGO STREET RY. CO. v. FOSTER. 175 Illinois, 396. [1898.] Mr. Justice Phillips delivered the opinion of the court. Error is assigned by appellant on the refusal of the trial court to allow its motion,! made at the close of plaintiff's evidence, to take the case from the jury, which motion was renewed at the iln Ames v. Straehurski, 145 111. Foley v. Ry., 64 la. 644; Ky. v. 192 the following form of request Eooney, 186 Fed. 16. In a number was approved: "Now come the de- of the states a formal motion is not fendants, by their attorneys, and re- used. In many jurisdictions it is quest the Court to instruct the jury not necessary to specify the particu- that the evidence is insufiacient to lar defect in the proof. Wallner v. maintain the plaintiff's case, as Chicago Traction Co., 245 111. 148, charged in the declaration, and ante, p. 344. In others the motion to therefore the verdict must be for the direct a non-suit or verdict is re- defendants. ' ' quired to state the particular ground, The motion need not be in writ- and nice distinctions are drawn be- ing.'' Swift V. Fue, 167 lU. 443; tween grounds and reasons. See 360 CONDUCT OF THE TRIAL. [Chap. IV. close of all the evidence. The record discloses that the motions were made as alleged, but neither of them was accompanied by an instruction. Such condition of the record presents no legal question for review in this court as to the refusal of the trial court to grant such motion. "Where a motion is made at the close of plaintiff's evidence to take a case from the jury and direct a verdict for the defendant, and is re- newed at the close of all the evidence, a written instruction ^ Bassett v. Mayor, 118 Md. 114 (that under the pleadings and evidence plaintiff was not entitled to recover is too general) ; Gerding v. Haskin, 141 N. Y. 514 (general request suffi- >;ient if defect could not have been obviated). Straup, J., in Smalley v. Ey., 34 Utah, 423 : "A mere general state- ment that, under the evidence, the plaintiff is not entitled to recover, or that the defendant is entitled to a verdict, or that the plaintiff has not made a sufiicient case to go to the jury, does not point to anything. If, however, in a case of negligence a specification is made that the evi- dence is insufficient to show negli- gence on the part of the defendant, or that under the evidence the plain- tiff is conclusively shown to be guilty of contributory negligence, or that he assumed the risk, etc., such a specification is ordinarily sufdcient. If a verdict is directed on the ground that the evidence is insuf- ficient to show negligence on the part of the defendant, it sufficiently is made to appear on what question of law the case was taken from the jury. The making of such a speci- fication ordinarily points out the de- fect within the meaning of the ad- judicated cases. ' ' Per Curiam, in Palmer v. Marys- ville Democrat, 90' Cal. 168: "This is an action to recover possession of a certain printing-press delivered by plaintiffs' assignors to one Mc- Whorter, under a contract similar in terms to that which was under consideration in the case of Palmer V. Howard, 72 Cal. 293; 1 Am. St. Eep. 60. When the plaintiffs rested at the trial, the defendant moved the court for a nonsuit, upon several grounds. The motion was granted, and the only question for consideration is, whether the court erred in its ruling. McWhorter sold the property to Holland & Crane, and they had fuU notice of the terms and conditions under which the former had secured possession of it. The agreement of June 27, 1887, was binding not only upon Mc- Whorter, but upon subsequent pur- chasers with notice of the conditions under which McWhorter took and held the property. Assuming that the plaintiffs were required to prove that the defendant took the property with notice of the facts, the grounds of the motion for a nonsuit do not specify a failure to prove such notice; and under the rule well established here, a non- suit cannot be granted, unless the ground upon which it is supported was called to the attention of the court and the plaintiffs at the time the motion was made. None of the grounds stated in the statement on motion for a non suit is well taken. ■Judgment and order reversed, and cause remanded for a new trial. 2 See HI. E. S. 1913, Chap. 110, §73. Sec. 4.] bogk v. gassert. 361 directing such verdict must be presented with the motion. When a written instruction is not so presented and error is assigned on the refusal of the court to give the instruction, this court has not before it any legal question for determination. (Calumet Electric Street Railway Co. v. Christenson, 170 111. 383 ; Swift & Co. V. Fue, 167 id. 443 ; Wenona Coal Co. v. Holmquist, 152 id. 581.) In this case defendant offered a general instruction with its series directing the jury to find for the defendant, but that was not sufficient to bring it within the rule above stated. Its right to assign error upon the refusal to give such instruction at that time was waived by offering it with other instructions.* (Pierce v. "Walters, 164 111. 560; West Chicago Street Railroad Co. V. Yund, 169 id. 47 ; Gilbert v. Watts-DeGolyer Co. id. 129 ; Chicago and Northwestern Railway Co. v. Delaney, id. 581.) The motion, therefore, to take the case from the jury not being accompanied by an instruction so directing the jury, no discus- sion of the facts in the case is necessary. * * * BOGK v. GASSERT. 149 U. 8. 17. [1893.] Mr. Justice Brown, after stating the case, delivered the opinion of the court. The action in this case was upon the lease of a city lot and 3 Lamm, J., in Keneflck v. Fire other. But the practice is for both Ins. Co., 205 Mo. 294: "But if in sides to hand their instructions up either of those cases that court in- to the judge at one and the same tended to say that the bill of ex- time. Many trial judges require ceptions should show the order in this to be done so that the court which instructions were asked or re- may have them all under his eye, fused, and that there is vital sig- may consider them by and large and nificance in such punctilio, then such pick and choose' as his judicial acu- ruling is of doubtful utUity in ar- men may fortify his sense of justice riving at ultimate justice. In strict and prompt his action. We can see logical order, if defendant contends nothing material or ^vital in the there is no case to go to the jury, mere order in which the instructions he should hand up his instruction in are asked or passed upon. They the nature of a demurrer first and look alike whether viewed from a at once at the close of the case, down to izzard, or, vice versa, from because, if that instruction be given izzard up to a. " there is no use of considering any 3^2 CONDUCT OP THE TRIAL. [ChAP. IV. certain mining claims, and a judgment was demanded for the restitution of the premises, and for damages for detention. The answer set forth in substance that the lease was one of a series of contemporaneous agreements, consisting of two deeds, an agreement to reconvey and a lease ; that the deeds were intended as a mortgage, and that the rental of $450 named in the lease was the amount which it was understood would be necessary to pay the taxes upon the property, and the annual assessment work upon the mining claims, and that upon payment thereof by defendant Bogk the object of the lease should be fully satisfied and discharged ; that the defendant paid this sum, and that the said lease became void and of no binding force. The trial took place before a jury, and the assignment of error relates to the rulings of the court made in the course of such trial. We proceed to consider them in their order. 1. That the court erred in overruling defendant's motion for a nonsuit. In this connection the biU of exceptions shows that the plaintiffs put in evidence the deeds from Bogk and wife to the plaintiffs, the agreement to reconvey the lease, with oral testimony of the rental value, and then rested. Defendant there- upon moved for a nonsuit upon the ground that plaintiffs had failed to prove that they were ever at any time in or entitled to the possession of the premises; that defendant ever entered into possession under or by virtue of said lease; and that plaintiffs totally failed to prove a demand to have been made for the possession of the premises, or ever served or gave notice to quit upon the defendant. This motion was overruled. Defendant excepted and proceeded to introduce testimony in defense. The practice in Montana (Comp. Stat., §242) permits a judgment of nonsuit to be entered "by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury." "Without going into the question whether the motion was properly made in this case, it is sufficient to say that defendant waived it by putting in his testimony.^ A defendant has an undoubted right to stand upon 1 In a number of the states error As to the discretion of the Court in refusing to direct a verdict at the in ruling on the motion before the close of the plaintiff's case is not close of all the evidence, see Sowell waived by putting in evidence for v. Champion, ante, 332. the defense, but the defendant takes the chance of curing the defect. McPherson v. Ey., 97 Mo. 253. Sec. 4.] kenefick v. Norwich ins. co. 363 his motion for a nonsuit, and have his writ of error if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to con- sider the whole case as made by the testimony. It not infre- quently happens that the defendant himself, by his own evidence, supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony. Grand Trunk Railway v. Cummings, 106 U. S. 700; Accident Insurance Co. v. Crandal, 120 U. S. 527 ; Northern Pacific Rail- road v. Mares, 123 U. S. 710 ; Union Insurance Co. v. Smith, 124 U. S. 405, 425; Bradley v. Poole, 98 Mass. 169; Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202. * * * KENEFICK V. NORWICH INS. CO. 205 Missouri, 294. [1907.] Lamm, J. In the St. Louis Court of Appeals, Bland, P. J., wrote, and, with the concurrence of his learned brethren on that bench, there was handed down in this case the following opinion (119Mo. App. 308). * * * ' ' 3. Plaintiffs further contend that the case was tried upon a theory adopted by the defendant and it is thereby estopped to raise an objection to the action of the court in overruling its demurrer to the evidence and submitting the issues to the jury. It is a well settled rule of practice in this state that where parties try a cause upon a certain theory, neither party can have the case considered on another and different theory in the Appellate Court. [Mirrielees v. Railroad, 163 Mo. 1, c. 486, and cases cited.] But where, as was done in this case, the defendant, at the close of all the evidence, offers a demurrer to the evidence as a whole, which the court refused to grant, and he saves his excep- tions to the rulings of the court, the Appellate Court is required to review all the evidence heard on the trial and determine for itself whether or not there is substantial evidence in support of the verdict. [McPherson v. Railroad, 97 Mo. 253; Weber v. Railroad, 100 Mo. 194; Hilz v. Railroad, 101 Mo. 36; Jennings 364 CONDUCT OP THE TEIAL. [ChAP. IV. i V. Railroad, 112 Mo. 268; Kerr v. Cusenbary, 60 Mo. App. 1. c. 560 ; Flinn v. Bldg. Assn., 93 Mo. App. 444.] " * * * I. The proposition in the third paragraph is to the effect that where a defendant challenges plaintiff's theory of the sufficiency of all the evidence to make a case for plaintiff by submitting an instruction in the nature of a demurrer to the evidence at the close of the case, such defendant does not estop himself or waive his right on appeal to pursue his exception to the court's ruling on such demurrer by asking and receiving instructions the converse of those given for plaintiff. Is that proposition good law 1 Eminently so, because : (a) In construing rules of appellate practice in accordance with right reason regard must be had to the difference between the position occupied by a defendant and that occupied by a plaintiff. The plaintiff goes into court voluntarily; the defend- ant is "lugged" in, that is, pulled in by the lugs, will ye, nill ye. The plaintiff goes up to battle on his own ground — he pitches the field. The defendant by a plea in avoidance may undertake to flank plaintiff's position and select another battlefield. The trial court may parry the flanking operation and force defendant to join battle on the position taken by plaintiff. Having been thus coerced and having yielded, as he was in duty bound to yield (and because he could not help himself) how can it be said that, because he made the very best of a bad bargain and tried "to pluck the flower, safety, from the nettle, danger," he lost his right to complain of the court's ruling in coercing him? * « * But the reason of the rule ought not to permit its application to a case where the losing party, as here, does not invite the error, but yields under protest to the theory of the trial court, and thereafter tries, as best he may, to ameliorate his plight by administering an antidote to the poison already injected in the case, to see if, peradventure, he may not be able to render it innocuous. The reasoning of the cases cited by Bland, P. J., in paragraph three is in accord with that of the foregoing cases and sustains the proposition in that paragraph. Indeed, it was a favorite notion of writers on sprightlier themes than the law, commencing, maybe, with Aristophanes and coming on down through a line of wits, including Butler, Scar- ron, and Goldsmith, that: SeO. 4.J KENEFICK V. NORWICH INS. CO. 365 ' ' For he who fights and runs away, May live to fight another day ; But he who is in battle slain, Can never rise and fight again. ' ' Transmitting that notion into allowable law phrase, it might read thus : He who fights and runs away from a position taken on his answer and at the trial, because driven away by the court, may live to fight another day on appeal in the same position, if he marked the spot by an exception; but he who is in battle slain, that is, who selects his place voluntarily, and who legally (speaking in figure) dies in his tracks on his selected theory, can fight no more on appeal, because : (as once a mortgage, always a mortgage, so) once fairly dead, always dead. (b) The rule respondent invokes is the sensible commonplace of the law that a case must be heard on appeal on the same theory it was tried below. That rule is constantly applied in many ways. But care must be exercised to put one's finger on the theory upon which the case was tried. "What if there be two theories. May one be taken and the other left? If a plaintiff and defendant jointly select a theory and try their case on that theory, neither may stray from it on appeal. If either litigant tole the court into error, the one to blame may not complain. So, if plaintiff and defendant jointly tole the trial court into error, neither may complain of that error on appeal. But it must not be forgotten that a defendant, in his defense, may have a quiver full of arrows, may be allowed more than one theory — may have two strings to his bow withal. For instance, his first theory may be that he is not liable as a matter of law on all the facts. His next theory may be that it is a question of fac+ to be put to the jury whether, under the evidence, he is liable on the issues put to them on plaintiff's theory of the case. Precisely so is the record in this case. By answer, by its course at the trial and by the mandatory instruction asked and refused, defendant insisted it was not liable on the facts as a matter of law. The trial court refused to go hanci in hand with defendant on that theory; and defendant, adjusting itself to the court's theory, is not now estopped to reassert its first theory and waived none of its legal rights on appeal. 366 CONDUCT OF THE TKIAL. [ChAP. IV. BEUTTELL v. MAGONE. 157 U. S. 154. [1895.] Mr. Justice White, after stating the ease,i delivered the opinion of the court. The contention is advanced that as each party below requested the court to instruct the jury to return a verdict in his favor, this was equivalent to a stipulation waiving a jury and submitting the case to decision of the court. From this premise two con- clusions are deduced; first, that, there being no written stipula- tion, the decision below cannot be reviewed upon writ of error ; ^ second, that, even if the request in open court, made by both parties, be treated as a written stipulation, the correctness of the decision below cannot be examined, because it is in the form of a general finding on the whole case, and findings of the court upon the evidence are reviewable only when they are special. The request, made to the court by each party, to instruct the jury to render a verdict in his favor, was not equivalent to a submission of the ease to the court, without the intervention of a jury, within the intendment of Rev. Stat., sections 649, 700. As, however, both parties asked the court to instruct a verdict, both affirmed that there was no disputed question of fact ^ which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts, and the parties are, therefore, concluded by the finding made by the court, upon 1 The action was brought to re- suit, that there was no dispute as cover back the duty paid under pro- to the facts, and that there was test, on the ground that the articles nothing, therefore, to be submitted should have been taxed as rugs and to the jury. not as carpets. Second, That no request was made 2 See Kearney v. Case, 12 "Wall. by defendants ' counsel to go to the 275, post. jury. It is to be presumed that if 3 Allen J., in Winehell v. Hicks, the counsel had insisted upon sub- 18 N. Y. 558, ' ' But it is insisted mitting to the jury any of the ques- that the judge should have sub- tions of fact involved in the case, mitted the facts to the jury; and the court, if proper, would have com- that he erred in holding as matter plied with the request. At all of law that the payment was made events, it is too late to raise that by the request of the sureties. It point here, for the first time, under may be answered to this position, the general exception to the direc- First, That the defendants as- tion of the judge to the jury to sumed, in their motion for a non- find a verdict for the plaintiff." Sec. 4.] beuttell v. magone. 367 which the resulting instruction of law was given.* The facts having been thus submitted to the court, we are limited, in re- viewing its action, to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof. Lehnen v. Dickson, 148 U. S. 71; Runkle v. Burnham, 153 U. S. 216. There was obviously no disputed question of fact. The plain- tiff introduced proof tending to show that the rugs had been woven as rugs on a loom prepared for that purpose, and which was therefore not suitable for weaving carpeting ; that they contained materials used in making rugs which were not the kind or quality of materials used in making carpets ; that their size, shape, pat- tern, back, and other qualities made them distinctly rugs eo iiomine as distinguished from rugs made "from portions of carpet or carpeting. ' ' From this evidence was deduced the con- elusion of law that they were dutiable as rugs at 40 per cent ad valorem. Defendant's testimony tended to show that the rugs were called Wilton rugs, were a plush fabric (which was not traversed by the plaintiff's testimony), and hence were of a "like character and description" with Wilton carpet. Upon these facts the defendant based his claim that as matter of law they were dutiable at the rate imposed on such carpets. From * Lumpkin, J., in Broadhurst v. sion that, if this position is not eor- HUl, 137 Ga. 833 (1912), "It was rect, a verdict may be directed in argued, that because the plaintiffs favor of the other party. On the in error moved the court to direct contrary, a contention that the evi- a verdict in their favor, and the de- dence demands a verdict for one fendants in error also moved for the party prima facie includes the con- direction of a verdict in their favor, tention that it does not demand a this waived the question of whether verdict in favor of the other. Of the case should be submitted to the course parties may agree that the jury, and that, upon overruling the case is controlled by a question of motion of the plaintiffs in error, the law, and that the judge shall direct court could grant that of the de- a verdict one way or the other, and fendant in error. The motion for a thus waive the right to have a jury new trial distinctly makes the point pass upon the facts. In Lydia Pink- that, under the evidence, the motion ham Co. v. Gibbs, 108 Ga. 138 (33 for the defendants in error should S. E. 945), something of this kind not have been granted but the case occurred; and moreover, the Su- should have been submitted to a preme Court held that there was no jury. The mere fact that a party conflicting evidence on the issue in- to a litigation contends that the volved. In the present case there evidence demands a finding in his was no such waiver of a jury trial favor does not amount to a conces- on the facts." 368 CONDUCT OF THE TRIAL. [ChAP. IV. this undisputed evidence, then, arose the legal question whether rugs of the kind stated, not being "portions of carpet or carpet- ing," were taxable as Wilton carpets, because they were of like character or description, that is, because they were plush fabrics. Wilton carpets were also a plush fabric. The correctness of the ruling below depends upon an interpretation of the language of the statute which we quote ; * * * KOEHLBE V. ABLER. 78 New York, 287. [1879.] Chuech, Ch. J. The action was for money loaned, and the verdict was directed by the court. The defendant alleges error in not submitting the case to the jury. At the close of the evi- dence the plaintiff asked the court to direct a verdict in his favor, and the defendant then requested a like direction in his favor. The court stated that he thought the plaintiff entitled to the direction. The counsel for defendant then asked to go to the jury upon the question whether the debt in suit was ever con- tracted at all. This was denied, and an exception taken. Upon these facts we think that the defendant was entitled to go to the jury if the case warranted it. If nothing further had been done after both parties asked a direction of a verdict it would be assumed that they intended to waive the right of submission to the jury, and consented that the court should decide the ques- tions of law and fact involved. But after a request, and a refusal to direct a verdict, there is no absolute inconsistency in asking to submit questions of fact to the jury. It is not proper, ordinarily, to direct a verdict if there is any material question of fact which ought to be submitted, and it is error to make the direction in such a case. Parties may consent, however, that the court may pass upon all questions both of fact and law, and if they do they will be bound, and when both parties ask a direc- tion this court will presume such consent. In this case the pre- sumption is repelled by an express request to go to the jury upon a question of fact.^ Besides the court did not put the denial to 1 Accord : Minnahan v. Ey., 138 Where no request to submit ques- Fed. 37; Empire Cattle Co. v. Ey., tions to the jury is made, and the 210 U. S. 1. facts are thus constructively sub- Sec. 4.] koehler v. adler. 369 submit the question of fact to the jury upon the ground that the defendant 's counsel had irrevocably waived the right, but it was denied presumably upon the ground claimed here that the cause of action was proved by uncontradicated evidence, and that there was no question to submit, and that point is now before us for adjudication. The action was brought to recover $2,500 loaned by the plain- tiff to defendant's intestate on the 30th of January, 1871, with interest, less $250 paid September 23d, 1874. The plaintiff pro- duced a cheek made by himself, dated January 30, 1871, upon the BuUshead Bank, payable to the order of the defendant's intestate, and indorsed by him and another person. It is not claimed that this check is evidence of money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by the plaintiff. The evidence relied upon is the testimony of two witnesses as to certain acts and admissions of the intestate, which, if true, did establish a cause of action. One of them testified that, in September, 1871, he was present when the plaintiff and intestate were together, and the former produced the check and requested payment, and charged the defendant that he procured the money fraudulently; that the defendant admitted it, and "begged him not to prosecute him as he knew he could bring him to Sing Sing." This witness also testified that he was present on the 23d of September, 1874, when the intestate paid $250 on the bheck, and agreed to pay the bal- ance in a few months. Another witness, the brother of plaintiff, testified that he was present when the $250 were paid, and cor- roborates the first witness as to the payment, but relates the conversation somewhat differently from the first witness. The plaintiff 's counsel insists that this evidence being uncontradicted, could not as a matter of law be disregarded, and if there was nothing else in the case, this position would be correct. It is a general rule that the positive testimony of an unim- peached, uncontradicted witness cannot be disregarded by the court, or jury, arbitrarily or capriciously (Lomer v. Meeker, 25 N. Y. 361), but in applying this rule great care should be exer- cised. In Elwood V. The Western Union Telegraph Co. (45 mitted to the court, the question as Fed. 794; Love v. Seatcherd, 146 to whether there is any evidence to Fed. 1; Michigan Co. v. Tabor, 141 support the finding by the court is Fed. 332; Melton v. Bank, 190 Fed. open to review. Ins. Co. v. Ry., 134 127. H. T. p.— 24 370 CONDUCT OP THE TRIAL. [ChAP. IV. N. Y. 549), Rapallo, J., in delivering the opinion of this court, said: "But this rule is subject to many qualifications. There may be such a degree of improbability in the statements them- selves as to deprive them of credit, however positively made. * * * And furthermore, it is often a difficult question to decide when a witness is in a legal sense uncontradicted. He may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of a witness for the simple reason that no other witness has denied them, and that the character of the witness is not impeached. ' ' The general rule was held not to apply in Kavanagh v. Wilson (70 N. Y. 177), where it was in- ferred that the witness might be interested in the recovery, and it appeared that the statement was not entirely free from im- probability. It appeared in this ease that on the 30th day of January, 1871, when the alleged loan was made, and for a con- siderable period prior and subsequent thereto, the plaintiff and decedent were trustees of a corporation known as the "Stone- wall Oil Company, ' ' the decedent being president and the plain- tiff treasurer; that the plaintiff received, and paid out upon checks, the funds of said company in his individual name ; that while said parties occupied this position the plaintiff commenced an action against said company for a large sum claimed to be his due for advances made; that in the bill of particulars fur- nished in said action, which was an abstract from the cash book kept by the plaintiff of receipts and disbursements for the said corporation, an item appeared under date of January 30, 1871, of $2,500 paid to the decedent ; that during the pendency of said action, and in the year 1873, an arrangement between the plain- tiff and decedent was made, by which it was agreed that no evidence should be interposed on behalf of the company, and that plaintiff should be allowed to take judgment for the amount which tfie referee should report, and by which, in consideration of $5,000, secured to be paid, the decedent was released from any personal liability on account of said alleged indebtedness to the plaintiff, and the decedent assigned to the plaintiff all his interest in the property of the corporation. Mr. Boardman, counsel for the defendant in that action, and in this, testified that, after the release was given, he said to both parties: "This settles all the Sec. 4. J gbrman savings bank v. bates. 371 matters between you, does it not?" and they both replied, "It does." This claim was not mentioned at that time, nor at any time, until nearly three years after the intestate died, and a consider- able period after the expiration of notice to creditors to produce their claims. In view of these, and some other circumstances, it cannot be affirmed as matter of law that the evidence of the two witnesses produced by the plaintiff was entirely undisputed and uncontradicted. No explanation was given of the item of $2,500 charged to the company on the same day of the alleged loan, and but one voucher was produced which might as well serve for that charge as the loan. It is not needful to determine how the fact was, but only that there were circumstances tending to show that the alleged load was in fact money advanced to the company. It may be that the evidence of these two witnesses ought to outweigh all the circumstances referred to. All that we intend to decide is that it was a question of fact for the jury, and not one of law for the court, and that the rule invoked is not applicable to the case. It follows that the judgment must be reversed and a new trial granted, costs to abide the event. GERMAN SAVINGS- BANK v. BATES. Ill Iowa, 433. [1900.] Given, J. * * * II. The only question presented in this case is whether the original note was satisfied by the execution and delivery of any or all of the renewal notes. If it was satisfied there was no extension of the time for its payment, and if it was not satisfied plaintiff could have sued upon it at any time after its maturity, and in that case there was no extension of time. If all or any of the renewal notes were received by the plaintiff in the place of, and in satisfaction of, the note in suit, then it was satisfied ; but if the renewal notes were received under an agree- ment that they were not to stand in lieu of the first until indoped as it was indorsed, and that the first was to be in force until that was done, then there was no satisfaction of the note in suit. The evidence is undisputed that such was the agreement when the first renewal was given, but, as we have seen, the matter of the 372 CONDUCT OF THE TRIAL. [ChAP. IV. agreement was never afterwards mentioned, and it may well be questioned whether in giving and taking the later renewal notes the parties acted upon the agreement or whether they abandoned it. On the one hand we have the fact that the plaintiff con- tinued to hold the note in suit without any indorsement of satis- faction thereon, as tending to show that it acted upon the agree- ment. On the other hand, we have the fact that it continued to receive these renewal notes to the number of nine or ten, and interest up to November 2, 1896, more than three years after the note in suit became due, without demanding payment or indorse- ment, as tending to show that both parties thereto abandoned said agreement, and that the credit, as evidenced by the renewal notes, was extended to the defendant company alone. The pivotal question in the case is whether the renewal notes were all given under said agreement, or whether in giving the later notes the agreement had been abandoned. There are other facts than those we have mentioned bearing upon the question. Though there is no conflict in the evidence, the conclusion to be drawn there- from is one about which minds, may differ. Therefore it cannot be said as a matter of law which is the correct conclusion. "We think that question should have been submitted to the jury, and that the court erred in sustaining plaintiff's motion for a verdict. III. At the close of all the evidence the defendant moved for a verdict, which motion was overruled; whereupon the plaintiff moved for a verdict, which was sustained. Plaintiff contends, as was contended in Bank v. Milling Co., 103 Iowa, 524, that, as each party moved for a verdict, each waived the right of submission to the jury. "We said in that case: "This seems to be the rule established by the weight of authority" — citing 6 Bnc. PI. & Prac. 703. Holding that there was not sufficient evidence to^justify the court in directing a verdict for the de- fendant, we expressed no opinion upon the question thus pre- sented. The authority referred to is cited by the plaintiff, and is as follows: ""Where, at the close of the evidence, on a jury trial, both parties ask for the direction of a verdict, it will be assumed that they intend to waive the right of submission to the jury, and let the court decide the question involved, both of law and fact, unless the party whose request is refused asks to go to the jury upon the questions of fact. ' ' A number of cases, mostly from New York, are cited in the footnotes as supporting this statement of the rule. This court has never passed upon the Sec. 4. J german savings bank v. bates. 373 question of application of this rule in our State, and we under- stand that the practice with us has been different. In Calder v. Crowley, 1*4 Wis. 157, wherein the question was raised, but not passed upon, the court said, ' ' that it would be slow to hold that a party thereby waived his right to have the questions of fact passed upon by the jury," and we concur in that expression. Relying upon the law as announced in Meyer v. Houck, 85 Iowa, 319, as to when the court may direct a verdict, each party made his motion. By his motion the defendant asked for a verdict upon the claim that the evidence would not support a verdict for the plaintiff, and this the plaintiff denied. Plaintiff's attitude as against defendant's motion was that of insisting that there was evidence to support a verdict in his favor. After the court ruled vnth him, holding, not that plaintiff was entitled to a verdict, but that there was evidence to support such a verdict if the jury should so find, plaintiff moved for a verdict. The attitude of the defendant towards that motion was that there was not evidence to support a verdict for the plaintiff. The parties never agreed to waive a jury, and to submit the issue of fact to the court, and we think it should not be assumed that they so intended. They differ radically as to the proper conclusion to be arrived at from the evidence as to whether all the renewal notes were given under the agreement that the one in suit was to remain as evidence of the debt — a matter, as we have said, about which minds may differ. Neither was willing, as against the motion of the other, to waive a jury, and submit this differ- ence to the court, but each was impliedly asking, as against the other, that this difference, which it was the province of the jury to determine, should be submitted to the jury. Beversed.^ 1 Accord: Thompson v. Brennan, Contra: Sutter v. Vanderveer, 104 Wis. 564; Stauf v. Bingen- 122 N. T. 652. The rule in the heimer, 94 Minn. 309 ; Lonier v. Federal . Courts appears to be de- Bank, 153 Mich. 253; Wolf v. Chi- rived from the New York doctrine, cago Printing Co., 233 111. 501; Virginia Hardware Co. v. Hoyes, 126 Tenn. 370 (1912). 374 CONDUCT OF THE TRIAL. [ChAP. IV. Section 5. Nonsuits. (a) When permitted or directed. 2 Lilly Beg. 292-3. A. There is a difference between a nonsuit and a retraxit; a nonsuit is always upon a demand made for the plaintiff to appear, and he makes a default ; a retraxit is when the plaintiff is present in court. A retraxit is in bar of all other actions of the like nature, but a nonsuit is not, unless in some particular cases ; for it may be the plaintiff hath mistaken something in his declaration, or that his witnesses who should prove his action are not present. B. A nonsuit in an appeal of murder, rape, robbery, etc., after appearance is peremptory, and this is in favorem vitae. Co. Litt. 138, 139. ; C. In real or mixed actions, the nonsuit of one of the demand- ants is not the nonsuit of both, for he which makes default shall be summoned and severed. But regularly in personal actions, the nonsuit of one plaintiff is the nonsuit of both, unless in some particulars. Ibid. D. Upon a trial when the jury comes to deliver in their verdict, and the plaintiff is called to hear the verdict ; if he do not appear after he is thrice called by the cryer of the court, he is to be nonsuited, and the nonsuit is to be recorded by the secondary, by the direction of the court, at the prayer of the defendant's counsel : Hill. 21 Car. B. R. For the court will not order it to be recorded, except the counsel pray it for the client. F. The king cannot be nonsuited, because in judgment of law he is always present in court ; but his attorney-general may enter a nolle prosequi. K. When a plaintiff is nonsuit, if he will again ^proceed, in the same cause, he must put in a new declaration, and cannot proceed upon that declaration, whereupon he did proceed in the cause, and wherein he became nonsuit : 22 Car. B. R. 16, Apr. 1650. B. S. For by his being nonsuit it shall be intended that he had no such cause of suit as he declared in; and so that declaration is void, and he hath no day in court. Sec. 5.] Arnold v. johnson. 375 ARNOLD V. JOHNSON. 1 Stramge, 267. [Nisi Prius, 1720.] The cause was called, and the jury sworn, but no counsel, attorneys, parties or witnesses of either side appeared. Sergeant Whitaker being asked his opinion, said the plaintiff ought to be called, for the jury being charged, the cause must be carried on to some determination. But the chief justice said, that nobody had a right to demand the plaintiff but the defendant,^ and therefore the defendant not demanding him, he could not order him to be called, but the only way was to discharge the jury. And Mr. Ketelby remembered a case where my Lord Parker did so upon the like accident. Smith v. "Whistler, Gas. Temp. Hard. 305, S. P. CASTLE V. BULLARD. 23 Howard (V. 8.), 172. [1859.] Clifford, J. * * * , As the facts have been found by the jury, the questions to be determined are those that arise upon the exceptions. Of these, the first in the order of the argument at the bar is the one founded upon the refusal of the court to order a nonsuit as to the defendant. Granger, as requested by the counsel at the close of the plaintiff's testimony. Several answers may be given to this complaint, each of which is sufficient to show that the exception cannot be sustained. In 1 Under modern statutes courts the return of the writ; but, by the very generally have power to dis- rules of this court, if he do not de- miss a case for failure to plead or liver his declaration within two otherwise prosecute the action, or terms, the defendant may sign judg- f or failure i€ comply with an order ment of more pros. Though, unless of the court. See 111. E. S. 1913, he take advantage of the plaintiff's Chap. 110, §§21, 32; Mo. E. S. neglect, the plaintiff may still de- 1909 § 2259. Buller, J., in Worley liver his declaration within the year. V. Lee, 2 Term Eep. 112 (1787) : Therefore Per Curiam, rule dis- "By the general rules of law, a charged." plaintiff must declare against a de- See comments in Holmes v. Ey., fendant within twelve months after 94 lU. 439. 376 CONDUCT OF THE TRIAL. [ChAP. IV. the first place, Circuit Courts have no power to grant a per- emptory nonsuit against the will of the plaintiff. It was ex- pressly so held by this court in Elmore v. Grymes and al., 1 Pet. 471, and the same rule was also affirmed in DeWolf v. Rabaud and al., 1 Pet. 497. In the case last named the defendants at the trial, after the evidence for the plaintiff was closed, moved the court for a nonsuit, which was denied, and the defendant excepted, and sued out a writ of error; but this court held that the refusal to grant the motion constituted no ground for the reversal of the judgment, remarking, at the same time, that a nonsuit cannot be ordered in any case without the consent and acquiescence of the plaintiff.^ Repeated decisions have been made to the same effect; and as long ago as 1832 it was declared, as the opinion of this court, in Crane v. The Lessees of Morris, 6 Pet. 609, that this point was no longer open for controversy. See also Silsby v. Foote and al., 14 How. 222. Another answer to this complaint arises from the fact that the motion for nonsuit is inappropriate in a case like the present, where there are other defendants to whom it cannot be applied. In actions of this description, where there is more than one defendant, the charge, beyond question, as a general rule, is joint and several, and consequently, one may be found guUty and another not guilty; but at common law there cannot regularly be a nonsuit as to one and a verdict, as to others; and for that reason, whenever it appears that there is evidence in the case to charge one or more of the defendants, a nonsuit is never granted at common law, even in jurisdictions where the authority to grant the motion in a proper case is acknowledged to exist. Revett v. Brown, 2 M. & P. 18; Collier on Part. (Am. ed., 1848), § 809, p. 698.2 iBy statute or local practice in 2 In a proper case the plaintiff a number of states, non suits are may dismiss as to one defendant and directed for failure of proof. See proceed against the others. Cal- BournonvUle v. Goodall, 10 Pa. St. laghan v. Myers, 89 lU. 566. For 133 ; Bopp V. Electric Co., 177 N. Y. a distinction between tort and c'on- 33; Carroll v. Electric Co., 49 Or. tract cases in this respect, see Minor 477. Where this practice obtains, v. Bk., 1 Pet. (U. S.) 72. the application raises the same ques- tions as a motion to direct a verdict. Holmes v. Ey., 94 111. 439. Sec. 5. J st. john's lodge v. callender. 377 ST. JOHN'S LODGE v. CALLBNDEE. 4 Iredell, 335. [1844.] Upon the trial of an issue of devisavit vet non, the plaintiff propounded a paper writing as the last will and testament of Joseph Dean, and gave evidence tending to prove its execution. The charge was unfavorable to the proponent, who thereupon asked to enter a nonsuit, which was refused. The jury returned a verdict for defendants, and plaintiff appealed from the sentence pronounced thereon. ^ RUFFIN, C. J. * * * We are not sure that we understand what was meant by the appellants' asking leave to suffer a nonsuit, as the term is not appropriate to proceedings in a Court of Probate. But from analogy to actions at law we suppose the object was to withdraw from the court before a verdict was rendered on the issue, devisavit vel non, so ,as to prevent the delivery of a verdict, and leave the party at liberty to institute another proceeding of the same kind. If so, we think it inconsistent with a proceeding of this sort and contrary to the nature of the jurisdiction of the Court of Probate. The instrument propounded is always brought into court in the first instance, and the jurisdiction is m rem. The inquiry is whether the party deceased died testate, or intes- tate, and if the former, whether the script propounded be his will or a part of it, or not. When once regularly raised, the court must pronounce on those questions, without reference to the presence of this or that person; for the sentence, until annulled, binds all the world. If a cause is about to be heard or under a hearing, and a party in interest is not furnished with full proof and has been sur- prised, his course is, for cause shown, to get an order for opening the case to farther proof and deferring the pronouncing of sentence. Though not in form, it is in substance not materially different upon an issue made up and tried in a court of law under our statute. It is analogous to the trial of an issue out of chancery — only, the one is at the instance of the chancellor to satisfy his conscience, and the other the law compels the Court of Probate to make up in every case of a disputed will. From the nature of an issue, he, who alleges the affirmative, opens the 1 Statement has been condensed. 378 CONDUCT OF THE TRIAL. [ChAP. IV. case, and for that reason the party propounding the will is com- monly spoken of as the plaintiff. But it is inaccurate; for, properly speaking, there is neither plaintiff nor defendant, but both sides are equally actors in obedience to the order directing the issue. In neither case is the party in the afSrmative at liberty to withdraw and defeat a trial more than the party in the negative. If injustice be done on the trial, the relief is to get that finding set aside by the court which ordered the issue, and have it tried again. We have not known of any other course. It is especially proper in the Court of Probate. After an allega- tion propounding a will has been received, until it has been decided, and the paper pronounced against, administration can- not be granted; for the jurisdiction to grant administration is only where there is an intestacy, and that is always declared before or at the granting of the letters of administration, and recited in them. Slade v. Washburn, 3 Ired. 557. It would be most absurd to keep the question of intestacy ever open by allowing one, setting up a pretended will, to propound and repropound it, and at his pleasure to bafile the court and hinder sentence from being finally pronounced, by withdrawing from the court. It cannot be so. On the contrary, the paper itself, the res is sub judice, and the judge gives his sentence for or against it, without noticing particular persons. The court endeavors that all parties in interest shall have notice, that the instrument is sui lite; and, that done, the sentence binds persons having such notice as much as if they were parties acting in the proceedings. Redmond v. Collins, 4 Dev. 437. The object of the motion in this case could not, therefore, be effected; for if the party could Tdc allowed to withdraw and had withdrawn from the cause, he could not have taken the instrument with him. It still remained in the custody of the law, and the court must have proceeded to sentence against it, which would have concluded this person as it would others, while the sentence remained in force, and, further, would "have concluded him, once acting in the cause," from repropounding the instrument. As the paper was only propounded by the devisee, as a will of real estate, ou» view is confirmed to the points arising out of the statute. Per curiam. Sentence affirried.^ 2 Accord : Benoist v. Murrin, 48 Mo. 48; but see Hitchcock v. Green, 235 111. 298. Sec. 5.] merchants' bank v. schulenberg. 379 MERCHANTS' BANK v. SCHULENBERG. 54 Michigan, 49. [1884.] Sherwood, J. This case has once before been in this court (48 Mich. 102), but the questions then raised have no bearing upon the points made in the present record. The action is assumpsit upon a Canadian judgment rendered in the Court of Queen's Bench in the province of Ontario. The plea was the general issue, with notice of set-off and other special matter in bar of the suit. Under the set-off defendant claimed to be en- titled to a judgment. There was no contest as to the amount of the plaintiff's claim upon the trial. The record of the Ontario judgment was introduced in levidence without objection, and the plaintiff's counsel rested his case. The defendant then examined two witnesses upon his part, and, when nearly ready to close the defense, counsel for plaintiff announced to the court that he was taken by surprise by the defendant's testimony; was not then prepared to meet it; and asked leave of the court to submit to a nonsuit, with the right to move to set the same aside. This application of plaintiff's coun- sel was objected to by the defendant, on the ground that since the suit was commenced the Statute of Limitations had com- menced to run against the claim stated in his notice of set-off. The objection was overruled by the court, and counsel for the defendant excepted. Counsel for defendant thereupon admitted the plaintiff's claim for $531,000 stated in his declaration, and claimed his readiness to make proof of his offset to the amount of $646,348 and insisted upon his right to proceed with the trial, establish his claim, and have a verdict for the surplus in his favor, and requested the court to permit him to do so. Counsel for plaintiff objected, the court sustained the objection, and defendant's counsel again excepted. These two exceptions are now before us for consideration, and only these. The question is simply this : Whether, under our statute, when the defendant has given notice of set-off and claims a balance in his favor, the plaintiff can discontinue his suit, or be per- mitted to discontinue it, without the consent of and against the wishes of the defendant. Set-off is a mode of defense. By it the existence of the demand sued upon is, in a certain sense, admitted ; but at the same time. 380 CONDUCT OP THE TRIAL. [ChAP. IV. the defendant sets up a demand against the plaintiff to counter- balance it, in whole or in part, and under our statute the defend- ant may have judgment for any balance found in his favor. Originally, the defendant's claim could only be allowed to the extent of the plaintiff's demand proved on the trial. Toml. Law Diet : Babbington on Set-off, 1. At common law the defend- ant was in no instance allowed to recover judgment for damages for a positive claim against the plaintiff. To obviate the rigor of this rule of law, and to avoid a multiplicity of suits where mutual i cross-demands existed, unconnected with each other, and to have the whole adjudicated upon in one action, was the great object of the statute of set-off. Ward v. Fellers, 3 Mich. 281. The right of set-off at law is given by statute, and is, of course, limited by it. The common law never recognized it. Bacon Abr. tit. "Set-off:" Woods v. Ayres, 39 Mich. 345. How. Stat., § 6886, of the chapter authorizing set-off in justice's court, reads as follows: "If the amount of set-off duly estab- lished be equal to the plaintiff's debt, judgment shall be entered for the defendant, with costs; if it be less than the plaintiff's debt, the plaintiff shall have judgment for the residue only, with costs; if it be more than the plaintiff's debt, and the balance found due to the defendant from the plaintiff in the action be three hundred dollars or under, judgment shall be rendered for the defendant for the amount thereof, with costs ; and execution shall be awarded as upon a judgment in a suit brought by him ; but no such judgment shall be rendered against the plaintiff when the contract which is the subject of suit shall have been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in the action." The same provisions are made applicable to proceed- ings in courts of record, in eases of set-off. See How. Stat., §§ 7367, 7368. The object of the statute is beneficial and equitable, and in its operation it proceeds upon equitable principles. Downer v. Eggleston, 15 Wend. 55, 56. The doctrine of set-off was borrowed from the doctrines of compensation of the civil law, and constituted an important part thereof. 2 Both. Obi. No. 13, p. 99 ; Duncan v. Lyon, 3 Johns. Ch. 359 ; Reab v. McAlister, 8 Wend. 115 ; Whitaker v. Rush, 1 Ambler, 407. This doctrine was also followed to some extent in the English courts before the statutes of set-off were enacted. Sec. 5.] merchants' bank v. schulenberg. 381 See Chapman v. Derby, 2 Vern, 117; Lindsay v. Jackson, 2 Paige, 581. And while it is true that the right of set-off is statutory, and we cannot enlarge the right beyond what the statute reasonably allows, yet the courts may, and it is their duty, in determining regulating and applying the practice, in securing and enforcing that right, to be liberal in their action, and to give the law such construction as will secure all the benefits and advantages intended. The right of the plaintiff at common law to voluntarily submit to a nonsuit, or to discontinue his suit at any time before the jury have rendered their verdict, is well supported by the authorities, and has always been the practice in this State when no set-off has been pleaded. 3 Chit. Pr. 910; 1 Burrill's Pr. 241 ; Wooster v. Burr, 2 Wend. 295 ; Circuit Court Rule 26 ; 1 Green's Pr. 447, 279 ; Slocomb v. Thatcher, 20 Mich. 52. I think that when the set-off is purely defensive, and no affirmative action is required on the part of the court or jury, the right of the plaintiff to become nonsuited at his pleasure, before verdict or judgment, should be in the discretion of the court; which dis- cretion should not be exercised against the right, except in cases where the rights of the defendant might be prejudiced. Under the statute, however, authorizing a judgment to be rendered in case of set-off for any balance found due the defend- ant upon trial, the rule is and should be different. In such a case, really two suits are pending before the court to be tried at the same time. In the one the plaintiff has the affirmative of the issue; and in the other, the defendant has the affirmative. It is only after the trial, when the extent of each party's claim has been ascertained, that the liquidation of the smaller claim occurs by way of set-off, or can be made by the court or jury. The statute requires the defendant to bring forward his claim for adjudication at the time the plaintiff brings his suit, and thereby determines the time when the defendant shall have his claim adjudicated, at the peril of doing so at his own expense. In all other respects the case stands as though two separate suits were brought to determine the rights of the parties ; and I fail to see why both cases should not be governed by the same rules, and receive the same treatment at the hands of the court. Simple justice requires this,' and I can see no reason why the equitable rules upon which the whole doctrine of set-off is based should not be carried out in the practice of these cases. Adopting this 382 CONDUCT OF THE TRIAL. [ChAP. IV. rule, the plaintiff would have no more right to discontinue the defendant's suit than the latter would that of the former; and such, I think, should be the law. These views find support in the following authorities, which I think should govern this ease: Thomas v. Hill, 3 Tex. 270; Bradford v. Hamilton, 7 Tex. 55, 58, 59; Francis v. Edwards, 77 N. C. 271, 275; Riley v. Carter, 3 Humph. (Tenn.) 230; Rees V. Van Patten, 13 How. Pr. 258; Cockle v. Underwood, 3 Duer, 676 ; Van Alen v. Schermerhorn, 14 How. Pr. 287. I think the exceptions of defendant's counsel to the action of the court, in not allowing the defendant to make full proof of his claim and take judgment therefor, were well taken. The judgment must be reversed with costs and a new trial granted. Campbell, J. Concurred. CooLEY, C. J. In this case the defendant relied upon a set-off, which, he claimed, was larger than the plaintiff's demand, and he brings the case to this court, assigning for error the order of the Circuit Court permitting the plaintiff, notwithstanding his objection, to submit to a nonsuit. The general right of the plaintiff to discontinue his suit or to submit to a nonsuit, at any time before verdict, is undoubted ; and in the absence of any statute taking away the right it exists in the cases where set-off is relied upon, to the same extent as in other cases. This is fully recognized in Cummings v. Pruden, 11 Mass. 206, and Branham v. Brown, 1 Bailey 262. In several states statutes have been passed taking away the right, but we have no such statute. The fact that the statute of set-offs permits judgment to be taken by the defendant for the balance found due him, does not preclude a discontinuance. Cummings V. Pruden, supra. But it is said there are decisions to the contrary of these, and several are referred to. The Texas cases are not in point, as they are decided under the civil law, which does not prevail in this State. Bgery v. Power, 5 Tex. 501 ; Walcott v. Hendrick, 6 Tex. 406; Bradford v. Hamilton, 7 Tex. 55. The ease of Francis v. Edwards, 77 N. C. 271, was decided upon a construc- tion of the code of that State, and therefore has no bearing. In Riley v. Carter, 3 Humph. 230, the defendant had obtained judgment for his set-off in justice's court, and the plaintiff removed the case to the Circuit Court by certiorari, and then, in that court, was given leave to dismiss his suit. This was pal- Sec. 5.] anonymous. 383 pable error, and the pourt so held ; but we discover no analogy between that ease and this. The defendant had his judgment, and unless error was shown, had a right to retain it. The three New York cases of Cockle v. Underwood, 3 Duer, 676 ; Rees v. Van Patten, 13 How. Pr. 258, and Van Alen v. Schermerhorn, 14. How. Pr. 287, are not in point, because decided under the State code; but so far as they can be considered as having a bearing, they are against the defendant instead of for him, for they all recognize the power of the court in its discretion to per- mit the plaintiff to discontinue; which is all that is necessary to sustain this judgment. The judgment should be affirmed.^ Champlin, J., concurred. * ANONYMOUS. Belletve, Les Ans du Roy, Richard II, 251. Skipwith reported to Belknapp that a nisi prius was held before him at St. Martins upon an issue of plene administravit, and the plaintiff alleged assets ; and the plaintiff was called and came, and the inquest returned and found that he had fully administered except ten shillings and a chest. Skipwith' asked the inquest the value of the chest, and the inquest considered, and upon this, the plaintiff prayed that he be called ; Skipwith : Nous voliimus de bene esse et nemy de rigore juris; and the plaintiff was called and came not, and the inquest said after 1 Accord : Wooster v. Burr, 7 tiff is not barred from a second ac- Wendel 295 ; Conrad v. Finek, 47 tion. Anderson v. Gregory, 43 Conn. Mo. 173 (prior to present code) : 61. The matter is now largely regulated After a verdict for defendant has by statute. See 111. Statutes 1913, been set aside, plaintiff cannot take Chap. 110, § 48 ; Mo. K. S. 1909, a non suit so as to deprive def end- s 1878. ant of appellate review. Floody v. In Wisconsin and several other Great Northern Ry. Co., 104 Minn, states, a dismissal leaves the counter 517. claim unaffected. Bertchy v. Mc- For other situations where the Leod 32 Wis. 205. When a non lights of the defendant preclude a suit is taken and judgment rendered non suit. Carlton v. Darcey, 75 N. for defendant on a set off, the plain- Y. 375. 384 CONDUCT OP THE TRIAL. [ChAP. IV. this that the chest was of the value of half a mark. And now he asked if the plaintiff should be nonsuited in this case. Bel- KNAPP: Yes, certainly, because at any time before full verdict given the plaintiff can be nonsuited ; and in assize, if the verdict makes a difficulty, or in case the justices send out the inquest to inquire further, and again if there is further inquiry of the damages, and they have not fully inquired, the plaintiff can be nonsuited, with which Breton, clerk, concurred. Skipwith : Of the damages, I think not, when the principal is found. Bel- KNAPP : Yes, certainly. Breton, clerk, said that at the last term a nonsuit was awarded, etc. ANONYMOUS. Bellewe, Les Ans. du Boy, Bichard II, 252. Assize. When the inquest came to give their verdict, the plaintiff was called and appeared, and the assize gave their verdict for the tenant : and the court was opposed to them because of their charge. One for the plaintiffs prayed that he be called. Curia: That is not allowable when the assize have given their verdict, and were adjourned to Westminster. And there upon good advice it was adjudged that he could not be nonsuited after good verdict. OUTHWAITE V. HUDSON. 7 Exchequer, 380. [1852.] This was an appeal from the decision of the judge of the County Court of Yorkshire. It was an action for the breach of a warranty of a horse; and at the trial, which was held at Leeds, after the judge had directed the jury, and whilst they were deliberating upon their verdict, the plaintiff stated that he elected to be nonsuited. To this the defendant objected; and the judge said that he thought that, as the case had been left to the jury, the application was too late, and that he would therefore take the verdict, but reserve leave to the plaintiff to Sec. 5.] keat v. bakkeb. 385 move to set the verdict aside, and to enter a nonsuit. The jury found a verdict for the defendant. The plaintiff never moved to set aside the verdict pursuant to the leave reserved, but appealed to this court. Paeke, B. The judge of the County Court was wrong in refusing to allow the plaintiff to be nonsuited. At common law, the subject had a right to be nonsuited at any stage of the pro- ceedings he may please, and thereby to reserve to himself the power of bringing a fresh action for the same subject-matter. The legislature did not, by the 9 & 10 Vict. c. 95, intend to deprive a plaintiff, who sues in a County Court, of this right, or to take away from these courts the power of nonsuiting, which is incidental to every court. The plaintiff's power of demanding to be nonsuited continued to. the last moment — ^until the jury had given their verdict ; or, where the case is tried by a judge without the intervention of a jury, until the judge had pro-, nounced his judgment. KEAT V. BARKER. 5 Modern, 208. [B. R. 1697.] An action was brought against the defendant for six years wages due to the plaintiff for his salary, being a steward. There was a verdict for the plaintiff at the assizes in Berkshire, and only seven pounds damages given. It was moved to discontinue the action, and that the postea might not be brought in. Sed noi;i allocatur; for after a general verdict ^ the court will not suffer the plaintiff to discontinue his action: it has been allowed after a special verdict,^ and an argument at bar; so 1 Eleniiron v. G-as. Co., 2 Fos. & term Hawkins moved, but the court Fin. 437. "The jury were directed were clearly of the opinion that the as to whether the defendant's gas plaintiff was too late in his applica- caused the explosion, but were unani- tion for a nonsuit. mous in finding that they used all = After special verdict a discon- reasonable precautions. Hawkins ap- tinuance may be allowed as a matter plied instantly for a nonsuit; but of discretion. Price v. Parker, 1 Cockburn, C. J. — That is too late. Salt. 178; leave to discontinue re- although the verdict is not recorded. fused after verdict for plaintiff and Verdict for the defendants." Next motion in arrest, Anon. 1 Lev. 48. H. T. p.— 25 386 CONDUCT OF THE TEIAL. [ChAP. IV. likewise after a joining in demurrer, but not after arguing such demurrer. But the statute 2 Hen. 4, e. 7, ordains, "That after verdict a plaintiff shall not be nonsuit;'" which was otherwise at common law, for if he did not like his damages he might be nonsuit. Note: Lord Howard's Case, 1 Sid. 84; Kobinson v. Ban- brough, 2 Sid. 113. But on special circumstance and payment of costs the court will permit a discontinuance after demurrer argued. Jones v. Pope, 1 Sid. 305, S. C. 1 Saund. 37. SHAW V. BOLAND. 15 Gray, 571. [I860.] Writ of entry to foreclose a mortgage. At the trial in the Superior Court before Lord, J., the plaintiff's counsel fully opened his case to the jury; called four witnesses, who were sworn generally in the case; proceeded to examine them, in the first instance, to the court, for the purpose, as he said, of show- ing the existence and loss of the mortgage deed, and of thus laying the foundation for the introduction of secondary evidence of its contents; and stated that he should further examine the same witnesses as a part of such secondary evidence. The wit- nesses were all cross-examined by the defendant's counsel, and questions were put to them by the judge, who, after hearing the testimony, refused to admit secondary evidence of the execution and contents of the mortgage; and, on the plaintiff's request and to enable him to procure additional evidence, postponed the further hearing of the case for four days, but did not discharge the jury. At the end of the time granted, the plaintiff intro- duced additional evidence; but the judge did not change his ruling. The plaintiff proposed to become nonsuit, claiming to do so as a matter of right; but the judge refused to permit it, a verdict was taken for the defendant, and the plaintiff alleged exceptions. Metcalp, J. The exceptions must be overruled on the author- ity of Locke V. Wood, 16 Mass. 317. In that case it was decided that after a cause is opened to the jury, and is begun to be proceeded in before them, the plaintiff has not a right, of his Sec. 5.] beert v. savage. 387 mere pleasure, to discontinue his suit or to become nonsuit. Mr. Justice Jackson had previously expressed an opinion to the like effect in Haskell v. Whitney, 12 Mass. 48, 49. Such, therefore, is now the law of this commonwealth, whatever it may be else- where, or may have been here under the colonial ordinance of 1641, which is found in Anc. Chart. 46. And this law seems to us to be eminently just. As a nonsuit is no bar to another suit for the same cause of action, a plaintiff might harass a de- fendant by unlimited litigation, if the court had no authority, in any case, to prevent a nonsuit. The action of the judge, at the trial of this case, having been an exercise of his judicial discretion, cannot be supervised by us.^ Nor is the question before us whether he rightly decided that there was not sufficient proof of the loss of the plaintiff's mortgage to warrant parol proof of its contents. A nonsuit was refused, and a verdict taken, solely — so far as the exceptions show — because the plaintiff did not produce legal proof of the mortgage which was necessary to the maintenance of his action, although the court had granted him all the time that he asked for to procure such proof. Exceptions overruled. BERRY V. SAVAGE. 2 Scammon, 261. [1840.] LocKWOOD, Justice, delivered the opinion of the court: The following bill of exceptions was taken on the trial of this cause, to-wit : "Be it remembered, that on the trial of this cause, after 1 In the case of Lock v. Woods, trial court might pass on the re- 16 Mass. 317, the nonsuit was asked quest as a matter of discretion. In and refused after verdict was an- Means v. Wells, 12 Mete. 356, a non- nounced but before it had been re- suit was allowed as a matter of corded. In Washburn v. Allen, 77 discretion after the trial had been Me. 344, in a trial without a jury, begun by the introduction of evi- plaintifE asked to take a nonsuit dence. at the close of the evidence which A hearing before an auditor or was refused as a matter of law; referee is not a trial within the the Supreme Court after an exhaus- meaning of this rule. Carpenter v. tive review of the English, Massa- Ry., 184 Mass. 98. But see Allen chusetts and* other New England v. Hickman, 156 Mo. 49. cases, reversed in order that the 388 CONDUCT OF THE TRIAL. [ChAP. IV. the evidence had been submitted to the jury, and the jury had retired to consider their verdict, the jury returned into court, and inquired whether or not the note was to be considered by them as it read. The note had been read to the jury as evidence, under the declaration, without objection, but upon the return of the jury into court, and their making the inquiry aforesaid, it appeared, upon examination of the note, that it was made payable on the .... day of .... one thousand eighteen hundred and thirty. "The variance between the note and the declaration had not before been discovered by the court, or mentioned by the counsel on either side. "The court informed the jury, that they were bound to con- sider the pote as it read, and as not being due until time expressed on its face; and if, from their reading of the note it did not appear to be due, they must find for the defendants. Where- upon, the plaintiff's counsel stated that he had never before discovered the variance between the note and the declaration, and moved the court to permit him to suffer a nonsuit, which motion being objected to by the defendant's counsel, the court overruled, and refused to permit the plaintiff to suffer a nonsuit. The plaintiff, by his counsel, excepts." Etc. The assignment of errors questions the correctness of the instructions to the jury, and the refusal to permit the plaintiff to suffer nonsuit. At common law, a plaintiff was permitted to take a nonsuit, at any time before the verdict was rendered in court. (Wooster V. Burr, 2 Wend. 95.) But by the 13th section of "an act regulating the practice in the Supreme and Circuit Courts of this State, and for other purposes," passed March 22, 1819, it is provided, that "every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar." (R. L. 486; Gale's Stat. 528.) In order to bar the plaintiff 's right of submitting to a nonsuit, the jury must have the whole of the case, including not only all the evidence, but the instructions of the court. Consequently, if, for any cause, the jury retire from the bar without having the whole of the case on which they are to render verdict, the plain- tiff's right to submit to a nonsuit is not taken away. Many cases might be put, where the greatest injustice would result if this were not the rule. Sec. 5.] BERET V. SAVAGE. 389 The facts in this case, however, show the necessity of con- struing the statute in the manner above indicated. Had the defendants objected to the reading of the note in evidence, or had they discovered the variance before the jury went out, there can be no doubt that the note would have been rejected by the court, and the consequence would have been, that the plaintiff would have been nonsuited. The objection ought strictly to have been by defendants to receiving the note in evidence ; and it perhaps may well be doubted, whether under the circumstances of the case, the court would not have been justified in charging the jury, that they had a right to consider the note as due, if they believed from the face of the note, that the word "eighteen" was written by mistake for "eight." "With- out intending, however, definitely to decide this point, we ^re clearly of opinion that the plaintiff had a right to submit to a nonsuit, when the instructions, were given. ^ For not permitting the plaintiff to suffer a nonsuit the judgment below is reversed with costs and judgment of nonsuit rendered in this court.^ Judgment reversed. 1 Accord : Hensley v. Peck, 13 Mo. 587. 2 Day, C. J., in Harris v. Beam, 46 la. lis, "Section 2844 of the Code provides that an action may be dismissed by the plaintiff before the final submission of the case to the jury, or to the court, when the trial is by the court. "It is claimed by appellant that the cause had been finally submitted, and that the time for dismissing the cause had passed. In every case finally submitted there must be some moment of time in which the condi- tion of being finally submitted is as- sumed. Ordinarily there is no diffi- culty in determining whether or not a case has been submitted. But the difficulty increases with approach to the time which marks the line of de- markation between a ease finally sub- mitted and one not finally submitted, and becomes greatest when that pre- cise time is reached. If the last word. of the court's charge to the jury had not been read, it would probably be conceded that no final submission had occurred, fiut, as the charge had been fully read, it is claimed nothing further remained for court or counsel to do, and that the cause was finally in the hands of the jury. This case presents the question, perhaps, in the moat diffi- cult light of which it is susceptible. # « * "A cause is not finally submitted to the jury when the last word of the charge is read. In practice, the jury are directed by the court to re- tire in charge of a sworn officer to consider of their verdict, or to enter upon the consolidation of the case without retiring. "This direction by the court to the jury to enter upon the considera- tion of the case may fairly be re- garded as the moment when the final submission of the cause occurs. An 390 CONDUCT OF THE TRIAL. [ChAP. IV. NASHVILLE, CHATTANOOGA & ST. L. RY. v. SANSOM. 113 Tennessee, 683. \190i.] Mr. Justice Neil. This action was brought in the Circuit Court of Grundy county to recover damages for the alleged wrongful killing of John "W. Sansom, the husband of the plain- tiff below. A jury was impaneled to try the cause, and the plaintiff introduced her evidence. After the plaintiff had intro- duced all of her testimony, the defendant demurred to the evidence, and the plaintiff joined issue thereon. The merits of the demurrer were then argued before the court by the respective counsel. After this discussion was closed the plaintiff moved the court for leave to take a nonsuit. This motion was granted, and the plaintiff's case was accordingly dismissed, without any action upon the demurrer. To this judgment the defendant below, who is the plaintiff in error here, excepted, and prayed an appeal to this court, and has assigned errors. The point raised here is that under our statute the motion for leave to take a nonsuit came' too late. We have three sections bearing upon the subject. They are as follows: Shannon 's Code, § 4689 : ' ' The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defendants, but if the defendant has pleaded a set-off or counterclaim, he may elect to proceed on such counter- claim in the capacity of a plaintiff. ' ' Section 4690: "The defendant may, in like manner, with- draw his counterclaim at any time before the jury retires to consider of their verdict." Section 4691 : "If the trial is by the court instead of the jury the nonsuit or dismissal provided for in the last two sections shall be made before the cause is finally submitted to the court, and not afterwards." The counsel for the respective parties have argued the case attorney cannot always tell whether cannot safely trust his case in the he can safely submit his cause to hands of the jury, he ought, at that the jury upon the evidence intro- moment, to be permitted to dismiss duced until he hears the charge of without prejudice to a further ae- the court. If, in his judgment, the tion. The statute, in our judgment, charge is so adverse to him that he does not deny him that right. ' ' Sec. 5.] nashville, c. & st. l. ry. v. sansom. 391 somewhat at cross-purposes; it having been insisted for defend- ant in error that the decision should be governed by section 4689, and the plaintiff in error that it should be governed by- section 4691. The first theory advanced for the defendant in error is that the case remained before the jury notwithstanding the demurrer to the evidence, and that the right to take a nonsuit had not been lost, because it does not appear that the jury had retired from the box at the time the motion was made. The theory advanced for the plaintiff in error is that, when issue was joined on the demurrer to the evidence the case was taken from the jury, and at once became a matter to be tried before the court ; and that, when the argument was concluded, the case was thereby finally submitted to the court, and it was then too late to take a nonsuit. "We are of opinion that the position of the defendant in error is untenable. Beading sections 4689 and 4690 together, it is perceived that by the retiring of the jury is meant the point of time when the case is submitted to them ' ' to consider of their verdict." The reference is to the practice of the actual with- drawal of the jury from the box for the purpose indicated. Sometimes, however, after the argument is closed, and all in- structions have been delivered to them, the jury are permitted to make up their verdict in the box without an actual retiring for the purpose. We are of opinion the legislature intended that the right to take a nonsuit in a jury case should finally cease when the jury should properly begin to "consider of their verdict," under the law as above stated, whether there should be an actual withdrawal from the jury box or not. The sub- stance of the matter is that there shall be no nonsuit allowed after a case has been fully committed to the consideration of the jury. In the case referred to in the preceding paragraph there is a duty devolved upon the jury to determine the facts admitted in evidence before them, and to apply thereto the instructions de- livered to them by the court, for the purpose of rendering a verdict thereon. But when there is a demurrer filed to the evidence the case is withdrawn from the jury, the court gives them no instructions, and it is not in their power to render a verdict, the facts being fully ascertained by the joinder in de- murrer. It is true the case, after having been so withdrawn. 392 CONDUCT OP THE TRIAL. [ChAP. IV. may be again submitted to them for the purpose of estimating damages, if the judge overrules the demurrer ; but until it is so committed to them again it is as fully out of their control as if it had never passed thereunder. The circuit judge, on over- ruling the demurrer, may submit the case for the assessment of damages to the same jury or to a new jury, as he may deem best. Of course, if he should promptly decide the questions arising on the demurrer against the defendant, he would submit the case again to the same jury, unless that jury had been pre- viously directed to withdraw from the box. However, the circuit judge is not compelled to decide such matters promptly, but may hold them under advisement, and we suppose, as a matter of fact, the judges do frequently hold them under advisement for a day or two, or several days, for the purpose of making such investigations as they deem the merits of the questions raised require of them. So it is not the duty of the circuit judge to de- cide the demurrer at once. He may do so or he may take time for consideration. The probability that time may be required for the purpose of examining authorities and for reflection, extend- ing over several days, it may be, is inconsistent with the view that the jury previously impaneled are still attached to the particular case, with their functions merely suspended, awaiting the action of the trial judge. No circuit court could be properly conducted in this manner. There might be at the same time several juries outstanding with suspended functions, and all other work of the court blocked, awaiting the decision of the judge upon the demurrer. We conclude, therefore, that the only proper view of this phase of the matter is that the case is completely withdrawn from the jury and is submitted to the court. Such was the status in the present case when the motion for leave to take a nonsuit was made. The case had been withdrawn from the jury and submitted to the court.^ It was then con- 1 Philips against Echard, Cro. Jao. be entered for the defendant ; but 35: "And note, that in a case of the plaintiff prayed that he might Alderley v. Alderley this term, in be nonsuited; and because he had debt upon an obligation, the case the same term appeared and argued being argued upon a demurrer (to by his counsel, and had prayed judg- the pleadings), the opinion of the ment, it was adjudged that he could court was against the plaintiff, and not be nonsuited the same term." rule was given that judgment should After demurrer sustained to a Sec. 5.] meyeb v. national biscuit co. 393 trolled by section 4691. There was a final submission to the court when the argument on the demurrer to the evidence was at an end. The section of the Code last referred to provides that, when the case has reached this stage, no nonsuit shall be allowed. The language is that the nonsuit shall be taken "before the cause is finally submitted to the court, and not afterwards." It is insisted for the plaintiff that, even if the court should hold that the time for taking the nonsuit had passed when the motion therefor was made, yet a discretion remained to the court below to grant or refuse; citing Cyc. Vol. 14, p. 403. We do not say that a case might not arise under which the court would have such discretion ; nor do we hold that the court would have that discretion. It is unnecessary to pass upon the point in the present opinion, for the reason that there is nothing in the case before us to take it out of the ordinary, or to move the discretion of the court for special action. Moreover, it is observable, upon a perusal of the sections of the Code quoted, when considered in the light of the common law as it existed when the statutes were passed on which the Code sections were based, that it was the purpose of the legislature to confine the right strictly within the limits laid down. We do not think we have, in this case, the power to pass the bounds fixed. We have considered the authorities presented from other jurisdictions, but find them of small use, since the ease must be decided upon a construction of our own statutes. It results that the judgment of the court below must be reversed, and the cause remanded for action on the demurrer, and for further proceedings. MEYER V. NATIONAL BISCUIT CO. 168 Federal Bep. 906. [C. C. A. 1909.] Baker, Circuit Judge. At the conclusion of the evidence in this action for damages on account of personal injuries the defendant company moved for a directed verdict. After argu- ment by counsel for the respective parties the judge announced pleading and leave to amend, a non- v. Aetna Indemnity Co., 160 111. suit may be taken. Sherf v. Ey., App. 140. 81 Tex. 471; Alphonso Const. Co. ^94 CONDUCT OP THE TRIAL. [ChAP. IV. his decision sustaining the motion. Thereupon plaintiff moved for leave to take a nonsuit. This motion was overruled, and plaintiff duly excepted. The judge then gave a peremptory in- struction in obedience to which the jury rendered a verdict for defendant. While it may be true that there is sufficient elasticity in the conformity act (§ 914, Rev. St. U. S. (U. S. Comp. St. 1901, p. 684) ; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Mexican Central R. Co. v. Pinkney, 149 IT. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699) to permit the United States courts to decide that the State practice giving plaintiffs in actions at law, where jury trial has not been waived, the right to take non- suits at any time before the jury retire should not be applied to the disposition of a case on demurrer to the evidence, or on the present-day substitute, the motion for a directed verdict (Parks V. Southern R. Co., 143 Fed. 276, 74 C. C. A. 414), nevertheless we believe that the long established custom of the United States courts sitting in Illinois of following the Illinois practice respecting nonsuits should be adhered to, at least until by duly promulgated rules the bar have been advised of the change. On the facts of this case plaintiff would have been entitled to a nonsuit in the trial courts of Illinois. Brown v. Lawler, 130 111. App. 540 ; Berry v. Savage, 2 Scam. 261 ; Howe v. Harroun, 17 111. 294; Adams v. Shepard, 24 111. 464; Gordon v. Goodell, 34 111. 429. In Wolcott V. Studebaker, 34 Fed. 8, Judge Dyer, sitting in the Circuit Court for the Northern District of Illinois, and following precedents established by Judge Drummond and Judge Blodgett, permitted the plaintiff to discontinue after the motion for a directed verdict had been sustained. In the Southern District Judge Humphrey ruled that plaintiff's motion for leave to take a nonsuit came too late, if it was not made until after the peremptory instruction had been given and the jury dis- charged from further service in the case. Drummond v. Louis- ville & N. R. Co., 109 Fed. 531. The practice is the same in the United States courts in Indiana. Gassman v. Jarvis, 94 Fed. 603. In Chicago, M. & St. P. R. Co. v. Metalstaff, 101 Fed. 769, 41 C. C. A. 669, the Circuit Court of Appeals for the Eighth Circuit approved the practice of the United States courts sitting Sec. 5.] bee building co. v. dalton. 395 in Missouri of permitting nonsuits in conformity to the practice in the Missouri courts. The judgment is reversed, and the cause remanded, with the direction to grant plaintiff's motion for a nonsuit.^ BEE BUILDING CO. v. DALTON. 68 Nebraska, 38, [1903.] Sullivan, C. J. William Dalton sued the Bee Building Com- pany to recover damages for a personal injury. A jury was impaneled to try the issues, and, the plaintiff having submitted his evidence and rested his ease, defendant moved the court to direct a verdict in its favor on the ground that there was neither averment nor proof of an actionable wrong. The motion was sustained, but before the peremptory instruction could be given plaintiff asked that the case be dismissed without prejudice, and his request was granted. By this proceeding in error the order of dismissal is brought to this court for review. Section 430 of the Code of Civil Procedure is as follows: "An action may be dismissed without prejudice to a future action: First — By the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court. Second — By the court, where the plaintiff fails to appear on the trial. Third — By the court, for want of necessary parties. Fourth — By the court, on the application of some of the defend- ants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth — By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. 1 Senible, Accord : Gasman v. jury, before tlie case is submitted Jarvis, 94 Fed. 603 ; By. v. Metal- for final decision, staff, 101 Fed. 769 ; Knight v. Ey., The statute under consideration in 380 Fed. 368. The statute involved the Metalstaff Case, 101 Fed. 769, in the principal case is as follows: is as follows: Mo. E. S. 1909, Sec. 70, 111. E. S. 1913, Chap. 110: §1980: "The plaintiff shaU be al- Every person desirous of suffering a lowed to dismiss his suit or take a nonsuit shall be barred therefrom, nonsuit at any time before the' same unless he do so before the jury re- is finally submitted to the jury, or tire from the bar, or if the case is to the court sitting as a jury, or to tried before the court without a the court, and not afterward. 396 CONDUCT OP THE TRIAL. [ChAP. IV. In all other cases, upon the trial of the action, the decision must be upon the merits." Obviously the principal question to be decided is whether there was, within the meaning of this section, a final submission of the case upon defendant's motion.^ The contention of counsel for plaintiff is that the trial was to the jury and that there could be no submission of the case until the jury had complete authority to deal with it. This argument is plausible, but we can not believe that it is sound. It is true a jury was impaneled, but it is equally true that the case was tried by the court, and not by the jury. The case was submitted upon an issue of law, and the determination of that issue eliminated the jury and ended the controversy. After it had been adjudged that the plaintiff had no case, and that there was no issue of fact to be decided, the direction, reception and recording of a verdict would have been mere ceremonial acts. These acts would, we know, be in accordance with conventional procedure ; they would satisfy the requirements of judicial formalism, but they would be as useless and idle, and almost as absurd as the archaic practice of with- drawing a juror in order to secure a continuance.^ To direct the jury to return a verdict in favor of the defendant would have been to command the triers of fact to ratify a decision already made by the court upon a question of law. "When the legislature, in section 430, spoke of "the final submission of the case to the jury," it must have had in mind the submission of an issue of fact — the submission of a disputed question, which might he resolved by the jury in favor of either party. In this case there was no issue of fact — the court so decided; and if a verdict had been rendered in obedience to a peremptory instruc- tion, it would have no legal significance; it would not furnish the basis for a judgment in favor of defendant. In every such case the judgment rests, not on the decision of a question of fact, but wholly and exclusively upon the decision of a question of law. When it was determined that the plaintiff had failed to make a case the court might, without taking from the jury a meaningless verdict, have proceeded at once to render judgment in favor of defendant. To be sure, the procedure would not be 1 See Bass v. Rublee, 76 Vt. 395, 2 But see Bowman v. Ry., 184 Fed. ante, p, 355; Bartelott v. Bank, 119 697. 111. 259; Diamond Eubber Co. v. Wernicke, 166 Mo. App. 128. Sec. 5.] bee building co. v. dalton. 397 according to established usage, but it would be legal and logical and in harmony with modem methods of transacting business. It is, as we view it, entirely clear that the "submission of the ease to the jury" contemplated by the statute is the submission of an issue of fact; and where there is no such issue there can not, in any proper sense, be said to be a trial by jury. Indeed, the very essence of a decision sustaining a demurrer to evidence is a denial of the litigant's claim that he is entitled to a jury trial. Before plaintiff moved to dismiss the action without prejudice, his case had been, not only submitted to the court upon a vital issue of law, but that issue had been decided against him and nothing remained open for contention. "Where a demurrer to the evidence is sustained," says Mr. Justice Brevter in St. Joseph & D. C. R. Co. v. Dryden, 17 Kan. 278, 280, "the case is ready for judgment. It has been finally submitted to the court, and the plaintiff has no more right to dismiss then than he has after a verdict is returned. The case is decided, and the plaintiff has no right to avoid that decision by a dismissal. ' ' To permit a party to dismiss under such cir- cumstances is, in substance, to grant him a new trial after he has been fairly defeated and to deprive his adversary of the fruits of a fairly won victory. It is contrary to good sense and sound policy to allow a party to take his case from one court to another until fortune favors him with a judge who is willing to accept his view of the law or his construction of the evidence. ' ' Such a mode of proceeding would," as was said in Conner v. Drake, 1 Ohio St. 166, 170, "be trifling with the court as well as with the rights of defendants." One who is defending against a claim which he believes to be unjust ought not to be subjected to the expense of litigation which settles nothing. And since he is not permitted to choose another forum when it is discovered that the court is against him, it is manifestly unfair to give the plaintiff an unlimited freedom of choice. The tax-paying public, too, have rights which it may be presumed the legislature took into account in adopting section 430. It is, of course, entirely proper that , courts should be maintained at public expense to hear and determine all controversies that may be submitted to them, but it is no part of the business of the State in administer- ing justice to provide for sham trials, or to maintain courts for experimental investigation. Indeed, it would be a reproach to our judicial system to permit a defeated litigant to abandon 398 CONDUCT OF THE TRIAL. [ChAP. IV. his case and sue again, thus harassing the defendant and wasting money raised by taxation for public purposes. Our conclusion is that the court erred in sustaining plaintiff's motion and this conclusion is, we think, supported by State v. Scott, 22 Neb. 628 ; State V. Hazlet, 41 Neb. 257 ; Beaumont v. Herrick, 24 Ohio St. 445, and other cases. Authorities sustaining the position for which plaintiff contends are numerous enough, but they fail to distinguish between eases in which there is an issue to sub- mit to the jury and those in which there is not. Their reasoning is not convincing and we decline to follow them. A further contention on behalf of plaintiff is that if the dis- missal was not a matter of strict right it was at least a warrant- able exercise of a discretionary power vested in the court. The record does not show that the court undertook to exercise a dis- cretionary power or that the situation called for the exercise of such power. The application was evidently made and granted as a demandable right. The plaintiff's only reason for wishing to dismiss was that the court held his evidence to be insufficient. He did not claim then, and he does not claim now, that he failed to produce all the evidence obtainable. There is no suggestion of surprise, mistake or accident; there is no intimation that the case submitted was not as strong as it is ever possible for plaintiff to make it. If the dismissal be regarded as an exercise of judicial discretion, it must have been claimed and allowed on the theory that it was right and proper that plaintiff should have the judg- ment of another trial court upon his case. Such a theory is, of course, inadmissible. * * * The discretionary power of the District Court to set aside a submission and receive further evi- dence, or to postpone the trial, or even to permit a dismissal of the case, is not doubted,^ but there is nothing in the present record to indicate that there was any just ground for the exer- cise of such power, or that there was any attempt to bring it into action. The court was evidently of the opinion that, the per- emptory instruction not having been yet read to the jury, the right of plaintiff to dismiss was absolute. This was an erroneous conception and it led to a wrong result. The decision is reversed and the cause remanded for further proceedings. 3 As to the discretion of the court in such cases, see Nelson v. Ey., 93 Neb. 154. Sec. 5.] dbummond v. l. & n. ey. co. 399 DRUMMOND v. L. & N. RY. CO. 109 Federal Rep. 531. [G. C. 1901.] On motion to set aside verdict and allow plaintiif to suffer a nonsuit. Humphrey, District Judge. This is an action brought by an administrator for damages for the death of his intestate. The case was tried by a jury. At the close of plaintiff's evidence, the court gave a peremptory instruction, directing the jury to find for the defendant, and discharged the jury from further service in the case. Thereupon, and while the jury still remained in their seats, counsel for plaintiff moved the court that the plaintiff be allowed to suffer a nonsuit. The statute of Illinois controls the question. Central Transp. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55 ; Gassman v. Jarvis, C. C, 94 Fed. 603. The statute of Illinois reads as follows: "Every person desirous of suffering a nonsuit on trial shall be barred therefrom unless he do so before the jury retire from the bar." § 49, c. 110 Kurd's Rev. St. The actual withdrawal of the jury from their seats is not necessary to constitute a retire- ment, within the meaning of the statute. 94 Fed. 603, supra. The court has actually given the instruction, and has discharged the jury, and the record, including the verdict, is made up by the peremptory order of the court. This constitutes a retire- ment, within the meaning of the statute,^ and the plaintiff's right to suffer a nonsuit is barred by the statute. The motion is overruled. LAWRENCE v. SHREVE. 26 Missmiri, 492 [1858.] Napton, J. We think, the plaintiff should have been allowed to take a nonsuit in this case. The statute says: "The plaintiff shall be allowed to dismiss his suit, or to take a nonsuit, at any time before the same is finally submitted to the jury, or the court sitting as a jury, or to the court. ' ' When a case is tried by a jury 1 Nonsuit refused when applica- was being signed. Ritchie v. Ar- tion was made while directed verdict nold, 79 111. App. 406. 400 CONDUCT OP THE TRIAL. [ChAP. IV. it has been the uniform construction of this law, in practice, to allow a party to get the opinion of the court upon the law of his case in the form of instructions and then withdraw his suit if that opinion is unfavorable. The same opportunity ought to be afforded in cases where the court is permitted to decide the law and try the facts as a jury, if the parties request a declaration of the law from the court. In this case the court took the question of law under advise- ment, and when the decision was made the whole ease was decided together, and no opportunity given for a nonsuit. The instruc- tion given for the defendant was merely an instruction upon the evidence that the plaintiff was not entitled to recover; but the character of the instruction can not vary the rights of the parties, and would rather seem to make it more imperative on the court to give the plaintiff an opportunity of determining whether he would proceed further with the case. The plaintiff can not in- sist upon immediate determination of the law asked fpr by the instructions offered; but if the court takes them under advise- ment, proceeding on with other business, it would seem to be reasonable, where no day is announced, or by some rule of court established in which the decision will be made known, that the parties or their counsel should be informed when the court is ready to determine the instructions. Any other practice would deprive plaintiff of the right given him by the statute to take a nonsuit at any time before the final submission of the case.^ The judgment will be reversed, and the plaintiff has leave to enter a nonsuit ; the other judges concur. TOOF V. FOLEY. 87 Iowa, 8. [1893.] This is an action at law based upon a judgment of the Circuit Court of Shelby county, in the state of Tennessee. There was a trial before the court, a jury having been waived, and a judg- iFor an exhaustive review of the 1913, Chap. 110, §70), in trials Missouri cases, see Lawyers Pub. Go. without a jury a nonsuit might be V. Gordon, 173 Mo. 139. taken after finding announced and Prior to the amendment in 1907 before record entry made. Howe v. of the lUinois Practice Act (E. S. Harroun, 17 ni. 494. Sec. 5. J young and englefields case. 401 ment was rendered for the defendant for costs. The plaintiffs appeal. RoTHROCK, J. It appears from the record that after the testi- mony was all introduced, and pending the annountement of the decision of the case by the court, the plaintiffs asked permission to withdraw the cause and dismiss their action. An objection was interposed by the defendant, and the right to dismiss the case was denied. There was no error in this ruling. The cause was finally submitted to the court before the motion to dismiss was made, and it was not only finally ^^ubmitted, but the court was announcing the decision. The application to dismiss came too late. Code (§. 2844) ; Dunn v. Wolf, 81 Iowa, 688. The judg- ment of the District Court is affirmed. ^ (b) When set aside or reviewed. YOUNG AND ENGLEFIELD'S CASE. I Godbolt, 328. [1624.] Young brought an action of trespass for entering his close, etc., abutted upon one side with Pancras, and butted on the other side with Grayes-Inne-Lane. Upon not guilty pleaded, the parties were at issue; and the record of Nisi Prius was Graves- Inne Lane; and thereupon the party was nonsuit. And now it was moved to have a venire facias de novo. And a case was cited expresse in the point, betwixt Farthing and Dupper, 9 Jaeobi Rot. 1349, where in an action upon the case upon assumpsit, the plea-roU was six weeks, and the record of Nisi Prius six months ; and the jury being sworn, the plaintiffe was nonsuit ; and a venire facias de novo was awarded, and the nonsuit was recorded. Ley Chief Justice. You cannot have a new venire facias if the non- suit be recorded ; and if the record of Nisi Prius varieth from the record, then it can be no nonsuit, because there is no record upon 1 A nonsuit cannot be taken after Bxch. 123, where in a trial without a case is argued and taken under ad- jury, a nonsuit was held proper visement by the court. Aetna Ins. after Judge had intimated his Co. V. Hamilton County, 79 Fed. 575. opinion. But see Eobinson v. Lawrence, 7 H. T. p.— 26 402 CONDUCT OP THE TRIAL. [ChAP. IV. which the nonsuit can be, and the Nisi Prius was prosecuted with- out warrant. Judicial process are of record, because they are by the award of the court ; but if the transcript of a record be mis- taken by a dark, it issueth out by the award of the court ; and if it vary, then it is no record. The president cited is direct in the point : there was a venire facias de novo ; but I conceive there is a difference where the jury is sworn, as it is in the president, and then the plaintiffe is nonsuit ; but in our case the plaintiffe was nonsuit before the jury was sworn. But per Curiam the case is the stronger to have a new trial. ^ SEARLB V. LORD BARRINGTON. 2 Strange, 826. [K. B. 1729.] The plaintiff brought an action on a bond entered into to her husband by one Wildman, under whom the defendant claimed, and the bond was dated June 24, 1697. The defendant pleaded solvit ad diem., and relied upon the presumption, it being after twenty years ; to encounter which the plaintiff at the first trial of the cause, which was in Trin. 10, Geo. 1, offered to give in evi- dence the indorsement of interest under the hand of the obligee in the year 1707, which was three years before the death of the obligor; but Pratt, G. J., before whom it was, being of opinion it ought not to be given in evidence, from the danger of letting the obligee make indorsements, which might be done at any time ; the plaintiff was nonsuit, and afterwards moved the court against the opinion of the chief justice ; and upon debate the other three judges were of opinion, it ought to have been left to the jury ; for they might have reason to believe it was done with the privity of the obligor, and the constant practice is for the obligee to in- dorse the payment of interest, and that for the sake of the obligor, who is safer by such an indorsement, than by taking a loose receipt. But an objection arising, that after a nonsuit the plain- tiff was out of court, and could not have a new trial, no rule was made, and she was left to bring a new action.* 1 Accord: Aoquila Weeks Case, son, Barnes, 317 (25 Geo. 2); Cro. Car. 203. Forbes v. Wale, 1 W. Blackstone, 1 Accord: Lore v. Day, Barnes, 532 (1764) Semble. 311 (7 Geo. 2) ; Hartley v. Atkin- Sec. 5.] buscauj v. hogg. 403 Accordingly a new action was brought and tried at Guildhall before Chief Justice Raymond, who suffered the indorsement to be read, and the jury found for the plaintifP. ' The defendant ten- dered a bill of exceptions, which was sealed ; and after judgment for the plaintiff, a writ of error was brought in the exchequer chamber and the bill of exceptions returned as parcel of the record. And upon argument Chief Justice Eyre, Chief Baron Pengelly, Denton, Hale and Price were of opinion to aiSrm ; and Carter and Comyns to reverse. So the judgment of B. R. was affirmed this term. In February, 1730, this judgment was afOrmed in Parliament. BUSCALL V. HOGG. 3 Wilson, 146. [C. B. 1770.] Trover for a great many goods, to the value of £700. Upon not guilty pleaded, this cause was tried at the last assizes for the county of Norfolk, before Lord Chief Baron Parkeb, Whereupon it appeared on the plaintiffs ' evidence, by seven wit- nesses, that Thickpenny was an inn keeper ; and that he not only sold liquors to his guests (hospitantibus) in his inn, but also sold divers quantities of wine, rum and brandy, by four, five and six gallons at a time, to several persons living two and three miles distant from his inn, for them to retail out and sell again, and had done thus for some years; whereupon it was insisted by the counsel for the plaintiffs, at the trial, that this sort of trading by an inn keeper, made him liable to a commission of bankrupt, but the Chief Baron, without hearing any other evidence, was of a different opinion; and ordered the plaintiffs to be nonsuited, with leave to move the court for a new trial, without costs, in ease he was mistaken in his opinion. And now upon the motion of Sergeants Whitaker and Forster, to set aside the nonsuit, the court was clear of opinion that the plaintiff ought not to have been called, but the matter ought to have been more fully sifted and gone into at the trial; that it not appearing to the court here what proportion Thickpenny 's trade in his inn bore to his trading abroad and out of doors, they could not judge whether he was liable to be a bankrupt or not ; 404 CONDUCT OF THE TRIAL. [C JAP. IV. and therefore they set aside the nonsuit, and granted a new trial without costs. ^ COSSAR V. REED. 17 Q. B. (N. 8.) 540. [1851.] Error from the Borough Court of Kinston upon Hull. The action in the court below was debt for goods sold and delivered within the jurisdiction of the court, and on accounts there stated. Plea : Never indebted. Issue thereon. The record set forth the venire, the coming of the jury and their being sworn, and that the jury, "after evidence being given to them, thereupon with- drew from the box here to consider of the verdict to be by them given of and upon the premises; and, after they had considered thereof, and agreed amongst themselves, they returned to the box to give their verdict in that behalf. Whereupon the plaint- iffs, being solemnly called, came not; nor do they further prose- cute their writ against the defendant. Therefore it is consid- ered," etc. Judgment of nonsuit. Tacked to the record was a bill of exceptions, which set forth at length the evidence given on the trial before the Recorder, as judge of the Borough Court; objection by the defendant that the evidence was of a cause of action not accruing within the jurisdiction; contention by the plaintiff's counsel, that there was evidence on each count; and ruling of the judge that there was no evidence in support of either count. "And the said judge of the court aforesaid, having so declared his opinion and decision in favor of the said defendant on the issue aforesaid with respect 1 Accord : Eockham v. Jessup, 3 have nominal damages only ; but you Wil. 332 (0. B. 1772) ; Sadler v. did not choose to trust your case Evans, 4 Burrow, 1985 (B. E. 1766) ; with the jury. If there were a mis- Harris V. Batterly, 2 Cowper, 433 direction, you should have abided (B. B. 1776) ; Brine v. Kawlings, 7 the verdict, and have reserved the East, 279 (B. E. 1806) ; Ward v. objection for a motion for a new Mason, 9 Price 291 (1821) ; Law- trial. I believe this has never been rence, J., in Butler v. Dorant, 3 done, that a counsel shall lie by, Taunton 229 (1810) on motion for a until he hears the opinion of the rule nisi to set aside a nonsuit for Judge at nisi prius, and that if he misdirection: "His Lordship did thereupon chooses to be nonsuited, not say you should be nonsuited, he he shall come to court to set aside directed the jury that you should his own act." Sec. 5.] cossae v. reed. 405 to both counts, nonsuited the plaintiffs. Whereupon the counsel for the plaintiffs, conceiving that such opinions and decisions of the said judge were erroneous and bad in law, made his excep- tions to the said opinions, decisions and judgments of the said judge." It then stated the tendering and sealing of the bill of exceptions. Lord CampbeijL, C. J., on a subsequent day in this term (Nov. 21) delivered judgment. We are of opinion that, if upon the trial of a cause the judge directs a nonsuit, and the plaintiff does not appear when called, he cannot tender a bill of exceptions and bring a writ of error, assigning for error that the judge improperly directed the non- suit. The proper course would have been for the plaintiff, when called, to have appeared and required the judge to direct the jury in point of law in his favor. Upon the' judge refusing to do so, or refusing to permit him to appear, he might have tendered a bill of exceptions and brought a writ of error. He had a clear right, if he had so thought fit, to have the issues joined submitted to the jury, and to tender a bill of exceptions upon the judge's direction in point of law ; and, if the judge refused to permit him to appear, and insisted on nonsuiting him against his will, this would be a miscarriage for which a bill of exceptions would lie. But, if, acquiescing in the nonsuit, he does not appear, and no direction in point of law is given to the jury, and no verdict is found, we conceive that the supposition of a bill of exceptions is an absurdity. When the plaintiff has made default and aban- doned his suit, he is not in court, and it is impossible that he should tender a bill of exceptions. His only remedy is an applica- tion to the court from which the record comes, to set aside the nonsuit and grant a new trial. In the vast majority of cases ample justice is thus done to the plaintiff; but, if he distrusts the court from which the record comes, and wishes to put the question of law upon the record, his course is to appear and to insist on the judge directing the jury, and on the jury finding a verdict. That he is entitled to do so is clearly established by Minchin v. Clement, 1 B. & Aid. 252, and various other author- ities collected in note 1 to Mounson v. Redshaw, 1 Wms. Saund. 195d, e. 6th ed. A writ of error may be brought where there has been judgment upon a nonsuit ; but this is for some error subse- quent to the nonsuit, which can so rarely occur that such a writ of error is considered as almost necessarily brought for delay. 406 CONDUCT OF THE TRIAL. [ChAP. IV. In Evans v. Swete, 2 Bing. 326, 328, Best, C. J., says: "It is difficult, indeed, to conceive how error can lie after a nonsuit, except for some mistake in entering up the judgment; error on the original record cannot be complained of when the plaintiff has abandoned all his proceedings. ' ' Mr. Compton placed all his reliance on Strother v. Hutchinson, 2 New Ca. 83, an instance (and the only one to be found in the books) of a bill of exceptions on a nonsuit. But, when examined, it will be found to be no authority for him, as the language of the judges must be construed with reference to the proceedings before them. There the plaintiff, instead of acquiescing in the nonsuit, appeared when called ; and the very exception taken was that the judge still insisted on nonsuiting him, instead of leaving the issue to the jury with a direction in point of law how it was to be found. The bill of exceptions alleged that, though the said plaintiff, "the said William John Strother did then and there by his said attorney insist upon the cause being left to the jury, and did offer to abide their determination, and did appear on his being called, and did refuse to consent to a nonsuit; yet the said sheriff" "did then and there" "order the said William John Strother to be called; and did then and there declare that the said William John Strother was nonsuited; and the jury there- upon did no;t give a verdict; whereupon the said William John Strother, by his said attorney, did then and there except to the opinion of the said sheriff, and did insist " " the illegality of non- suiting him, the said William John Strother, without his consent, and contrary to his wish." Tindall, C. J., says: "It is then objected that the judge's directing a iJonsuit cannot be the sub- ject of a bill of exceptions. I think, however, that such a direc- tion falls within the principle on which that remedy has been pro- vided for errors in judgment at the trial." But this must be understood of directing a nonsuit when the plaintiff has ap peared, and refused to be nonsuited. Being still in court and desirous to prosecute his suit, there is no difficulty in supposing that he tenders a bill of exceptions. In the present case there is the following statement in the record of the judgment : "Where- upon the plaintiffs, being solemnly called, came not ; nor do they further prosecute their suit against the defendant: Therefore it is considered that the plaintiff take nothing by his writ : ' ' and the bill of exceptions appended to the judgment well shows that the plaintiff acquiesced in the nonsuit, and never offered to ap- Sec. 5.] Lombard v. cheever. 407 pear. The said judge then declared it to be his opinion and held and affirmed that there was no evidence of an account stated within the said jurisdiction; and the said judge, "having so de- clared his opinion and decision in favor of the said defendant, ' ' "nonsuited the plaintiffs. Whereupon the counsel for the plaint- iffs" made his exceptions, etc. No opposition is offered to the nonsuit; and no bill of exceptions is alleged to have been ten- dered till the plaintiffs, when called, had declined to come forth and were in court no longer. Strother v. Hutchinson, 4 New Ca. 83, therefore, is not an authority in point. "We have only further to observe that extreme inconvenience would follow if a practice were introduced of tendering a bill of exceptions upon the judge's direction in point of law without a finding of the issue by the jury ; for the record might thus be carried into the House of Lords, and, after a decision against the plaintiff by the court of last resort, a nonsuit merely would be confirmed, and he would be at liberty to commence a fresh action for the same cause. Upon the whole, we are of opinion that no error is assigned in the present case of which we can take notice; and that the de- fendant in error is entitled to our judgment. Judgment affirmed} LOMBAKD V. CHEEVER. 3 Oilman, 469. [1846.] Replevin in the Marshall Circuit Court, brought by the ap- pellant against the appellees, at the October term, 1846, and heard before the Hon. John D. Caton. The plaintiff, on the ex- clusion of certain evidence, consented that a nonsuit should be entered with leave to move to set it aside, and for a new trial, but the motion was overruled, and the plaintiff excepted. The evidence offered and excluded by the court below is stated in the opinion of the court. Opinion of the court by Thomas, J. This case comes before us in such a shape as to close our eyes to the errors alleged to exist 1 Accord : Francisco v. C. & A. Ry. Co., 149 Fed. 354 and cases there cited. 408 CONDUCT OP THE TRIAL. [ChAP. IV. in the record and proceedings of the court below. The plaintiff, in that court, (the appellant in this) chose to submit to a volun- tary nonsuit, and consequently can not complain of the judgment thereon here. Barnes v. Barber, 1 Gilm. 404-5. Nor does the fact that the nonsuit was taken, with leave to the plaintiff to move to set it aside, vary the result. That reservation secured to him only the privilege, which without it, he might not have exercised, of seeking in the circuit court, to avert the consequences, either of the erroneous decisions of that court, as to the sufficiency of his evidence to make out his case, or his own hastiness or improvidence in acting with reference to such erron- eous decisions, in suffering a nonsuit. But the remedy for the evils growing out of any such error of the court, or improvidence of the plaintiff, could be sought for only in the mode referred to, in the court, out of whose judgment such evils grew. The right to seek such remedy expired with the unsuccessful effort made to obtain it. Failing to satisfy the Circuit Court of his right to have the nonsuit set aside, all investigation on that subject is foreyer closed. It is not the order of the court overruling the motion to set aside the nonsuit that is appealed from ; that, like the overrul- ing of a motion for a new trial, where a nonsuit has been found by a jury, is but, an interlocutory order; but, as in that ease, it is the judgment rendered upon the verdict, so in this, it is the judgment rendered upon the nonsuit, that is brought by appeal into this court. The fact, then, that the judgment complained of was the result of the plaintiff's own volition, and not in invitum as to him, still remains as an insuperable obstacle in the way of his demanding a revision by this court, of any of the supposed erroneous decisions of the Circuit Court.^ HOWELL V. PITMAN. 5 Mo. 246. [1838.] Edwards, J. Howell brought an action of ejectment against Pitman for a tract of land in St. Charles county. Pitman pleaded the general issue. On the trial a witness on the part of the plaintiff proved that he had surveyed the land in dispute, in 1 See also Eankin v. Curtinius, 12 ni. 334. Sec. 5.] howell v. pitman. 409 conformity to an order in writing from the surveyor general at St. Louis ; which authority he returned to that office with his sur- vey. Defendant's counsel moved the court to exclude from the jury all evidence, parol and written, in relation to the survey, unless a copy of that order from the surveyor general should be produced; and this motion was sustained by the court. After the exclusion of the copy of the survey, and the evidence in rela- tion thereto, the plaintiff excepted to the opinion of the court, and suffered a nonsuit ; and now brings his writ of error to re- verse the decision of the Circuit Court. But one question arises on this state of the case, that is, will a writ of error lie on a judgment of nonsuit? By the first sec- tion of the act regulating practice in the Supreme Court, it is provided that "writs of error upon any final judgment or de- cision of any Circuit Court, in all cases, are writs of right." Has there been a final judgment or decision of the Circuit Court on this case 1 A nonsuit, voluntarily suffered by the party him- self, is not a final judgment or a decision of the court, but is a mere act of the party himself, and must always be voluntary, that is, by the plaintiff's counsel submitting to the same, or not appearing ; and in no case can it be adverse, or without implied consent, 3 Chit. Prac. 910, and therefore it will not form the basis of a writ of error. The correct practice now seems to be this : the party suffering a nonsuit must move the court to set it aside, and in discussing this motion all the points involved in the case will be brought under the review of the court. If the motion to set aside the non- suit be overruled, then the party may take his bill of exceptions, reserving the points and the evidence, and may sue out his writ of error on the decision of the court in overruling the motion to set aside the nonsuit. The decision of the Circuit Court, by which this motion is overruled, has been considered a decision finally disposing of the cause ; and therefore, from this decision, the writ of error will lie.^ English v. MuUanphy, 1 Mo. E. 780 ; Collins v. Bowman, 2 Mo. R. 195 ; Johnson v. Strader & Thompson, 3 Mo. R. 359. The judgment of the Circuit court ought, therefore, to be affirmed, and the other judges concurring, it is affirmed. 1 But under this practice a non- eludes a recovery. Green Co. Bank suit is regarded as voluntary and v. Gray, 146 Mo. 568 and eases there not reviewable if taken before a cited; Lewis v. Mining Co., 199 Mo. ruling is actually made which pre- 463. 410 CONDUCT OP THE TRIAL. [ChAP. IV. CENTRAL TRANSP. CO. v. PULLMAN'S CAR CO. 139 V. S. 24. [1890.] Mr. Justice Gray. The principal defense in this case, duly made by the defendant, by formal plea, as well as by objection to the plaintiff's evidence, and sustained by the Circuit Court, was that the indenture of lease sued on was void in law, because be- yond the powers of each of the corporations by and between whom it was made. There is a preliminary question of practice, arising out of the manner in which the case was disposed of below, which is deserv- ing of notice, although not mentioned by counsel in argument. The Circuit Court, in ordering a nonsuit because in its opinion the evidence offered by the plaintiff was insufficient in law to maintain the action, acted in accordance with the statute of Penn- sylvania, which provides that "it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judg- ment of nonsuit ; and in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may remove the record by writ of error into the Supreme Court for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence." Penn. Stats. March 11, 1836, Chap. 34, § 7; March 11, 1875, Chap. 8; 2 Purdon's Digest (11th ed.) 1362, 1363. Under that statute, as expounded by Chief Justice G-ibson, the judge can order a non- suit only when all the evidence introduced, with every inference of fact that a jury might draw from it in favor of the plaintiff, appears to be insufficient in matter of law to sustain a verdict- and the defendant's motion for a nonsuit is equivalent to a de- murrer to evidence, differing only in the judgment thereon not being a final determination of the rights of the parties, for if it is in favor of the plaintiff the case must be submitted to the jury, and if in favor of the defendant it is no bar to a new action. Smyth V. Craig, 3 Watts & Sergeant, 14 ; Fleming v. Insurance Co., Brightly, 102 ; Bournonville v. Goodall, 10 Penn. St. 133.i 1 Bell, J. In Bournonville v. supposed conclusiveness of the judg- Goodall, 10 Pa. St. 133: "The de- ment of nonsuit ordered by the fendant's plea is founded on the judge on the trial of the first scire Sec. 5.] cent, trans, co. v. Pullman's cab co. 411 It is true that a plaintiff who appears by the record to have voluntarily become nonsuit, cannot sue out a writ of error. United States V. Evans, 5 Cranch, 280 ; Evans v. Phillips, 4 Wheat. 73 ; Cossar v. Eeed, 17 Q. B. 540. But in the case of a compulsory nonsuit it is otherwise; and a plaintiff, against whom a judg- ment of nonsuit has been rendered without his consent and against his objection, is entitled to relief by writ of error. El- more V. Grymes, 1 Pet. 469 ; Strother v. Hutchinson, 4 Bing. N. C. 83 ; S. C. 5 Scott, 346 ; 6 Bowling, 238 ; Voorhees v. Coombs, 4 Vroom, 482. There are many cases in the books, in which this court has held that a court of the United States has no power to order a nonsuit without the plaintiff 's acquiescence. Elmore v. Grymes, above cited ; Crane v. Morris, 6 Pet. 598, 609 ; Silsby v. Foote, 14 How. 218; Castle v. BuUard, 23 How. 172, 183. Yet, instead of overruling, upon that ground alone, exceptions to a refusal to order a nonsuit, this court, more than once, has considered and determined questions of law upon the decision of which the nonsuit was refused in the court below. Crane v. Morris and Castle V. BuUard, above cited. The difference between a motion to order a nonsuit of the plain- tiff and a motion to direct a verdict for the defendant is, as observed by Mr. Justice Field, delivering a recent opinion of facias, in pursuance of the 7th sec- luminously pointed out by the tion of the act of March 11, 1836. learned judge who first brought to In its legal effect, as a flat bar to notice the partial similitudes in an further proceedings under the me- opinion delivered at Nisi Prius, in chanie 's lien law, it is thought to the ease of Fleming v. Insurance Co. be analogous to a judgment rendered of Penna., 6 Pa. Law J. 373. The upon a demurrer to the plaintiff 's reasoning of the Chief Justice there, evidence ; and, indeed, in Smythe v. demonstrates that the legislature en- Craige 3 W. & S. 18, it was said tertained no intent to confer upon a prayer for a nonsuit, under the the statutory nonsuit a quality un- statute, is effectively a demurrer to known to the common law, and evidence, except that the judge can- which might be productive of great not give judgment for the defend- harshness and injustice. It is not ant, though he should think the non- worth while to repeat it here, for, suit not grantable. But this very being adopted as illustrative of the difference showB that the similarity conclusion arrived at by the whole between the prayer and the demurrer court, for the information of the regards only the inferences that may profession, its publication, in connec- be drawn from the evidence, and not tion with this determination, wUl be the effect of the judgment conse- directed." quent upon it. This distinction is 412 CONDUCT OF THE TEIAL. [ChAP. IV. this court, "rather a matter of form than of substance, except (that) in the case of a nonsuit a new action may be brought, whereas in the case of a verdict the action is ended, unless a new trial be granted, either upon motion or upon appeal. ' ' Oscanyan V. Arms Co., 103 U. S. 261, 264. "Whether a defendant in an action at law may present in the one form or in the other, or by demurrer to the evidence, the defense that the plaintiff, upon his own ease, shows no cause of action, is a question of "practice, pleadings, and forms and modes of proceeding," as to which the courts of the United States are now required by the act of Congress of June 1, 1872, Chap. 255, § 5 (17 Stat. 197), re-enacted in § 914 of the Revised Statutes, to conform, as near as may be, to those existing in the courts of the state within which the trial is had. Sawin v. Kenny, 93 U. S. 289 ; ex parte Boyd, 105 U. S. 647 ; Chateaugay Co., peti- tioner, 128 U. S. 544; Glenn v. Sumner, 132 U. S. 152, 156. It is doubtless within the authority of the presiding judge, and is often more convenient, in order to prevent the ease from being brought up in such a form that the judgment of the court of last resort will not finally determine the rights of the parties to adopt the course of directing a verdict for the defendant and entering judgment thereon. But the judgment of nonsuit, being a final judgment disposing of the particular case and rendered upon a ruling in matter of law duly excepted to by the plaintiff, is subject to be reviewed in this court by writ of error. It was therefore rightly assumed by the counsel of both parties at the argument that the only question to be determined is of the correctness of the ruling sustaining the defense of ultra vires independently of the form in which that question was presented and disposed of. Section 6. Aegument op Counsel. DOUGLASS V. HILL. 29 Kansas, 527. [1883.] Brewer, J. This was an action brought by the defendant in error, plaintiff below, to recover the value of a certain stock of goods claimed to have been taken and converted to his own use by defendant. Prior to May 2, 1881, the goods belonged to and Sec. 6.] douglass v. hill. 41.3 were in the possession of one J. L. Bowlden. On that day plain- tiff claims to have purchased them. Thereafter the defendant, as sheriff of Butler county, seized them hy virtue of a writ of at- tachment issued against said Bowlden. Therefore the question in the case was, whether the goods at the time of the levy by the sheriff were the property of said Bowlden ; and this depends on the further question whether the sale to plaintiff was valid, or not. The dealings with Bowlden were had by Edwin Hill, the husband of plaintiff, who she claimed was acting as her agent. "With this general statement of the case, we pass to the considera- tion of the particular questions presented. The action was tried before a jury, and at its close defendant claimed the right to argue the questions of fact to the jury, but the court refused to permit any argument. This ruling is alleged as the principal ground for reversal. The court in its instructions submitted to the jury a question of fact in these words: "If you find from the evidence that at the time of the conversion of the property the plaintiff was the owner of it, it will be your duty to find a verdict in her favor for the value of the property." Counsel insist that wherever a question of fact is submitted to a jury, counsel has a right to be heard in argument thereon ; and while it is conceded that the court has a discretion in restricting the time to be occupied in such argument, claim that to refuse any argument is a denial of an absolute right, and manifest error. As a general proposition we think this is unquestionably true. A party to a law suit has a right to be heard, not merely in the testi- mony of his witnesses, but also in the arguments of his counsel. It matters not how weak and inconclusive his testimony may be, if it is enough to present a disputed question of fact upon which he is entitled to a verdict of the jury, he has a right to present in the arguments of his counsel his view of the case. This is no matter of discretion on the part of the court, but an absolute right of the party. Courts doubtless may prevent their time from being unnecessarily occupied by prolix arguments, and so may limit the time which counsel shall occupy. And if the re- striction is a reasonable one in view of the questions involved, and the testimony presented, there will be no error. i (The State v. 1 See Trice v. By., 35 Mo. 416, White v. People, 90 111. 117, it was holding that it was not an abuse of held that a limit of five minutes in discretion in that case to limit the effect denied the right of argument, argument to ten minutes. But in 414 CONDUCT OP THE TEIAL. [ChAP. IV. Eiddle, 20 Kas. 716.) But limiting the time of an argument and refusing to permit any argument at all, are entirely different mat- ters. The one is the exercise of a discretion, the other is a denial of a right. Weeks on Attorneys at Law, pp. 209, 213, §§ 110, 115 ; Proffatt on Jury Trials, § 248 ; Garrison v. Wileoxson, 11 Ga. 154 ; People v. Keenan, 13 Cal. 581 ; Commonwealth v. Porter, 10 Mete. 263 ; Commonwealth v. Austin, 7 Gray, 51 ; Wilkins v. Anderson, 11 Pa. St. 399 ; Dobbins v. Oswalt, 20 Ark. 619 ; Tobin V. Jenkins, 29 id. 151 ; Brooks v. Perry, 23 id. 32 ; Bertrand v. Taylor, 32 id. 470 ; Cory v. Silcox, 5 Ind. 370 ; State v. Page, 21 Mo. 257 ; Freligh v. Ames, 31 id. 253 ; Trice v. Rid. Co. 35 id. 416 ; Bierson v. Mahoney, 6 Baxter (Tenn.), 304; Coldwell v. Brower, 75 111. 516 ; Slate Co. v. Meyer, 8 Daly, 61 ; Millard v. Thorne, 56 N. Y. 402. Not seriously disputing this proposition, counsel for defendant in error insists that when there is no evidence in the case, legally sufficient, from which a jury could legitimately find a verdict in favor of a party, the court may properly refuse any argument in behalf of such party' to the jury, (Bankard v. Rid. Co., 34 Md. 197), and claims that here the testimony was all one way, and necessarily compelled the verdict which was in fact returned. It is common and correct practice to direct a jury to return a ver- dict in favor of a party when there is no testimony legally suffi- cient to justify a verdict against him. And in such cases it would be folly to permit argument for or against such direction. The counsel is doubtless right in this, and therefore we are compelled to examine the evidence. Yet as the court submitted a question of fact to the jury, we should presume that there was a question of fact to be determined by them. The court did not direct a verdict for the plaintiff, as it might and perhaps ought to have done, if the testimony compelled such a verdict. The action of the court is therefore against the claim of the counsel. * * * HOGGETT V. BXLEY. 9 Carrington & Payne, 324. [1839.] The declaration was on a charter party, by which the defend- ant i:^ndertook to provide a cargo of com from Marseilles' to Eng- land, in the ship Spring. There was no plea of the general issue, Sec. 6.] c. b. & q. e. e. go. v. beyan. 415 but a special plea to the eifect that after the making of the charter party, and before any breach of the contract, an agreement was made between the plaintiff and defendant, that a cargo of cotton should be substituted for the cargo of corn, and that it was so substituted, etc. R. V. Richards, for the plaintiff, claimed the right to begin on the ground that he was entitled to damages for the breach of the contract. Bompas, Serjt., for the defendant objected. — If the defendant succeeds there will be no damages to assess. Maule, J. — That argument would prove too much. R. V. Richards. — ^Wherever the plaintiff claims unliquidated damages, which must of necessity compel him to call witnesses, he is entitled to begin. This bears no analogy to the cases where the plaintiff seeks to recover a sum certain. Bompas, Serjt. — As the judges have laid down the rule, it is confined to personal injuries. I have heard Mr. Baron Parke say so most distinctly. And it is so laid down in Carter v. Jones (6 C. & P. 64). There was also a ease as to the warranty of a horse, which was tried before Mr. Justice Coleridge at the last Bristol Assizes, in which a similar decision was given. Maule, J. — I wish there was some rule which was imperative and excluded all discretion on the subject. But there is not, and it must be left to the judge to decide in each particular case, whether a substantial question is the assessment of damages, and if it is, the plaintiff ought to begin.^ And I think in this case that he ought to begin. R. V. Richards then stated the plaintiff's case, and there was ultimately a verdict for the plaintiff. — Damages £225. C. B. & Q. R. R. Co. V. BRYAN. 90 Illinois, 126. [1878.] Mr. Justice Walker delivered the opinion of the court : This was an action for an assault and battery, by appellee against the railroad company, whilst appellee was a passenger on a train owned and run by appellant on its road at Sagetown. 1 Accord : Mercer v. Wiall, 5 Ad. & El. (N. S.) 447. 416 CONDUCT OP THE TRIAL. [ChAP. IV. It is averred that the conductor in charge of the train com- mitted the assault and battery. To the declaration were filed two pleas of justification. * * * To each of these pleas a replication was filed, and issue joined to the country. The cause was tried by the court and a jury, and resulted in a verdict in favor of plaintiff, and the assessment of his damages at $500. A motion for a new trial was entered, but was overruled by the court, and judgment was ren- dered on the verdict, and defendant appeals. * * * There being no general issue or any traverse of the declaration filed, but simply pleas of confession and avoidance, appellant, before the trial commenced, moved the court to allow it to have the affirmative of the trial and argument, but this the court refused and an exception was taken, and appellant assigns error thereon. As a general rule, in argument or other contests it de- volves on the person holding the affirmative to establish his prop- osition. Until that is prima facie done, the person holding the negative is required to do no act in reference to the issue. Here, had appellant introduced no evidence, appellee would, under the issue, have been entitled to judgment. He was bound to intro- duce no evidence as to the commission of the act complained of, until appellant proved a prima facie justification of the act for which it was sued. Had appellant introduced no evidence, then appellee might have introduced evidence to show the nature and extent of the injury, precisely as in case of a default, for the purpose of enabling the jury to estimate the damages. According to the doctrine of Harvey v. Ellithrope, 26 111. 418, and Kells v. Davis, 57 id. 261, under these issues appellant was entitled to hold the affirmative of the trial and argument, and it should not have been deprived of the right. For the errors indicated, the judgment of the court below is reversed and the cause remanded. Judffment rev&rsed. CUNNINGHAM v. GALLAGHER. 61 Wisconsin, 170. [1884.] Appeal from the Circuit Court for Dane county. The action is for slander. The complaint charges, in the usual form, that, in the presence and hearing of divers other persons, Sec. 6.] Cunningham v. qallaghek. 417 the defendant maliciously spoke of and concerning the plaintiff, certain false and defamatory words therein stated. The answer of the defendant admits the speaking of the words charged, but alleges that they were true. Also, that the defendant had good reason to believe and did believe they were true. After the jury called to try the case were sworn, the defendant claimed that he had the affirmative of the issue, and was entitled to the opening and closing arguments. The court held other- wise. The trial resulted in a verdict for plaintiff, assessing his dam- ages at $500. A motion for a new trial was denied, and judg- ment for the plaintiff entered pursuant to the verdict. The de- fendant appeals from the judgment. Lyons, J. A reversal of the judgment is claimed on two grounds: (1) because the court denied the right of defendant's counsel to open and close the argument; and (2) because the court denied the motion for a new trial. * * * The question as to which of the parties in this action held the affirmative, within the meaning of Circuit Court Rule XXIII, has, however, been very fully and ably argued by counsel, and they have cited numerous cases bearing upon it. Inasmuch as the question may, and probably frequently does, arise in prac- tice, we deem it proper to determine it here, although, for the reason just stated, it scarcely arises on this record. It was formerly held in England that in actions to recover unliquidated damages, if the defendant confessed the cause of action and set up matter in avoidance of it, he was entitled to open and close the argument, notwithstanding the burden still remained with the plaintiff to prove the facts upon which he relied to recover the damages he claimed. But the practical operation of this rule was so unsatisfactory that in 1833 the judges, by resolution, changed it, so that thereafter, in such cases, the plaintiff >vas, and still is, entitled to open and close. The rule is not a com- mon law rule in that sense which requires an act of parliament or of the legislature to change it, but is merely a rule of practice within the control of the courts. With us the practice is different in different states. Some of the courts have adopted the old English rule, and some the modem rule established by the resolution of the judges. In this state the practice has not been settled by this court, and we are at liberty to adopt either rule. We think the modern English H. T. P.— 27 418 CONDUCT OF THE TEIAL. [ChAP. IV. rule is supported by the better reasons. It is difficult to under- stand how it can logically be said- that the defandant has the affirmative of the issue in a given case, when proof is required of the plaintiff in the first instance to entitle him to the damages which he claims. The amount of his damages remains in issue, even though the defendant confesses the cause of action upon which the claim for damages is founded, and the burden remains with the plaintiff to prove the facts connected with the cause of action which will enable the jury to determine whether he is en- titled to the amount claimed. For the reasons ab^ive suggested we hold that when, in an action to recover unliquidated damages, the defendant confesses the cause of action and pleads in avoidance thereof, the affirma- tive is with the plaintiff, and, under Circuit Court Rule XXIII, the latter is entitled to open and close the arguments to the jury.^ By the Court — Judgment affirmed. ST. LOUIS RY. CO. v. JOHNSON. 74 Kansas, 83. [1906.] Sarah B. Johnson brought an action against the plaintiff in error to recover for the death of her son, William A. Johnson, a brakeman, who was killed while in the employ of the railroad company near Scullin, in the Indian Territory. She recovered a verdict and judgment for $2,000, and the company prosecutes this proceeding in error. * * * Porter, j. * * * At the close of the evidence counsel for plaintiff waived the opening argument. Defendant thereupon contended that by waiving the opening argument counsel also waived the right to make a closing argument, and upon the court's permitting counsel for plaintiff to reply to the argument of defendant an exception was saved, and it is claimed that the court erred. (Railroad Co. v. Vanzego, 71 Kan. 427, 80 Pac. 944.) Defendant had the right to submit the case to the jury without argument when plaintiff waived the opening statement, 1 Accord : Buckley v. Knapp, 48 Mo. 152 (action for libel and a plea of justification only). Sec. 6.] prentis v. bates. 419 but, having elected to argue the case to the jury, was not in a position to object to plaintiff's closing the argument by a reply.^ The party on. whom rests the burden of proof has the right to open and close the argument; he can waive either of these, or both. By waiving the opening he waives the right to close, pro- vided the other party also waives his argument. This is the orderly method of procedure universally adopted by the courts. The case cited does not go to the extent claimed for it by the plaintiff in error. Other errors are complained of which we do not consider ma- terial or of sufficient weight to require mention. We find no sub- stantial errors in the record, and the judgment is affirmed. All the justices concurring. PEENTIS V. BATES. 93 Michigan, 234. [1892.] Montgomery, J. A rehearing was ordered in this case after full consideration, the members of the court who took part in the former decision being convinced that the questions involved de- serve re-examination. This rehearing has been had, and we feel constrained to depart from some of the conclusions stated in the former opinion, which, while having the support of respectable authority, we find to be in conflict with some of the former rul- ings of this court, which for the time escaped attention. For con- venience we will consider the questions involved in the same order adopted in the former opinion. 1. The first question considered was whether counsel for the contestants abused his privilege in his opening statement to the jury. On the former hearing the sitting members of the court were impressed with the view that the trial judge had not suf- ficiently restricted contestants' counsel in this case, but a fuller argument and examination have convinced us that the statements of counsel, both as to the propositions of law contended for in his opening, and as to the facts which he expected to prove, were 1 Accord : Hickman v. Layne, 47 Neb. 177. Compare Ky. v. Garrity, 63 N. J. L. 352. 420 CONDUCT OF THE TRIAL. [ChAP. IV. made in the utmost good faith. The will offered for probate was made in favor of the relations of decedent's husband, to the exclusion of her own nieces and nephews, and counsel for con- testants referred to this fact, and claimed that it was an unnat- ural will, and that in such cases the law will draw. an inference that the will was procured by fraud ; and also argued, in the same connection, that the burden of proof in such cases would rest upon the proponents. The question of undue influence was after- wards eliminated from the case by the trial judge. It is un- necessary to determine whether the contestants' position on the law of the case was wholly sound or not, as counsel had the right, under the rulings of the court, to state in good faith his claims as to the law, in so far as it was necessary to give the jury an understanding of his theory. As was said in Fosdick v. Van Arsdale, 74 Mich, at page 305 : ' ' Counsel have the right, both in opening the case to the jury, before the testimony to support their case is offered, and when closing the argument, after the testimony is in, to state to the jury that they claim the law to be thus and so. ' ' This ruling, it is believed, is in accord with the general under- standing of the profession, and certainly is no departure from the practice which has obtained at the circuit from the time of the adoption of the present rules of court. This right would be nothing more than a mere shadow, or, worse, a dangerous snare, if, after counsel has taken his position in good faith, he is to be made the guarantor of his views of the law on every ques- tion presented, and, if in the end it should be found that he is mistaken on some point of minor importance, the judgment in his favor is to be vacated for this reason. It must be an exceed- ingly plain case of an abuse of privilege which will justify the setting aside of the verdict on the ground of improper opening either in statement of the law or fact. Nothing short of bad faith or a gross misconception of what is admissible, resulting in bring- ing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on such grounds; and, in determining whether such an error has been committed, it is believed to be entirely safe to credit the jury with at least average intelligence. People v. Gosch, 82 Mich. 22 ; Porter v. Throop, 47 id. 313 ; Campbell v. Kalamazoo, 80 id. 655. Sec. 6.] heller v. Pulitzer pub. co. 421 Tested by this rule, we do not think any error was committed by counsel in his opening, either in stating the law or facts which he expected to prove. The statement of the facts expected to be proved by Dr. Gallagher, quoted in the former opinion, was termed ' ' extravagant. ' 'i A careful examination of the testimony actually introduced convinces us that the contestants made the proposition in good faith, and, although the proof of what was said was not as full as the opening statement, yet the substance of what was stated,- namely that Mrs. King mistook pills for flies, and mistook a fly for the pill, was testified to by the witness. HELLEE V. PULITZER PUB. CO. 153 Missouri, 205. [ISGD.] Marshall, j. * * * The defendant argues that if the jury are the judges of the law in a libel ease, counsel have a right to read law books to the jury, and that the trial court erred in re- fusing appellant's counsel the right to do so in this case, and in support of this contention counsel re:^rs to Harvey v. State, 40 Ind. 516 ; Stout v. State, 96 Ind. 407, and Hannah v. State, 11 Lea, 201. These were all criminal cases, and the Tennessee case alone was a criminal libel case. It is argued, however, that in all cases where the jury are the judges of the law as well as the fact it is a substantial right of counsel to read law books to the jury, and in support of this counsel refers to 19 Am. andEng. Ency. of Law (1 Ed.) , p. 620, and the cases there cited, and to 1 Thomp- son on^Trials, § 945. "We are of opinion, however, that as under Fox's act the court or judge was expressly given the right to ' * give their or his opin- ion or direction to the jury on the matter in issue between the king and the defendant, or defendants, in like manner as in other criminal cases," so under our Bill of Rights it is the province of the court to give directions to the jury, that is, to define in general terms the law of libel, but not to command a verdict for the plaintiff, and as by section 2188, Revised Statutes, 1889, the 1 For an illustration of an im- proper opening statement, see Scripps V. EeiUy, 35 Mich. 371. 422 CONDUCT OF THE TRIAL. ' [ChAP. IV. court is charged with the duty in civil eases of giving, in writing, all the instructions covering the law applicable to the matters in issue, which the parties ask, and the court thinks proper, or which the court may give of its own motion. It was never intended by the framers of our constitution in adopting the Fox act, to permit the practice of getting the law before the jury in any other manner than by instructions asked of and given by the court. (Sparf v. U. S., 156 U. S. 51.) Allowing counsel to read law books to the jury would not only tend to confuse the jury, but might present the unseemly spectacle of counsel trying to convince the jury, by what some author says, whose ideas are not followed in this State, or by some decision of a court of some other State where the adjudications are not in accord with ours, that the directions of the court were not the law; and thus the due and orderly administration of justice, so necessary to be observed, would be turned into a farce and perhaps an insult to the judge of the trial court. Whatever may be the practice in other States, it is not per- missible in our State to read law books to a jury in any kind of a case, and the trial court did not err in stopping counsel for defendant in this ease, when he attempted to do so.^ For the error in giving the mandatory instruction to tind for the plaintiff, the judgment of the Circuit Court is reversed, and the case remanded. All concur. I Shaw, C. J., in Com. v. Sorter, Jaw, we are of opinion that a party 10 Metcalf, 263, "Considering the may by his counsel address the jury latitude which has been allowed in upon questions of law, subject to this Commonwealth, by a long course the superintending and controlling of practice, and the difficulty of power of the court to decide ques- drawing an exact line of distinction tions of law, by directions to the between that full statement and ex- jury, which it is their duty to follow, position of his views of the law, In ordinary cases, such directions to which counsel may properly make in the jury, upon the questions arising a general address to the court and in the cause, are not given until the jury, upon the questions embraced parties, by their counsel, have sub- in the issue, and involved in a gen- mitted their respective views of the eral verdict, and an address to the Jaw and the facts, in an argument to jury separately upon questions of the court and jury. ' ' Sec. 6.] dowdell v. wilcox. 423 DOWDELL V. WILCOX. ' 64 Iowa, 721. [1884.] This action involves the title and ownership of two horses and a wagon. The property was levied upon by the defendant, who is sheriff, by virtue of an execution against Thomas Dowdell, the husband of the plaintiff. The plaintiff claims that she is the owner of the property. The defendant claims that whatever title the plaintiff has in the property is fraudulent as to the creditors of the husband. There was a trial by jury, verdict and judgment for the plaintiff. Defendant appeals. RoTHROCK, C. J. * * * Accompanying the motion for a new trial, the defendant filed an affidavit of one of his counsel, setting forth what is claimed to be improper conduct of plaintiff and her counsel during the argument of the case to the jury. It is in effect claimed that counsel made unwarranted statements to the jury in his closing argument; that he misstated the law, and appealed to the prejudice of the jury in the plaintiff's behalf, because she is a widow, and denounced the judgment creditors as leeches and oppressors of poor women and widows; and that plaintiff sat near, facing the jury, and, when counsel made sym- pathetic appeals to the jury because her husband had been a soldier and she was now a widow, she would weep, or pretend to weep, etc. We do not think the judgment should be reversed for this alleged misconduct of counsel and plaintiff. Indeed, we are not prepared to say that there was a departure from what ought to be regarded as fair and legitimate in the trial of a cause to a jury. Great latitude is allowed in appealing to the sympathy of the jury in the arguments of the counsel. That, and the widow in tears, are a kind of -stage performance which courts cannot very well, and perhaps ought not to attempt to, control. ^ Besides, the record does not show that any objection was made by counsel for appellant to the conduct of which he now complains. Affirmed. iFor illustrations of improper ap- 126 111. 150; NefE v. Cameron, 213 peals to prejudice against the de- Mo. 350. fendant, see McDonald v. People, 424 CONDUCT OP THE TRIAL. [ChAP. IV. ROLPE V. INHABITANTS OF RUMFORD. 66 Maine, 564. [1877.] Case for injury to plaintiff's wife through defective town way January 15, 1874. The case was on trial nearly a week and resulted in a verdict for the plaintiffs of $275, which they moved to set aside for in- adequacy, as against law and evidence. They also filed the fol- lowing bill of exceptions : "E. G. Harlow, one of the counsel of the defendants, in his closing argument to the jury at the trial of said case, was per- mitted by the court against the seasonable objection and protest of the counsel for the plaintiffs, to state to the jury the amount of damages recovered in other cases than the one on trial, concern- ing which no testimony had been offered and which was not in any law report, and to declare as matter of fact that said eases were identical or similar to the one then on trial ; and to argue that the damages in the case on trial should in no event be greater than the damages found by the jury in the cases so commented upon; and further, that the cause of action in the case on trial had probably passeci out of the control of the plantiffs in the case, and of the administrator of Elizabeth S. Rolfe, and to state to the jury certain alleged facts as to the death by consumption of other persons than the said Elizabeth S. Rolfe, alleged by said Harlow to be within his knowledge, but concerning which no tes- timony was offered; and to argue to the jury that the counsel for plaintiffs came from another county, and had appeared in other cases against other towns in Oxford county, and had recov- ered damages therein against said towns, although no evidence was offered touching the same, which statemgnts and arguments the plaintiffs' counsel seasonably requested the court to exclude, but which the court declined to exclude. The presiding judge failed to give any instructions touching said acts, arguments and statements of alleged facts done and made by said counsel for the town, except that the facts were to be settled from the testi- mony in the case given under oath." Virgin, J. We think the learned judge before whom this case was tried erred in permitting the counsel for the defendants, against the seasonable interposition of the plaintiffs' counsel, to Sec. 6.] rolfe v. inhabitants op bumford. 425 proceed with his -argument upon asserted facts not in evidence and having no legitimate pertinency to the issue. It is indispensable to the orderly course of judicial procedure and an impartial administration of the laws, that those officially engaged in the trial of causes shall faithfully observe the estab- lished rules of practice. The constitution guarantees to the parties of a cause the right of a trial by a jury duly constituted, and to have the trial conducted according to the course and usage of the common law and the long established rules of judicial pro- ceedings ; and whenever these rules are substantially violated, the right of the parties litigant is to that extent denied. The law, with great care, prescribes numerous rules for deter- mining the admissibility of the facts to be submitted to the jury, vigilantly and scrupulously .excluding from their consideration all such as do not come within the rules. These rules require among other things that the facts shall be material and pertinent to the issue ; and that, when not contained in documents, they shall be delivered under the sanctions' of an oath, and their truthful- ness tested by cross-examination. Even a juror's own personal knowledge of pertinent facts cannot be considered by himself and his fellows in making up their verdict unless it take on the form of testimony by being delivered from the stand by the juror under oath as a witness. Otherwise, testimony which might influ- ence a verdict would escape the ordeal of cross-examination and discussion. As a sequence of these rules, one of the essential ele-, ments in the trial by jury is that they are sworn to render their verdict in accordance with such facts only as are adduced at the trial ; and whenever it is rendered without evidence, against evi- dence or upon incompetent evidence which may have come to the knowledge of the jurors by direct ruling in the court room, or by accident or mistake outside of the court room, it is liable to be set aside and a new trial granted. So the courts have usually been very firm, whenever occasion has required, in confining counsel within proper and reasonable bounds to whatever is pertinent to the matter on trial. State- ments of alleged facts not adduced in evidence, and comments thereon are irrelevant, not pertinent and are therefore clearly not within the privilege of counsel; and .ady such practice on the part of counsel should be promptly checked, especially when objected to by the other side. Berry v. State, 10 Ga. 511 ; Mit- 426 CONDUCT OF THE TRIAL. [ChAP. IV. chum V. state, 11 Ga. 615 ; Bullock v. Smith, 15 Ga. 395 ; Dicker- son V. Burke, 25 Ga. 225 ; Wightman v. Providence, 1 Clifford, 524 ; Tucker v. Henniker, 41 N. H. 317. In this connection we adopt the views of the courts of Georgia, and New Hampshire expressed in the following forcible and felicitous language : "It is irregular and illegal for counsel to comment upon facts not introduced in evidence before the jury, and not legally competent as evidence. The counsel represents and is a substi- tute for his client; whatever, therefore, the client may do in the management of his cause may be done by his counsel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury it is his privilege to descant upon the facts proved, or admitted in the pleadings ; to arraign the conduct of the parties ; impugn, excuse, justify or condemn motives, so far as they are developed in evidence, assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances. His illustrations may be as various as the resources of his genius ; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. ' ' To his freedom of speech, however, there are some limitations. His manner must be decorous. All courts have power to protect themselves from contempt, and indecency in words or sentiments is contempt. This is a matter of course in the courts of civilized communities, but not of form merely ; for no court can command from an enlightened public that respect necessary to an efficient administration of the law, without maintaining, in its business proceedings, that courtesy, dignity, and purity which characterize the intercourse of gentlemen in private life. "When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence are violated, and the full benefit of trial by jury is denied. It may be said in answer to these views that the statements of counsel are not evidence; that the court is bound so to instruct the jury, and that they Sec. '6.] rolpe v. inhabitants op rumford. 427 are sworn to render their verdict only according to the evidence. All this is true ; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and if they in the slightest degree influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evi- dence, then manifestly the jury have nothing to do with them, and the advocate has no right to make them. It is unreasonable to believe the jury will entirely disregard them. They may struggle to do so and think they have done so, and still be led involuntarily to shape their verdict under their influence. That influence will be greater or less, according to the character of the counsel, his skill and adroitness in argument, and the force and naturalness with which he is able to connect the facts he states with the evidence and circumstances of the case. To an extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which must more or less influence the minds of the jury, not given under oath, without cross-examination, and irrespective of all those precautionary rules by which competency and pertinency are tested." Nesbit, J., in Mitchum v. State, sup. Fov^TLER, J., in Tucker v. Henniker, sup. See also Bald- win's Appeal (Conn.), 3 L. & Bq. Rep. 409. Whether or not the verdict is so inadequate as to warrant us in setting it aside upon the motion, we have not considered it necessary to express an opinion." In actions of this nature, the principles upon which damages are assessed are very indefinite at best, and therefore very much is necessarily left to the good judgment and sound discretion of the jury. Hence, when, as in the case at bar, the testimony is conflicting on several points, courts are very reluctant to interfere with the verdict on the alleged ground of excessive or inadequate 'damages, except when it is so large or so small as to show that it is the result of perverse judgment or gross error, or that the jury had acted under undue motives or misconception. Therefore we do not pass upon the motion. But inasmuch as that part of the closing argument to which exceptions are alleged was clearly illegal and violative of the rights of the plaintiffs, and urged by an experi- enced counsel of high character and acknowledged ability, must have necessarily had more or less influence upon the minds of the jury, notwithstanding the instruction of the presiding justice 428 CONDUCT OF THE TRIAL. [ChAP. IV that the case must be settled from the sworn testimony, we think the exceptions must be sustained. ^ Exceptions sustained. BAKER V. CITY OF MADISON. 62 Wisconsi7i, 137. [1885.] Lyon, J. This action was brought to recover damages for injuries received by the plaintiff, alleged to have been caused by a defect in a gutter at the intersection of certain streets in the defendant city, by reason of which a wagon loaded with hay upon which the plaintiff was riding was overturned, inflict- ing the injuries complained of. The case has been tried three times. The first trial was had before Judge Stewart, in the Dane County Circuit Court, and resulted in a verdict for $3,000 in favor of the plaintiff. That court set aside the verdict on the ground that the testimony showed conclusively that the plaintiff was guilty of negligence which contributed directly to the injury. The place of trial was then changed to the Jefferson County Circuit Court, and was there tried before the late Judge Conger. On that trial the plaintiff had a verdict for $2,500, for which sum judgment was entered against the defendant city. An appeal was taken, and this court reversed such judgment, for the reason that the evidence showed conclusively that the gutter where the accident happened was in proper repair. 56 Wis. 374. The cause was then remanded, and again tried in the same court before Judge Bennett, and the trial resulted in a verdict and judgment for the plaintiff for $6,000. This appeal is by the defendant from such judgment. * * * III. It is maintained by counsel for defendant that counsel for the plaintiff committed several improprieties on the trial, which bring the case within the rule of Brown v. Swineford, 44 Wis. 282, and hence that the judgment ought to be reversed. 1 See also Evans v. Trenton, 112 argument by counsel for other pur- Mo. 390. poses. Waldron v. Waldron, 156 U. And so where evidence is admitted S. 361. for one purpose only, but is used in Sec. 6.] bakek v. city of madison. 429 That rule, as formulated by the late Chief Justice Ryan, is that "it is error sufficient to reverse a judgment, for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume arguendo such facts to be in the case when they are not. * * * j^n(j jf counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal in this court." We are not disposed to question or in any degree weaken the authority of that case. We believe it rests upon sound principles, essential to the due administra- tion of justice, and should not be disturbed. The rule there laid down will be promptly applied to every case fairly within it which may come before this court. Is this such a case ? The charge of misconduct here is made up of several specifica- tions. As to some of them, no objection was made or exception taken. These need not be stated, because they are clearly not within the above rule. One of the charges is that Mr. Welch, one of the attorneys for the plaintiff, when testifying as a witness, made answer to a question, a portion of which answer was stricken out by the court as improper, and afterwards, in another answer, repeated the objectionable words, which were again stricken out. There is also another specification of the same character. These relate to the conduct of Mr. Welch as a witness, not as counsel. If a witness is guilty of misconduct on the stand, the court should admonish, and, if necessary, punish him therefor — not the party whose witness he is. The court was not asked to do so in the present case. The most objectionable remarks made on the trial by counsel for the plaintiff, to which objection was taken, were made in response to an objection td testimony which such counsel was seeking to introduce. He said : "I am careful not to get error into the case. If my client was a rich man, I should like to litigate this matter for the next twenty-five years, and I think it would give me a good support; but my client is poor, and we live in Minneapolis, and every time we come down here it costs him a hundred dollars. ' ' The remark that plaintiff was a poor man, and the allusion to the expense of the litigation in connection with that fact, if unproved, would have been improper, not because such statement was pertinent to the issue — for it 430 CONDUCT OP THE TRIAL. [ChAP. IV. was not — but because it might have tended unduly to influence the minds of the jurors in favor of the plaintiff, which, on prin- ciple, is as objectionable as prejudice against the defendant. But we think it a fair inference from the testimony that the plaintiff , is not rich. He was arfarm laborer, working for others for hire in summer, before and after he was injured, and sometimes taught school in the winter. He had no mechanical trade. It is not unreasonable to infer from his condition and employment that he was poor. The rule we are considering does not prohibit a statement by counsel of a fact proved in the case, even though such fact is outside the issue. We perceive nothing else objection- able in what counsel then said. The balance of it seems to have been mere harmless pleasantry. When objection was made to the remarks now being con- sidered, counsel withdrew them, as far as he could do so, by saying that he took them back. We do not think that the con- sequences of an improper statement by counsel, which comes within the rule of Brown v. Swineford, can be so easily averted. No importance is given to this "taking back" process, and it would scarcely save the judgment had the rule above stated been violated in the first instance.^ We conclude that none of the specifications of misconduct by counsel bring the case within the rule of Brown v. Swineford, supra. * * * Section 7. Instructions. (a) Questions for the judge or jury. MANWARING v. HARRISON. 1 Strange, 508. [1722.] Upon the 17th of September (being Saturday), about two o'clock in the afternoon, Harrison gave to Manwaring in payment a note for £100 by Mitford and Mertins, goldsmiths, dated 5th of September, payable to Harrison or order. The same afternoon Manwaring pays away the note to J. S. ; Mitford and Mertins paid 1 The error is usually corrected by on the subject by the judge. State a withdrawal of the improper state- v. Hack, 118 Mo. 92. ments, followed by proper directiou Sec. 7.] tindal v. bkown. 431 all Saturday and Monday, and on Tuesday morning, as soon as the shop was open, and before any money paid, J. S. came and demanded the money, but Mitf ord and Mertins stopped payment ; Manwaring paid back the money to J. S. and demanded it again of Harrison, who, refusing to pay it, an action was brought. And on non assumpsit the chief justice told the jury that giving the note is not immediately payment, unless the receiver does something to make it so by neglecting to receive it in a reasonable time, by which he gives credit to the maker of the note. He left it to them whether there had been any neglect, and observed that the note was payable to Harrison, who had kept it eleven days, and probably would not have demanded it sooner than Manwar- ing did, it appearing the goldsmiths were in full credit all the while. The jury desired they might find it specially, and leave it to the court whether there was a reasonable time ; but the chief justice told them they were judges of that ; whereupon they found pro def. and declared it as their opinion that a person who did not demand a goldsmith's note in two days took the credit on himself.^ TINDAL V. BROWN. 1 Term Reports, 167. [1786.] Indorsees of a promissory note against the indorser. This cause first came on to be tried at the sittings after Easter term, 1785, before Lord Mansfield, at Guildhall, when the jury found a verdict for the plaintiffs. On a motion for a new trial in last Trinity term the facts appeared to be these : that on the 21st of August, 1784, the note in question was made by one Donaldson for £35 payable six weeks after date; that on the 5th October, 1784, the day on which the note became due, allow- ing for the three days grace, one Howell (the plaintiff's clerk) called on Donaldson at 'ten in the morning, and, not finding him at home, he left word that the note was due, and desired Donald- son would send for it at his master's where it lay and take it up ; that on the next day, Wednesday, the 6th of October, he - For the modern rule on this subject, see Bank v. Zimmerman, ]85 N. Y. 210 (1906). \ 432 CONDUCT OP THE TRIAL. [ChAP. IV. called again on Donaldson, who told him he would take it up that day within the banking hours, which were from 9 to 4 o'clock; that the note not being taken up that day, he called again on Donaldson on Thursday, the 7th, and not finding him at home, he was sent to the defendant Brown to tender the note, who refused to pay it, saying the plaintiffs had made it their own. Donaldson proved at the trial that immediately on his parting with Howell on Wednesday, the 6th, he went to Brown 's house, and not finding him at home he left a message with his wife that the note was due, that he (Donaldson) could not pay it, and desired that Brown would take it up, adding that he would make it good to him. All the parties lived at Bristol within twenty minutes walk of each other. After argument by Lee and Morgan, for the plaintiffs, and Cowp^r and Baldwin for the defendant, the court delivered their opinion to the following effect : Lord Mansfield, Ch. J. On full consideration, I am now decidedly of opinion that there ought to be a new trial. It is of great consequence that this question should be settled. Cer- tainty and diligence are of the utmost importance in mercantile transactions. It is extremely clear that the holder of a bill, when dishonored by the acceptor, must give reasonable notice to the drawer or indorser. What is reasonable notice is partly a question of fact, and partly a question of law. It may depend in some measure on facts; such as the distance at which the parties live from each other, the course of the post, etc. But wherever a rule can be laid down with respect to this reason- ableness, that should be decided by the court, and adhered to by every one for the sake of certainty. I cannot form to myself an idea of the ground on which the jury went in giving this verdict. Did they conceive the rule to be that the holder might delay giving notice for two days, or what other time did they mean to allow him? Here an earlier notice might certainly have been given, as all the parties lived within twenty minutes walk of each other. The bill was dishonored on the 5th, the clerk saw the maker on the 6th, and gave him time during the banking hours of that day; and the plaintiffs did not go at 4 that afternoon, but waited till the next day. It has been held {vide Dougl. 497) that where the party liable does not Sec. 7.] tindal v. brown. 433 live in the same place, the holder must write by the next post after the bill is dishonored. It was well observed by the coun- sel that the juries were obstinate in the case of Metcalf and Hall (Tr. 22 Geo. 3 B. R.), where they struggled so hard, in spite of the opinion of the court, to narrow the rule, that they held you must in certain cases demand payment on a banker's draft within an hour. Here the struggle is to give a greater latitude than is necessary. It was once doubted (V. Bull. N. P. 274, 276) whether notice within fourteen days was not sufficient. For the sake of diligence and certainty, I am of opinion that there should be a new trial. WiLLES, J. I agree that there ought to be a new trial. New credit was given to the maker on the 7th; the plaintiffs' clerk went first to Donaldson to demand the bill of him, and after that they sent it to the defendant. As to the notice, I cannot consider the notice given by the maker equal to that given by the indorser. The plaintiffs have not acted with legal dili- gence. AsHURST, J. It is of dangerous consequence to lay it down as a general rule, that the jury should judge of the reasonable- ness of time. It ought to be settled as a question of law. If the jury were to determine this question in all cases, it would be productive of endless uncertainty. The next day at the most is as long as is necessary in a case circumstanced like this. If the parties live at a small distance, this is sufficient time ; if at a greater, they should write by the next post. Notice means something more than knowledge; because it is competent to the holder to give credit to the maker. It is not enough to say that the maker does not intend to pay, but that he (the holder) does not intend to give credit. In the present case there is no notice ; for the party ought to know whether the holder intends to give credit to the maker, or whether he intends to resort to the indorser. BuLLER, J. The numerous cases on this subject reflect great discredit on the courts of Westminster. They do infinite mis- chief in the mercantile world ; and this evil can only be remedied by doing what the court wished to do in the case of Metcalf and Hall by considering the reasonableness of time as a question of law and not of fact. Whether the post goes out this or that day, at what time, etc., are matters of fact ; but when those facts H. T. P. — 28 434 CONDUCT OP THE TRIAL. > [ChAP. IV. are established, it then becomes a question of law on those facts what notice shall be reasonable.^ * * * MACBEATH v. HALDIMAND. 1 Term Reports, 172. [1786..] This was an action upon promises against the defendant, as agent, for work and labor, etc. Plea — the general issue. The cause was tried at the sittings after last Hilary term before BuLLER, Justice, when averdict was found for the defendant by the direction of the judge. Upon a motion for a new trial by Cowper, the following facts appeared from the report: In the year 1779 the defendant, being Governor of Quebec, appointed Captain Sinclair to the command of a fort called Michilimakinac, situated upon Lake Huron, in the Province of Canada. On the 17th of August, 1779, the defendant transmitted cer- tain instructions to Sinclair respecting the government of the fort, in which he said : "You are to pay great attention to the Indians resorting to Michilimakinac, or furnished with necessaries from thence. 1 In Scott V. Lifford, 9 Bast, 347 notice: if reasonable diligence has (1808), a bill of exchange had been been used, it is sufficient, presented for payment by plaintiff's Gross, J. Whether due diligence banker on June 4th, and returned has been used is a question of law; on June 5th to the plaintiff, who but judges may take the opinion posted a notice of dishonor to de- of a jury as to what is convenient fendant on June 6th. The trial in the manner of giving notice, judge left it to the jury to deter- Lb Blanc, J. It cannot be con- mine whether the notice had been tended that a banker ought to give given in a reasonable time. There notice of the dishonor to any but was a verdict for plaintiff and de- his customer for whom he held the fendant moved for a new trial. bill: and I cannot rule that the Lord Ellenbokotjgh, C. J., said, holder of a bill may not avail him- I cannot say that the holder on the self of the conveyance by the two- return of the biU dishonored to him penny post, is bound, omissis omnibus aliis ne- Rule refused. gotiis, to post off immediately with Sec. 7.] macbeath v. haldimand. 435 Endeavor to preserve them in good humor, and attach them by every means in your power to the king's interest." In a further part of the same instructions he added : "You will draw bills of exchange for defraying the con- tingencies incident to that post in the manner practised by Major De Peyster (an officer on whom that command had been before conferred), taking care to moderate and reduce those ex- penses, as far as can be done without injuring the king's service." For some time Sinclair employed one Grant to distribute presents among the Indians, and to procure military stores, etc., for the use of the garrison; and, to defray these and other expenses, drew bills of exchange upon the governor, according to his instructions. "When these accounts came to the defendant he made objections to several of the articles as unnecessary and exorbitant; and soon after recommended the plaintiff to Sinclair by a letter dated the 16th May, 1782, of which the following is an extract : * * * [Then follows an extended corre- spondence between the parties on the subject of furnishing supplies, and in regard to the plaintiff's bills for supplies furnished.] BuLLER, Justice, after reporting the above facts, said that he had been of opinion at the trial, that, the goods in question having been supplied for the use of government, and the defendant not having personally undertaken to pay, the plaintiff ought to be nonsuited. That it appeared to him that the plaintiff had acted with the defendant solely in the character of commander-in-chief, considering him as the agent of government. That all the letters imported it to be a transaction on the part of government ; and that the accounts confirmed it. But the plaintiff's counsel ap- pearing for their client when he was called, he left the question to the jury, telling them that they were bound to find for the defendant in point of law. And upon their asking him whether, in the event of the defendant's not being liable, any other person was, he told them that was no part of their consideration ; but, being willing to give them any information, he added, that he was of opinion that, if the plaintiff's demand were just, his proper remedy was by a petition of right to the crown. On which they found a verdict for the defendant. The rule for granting a new trial was moved for on the mis- direction of the judge upon two points : 436 CONDUCT OF THE TEIAL. [ChAP. IV. First, that the defendant had by his own conduct made himself personally liable, which question should have been left to the jury. Secondly, that the plaintiff had no remedy against the crown by a petition of right, on the supposition of which the jury had been induced to give their verdict. Lord Mansfield, Ch. J. The only question before the court is, whether the defendant be liable or not in this action ? If he be, the plaintiff must recover ; if not, no consideration respecting the plaintiff's remedy against any other party can induce the court to make him so. There is no color to say that he is liable in his character of commander-in-chief. * * * In the present case it was notorious that the defendant did not personally contract; the plaintiff knew, at the time that he fur- nished the stores, that they were for the use of government ; and he afterwards made government debtor in his bills. But it has been urged that the defendant made himself liable after the debt was contracted. In my opinoin there is no ground for such an argument. The evidence does not warrant it. Then it was objected, that whether the defendant had made himself liable or not was a question which ought to have been left to the jury to decide. But there was no evidence which was proper for their consideration ; for the evidence consisting alto- gether of written documents and letters which were not denied, the import of them was matter of law and not of fact. Therefore I am of opinion that the verdict should stand. WiLLES, J. I think, under all the circumstances of the present case that the defendant is not personally liable. The goods were furnished for the use of the crown; government was made debtor; and all the letters speak of the transaction as having been considered in that light. Then if the defendant were liable, his person and property would be subject to an execution, and he must afterwards apply to gov/crnment for a reimburse- ment, which would be no satisfaction to him for the inconven- ience he had been put to. The letter from the defendant's secretary shows that what he did was under the direction of government, and that the fund, out of which the plaintiff was to be paid, was the treasury. And though I consider the faith of government as pledged for the Sec. 7.] macbeath v. haldimand. 437 acts of the defendant, yet I cannot consider him as personally answerable. As to the objection that this should have been left to the jury, it is decisive that this question comes before the court on a motion to set aside the verdict, and not a nonsuit. There was no other evidence but letters, which were before the jury, and the judge had a right to give his opinion upon them. The construc- tion of deeds is a matter of law, but that of letters is proper for the consideration of the jury. BuLLER, J. I do not agree with my brother Wiijl.es as to the construction of letters. If they be written in so dubious a manner as to be capable of different constructions, and can be explained by other transactions, the whole evidence must be left to the jury to decide upon ; for they are to judge of the truth or falsehood of such collateral facts which may vary the sense of the letters themselves ; but if they be not explained by any other circumstances, then, like deeds or other written agreements, the construction of them is a mere matter of law.^ In what character then, as appears frOm these documents, did the defendant act throughout this business? It is true that he gave the orders to Sinclair, and that everything which the plain- tiff did was pursuant to directions from the latter, whom he was instructed to obey ; but these orders did not flow from the def end- 1 Terry, Anglo-American Law, does, is to look at the words and § 71, Questions of Construction : say, ' In our opinion the person "Questions of construction are who used these words meant to con- as to the meaning conveyed by vey such and such a meaning.' certain expressions. They occur This is nothing but a decision about most often with regard to written a fact. Any person of equal intel- documents. Such a question may ligence but knowing nothing of law be one of pure law. The rule ex- could decide it as well as the judge, pressed in the maxim ut res valeat It is a decision as to the existence quam pereat or that of taking of a state of fact as specific and in- words contra proferentem, as also capable of being reduced to rule the purely arbitrary rules fixing the as the fact that when A discharged meaning of certain particular his gun he intended to hit B. It is words and phrases above mentioned true that there exists a general rule, (see section 62), are ordinary rules which is really one of law, that the of law, and when any one of them intention of the parties is to govern, can be applied the construction be- But this gives no aid in finding out comes matter of law. But there what that intention is. It simply are many cases where no rule at tells what the judge is to do after all can be used, where all that the he has astertained the party's in- court can do, and what it in fact tention. " 438 CONDUCT OF THE TRIAL. [ChAP. IV. ant in his own personal character, but as governor and agent for the public ; and so the plaintiff himself considered it. And in any case where a man acts as agent for the public, and treats in that capacity, there is no pretense to say that he is personally liable, Bute discharged.^ DONAHUE V. WINDSOR, ETC., INS. CO. 56 Verrmmt, 374. [1883.] Taft, j_ * * * The request ^hat a verdict be directed, because "no notice in writing was forthwith after the fire given to the defendant's office," as required by the section quoted, the plaintiffs insist, was properly refused, as it does not embody a sound legal proposition, for the reason that the plaintiffs were entitled to a reasonable time to give such notice, and what was such time was a question of fact for the jury, and therefore the defendant had no right to have the matter ruled upon as a question of law. It was conceded that the property burned on the 24th day of September, 1879, and that the only notice of the loss given the defendants was dated the 16th day of October afterwards, more than twenty-two days after the fire. The question was presented whether that was a compliance with the requirement as to notice, that it should be given forthwith. It is unnecessary to set forth the reasons of such a condition ; they are patent to all; a delay of several days or weeks in giving notice may obliterate all those traces of evil design in the insured which accompany fraudulent fires and render an investigation of their causes, or the damages resulting from them, exceedingly difficult ; the importance of prompt notice is too clear to require argument or illustration to prove it. The condition that the insured should give the company notice forthwith should be construed liberally in favor of the insured. lie should give the notice with due diligence and within a reasonable time, without unnecessary delay, under all the circumstances of the case. St. Louis Ins. Co. v. Kyle, and Inman v. Ins. Co., supra; Peoria M. & 2 See also Key v. Cotesworth, 7 Exch. 595. Sec. 7.] DONAHUE V. WINDSOR, ETC., INS. CO. 439 F. Ins. Co. V. Lewis, 18 111. 553 ; Niagara Fire Ins. Co. v. Scam- mon, 111., S. C, 11 Ins. Law Jour. 614; Phillips v. Protection Ins. Co., 14 Mo. 220 ; Edwards v. Baltimore Ins. Co., 3 Gill, 176. The question of whether a party has used due diligence or not in giving notice has sometimes been held to be a question of law ; particularly in those cases where all the facts and circumstances are admitted or established, as where they are conceded or shown by the pleadings. Columbian Ins. Co. v. Lawrence, supra. But upon a jury trial where such facts and circumstances are open for the ascertainment of a jury, we think it should be left to them to determine as a question of fact. The courts in this State have always adopted this rule in all questions of doubt depending upon a general inference from a multiplicity of particular facts, and' where the law has fixed no rule ; such are questions of due diligence, reasonable time, probable cause, etc.^ 1 Terry, Anglo-American Law, § 70 : " There is another much, less simple class of cases where con- fusion arises between law and fact. The questions here are really ques- tions of fact, but they are always decided by the court, not by the jury, and are usually called ques- tions of law. We may therefore for convenience sake designate them as questions of 'curial fact.' They include some questions of construc- tion, some of reasonableness, some of the admissibility of evidence, and a few others." § 72: "Questions of reasonable- ness come up in various connections. Most questions of negligence and not a few of malice, probable cause, fraud and also some others will be found on analysis to turn on one of reasonableness, and this is often one of curial fact. "A question of law in the true sense is one that can be decided by the application to the specific facts proved to exist — here the conduct of some person and the circum- stances in which he acted or omitted to act — of a pre-existing rule. Such a rule must contain a de- scription of the kind of circum- stances to which it is to apply and of the kind of conduct required. Some definable combinations of facts occur so often that they can be foreseen and provided for, for example, the sets of facts that con- stitute the making a contract, the taking possession of things, the re- ceiving a fund to be paid over to another. In these the important facts are few. But in many cases the group of facts that would need to be provided for is so large and complicated or of such infrequent occurrence that it fs not possible or not worth while to attempt to fore- see them or to prescribe any deter- minate line of conduct. Thus a carrier by railroad in order to pro- vide properly for his passenger's safety has to look after a hundred different items never twice the same. It would be out of the ques- tion to try to fix by statute the ex- act amount and kind of repairs that should be put upon each bridge or the exact manner in which every engineer should manage his loco- 440 CONDUCT OF THE TRIAL. [Chap. IV. Sessions v. Newport, 23 Vt. 9. It may be a question of law where the inference is one which admits of no doubt so that it will strike all minds alike. See also Starkie on Bv., 451, note (p). The Supreme Court of Connecticut in Lockwood v. Ins. Co., 46 Conn. 553, says : ' ' Extreme cases either way may be easily determined. Between them there is a wide belt of debatable ground, and cases falling within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact." Such being the rule, the defendant had no right to have the question passed upon as one of law, and his request was properly refused. But the refusal did not terminate the duty of the court in the matter. Whether the insured had given notice forthwith was a point material to the decision of the case; without proof of that fact the plaintiff could not recover. There was evidence upon that point, and it was the duty of the court to charge correctly and fully whether requested to do so or not. Vaughan v. Porter, 16 Vt. 266. A party is entitled to such a charge as the facts in the case require. Hazard v. Smith, 21 Vt. 123. The County motive. But where the law has laid down no rule there can be no ques- tion of law. Now in most of such complicated cases the law sets up simply the general rule of reason- able conduct. This is analogous to the general rule of construction that the intent of the parties shall prevail: it tells what ought to be done when the proposed conduct has been determined to be reasonable or not, but it does not help the de- termination whether it is reason- able. The rule usually propounded to act as a reasonable and prudent man would in the circumstances, still leaves open the question how such a man would act. No general rule can be imagined which should inform a man how fast, he being such a horseman and riding such a horse as he is, it is reasonable for him to ride through a street of such width and crowded to such an extent with people disposed in such a manner as that in which he finds himself. The question, was the specific conduct of the specific per- son in the specific circumstances reasonable or not, must usually re- main as a question which is really one of fact. ' ' When the reasonableness or im- reasonableness of the conduct is very plain, the court will decide it; when it seems to the court to fairly admit of doubt, it will be handed over to the jury. This is expressed in such sayings as that the court must decide whether there is any evidence of negligence, malice, fraud, want of probable cause, etc., or that the court must decide whether the facts may amount to negligence, etc., and the jury whether they do. In any case the court cannot avoid exercising a tolerably wide discretion whether to decide the question itself or not. ' ' Sec. 7.] parker v. ibbetson. 441 Court is always bound to charge the jury according to the rules of law whether specifically requested so to do or not. Redfield, J., in Buck v. Squires, 23 Vt. 498; and see 16 Vt. 579; 28 Vt. 222; 39 Vt. 565; 40 Vt. 495. The question whether the notice required was given forthwith should have been submitted to the jury; but the point was ignored by the court, and no reference was made to it in the charge. Judgment reversed and cause remanded for a new trial.^ PARKER V. liBBBTSON. 4 Common Bench (N. S.), 346. [1858.] This was an action against the defendant for wrongfully dis- charging the plaintiff from his service. * * * The cause was tried before Cresswell, J., at the sittings in London after last Michaelmas term. It appeared that the de- fendant, who was a woolen merchant at Leeds, having a place of business in London, engaged the plaintiff to serve him in the capacity of agent or representative there, upon the terms con- tained in the following memorandum: "Memorandum of agreement made between Henry Ibbetson & Co., of Leeds, of the first part, and Richard Awood Parker, of, etc., of the second part. The aforesaid Richard Awood Parker engages to serve the said Henry Ibbetson & Co. as agent or representative, at the salary of £150 per annum in consideration thereof. Also provided at the end of the year the said H. Ibbetson & Co. find the said Richard Awood Parker has done sufficient business to justify them in recompensing by making up his salary to £180 to do so, being a donation of £30 to his present stipulated amount of £150. As witness our hands this 30th day of January, 1857. (Signed) "Henry Ibbetson & Co. "Richard Awood Parker." The plaintiff continueck in the service of the defendant under this agreement until the 1st of August (receiving his salary 2 See also Harden v. Ins. Co., 164 Mass. 304; compare McFarland v. Accident Co., 124 Mo. 204. 442 CONDUCT OF THE TRIAL. [ChAP. IV. monthly), when the defendant gave him a month's notice to quit. For this dismissal, which the plaintiff contended was wrongful, and in contravention of the agreement, the present action was brought. On the part of the defendant, several witnesses were called to prove a custom in the particular trade to dismiss at a month's notice, though the engagement was at a yearly salary. * * * In his summing up, the learned judge instructed the jury in substance as follows: * * * The parties first agree for a general hiring, at a yearly salary; then they add a proviso, that, if the employer shall at the end of the year consider the agent deserving of it, he shall be rewarded with a donation of £30. Now, the only legitimate effect of that — assuming the cus- tom to have been established — would seem to be, that, by intro- ducing that stipulation into the contract, they meant the custom to be excluded. The first question, then, for your consideration will be, whether such a custom as alleged exists in the particular trade ; and the second question will be, whether the contract was made witK reference to the custom, or was a special contract to which the custom did not apply. If you think the evidence establishes the custom, it merely remains for you to consider whether you infer from the latter part of the agreement that the parties meant to exclude the application of the custom in the particular case. If you think they did not contract with that intention, the defendant will be entitled to your verdict. If, on the other hand, you think the custom is not established, then the dismissal of the plaintiff before the expiration of the year is not justified, and he will be entitled to your verdict, with such damages as you may think him fairly entitled to for such wrong- ful determination of the contract. The jury found, first, that the custom was proved; secondly, that the hiring was a special hiring, to which the custom did not apply ; and thereupon they found for the plaintiff, damages £70. Hugh Hill, Q. C, in Hilary term last, obtained a rule nisi to enter a verdict for the defendant, on the ground that the jury having found the fact of the existence of the custom for the defendant, their finding as to the special terms of the contract was immaterial ; or for a new trial, on the ground of misdirection, inasmuch as it was not a question for the jury whether the special terms of the contract excluded the custom, but the con- Sec. 7.] paeker v. ibbetson. 443 struction of the contract was for the court, and, according to the true construction, the custom was not excluded. Ceowdee, J. I am of opinion that this rule must be made absolute. The question arises in an action brought upon an agreement entered into between a clerk or servant and his employer in a certain trade, which agreement is in writing ; and the contention at the trial was as to the existence of the' custom stated in the fifth plea, and its application to the contract before the court. The jury were asked certain questions, and invited to draw certain conclusions. These were, whether the custom was proved, and whether, if proved, it was applicable to the special terms of this contract. On the part of the defendant it is contended that this latter was not a question for the jury, but for the court ; and I am of that opinion. Looking at the evidence, it seems to have been established that there was a general custom in the trade that a yearly hiring might be put an end to by either party upon a month's notice. It is insisted on the part of the plaintiff that, assuming such a custom to exist, the special terms of this agreement exclude the application of it to this case. It seems to me that there is no foundation for that argument. The first part of the contract amounts simply to an engagement on the part of the plaintiff to serve the defendant as agent at the salary of £150 per annum ; then follows a proviso that if "at the end of the year the said Henry Ibbetson & Co. (the defendant) find the said R. A. Parker (the plaintiff) has done sufficient business to justify them in recompensing by making up his salary to £180 to do so, being a donation of £30 to his present stipulated amount of £150." Reading ttis agreement — and its construc- tion is for the court, and not for the jury — it seems to me to be simply an agreement for a yearly hiring at a yearly salary ; and that there is nothing in the proviso to alter the nature and character of the agreement; it is a mere statement that the defendant will at the end of the year, if he shall see fit, make the plaintiff a present of £30. It is clear that this £30 could not have been recovered by action, if the service had lasted until the end of the year. The simple question is, whether, looking at the custom proved, which is general, there is anything in the written agreement to exclude it. I see nothing in it that can have that effect. The proviso cannot exclude it; that has no reference to dismissal. Then, if there is nothing in the contract that is inconsistent with the application of the general custom, 444 CONDUCT OP THE TRIAL. [ChAP. IV. it is the same as if the custom had formed part of the written agreement. This case must follow the ordinary rule, that, wherever a contract is made in a particular trade, aU customs which regulate that trade are tacitly incorporated into the con- tract, unless by express terms excluded. There was nothing to warrant the conclusion of the jury, and consequently the rule will be made absolute, not, however, to enter a verdict for the defendant, no leave having been reserved, but for a new trial. WiLLES, J. I am entirely of the same opinion. * * * The custom, being proved, becomes part and parcel of the contract. The jury had no right to take upon themselves to say that the special contract excluded the custom. ^ The evidence upon which that conclusion was founded does not in fact negative the appli- cation of the custom to a hiring under a contract like this. The witness merely stated that he did not know of an instance where under such an agreement as the present the custom had been acted upon. Byles, J. In cases of this nature, two questions generally arise — the one, a question of law, whether the terms of the agreement may admit or must necessarily exclude the custom; the other, one of fact, whether, if the agreement may admit the custom, the custom extends to the particular agreement. I do not therefore see that the learned judge was wrong in leaving this latter question to the jury. The evidence of the custom was irresistibly strong, and, although the jury might, upon proper evidence, have found a limited custom, there was no evidence of any such limitation here. Bule absolute for a new trial. 1 WiLLES, J., in Berwick v. Hots- of all written documents is for the fall 4 C. B. (N. S.) 450: "It court, and not for the jury. It was turned out that the document which for the judge, therefore, to say conferred that authority upon him whether or not there was such au- was lost. But the fact of a docu- thority. He thought there was. ment being lost, does not make the The jury thought there was not. construction of its contents a ques- That, however, was quite imma- tion for the jury. The true rule terial, the question being solely for is laid down in Neilson v. Harford, the court." 8 M. & W. 806. The construction Sec. 7.] Cunningham v. washburn. 445 CUNNINGHAM v. WASHBURN. 119 Massachusetts, 224. [1875.] Contract against "W. A. Washburn and Frederick E. Abbott, lUpon an instrument under seal, dated October 15, 1871, and signed by the plaintiff and the defendants, reciting that the defendants were the owners of certain land in the city of Worcester, with a cottage standing thereon, which the defendants desired to remove to another part of the land, and providing as follows : "Now, therefore, said Cunningham, being a practical carpenter and building mover, in consideration of four hundred and fifty dollars being paid to him, promises and agrees to move said building back upon the rear part of the lot, turn it half around, and front it on Barclay Street, dig and stone a cellar to set it on, and to finish said house ready for occupancy, doing the work well even to all the rooms, painting the house one coat of good oil and lead paint on the outside, and two good coats of oil and lead on the inside, and putting blinds on the windows outside, furnishing and finding all the stock and materials." The declaration also contained a count upon an account an- nexed for stone and sheathing boards furnished, these not being included in the contract. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows : The defendant Washburn testified that he went to the house at the time one Pike, the plaintiff's agent, was building the cellar wall and using the new stones ; that he asked Pike why he was using new stones instead of the old, and Pike said that Abbott had ordered them to be put in, and he, Washburn, then said that if Abbott had ordered them he might pay for them. The plaintiff testified that he asked Washburn to pay for the job six weeks after it was finished, and he told him he was not going to pay for those new stones anything extra ; that as Abbott had ordered them he might pay for them. The defendant asked the judge to rule that the plaintiff could not maintain his action on the written contract, it being admitted by the plaintiff that he had not completed the contract if it required him to build a water-closet. The plaintiff admitted that he refused to put a water-closet into the house, and left the 446 CONDUCT OF THE TRIAL. [ChAP. IV. house without putting one in ; the defendants requested the judge to rule that the contract as a matter of law required that a water-closet or privy should be built. The defendants also asked the judge to rule that the claim for extra stone could not be maintained against the defendants jointly. The judge declined to give either of the rulings requested, but instructed the jury as follows: "In relation to the defendants* claim that the plaintiff wilfully abandoned his contract before it was completed, and that the defendants were therefore not liable, such is the rule of law, where wilfully, without cause, a party neglects to complete and abandons his contract. If the plaintiif had wilfully abandoned the work, leaving the house not finished according to the contract, he could not recover. But if a party in good faith proceeds under a special contract, and doing what he reasonably supposes is required, and substantially completes it, and the other party accepts the benefit of the work, although the contractor may not have done all that was really his duty, or in the exact manner required, still he may maintain an action for his labor and materials, but he cannot necessarily recover the cost of his materials or the ordinary price of labor. The party for whom the work was done is entitled to have de- ducted from the contract price the difference between the value of the work as done, and its value if it had been done in accord- ance with the contract. "In relation to the proper construction and interpretation of the contract, it is a question of law for the court to decide. The contract provides that the plaintiff should ' finish the house ready for occupancy,' and then proceeds to state the details as to a portion of the work; as far as the manner of doing the work and the kind of work is specified, it is to be done as thus specified ; the only difficulty arises as to the work not specified, but which is required by the provision 'to finish said house ready for occu- pancy ; ' the court cannot, as a matter of law, give you the details the parties have omitted, but instructs you that the plaintiff would, under this provision of the contract, be bound to do all things that would be reasonably necessary and proper to make the house ready for occupation, taking into consideration, in determining what should be done, the character of the house he was to finish; and if the jury find that he omitted anything specified in the contract, or omitted any other thing that was reasonably required to have such house as is referred to and Sec. 7.] Cunningham v. washbuen. 447 described in the contract ready for occupancy, then he has not performed his contract and cannot recover upon it." The judge also instructed the jury, that "in order to entitle the plaintiff to recover for the stone furnished, you must be satisfied that Abbott had authority from Washburn to make a change from the agreement as to the stone, and that if Abbott was acting for both in relation to the building and carrying out the contract, with a general authority from Washburn to make such changes as he deemed best, and he made the change as to the stone, Washburn would be bound thereby, or if Washburn, having knowledge of Abbott's acts, subsequeiltly ratified the same." The jury found for the plaintiff; and the defendants alleged exceptions. Devens, J. The legal interpretation of a contract is foi; the court, which is to determine, where the words are unequivocal in their meaning, what it imports, and what are the obligations imposed by it. As, however, words and phrases are often used, which are technical or ambiguous, and sometimes, also, those which, although not in themselves unintelligible, require knowl- edge of the subject, in connection with which they are used, to apply them intelligibly, it may become necessary to resort to extrinsic evidence to ascertain thereby the intent of the parties in using them, in order that the contract may be construed in the light of the information thus acquired. The facts thus to be inquired into are determined by the jury under the direction of the court, which instructs them as to the construction to be given to the contract according to the various aspects in which such facts may present themselves. Baton v. Smith, 20 Pick. 150; Burnham v. Allen, 1 Gray, 496; Smith v. Faulkner, 12 Gray, 251. Whether the phrase "to finish said house ready for occupancy" was one which would require the building of a water-closet, de- pended upon certain extrinsic facts. The defendants do not object to the instructions given, in themselves, but contend that the court should have received the evidence of carpenters, and then, upon such evidence, have decided the matter without sub- mitting it to the jury. This, however, would have taken from the jury its right to find the facts, and have trespassed upon its province. It is for the court only to decide the law upop the facts as they have been, or as they may be, ascertained ; and 448 CONDUCT OF THE TEIAL. [ChAP. IV.' while what the contract requires to be done is a question of law, the submission of the case to the jury to find the facts, with proper instructions as to the various aspects in which they may present themselves, gives to the court the construction of the contract as completely as if the jury found the facts specially and the court afterwards interpreted the contract in view of them as found. In Worcester Medical Institution v. Harding, 11 Gush. 285, relied upon by the defendants, it was held by the court, as a matter of legal construction of the peculiar contract in that case, that a full completion of the wall, there contracted for, was not necessary, but only such completion thereof as would be necessary for the purpose of putting on the roof of the building ; and as the facts in regard to this were admitted, there was nothing for the jury. In the present case, what the contract required to be done could not be determined as matter of law, except by determining as matter of fact what was reasonably necessary and proper to be done, considering the character of the building to be erected. The ruling upon the remaining question was also correct. Al- though the written contract required the plaintiff to furnish aU the stone for the cellars, yet it was competent for the parties subsequently to agree for stone of an extra quality. Under the instruction given, the jury must have been satisfied that Abbott had authority from Washburn to make this change, or that Washburn, with a knowledge of Abbott 's acts, subsequently rati- fied them, and in either case both would be liable. Exceptions overruled.^ CRAWFORD V. OMAN & STEWART. 34 South Carolina, 90. [1890.] Mr. Justice McIver. On the 22nd of December, 1884, the plaintiffs and defendants entered into a written agreement, styled a lease, a copy of which is set out in the "case," and 1 Compare N. W. Ins. Co. v. Mus- lem of what constituted "habitual kegon Bant, 122 U. S. 501, where drunkenness" within the meaning the court had to deal with the prob- of a life insurance policy. Sec. 7.] Crawford v. oman & stewart. 449 should be embraced in the report of this case. By the terms of this 'agreement the defendants, amongst other things, were to have the exclusive right of quarrying granite on the lands of the plaintiff for the term of ten years, with the privilege to defendants of renewal for another term of five or ten years at their election, in consideration whereof the defendants agreed to pay annually to the plaintiffs "one cent and one-quarter of one cent for every cubic foot of granite shipped of dimension stones during the first five years of this lease, and one cent and one-half of one cent per cubic foot of dimension stones during the second five years, and all subsequent terms of this lease. For all other stones shipped not dimension stones they agree to pay fifty cents per carload. ' ' The defendants having worked the quarry for some two or three years, abandoned it, whereupon this action was commenced on the 31st of January, 1889. In the complaint the plaintiff undertook to state two causes of action, the first for breach of the written contract in not paying the price agreed upon for the stones quarried, and the second for damages for ceasing to work the quarry; but as the second cause of action has been practically eliminated by the ruling of the Circuit Judge on the motion for a new trial, to which no exception has been taken by the plain- tiffs, we are confined to a consideration of the first cause of action. In support of this cause of action the plaintiffs, after alleging the making of the written contract, substantially as above stated, except that feature which prescribes the price of stone shipped, other than dimension stone, alleges that defendants ' ' have quar- ried two hundred thousand blocks of granite, known as 'Belgian blocks;' and that said defendants have already shipped one hundred and ten thousand of said Belgian blocks, and they are ready to ship and are preparing to ship the remaining ninety thousand of said blocks." They then .proceed to allege that the 200,000 Belgian blocks "so quarried by the defendants are equivalent to thirty-six thousand cubic feet of granite ; that said Belgian blocks are ' dimension stone ; ' and that there is due and payable to the plaintiffs by the defendants, under said agree- ment, upon the said thirty-six thousand cubic feet of stone the sum of four hundred and fifty dollars, ' ' for which sum judgment is demanded. Testimony was adduced tending to show how much stone had been shipped by the defendants, how much was at the quarry cut H. T. p.— 29 450 , CONDUCT OF THE TRIAL. [ChAP. IV. into Belgian blocks, but not shipped, and also as to what was the meaning of the term "dimension stone," which seems to be a term of art, as to which there was considerable conflict among the witnesses. The plaintiff, Robert Crawford, who, as agent for his wife, his co-plaintiff, seems to have had entire charge of the business, testified that he regarded Belgian blocks as dimen- sion stone, but there is no testimony that the defendants so regarded them. The circuit judge charged the jury that the defendants were liable not only for the stone actually shipped by them, but also for such as had been quarried and left at the quarry, using these words : ' ' Whatever was quarried and ready for shipment may be considered in this contract as articles shipped;" and as to the rate that should be charged for the Belgian blocks, while they were not "dimension stones," yet if the testimony satisfied the jury that the term ' ' dimension stone ' ' was not used in its ordinary technical sense, but was intended to embrace Belgian blocks, then they could so find and allow the plaintiff to recover for the Belgian blocks at the rate fixed by the contract for dimension stone. The jury having found a verdict in favor of the plaintiffs for the whole amount claimed — four hundred and fifty dollars — defendants appeal upon the following grounds : ' ' 1st. For that his honor erred in charging the jury that if the 75,000 Belgian blocks were quarried, then whatever was quarried and ready for shipment may be considered in this contract as articles shipped, and that the plaintiffs could recover therefor against the de- fendants. 2nd. In that his honor erred in this: that having charged the jury that the parties being quarrymen, there was a presumption that they contracted with reference to the technical meaning of 'dimension stone,' and having charged further that Belgian blocks were not dimension stone in its technical sense, it was error to submit to the jury the question whether the plaintiff had rebutted this presumption, when he had offered no testimony whatever to rebut the same. ' ' The action being based upon a written contract, it is quite clear that the rights and liabilities of the parties must be deter- mined by the terms of such contract, and it seems to us equally clear that, under the provisions of this contract, the plaintiffs had no right to demand, and the defendants were under no obliga- tion to pay for any stone until it was shipped or sent to market, for such is the express provision of the contract. It does not Sec. 7.] crawpord v. oman & stewart. 451 provide that defendants shall pay for the stone when it is quar- ried, or even when it is prepared for market, but only when it is shipped. Such being the contract of the parties, expressed in no equivocal terms, we do not see by what authority a court can undertake to change those terms. * * * It seems to us also that the second exception is well founded. Inasmuch as the contract prescribed one price for "dimension stone," and another and much lower price for all other stone, it was, of course, very material to determine what was meant by the term "dimension stone," and especially whether Belgian blocks were embraced in that term. Now, as the term ' ' dimension stone ' ' was a term of art, it was competent, under the well settled rule, to receive evidence of experts as to the technical meaning of that term. 1 Greenl. Bvid. § 280; 3 Am. & Bng. Encycl. L. 867-8, and notes. Accordingly such evidence was received in this ease, and, as it was conflicting, a question of fact was presented as to the meaning of the term ' ' dimension stone, ' ' and especially whether it included Belgian blocks, which it was the province of the jury to determine, and it was for the court to instruct them as to the proper construction of the contract, accordingly as they found one or the other meaning of the term to be correct. It seems to us that the true rule upon this subject is well stated by Parke, B., in Neilson v. Harford, 8 Mees. & "W. 806, in the following language, taken from one of the notes to the pas- sage in the Encyclopedia above cited: "The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury ; and it is the duty of the jury to take the construction from the court either absolutely, if there be no words to be construed [or pehaps it would be better to say interpreted] as words of art or phrases used in commerce, and no surrounding circum- stances to be ascertained ; or conditionally when those words or circumstances are necessarily referred to them." This rule was illustrated in the case of Hutcheson v. Bowker, 5 Mees. & W. 535, where an offer had been made by letter to sell a certain quantity of "good barley," and the letter in reply, after stating the offer, contained the following: "Of which offer we accept, expecting you to give us fine barley and good 452 CONDUCT OF THE TEIAL. [ChAP. IV, weight ; ' ' and it was held^ that although the jury might find the mercantile meaning of "good" and "fine" as applied to barley, yet they could not go further and find that the parties did not understand each other. The question whether there was a suf- ficient acceptance was a question to be determined by the court upon a proper construction of the letters, Paeke, B., saying: "The law I take to be this — that it is the duty of the court to construe all written instruments. If there are peculiar expres- sions used in them, which have in particular places or trades a known meaning attached them, it is for the jury to say what is the meaning of such expressions, but for the court to decide what is the meaning of the contract. "^ So, as was said by Shaw, C. J., in Eaton v. Smith, 20 Pick. 150 (quoting again from the Encyclopedia) : "When a new and unusual word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage to explain and illustrate it, and that evidence is to be considered by the jury ; and the province of the court will then be to instruct the jury what will be the legal effect of the con- tract or instrument as they shall find the meaning of the word modified and explained by the usage. ' ' It seems to us, therefore, that the circuit judge erred when he instructed the jury that while a Belgian block was not a dimen- sion stone, if that word is to be interpreted in its technical sense, yet the question for the jury to determine in this ease was whether the term "dimension stone" was used in this contract in its ordinary technical sense, or in some other sense. The writ- ten contract showed what terms had been used by the parties, and in view of the fact that one of those terms — "dimension stone" — ^was a term of art, the only question for the jury was, what was the meaning of that term in the art to which it is applied, and not whether the parties used that term in a sense different from that which it ordinarily bore. This would be allowing a party by parol evidence to prove that the understand- 1 In Neilson v. Harford, 8 M. & means of a bill of exceptions, of W. 806, Baron Parke gave the fol- redress in a Court of Error; but a lowing reason: "Unless this were misconstruction by a jury can not so, there would be no certainty in be set right at all effectually. ' ' See the law; for a misconstruction by a also Chambers v. Eiggstaflf, 69 Ala. court is the proper subject, by 140; Curtis v. Martz, 14 Mich. 506. Sec. 7.] mckenzie v. sykes. 453 ing between the parties was different from that which the terms they have used ordinarily and properly import, which is not permissible, as it would be in effect varying the terms of a written contract by parol. See DeCamps v. Carpin, 19 S. C. 121. We must look alone to the written contract for the words used by the parties, and where some of the words are terms of art, it is for the jury to say, from the testimony adduced, what is the proper and technical signification of such terms, and there the province of the jury terminates, and it is for the court to deter- mine the true construction of the contract, reading the terms of art used therein in the sense as thus ascertained by the jury. But the jury are not at liberty to say that though the words used by the parties properly mean one thing, yet the evidence shows that the parties intended them to mean something else; for that would permit the jury to substitute for the words actu- ally used by the parties other words which they have not used. In this case both of the parties who were active in making this contract were quarrymen, with considerable experience in the business, and when they used a term of art, it must be presumed that they used it in its technical sense, and as it would ordinarily be understood by quarrymen, and in the absence of anything in the contract itself indicating that they intended to use that term in any other or broader sense, this presumption is conclusive. The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case be remanded to that court for a new trial. McKENZIE V. SYKES. 47 Michigan, 294. [1882.] CooLEY, J. This is an action of replevin for a quantity of wheat which was raised by Sykes on the land of McKenzie, who is his father-in-law, while the parties were living together upon it. The chief controversy concerns the bargain under which the wheat was raised. Both of the parties, and also their wives, were sworn and examined as witnesses. The testimony of Sykes tended to show that after his marriage with McKenzie 's daughter in September, 454 CONDUCT OF THE TRIAL. [ChAP. IV. 1878, it was talked over between himself and McKenzie that he should live in the house with McKenzie, work the farm and raise would he could off it, let McKenzie have his living and his stock kept, and Sykes have the remainder; that under this arrangement he went on and sowed winter wheat, raised and harvested 701 bushels, drew off a part of it, when he was forbidden by Mc- Kenzie to take the remainder and therefore replevied it. He admitted that McKenzie assisted him somewhat in the work. Mrs. Syke's testimony supported to some extent that of her husband. On the other hand McKenzie testified that he told Sykes he might go on and work the farm and should have what was right, and when the wheat was harvested and threshed, he was willing to let him have one-half. This he seems to have thought was liberal, as he did a large share of the work and bore a part of the expense himself. Mrs. McKenzie seems to have heard no bargain but much vague talk. On this evidence the question for the jury was whether Sykes owned the wheat, or on the other hand was tenant in common with McKenzie. The circuit judge instructed the jury that if Sykes was to cultivate the farm and have what he raised, allow- ing McKenzie his living and the keeping of his stock, then the title to the wheat was in Sykes. He also gave the following instructions: "If the jury find that McKenzie said to Sykes, 'You carry on this farm and manage it, and I will do what is right by you,' this means that 'upon settlement at the close of our arrangement' — or of the year, perhaps — 'I will do in the matter of charges against you what is right.' So I say if the jury find the testimony upon that point as I have stated, it would not make them tenants in common." It seems, therefore, to have been the opinion of the circuit judge that whether the one party was believed or the other, the title to the wheat was in Sykes. But the difiiculty with this instruction is that he assumed to interpret for the jury the oral negotiations of the parties, and put a construction upon certain oral terms provided the jury should find they were in substance made use of. In doing this he took upon himself func- tions which belong to the jury exclusively. It is for the court to interpret the written contracts of parties, for when they have assented to definite terms and stipulations and incorporated them in formal documents, the meaning of these, it is supposed, can always be discovered on inspection; nothing which is within Sec. 7.] belt v. goode. 455 the purview of the contract is left in doubt and there is, of course, nothing to submit to the jury. Thompson v. Richards, 14 Mich. 172. But where the terms of a negotiation are left to oral proofs, the question what the quarties said and did, and what they in- tended should be understood thereby, is single and cannot be separated so as to refer one part to the jury and another part to the judge, but in its entirety the question is one of fact. Strong V. Saunders, 15 Mich. 339 ; Maas v. White, 37 Mich. 126 ; Estate of Young, 39 Mich. 429 ; Engle v. Campbell, 42 Mich. 565. If, therefore, McKenzie in substance told Sykes to go and cultivate the farm and he would do by him what was right, it is not within the province of the judge to say that by this McKenzie meant he would do what was right in the matter of charges ; but it was for the jury to consider all the conversation of the parties which made up the negotiation between them, and from the whole, in the light of the surrounding circumstances, determine accord- ing to their best judgment what was the meaning. In the light of all the facts the jury might perhaps conclude that the bar- gain, as the parties understood it, was, that McKenzie would pay for his son-in-law 's services what was right, or that he would divide the crop with him as was right; but however that may be, it is sufBcient for the purposes of this case that the result of the negotiations must be determined by the jury, not by the court. The judgment must be reversed with costs and a new trial ordered. BELT V. GOODE. 31 Missouri^ 128. [I860.] Appeal from St. Louis Circuit Court. It is deemed unnecessary to set forth the facts in evidence more fully than they appear in the opinion of the court. The court, of its own motion, gave the following instruction.- "If the jury find that the defendant employed plaintiffs in the capacity of real estate agents to sell land for him, and that they effected a sale thereof agreeably to such employment, and that there was no special agreement as to the compensation they in that behalf rendered, then the plaintiffs are entitled to recover 456 CONDUCT OP THE TRIAL. [ChAP. IV. a reasonable compensation for such services. But if the jury find that there was a special continuous contract made between plaintiffs and defendant concerning such sale, and that one of the conditions of such contract was that plaintiffs should sell the land for a sufficient price to reimburse the defendant for the costs and expenses he had incurred concerning the land and to pay them for their services, then, in order for the plaintiffs to recover in this suit, the jury should believe from the evidence that the land sold for a sufficient sum to reimburse defendant for his said costs and expenses and to compensate plaintiffs ; and if the sale was made under a contract with such a condition, the jury should find for the defendant, unless they believe that the land sold for a sufficient sum to reimburse defendants and to plaintiffs their compensation; and the burden of proving that plaintiffs have performed the conditions of such a special con- tract devolves upon the plaintiffs to entitle them to recover. ' ' Napton, Judge, delivered the opinion of the court. Judge Gaston observed, in the case of Young v. Jeffries, 4 Dev. & Batt. 220, that "where a contract is by parol, the terms of the agreement are of course a matter of fact, and if those terms be obscure or equivocal, or are susceptible of explanation from ex- trinsic evidence, it is for the jury to find also the meaning of the terms employed ; that the effect of a parol agreement, when its terms are given and their meaning fixed, is as much a question of law as the construction of a written instrument." ^ The question in this case was purely one of fact. The plain- tiffs were employed by the defendant to sell a lot of ground, which he had purchased a short time before, upon a special agreement as to their compensation. The lot had been pur- chased by the plaintiff for one hundred thousand dollars, but previously to its purchase he had leased it from the owner at a rent of six thousand dollars per annum, and his losses on this lease, during the three years he held it, amounted to a consider- able sum, estimated by a witness at thirty thousand dollars. The proceeds of the sale made by the plaintiffs were $122,705. The only question is as to the terms and meaning of the special contract, whether the compensation of the plaintiffs was made conditional on being reimbursed by the proceeds for the cost 1 See also Brannock v. Elmore, 114 Mo. 55; Spragins v. White, 108 N. C. 449. Sec. 7.] loudon savings soc. v. hageestown b'k. 457 and expenses incurred both in the purchase and in the lease, or whether the indemnity was to extend only to the cost and expenses incurred in the purchase. If the former was the under- standing of the parties, it is clear that the plaintiffs were not entitled to recover; but if the latter, they were. This was a question for the jury. The objection to the instruction given by the court is, that its language is equivocal. There is an ambiguity in the terms of the instruction, which speak of "the costs and expenses incurred concerning the land." This may mean either the cost and expenses incurred in the purchase or in the lease; or in both. It is easy to put the question to the jury in such a way as to leave no doubt as to the subject for their inquiry; and as the jury may have been misled by the instruction alluded to, we shall remand the ease for another trial. Judgment reversed. LOUDON SAVINGS SOCIETY v. HAGBRSTOWN BANK. 36 Pennsylvania St. 498. [I860.] Woodward, J. The Hagerstown Savings Bank brought this action of assumpsit against William McGrath and his numerous co-defendants, as partners trading and doing business under the name and style of the Loudon Savings Fund Society. The first count in the plaintiff's narr. is founded upon a "certain writing obligatory, commonly called a certificate of deposit, for the sum of five thousand dollars, signed by H. Baston, treasurer of said Loudon Savings Fund Society (who had full power conferred upon him to do such act), and then and there delivered said cer- tificate of deposit to said plaintiff, and thereby promised to pay said plaintiff said sum of five thousand dollars, six months after the date thereof, with interest at 6 per cent. ' ' The second count is upon a certificate for a deposit of like sum, made by H. Baston, and by him endorsed, but delivered by the defendants to the plaintiff. Then follow the common money counts. The copy of the certificate of deposit shows that it was issued on the 1st January, 1857, by H. Easton, treasurer, to himself for five thousand dollars, payable to his order six months after date, with interest at six per cent, and by him endorsed in blank. 458 , CONDUCT OF THE TRIAL. [ChAP. IV. Besides all the general pleas, the defendants pleaded specially : 1st. That the said writing obligatory was not their act or deed. 2d. That Hezekiah Easton had no power or authority, as treas- urer of the Loudon Association or otherwise, to sign or endorse the certificate, and that he issued it fraudulently and corruptly, without the knowledge or authority of the defendants, of all which the plaintiff had knowledge when the certificate came into their possession. * * * On the trial of the cause the learned judge directed the jury to return a verdict for the amount of the plaintiffs' claim, and declined to submit any question of fact for their decision. To the admission of evidence, and the refusal of the court to give instructions prayed for, sixteen errors are assigned, which I do not propose to consider in consecutive order, though all that is material in them shall be noticed. It is apparent, that the great question raised upon the record had reference to the character and extent of Easton 's authority, as the agent of the defendants. The party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the act is done. If the authority be created by power of attorney, or other writing, the instru- ment itself must in general be produced ; and since the construc- tion of writings belongs to the court, and not to the jury, the fact and scope of the agency are, in such cases, questions of law, and are properly decided by the judge. But the authority may be by parol, or it may be implied from the conduct of the em- ployer in sanctioning the credit given to a person acting in his name. And in many cases, the acts of an agent, though not in conformity to his authority, may yet be binding upon his employer, who is left, in such eases, to seek his remedy against his agent. Whether an employer be or be not bound by such acts as are not conformable to the commission given by him, depends principally upon the authority being general or special. By a general agent, is understood not merely a person substituted in the place of another, for transacting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind, as to buy and sell certain kinds of wares, to negotiate certain contracts, and the like. An authority of this kind empowers the agent to bind his employer by all acts within the scope of his employment, and that power cannot be limited by any private order or restriction, not known to Sec. 7.] elliott v. south devon ky. co. 459 the party dealing with the agent. A special agent is one who is employed about one specific act, or certain specific acts only, and he does not bind his employer unless his authority be strictly pursued: Paley on Agency, 199, et seq. "A general authority," said Lord EUenborough, in Whitehead v. Tuckett, 15 East, 408, "does not import an unqualified one, but that which is derived from a multitude of instances ; whereas a particular authority is confined to an individual instance." And in all instances where the authority, whether general or special, is to be implied from the conduct of the principal, or where the medium of proof of agency is per testes, the jury are to judge of the credibility of witnesses, and of the implication to be made from their testi- mony. As the plaintiff here did not produce any written evidence of Easton's agency, it was the duty of the court to inform the jury, what constitutes agency, express or implied, special or general, and to refer to them the question, 1st whether the evidence satis- fied them that Easton was either the general or special agent of the defendants? and 2d whether the issuing of the certificate in suit was within the scope of his authority ?i 3 W. & S. 79 ; 11 Har- ris, 247 ; 6 Casey, 513 ; 7 Id. 461. Or if it was not a case of strict agency, if Easton acted with- out any authority in issuing the certificate, or transcended such as had been delegated to him, the question of ratification by the defendants was also a mixed question of law and fact. "What would in law amount to ratification, was for the court; whether such proofs were found in the case, was for the jury. Such adoptive authority relates back to the time of the original trans- action, and is deemed, in law, the same to all purposes, as if it had been given before: Lawrence v. Taylor, 5 Hill, 107-113; and see Livermore on Pr. and Agent, Vol. I, pp. 44-50 ; Railroad V. Cowell, 4 Casey, 337. * * * ELLIOTT V. SOUTH DEVON RAILWAY CO. 2 Exchequer, 725. [1848.] This was an issue directed by the Vice-Chancellor of England to try whether the South Devon Railway, in deviating from the 1 See also Knight v. Luce, 116 Mass. 586. 460 CONDUCT OP THE TRIAL. [ChAP. IV. level in passing over land of which the plaintiff was the owner and occupier, was passing through a "town," within the meaning of the 11th section of the Railway Clauses Consolidation Act, 8 and 9 Vict. Chap. 20, which enacts, that "in making the railway- it shall not be lawful for the company to deviate from the levels of the railway, as referred to the common datum line described in the section approved of by Parliament, and as marked on the same, to any extent exceeding in any place five feet, or in passing through a town, village, street, or land, continuously built upon, two feet, without the previous consent, in writing, of the owners and occupiers of the land in which such deviation is intended to be made." At the trial, before Wightman, J., at the Exeter Spring Assizes, 1848, it appeared that the plaintiff was the owner and occupier of certain fields, which, a few years ago, were unques- tionably in the country. The tovs^ of Plymouth had, however, considerably increased, and the land adjoining the plaintiff's was now built upon, so that his land was on three sides bounded by houses and streets. On the fourth side it was bounded by build- ing land, not yet built upon. The roads, for some distance beyond the plaintiff's land were lighted, paved, and watched by the commissioners acting in execution of the local act, 5 Geo. 4, Chap. 22. Although the plaintiff's land was, from its situation, very likely to be soon built upon, and was of great value as build- ing land, it was as yet used as pasture land. By the Vice-Chan- cellor's order it was admitted that the railway, in passing over the plaintiff's land, had deviated from the level, as referred to the datum line, more than two and less than five feet, without the plaintiff 's consent. The learned judge told the jury that the word "town," as used in the act, was to be understood in its ordi- nary and popular sense; and that it was for them to decide whether the plaintiff's land was in a "town," within the mean- ing of the act of Parliament; that the assessment and payment of rates under the local act was not a test. The jury found that the railway on the plaintiff's land was passing through a town, within the meaning of the act. A rule having been obtained, calling on the plaintiff to show cause why there should not be a new trial, on the ground of misdirection on the part of the learned judge in not properly explaining to the jury the meaning of the word ' ' town. " * # * Paeke, B. — There must be a new trial. The learned judge was Sec. 7.] finney v. gut. 461 certainly not bound to define the meaning of the word "town," so as to embrace every possible ease, yet he ought to have given a definition sufficient to enable the jury to decide the present question, which is, whether the railway can be considered as passing through a "town," within the meaning of the act of Parliament. It would appear that the word "town" is not to be understood in its strict legal interpretation, as a township hav- ing a church or a constable, but a place containing a number of houses congregated together — an inhabitated spot where the occupation is continuous. No railway entering the boundary of that town can be raised two feet without the consent of the persons through whose land it passes. Does, then, this railway enter the boundary of collected masses of houses? I think not. But it is a question for the jury whether this open space is con- tinuously surrounded with houses. Such a space may be part of a town, although not built upon, if there are masses of houses around it ; as, for instance, the green of Grosvenor square. Un- less, therefore, this piece of land is surrounded with houses, so that the railway, in passing the boundary of it, enters masses of inhabited houses, the case is not within the act. I do not mean to say that the open space must be surrounded with houses touch- ing each other, but only continuously surrounded with houses in the popular sense of the word ' ' continuous. ' ' There ought to be a new trial, in order that the judge may define the meaning of the term "town" in this act of Parliament. * * * Ruie absolute. FINNEY V. GUY. 189 V. S. 335. [1903.] This action was commenced in a proper court of the State of "Wisconsin to enforce the shareholders' liability under a Minne- sota statute, in a corporation of Minnesota and doing business in that state. The defendant demurred to the complaint on the ground, among others, that it did not state facts sufficient to con- stitute a cause of action. The demurrer was overruled by the trial court and judgment given for the plaintiff, which was re- versed by the Supreme Court of the state, 106 Wisconsin, 256, and the case has been brought here by plaintiff to review the judgment of reversal. 462 CONDUCT OP THE TRIAL. [ChAP. IV. The facts alleged in the complaint are in . substance these : * * * The complaint then set forth several sections of the General Statutes of the State of Minnesota of 1878, among them being sections 5905, 5906, 5907 and 5911, and it was averred that this action could be maintained by reason of such sections. They are the same as are set forth in Hale v. AUinson, 188 U. S. 56. It was then averred that decisions in the courts of the State of Minnesota had been rendered relating to the liability of stock- holders under those statutes, in corporations organized under the laws of that state, as to the proper method of enforcing such liability. The complaint then referred to some twenty different decisions in the state courts of Minnesota by titles and gave a reference to the volumes in which they were reported, and it then stated what the law of Minnesota was under those decisions and statutes, as to the liability of stockholders, and the manner in which that liability could be enforced and the effect of a judgment recovered in a state court by a creditor in his own behalf and in behalf of all others similarly situated, and it averred that a judgment such as was obtained in the Minnesota suit was conclusive upon stockholders, even though they were not parties thereto, as to all questions of indebtedness of the bank and who were its creditors, and that defendant, though not served with process in that suit, was concluded by the judgment as to her liability as shareholder, except as therein stated. It also averred that the Minnesota decisions held that after such a judg- ment had been obtained under those statutes a suit could be maintained in the courts of another jurisdiction, similar to the one before us, and the complaint ended with a prayer for judg- ment that the defendant should pay the plaintiff the sum of $3800, with interest thereon since April 28, 1897, and that A. C. Finney, one of the plaintiffs, be appointed receiver herein, to collect the amount and distribute the same pro rata among the other plaintiffs. Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. The demurrer raises the question whether the complaint states facts sufficient to constitute a cause of action. The plaintiffs eon- tend that their cause of action is based upon the decisions and judgments of the courts of the State of Minnesota, and upon the statutes of that state, and that the Wisconsin Supreme Court Sec. 7.] finney v. gut. 463 in sustaining the demurrer has thereby failed to give that full faith and credit to the laws and judgments of the State of Minne- sota and its courts which they receive in that state and which they are entitled to under the Constitution and laws of the United States, and that by reason thereof a Federal right has been denied them. They urged that, under the judgment of the American Savings & Loan Association v. Farmers' & Merchants' State Bank, which was recovered in the Minnesota court, and is referred to in the foregoing statement of facts, the defendant is concluded as to her defense to the same extent she would have been had she ap- peared and contested her liability in the Minnesota courts, and that as a consequence the Wisconsin courts are bound to give the same eifect to that judgment in their courts that it has in the courts of Minnesota; that if such effect had been awarded thatj judgment, then this action could have been maintained ; and the Wisconsin court in sustaining the demurrer denied | such effect to the judgment, which was a violation of a right founded upon the Federal Constitution. * * # After quite a full examination of the Minnesota decisions on the question, we have just decided in Hale v. Allinson, 188 U. S. 56, that a receiver appointed in Minnesota, under these same statutes, could not maintain an action outside of that state to enforce the liability of a stockholder, and it was said that the courts of Minnesota had held the same thing for many years. An examination of the decisions of the Minnesota courts shows that they had held that the remedy provided by the statutes of the state for the enforcement of stockholders' liability was a suit in equity in that state by a creditor in his own behalf and that of all other creditors, against all the stockholders of the corporation, or so many of them as could be served with process, and that it was exclusive, and no other remedy could be availed of even within the jurisdiction of the courts of Minnesota. That being the law of Minnesota, it would, of course, prevent an action outside the state, by a receiver as well as by any other plaintiff, to enforce the stockholders' liability. Hence, in the Hale-Allinson case, we held the receiver could not maintain such an action in a foreign jurisdiction and in a Federal court. * * * The remedy being exclusive, the statute must be followed, and the result is that no other action to enforce the liability can be^ availed of in another state. This would call for an affirmance 464 CONDUCT OF THE TRIAL. [ChAP. IV. of the judgment but for the claim now urged by counsel for plaintiffs, that the case of Allen v. Walsh has been overruled by subsequent cases in Minnesota, and that the law is correctly set forth in the complaint. He calls attention to the fact that this case has not gone to trial upon an issue of any question of fact, but the questions to be determined have arisen on demurrer to the complaint ; that the complaint avers as a fact that by the law of Minnesota such an action as this can be maintained in the courts of a foreign jurisdiction after a judgment has been re- covered in an action in the state court, such as is referred to in the complaint, and that the defendant by demurring admits that the law is as stated in the complaint, and therefore the court is bound to give effect to the law of Minnesota such as is set forth in that pleading. This is too broad a claim to be maintained. If the case had been on trial upon issues of fact, among them being one as to what the law of Minnesota was, and the statutes as well as the decisions above mentioned had been proved and a witness learned in the law of Minnesota had testified what such law was, as deduced by him from those statutes and decisions, his testimony would not, even though uncontradicted, conclude the court upon that issue. Although the law of a foreign juris- diction may be proved as a fact, yet the evidence of a witness stating what the law of the foreign jurisdiction is, founded upon the terms of a statute, and the decisions of the courts thereon as to its meaning and effect, is really a matter of opinion, although proved as a fact, and courts are not concluded thereby from themselves consulting and construing the statutes and decisions which have been themselves proved, or from deducing a result from their own examination of them that may differ from that of a witness upon the same matter. In other words, statutes and de- cisions having been proved or otherwise properly brought to the attention of the court, it may itself deduce from them an opinion as to what the law of the foreign jurisdiction is, without being conclusively bound by the testimony of a witness who gives his opinion as to the law, which he deduces from those very statutes and decisions. It was stated by Mr. Justice Beewee, speaking for the court in Eastern Building & Loan Association v. Williamson, 189 U. S. 122, a case just decided and where the same question in substance was before us, as follows ; * * * "No witness can conclude a court by his opinion of the con- Sec. 7.] finnet v. guy. 465 struction and meaning of statutes and decisions already in evi- dence. Laing v. Rigney, 160 U. S. 531. The duty of the court to construe and decide remains the same. ' '^ This right and duty of the courts to themselves construe the statutes and decisions are not altered because the law of the for- eign state and the various decisions of its courts are alleged to be as set forth in a pleading which is demurred to instead of being proved on a trial. In this case the statutes together with references to the de- cisions of the state courts are given in the complaint, and the pleader, by making an averment in the form of a fact, assumes to give a meaning to them such as he thinks to be correct, but the duty still remains with the courts to themselves determine from those statutes and decisions what is in truth the law of the foreign jurisdiction. The courts are not concluded by an averment of what is the law in a foreign jurisdiction, contained in a pleading which is demurred to, any more than they would be by the testimony of a witness to the same effect upon a trial; certainly not when the statute upon which the case rests is set forth and the decisions under it are also referred to as evidence of the law. The demurrer does not admit as a fact, that the con- struction (in the form of an averment of fact) which the pleader may choose to put upon those statutes or decisions is the right conclusion to be drawn from them. Notwithstanding the aver- ments in the complaint we are brought to an examination of the 1 FiEiU), C. J., in Hancock Na- is becomes one of fact. Wylie v. tional Bank v. Ellis, 172 Mass. 39: Cotter, 170 Mass. 356." "The law of Kansas was a fact to GtAntt, P. J., in Slaughter v. Ey., be proved in the present suit. 116 Mo. 269 : ' ' The fact that it was Where the evidence of foreign law necessary to prove a foreign law consists entirely of statutes or re- did not justify the admission of all ports of judicial decisions, the con- the laws of that foreign state, structions and effects of the statutes whether relevant or not to the case and decisions are usually for the on trial. When foreign laws are court alone. Bride v. Clark, 161 in evidence, it is not less the duty Mass. 130; Eeyer v. Odd Fellows' of the court to determine the law of -Fraternal Accident Association, 157 the case from them, than it is its Mass. 367; Gibson v. Manufactur- duty in declaring our own laws, ers' Ins. Co., 144 Mass. 81. Where Cobb v. Grifath & Adams Co., 87 the decisions are conflicting, or Mo. 90; Charlotte v. Chouteau, 33 where inferences of fact must be Mo. 194." drawn, the question of what the law H. T. p.— 30 466 CONDUCT OF THE TEIAL. [ChAP. IV. statutes and decisions referred to, in order to ourselves determine what the law of Minnesota is. * * * We think the law of Minnesota still remains upon this particu- lar matter as stated in the former cases, which have not been over- ruled by Hanson v. Davison. This, in effect, has been held in the Hale-AUinson case, which we have just decided. * * * Whether, aside from the Federal considerations just discussed, the Wisconsin court should have permitted this action to be main- tained, because of the principle of comity between the states, is a question exclusively for the courts of that state to decide. The right to maintain it under the facts of this case is not founded upon any provision of a Federal nature, and we cannot supervise the action of the Wisconsin court in this particular. Affirmed. REX V. FRANCKLIN. 17 Howell's State Trials, 625. [1731.] Lord Chief Justice Raymond (charging the jury) : Gentlemen of the jury, this is an information, wherein the king is plaintiff, and Mr. Francklin defendant, for printing and publishing the Country Journal or Craftsman, the 2d of Janu- ary, 1730, wherein is inserted an extract of a private letter from the Hague, reflecting on his majesty and his principal officers and ministers of state. In this information or libel, there are three things to be considered, whereof two by you the jury, and one by the court. The first thing under your consideration is, whether the defendant, Mr. Francklin, is guilty of the publica- tion of this Craftsman or not? The second is, whether the ex- pressions in that letter refer to his present majesty and his prin- cipal officers and ministers of state, and are applicable to them or not ? This is the chief thing in the information ; for if you think that these defamatory expressions are not applicable to them, then the defendant is not guilty of what is charged upon him ; but if you think that they are applicable to them, then the defendant is guilty thereof ; upon this supposition, that you find him to be the publisher of that paper. These are the two matters of fact that come under your consideration; and of which you are proper judges. But then there is a third thing, to wit, Sec. 7.] rex v. peancklin. 467 whether these defamatory expressions amount to a libel or not ? This does not belong to the office of the jury, but to the office of the court ; because it is a matter of law, and not of fact ; and of M'hieh the court are the only proper judges ; and there is redress to be had at another place, if either of the parties are not satis- fied; for we are not to invade one another's province, as is now of late a notion among some people who ought to know better ; for matters of law and matters of fact are never to be confounded. As to the first thing, whether the defendant is guilty of the pub- lication of that Craftsman which is under your consideration. And here in this and the second head I shall not be long, because things have been so often repeated, and all sorts of observations made on both sides that it is possible to be made on this occasion ; and my endeavors shall be to hinder you from running away with notions which are not right. * * * So, gentlemen, you are to consider whether or not you are satisfied with the evidence produced to prove the defendant to be the publisher of that Craftsman of the 2d of January last. The next thing which you are to consider is, whether the expressions in that Hague letter, refer to his present majesty and his principal officers and minis- ters of state, and are applicable to them as in the information or not; for when people's names are not set down at length, but pointed at by circumlocution, or pieces of words, or by initial letters, etc., the law always allows innuendos in informations, which explain and tell what the defendant meant by them ; and the law likewise allows juries to give their verdict on oath, whether they think that these dark, defamatory speeches have the same meaning as mentioned in the information or not. The counsel for the king have gone on and explained and applied these defamatory expressions exactly as in the information ; and they have given their arguments and reasons for so doing ; drawn from the several parts of that letter, which I shall not trouble you with, because they have been so often repeated in your hearing; I say, they have explained them as mentioned in the information ; that is to say, that by these defamatory expressions, are meant his present majesty and his principal officers and min- isters of state ; and indeed they must be applicable, and refer to them or to somebody else; and if they do mean them, then I must say that they are very scandalous and reflecting expressions ; because they charge them with perfidy in breaking of treaties, ruining in a manner their country, etc., as you may see at large 468 CONDUCT OP THE TRIAL. [ChAP. IV. in the letter ; and it is very evident that these treaties could not be made without the knowledge and direction of his majesty. The counsel for the defendant said, that these scandalous ex- pressions could not be understood to refer to his majesty or his ministers ; but they did not tell to whom they referred ; I should have been glad to have heard them do so; so that you are to consider of whom these defamatory expressions are meant, or to whom they are applicable, and as to the rule and manner of understanding them, you are to do it, on oath, after the same manner and way as you do privately by yourselves, taking all the parts of the letter together. I shall not repeat the several parts of it now which the king's counsel did use, to show that they were meant of his majesty and his ministers, because you are to have the letter along with you ; for it is plain, that the construc- tion of it depends on the words themselves and their connection. Gentlemen, I have been very short in summing up the evidence ; and laid aside the points of the law ; I mean, whether these de- famatory expressions amount to a libel or not ; because the court can only determine that ; and if not satisfactory to either of the parties, there is a proper redress to be had at another place, as I said before. There was one thing more mentioned by the de- fendant 's counsel, which was, that there is no room to think that letter libelous; because there could be no malice supposed by inserting it in the Craftsman, being only designed as a piece of foreign news ; and that the latter part of the letter qualifies it, by saying that the letter-writer does not take upon him to justify the truth of that report; but that will not do, for the injury is the same to the persons scandalized, whether the letter was in- serted out of malice or not; besides, there is no knowing or proving particular malice, otherwise than from the act itself; and therefore if the act imports as much, it is sufficient; nor is he to take the liberty to print what he pleases; for the liberty of the press is only a legal liberty, such as the law allows; and not a licentious liberty. Gentlemen, I tell you again, that I have designedly shortened things, because it hath been so fully again and again laid before you. But if there is any thing afterwards that you want to know, after you have considered these things, I desire you would acquaint me. So, gentlemen, if you are sen- sible, and convinced that the defendant published that Craftsman of the 2d of January last ; and that the defamatory expressions in the letter refer to the ministers of Great Britain, then you ought Sec. 7.] state v. Patterson. 469 to find the defendant guilty; but if you think otherwise, then you ought not to find him guilty. The jury found the defendant guilty of publishing the said libel. STATE V. PATTERSON. , 68Mame,473. [1878.] On exceptions from the Superior Court. Indictment under R. S., Chap. 118, § 23, for maliciously threatening to accuse the complainant, Oliver H. Briggs, of some offense with intent to extort money from him, by sending him a written communication of the following tenor : "Freeport, Sept. 31 you may if you pleas you can enclose ten doUers in an letter and cend it to Joseph Boothby Yarmouth me or els you will be en- bited next tuesday or complained of me no fool demacratt head quarters. ' ' The presiding judge stated to the jury that the construction of the written communication was a question of law for the court, and instructed them that, so far as its terms were concerned, it did constitute a threatening communication within the meaning of the statute, and that, if all other facts necessary to establish the guilt of the respondent were proved, a verdict of guilty should be rendered. The defendant alleged exceptions. Peteks, J. The respondent was indicted for sending to the complainant a threatening letter with the intent to extort money. The first question that arose at the trial was whether it was the province of the court or of the jury to interpret the letter. As a rule, both in civil and criminal cases, cases of libel to some extent excepted, writings are to be expounded by the court. "Whenever a paper can be understood from its own words, its interpretation is a question of law for the court. Nichols y. Frothingham, 45 Maine, 220; Nash v. Drisco, 51 Maine, 417; Fenderson v. Owen, 54 Maine, 372 ; State v. Gould, 62 Maine, 509. Wills, deeds and other contracts usually fall under this classifica- tion. In such cases, the meaning of the instrument, the promise it makes, the duty or obligation it imposes, is a question of law for the court. 470 CONDUCT OP THE TRIAL. [ChAP. IV. There is, however, a large class of writings where the meaning of particular words or phrases or characters or abbreviations must be shown by evidence outside the writing, and there may be extrinsic circumstances of one kind or another affecting its interpretation, which may be shown by oral testimony. Here the same rule virtually applies as before. It is often but inaccu- rately said, in cases of the kind named, that the writing itself is to be passed upon and construed by the jury. Strictly, that is not so. They find what the oral testimony shows, and the court declares what the writing means in the light of the facts found by the jury. The facts may be found by a special verdict, and then the court interpret the writing in view of such finding, or the case may go to the jury with hypothetical instructions from the court, or to render a verdict one way if certain facts are found, and another way if the facts are found differently. The court may first inform the jury as to the law, or the jury may first inform the court as to the facts, as may be most prac- ticable. Hutchison v. Bowker, 5 Mees. & W. 535, 540 ; Smith v. Faulkner, 12 Gray, 251, 255; Putnam v. Bond, 100 Mass. 58; Cunningham v. Washburn, 119 Mass. 224; Powers v. Gary, 64 Maine, 9, 21. Of course there are exceptions to the rule. It frequently hap- pens that a writing is introduced merely as a fact or circumstance tending to prove some other fact. In such case it is generally but a link in a chain of evidence, the accompanying evidence being mostly or altogether oral. "When that occurs the jury have to pass upon the whole transaction, of which the writing is but a part. The question then is, not so much what the document means, but what inference shall be drawn from its meaning, and what effect it shall have towards proving the point at issue. The writing and all the concomitant evidence go to the jury together. Here the duty of the court is comparatively unim- portant. It may pronounce what meaning the writing is or is not capable of, and whether it is or not relevant to the issue ; still the value and effect of such evidence is a question of fact for the jury. The opinion in Barreda v. Silsbee, 21 How. 146, 147, speaks of such a writing as evidence "collaterally introduced." Other cases denominate it "indirect evidence." The case of Miller v. Fichthorn, 31 Pa. St. 256, defines it thus: "A writing as evidence of a relation or right, must be direct or indirect evidence of it. Statutes, ordinances, wills, conveyances and Sec. 7.] state v. patteeson. 471 other contracts which, per se, declare the right or relation, are direct evidence of it. Letters, contracts inter alios, or de aliis rebus, or any other writings demonstrative of facts relevant to the matter in controversy and tending to show its true character, are indirect evidence of it. The indirect written evidence of a relation is usually accompanied by oral testimony aiding or rebutting the inference desired to be drawn from it, and all such usually go to the jury together, as evidence on the disputed question; and this was the meaning of Chief Justice Gibson (1 Pa. St. R. 386), when he said that 'an admixture of parol with written evidence draws the whole to the jury.' " The following cases are pertinent hereto: Primm v. Hazen, 27 Mo. 211; Heft V. McGill, 3 Pa. St. 257; Reynolds v. Richards, 14 Pa. St. 208 ; lasigi v. Brown, 17 How. 183 ; Bolckow v. Seymour, 17 C. B. (N. S.), 107. The rule may be subject to other qualification. It is some- times difficult to determine, in the construction of papers, where the office of the court ends and that of the jury begins. But, in view of the rule or any possible qualification, we think the judge at nisi prius was right in undertaking, as matter of law, to give an interpretation of the letter relied on by the govern- ment as being a threatening communication. His course is sus- tained by direct authorities. Regina v. Smith, 2 Gar. & Kir. 882 ; Rex v. Boucher, 4 Car. & P. 562 ; Rex v. Pickford, Id. 227. The other question is whether the judge interpreted the letter correctly or not. He directed the jury to regard the letter as, per se, a threatening communication. He does not say what the crime or offense indicated in the letter was. He merely in- forms the jury that an accusation of some person for some crime or offense was intended. The letter, upon its face, can bear no other interpretation. What extrinsic and independent facts there were to modify the prima facie character of the communi- cation, does not appear in the exceptions. All opportunities of explanation, it is presumed, were allowed to the state and also to the accused. Parol evidence was admissible for the purpose. Arehbald Grim. Prac. and Plead. Title: Threatening Letters, p. 325 ; Goodrich v. Davis, 11 Met. 473 ; Shattuck v. Allen, 4 Gray, 540, 546; White v. Sayward, 33 Maine, 322. Threatening let- ters are likely to be written with as much disguise and artifice as possible, and be sufficient to accomplish the purpose in- tended, requiring evidence aliunde to explain them. 472 CONDUCT OF THE TRIAL. [ChAP. IV. It was not necessary to submit to the jury to ascertain what the term "inbited" was intended for; it not appearing that any extraneous facts were offered for that purpose. If its intended meaning could be best determined by external facts and circum- stances, then the question was one of fact for the jury. If ascertainable from an inspection of the whole paper itself, in such case it was a question of law for the court. It is obvious enough from the context that an indictment was the thing threat- ened. The letter "d" in the word was deficiently made. Fen- derson v. Owen, supra; Coolbroth v. Purinton, 29 Maine, 469; Green v. Walker, 37 Maine, 25 ; Gallagher v. Black, 44 Maine, 99. Exceptions overruled. PARMITER V. COUPLAND. 6 Meeson & Welshij, 105. [1840.] This was an action on the case for a series of libels published of the plaintiff, the late mayor of the borough of Winchester, in the Hampshire Advertiser newspaper, between the 17th of November, 1838, and the 2d of March, 1839, imputing to him partial and corrupt conduct, and ignorance of his duties, as mayor and justice of the peace for the borough. The defendants pleaded not guilty. At the trial before Coleridge, J., at the last Winchester Assizes, the learned judge, in the course of his sum- ming up, stated to the jury that there was a difference with regard to censures on public and on private persons; that the character of persons acting in a public capacity was to a certain extent public property, and their conduct might be more freely commented on than that of other persons; and having told the jury what, in point of law, constituted a libel, he left it to them to say whether the publications in question were calculated to be injurious to the character of the plaintiff. The jury having found a verdict for the defendants. Brie, in last Michaelmas term, obtained a rule nisi for a new trial, on the grounds (amongst others), 1st, that the learned judge ought to have directed the jury that, in point of law, the publications complained of were libels on the plaintiff; and, 2d, that it was a misdirection to state to them any distinction as regarded publications relating to public and to private in- dividuals. In this term. Sec. 7.] parmitee v. coupdand. 473 Crowder appeared to show cause, but the court, after the report of the learned judge had been read, called upon Brie and Butt to support the rule. The learned judge misdirected the jury, is not stating to them, as matter of law, that these publications amounted to libels. When words spoken are com- plained of as defamatory, the only questions for the jury are, (supposing them to be proved as laid), whether they apply to the plaintiff, and whether the meaning ascribed to them in the innuendoes is made out by the evidence: and a different prin- ciple cannot be applied to oral and to written slander. The words here complained of were clearly actionable if spoken ; and the judge would in such ease have been bound to tell the jury, that if they were meant in their ordinary sense, the plaintiff was entitled to recover. It has been often entertained as a question of law by a Court of Error, whether a particular writing amounts to a libel. In Wright v. Clement, 3 B. & Aid. 503, a declaration stating that the defendant published a libel, containing false and scandalous matters concerning the plaintiff, in substance as fol- lows, was held bad in arrest of judgment, on the ground that the court must judge whether the words set out constituted a ground of action or not. (Alderson, B. — That is for the benefit of the defendant ; the court are to see whether, in any reasonable sense, the words may be innocent.) If the court are so to judge for the defendant, whether it be a libel or not, so must they also for the plaintiff. (Alderson, B. — That does not follow.) Hol- royd, J., there says: "It is clear, that when it can be shown distinctly what the instrument is upon which the whole charge depends, that instrument must be shown to the court, in order that they may form their judgment." (Alderson, B., referred to Chalmers v. Payne, 3 T. R. 428, n.) Where the libel is in a foreign language, if a translation of it only be set forth, the judgment will be arrested: Zenobia v. Axtel, 6 T. R. 162. If the defendant demurs to the declaration, then it clearly becomes a question of law. (Alderson, B. — Then he admits a malicious publication. Parke, B. — The practice used to be as you say before Mr. Fox's Act, 32 Geo. 3, Chap. 60.) That act is ex- pressly confined to criminal cases. (Parke, B. — It is true; but it has been the constant practice, in recent times, for the judge to define what is a libel, and then to leave it to the jury, first, whether the writing complained of was published by the de- fendant; secondly, whether it fell within the definition of the 474 CONDUCT OF THE TRIAL. [ChAP. IV. offense.) Lord Mansfield distinctly laid it down, in the ease of Rex V. Dean of St. Asaph, 2 C. M. & R. 156, as a general rule applicable to all cases where, by the form of the pleadings, the questions of law and fact can be severed, that the jury have no jurisdiction to decide upon the law. Where, indeed, the words may be controlled by the context, or are capable of more than one meaning, the question must be left to the jury; but here there is nothing whatever to throw any ambiguity upon the meaning of these paragraphs. (Parke, B. — In criminal cases, the judge is to define the crime, and the jury are to find whether the party has committed that offense. Mr. Fox's Act made it the same in eases of libel, the practice having been otherwise before.) In the next place, it was a misdirection to state to the jury that there was a distinction as to libels on a person in a public capacity. No man has a right to impute to another, whether filling a public capacity or not, injustice or corruption. Crowder, contra, was not called on to argue the above points. Parke, B. — The verdict is unquestionably wrong, and there ought to be a new trial, but on the ground of its being a wrong verdict only. I think there was no misdirection on the part of the learned judge. One of the grounds upon which this rule was obtained, was, that the learned judge ought to have told the jury that the terms of these papers were libelous, and not to have left that as a question of fact for them to determine. But it has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to give a legal defini- tion of the offense, and then to leave it to the jury to say, whether the facts necessary to constitute that offense are proved to their satisfaction; and that, whether the libel is the subject of a criminal prosecution, or civil action. A publication, with- out justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel. Whether the particular publication, the subject of inquiry, is of that character, and would be likely to produce that effect, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a question of fact. The judge, as a matter of advice to them in deciding that question, might have given his own opinion as to the nature of the publication, but was not bound to do so as a matter of law. Mr. Pox's Libel Bill was a declaratory act, and put prosecutions for libel on the same footing as other criminal cases. Sec. 7.] PARMITER V. COUPLAND. 475 I also think that there was no misdirection in the other part of the learned judge's summing up, to which an objection was raised. There is a difference between publications relating to public and private individuals. Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander ; but any imputation of wicked or corrupt motives is unquestionably libelous; and such appears to be the nature of the publications here. I do not find that the learned judge stated otherwise : we cannot therefore grant a new trial, as for a misdirection. Alderson, B. — I entirely concur. The first question is, whether the learned judge ought to have laid it down positively, that if the publications were proved, and the words were used in their ordinary sense, the jury must find that they were libels. I think it would not be correct so to do; but that he ought — having defined what is a libel — to refer to the jury the consideration of the particular publication, whether falling within that definition or not. I think that if he were to take it upon himself to say that it was a libel, he would be wrong in doing so.^ Levi V. Milne, 4 Bingham, 195, the court held the publication defama- tory and enforced its opinion on the jury. In a number of the older cases the meaning charged in the innuendo was submitted to the jury, though in what terms does not ap- pear. See B. V. Shipley, 4 Douglas, 73; Oldham v. Peake, 2 Wm. Black- stone, 959; Roberts v. Camden, 9 East, 93. See Chief Justice Shaw's 1 See same practice in Broome v. Gasden, 1 C. B. 728 (1845), where a verdict for defendant was ap- proved. In Haire v. Wilson, 4 Man. & G. 605 (1829), the court approved a direction to find the publication a libel. Compare Sharp v. Larson, 67 Minn. 428. In slander, see Sim- mons V. Mitchell, L. E. 6 App. Cases, 156. For reference to the practice in the State Trials, see 4 Doug. loc. 101. It is difficult, if not impossible, to determine the precise way in which such questions were dealt with under the older practice be- cause the cases are not fully re- ported. Lord Mansfield called at- tention to this fact in the Dean of St. Asaph's case, 3 Term. Eep. 428n. In several of ,the State Trials for seditious libels nothing appears to have been left to the jury except the fact of publication. In some of the civil cases, e. g. explanation of the older practice in Com. v. Anthes, 5 Gray, 185. In a very large number of cases, after verdict for plaintiff, the judgment was arrested because the court was of the opinion that the language did not, or could not, bear the meaMng imputed by the innuendo, as in Hearne v. Stowell, 12 Adol. & Ellis, 719. As to this last point, see the various opinions in Capitol & Coun- ties Bank v. Henty, L. R. 7 App. Cases, 741. 476 CONDUCT OF THE TRIAL. [ChAP. IV. As to the other point, there certainly is a material distinction between a publication relating to a public and a private person whether they be libels. That criticism may reasonably be ap- plied to a public man in a public capacity, which might not be applied to a private individual. The same thing might be no libel on me, which might be a very grievous and injurious libel on another. There may be, and I think in this ease there was, no real difference between the two cases, but that this was a libel on the plaintiff in whatever capacity. But I think the learned judge right in the general observation, although I might differ with him in its application to the particular case. Probably, in- deed, he applied it only to the question as to the amount of damages. It is, however, sufficient to say, that it does not ap- pear to me to be a misdirection. Gumey, B., concurred. Rule absolute, on payment of costs. TWOMBLY V. MONROE. 136 Massachusetts, 464. [1883.] Tort in four counts. * * * The fourth count alleged that the defendant caused to be published in a newspaper in Haver- hill a false and malicious libel concerning the plaintiff, a copy of which was as follows: "The Locust Street Brutality ex- plained. The woman came to my house, Sept. 16, 1882, engaged a suite of rooms for $1.50 a week.. She left April 11, 1883. She paid $34.50. About three months ago she decided not to come down stairs at all ; consequently she was a great deal of trouble. I told her six weeks ago, that if she would leave the 1st of April, and give me $6, I would give her a receipt in full. She wouldn 't do it. She kept her door locked, and would not give any satis- faction. I sought advice, and did as I was told. She is not a stranger here, — she never made friends. Can find out all about her by taking a little trouble. The Landlord. ' ' Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows ; * * * The plaintiff then introduced evidence tending to prove that the defendant caused to be published in the Haverhill Daily Sec. 7.] twombly v. monroe. 477 Bulletin, a newspaper published in Haverhill, the article alleged to be a libel in the fourth count; and that it was published of and concerning the plaintiff, and referred to her. No damage was offered to be shown except such as would be implied from the fact of such a publication. The judge ruled, as matter of law, that the publication was not in itself libelous or actionable; and directed the jury to return a verdict for the defendant. The jury returned a verdict for the defendant on all the counts; and the plaintiff alleged exceptions. Field, j. * * * The fourth count is for a libel. The presiding justice ruled, as matter of law, that the publication was not libelous or actionable. This count contains no statement of extrinsic facts, and no colloquium, except that the publication was concerning the plaintiff, to show that the words published were used or capable of being understood in any other than their ordinary sense ; and the question is, whether the words pub- lished, in their ordinary import, have any tendency to bring the plaintiff into public hatred, contempt, or ridicule. Pub. Sts. Chap. 167, § 94, Forms of Declarations in Slander and Libel; Commonwealth v. Child, 13 Pick. 198 ; Carter v. Andrews, 16 Pick. 1 ; Chenery v. Goodrich, 98 Mass. 224 ; York v. Johnson, 116 Mass. 482. If the words published are fairly capable of two meanings, one harmless and the other defamatory, it is a question for the jury in what sense readers may have understood them. See Simmons v. Mitchell, 6 App. Cas. 156. If the declaration is de- murred to, the court must determine whether it sets out a good cause of action. Goodrich v. Davis, 11 Met. 473; Chenery v. Goodrich, uM supra; Homer v. Engelhardt, 117 Mass. 539. In Shattuck V. Allen, 4 Gray, 540, "after the cause was opened to the jury, it being objected that the publication was not libelous, and the court inclining to that opinion, it was withdrawn from the jury, and submitted to the whole court." The court said, that the point whether the question of libel or no libel should have been sent to the jury was not made at the trial, or re- served in the report, and, after commenting upon the law and practice in this respect, entered judgment for the defendant. For the law in criminal prosecutions for a libel, see Common- wealth V. Anthes, 5 Gray, 185, 212, et seq., and the cases cited in the dissenting opinion of Mr. Justice Thomas. 478 CONDUCT OF THE TRIAL. [ChAP. IV. In England, by the St. of 32 Geo. Ill, Chap. 60 (1792), it was provided that, on the trial of an indictment or information for a libel, the jury may give a general verdict, and shall not be re- quired or directed by the court to find the defendant guilty merely on proof of publication, and ' ' of the sense ascribed to the same in such indictment or information ; ' ' that the presiding judge may give directions to the jury as in other criminal cases, and the jury may in their discretion find a special verdict ; and the defendant, if found guilty, may move in arrest of judgment. This act, as is well known, was designed to protect defendants in criminal prosecutions for a libel from the power of the judges ; but it has undoubtedly had some effect upon the proceedings in civil actions. In civil proceedings for a libel in England, it is said that "it is only when the judge is satisfied that the publi- cation cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in with- drawing the question from their cognizance." Kelly, C. B., in Cox V. Lee, L. R. 4 Ex. 284, 288. Channell, B., in the same ease, seems to have been of opinion that in every civil ease, at the trial, the question of libel or no libel must be submitted to the jury ; but this is not the English law. The existing law of Eng- land is not stated with entire accuracy by Kelly, C. B., as is shown by Mulligan v. Cole, L. R. 10 Q. B. 549 ; Hart v. Wall, 2 ■C. P. D. 146; Hunt v. Goodlake, 43 L. J. (N. S.) C. P. 54; and Capital & Counties Bank v. Henty, 5 C. P. D. 514; S. C. 7 App. Cas. 741. We are satisfied with the rule, that, at the trial of civil actions for a libel, it is only when the court can say that the publication is not reasonably capable of any defamatory meaning, and can- not reasonably be understood in any defamatory sense, that the court can rule, aS matter of law, that the publication is not libelous, and withdraw the case from the jury, or order a verdict for the defendant.^ We cannot say that the publication in the case at bar does not impute to the plaintiff an intention to keep possession with- 1 Compare Negley v. Farrow, 60 fact in suits and prosecutions for Md. 158. When the question arises libel, the court can not direct a on demurrer, see McGinnis v. Knapp, verdict for the plaintiff. Heller v. 109 Mo. 131. Under the constitu- Pub. Co., 153 Mo. 205; the jury can tional provision in Missouri making not determine the law generally, the jury the judges of both law and but are limited to the question of Sec. 7.] morgan v. halbbrstadt. 479 out paying rent; and that the words, "She is not a stranger here, — she never made friends. Can find out all about her by taking a little trouble," — do not convey an implication or in- sinuation that the plaintiff is considered unfit for friendly inter- course by her neighbors, and do not thus tend to expose her to obloquy; if so, the publication may be libelous. We think the presiding justice erred in ruling, as matter of law, that the pub- lication was not libelous, and in not submitting the question to the jury. Exceptions sustained. MORGAN V. HALBERSTADT. 60 Federal Sep. 592. [C. C. A. 1894.] In Error to the Circuit Court of the United States for the Southern District of New York. This was an action by Sigismundo E. Halberstadt against Henry A. Morgan, as president of the New York Times, for libel. There was a verdict for plaintiff for $15,000 damages, and judg- ment thereon, and defendant brings error. Lacombe, Circuit Judge. The complainant sets out four causes of action, based on separate articles, which appeared in the de- fendant's newspaper on September 5, September 30, October 10, and November 1, 1891, respectively. The first of these is as follows : ' ' This is the situation in the Beers ' Mutual Admiration Society at Broadway and Leonard street. Everything is done to avoid publicity and to screen the truth. Not one of the twenty men composing the board of trustees, save those two or three who hold executive offices, knew of the Merzbacher defalcation until the Times exposed it. Not one of these men — these alleged guard- ians of trust funds — knows that Halberstadt, Beers' Mexican agent, is short in his accounts $28,000 ; and yet this same Halber- stadt, while standing in the barroom of the Hoffman House, early last March, surrounded by such men as Merzbacher and Dinkel- whether the publication is libelous. ley v. Steele, 159 Mo. 299; or be- Arnold v. Jewett, 125 Mo. 241; the cause the publication is not action- court may direct a verdict for de- able, Ukman v. Daily Record, 189 fendant in case of privilege, Fin- Mo. 378. 480 CONDUCT OF THE TRIAL. [ChAP. IV. spiel, boasted of the manner in which he was helping himself to the company's funds." The second is as follows : ' ' The policy of the New York Life with reference to its default- ing agents in Spanish America furnishes another explanation of the distrust with which the company has long been regarded by the policy holders in Rio. The career of John Davis, for instance, is familiar to everybody in the tropics who takes an interest in insurance matters. Davis, it will be remembered, handled a business of $9,000,000 a year in Mexico. He led a fast life, and when he disappeared one day his accounts were found to be short $30,000. No attempt was made to arrest him. The career of the two agents who immediately preceded Davis is equally notorious in the tropics. These agents, or one of them at least, owed his appointment to the defaulter Merzbacher. Their short- age was found to be $60,000. Neither of them was arrested. The case of the intemperate German agent, who was found to be short in his accounts $12,000, in Chile, and who was subsequently transferred to Mexico, is another familiar story. This agent was not only not punished, but he was transferred to another agency. Then came the defaulter Merzbacher, with a shortage of $700,000 standing opposite his name. The news of his de- falcation was received in Brazil with astonishment." * * * 1. Plaintiff in error assigns error in the instructions to the jury, in that the circuit judge charged as follows: ' ' The articles in the New York Times are charged in the com- plaint to be each and every one libelous. The explanation (or, as it is called in legal phrase, the innuendo) which is given in the complaint of the meaning of the articles represents that the articles were libelous. In my opinion, gentlemen, each article was in fact libelous. ' ' To which charge defendant duly excepted. The very authorities cited by the plaintiff in error abundantly sustain this part of the charge. They hold that the language used must be given its ordinary meaning ; that the test is whether, in the mind of an intelligent man, the language naturally im- ports a criminal or disgraceful charge; that the language is to be understood by the court in the sense in which the world gen- erally would understand it, giving to the words their ordinary meaning; that the language is to be understood in the ordinary and most natural sense ; and that, when the writing complained Sec. 7.] morgan v. halberstadt. 481 of is plain and unambiguous, the question in a civil action, whether it is a libel or not is a question of law. Hayes v. Ball, 72 N. Y. 420 ; More v. Bennett, 48 N. Y. 472 ; Williams v. Godkin, 5 Daly, 499 ; Weed v. Poster, 11 Barb. 203 ; Snyder v. Andrews, 6 Barb. 43 — to which list of authorities may be added Rue v. Mitchell, 2 Dall. 58, holding that "the sense in which words are received by the world is the sense which courts of justice ought to ascribe to them" on thd trial of actions such as this. Plaintiff in error apparently concedes upon his brief that the court cor- rectly construed the language of the second and fourth articles, but contends that the first and third were ambiguous, and should have been left to the jury. The contention is frivolous. No in- telligent man reading these articles could fail to understand that the author of the first one charged an agent through whose hands moneys of a corporation passed, not only with being short in his accounts $28,000, but ako with openly boasting of the manner in which he was helping himself to the company's funds. Nor could the intelligent reader fail to understand that the third article charged that Halberstadt had been given unlimited op- portunities to swindle and deceive the policy holders, and had availed himself of such opportunities. If these excerpts do not charge the crime of embezzlement, they do certainly charge dis- graceful conduct, exposing the party assailed to odium and con- tempt. And there is no ambiguity about the language used.^ Defendant's counsel asked the court to charge that the words in the first article, ' ' Halberstadt, Beers ' Mexican agent, is short in his accounts," do not necessarily impute dishonesty. The court charged that "these simple words do not necessarily and of themselves, without anything else in the case, impute dishon- esty;" but added that "the entire article, as set fotth in that clause of the complaint, is libelous." This was all defendant was entitled to, for the article must be considered as a whole; and if, as a whole, it is libelous, the circumstance that it contains some innocuous statements will not relieve defendant from re- sponsibility for its publication. The exceptions to this part of the charge are therefore unsound. * 1 See also Smith v. Sun Printing to the plaintiff is normally a ques- Assn., 55 Fed. 240. tion for the jury, BaU v. Evening Whether the publication referred American, 237 111. 592. H. T. p.— 31 482 CONDUCT OF THE TRIAL. [ChAP. IV. CAPITAL AND COUNTIES BANK v. HENTY. L. B. 7 Appeal Cases, 741. [1882.], This is an action of libel, the issues in which have been tried before the Lord Chief Justice and a jury ; the jury disagreed and there was no verdict ; before the case could be set down again the defendants applied to the Common Pleas Division to enter judgment for them in accordance with Order XL, Rule 10, of 36 & 37 Vict. Chap. 66, upon the ground that the court had before it all the materials necessary for finally determining the matters in dispute without the verdict of a jury. The Common Pleas Division refused the application, which has, however, been ac- ceded to, and judgment entered for the defendants, by the Court of Appeal. It is from that judgment that the present appeal is made.^ * # * i Lord Blackburn. My Lords, the plaintiffs' claim is thus stated: "1. The plaintiffs are bankers, and the defendants are brewers. 2. The defendants falsely and maliciously wrote and published of the plaintiffs the letter following: 'Messrs. Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Coun- ties Bank (late the Hampshire and North Wilts). Westgate, Chichester, 2d December, 1878.' Meaning thereby that the plain- tiffs were not to be relied upon to meet the cheques drawn on them, and that their position was such that they were not to be trusted to cash the cheques of their customers. "^ * # # On the trial evidence was given on both sides, and on the proof being completed the case was left to the jury, who did not agree, and were discharged. The plaintiffs desire that the case should go for trial before another jury. The defendants' contention is, that they are entitled to judgment on the ground that, if the jury had found in favor of the plaintiffs every circumstance relating to the publication which the evidence could prove, and even though the jury had found that, in their opinion, the letter was libelous, the court ought to come to the conclusion that the letter published under those circumstances was no libel, and acting on 1 statement by Lord Penzance. 2 The evidence showed that the On account of the great length of letter was written and published as this case his dissenting opinion a result of a business dispute be- has been omitted. tween the parties. Sec. 7.] capital and counties bank v. henty. 483 its own conclusion give judgment for the defendants, not setting that verdict aside as not satisfactory, but letting it stand and giving judgment for the defendants, notwithstanding that ver- dict. If this is right, it follows that the case ought not to be sent to another jury. The decision of the cause depends, first, on the question what is the province of the court in an action for libel, and whether, where the writing is such that opinions might differ as to whether it is a libel or not, the court can give judgment for the defendant, on the ground that, though the jury have found that in their opinion the writing is a libel, the court do not think it made out to be a libel ; that is a question of great public interest ; secondly, whether, supposing that this can be done, the state of the evi- dence in this case as to the publication is such that the court ought to come to the conclusion that this is no libel. This is of importance to the parties, but except in so far as it may illustrate the meaning of the first general proposition, it is not of general importance. I have had and still have very great difficulty in making up my mind on this second branch of the case. I will first state my opinion on the first question. A libel for which an action will lie, is defined to be a written statement published without lawful justification, or excuse, cal- culated to convey to those to whom it is published an imputation on the plaintiffs, injurious to them in their trade, or holding them up to hatred, contempt, or ridicule. It must be shown by evidence that there was a writing, and that it was published. I shall afterwards say something as to what publications are privi- leged, so as to afford a lawful justification or excuse for the jiub- lication, though calculated to convey a libelous imputation. But, independently of all questions as to privilege, the manner of the publication, and the things relative to which the words are pub- lished, and which the person publishing knew, or ought to have known, would influence those to whom it was published in putting a meaning on the words, are all material in determining whether the writing is calculated to convey a libelous imputation. There are no words so plain that they may not be published with refer- ence to such circumstances, and to such persons knowing these circumstances, as to convey a meaning very different from that which would be understood from the same words used under different circumstances. I think that from the earliest times it has, by the law of Eng- 484 CONDUCT OF THE TRIAL. [ChAP. IV. land, been the province of the court to say whether words pub- lished in writing were a libel or not; and in order that a court of error might have before it the materials for enabling it to say whether the decision of the court below was right or not, the plaintiff was, by the old rules of pleading, required to place all those materials, on which he relied, upon the record. The words themselves must have been set out in the declaration or in- dictment, in order that the court might be able to judge whether they were a libel or not. And this still remains the law (see Bradlaugh v. The Queen, 3 Q. B. D. 607; Harris v. Warre, 4 C. P. D. 125). In construing the words to see whether they are a libel, the court is, where nothing is alleged to give them an extended sense, to put that meaning on them which the words would be under- stood by ordinary persons to bear, and say whether the words so understood are calculated to convey an injurious imputation. The question is not whether the defendant intended to convey that imputation; for if he, without excuse or justification, did what he knew or ought to have known was calculated to injure the plaijitiff, he must (at least civilly) be responsible for the con- sequences, though his object might have been to injure another person than the plaintiff, or though he may have written in levity only. As was said in the opinion of the judges delivered in the House of Lords during the discussion of Fox 's Bill, I think quite justly, no one can cast about firebrands and death, and then escape from being responsible by saying he was in sport. If there were circumstances relating to the publication which it was alleged caused the words to bear a more extended sense than they would otherwise do, the law was that those must be stated on the record, in order to enable the court to judge whether the words understood with reference to those circumstances bore that more extended sense, or else those circumstances could not be looked at in favor of the plaintiff. Great nicety was required in setting out those circumstances, and the rule of pleading has been altered in that respect by the Common Law Procedure Act, 1852, and the Judicature Act; but the law which gave rise to the old mode of pleading has not been altered by those acts. I shall say more as to the effect of this change in the mode of pleading afterwards. It never was disputed that there was much which could only be decided by the jury. Whether the words as published bore the meaning alleged where there was an in- Sec. 7.] capital and counties bank v. henty. 485 nuendo, or any libelous imputation where there was no innuendo, was a question which the defendant could raise on the general issue, and the jury must decide that question when raised. But there were a series of decisions, the last and most im- portant of which was the famous case of the Dean of St. Asaph. The fullest and best report of that case is that prepared by Lord Glenbervie, and published under the name of R. v. Shipley, 4 Doug. 73. The headnote, I think very accurately, states what was decided by the majority of the court. ' ' On the trial of an indict- ment for a libel the only questions for the jury are the fact of publication, and the truth of the innuendoes. The question of libel or no libel is necessarily a question of law for the sole con- sideration of the court out of which the record comes, and on which the judge at the trial is not called upon to give his opinion to the jury." Lord Mansfield laid it down that "by the con- stitution the jury ought not to decide the question of law whether such a writing, of such a meaning, published without a lawful excuse, be criminal. They cannot decide it against the defend- ant, because after verdict it remains open upon the record; therefore it is the duty of the judge to advise the jury to separate the question of fact from the question of law ; and as they ought not to decide the law, and the question remains entire upon the record, the judge is not called upon necessarily to tell them his opinion. It is almost peculiar to the form of prosecution for a libel that the question of law remains entirely for the court upon the record, and that the jury cannot decide it against the defendant ; so that a general verdict that the defendant is guilty is equivalent to a special verdict in other cases. It finds all which belongs to the jury to find, and finds nothing as to the question of law. Therefore when a jury have been satisfied as to every fact within their province to find, they have been advised to find the defendant guilty, and in that shape they take the opinion of the court upon the law." (4 Doug. 164, 165.) * * * It seems to me clear that whilst Lord Mansfield held that the question of libel or no libel was one exclusively for the court, Willes, J., held that it was also a question for the jury ; but he did not hold it to be a question exclusively for the jury. On the contrary, whilst holding that if the jury found the defendant not guilty it was conclusive in his favor, he expressly held that after a verdict of guilty it still was competent for the defendant to take the opinion of the court as to whether the publication was 486 CONDUCT OF THE TRIAL. [ChAP. IV. libelous or not. He says (p. 176), "If it" (the tract which the dean had published) "contains nothing but what Lord Somers would have approved, and the Convention Parliament have war- ranted" (which is what the dean had asserted in an advertise- ment) "then the publication is harmless and inoffensive; but if it tends to excite the people to take arms, to alter the estab- lished representation of this country without the consent of Parliament, it may not only be seditious but nearly treasonable. I give no opinion upon this head, as this will be a proper subject of discussion if a motion is made in arrest of judgment." A motion was made in arrest of judgment, and the judgment was arrested. I have never seen any report of the grounds on which the judgment was arrested. It is no longer material whether Lord Mansfield or Willes, J., was right in his view of the law as it stood in 1784, for by 32 Geo. 3, c. 60, it is enacted by the first section what the law shall be in future. The legislature has adopted almost the words and quite the substance of that part of Willes', J., judgment which I have first quoted ; and from that time, A. D. 1792, there can be no doubt that a defendant cannot be convicted of libel unless the jury find that the tendency of the publication was libelous. But the legislature, passing an enactment in favor of defendants, had no intention to put them in a worse position than before, and to make the verdict of a jury conclusive against the defendants. Nor did they enact that the judge might not in this, as in other criminal cases, direct the jury to acquit because he thought that the ease had failed in law; it would, I think, have been very injudicious to do so, for jurors are sometimes excited against defendants, though more commonly they are ex- cited in their favor. And .the legislature by the fourth section provided that the defendant should still, though found guilty by the jury, have the power to take the opinion of the court on the question of law, by moving in arrest of judgment as before that act. The case of R. v. Shipley (4 Doug. 73) was a criminal proceed- ing at the instance of the crown, and 32 Geo. 3, c. 60, is in terms confined to such proceedings. But though no doubt the court has more power to set aside verdicts in civil cases, there is no reason why the functions of the court and jury should be different in civil proceedings for a libel and in criminal proceedings for a libel. And accordingly it has been for some years generally Sec. 7.] capital and counties bank v. henty. 487 thought that the law, in civil actions for libel, was the same as it had been expressly enacted that it was to be in criminal pro- ceedings for libel. It certainly had always been my impression that there was a difference between the position of the prosecutor, or plaintiff, and that of the defendant. The onus always was on the prose- cutor or plaintiff to show that the words conveyed the libelous imputation, and if he failed to satisfy that onus, whether he had done so or not being a question for the court, the defendant al- ways was entitled to go free. Since Fox's act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to convey the libelous imputation. If the defendant can get either the court or the jury to be in his favor, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the court and the jury to decide for him. Now it seems to me that when the court come to decide whether a particular set of words published under particular circum- stances are or are not libelous, they have to decide a very different question from that which they have to decide when determining whether another tribunal, whether a jury or another set of judges might, not unreasonably, hold such words to be libelous. In fact, whenever a verdict has passed against a defendant in a case of libel, and judgment has been given in the court below, those who bring their writ of error on the ground that there was no libel, assert that both the jury and the court below have gone wrong; but they are not called upon to say that the words were incapable of conveying the libelous imputation; it is enough if they can make out, to the satisfaction of the court in error, that the onus of showing that they do convey such an imputation is not satis- fied ; and there are numerous cases in which, after a verdict for the plaintiff and judgment for him, that judgment has been set aside in error. It was argued by the appellants' counsel at your lordships' bar that, if the words were capable at all of conveying the libelous imputation, the plaintiff had a right to have the question left to the jury. I asked for authorities for the proposition laid down by the plaintiffs' counsel in addition to the expressions used by Geove, J., and Denman, J., which certainly look as if those learned judges took that view. Two, and only two, authori- ties were produced. Some expressions used by Wilde, C. J., 488 CONDUCT OF THE TRIAL. [Cl-IAP. IV. in delivering the judgment of the Exchequer Chamber in Sturt v. Blagg (10 Q. B. 908) were cited, but they, I think, do not bear the meaning supposed. No question of this kind was before the court. * * * The other ease relied on as an authority was Hart v. Wall (2 C. P. D. 146), where the Common Pleas, consisting of Lord Coleridge and Lindley, J., set aside a nonsuit entered by Archibald, J., after consulting Quain, j. * * * And it may be that it was thought not only that it was for the .iury to find the meaning (which Lord Mansfield admitted), and nlso that the jury were not bound to find for the plaintiff, what- ever the court might think, unless the jury thought the publication such that the meaning was calculated to convey a libelous impu- tation — which since Fox's act, if not before, I think is the law — but also that if the jury found those questions for the plaintiff it was conclusive on the court, unless they could see that the words were incapable of conveying such an imputation ; and if such was the decision in Hart v. Wall it is an authority for the argument of the plaintiffs' counsel, and as far as I know the only one. And I think there is authority against it. * * * I may observe here that I agree with what was argued at the bar, that Fisher v. Clement (10 B. & C. 472) shows that the real question was not what was the intention with which the libel was published, but what was the tendency of the libel as pub- lished ; and consequently that Abbott, C. J., if correctly reported, made the same verbal slip in Goldstein v. Foss (6 B. & C. 154), which he afterwards, as Lord Tentekden, made in Fisher v. Clement. But subject to this slight correction, I think Abbott, C. J., here states not only that it was a question for the court whether the publication was shown to be libelous, but correctly states the principle on which the court is to proceed, viz., that unless the plaintiff has so far satisfied the onus which lies on him to show it to be a libel that the court can, with sufficient cer- tainty, say that the writing has a libelous tendency, they should not so say. The plaintiff in Goldstein v. Foss did not submit to this judgment. He brought error, but the judgment was affirmed (2 Y. & J. 146). The Common Law Procedure Act, 1852, § 61, was intended to remove the difficulties which a plaintiff had in putting a real cause of action on the record, with sufficient technical precision. But it was not intended to alter the law, or to deprive the defend- Sec. 7.] capital and counties bank v. henty. 489 ant of his right to ask the court to say that words alleged to be a libel, or actionable slander, though found by the jury to be so, were not so in the judgment of the court. It deprived him of his right to move in arrest of judgment, for the materials, on which the question whether the words written or spoken were used in the defamatory sense has to be decided, are no longer on the record. But when the proof is complete, and all that can be properly found on that proof in favor of the plajntiff is found for him, the court have, I think, exactly the same power that they had before, and if they are of opinion that if all which could be found had been put on the record under the old system, the judgment would have been arrested, they should give judgment for the defendant. This was done, and I think rightly done, in Mulligan v. Cole (Law Rep. 10 Q. B. 549). This brings me to the question on which there has been a difference of opinion amongst the judges of the Court of Appeal, and on which I have felt and still feel great difficulty, namely, whether the evidence here was such as would justify a jury in finding that the publication was such, and so made, that the court would not say, after a verdict for the plaintiff, that the court thought it not sufficiently shown to be a libel. * * * The question, therefore, seems to me whether, by showing such a publication the plaintiffs have so far satisfied the onus which is on them, that the court can (to adopt Lord Tenteeden's lan- guage) with reasonable certainly say that the tendency of the letter was to convey the libelous imputation. There can be no doubt that the defendants were not required to take cheeks drawn on this bank on account of any debts due to them, or in any other way whatsoever, and had a right to refuse to do so. No reason was needed to justify such a refusal. Such a refusal could not be made without using words which, whether written or spoken without sufficient occasion to give rise to a privilege, would be actionable if the tendency of those words would be to cast a doubt on the credit of the bank. I think, however, that there are so many reasons why a person may refuse to take on account the checks drawn on a particular bank, that, acting in the spirit of what Lord Tenteeden said in Goldstein V. Foss, the court could not say that the letter, which in terms goes no further than merely to state the fact, was libelous, as tending to impute a doubt of the credit of the bank. No doubt some people might guess that the refusal was on that ground, 490 CONDUCT OF THE TRIAL. [ChAP. IV. but as Brett, L. J., says, it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document. I do not think it libelous by itself to state the fact. But I quite agree that such a statement might be published in such a way, and to such persons, as to show that its natural tendency would be to convey an impression that the person refusing to take the checks on that bank did doubt its credit, and then it would be libelous. * # * I think, therefore, that the only question is whether there was here evidence from which such facts could be found as, in the opinion of the court, would satisfy the onus, which, I think, lies on the plaintiffs, to show that this publication had a libelous tendency. And as I am of opinion that there was not, I think that the judgment should be affirmed. Judgment appealed from affirmed; amd appeal dismissed with costs. GRBENWADE v. MILLS. 31 Mississippi, 464. [18^6.] Handy, J., delivered the opinion of the court. This was an action brought by the defendant in error for a malicious prosecution instituted against him by tlfe plaintiff in error, in causing him to be arrested and imprisoned upon a charge of stealing a negro slave, the property of the plaintiff in error, of which charge he was acquitted. * * * On the part of the defendant it was proved that the slave in question had been the property of John M. Burnett, who, while the slave was an infant, had made a verbal gift of her to one Mrs. Elliott, who took possession and held her for more than a year, and sold her to one Cain, by whom she was given to his daughter, the defendant's wife; that she remained in the pos- session of Greenwade from some time in the year 1844 until December, 1849, at which time the plaintiff came to the premises of the defendant late at night, or about daybreak, on horseback, and clandestinely took the slave from the defendant's negro cabins, and placing her behind him on his horse, rapidly fled, taking her away; that when Burnett made the gift to Mrs. Sec. 7.] Humphries v. paeker. 491 Elliott he was about sixteen years of age, but that he became of lawful age in July, 1847; and in January, 1848, that he acknowledged he had given the slave to Mrs. Elliott and stated that he made no claim to her, and was willing to make a deed of gift, or a bill of sale to Mrs. Elliott, or to the defendant, if he knew to which of them to make it. * * * The verdict being for the plaintiff, the defendant moved for a new trial upon several grounds ; which motion being overruled, exceptions were taken, upon which the case is brought here. The first objection made is to the instructions granted at the instance of the plaintiff. The second instruction granted at the plaintiff's instance is, that "if the jury believe, from the evidence, that Greenwade knew that Mills had title to the slave at the time of the arrest, and if they further believe that Greenwade had no title to said slave, then they must find for Mills, and assess such damages as, in their opinion, the plaintiff ought to have. " * * * But the latter branch of the instruction is clearly erroneous in referring the question whether the defendant had title to the slave, to the jury. If left to them to determine whether, under the facts shown in behalf of the plaintiff, and on the part of the defendant, the defendant had title — ^this was submitting a ques- tion of law to the jury. It was the duty of the court to instruct the jury that if they believed, from the evidence, the particular facts relied on by the plaintiff to exist, then the title was in him ; and to give a similar instruction with reference to the facts upon which the defendant's title rested. Thus the law, applicable to the question, would have been settled by the court, and the facts to which it might apply, submitted to the jury. But by this instruction the entire question of title, both as to law and fact, was referred to the jury. * * * Jvidgm&nt reversed. HUMPHRIES V. PARKER. 52 Maine, 502. [1864.] "Walton, J. * * * 2. The defendant complains that the question of probable cause was left to the jury, when it should have been decided by the court; and that the instruction as to 492 CONDUCT OF THE TRIAL. [ChAP. IV. what constitutes probable cause was erroneous. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable are true and existed, is a matter of fact for the jury. But whether, supposing them true, they amount to probable cause, is a question of law for the court. The exceptions fail to satisfy us that anything more was left to the jury in this ease than legitimately belonged to them. Nor are we able to discover any error in the instructions of the presiding judge as to what constitutes probable cause. He told the jury that there is a want of probable cause, when a party institutes a prosecution without reasonable grounds for believing the party guilty. This was undoubtedly correct. He then de- fined reasonable grounds to be such as would warrant an impartial and candid mind, exercising ordinary care, caution and dis- crimination, in believing a party guilty. This we think was correct. He then told the jury that probable cause did not always depend upon the real and exact facts, but might depend upon the honest belief of the party prosecuting, but that it must be a belief honestly entertained, and derived from facts and evidences which in themselves were sufficient to justify a man who was calm, and not governed by passion, prejudice or want of ordinary caution and care, in believing the party guilty. This, also, we think correct. There is no doubt that actual belief, and reason- able grounds for that belief, are essential to constitute probable cause. However strong the evidence might be, yet, if the party prosecuting did not believe the party was guilty, he would not be justified in prosecuting him. Nor is mere belief enough ; for, if this were so, the court would never be required to judge of the sufficiency of the grounds for that belief, as the law now requires them to do. Belief, and reasonable grounds for that belief, are undoubtedly both essential elements in the justification of probable cause. We see nothing to disapprove of in the instructions of the presiding judge, bearing upon the question of probable cause. They seem to be in accordance with the best and most approved authorities. Either party, upon request, would have been entitled to a direct and specific instruction from the presiding judge, as to whether the alleged facts set up in defense, if proved, did or not show want of probable cause ; but no such request seems to have been made, and the omission, therefore, to give more specific instructions furnishes no valid cause for exception. * * * Sec. 7.] lister v. ferryman. 493 LISTER V. FERRYMAN. L. R. 4 English & Irish Appeals, 521. [1870.] This was an appeal against a judgment of the Court of Ex- chequer Chamber, which affirmed a previous judgment of the Court of Exchequer, discharging a rule obtained on behalf of Mr. Lister (the original defendant) for setting aside a verdict which had been obtained against him. The action was for false imprisonment, and the defendant pleaded, first, not guilty ; and, secondly, that a felony (stealing of a rifle) had been committed; that the defendant had reasonable and probable cause for suspecting the plaintiff, and he set out, as the grounds for the suspicion — that the plaintiff had been in the habit of coming to the defendant's premises — had oppor- tunities of seeing where the rifle was kept — on the 4th of March (1867) took it up and said he should like to have it — it was afterwards missed, and, according to the statement of one Wil- liam Robinson, on the faith of which the defendant acted, the plaintiff had the said rifle in his possession for a short time, to- wit, four days, after the said 4th of March, wherefore defendant gave him into custody, ete.^ ' In actions for false imprison- Winsmore v. Grenbank, Willes, 577, ment it has always been thought in a different field of tort, it was necessary to plead the specific facts said : relied on as giving probable cause "But, to be sure, it must be an to arrest on suspicion. Steamship Co. unlawfully procuring, and that V. Williams, 69 Ga. 251. At one brings me to the second objection, time the pleading was apparently It is not necessary to set forth all the same in actions for malicious the facts to show how it was unlaw- prosecution. In Pain v. Eochester, ful; that would make the pleadings Gro. Eliz. 871, an action for ma- intolerable, and would increase the lioious prosecution, Gawdt, J., length and expense unnecessarily, doubted whether such a plea was It was said however that at least proper because it amounted to non it was necessary for the plaintiff to eulpabilis, but the other justices add 'by false insinuations;' but it held, "that it was a good plea per is not material whether they were douM del lay gents; for that he true or false; if the insinuations confessed the procurement of the in- were true and by means of those diotment, and avoided it by matter the defendant persuaded the plain- in law; especially, the demurrer be- tiff's wife to do an unlawful act, ing general, he shall not take ad- it was unlawful in the defendant, vantage thereof. Wherefore it was "In answer to the objection that adjudged for the defendant." In this is leaving the law to the jury. 494 CONDUCT OF THE TRIAL. [ChAP. IV. The plaintiff took issue on these pleas ; and the action was tried before the Lord Chief Baron at the sittings after Trinity term, 1867. * * * The Lord Chief Baron directed the jury that if Lister had received the information from Hinton and Robinson, and believed their statements, that would constitute reasonable and probable cause, but if .Lister had acted on the statement of Hinton alone, and had not seen Robinson before he gave the plaintiff into custody, then there would be no reasonable or probable cause, knd the verdict must be for the plaintiff. The jurors found that Lister had not seen Robinson before the arrest, but believed and acted on the statement of Hinton, and they gave a verdict for the plaintiff with £100 damages. * * * Lord CoLONSAY. My lords, I have listened to this case with much interest, finding myself placed in what is to me the some- what novel position of having to deal with the question of want of reasonable and probable cause as a question of law for the court, and not a question of fact for the jury. I have frequently had to deal with cases of this kind in the other end of the island ; but there this question of want of reasonable and probable cause is treated as an inference in fact to be deduced by the jury from the whole circumstances of the ease, in like manner as the ques- tion of malice is left to the jury. If I had tried the case there I should have left this matter to the jury ; and if the jury had found a verdict for the defendant, I should have approved of that verdict for reasons I am about to explain. If, on the other hand, the jury had found for the plaintiff, still, being a matter so much within the province of the jury, and as it could not be said that they had gone decidedly wrong and contrary to evi- dence, I should have held that it was not a case for the court to interfere. But in England it is settled law that this is a matter it must be left to them in a variety imprisonment, and in malicious of instances where the issue is com- prosecution, see Panjiris v. Hart- plicated, as, turglariter, felonice, man, 196 Mo. 539. proditorie, devisavit vel non, de- In Panton v. Williams, 2 Q. B. misit vel non. But the judge pre- 169, the court calls attention to the sides at the trial for the very pur- change in pleading which has taken pose of explaining the law to the place in actions for malicious prose- jury, and not to sum up the evidence cution. Weaver v. Ward, Hobart, to them." 134, indicates that the question of For the difference in the scope of negligence was dealt with in much the general issue in actions for false the same way at that time (1616). Sec. 7.] LISTER V. FERRYMAN. 495 for the court to deal with. The court deals with it as an inference to be drawn by the court from the facts, but whether an inference of law or an inference of fact does not, I think, appear from the reports. I do not see clearly whether it is called an inference of law merely because it is left to the court, or whether it is left to the court because it is really an inference of law.^ But, undoubtedly, it appears to be settled law in this country that want of reasonable and probable cause is matter for the court. This appears, not only from the latest case that has been alluded to, Panton v. Williams (2 Q. B. 169), but was very authorita- tively laid down in the earlier case of Johnstone v. Sutton (IT. K. 545), in which the opinions of Lord Mansfield and Lord Loughborough were adduced in support of the proposition that such was the law of England. Probably it became so from 2 Terry, Anglo-American Law, §66: "A difficulty in distinguish- ing between propositions or ques- tions of law and of fact occurs in two classes of cases; and first, in wliat are correctly called mixed propositions or questions. Such a proposition arises when two or more distinct and separate propositions of different characters are combined in one expression, and yet each one is capable of being detected by analysis and separately stated. The mixture is caused entirely by ab- breviation; it is a mere matter of the use of language. For example, the proposition that A and B are partners includes in a condensed form - the statement of fact that they have done certain acts, such as making a written agreement in cer- tain terms, and the statement of law that the legal effect of those acts is to put them into the condi- tion of being partners." §69: "When a mixed question arises there is no theoretical diffi- culty about the disposition of it. The questions of law are to be de- cided by the court and the questions of fact by the triers of fact. In jury trials the court must tell the jury what the law is on each of the states of fact which appear prob- able on the evidence, and the jury, having found which of these possi- ble states of fact is the true one, . must apply the rule of law given them by the court, and so, by a conclusive legal inference, decide upon their verdict. If it is quite plain on the evidence that there is only one state of facts that a right- minded jury can find to be true, then if they bring in a contrary verdict the court will presume that they have misapplied the law and will set such a verdict aside as often as it is given. The jury will not be allowed to take the law into their own hands, and by a general verdict, at least in civil cases, decide the whole of a mixed question of fact and law. ' ' §74: "It will be noticed that all questions of curial fact have one common characteristic; they are questions which, so far as their own nature goes, might be questions of law. Some questions are essentially incapable of being answered by rule, for example, whether A promised 496 CONDUCT OF THE TRIAL. [Chap. IV. anxiety to protect parties from being oppressed or harassed in consequence of having caused arrests or prosecutions in the fair pursuit of their legitimate interests, or as a matter of duty, in a country where parties injured have not the aid of a public prosecutor to do these things for them. Finding that I had to deal with this as a matter of inference in law, I was desirous to ascertain what were the rules or prin- ciples of law by which the court ought to be guided in drawing that inference. I did not find that there were any. Neither in the very able argument we heard from the bar, nor in the judgments set out in these papers, nor in the eases that have been referred to, are any such rules or principles enunciated. I think it is laid down by the learned Lord Chief Baron that it is a to pay B one hundred dollars or whether A's pigs got into B's gar- den and how much damage they did there. But the impossibility above insisted upon of deciding all questions of construction, reason- ableness, admissibility of evidence and other matters of curial fact by rule is of a different sort, consisting merely in the practical impossibility of foreseeing all the material facts. If the precise words in which A would thereafter make his will could be laid before the Legislature, it would be perfectly possible for them to determine beforehand by a law how such words should be construed. So they could say as well as a jury how fast it would be reasonable to drive a horse in the street if the same facts were known to them before the event as to the jury afterwards, and could embody their opinion in a law ap- plicable to the case. And the same may be said of all other questions of curial fact. They are all to be settled by the application of reason and judgment to certain facts. If the Legislature could get at the facts they might prefer to exercise this reason and judgment themselves directly; but since the facts are not accessible to them they are compelled to leave it to the judges who have the means of knowing the facts. ' ' § 76 : " What are called mixed questions of fact and law are often in reality mixed questions of ordi- nary and curial fact. Thus it is often said in regard to negligence or probable cause, that the facts as they existed must be found by the jury, and that then whether they amount to negligence or probable cause is a question of law, when the latter question is really one of curial fact. ' ' Holmes, Law in Science, 12 Har- vard Law Keview, 443: ' ' In some regions of conduct of a special sort we have to be in- formed of facts which we do not know before we can draw our lines intelligently, and so, as we get near the dividing point, we call in the jury. From saying that we will leave a question to the jury to say- ing that it is a question of fact is but a step, and the result is that at this day it has come to be a wide- spread doctrine that negligence not only is a question for the jury but is a question of fact. I have heard it urged with great vehemence by Sec. 7.] LISTER V. FERRYMAN. 497 mere question of opinion, depending entirely on the view which the judge may happen to take of the circumstances of each particular case. And upon a careful consideration of the de- cisions, it seems to me impossible to deduce any fixed and definite principle to guide and assist the judge in any case that may come before him. Chief Justice Tindal's rule seems almost the only one that can be resorted to, namely, that there must have existed a state of circumstances upon which a reasonable and discreet person would have acted. Now in the system to which I have already alluded it is thought that twelve reasonable and discreet men (as jurors are supposed to be) can judge of that matter for themselves, and that lawyers are not the only class of persons competent to determine whether the information was such as a counsel, and calmly maintained by professors that, in addition to their wrongs to labor, courts were en- croaching upon the province of the jury when thfey directed a verdict in a negligence case, even in the unobtrusive form of a riiling that there was no evidence of neglect. ' ' I venture to think, on the other hand, now, as I thought twenty years ago, before I went upon the bench, that every time that a judge declines to rule whether certain con- duct is negligent or not he avows his inability to state the law, and that the meaning of leaving nice questions to the jury is that while if a question of law is pretty clear we can decide it, as it is our duty to do, if it is difficult it can be de- cided better by twelve men taken at random from the street. * * * "I do not wish to repeat argu- ments which I published long ago, and which have been more or less quoted in leading text-books. I only wish to insist that false reasons and false analogies shall not be relied upon for daily practice. It is so easy to accept the phrase 'there is no evidence of negligence,' and thence to infer, as the English House of Lords has inferred, as Pro- H. T. p.— 32 fessor Thayer infers in his admir- able Preliminary Treatise on Evi- dence which has appeared since these words were written, that the ques- tion is the same in kind as any other question whether there is evidence of a fact. "When we rule on evidence of negligence we are ruling on a stand- ard of conduct, a standard which we hold the parties bound to know beforehand, and which in theory is always the same upon the Isame facts and not a matter dependent upon the whim of the particular jury or the eloquence of the particular ad- vocate. And I may be permitted to observe that, referring once more to history, similar questions origi- nally were, and to some extent still are, dealt with as questions of law. It was and is so on the question of probable cause in malicious prosecu- tion. It was so on the question of necessaries for an infant. It was so in questions of what is reason- able, as — a reasonable fine, con- venient time, seasonable time, rea- sonable time, reasonable notice of dishonor. It is so in regard to the remoteness of damage in an action of contract. Originally in malicious prosecution, probable cause, instead 498 CONDUCT OP THE TKIAL. [ChAP. IV. reasonable and discreet man would have acted upon. For what is it that a judge would have to determine? He would have to determine whether the circumstances warranted a reasonable and discreet man to deal with the matter, that is to say, not what impression the circumstances would have made upon his own mind, he being a lawyer, but what impression they ought to have made on the mind of another person, probably not a lawyer. If I look to the circumstances of this ease, as they are here disclosed, and put the question to myself, I come, I own, to the conclusion, that in this case there was not a want of reasonable and probable cause, and consequently that the direction given was not, accord- ing to my view, a sound one. * * * Judgment reversed and rule for a new trial made absolute. INLAND, ETC., COASTING CO. v. TOLSON. 139 V. 8. 551. [18^0.] Mr. Justice Gray delivered the opinion of the court : ^ * * * The defendant requested the court to give this in- struction : "If the jury shall find from the whole evidence that, at the time the defendant's boat was landing at the pier Sham- of being negatived in the declara- began to leave some of these ques- tion, was pleaded by the defendant, tions to the jury. Nevertheless, and the court passed upon the suf- Mr. Starkie, a man of intellect, who ficieney of the cause alleged. In the was not imposed upon by phrases, famous case of Weaver v. Ward (1 very nearly saw the ground upon Hobart, 134), the same course was which it was done, and puts it on suggested as proper for negligence. the purely practical distinction that I quote: 'As if the defendant had when the circumstances are too spe- said that the plaintiff ran across his eial and complicated for a general piece when it was discharging, or rule to be laid down the jury may had set forth the case with the cir- be called in. But it is obvious that cumstanees, so as it had appeared a standard of conduct does not to the court that it had been in- cease to be a law because the facts evitable, and that the defendant had to which that standard applies are committed no negligence to give not likely often to be repeated." occasion to the hurt.' But about See also Thayer, Preliminary the middle of the last century, when Treatise on Evidence, pp. 224 et seq. the rule of conduct was complicated i For the facts in this case, see with practical details, the court post, p. 548. Sec. 7.] inland, etc., coasting co. v. tolson. 499 rock, the plaintiff negligently or carelessly placed his left foot between the piles of said pier, or between the piles and the flooring of said pier, or between one of the piles in front of said pier and the flooring thereof, and allowed it to remain there while the boat was departing from said pier, and the foot so placed was injured while in that position, then the plaintiff is not entitled to recover in this action." The defendant also requested the court to give the same instruc- tion modified by omitting the words "negligently or carelessly." The court declined to do so, and gave the instruction with those words, and added : ' ' This is upon the hypothesis that you shall first find the facts spoken of and then that the plaintiff negligently or carelessly placed his foot in the position referred to. It, however, still leaves with ymo the question, if you should find he did place his- foot in such position, whether or not his act in doing that was such negligence as would disentitle him from recovering. There is a principle which you will bear in mind in regard to that. It is this: That a person in the position of the plaintiff is to keep his wits about him, to be on the alert so as not to be injured, and to exercise such vigilance or care as is proportionate to the hazard of the duty in which he is engaged. For instance, a man should be more cautious if he is running a dangerous engine than if he is sitting as you are now, in a position of safety and attending to his usual avocation. His care must be in proportion to the hazard of his engagement. There is no proof here to show that this was a dangerous vocation — standing there attending to that wharf — and yet, nevertheless, there were certain hazards accompanying it, just as there are in almost aU positions." To the refusal to give the modified instruction requested, and to so much of the instructions as is above printed in italics, the defendant excepted. The court rightly refused to omit the words "negligently or carelessly," as requested, because to do so would be to assume that the plaintiff's placing his foot between timbers of the wharf and keeping it there while the steamboat was leaving was neces- sarily negligence, as matter of law. The court truly said there was no proof in the case that "standing there, attending to that wharf, was a dangerous vocation ;" and properly submitted to the jury upon the whole evidence the question whether the plaintiff exercised due care at the time and place of the injury, and under 500 CONDUCT OF THE TRIAL. [ChAP. IV. the eircumstanees attending it. The phrase, "such negligence as would disentitle him from recovering, ' ' was evidently used as synonymous with "such negligence as contributed to the injury." PEOPER V. L. S. & M. S. RY. CO. 136 Michigan, 352. [1904.] Hooker, J. The plaintiffs' intestate was instantly killed by the defendant 's passenger train at a street crossing in the village of Jonesville. At the time he was driving in a buggy, and his horse was struck when he had but just stepped his fore feet upon the track. The action is case for negligence, and the case was left to the jury, who found a verdict for the defendant, and plaintiffs have appealed. * * * The court instructed the jury as follows: "If you find that Mr. Proper did all that the ordinarily careful and prudent man would do under like circumstances, and with his knowledge of this crossing, and of the trains passing over it, in approaching this crossing, to ascertain if any train was coming on this track, then and in that case he is not guilty of contributory negligence, and, so far as that question is con- cerned, plaintiffs would be entitled to recover. "Contributory negligence, in the law, may be defined as an act by the injured person which an ordinarily prudent man would not have done under the same circumstances, or the omission to do that which an ordinarily careful and prudent man would have done under the circumstances, and which act or acts directly aid in causing or contributing to the injury received. If the mind of an ordinary prudent man would be impressed with the belief of danger, under the circumstances existing and surround- ing him at the time of the injury, he has no right to incur the danger. But, on the other hand, if the mind of an ordinarily prudent man would not be impressed with the belief of danger by the circumstances surrounding and existing at the time of the injury, he is not guilty of contributory negligence. "Therefore, you will understand that it is a very important ([uestion in this case for you to determine whether or not the deceased, George W. Proper, was exercising the care and caution Sec. 7.] proper v. l. s. & m. s. rt. go. 501 which he should have exercised as he approached this track, for, iinless it be shown that he gave proper attention — that is, exercising due and proper care in the question of whether there was an approaching train — then he cannot recover; and if the train was easily to be seen, had he stopped and looked for it, or had looked attentively enough without stopping, and the ap- proaching train would have been seen by him if he had used due care and caution and given proper attention, then he was guilty of such a degree of negligence as would prevent a recovery in this case. "There is no particular act necessary to be found on which to base contributory negligence. It may exist in a variety of ways. It may be inferred from the failure of the plaintiff or decedent to stop his horse or to look in the direction of the approaching train, or a failure to hear the approaching train because of the noise of the buggy, or any other noise, if you find there was any, or by being occupied in conversation with his companion; and various other things which may occur may be considered as contributory negligence. Anything in the way of inattention to the approaching train, which, in the mind of the jury, contributed to the injury of the deceased, and the injury would not have occurred had it not been for such inattention, is contributory negligence. The attention which is required of Mr. Proper is the same attention and observation that is used and exercised by an ordinarily careful and prudent man under the same circumstances. * * * "You are also instructed that the plaintiffs are not entitled to recover in this case simply because there was an accident which resulted in the death of Mr. Proper, for whom the plaintiffs claim to act as administrators. The fact that Mr. Proper was killed at this crossing is of itself no evidence whatever of any negligence on the part of the defendant, or of any liability on its part to respond in damages. While it is true that, simply because an accident had occurred, negligence is not to be presumed, still, in determining the question of negligence, the fact that an accident has occurred may be and should be taken into consideration, in connection with all the other facts and circumstances in the case, for the purpose of determining whether in fact there was negligence. "And if you find from the evidence that when Mr. Proper and his companion, Mr. Wisner, had reached a point in the high- 502 CONDUCT OF THE TRIAL. [ChAP. IV. way which was somewhere in the neighborhood of fifty feet or six or seven rods from the track, as estimated by various wit- nesses, he stopped his horse and looked and listened for the train, then started up again, and, as he started, Mr. Wisner looked out of the glass at the back of the buggy, where he could only see a few rods of the track, and the parties then passed onto the track, without any further looking in the direction of the approaching train, or any further attempt to find whether there was an approaching train, then such acts constituted con- tributory negligence, and plaintiffs could not recover. ' ' ^ Error is assigned on the last paragraph of the above. The plaintiffs claimed that the view of the track was obscured by buildings and trees, and that it was a difficult and dangerous crossing. We think that the judge was right in holding that, under the admitted circumstances, it would be negligent to assume that it was safe to proceed without any further effort to ascertain than was made at the time of stopping. Vreeland v. Railroad Co., 109 Mich. 585 (67 N. W. 905) ; Shufelt v. Railroad Co., 96 Mich. 327 (55 N. W. 1013) ; Brandy v. Railway Co., 107 Mich. 100 (64 N. W. 1056) ; Osborn v. Railway Co., 115 Mich. 102 (72 N. W. 1114) ; Britton v. Railroad Co., 122 Mich. 359 (81 N. W. 253) ; Tucker v. Railway Co., 122 Mich. 149 (80 N. W. 984), and cases cited. * * * Judgment affirmed. PENNSYLVANIA CO. v. FRANA. 112 Illinois, 398. [1884.] This was an action brought by Albert Frana against the Penn- sylvania Company to recover for a personal injury received by the plaintiff while attempting to cross the railroad track of the defendant with a wagon and team, attributing the accident to the alleged negligence of the defendant's servants in the man- agement of its train. A judgment in favor of the plaintiff in the trial court was affirmed in the Appellate Court, and the defendant brings the cause to this court on his further appeal. Mr. Justice Craig delivered the opinion of the court : 1 See also Osborn v. Ey., 115 Mich. 102; Elliott V. By. 150 U. S. 245. Sec. 7.] huguenin v. baylet. 503 * * * The court refused defendant's instruction No. 1, which was as follows : "The jury are instructed that it is the duty of a person, be- fore attempting to cross a railway track, to stop, if necessary, and look and listen for the approach of trains, before entering upon such track; and if the jury believe, from the evidence, that the plaintiff in this case could have discovered the approach of the defendant's train, and avoided the injury in question by having stopped his mule before driving upon the track, and looking and listening for the approach of said train, then he can not recover in this case, unless the jury shall believe, from the evidence, that the agents or servants of the defendants were guilty of gross negligence in the operation of said train. " And this decision is relied upon as error. It is no doubt true that it is the duty of a person about to cross a railroad track, to approach cautiously, and to endeavor to ascertain if there is present danger in crossing; and where the railroad track and crossing are so situated that the approach of a train can not be seen, it may be the duty of a person about to cross, to stop and look, to ascertain if a train is coming ; but it is always a question of fact for the jury to determine, from the evidence, whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law. It was the province of the jury to determine whether the plaintiff was guilty of negligence, and not for the court to tell the jury that certain facts constituted negligence. The instruction, as drawn, took the question of fact from the jury, and hence was erroneous, and for this reason the court did not err in refusing it. * * * HUGUENIN v. RAYLEY. 6 Tcmnton, 186. [1815.] This was an action upon a policy of insurance subscribed by the Albion Insurance Company upon the life of Elizabeth Swayne. Upon the trial of the cause at the Sarum spring assizes 1815 before Dampieb, J., one defense was, that there had been a fraud in effecting the policy by the suppression of a fact which 504 CONDUCT OP THE TRIAL. [ChAP. IV. the contract required the assured to disclose. It appeared that E. Swayne, who had been many years resident in a house of her own in the parish of Fisherton Anger, but was, in December, 1813, a prisoner for debt in the county gaol in Fisherton Anger, then employed Mather to effect an insurance on her life with the defendants; one condition of the insurance was, that a declara- tion should be made of the state of the health of the life insured, and Mather, reciting that he had proposed on the behalf of Elizabeth Swayne of Fisherton Anger an insurance on her life, which had been accepted on the declaration then following, de- clared that B. Swayne did not exceed the age of 66 years, and that she was then resident as above; it was stipulated that the policy should be valid, only if the statement were free from all misrepresentation or reservation. For the purpose of ascertain- ing the state of her health, Mather, by the direction of the defendants, called in a physician, who found the subject in the gaol, which is in a situation perfectly healthy, confined in a large airy room, well calculated to preserve the health of its inhabitants. She was apparently about 60 years of age, a fresh- looking, healthy, hale woman, making allowance for her confine- ment; for confinement makes some difference in the state of health. He certified that she was in good health, and he would have noticed on his certificate the fact of her being in jail, had he not been led by the circumstance of Mather 's speaking of the defendants by the term ' ' our office, ' ' to suppose he was an agent of the defendants, and that all which he knew would be com- municated, for the witness thought it a fact material to the terms of the contract to be communicated. Upon this evidence, Dampier, J., thought that Mather had by contrivance prevented the physician from stating a fact to the defendants, which he thought material to the contract, and he therefore stopped the plaintiff's case, and without hearing the defendant's case directed a nonsuit. * * * On this day the court relieved Best from supporting his rule. They observed that they had examined the documents, and there was nothing express in the terms of the policy which required the imprisonment to be stated, nor was there an omission of the statement of any matter which the office called for ; nevertheless, if the imprisonment were a material fact, the keeping it back would be fatal ; but it ought to have been submitted to the jury, Sec. 7.] CASWELL V. HUNTON. 505 whether the omission of the fact relied on was or was not a material omission/ therefore there must be a new trial. Ride absolute. CASWELL V. HUNTON. 87 Maine, 277. [1895.] This was an action for false and fraudulent representations in the sale of personal property. Verdict for the defendant. The declaration alleged that the defendant, in order to induce the plaintiff to buy of him twenty-five shares in the capital stock of a corporation known as the "National Carving Company," and pay him therefor the sum of five hundred dollars,~falsely and fraudulently represented to the plaintiff ' ' that said National Carving Company was just starting into business, and needed a little more money to get the business well started ; that the com- pany then and there had large orders to fill, and that he (the defendant) was then selling treasury stock to raise money to do 1 See also Bufe v. Turner, 6 Taunton, 338, where the materiality of matters not disclosed was left to the jury. Mabston, J., in HaU v. Johnson, 41 Mich. 286: "When the court came to charge the jury — to give them instructions for their guidance when they would retire to deliberate • — nothing was said as to the ma- teriality of the representations, if any were made and found to be un- true. Irrespective of their material- ity, the jury were instructed that if false representations were made upon which Mrs. Young relied, and which induced her to part with the note, plaintiffs could not recover. We are of opinion that even in this part of the charge the court must have had in mind material false representations, as she would not be likely to have relied upon immaterial representations or parted with the note upon the strength thereof. This view is most favorable to the plaintiff in error, and yet will not help him. False representations, no matter how acted upon, will not be sufiS-cient to set aside an agreement otherwise valid unless they were ma- terial. Immaterial representations, whether true or false, cannot be made the basis of relief, even al- though coupled with the assertion that they were relied upon. They may constitute a moral wrong, but not a legal one. False representa- tions may be made of such a char- acter that no person of ordinary in- telligence could be misled thereby, and that could have had no influence whatever in inducing the other party to enter into the agreement. What might be considered sufSciently ma- terial to induce one person to act, 506 CONDUCT OP THE TRIAL. [ChAP. IV. business to fill said orders; that the stock he (the defendant) was then selling was treasury stock of said corporation ; that one F. W. Parker, one Frank R. Conant, one J. L. H. Cobb, and one C. I. Barker, were then owners of similar treasury stock pur- chased by them respectively of the corporation, at the same price he was paying; that he was and had been since the company came to Maine, about a year before, the agent of said corporation to sell its treasury stock for the purposes aforesaid ; and that as such agent, he (the defendant) had sold to one P. M. Thurlow two hundred and fifty shares of like treasury stock at the same price he was to pay. ' ' The declaration contained all other necessary and material elements to state in legal form the alleged cause of action. The plaintiff contended, and introduced evidence tending to show that the defendant, as an inducement to the sale, made each and all the representations above set forth. There was also evidence tending to show that the stock in question was sold by the defendant to the plaintiff for the sum of five hundred dollars; that the stock so sold was not treasury stock, but the defendant's might have but little or no influence represented increased the risk as- upon another, so that no definite sumed by the insurer was to be rule can be laid down. In each case determined by the jury. In such the court or jury must be satisfied cases, it is always determined by the that the representations if made court, upon consideration of the were untrue, and as applied to the contract, what is the character of transaction, were material — of that the concealment or misrepresenta- character that a person of ordinary tion of facts which will invalidate intelligence and possessing ordinary the contract, and for the jury only business qualifications would be to ascertain whether, within the likely to rely thereon and be misled definition thus given, there has been thereby." a material concealment or misrepre- .Devens, J., in Penn Mutual Life sentation of them. In the case at Ins. Co. V. Crane, 134 Mass. 56: bar, it was for the jury to decide ' ' The plaintiff contends, on the au- whether the false and fraudulent thority of Liudenau v. Desborough, statements alleged were made, and 8 B. & C. 586, and Huguenin v. Bay- for the court to determine their ef- ley, 6 Taunt. 186, that the question feet upon the contract. Evidence whether the fraud was material or was therefore properly admitted to otherwise was a question of fact for prove these representations to have the jury. This is a misapplication been made by the plaintiff's agents, of these and kindred cases in the law and also that they were false and of insurance, where it has been held fraudulent. ' ' that whether facts concealed or mis- Sec. 7.] oaswell v. hunton. 507 own stock; that the defendant at the time of the sale, and for some time prior thereto, was the duly authorized agent of the corporation to sell its treasury stock ; that neither Parker, Conant, Cobb nor Barker were, or ever had been, owners of similar treasury stock purchased by them respectively of the corpora- tion at the price he was paying; that as such agent (to sell / stock) the defendant had never sold P. M. Thurlow two hundred and fifty shares of like treasury stock at the same price he (the plaintiff) was to pay; and that the defendant had the option to sell, and the right to sell the plaintiff treasury stock instead of his own stock. * * * The plaintiff requested the presiding justice to instract the jury that the alleged false representation that, "the stock he [the defendant] was then selling to the plaintiff was treasury stock of said corporation," was a material one, and that if the jury should find the other elements of the action present, then they must find the defendant guilty. The defendant's counsel in his argument to the jury admitted the above representation to be material. The plaintiff, in like manner, requested a similar instruction concerning the alleged false and fraudulent representation, that "one F. W. Parker, one Frank R. Conant, one J. L. H. Cobb and one C. I. Barker were then owners of similar treasury stock of said corporation, purchased by them respectively of the cor- poration at the same price he [the plaintiff] Was paying. ' ' The plaintiff, in like manner, requested a similar instruction concerning the alleged false and fraudulent representation, "that as the agent of the corporation he [the defendant] had sold to one P. M. Thurlow two hundred and fifty shares of like treasury stock at the same price he was to pay. ' ' ^ The presiding justice declined to rule, as matter of law, that any one of the foregoing alleged false and fraudulent representa- tions were material, as requested, but left the question of ma- teriality of each representation to the jury, with proper instruc- tions as to what constituted materiality, to which no exceptions were taken. Walton, J. The question is whether the materiality of a false representation, relied upon to support an action for deceit, is a question of law for the court, or a question of fact for the jury. "We think it is a question of law for the court. Most of the 508 CONDUCT OP THE TRIAL. [ChAP. IV. questions involved in an action for deceit are questions of fact for the jury. Whether the defendant made the alleged false representation, and whether, if he made it, he knew it to be false, and whether the plaintiff was ignorant of its falsity, and whether he relied upon it, and was thereby damaged, are un- doubtedly questions of fact for the jury. But, assuming aU these facts to be proved, the materiality of the representation is a question of law for the court. Penn. Ins. Co. v. Crane, 134 Mass. 56. Bigelow on Fraud, Vol. I, p. 139, and cases there cited. In the present case, the presiding justice declined to instruct the jury as to whether any one of the alleged false representa- tions was or was not material, but left the question of materiality to the jury. We think this was erroneous. We think it was the right of the parties to have the jury instructed specifically re- specting each of the alleged false representations, and to have them told whether or not, if all the other elements of fraud were proved, it was legally sufficient to maintain the action. The action is for alleged false representations made by the defendant while selling to the plaintiff twenty-five shares of corporation stock. The exceptions state that there was evidence tending to show that the defendant represented that he was selling the stock as agent for the corporation, and at the same price at which similar stock had been sold to other parties. We think these representations were clearly material ; that the plain- tiff had a right to know with whom he was dealing, and whether the money which he was paying for the stock was going into the treasury of the corporation to increase its working capital, or into the pocket of a stranger, where it would have no such effect. And we think the plaintiff also had the right to know whether others had paid into the treasury of the corporation for their shares the same amount which he was paying. Not because it was important or material for him to know what others had paid for their stock, but because it was- material for him to know how much the corporation had received for its stock; for the value of his own stock would depend largely upon the amount of paid- up capital possessed by the corporation. Consequently, the jury should have been instructed that, if they found the other elements of fraud proved, these representations were material and legally sufficient to maintain the suit. Coolidge v. Goddard, 77 Maine, 578 ; Hoxie v. Small, 86 Maine, 26. Sec. 7.] warnek v. benjamin. 509 WARNER V. BENJAMIN. 89 Wisconsin, 290. [1895.] This is an action to recover damages for fraudulently inducing the plaintiff to purchase worthless mining stocks. The complaint is set out at length in 75 Wis. 278, when this case was here on appeal from an interlocutory order. The answer of the defend- ant Bates was a general denial. The answer of the defendants Benjamin admits the purchase of mining stock by the plaintiff of the firm of Moore, Benjamin & Co. ; denies all fraudulent or untrue statements, or that plaintiff relied on any information given her by defendants, but that she informed herself as to the facts ; alleges that the stock, when sold, was worth what she paid for it, and afterwards greatly increased in value, and that the plaintiff had many opportunities to sell her stock at an advance, but refused to do so. Upon the trial the jury returned a special verdict, wherein they found: * * * (6) That the defendant ,H. S. Benjamin represented to the plaintiff, at the time she purchased her stock, that each of said stocks was a good investment at the price she paid; that it was impossible for her to lose thereby; that the property represented by the stock was in good and promising condition ; that the mines were being rapidly developed ; that ore had been sold, or was ready to be sold, from some of them; and that they, or some of them, would yield dividends in the near future. (7) That the plaintiff relied upon such representations and was induced thereby to purchase her stock. (8) That the defendant Laura D. Benjamin joined in and assented to- such representations. (9) That the defendant P. A. Bates repre- sented to the plaintiff that said mines, or some of them, were in a good or promising condition and were certain to pay dividends in the near future. (10) That the plaintiff relied upon the rep- resentations made by Bates and was induced thereby to purchase stock or to retain stock after she had purchased it. (11) That the parties making said representations did not honestly believe them to be true when they made them. * * * Upon this verdict judgment was rendered for the plaintiff, and the defendants, Benjamin and wife, appealed, as did also the defendant F. A. Bates. WiNSLOvr, J. * * * 4. The representations which the jury 510 CONDUCT OF THE TRIAL. [ChAP. IV. found were made by Benjamin and by Bates will be found fully stated in the statement of the jury's verdict contained in the statement of the case herein. There are certainly some parts of these representations which do not amount to false representa- tions. An actionable false representation must be one relating to an existing fact or past event. A mere opinion, prediction, or promise of a future condition of things is not a representation upon which a party has any right to rely. Sheldon v. Davidson, 85 Wis. 138. In the latter class of promises would certainly fall the statements that it was impossible for the plaintiff to lose upon her investment and that the mines would pay dividends in the near future. TheSe alleged statements, therefore, are entirely immaterial. It may be that, as to the remaining false representa- tions, they may form foundation for a recovery, although they certainly verge very closely upon expressions of opinion or mere prediction as to the future, and they might reasonably be under- stood as such. The appellants asked that the question whether they were so made and understood be submitted to the jury, and we think such a question should have been submitted. We have touched upon the main questions presented by the record, and do not deem it necessary to notice many minor ques- tions which are raised but may not occur upon another trial. By the court: Judgment reversed upon both appeals, and cause remanded for new trial. SHAUER V. ALTERTON. 151 V. 8. 607. [1893.] This action was brought by the plaintiff in error in one of the courts of the Territory of Dakota to recover damages for the alleged unlawful taking by the defendant Alterton of a certain stock of merchandise in a storehouse that had been occupied by Louis S. Shauer, in the city of Mitchell, in that Territory. The defendant justified the taking under attachments in favor of creditors of Louis S. Shauer, which came to his hands as sheriff of the county. There was a verdict in favor of the defendant, and a new trial having been denied, judgment was entered in his favor. That judgment was affirmed by the Supreme Court of Sec. 7.] shauer v. alteeton. 511 the Territory, and the writ of error in this case was directed to the Supreme Court of the State of South Dakota^ as the successor of the Supreme Court of the Territory of Dakota, by virtue of the act of February 22, 1889, Chap. 180, § 22, 25 Stat. 676, 683. # * * Mr. Justice Harlan. * * * in view of these statutory provisions, and of the facts which the evidence tended to estab- lish, two principal questions were considered by the court in its charge to the jury : First, whether the transfer of the merchan- dise in question was made with the intent to delay or defraud the creditors of Louis S. Shauer; second, whether the transfer to his brother was accompanied by such immediate delivery of the merchandise and followed by such actual and continued change of possession as the statute required. * * * 4. Having disposed of the question as to the intent with which the sale in question was made, the court referred to the provision of the statute, declaring the transfer of personal property — the vendor having at the time possession or control thereof — to be conclusively fraudulent and void, as against creditors, unless siich transfer is accompanied by an immediate delivery, and followed by an actual and continued change of possession. The court said to the jury that the statute means, as declared by the Supreme Court of the Territory in Grady v. Baker, 3 Dakota, 296, 299, that the sale shall be open and public, that the world may be apprised of the change of ownership ; and that the change of possession must be actual and continued, and not subject to some secret trust between the buyer and seller. "Some of the cases, ' ' the court below observed, ' ' say that the change must be of that character that customers and those accustomed to fre- quent the premises may be at once advised of the change of possession by the changed appearance of the property or its change of custody. And this is true, whatever may be the good intention or bona fides of the transaction ; even the law will not tolerate such transfers as against creditors. The change of possession must be open and visible, and if not, as against credi- tors without knowledge of the transfer, it will be void, though made for a valuable consideration in good faith and without any actual intent to defraud. In such case the law conclusively pre- sumes a fraudulent intent, and the party to such sale will not be heard to prove the contrary." In addition to what appears in the charge, the court, at the 512 CONDUCT OF THE TRIAL. [ChAP. IV. instance of the defendant, instructed the jury that a change of the property in controversy in this case must not have been merely nominal and momentary, but real, actual, and open, such as could be publicly known; and that if the property was per- mitted to remain in the possession of Louis S. Shauer, then the transfer was fraudulent in law as to his creditors, notwithstand- ing the sale may have been made to his brother in good faith and for a valuable consideration. The specific objection made by the plaintiff to these instruc- tions is that they stated an arbitrary rule, namely, that the change in possession must be accompanied by such outward, visible signs as would apprise the world of the change, and made no reference to the time within which such signs should be given, or to the nature of the property transferred or to the circumstances attend- ing the transaction. The court, it is said, should have qualified the rule as indicated in the instructions asked by him. We can- not sustain this position. The instructions asked by the plain- tiff, on this point, did not substantially differ from those given by the court, except they were more elaborate and referred more in detail to the facts. The court told the jury that the statute required not only an immediate change of possession, but one so open that the public would be apprised of it. While the court was at liberty to recall to the minds of jurors all the facts and circumstances bearing upon this issue, we cannot say that it erred in not doing so, or that it erred in leaving to the jury to determine whether, under all the evidence, there was such im- mediate delivery and such actual change of possession of the property in controversy as was necessary, under the statute as explained, to make the transfer valid against creditors. In this connection, it is appropriate to say that the inter- pretation placed by the court below on the Dakota statute, relat- ing to change of possession accords with the decisions of the Supreme Court of California in respect to a similar statute. In Stevens v. Irwin, 15 California, 503, 507, it was said: "A reasonable construction must be givem to this language,, in analogy to the doctrines of the courts holding the general prin- ciples transcribed into the statute. The delivery must be made of the property; the vendee must take the actual possession; that possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to the world of the claims of Sec. 7.] pepy's case. 513 the new owner. He must, in other words, be in the usual relation to the property which owners of goods occupy to their property. This possession — not taken to be surrendered back again — not formal, but substantial." See also Lay v. Neville, 25 California, 545, 553 ; Woods v. Bugby, 29 California, 466 ; Parks v. Barney, 55 California, 239. There are many other cases to the same effect. * * * (b) Rides governing the charge. PEPY'S CASE. 3 Leonard, 80. [1583.] Waste was brought by F. and his wife against Pepy ; and de- clared, that the said Pepy was seized, and enfeoffed certain persons to the use of himself for life, and afterwards to the use of the wife of the plaintiff, and her heirs. The defendant pleaded, that the said feoffment was to the use of himself and his heirs in fee, etc., absque hoc, that it was to the uses, as in the count; upon which they were at issue. And it was found by verdict, that the said feoffment was to the uses contained in the count; but further found, that the estate of the defendant by the limitation of the use M'^ privileged with the impunity of waste; scil. without impeachment of waste. It was moved, if upon that verdict, the plaintiff should have judgment. Anderson and Rhodes, Justices, conceived that he should, for that the matter in issue is found for the plaintiff; and that is, the feoffment to uses contained in the count, and this impunity of waste is a foreign matter not within the charge of the jury ; and therefore the finding of the same is but matter of surplusage. As if I plead a feoffment of J. S. to which the other pleads, that he did not enfeoff, and the jury find a conditional feoffment, the court shall not respect the finding of the condition, for it was not in issue, and no advantage shall be ever had of such a liberty if it be not pleaded, 30 H. 8. Dyer 41. In dower, the tenant pleaded, ne unq; seisi que dower, etc. The tenant pleaded, that before the coverture of the de- mandant, one A. was seized, and gave the land whereof dower is demanded to the husband of the demandant in tail, who made a feoffment; a stranger took the demandant to wife, took back H. T. p.— 33 514 CONDUCT OP THE TRIAL. [ChAP. IV. an estate in fee, and died seized, having issue inheritable. Now, although upon the truth of the matter she is not dowable de jure, yet forasmuch as the parties were at issue upon a point certain, no foreign nor strange matter not in question betwixt the parties shall be respected in the point of judgment ; but if the defendant had pleaded it in bar, he might have foreclosed the demandant of her dower. See 38 Ass. 27, 47 B. 19. In a praecipe quod reddat upon the default of the tenant, came one and showed, how that the tenant who made default, was but tenant for life of the lands in demand, the reversion in fee to himself, and prayed to be received. The demandant counterpleaded the resceit, dicenda, that the tenant had fee, etc., upon which issue was taken ; and it was found that neither the tenant, nor he who prayed to be received, had anything in the land. And in that case, the court did not regard the matter which was superfluous in the verdict ; for they were at issue upon a point certain ; scil. whether the tenant was seised in fee. For it is confessed of the one side, and of the other, that he had an estate for life, and of that matter the jury was not charged, and they are not to inquire of that ; and so it is found against the demandant, by which the resceit was granted. See 7 H. 6, 20. The parties were at issue upon a dying seised, which is found by verdict, but the jury find further, that the other party made continual claim. The said continual claim shall not be respected in point of judgment, because it was not pleaded in avoidance of the resceit, etc. Windham, Justice, to the contrary, because it appeareth to us upon the verdict that the plaintiff hath not cause of action, and therefore he shall not have judgment. As in detinue, the plain- tiff declares upon a baylment by his own hands; the defendant pleads, ne detinue pas, the jury find the detinue but upon bayl- ment by another hand. In that case, notwithstanding that the detinue be found, yet the plaintiff shall not have judgment. But Anderson, Rhodes and Periam conceived, that in the principal case judgment should be given for the plaintiff; for in no ease the party shall have advantage of that liberty of impunity of waste, if he doth not plead it ; and the jurors are not to meddle with any matter which is not in issue ; ^ and if they do, it is 1 Anon. 19 H. VI. 47, pi. 101. day, year and place (nota that the A writ of trespass was brought day was other than the plaintiff against one for an assault made. counted) the plaintiff made an as- Portington: We say that on such a sault on the defendant, and the in- SjBG. 7.] MORROW V. ST. PAUL CITY RY. CO. 515 but matter of surplusage, and to no purpose; and afterwards, judgment was given for the plaintiff. See the Number Roll, Paseh, 25 Eliz. Rot. 602. MORROW V. ST. PAUL CITY RY. CO. 65 Minnesota, 382. [1896.] Start, C. J. The plaintiff's intestate, George Morrow, was on March 22, 1895, a conductor in the employ of the defendant, on one of its electric car lines, known as the "Selby Avenue Ex- tension, ' ' which connected with its cable line at Milton Street, in the city of St. Paul. While he was engaged, on the day named, in transferring his car from one track to another on the electric line, a cable train collided with the electric ear, whereby he received injuries from which he died two days thereafter. This action was brought by his administratrix to recover damages for his death, on the ground that it was caused by the negligence of the defendant. The specific and only acts of negligence on the part of the defendant charged in the complaint are that the gripman operating the cable train was incompetent and unable to manage the same, to the knowledge of the defendant ; that ihe cable, machinery and appliances furnished by the defendant to propel, control and operate the cable train were insufficient and defective. These allegations were put in issue by the answer. There was a verdict for the plaintiff in the sum of $3,500, and the defendant moved the court for a new trial, on the ground, jury he received was of son assault no traverse to say that I did not demesne, sans ceo that he is guilty beat him on the day he alleged, of any assault made before the said And if I say not guilty generally, day or afterwards. Ready, etc. He and the inquest comes and says that pleaded this by leave of court. I beat him on another day accord- And Newton, J., said that this was ing to the truth, and that it was the reason, because if a man makes done on the assault of the plaintiff, an assault on me on Sunday, and I this verdict amounts to guilty: and beat him in my defense, and for this by this manner of pleading as above trespass he brings an action and I shall be helped. Wherefore it is counts that the trespass was done better to plead thus, and not gener- on the Saturday before or the Mon- ally not guilty because of the mis- day after, or any other day, it is chief of the verdict. 516 CONDUCT OP THE TRIAL. [ChAP. IV. among others, that the verdict was not justified by the evidence, and for errors of law occurring on the trial, and excepted to by the defendant. The motion was granted in general terms, with- out specifying the particular grounds therefor ; but, in his mem- orandum attached to the order granting the motion, the trial judge stated that the defendant was entitled to a new trial, by reason of error on the trial in permitting the plaintiff to cross- examine the gripman of the cable train, who was called as a witness by the defendant, as to his competency. If this alleged error was the only one in the case, we should find difficulty in affirming the order, for the cross-examination of the gripman did not exceed the reasonable limits which the trial court, in its discretion, had a right to permit. But the reason assigned in the memorandum for making the order is no part of the order, and it will not be reversed if other prejudicial errors of law occurred on the trial, and were excepted to by the defendant. The court instructed the jury to the effect that the defendant was bound to use due care and caution to provide a safe place for its servants in which to perform the duties assigned to them, and that for any violation of this rule the defendant was liable for damages. The exception to this instruction, and the re- sponse of the court thereto, are in these words : "Mr. Thygeson: I would like at this time to take an excep- tion to that part of the court's remarks, just made, that the defendant is liable in this case because of failure to furnish a safe place in which the servant should be employed, on the ground that there is no such issue in this case. The Court : Well, it is for the jury to say, under all the circumstances, whether the regulation that a man shall get down on the ground, and stand back of his car, at the time when he puts the trolley on, was a regulation or instruction which furnished him a safe place or not, in view of the close proximity of the switch to the other track, and all the surrounding circumstances in the case." It is to be noted that the attention of the court was by the exception specifically called to the fact that there was no issue in the case as to whether the place assigned to the deceased in which to work was unsafe or not. If it was so in fact, by reason of the conditions suggested by the court to the jury, they may have been obvious to the deceased, and he assumed the risks. We have already stated the only acts of negligence Sec. 7.] CENTRAL R. R. CO. V. ATTAWAY. 517 on the part of the defendant charged in the complaint, and the charge that the defendant was negligent in not furnishing a safe place for the deceased in which to perform his work was neither alleged nor litigated, by consent or otherwise. The giving of this instruction under these circumstances, when the defendant had no opportunity to meet the charge, was clearly prejudicial error, for which the defendant was entitled, as a matter of right, to a new trial.^ Order affirmed. CENTRAL R. R. CO. v. ATTAWAY. 90 Georgia, 656. [1892.] Simmons, Justice, after reciting the above facts, said: 1. Several grounds of the motion for a new trial complain of instructions to the jury as to the right of the plaintiff to recover 1 Accord: Hackett v. Ey., 235 HI. 116 ; Indiana Ey. Co. v. Maurer, 160 Ind. 25; Kirkpatrick v. Ey., 211 Mo. 68; Greenthal v. Lincoln, 67 Conn. 372. Per curiam in Latour- ette V. Maldrmn, 49 Ore. 397: "It is evident from the averments of the several answers that the de- fendants relied on the original writ- ten agreement as affording a de- fense to the action and not on any verbal modification thereof, and in such case the question to be consid- ered is whether the court erred in charging the jury as to a fact not in issue, though no exception was taken to the introduction of testi- mony tending to establish such fact. In Coos Bay E. Co. v. Siglin, 26 Or. 387 (38 Pac. 192), it was held to be reversible error to charge as to an issue not made by the pleadings, though evidence as to the contro- verted fact was received without ob- jection. It has been repeatedly held that an instruction outside the issues is erroneous, and, if excepted to, the giving thereof in such case is suf- ficient ground for reversal on ap- peal: Hughes V. McCuUough, 39 Or. 372 (65 Pac. 85); Carson v. Lauer, 40 Or. 269 (65 Pac. 1060); First Nat. Bank v. McDonald, 42 Or. 257 (70 Pac. 901). The sev- eral answers failed to allege that the contract of June 30, 1897, had been modified in any manner, and for that reason the instruction ob- jected to is erroneous. ' ' Anderson, J., in Ey. v. McWhor- ter, 156 Ala. 269: "Charge 19, re- quested by the defendant, was too broad as to contributory negligence. It is only contributory negligence that is pleaded that can defeat a recovery when proven. Southern Ey. V. Shelton, 136 Ala. 191, 34 South. 194. The charge in question is predicated on any contributory negligence, whether pleaded or not. ' ' But in some jurisdictions a verdict may be directed on an unpleaded defense clearly shown by the plain- tiff 's evidence. Hudson v. Ey., 101 Mo. 13. 518 CONDUCT OP THE TRIAL. [ChAP. IV. for negligence in the manner of handling the tools, as well as negligence in having used them in a defective condition. These instructions were alleged to be erroneous because it was not claimed in the plaintiff's declaration that his injury was caused by the improper handling of the tools. The declaration, how- ever, charged negligence ' ' in using the defective tools, ' ' and the plaintiff's evidence tended to show that the negligence consisted in the manner of using them, as well as the fact of having used them in their defective condition; and this evidence was not objected to at the trial. If the allegations in the declaration did not cover negligence in the former respect as well as in the latter, the defendant ought to have objected or moved to rule it out.i Had he done so, it would have been allowable for the plaintiff to amend so as to make the declaration more specific. But as the evidence on this point was allowed to come into the case and remain in it without objection, the court was author- ized to charge the jury upon the case as developed by the proof. Where a party permits evidence to go to the jury without objec- tion, upon a declaration that is ambiguous, and the jury find on such evidence, the party is not entitled to a new trial on the ground that the evidence does not correspond with the declara- tion, if the declaration could by amendment have been made to clearly cover the evidence ; and certainly, if the jury could consider the evidence, the court was authorized to charge upon it as a part of the case. S., F. & W. Railway Co. v. Barber, 71 Ga. 644 (2), 648; Howard v. Barrett, 52 Ga. 15; Ga. R. Co. v. Law- rence, 74 Ga. 534; Ocean S. Co. v. Williams, 69 Ga. 251 (4a), 261 ; Haiman v. Moses, 39 Ga. 708 ; Pomeroy, Rem. & Remed. Rights, § 554, et seq. And see Central R. Co. v. Hubbard, 86 Ga. 627, and cases cited. * * * 1 Hadlbt, J., in Sehwaniger v. amendment could have been made McNeeley, 44 Wash. 447: "When as of course at the trial. Gallamore evidence is received without objec- v. Olympia, 34 Wash. 379, 75 Pae. tion upon any particular ground not 978; Iverson v. McDonnell, 36 Wash, covered by the complaint, the court 73, 78 Pao. 202." may assume that the complaint is as An amendment, however, might broad as the evidence when charging entitle the adverse party to a con- the jury, and the complaint will be tinuance, see ante, p. 219, Corell v. deemed amended to conform with Marks, the evidence and charge, since the Sec. 7.] flanders v. cottrell. 519 FLANDERS v. COTTRELL. 36 Wisconsin, 564. [1875.] Lyon, J. 1. A question raised on the complaint will first be disposed of. It is averred therein that Mr. Noonan sold the press to Cameron, Amberg & Co. for the defendants and at their request, and no other or different cause of action is stated. The averment is entirely unproved. The question litigated on the trial was, not whether Noonan sold the press, but whether he was instrumental in enabling the defendants to sell it. This question was sharply litigated; much testimony in respect to it was given by both parties ; and it was submitted to the jury as the controlling question of fact in the case. All this was done without objection by either party. Indeed the question was thus submitted at the request of the defendants. Under these circumstances, it is too well settled to admit of doubt or controversy, that the pleadings^ may at any time be amended to conform with the issue really tried, or the variance may be wholly disregarded.^ COSTLY V. McGOWAN. 174 Illimois, 76. Il898.\ Mr. Justice Wilkin. * * # Numerous errors are assigned upon the record, but the only ground of reversal insisted upon is, that the court below erred in giving certain instructions to the jury on behalf of the defendants. Those objected to are the first, eighth and seventeenth of the series given at the instance of the proponents. The objection urged against them is, that they limit the inquiry before the jury to the question of the mental capacity of the testator to make the will, ignoring entirely the issue, — undue influence. The first instruction tells the jury "the question to be passed upon by the jury is this: Was the mind and memory of the deceased, at the time of making the alleged will, sufficiently sound to enable him to know and under- 1 Accord: Hiltz v. Ey., 101 Mo. 36. 520 CONDUCT OP THE TRIAL. [ChAP. IV. stand the business in which he was engaged at the time he exe- cuted the will." The eighth instruction states what is necessary, under the law, to constitute testamentary capacity, and says: "If the jury believe, from the evidence, that when Samuel B. McGowan made the will in question he was able to remember who were the natural objects of his bounty, recall to his mind his property and make disposition of it understandingly, ac- cording to some plan or purpose formed in his mind, he had testamentary capacity, and the jury will find that the will in question is the will of Samuel B. McGowan. ' ' The seventeenth states that the law presumes testamentary capacity until the contrary is shown, and if the proof only makes the case doubt- ful as to whether the testator had such capacity, "then the gen- eral presumption in favor of sanity must prevail, and the jury will find that the will offered in evidence is the will of Samuel B. McGowan." That these instructions, tested by the issue made by the bill and answer and submitted to the jury, are erroneous, admits of no question. Two issues were thus formed and made up to be tried, while the instructions, — especially the last two, — in- form the jury that if they find one of those issues for the de- fendants they should return a verdict that the paper purporting to be the will of Samuel B. McGowan is his will. Nothing is better settled than that an instruction which ignores a material issue in a cause which is submitted to a jury for its finding is erroneous. It is true that every issue made by the pleadings is not necessarily submitted to the jury. The parties may always abandon an issue made by the pleadings, on the trial ; and in this case, if it appear that the complainants below offered no evidence to support the allegation of undue influence, it would not have been error for the court, in its instructions to the jury, ,to ignore that issue. The plaintiffs in error have seen proper to bring the case to this court without preserving the evidence in the record, and it is insisted on behalf of defendants in error that it is therefore impossible for us to determine that the giving of these instructions was reversible error. It is stated in the bill of exceptions that "the trial of this cause consumed a period of about nine days, where the evidence was contrary and conflicting, and that the court having submitted to the jury, as issues of fact, whether or not the testator, at the time of the execution of the will in question, possessed sufficient testamentary capacity Sec. 7.] schroedeb v. michel. 521 to execute said will; second, whether or not said will was the result of undue and improper influence on the part of any of the defendants therein; and the complainants, to maintain the issues on their part, offered evidence tending to show that the testator, at the time of the execution of the said will, was not possessed of sufficient testamentary capacity to execute a valid will; secondly, evidence tending to show undue and improper influence on the part of the defendant. Proponents of the will offered evidence tending to show that the testator was possessed of sufficient testamentary capacity, and also evidence tending to show that the said will was not the result of undue and im- proper influence, whereupon, at the close of the evidence, the court gave the jury, on behalf of the proponents of the will, the following instructions. ' ' This is sufficient to bring before us for review the assignment of error upon the giving or refusing in- structions. Illinois Central Eailroad Co. v. O'Keefe, 154 111. 508. * * * Judgment reversed. 1 SCHEOEDER v. MICHEL. 98 Missouri, 43. [1888..] Per Curiam. * * * TJie first point made is that the first instruction for plaintiff, above quoted, is erroneous because it omits from view the defense of limitation. It is undoubtedly a better and more logical practice for every instruction assuming to state the facts necessary to a verdict for plaintiff to refer to such affirmative defenses as the case may present. But whether or not' the omission to do so constitutes reversible error will greatly depend on the language of the different instructions in each particular case. If the qualification of the instruction com- plained of appears elsewhere in a form fairly bringing it to the attention pf the jury as a modification of the other, the judg- ment will not, on that account, be reversed. In the present in- 1 And so where the instruction tion which excludes a defense, Faust narrowed the issue to a part of the v. Horsford, 119 la. 97; Terry v. negligent acts charged, McDermott Shively, 64 Ind. 106; 111. Lumber V. Ey., 87 Mo. 285. For the same Co. v. Hanly, 214 111. 243; Scanlon reason, it is error to give an instruc- v. Gulick, 199 Mo. 449. 522 CONDUCT OP THE TRIAL. [ChAP. IV. stance, the instruction number one for plaintiff says nothing of the statute of limitations, but the bearing of instruction num- ber six for defendant as a qualification of it is very plain: "Even if the jury believe, from the evidence, that defendant promised to marry plaintiff, yet, if you further believe that at a period of time, ' ' etc. This language could leave no doubt that if the facts named in number six were found, the plaintiff could not recover even if the facts named in number one were also believed to exist. This objection, therefore, is not sustained. IMHOFF V. C. & M. RY. CO. 20 Wisconsin, 344. [1866.] Appeal from the Circuit Court for Milwaukee county. The plaintiff was a passenger on the defendant's road from Chicago to Milwaukee; and it is alleged in the complaint that while getting off the cars, after their arrival at the latter place (which was about one o'clock at night), she, through defendant's negligence, was thrown down by the motion of the train, which had commenced backing, and received severe personal injuries; to recover damages for which this action was brought. The answer denies these allegations. A considerable amount of evidence was introduced by both parties as to the length of time which elapsed after the arrival of the train before it com- menced backing, and as to whether the usual signals were given. The defendant's evidence tended to show that the train did not commence backing until at least twenty-five minutes after its arrival. * * * Downer, J. At the trial, the following instructions given to the jury at the request of the respondent's counsel were ex- cepted to by the appellant ; * * * 2. If the jury find from the evidence, that ordinary and reasonable care and attention to the safety of the passengers on the train arriving in Milwaukee at one o'clock in the morning, required that, before backing up the train and putting it away, the company should see to it by examination of the passenger cars, that the passengers were all out, and that this was not done on the night when the plaintiff was injured, then the defendant was guilty of negligence; and Sec. 7.] imhoff v. c. & m. ry. co. 523 if the injury to the plaintiff was occasioned by backing the train without such examination and care, the defendant is liable, unless the jury should also find that the plaintifE also was guilty of negligence, which contributed to produce the injury." Each of these instructions assumes that at the time of the accident the contract of common carrier between the plaintiff and defendant was in force. Whether it was or not, was a se- verely contested piont. It is error for the court to assume a fact which the jury ought to determine.^ It is true, the court afterwards, when asked by the defendant's counsel, instructed the jury, "That if the jury believe from the evidence that the train had arrived at the end of the route, and that a reasonable time had elapsed for the plaintiff to get out of the cars, after their arrival, before the injury to the plaintiff occurred, then the relation of common carrier between the parties had ceased, and the defendant cannot be held liable for the injury as a com- mon carrier of passengers." The giving of this instruction did not cure the error in the others. "Where erroneous instructions are given for one party, the error is not corrected by giving for the other party instructions explanatory inconsistent with, or contradictory to, those first given. The erroneous instructions should be withdrawn from the jury. Jones v. Talbot, 4 Mo. 279 ; Hickman v. Griffin, 6 Mo. 37 ; Clay v. Miller, 3 Mon. 146. There may be an exception to this rule, where it is clear to the court that the erroneous instruction did not mislead the jury. - In Ky V. Shelton, 66 III. 424, tion is that- it assumes the facts the following instruction was held upon which it is based. As to the to involve the assumption that the rapidly revolving flywheel and crank plaintifE was thrown off while the disc, it is only necessary to state train was in motion, etc., viz.: that defendant's own witness, Dr. "The jury are instructed, that if Norberg, testified to those facts as they believe, from the evidence, that well as plaintiff's witnesses, and the the plaintiff had not paid or offered defense" in part was predicated on to pay his fare from Elkart to South the obvious danger which they pre- Bend, then the defendant would not sented to plaintiff and his reokless- be warranted in throwing the plain- ness in placing his hand in the ma- tiff from the train, in a way to en- chinery while thus revolving. These danger his life or limb, or throw were conceded conditions by all par- him off when the train was in mo- ties to the suit, and it was not error tion." r '■'' speak of them as established. Gannt, J., in Henderson v. Kan- There was no assumption that the sas City, 177 Mo. 477: "The de- floor was dangerous." fendant's criticism of this instruc- 524 CONDUCT OF THE TRIAL. [ChAP. IV. But in this case, the erroneous instructions being given, the jury might have considered the first, and if they found those facts on the finding of which they were told by that instruction the plaintiff was entitled to recover, they might well have con- cluded they were not bound to examine further, except as to the amount of damages. The same may be said of the second instruction given ; for each professes to give all the facts neces- sary for the jury to find to entitle the plaintiff to recover. And all such facts should be stated in every hypothetical instruction, which disposes of the entire case in favor of one party or the other. For the error in such instruction is not ordinarily cor- rected by giving other instructions based upon the omitted facts. According to the instructions in this case, if the jury had found the facts set out in either of the plaintifi"s instructions they must find for him ; and if they found the facts stated in the in- struction given at the request of the defendant, they must find for him. They might have found from the evidence the facts mentioned in all three of the instructions. It is obvious the two first instructions tended to mislead the jury, and to divert their attention from some of the facts on which their verdict ought to rest. And for this reason the judgment of the Circuit Court must be reversed. * * * WOMACK V. INTERNATIONAL &c. R. R. CO. 100 Texas, 453. [1907.] Brown, Associate Justice. * * * At the request of the defendant, the court below gave to the jury the following special charge : "If from the evidence you believe that at and imme- diately prior to the fire in the hay barn, the switch engine, which it is claimed set fire to said barn, was equipped with spark- arresting apparatus of the best and most approved kind, and such as is generally used by well regulated railroads, and further believe from the evidence that the engine was properly and care- fully handled by the men in charge thereof, then you will return a verdict for the defendant, even if you should further believe from the evidence that the fire was started by a spark of fire emitted from or thrown by the engine. ' ' And in its general charge, the court instructed the jury as follows : Sec. 7.] womack v. international, etc., r. r. co. 525 "II. If you believe from a preponderance of the evidence that the fire which destroyed the property described in plaintiffs' petition, was directly and proximately caused and occasioned by sparks emitted from one of defendant's switch engines, as alleged in plaintiffs' petition, you will return a verdict for plaintiffs, unless you further believe from the evidence that defendant exercised ordinary care on said occasion, to havcgaid engine pro- vided with one of the best and most approved kind of appliances in use by railway companies for preventing the escape of fire from railway engines; that defendant exercised ordinary care to see that said appliances, if there were such, were in reasonably good repair and condition on said occasion to prevent the escape of fire from said engine, and that said engine was on said occasion handled with ordinary care and skill to prevent the escape of fire, or unless you find in defendant 's favor on the issue of contributory negligence, hereinafter submitted to you. ' ' Plaintiffs in error have assigned error upon the action of the court below in giving to the jury said requested special charge, upon the ground that it withdrew from the consideration of the jury the question of the defective condition of the spark-arrest- ing apparatus on defendant in error's engine, and that it was in conflict with the paragraph of the court's general charge above quoted. * * * In conformity with the decision of this court in Scott v. Texas & Pacific Railway Company, 93 Texas, 625, the trial court sub- mitted the plaintiffs' case in its main charge, in substance, stat- ing to the jury that if the fire which destroyed plaintiffs' prop- erty was proximately caused by sparks from the defendant's engine, they should find for the plaintiffs, unless the evidence showed that the railway company had exercised ordinary care and diligence in the particulars specified in that charge. The defendant by the special charge sought to have its view of the case submitted and practically presented the same propositions as those contained in the general charge, except that in the spe- cial charge it is not definitely stated that to defeat plaintiffs' case the evidence must show that the defendant had exercised ordinary care to keep its engine and spark-arrester in reasonably safe condition. The special charge when given became a part of the charge of the court to the jury and in construing the special charge we must look to the main charge upon the same points just as if both paragraphs had been embraced in the court's 526 ~ CONDUCT OF THE TEIAL. [ChAP. IV. original charge. There is no conflict between the two paragraphs. In considering the two charges together the jury would not un- derstand that the court intended to tell them in one paragraph that the railway company would be liable if the evidence did not show that it had used ordinary care to keep its spark-arrester in reasonably safe condition, and in another paragraph the court intended to tell them that the plaintiffs could not recover, although the evidence did not show that the railway company used ordinary care to keep its spark-arrester in safe condition. To reach such a conclusion would require more ingenuity than the juror brings to the impartial discharge of his duties. The giving of the special charge did not have the effect to withdraw from the jury any part of the main charge, and the whole charge being before them, they would not disregard an affirmative re- quirement because it was omitted from the negative phase of , the instruction, but would naturally construe both charges to mean the same thing. HARRINGTON v. PRIEST. 104 Wisconsin, 362. [1899.] The plaintiff brought this action to recover for dental services rendered to the defendant, alleged to have been of the reasonable value of $250. The defendant answered that such services were so improperly, unskillfully, and negligently performed as to be worthless, and in his counterclaim alleged that by reason of such negligent and unskillful work he was damaged in the amount of $1000. The jury returned a verdict for the plaintiff for $228.30. A motion for a new trial was denied, and from the judgment entered upon the verdict the defendant appeals. Bardeen, J. The complaint alleges that the plaintiff per- formed certain dental services for the defendant, which were reasonably worth $250. The answer denies that such services were worth that amount, and alleges that they were so negligently and unskillfully performed as to be entirely worthless. Here was presented a plain and simple issue. The burden of proving that the services rendered were performed with reasonable skill, and were worth the sum mentioned, was upon the plaintiff. Upon this point the court charged the jury as follows: "The Sec. 7.] haeeington v. peiest. 527 burden of proof, so far as this case is concerned, rests upon the plaintiif to establish his side by a fair preponderance of the evi- dence, which is sometimes called the down weight of the evi- dence. If you find from the testimony, as I say, that the plain- tiff did this work in a reasonably careful and skillful manner, — in such manner as dentists of ordinary standing or good stand- ing in this community or this vicinity would have done it, — and that the price he has charged is a reasonable price, then you should return a verdict in favor of the plaintiff for the full amount claimed." This was a proper charge under the issues so far presented. But the defendant set up a counterclaim in which he alleged that he had been damaged in the sum of $1000 by reason of plaintiff's unskillful and negligent work. The de- fendant thus assumed an aggressive attitude, and presented an affirmative issue. In order to recover upon his counterclaim, the burden was clearly upon him to show that he had been dam- aged by reason of the plaintiff's negligent and unskilful work. The trial court, however, seems to have failed to grasp the situa- tion. Immediately following the charge quoted, he makes the following statement to the jury: "If, on the other hand, you find from the evidence, and there the burden of proof rests upon the defendant in establishing the fact that the work was improp- erly done, it is necessary for the defendant to satisfy you of that by a fair preponderance of the evidence ; as I say, on that branch of the case the burden of proof rests upon the defendant. So that if you are satisfied from the evidence, by a fair prepon- derance of the evidence, that the plaintiff did the work in an unskilful and negligent manner, and did it in such a way as it would not have been done by a dental practitioner in good stand- ing in this vicinity, and the work was not as good as if should have been under that rule, then it will be your duty to determine the amount of difference caused by such unskilfulness and negli- gence or want of care." This must Jiave left the jury in the utmost confusion.^ In the 1 Geat, C. J., in Mooar v. Har- ceptions. The defendant 's intention vey, 125 Mass. 574: "Although a was a fact in controversy at the judge is not bound to receive a re- trial, and was in law a material ele- quest for instructions after he has ment in determining whether he re- concluded his charge to the jury, sided out of the commonwealth, yet if he does give further ins.truc- within the meaning of the statute of tions, they are a subject of ex- limitations. Gen. Sts. c. 155, § 9. 528 CONDUCT OF THE TRIAL. [ChAP. IV. one place he tells them, in effect, that the burden is upon the plaintiff to show that he performed the services sued for in a reasonably skilful and careful manner, and that they were reason- ably worth the sum charged therefor. These matters were di- rectly put in issue by the defensive allegations of the answer. Confessedly, the plaintiff had the laboring oar, and, if the evi- dence of the defendant was of equal weight with that of/ plaintiff, the latter could not recover. There was no burden upon defend- ant to show affirmatively that such services were negligently or unskilfully performed, or that they were not worth the sum claimed. If his evidence in defense left the issue in doubt or uncertainty, the plaintiff could not recover. But in the next breath the court tells the jury that the burden rests upon the defendant "in establishing the fact that the work was improp- erly done." Under the circumstances this certainly could not be true. The inconsistency of the two statements is too apparent to require argument. When it came to the question of damages under the counterclaim, the defendant could not secure a recov- ery except that he established a claim therefor by the preponder- ance of the evidence. The court failed to properly distinguish between the two issues presented, and the jury were left to wan- der in the realms of doubt and speculation. This was distinct error, for which the judgment must be reversed. The errors alleged as to the improper admission of testimony are too unsub- stantial to require comment. By the Court. — The judgment of the Circuit Court is reversed, and the cause remanded for a new trial. Langdon v. Doud, 6 Allen, 423, and might consider his intention as mat- 10 Allen, 433. Hallet v. Bassett, ter of evidence, were contradictory 100 Mass. 167. Perkins v. Davis, and insufficient, and tended to con- 109 Mass. 239. The instructions fuse, if not to mislead the jury ; and given, informing the jury, in one having been specifically excepted to, breath, that if the defendant re- the exceptions must be sustained, sided out of the commonwealth his See also Frederick v. AUgaier, intention was immaterial, and, in 88 Mo. 598; Norton 'v. Paxton, 110 the next, that if the jury were in Mo. 456. doubt as to his residence they' Sec. 7.] brusseatj v. lower brick co. 529 BRUSSEAU V. LOWER BRICK' CO. 133 Iowa, 245. [1907.] Action for damages caused by the breaking of an elevator cable. Judgment was entered for plaintiff. The defendant appeals. AfSrmed. Ladj), J. The plaintiif was an employee of the defendant, and at the instance of its foreman was engaged in removing building blocks from the upper floors of its building. He had placed about one hundred and twenty of these blocks on a car and run it on the freight elevator. As this was descending, the cable broke, precipitating him, with the load, to the bottom, and seriously injuring him. Several errors are complained of as having occurred in the trial. * * * IV. But two questions requiring attention remain, and these are whether the issues of assumption of risk by plaintiff and negligence of defendant were properly submitted to the jury. The answer set up that plaintiff had assumed the risk of the cable being defective, and the court submitted that issue to the jury in the ninth instruction. But in instruction No. 4^ the jury was told that, if the defendant was negligent and the injury resulted therefrom without fault on plaintiff's part, he was entitled to recover, unless they found that there had been a settlement. Manifestly these instructions were contradictory in saying that recovery might be had regardless of any assumption of risk, and that if plaintiff had assumed the risk he could not recover. Quinn v. Railway, 107 Iowa, 710 ; Meyer v. Boepple Button Co., 112 Iowa, 51 ; Christy v. City Ry. Company, 126 Iowa, 428. An instruction similar to No. 41/^ was held to have been without prejudice in Stomme v. Hanford Produce Com- pany, 108 Iowa, 137, owing to the manner of submitting all the issues later on in the instructions, and in "Wilder v. Great West- em Cereal Co., 130 Iowa, 263, prejudice was obviated by the fact that the issues were such that a finding of the company 's negli- gence necessarily negatived any assumption of risk by the party injured. The instructions in the case at bar are necessarily con- flicting, and therefore erroneous, but were not prejudicial, for the reason that the record is void of any evidence tending to show that plaintiff had knowledge of the condition of the cable or appreciated the danger involved in operating the elevator with H. T. P.— 34 530 CONDUCT OP THE TRIAL. [ChAP. IV. it. The mere fact that he had opportunity of ascertaining its condition by investigation, while assisting another in repairing the machinery connected therewith without exposing the cable to view, when inspecting it was no part of his duty, did not charge him with knowledge, and he must have appreciated the danger in order to have assumed the risk. There was no evidence upon which to submit the issue, and in doing so the instructions were more favorable to appellants than they were entitled to have them. * * * EGGETT V. ALLEN. 106 Wisconsin, 633. [1900.] Bardeen, J. * * * The issue sharply outlined by the pleadings was whether the defendant did in fact authorize or in- stitute the proceedings against the plaintiff. The usual defenses of want of malice, probable cause, or advice of counsel were not interposed. No attempt was made to justify the commencement of the prosecutions. True, the defendant testified that he con- sulted G. I. FoUett, an attorney, in regard to a claim he had against the plaintiff; but he nowhere discloses what advice, if any, was given as to the prosecutions in question. Notwithstand- ing the entire absence of any testimony in the case on this sub- ject, the court submitted it to the jury upon the assumption that the defendant was urging the advice of his attorney as a justification for having authorized or instituted the prosecution against plaintiff. He told the jury that if a party fully and fairly stated all of the material facts of the case to his attorney, and was by him advised that he had good grounds to proceed in a criminal prosecution, and he acted in good faith upon such advice, he was protected from an action for malicious prosecution. Then, again, he said to them: "How was he advised by the at- torney? Did he fully and fairly state all the material facts to his attorney ? ' ' etc. It is claimed that this introduced a foreign issue into the case, and that the prominence given it by the trial judge had a tendency to obscure or minimize the real issue, and was harmful to defendant.^ There seems to be good ground for 1 Gantt, J., in Mateer v. Ky., 105 of Jones, Dickinson or the defend- Mo. 320: "The evidence contains ant. There is not in it, from be- not one scintilla of fraud on the part ginning to end, one word that justi- Sec. 7.] EQGETT V. ALLEN. 531 this contention. The court assumed facts to exist which did not exist. The authorities are that it is clearly error to charge a jury upon a supposed or assumed state of facts, of which no evidence has been offered.^ Such instructions presuppose that there is some evidence before the jury which they may think sufficient to establish the facts thus assumed in the opinion of the court; and, if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclu- sions, but its tendency is to embarrass and mislead them. 2 Thomp. Trials, §§ 2295-2315; U. S. v. Breitling, 20 How. 252; Michigan Bank v. Eldred, 9 Wall. 544; Baltimore v. Poultney, 25 Md. 18. The issue of justification under advice of counsel was not in the case, and it was wrong to assume that it was, and thus distract the attention of the jury from the real issue presented. fled the trial court in submitting the issue of fraud to a jury. There is nothing in it tending in the re- motest degree to impeach the ab- solute fairness of Jones, the claim agent, or Dickinson, the superintend- ent. There is nothing on which to base the seventh instruction. It was error to submit the question to the jury at all, and greater error to give the seventh instruction. That in- struction, besides having no evi- dence to support it, was clearly er- roneous in permitting the jury to disregard the release, if defendant's claim agent procured it by 'any trick or artifice.' ' ' This instruction well illustrates the vicious pleading which had stated no substantive fact upon which to hinge the charge of fraud. Of course, as no fraud was specified, when the court came to instruct, it could not, as required by all correct practice, confine plaintiff to the tricks or artifices charged in the pe- tition, but 'the jury were given a roving commission' to scent out and find some artifice or trick, whether in the case or not. Such a practice cannot be tolerated. ' ' 2 Alderson, B., in Stracy v. Blake, 1 M. & W. 168: "I agree that we are not to take an admis- sion in one plea as evidence on an- other. But if the parties have a particular controversy, and it seems plain that a certain fact is admitted between them in the course of that controversy, may not the jury, as men of common sense, draw the same conclusion as to that fact as if it were formally proved before them? I think they may, and that they are at liberty to draw it as to all the questions in issue in the cause. ' ' 532 CONDTJCT OF THE TKIAL. [ChaP. IV. MANNING V. WEST END STEEET EAILWAY CO. 166 Massachusetts, 230. [1896.] Tort, for personal injuries occasioned to the plaintiff by being struck by a switch-stick which flew from the hands of a conductor in the employ of the defendant corporation, as he was using it on top of an electric street car to free the trolley, which had caught in a frog at the junction of some overhead wires in a street in Boston. At the trial in the Superior Court, before Bishop, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion. Holmes, J. * * * Next it is said that there was no evi- dence of negligence on the part of the defendant. The conduc- tor must be taken to have known that he was in a public street in which there were or might be travelers, and therefore must be taken to have known that, if the stick did fly with violence from his hands, there was a danger to passers similar, although less in degree, to that which would have attended the firing of a pistol into the way. Apart from the possibility that he might receive an electric shock sufficient to make him let go his hold, the jury were at liberty to say, from their experience ^ as men of the world, that under such circumstances such an accident com- monly does not happen unless the stick is carelessly handled; that it is in the power of the holder to see that he does not sub- mit it to such a strain as to make it possible that it should be torn from his hands ; and to infer from those general propositions of experience that there was a negligence in the particular case. See Graham v. Badger, 164 Mass. 42, 47 ; Uggla y. West End Street Railway, 160 Mass. 351 ; White v. Boston & Albany Eail- road, 144 Mass. 404. * * * BAKER V. SUMMERS. 201 Illinois, 52. [1903.] Mr. Justice Caetwright delivered the opinion of the court; 1 For other instances in which a jury may act on general knowledge, see Wigmore on Ev., § 2570. Sec. 7.] baker v. summers. 533 The first instruction given at the request of plaintiff was an abstract proposition of law, stating the liability created by the Dram-shop act, and the right of action thereby given, substan- tially in the words of the statute, stating the liability to be "for all the damage sustained, and in this case not exceeding the sum of $5000." The instruction contained no other reference to the case and no reference to the evidence, and did not require proof of facts which would create a liability. The instruction was erroneous in substantially telling the jury that the defendants were liable for the damages sustained, not exceeding the sum of $5000, without proof of the necessary facts, and merely because the statute provided for a liability.^ The second instruction told the jury that they should find the issues for the plaintiff if she had established, by a preponder- ance of the evidence, the material allegations of any of the counts in the amended declaration. There was no instruction telling the jury what the material allegations of the several counts were, and what were the material allegations was a matter of law for the court. Although it is a practice not to be commended for the court to refer the jury to the declaration for the issues, it has not been considered error to make such reference where the instruction requires proof of the averments of the declaration.^ The proper method is for the court to inform the jury, by the 1 Shaw, C. J., in Commonwealth satisfaction, they are to find the de- V. Porter, 10 Metcalf, 263: "That fendant not guilty." course is, for the judge to direct Brace, J., in Fisher v. Lead Co., the jury hypothetically, to declare 156 Mo. 479: "This case furnishes what the law is, with its exceptions an apt illustration of the futility of and qualifications, to explain it, and endeavoring to apply abstract prop- to state the reasons and grounds of ositions of law to a case they do not it, if, in his judgment, such explana- fit. For the error noted, and to the tion is necessary to make it clearly end that a jury in another trial may inteUigible to the minds of men of be told, not what the law of the good judgment and common experi- case is — it is sufficient if the court ence, but without legal knowledge understands that — ^but clearly what and skill; then to state to the jury, they must do, by way of a verdict, that if certain facts necessary to on the facts in the case reaUy in is- constitute the offense, and which sue, as they may find them, the there is evidence tending to prove, judgment of the Circuit Court is re- are proved to their satisfaction, versed and the cause remande(^ for they are to find the defendant new trial." guilty; but if certain material facts, 2 Gantt, P. J., in State v. David, which there is some evidence tending 131 Mo. 380: "Again, it is urged to prove, are not proved to their against this instruction that it re- 534 CONDUCT OP THE TRIAL. [ChAP. IV. instructions, in a clear and concise manner, as to what material facts must be found to authorize a recovery. The averments in the declaration which would be clear to a lawyer would often be obscure and unintelligible to the average juryman. (Moshier v. Kitchell, 87 111. 18.) Where the jury are not only referred to the declaration to determine the issues, but are instructed to find a verdict for the plaintiff if the material allegations of the declar- ation are proved, they are left to decide, as a matter of law, what are the material allegations, and might conclude that some alle- gation essential and material in the law was not material or neces- sary to be proved to justify a recovery ; and such an instruction as this was held to be undoubtedly erroneous in Toledo, St. Louis and Kansas City Railroad Co. v. Bailey, 145 111. 159. * * * SWANSON V. ALLEN. 108 Iowa, 419. [1899.] On the 22d day, of June, 1896, the plaintiff executed a written order to the Aultman Company, of Ohio, to deliver to him a com- plete threshing outfit through its agent, R. H. Allen, at Early, Iowa, accompanied by a specific written warranty. * * * The petition alleged in the first two counts the purchase of the outfit of the defendant on his oral warranty that it was of good material, and would do as good work and as much work in all ferred the jury to tlie indictment to charged, which was simply that de- find the issues they were to pass fendant had murdered Henderson, upon. As was said in this court in the deceased, by administering to State V. Scott, 109 Mo. 226, 'the him strychnine. The mere reference jury should not be referred to the by the court and counsel for the pleadings in civil, or the indictment State in these instructions to 'the in criminal, eases to ascertain the crime charged in the indictment' issue. ' But mere reference to the could not have been prejudicial, indictment by the words 'as charged Counsel for defendant uses the same in the indictment ' or ' as mentioned phraseology in his own instruction in the indictment, ' after the court in the same connection. Britton v. has once clearly defined the issues, St. Louis, 120 Mo. 437; Edelmann does not constitute error. v. Transfer Co., 3 Mo. App. 503; "In this case the court had fuUy Corrister v. Railroad, 25 Mo. App. defined the essentials of the crime 619. * * *" Sec. 7.] swanson v. allen. 535 kinds of grain as any other of like size and capacity, and a breach thereof. In count 1 the plaintiff prayed for damages, but in count 2, in addition, averred the tender of the return of the out- fit, and asked judgment for the value of the property paid, and the cancellation of the notes executed. Count 3 was like count 1, save that it alleged the personal warranty mentioned as an in- ducement to take the outfit, even though the property was bought of the company. The answer consisted of a general denial, and an averment that the sale was by a written order, and that the property was accepted by the plaintiff thereunder; and, in the counterclaim, recovery was claimed on three notes matured be- cause of the nonpayment of interest. Trial to jury, verdict and judgment for the plaintiff, and the, defendant appealed. Ladd, J. Nothing is of greater importance in a jury trial than that the court shall make clear and certain to the jurors the very issues they are to determine. Ordinarily those required to serve are unaccustomed to the duties devolving upon them, and are likely to become confused by the mass of conflicting evidence and the illimitable arguments of counsel. The very purpose of instructing them is to make plain the issues they are to try, and the rules of law by which the evidence is to be examined and applied. Pleasants v. Fant, 22 Wall, 116; Duthie v. Town of Washburn, 87 Wis. 231 (58 N. W. Eep. 381). They should not be required to search the pleadings, even though copied into the instructions, for the controverted facts to be passed upon. It is often difficult for the experienced lawyer to fix upon the precise contentions of the parties, and there can never be any degree of certainty that jurors, without legal training, have been able to do so from an examination of the pleadings; besides, it is as much the duty of the judge to extract the issues from the plead- ings, and make them known and intelligible to the jurors, as it is their duty to pass upon them when this has been done. The practice of referring the jury to the pleadings has been con- demned by this court. Porter v. Knight, 63 Iowa, 367 ; Keatley V. Eailway Co., 94 Iowa, 688; Bryan v. Eailway Co., 63 Iowa, 464. Also that of reading them as part of the charge. Hall v. Carter, 74 Iowa, 366. Copying the pleadings into the instruc- tions as a statfiment of the issues is subject to the same criticism as the use of the originals, if the jury are permitted to take these upon retirement for deliberation. The only difference lies in their attachment as a preface to the other portion of the charge, 536 CONDUCT OP THE TRIAL. [ChAP. IV. and the use of the ori^nal separately. In Gorman v. Railway Co., 78 Iowa, 518, so copying was disapproved, and in Robinson & Co. V. Berkey, 100 Iowa, 136, it was held erroneous. In HoUis V. Insurance Co., 65 Iowa, 460, the issues were subsequently stated, the copies being treated as surplusage. In Little v. Mc- Guire, 43 Iowa, 447 ; and Crawford v. Nolan, 72 Iowa, 673, it was held that, in view of the plain and unambiguous language of the pleadings, and the simplicity of the issues, stating them in the words of the pleader was without prejudice. The rule, then, de- ducible from these authorities is that the court must determine from an examination of the pleadings what the issues are, and so state them to the jury as to be readily comprehended, and that setting out the pleadings in lieu thereof will not be tolerated, unless manifestly without prejudice. We may add that such issues cannot be too clearly and explicitly stated, and that terse- ness and brevity will uniformly add emphasis. In the ease at bar, the pleadings, except an amendment and general denials, were copied as a statement of the issues, cov- ering nine closely printed pages of the abstract, and constituted the first eleven instructions. As the petition was in three counts, and the counterclaim contained a like number, this involved un- necessary repetition, tending to confusion, and to the obscurity of the real differences between the several issues in controversy. They should have been made plain and accessible to the jury, in language comprehensible to those unlearned in the law, and free from vain repetition. * * * Judgm,ent reversed. GURLET V. MO. PAC. RY. CO. 93 Missouri, 445. [1887.] Black, J. Plaintiff recovered a judgment against the de- fendant for ten thousand dollars damages for personal injuries. The grounds of the defendant's complaint are: (1) the refusal of the court to sustain a demurrer to the plaintiff's evidence; (2) the giving of plaintiff's first instruction; (3) excessive damages. Twelve or fifteen years ago the defendant constructed a plank walk from its depot at Pleasant Hill to the Planters' House, at Sec. 7.] gurley v. mo. pac. ry. co. 537 that place. The walk was then intended to accommodate passen- gers in going to and from the dining-room at the hotel. It has, at all times since, been used by the public in going to and from the depot. Between the Planters' House and the depot, the walk crosses a side or house track, which is habitually used by the defendant for standing or storing ears. On the 22d of January, 1885, a number of cars were standing on this track, six or seven to the north, and others to the south of the crossing. They were detached at the walk so as to leave an open space of tlj-ree or four feet for persons to pass through. The petition sets out the fore- going facts, and then states that, while attempting to use the crossing, and by reason of the negligence of the defendant's servants, plaintiff was, "suddenly, and in a manner hereinafter stated," caught between said cars; "that, at the time he ap- proached said crossing as aforesaid, he attempted to pass through the opening between the cars, stationed on either hand thereof as aforesaid; that, just as he entered said opening, defendant, by its agents, servants, and employees, unskilfully, negligently, and carelessly, and with great violence, drove and forced on or against the said stationary cars, on the northeasterly end of said side track, certain loose cars, or a loose car, whereby said station- ary cars were driven on and against plaintiff, and he was crushed and mangled between them and the other of said sta- tionary cars, and received the irreparable injuries aforesaid." The evidence shows that these cars were in the position before described during the day, and that various persons had passed between them on the walk. About seven or eight o'clock in the evening, plaintiff started from the Planters' House to the depot, intending to post a letter on the mail train. He says when he got to the crossing, he stopped and looked both ways, but could see no engine or moving train. The instant he stepped between the cars those to the north suddenly moved to the south and caught him as the cars came together. He received injuries to his leg which are serious and permanent. He states that when he approached the cars they appeared to be still, that it was light, and that he saw no engine or moving train, and that the racket when hurt seemed to come from the car that hit him. The grade of the side track at and to the north of the crossing slopes south- ward. The evidence of the plaintiff's son, and that of some employees of the defendant, who were called by the plaintiff, tends to show that there was no engine at or about the side 538 CONDUCT OP THE TRIAL. [ChAP. IV. track at that time or even that afternoon. The defendant asked no instructions, and offered no evidence, save that of one or two physicians as to the character of the injuries. The plaintiff's first instruction states hypothetically the foregoing facts in detail, which the evidence shows and tends to show, and eon- eludes as follows: "That, at the time plaintiff so attempted to pass between said cars on said crossing, he was, by reason of the carelessness and negligence of the defendant's agents, serv- ants, and employees, without any negligence or carelessness on his part contributing to the injury he received, caught between the cars so standing on said side track and so separated at said crossing, and that he thereby, and by reason thereof, received the injuries complained of in his petition, then the jury will find for the plaintiff." * * * From the general and indefinite instructions, which were given, it would seem that the case was tried by the plaintiff and court on the theory that it was sufiicient and gogd pleading to state generally, that plaintiff was injured by the carelessness and negligence of the defendant's agents and servants. It is clear that the pleader never thought of resting his case on such alle- gations ; for while there is such general allegation, still, by a part and parcel of it, reference is made to the subsequent specific acts of negligence. But a petition with such a general allegation only would be worthless, and a like instruction equally faulty. In cases like the present one, where the negligence is a mixed question of fact and law, where the jury must determine whether the defendant was negligent or not in the light of the surrounding circumstances, the acts, which it is intended to be shown were negligently done, should be set out with a reasonable degree of particularity, and in some appropriate form of ex- pression charged to have been negligently done. The defendant will then be notified of what he is charged. Issues can be made and submitted to the jury. Of course the statement of the mat- ters of inducement, the surroundings and situation of the parties, need not be coupled with an allegation of negligence. We have recently held, where the method of pleading before indicated is pursued, the plaintiff may, under his petition, show that the de- fendant knew, or, by the exercise of ordinary care, would have known, that the machinery or appliances were defective and out of repair. Crane v. Railroad, 87 Mo. 591. The acts done or Sec. 7.] davidsok v. Stanley. 539 omitted must, however, be stated with a reasonable degree of particularity. So far as the instruction is concerned, it permits a recovery if the jury should find that the plaintiff was, by reason of negli- gence of defendant 's employees, caught between the cars. Negli- gent in what respect? It does not say. Such a general and indefinite instruction would be bad on good pleadings. It is true the instruction requires the jury to find the existence of a great many things, but they are not required to find that there was any negligence on the part of defendant in respect of any of them. With these results the question of excessive damages becomes immaterial. The judgment is reversed and the cause remanded. All concur. DAVIDSON V. STANLEY. 2 Manning & Gra/nger, 721. [1841.'] Assumpsit, against the defendant as the drawer, payee, and indorser of ten bills of exchange, amounting altogether to £7366 17s. 7d., drawn, and payable, at different periods in the year 1839. The pleas denied that the bills were drawn or indorsed by the defendant. At the trial before Rolpe, B., at the last Liverpool Assizes, the ten bills were produced, and purported to be drawn and indorsed by "Eobert Blundell, by procuration of Thomas S. M. Stanley. Blundell, the person representing himself in these instru- ments as the agent of the defendant, had been his understeward, but about eleven years ago, seven months after the death of the late head steward, he was promoted to the office of head steward. It was stated and admitted, that since the negotiation of the bills in question Blundell had been convicted of embezzling the moneys of his employer, and transported for fourteen years. The bills were drawn upon and accepted by five persons, one of whom was tenant of the defendant, another his shepherd, and the other three were also servants employed by him, who had, at Blundell 's request, given their acceptances to Blundell, in blank. 540 CONDUCT OP THE TRIAL. [ChAP. IV. There was no proof of any direct authority from the defend- ant to Blundell, either to draw or to indorse bills for him. The circumstances under which it was contended, on the part of the plaintiff, that the jury might infer an authority, were these: (The report here sets out a number of circumstances relied on to show authority.) The learned judge in his direction to the jury, told them, that in order to make out that a party is drawer and indorser by the agency of another, it is not necessary to have a written authority, but that it is of the greatest importance that there should be very clear evidence that the agent has authority for what he does with regard to bills : that ordinarily speaking persons receiving such bills would require distinct written or verbal authority, in order that there might be no difficulty afterwards: that a party who transacts business with one who acts in the name of another may always render himself secure by refusing to advance money without distinct proof of the alleged authority; that the au- thority, however, might be circumstantial only, as where the principal profited by the transaction, or trusted to the agent for reimbursement, or where, though he derived no advantage from the transaction, he acquiesced in it, but that in such cases the evidence should be extremely clear; that although the defend- ant's bankers might have had reason to suppose that Blundell was using the defendant 's name with his authority, that was not equivalent to notice to the defendant himself and that the de- fendant was not bound by anything of which the bankers may have had notice, or which by inquiry they might have fished out. The learned baron went minutely through the evidence, and observed upon the absence of McDonald and the non-production of the pass-book with the Commercial Bank. The jury, which was a special one, consulted together for a few minutes, and then returned a verdict for the defendant. Stephen, Serjt., now moved for a new trial on the ground of misdirection. * * * TiNDAL, C. J. I am of opinion that no ground has been shown for this motion. I do not perceive that any proposition of law was laid down by the learned judge which was not strictly cor- rect. The whole objection amounts to this, — that the opinion of the judge was delivered in favor of the defendant. I think it is no objection that a judge lets the jury know the impression which the evidence has made upon his own mind. At all events, Sec. 7.] davidson v. Stanley. 541 the party objecting to such a course should show that the im- pression entertained by the judge was not justified by the evi- dence. If bankers could recover upon such a state of facts as was presented to the jury in this case, every farm agent might pledge the credit of his employer to an indefinite amount. Here, there was no direct authority ; and the case of Murray v. The East India Company, establishes that a general authority to receive and pay, does not authorize the agent to indorse bills of exchange. Here, it was never shown that the defendant knew, or had the means of knowing, that his name was used in the manner in which it was used by Blundell. BosANQUET, J. I am quite of the same opinion. I think the verdict was perfectly right. The learned judge considered that there was some slight evidence of authority, and that he would not be justified in taking the case upon himself. It seems to me that if a nonsuit had been directed, there must have been a new trial. A judge has a right to state what impression the evi- dence has produced on his mind. CoLTMAN, J. The learned judge seems to have made strong observations; but not stronger than he was justified in making. A large mass of evidence had been given, which, though of little weight in itself, was of such a nature as might mislead a jury. ,Bule refused.^ 1 See also Mitchell v. Harmony, follow from that, that we are to 13 Howard, (U. S.) 115, approving allow the bill of exceptions. I my- an equally vigorous comment on the self have had some practical experi- evidence. ence as a common law judge, and I The judge is not required to com- know that some judges have thought ment on the evidence or advise the it right to balance the evidence on jury as to matters of fact, but may questions which juries have to con- do so as a matter of discretion. sider on the one side and on the Lord O'Hagan in Prudential Ins. other, and to leave the jurors, who Co. V. Edmonds, L. E. 2 App. Gases, are constitutionally the judges of 487: "I am free to say that the fact, to draw their own conclusions; expressions used by the learned but I am aware, also, that other judge were very strong indeed, and judges, and I should infer from this I am not indisposed to admit, with bill of exceptions, although I know one of the learned judges of the nothing of his practice otherwise. Court of Appeal, that the jurors may that the learned Lord Chief Baron is to some extent have thought those one of them, who think it to be their expressions strong enough to coerce duty to direct the juries as well as their judgment upon the question they can upon questions of fact as before them. But it does not at all upon questions of law; not to coerce 542 CONDUCT OF THE TRIAL. [ChAP. IV. ALMS V. LEONARD. 58 New York, 288. [1874.] Appeal by defendants Stevens and Hathaway from judgment of the General Term of the Supreme Court in the third judicial department, affirming, as to them, a judgment in favor of plain- tiff entered upon a verdict, and affirming an order denying a motion for a new trial. This was an action upon a promissory note. The defense was payment. Plaintiff was called as a witness and gave testimony in his own behalf. Defendants called two witnesses who testified, in substaance, that they knew plaintiff's reputation and that it was bad. The court charged the jury, among other things, as follows : 'iYou have the plaintiff's evidence, to which you are to give such credit as you think it entitled ; and allow me to say, before the consideration of the evidence, that the impeachment or at- tempted impeachment of the plaintiff has entirely failed. It has not affected his credit, but yet the credit of the witness is always in the hands of jurors, and they are to give such credit to each one as they are entitled to. You are to look at the witness on the stand and observe the evidence he gives, and the proba- bility of the story he relates, and the consistency of the state- ment he makes, and his apparent candor and frankness and his interest in the case. All these things you will take into consider- ation in determining his credit. You will take into consideration such evidence as tends to impeach — for instance, if his state- ments out of court are inconsistent with his evidence in court, it is proper for your consideration in determining the credit due him as a witness ; and it is proper for you to consider the credit to be given to the plaintiff and all the different witnesses called them, but to give expression to their expressions in this charge, yet inas- own opinions in clear words, and if much as the reference of a matter those expressions of their opinions to the judgment of the jury must in clear words do lead the jury to very often be an understood refer- conclusions in accordance with the enee and not an expressed refer- conclusions of the learned judge, the ence, I take it that upon the whole judge is the better pleased with that is no ground upon which we that, and very often the jurymen can set aside the verdict or main- are none the worse for it. There- tain the bill of exceptions." fore, although there are very strong Sec. 7.] allis v. Leonard. 543 upon the stand. You are to determine who has told the truth and what the truth of this transaction is. ' ' The defendant excepted to so much of the charge as is in the words following: "That the impeachment or attempted impeachment of the plaintiff has entirely failed; it has not affected his credit." Church, C. J. Two witnesses gave evidence tending to, show that the plaintiff's general character was bad. This evidence, though not very strong, was legitimate upon that question. The judge charged the jury, "that the impeachment, or attempted impeachment of the plaintiff, has entirely failed; it has not affected his credit," etc., which was specifically excepted to. I can see no sufficient answer to the point that this was error. The evidence was competent, and whether strong or weak, should have been submitted to the jury for their consideration, upon the credibility of the witness. Three answers have been suggested: First, that other portions of the charge neutralized the effect of this clause. It is true that the learned judge told the jury that the credibility of the witness was a question for them, but we think the fair construction of all he said about it was to instruct them that, in passing upon the credibility of the witness they must exclude from consideration the element of general bad char- acter, sought to be proved by the two witnesses called, and the jury must have so understood it. Second, it is said that, ^at most, it was but an expression of opinion or commentary upon the facts which is not the subject of a legal exception. This is not tenable. It was more than an opinion or commentary; it was a decision or instruction that the evidence adduced was not sufficient to be considered by them, that it was a failure, and did not affect the credit of the witness. This was an instruction in the form and substanace of law. There are cases holding that a mere opinion or commentary upon the facts is not the subject of an exception, but in such cases, it is held that the judge must accompany such commentary with explicit instructions that it is the duty of the jury, notwithstanding, to consider the evidence and decide as they think the truth requires.^ (19 Wend. 186; 42 Barb. 326). To be free from legal objection it must be ad- 1 Me. Justice Swatne in Nudd in charging the jury, the judge V. Burrows, 91 II. 8. 426: "It ap- commented upon the evidence, pears by the bUl of exceptions, that. Questions of law are to be de- 544 CONDUCT OF THE TRIAL. [Chap. IV. visory merely, and must not be put in the form of a direction as matter of law. (21 Wend. 509-525.) The jury is the con- stitutional tribunal for the determination of questions of fact; and I am persuaded that justice is better administered when courts refrain altogether from any interference with its right- ful province. Jurors cannot distinguish between a direction in a matter of law or fact. They are bound to take the law from the court; and a positive direction from the bench, as to a ques- tion of fact, is as potent as if it pertained to a question of law ; and even an expression of opinion calculated to influence the de- cision of the jury in a matter clearly within their cognizance, should be critically scrutinized. In this case the direction was unqualified as we construe the charge. ^ Third, it is claimed that the exception is not available, because no request was made to submit the question to the jury. The rule invoked does not apply. There was no necessity for a request ; the court had made a dis- termined by the court; questions of fact, by the jury. The authority of the jury as to the latter is as absolute as the authority of the court with respect to the former. No question of fact must be with- drawn from the determination of those whose function it is to decide such issues. The line which separates the two provinces must not be overlooked by the court. Care must be taken that the jury is not misled into the belief that they are alike bound by the views expressed upon the evidence and the instructions given as to the law. They must distinctly under- stand that what is said as to the facts is only advisory, and in no wise intended to fetter the exercise finally of their own independent judgment. Within these limita- tions, it is the right and duty of the court to aid them by recalling the testimony to their recollection, by collating its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most important facts, by eliminating the true points of inquiry, by resolving the evi- dence, however complicated, into its simplest elements, and by showing the bearing of its several parts and their combined effect, stripped of every consideration which might oth- erwise mislead or confuse them. How this duty shall be performed depends in every case upon the dis- cretion of the judge. There is none more important resting upon those who preside at jury-trials. Consti- tuted as juries are, it is frequently impossible for them to discharge their function wisely and well with- out this aid. In such cases, chance, mistake, or caprice, may determine the result. We do not think the remarks and suggestions of the learned judge in this case exceeded the proper li- cense. ' ' 2 And so in M 'Lanahan v. Ins. Co., 1 Pet. 170, where the judge charged that upon the whole evi- dence the plaintiffs were not en- titled to recover. Sec. 7.] geand trunk by. v. ives. 545 tinet ruling that the attempted impeachment was a failure, which as we have seen was error, and the defendant excepted. This was all that was necessary to protect the defendant's rights. We cannot of course speculate as to whether this error had any effect upon the result or not. "We are not permitted to consider that question. The error is one which cannot be overlooked with- out establishing a dangerous precedent. The judgment must be reversed, and a new trial ordered, costs to abide the event. All concur. Judgment reversed. GRAND TRUNK RY. v. IVES. 144 v. S. 408. [1892.] Mr. Justice Lamar. * * * It is also insisted that the court erred in refusing the following request of the defendant for instructions : "If you find that the deceased might have stopped at a point fifteen or eighteen feet from the railroad crossing, and there had an unobstructed view of defendant's track either way; that he failed so to stop ; that instead the deceased drove upon the de- fendant's track, watching the Bay City train, that had already passed, and with his back turned in the direction of the approach- ing train, the deceased was guilty of contributing to the injury, and your verdict must be for the defendant, although you are also satisfied that the defendant was guilty of negligence in the running of the train in the particulars mentioned in the declara- tion." The reason given by the court for refusing this request was that " it is too much upon the weight of the evidence and confines the jury to the particular circumstance narrated without notice of others th£lt they may think important." This reason is a sound one. In determining whether the deceased was guilty of contributory negligence the jury were bound to consider all the facts and circumstances bearing upon that question, and not select one particular prominent fact or circumstance as controll- ing the case to the exclusion of all the others. Cooper v. Lake Shore & Mich. South. Railway Co., mpra; Ba:ltimore, etc., Rail- H. T. P.— 35 546 CONDUCT OF THE TRL4L. [ChAP. IV. road V. Kane, 69 Maryland, ll.i Moreover, the substance of the request, so far as it was correct, had already been given, in gen- eral terms, by the court in that part of the charge referring to the degree of care and caution required of the deceased in ap- proaching the railroad qrossing, in order to free him from the charge of contributory negligence; and the refusal of the court to give it again, in different language, was not error. Erie Rail- road Co. V. Winter, 143 U. S. 60, 75. Judgment affirmed. BARE, V. THE CITY OF KANSAS. 105 Missouri, 550. [1891.] Action for personal injuries alleged to have been caused by falling into a hole in the street negligently left unguarded by the city. The defendant denied the negligence charged, and set up contributory negligence on the part of the plaintiff. There was a verdict for plaintiff, and defendant appealed. ^ Brace, J. * * * Instruction, numbered 2, given for the plaintiff is as follows: "The plaintiff, Mrs. Barr, was only re- quired to exercise ordinary care in passing over Campbell street ; and ordinary care is such care as a person of ordinary prudence would have exercised under similar circumstances ; and she had the right in crossing the street to assume that the same was in safe condition, unless she knew or had reason to suppose that it was unsafe; and if she did not know or had no reason to sup- pose that the street was unsafe by reason of the hole in question, then the jury cannot find her guilty of contributory negligence alone from the fact that she was running when she fell into the hole, or that her attention was attracted to some other object so that she did not notice where she was stepping. ' ' 1 Thayer, Circuit Judge in Ins. evidence whicti liad an immediate Co. V. Hillmon, 107 Fed. 834: "Be- bearing on the same question, and sides, this instruction singled out might be regarded as very persua- one fact bearing upon the question sive evidence that the body returned whether the corpse that was brought was Hillmon 's dead body." back to Lawrence was Hillmon 's And so in Ey. v. Leak, 163 U. S. body, and gave it undue promi- 280. nence, inasmuch as there were many i The statement has been eon- other facts and circumstances in densed. Sec. 7.] bark v. the city of kansas. 547 The crucial question of fact in the case was whether the plain- tiflE was guilty of contributory negligence, a question that could be fairly determined by the jury only in the light of all the facts and circumstances immediately preceding and attending the injury. This instruction selects out of those facts two of the most important, directly points the attention of the jury to them, and tells them that neither of these acts of the plaintiff alone is sufficient to warrant them in finding her guilty of contributory negligence, leaving in the background and out of sight all the other facts in the case by which these facts might have been quali- fied and characterized as prudent or imprudent under the actual circumstances of the case. The instruction was well calculated to mislead the jury. They ought not to have been so directed as that they could feel at liberty to consider that any particular fact bearing upon the issue was eliminated from the case, and that they were free to determine it upon what remained. In determining the question of the plaintiff's negligence all the facts and circumstances in evidence bearing upon that issue are to be considered and passed upon, not separately and independ- ently, but in their entirety and in their combination with and relation to each other as shown, and it is the peculiar province of the jury, when thus viewing, to measure them by a standard of prudence and care derived from their own experience of what an ordinarily prudent and careful person would or should have done under the circumstances ; and the court cannot select out of those facts some one or more of them and affix to it, or them, an independent value without distorting the comprehensive view the jury should take of the case as a whole. "Whether a person by running in the public streets in one direction, while looking in another, is guilty of negligence is a question of fact for the jury that can be determined in any given case only by considering the two acts in combination with each other, and in connection with all the other attendant facts and circumstances, and it was the province of the jury to weigh and pass upon those acts viewed in such combination and connection, and not alone, or as separate and independent facts. The court in this case, without giving any instruction advising the jury that these acts are to be so viewed and considered, practically deprived the acts themselves of much, if not all, their proper force and significance in the mind of the jury, in the absence of such 'a'dvi(3e, by telling thtem that neither of those acts alone will 548 CONDUCT OP THE TRIAL. [ChAP. IV. warrant them in finding the plaintiff guilty of negligence. Upon the same principle the court might have gone on and taken up each fact in the case, and at the end having found that each fact in itself was naught as evidence to charge the plaintiff with negligence, and having so told the jury, without further advice, it would not be a matter of suprise that having been told that each fact was naught they should find that the sum of the facts was naught, and that there was no negligence, when if the facts had been considered in their proper bearing and relation to each other a case of gross negligence might have been made out. The difference between the instruction supposed and the one in hand is one of degree only, and not of principle ; it is a vicious mode of instruction, trenches upon the province of the jury to weigh all the evidence, without bias or comment from the court, and we find no other instruction given in this case curing the one under consideration. The vice of specially calling the attention of the jury to isolated facts or otherwise giving prominence to a view of the case favorable to one side, while measurably retiring the view of the other side by ignoring it, or presenting it only in general terms, has been frequently condemned by this court. Sawyer v. Railroad, 37 Mo. 263, loc. cit.j Anderson v. Eincheloe, 30 Mo. 525 ; Fine v. Public Schools, 39 Mo. 67 ; Rose v. Spies, 44 Mo. 23 ; Jones V. Jones, 57 Mo. 142; Raysdon v. Trumbo, 52 Mo. 38; Chappell V. Allen, 38 Mo. 213. * * * INLAND NAVIGATION CO. v. TOLSON. 139 V. S. 551. [1891.] Mr. Justice Gray delivered the opinion of the court. This was an action brought March 11, 1884, by Tolson against the Inland and Seaboard Coasting Company to recover damages for the crushing of his foot by the negligent management of a steamboat of the defendant. The plaintiff recovered a verdict for $8,000, judgment on which was affirmed in general term. 6 Mackey, 39. The defendant sued out this writ of error. At the trial it appeared that the plaintiff was the owner and wharfinger of a wharf in the Potomac River, known as Sham- Sec. 7.] inland navigation go. v. tolson. 549 rock pier, built on piles, in a suitable and substantial manner, early in 1883, and the front of which, twelve feet long, was parallel with the channel of the river, and had three heavy fender piles at each corner; that on September 15, 1883, the plaintiff, having a small basket of pears and an empty demijohn to put on board the defendant's steamboat for Washington, neglected to signal her as she came up the river, and hailed her as she was passing the wharf, whereupon she backed in to make a stern landing, and struck the piles at the lower end of the wharf with considerable force; that at that time the weather was calm and the tide just turned flood, and neither the captain nor the pilot was in the pilot-house. The plaintiff testified that, while he was standing near the edge of the wharf by the capstan post, ready to catch a line to be thrown from the steamboat, she struck the wharf with suqh force as to start and break the plank flooring, and to catch and crush his left foot between the planks and that post; and that at that moment the mate of the steamboat reached over and took the basket from his hand. The defendant called as witnesses the pilot and others on board the steamboat, who testified that the plaintiff, as the steamboat neared the wharf, called out that there was no need to throw a line, and leaned over and handed the basket and demijohn to the mate, and the mate gave the signal to go ahead, and he and the plaintiff shook hands and joked together, and the boat then struck the wharf, and jammed the plaintiff's foot between^he wharf and one of the fender piles ; that the boat was then turned about and made a bow landing at the wharf for the purpose of rendering the plaintiff assistance, and the plaintiff was taken ashore, and then and there, in the presence of the mate and others, said "that he was hurt by his own fault, that he was standing in a dangerous position." The defendant also introduced evidence that the plaintiff, the next morning, at his own house, explained to two of his neighbors how the accident happened, and said to them "that it was his own fault and nobody else's, that he did not blame any of the boat people," and stated the circumstances of the accident in the same way as the defendant's witnesses. Upon the comparative weight to be given to the statements made by the plaintiff shortly after the injury, and to his testi- mony at the trial, the judge instructed the jury as follows: 550 CONDUCT OP THE TRIAL. [ChAP. IV. ' ' It may, at first, seem surprising that a man who himself wears the shoe should not be able to tell where it pinches ; that a man who has his foot crushed should not necessarily know better than any other party where it was hurt, and how it was hurt; and yet it is not an uncommon thing for other men who saw the thing done, to be able to tell better than the man himself how the accident happened. The shock and pain may have the effect of rendering the man quite incapable of telling just exactly how the thing took place, so if you find the man at different times making somewhat different statements it does not at all follow that it was his intention to mislead. You are, therefore, to look at any difference of statements that he may have made, if you believe he did make different statements, in that point of view. He may not be the best witness as to what did happen to himself or the manner in which the thing may have hap- pened. ' ' The defendant excepted to this instruction, and contended that it invaded the province of the jury to determine the credit to be given to the plaintiff's various and contradictory statements, by directing them to look at the evidence in a particular point of view, and by treating the shock and pain of the injury as affecting not only his statements made the same evening, but also those made to his neighbors the next morning. -But the instruction, fairly construed, after calling the atten- tion of the jury to two distinct considerations, the one, the effect of the shock and pain (which could not have been understood to apply to statements made after the shock and pain had sub- sided), and the other, that the making of different statements at different times did not necessarily imply an intention to mis- lead, suggested to the jury to look at any difference in the plaintiff's statements in that point of view. This was clearly within the judge's authority and discretion in aiding the jury to perform their duty.^ # * * BEAUMONT v. BEAUMONT. 152 Federal, 55. [C. G. A. 1907.] Gray, Circuit Judge. * * * In the case against John L. Beaumont there are seven assignments of error. It will only be 1 See also York v. Ey., 84 Me. 117. Sec. 7.] beaumont v. beaumont. 551 necessary to consider the first and second. They are as follows : "First. Because the court instructed the jury, with reference to the testimony of Charles Beaumont as to what Lucius S. Beaumont said and did at the time of the alleged gift, as follows : " 'You have no right to reject except for good reasons — reasons perfectly satisfactory to you;' adding the following words on that subject: 'You have no right, as counsel for de- fendant argued in this case, to ignore credible, unimpeached and uncontradicted testimony adduced by the defendant, and if you regard Charles' testimony or any other testimony produced by the defendant in relation to the alleged gift as credible, un- impeached and uncontradicted testimony, why, of course, you cannot ignore it or disregard it, but the facts of this case are such that I feel very sure I would not be justified in saying to you that you were bound to accept as absolute truth all that Charles has testified to. Testimony must be credible in its nature to be influential and must come from a credible source. You are bound, I repeat, to consider very carefully the testimony given by Charles. It is testimony of a most vital character in this case, but as was said by the Supreme Court of New Jersey in the case which I have referred to — I refer to the case of Cooley V. Barcroft, in 43 N. J. Law, 363: "The character of a witness or a number of witnesses may be so impeached, or their story so shattered by cross-examination or rendered so doubtful by inherent improbabilities, that their testimony, standing un- opposed by direct counter testimony, would be fairly subjected to suspicion. No court upon review could say, as a legal con- clusion, that, under such circumstances, a judgment which ignored such testimony was illegal." ' " * * * We think the language used by the learned trial judge, as recited in the first assignment, while quite accurately stating, as an abstract proposition, the rights and duty of the jury in regard to credible, unimpeached and uncontradicted testimony, was on the whole, when taken in connection with the allusions made to the testimony of Charles Beaumont, calculated to prejudice the jury unduly against the plaintiff in error. We do not think that any inference could have been drawn by the jury from this part of the charge, other than that, in the opinion of the learned trial judge, the testimony of Charles Beaumont should be considered as inherently improbable, and 552 coNDtrcT of the trial. [Chap. IV. that the truth of his story had been shattered by cross-examina- tion, and that they were justified in rejecting it. A careful reading of this testimony has not disclosed to us any ground for such an inference. We do not discover that there is inherent improbability in the story of Charles, or that that story has been shattered by cross-examination. Although the trial judge does not directly assert these things, it seems to be suggested by the manner in which the instruction is framed. ^ * # # NORFOLK, ETC., RY. v. U. S. 177 Federal, 623. [C. C. A. 1910.] Dayton, District Judge. * * * Finally, did the court be- low err, to the prejudice of the defendant, by giving, at the instance of the plaintiff, instructions 4, 5 and 7 ? These instruc- tions were as follows : " (4) The court instructs the jury that they can consider the evidence offered by the defendants relating to inspection of the alleged defective car, N. & W. 21158, at Bristol only in so far as it tends to contradict the testimony of the plaintiff 's witnesses upon the point as to whether or not the defect as alleged in the declaration did really exist at the time that the said car left Roanoke, Va. "(5) The fact that the defendant's witness testified that an inspection of N. & W. car 21158 was made at Bristol and that the alleged defect set out in the declaration was not discovered by him can only be considered as tending to contradict the evidence of the government's witness on that point, and its weight is for the jury. "(7) The court instructs the jury that in passing upon the question of the conflict in the evidence of the government in- spectors, and the inspector of the defendant railroad company at Bristol who testified to having inspected car N. & W. 21158, they must consider that one is positive testimony and the other is negative. The inspectors of the government testify that they inspected the coupling and saw that it was defective. There- 1 See also Weis v. BetMehem Iron aa to weight of tlie evidence unfair Co., 88 Fed. 23, holding a charge and misleading. Sec. 7.] Norfolk, etc., et. v. u. s. 553 fore the correctness of their testimony depends only on the fact whether or not they swore to the truth; while, on the other hand, in considering the testimony of the inspector of the rail- road, there are two things to be taken into consideration : First, did he testify to the truth when he stated that he did not discover the defect in the coupling; second, if he did swear the truth when he so stated, then did he, in examining the train in the limited time in which he claimed to have inspected it, make such close and accurate inspection as to be able to give persuasive evidence in contradiction of the testimony of the government inspectors. ' ' These instructions told the jury that the evidence of the in- spector of the company, whose express duty it was to inspect all cars coming into his yard at Bristol with a view to discover and report these very defects in safety appliances, and who has testified that in discharge of that express duty he did inspect this particular car 21158 and found no defect in its coupling device, could only be considered "in so far as it tends to con- tradict" the testimony of the government inspectors; that such evidence could only "be considered as tending to contradict the evidence of the government on that point" (that is, whether defect in the coupling device existed or not) ; and that such evidence was negative as to the inspection, while that given by the government inspectors was positive. We think there is error in these instructions, and that they should not have been given for these reasons: First, because they held the evidence to be solely contradictory in character ; second, because they tended to give undue weight to the evidence of the government inspectors ; and, third, because the evidence of the company's inspector was not negative but positive. We think the District Court for the Western District of Ohio in United States v. Balto. & Ohio R. R. Co. (not reported, but published by the Interstate Commerce Commission in pamphlet form). Judge Cochran, charging the jury in a similar case, has rightly held : "In considering the testimony of witnesses the jury should not give either more or less weight to the testimony of any wit- ness because of the fact that such witness testifies on behalf of the government, or on behalf of the railroad company, but the jury should give to the testimony of each witness that weight which in its judgment it is entitled to from all the facts and circumstances in the case." 554 CONDUCT OF THE TRIAL. [ChAP. IV. The District Court for the Northern District of Illinois, in Atchison, T. & S. P. Ry. Co. (not reported, but published by the Interstate Commerce Commission), has reiterated and approved this proposition. The evidence of the company's inspector was not negative. It is to be remembered that he was employed by the company for the express purpose of inspecting cars and dis- covering and reporting these and other defects; that he has testified that in discharge of this express duty he inspected this train and this particular car in question; that he lifted all the rods or levers to see if they were in condition from one end of the train to the other, always in accord with a fixed practice of his inspection ; and that he found no defect in the coupling device in question. This was positive evidence of a negative fact. In 17 Cyc. 802, it is well said : "The marked superiority of positive testimony is most com- monly affirmed in those cases where the opposing testimony is what has been hereinbefore denominated 'strictly negative.' If there is evidence that the attention of a negative witness was specially directed to the fact, or it can be legitimately pre- sumed or inferred that he was alert and would have observed had the fact occurred, his testimony that he did not see or hear is not necessarily weaker than opposing positive and affirmative testimony, and may indeed be entitled to more weight than the latter. Where witnesses testify positively to a fact and other witnesses absolutely deny it, the rule of comparative value as between positive and negative testimony does not apply, and the only question is to which side, under all the circumstances, credit is due." And a large number of authorities are there cited. In a case directly in point, the District Court of the United States for the Western District of Pennsylvania (United States V. Baltimore & Ohio R. Co., 170 Fed. 456) held: "Positive testimony is to be preferred to negative testimony, other things being equal; but where it was the duty of an inspector on the part of the railroad company to inspect cars, and he says that he did inspect the cars that came in and did not see certain defective appliances, that is not such negative testimony that it should not receive the same consideration, other things being equal between the witnesses, as positive testimony. ' ' See, also, Denver & R. G. R. Co. v. Lorentzen, 24 C. C. A. 592", 79 Fed. 291. Sec. 7.] statutes limiting the charge. 555 For this error in giving these instructions the judgment of the court must be reversed, and the cause remanded, with instruc- tions to set aside the verdict and grant a nevr trial. Reversed. STATUTES LIMITING THE CHARGE.i General Statutes, Massachusetts, 1860. (Chapter 115.) § 5. The courts shall not charge juries with respect to matters of fact, but may state the testimony and the law. Illinois Statutes, 1913.2 (Chapter 110.) [72. Charging jury.] § 72. The court, in charging the jury, shall only instruct as to the law of the case. [73. Instructions to be in writing.] § 73. Hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing. [74. Marking instructions — Modifying.] §74. When instruc- tions are asked which the judge cannot give, he shall, on the 1 These and similar statutory pro- jury, cannot be reviewed on writ visions in the various states do not of error. Carver v. Jaekson, 4 Pet. aflfect the practice in the Federal 1, 80; Magniac v. Thompson, 7 Pet. courts. 348, 390; Mitchell v. Harmony, 13 Mb. Justice Gray, in Vicksburg, How. 115, 131; Transportation Line etc., E. E. Co. V. Putnam, 118 U. S. v. Hope, 95 TJ. S. 297, 302 ; Taylor 545: "In the courts of the United on Evidence (8th ed.), § 25. The States, as in those of England, powers of the courts of the United from which our practice was de- States in this respect are not con- rived, the judge, in submitting a trolled by the statutes of the State case to the jury, may, at his discre- forbidding judges to express any tion, whenever he thinks it neces- opinion upon the facts. Nudd v. Bur- sary to assist them in arriving at a rows, 91 U. S. 426 ; Code of Georgia, just conclusion, conunent upon the § 3248. The exceptions to so evidence, call their attention to much of the judge's charge as bore parts of it which he thinks impor- upon the liability of the defendant tant, and express his opinion upon cannot therefore be sustained." the facts ; and the expression of ^ it seems that such a statute im- such an opinion, when no rule of pliedly takes away the power to law is incorrectly stated, and all sum up the evidence. Killian v. matters of fact are ultimately sub- Eigenmann, 57 Ind. 480; Eose v. mitted to the determination of the Kansas City, 125 Mo. App. 231. 556 CONDUCT OF THE TRIAL. [ChAP. IV. margin thereof, write the word "refused," and such as he approves he shall write on the margin thereof the word ' ' given, ' ' and he shall in no case after instructions are given, qualifj', modify, or in any manner explain the same to the jury otherwise than in writing. Exceptions to the giving or refusing any instruction may be entered at any time before the entry of final judgment in the case. MissouBi Revised Statutes, 1909. [1987. Instructions.] § 1987. "When the evidence is concluded and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions, and such instruc- tions as shall be given by the court on its own motion or the motion of counsel shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence ; which instructions shall be returned by the jury into court at the conclusion of the deliberations of such jury, and filed by the clerk and kept as a part of the record in such case. GROWS V. MAINE CENTRAL RY. CO. 69 Maine, 412. [1879.] Case for personal injuries received in a railroad crossing acci- dent. * * * Upon the evidence in the case it was contended in argument by the plaintiff's counsel that the engineer, under the peculiar cir- cumstances of the case, when he first saw the plaintiff in the way moving towards the crossing, had no right to assume that the plaintiff had seen the train or even knew that it was approaching, and that the law required him to use due care to avoid injuring the plaintiff after he saw him in peril ; and that the fact that the engineer did not then sound the whistle, or give the plaintiff any warning, taken in connection with the fact that no statute signals had previously been given, and that the engineer, after Sec. 7.] grows v. maine central rt. co. 557 he saw the plaintiff, kept no lookout to watch him, and allowed his train to continue on at the same high rate of speed as before, was a fact to be considered by the jury in support of the allega- tion that he ran his train recklessly, after he saw the plaintiff in peril. Upon this point the presiding justice charged the jury in the following language, in which it is claimed that he made an erroneous statement as to the evidence upon a material fact, and expressed an opinion upon issues of fact arising in the case in disregard of chapter 212 of the public laws, 1874 : "Upon this branch of the case, I do not perceive any neces- sity whatever for me to consider the question whether this was a road where the statute signals were required or not. There is no evidence in the case that the conductor or the engineer saw the plaintiff sooner than the plaintiff saw the train — about thirty-eight rods distant as they were coming out of the cut, as I recollect it, is the testimony when each saw the other. From the time the plaintiff saw the train he had all the notice the statute signals would give him, and, as was said in the opinion of the law court, 'vision was better than hearing.' The object of the statute signals was to give the plaintiff notice that the train was approaching, and if as soon as the engineer saw the plaintiff, the plaintiff saw the train, then so far as this averment in the writ is concerned, that the engineer ran reck- lessly after seeing him, it is entirely immaterial whether the statute signals were given or not. The averment of the plaintiff upon this branch of the case is that the engineer recklessly ran his train after he saw the plaintiff. The plaintiff saw the engineer as soon as the engineer saw him, so that it does not tend to sus- tain or disprove this allegation to show that the statute signals were not given. If they were required before the engineer saw him it does not tend to sustain this allegation that the engineer recklessly ran his train after he saw him ; and whether they were given after the engineer saw him or not is immaterial because the plaintiff had seen the train, and the ringing of the bell or sounding of the whistle would be no more warning to him than seeing the train itself. ' ' The verdict was for the defendants, and the plaintiff alleged exceptions and also filed a motion to set aside the verdict as against the weight of evidence and against law. Virgin, J. * * * It is contended that the presiding jus- 558 CONDUCT OF THE TKIAL. [ChAP. IV. tiee "expressed an opinion upon an issue of fact arising in the case," and that the plaintiff "being aggrieved thereby," is en- titled to a new trial, in accordance with the provisions of St. 1874, Chap. 212. The expression of opinion was in the charge. The judge, in illustrating a principle of law, said that, so far as he recollected the testimony, "the plaintiff saw the engineer as soon as the engineer saw him." But a mistake of this kind is not such an expression of opinion upon an issue of fact as is contemplated by the statute.^ If the judge inadvertently mis- state a fact, the counsel should at the time call his attention to it, that it may then and there be corrected by reference to the reporter, if necessary. Bradstreet v. Bradstreet, 64 Maine, 204 ; State v. Reed, 62 Maine, 128, 137. * * * EDDY V. GRAY. 4 Allen (Mass.), 435. [1862.] The trial was held before Lord, J., on a complaint under the bastardy act. * * * During the argument of the complainant's counsel to the jury, the judge interrupted him, saying, "You argue as if the com- plainant had testified that she has had no sexual intercourse with any other person than the defendant. ' ' The counsel replied, "Yes, sir, I so understood her." The judge said, "I do not think she thus testified, but it is for the jury to say." The counsel continued to argue as if she had thus testified. In his charge the judge said to the jury substantially as follows : ' ' You observed that I interrupted the counsel in his argument in rela- tion to the testimony of the complainant. I did not understand her to testify that she had no sexual intercourse with any other person about the time of her alleged connection with the defend- ant. My attention was called to it, and I was struck with the fact that neither counsel asked the question. The importance of that matter is this: the question is not simply, did the complainant have criminal connection with the defendant, but, is he the father of the child? If she had connection with no 1 For a case of prejudicial mis- Stainbrunner v. Ey., 146 Pa. St. statement of the eviddnoe, see 504. Sec. 7.] eddy v. gray. 559 other person, she knows the defendant to be the father. If she had connection with any other, you may think she does not know, though she may honestly believe the defendant to be the father. Perhaps, in fairness to her, if no inquiry was made of her upon the subject, you may think that her positive and un- equivocal declaration that he ds the father necessarily involves the denial of intercourse with any other. But the whole matter is wi)th you. You must remember the evidence. The fact that I do not remember a piece of testimony is of no importance, if you remember it; and you must be governed by your recollec- tion, and not by mine." To these remarks the complainant's counsel excepted as being singular, and as a charge upon the facts, in violation of law. The jury returned a verdict for the defendant, and the com- plainant alleged exceptions. Mereick, j_ * * * There was no irregularity in the con- duct of the trial by the presiding judge, or in his charge to the jury, which affords any just ground of exception. It was within the province of the court to call their attention to the evidence which had been introduced ; ^ the effect of it was distinctly sub- mitted to their consideration and judgment. There was no charge upon any matter of fact, but a mere allusion and reference to the testimony which had been laid before them. This was in 1 The court may properly state the testimony;" and this can that there was no direct evidence hardly be done without calling the on a given point, and that circmn- attention of the jury to the degree stances were relied on. Maynard v. of weight and importance to be at- Tyler 168 Mass. 107. Foster, J., tached to particular facts, if they in Durant v. Burt, 98 Mass. 161 : are prbved or admitted. To say that "It remains to consider the objec- certain circumstances deserve to be tion made to the instruction that seriously considered, or are entitled the fact that both parties were to great weight, is not expressing an brokers, and might be presumed to opinion as to what facts have been know the usages of their business, proved, but only instructing the was entitled to great weight. This jury with regard to the relative ma- is claimed to be a charge upon a teriality and importance of difEer- matter of fact forbidden by the ent portions of the evidence. To Gen. Sts. Chap. 115, § 5. This pro- assist and guide the deliberations of vision of law was considered in the jury by such comments is no Commonwealth v. Barry, 9 Allen, infringement upon their province, 276 and held to prohibit courts, in but often a duty necessary to lead charging juries, from expressing an their minds to an enlightened and opinion as to the credibility of wit- discriminating consideration of the nesses. But a judge may "state case." 560 CONDUCT OP THE TRIAL. [ChAP. IV. conformity to the requirements of the provisions of the statute upon the subject and therefore entirely unobjectionable. Gen. Sts., Chap. 115, § 5. * * * MORRIS V. LACHMAN. 68 California, 109. [1885.] FooTE, C. Action to recover damages for slander, in the alleged speaking by Lacliman, of and concerning the plaintiff and one Henry Cavendish, the words : ' ' They are horse-thieves and scoundrels." The defendant filed a second amended answer, in which the main ground of defense was stated to be, that he believed his horse, harness and wagon had been stolen, and did not know the persons who had taken them, and that in using the language complained of he had no reference to the plaintiff, but spoke it of those unknown persons who he honestly believed had com- mitted a larceny of his property. * * * At the trial it was claimed, on the part of the plaintiff, that the defendant used the language set out in the complaint, of and concerning the plaintiff and Mr. Cavendish, while said Lachman was standing inside the door of Messrs. Lesher and Saunders' store in Oakland, and that plaintiff and Mr. Cavendish were passing by on the street in front thereof, and that just as they went by Mr. Lesher said to the defendant: "There goes the lady and gentleman who left the horse and wagon here, now." To which defendant replied : ' ' Lady and gentleman be damned ! — they are horse-thieves and scoundrels. ' ' And the plaintiff in- troduced evidence to show the speaking of the words by defend- ant as laid in the complaint. * * * As part of the charge ^ven by the court and excepted to by the plaintiff, after objection duly made, was the following: "In determining the question as to whether the slanderous words charged were spoken about or concerning the plaintiff, it is proper for you to consider whether at this time, when these words were alleged to have been' spoken, Lachman knew the person of the plaintiff or not ; and if he did not know the person of the plaintiff at this time, how could he have referred to her ? Sec. 7.] herkelrath v. stooket. ' 561 And how could he have pointed her out as the subject of his accusation ? ' ' This is justly criticised as being argumentative, and instruct- ing the jury upon the weight of testimony. By it they are in effect told that if the defendant did not know the plaintiff personally, he could not have referred to her or pointed her out as the object of the accusation contained in his language which is the matter of complaint. At least, it is fairly sus- ceptible of this construction, and may have misled the jury. The other portions of the court's charge which are objected to were not improper, in view of the declaration of this court as to the right of the trial judge to state the testimony given in a cause to a jury as "tending to prove" a matter. (People v. Perry, 65 Cal. 568; People v. Vasquez, 49 Cal. 560.) For the error committed, the judgment and order should be reversed and cause remanded.^ HERKELRATH v. STOOKEY. 63 Illinois, 486. [1872.] Mr. Chief Justice Lawrence delivered the opinion of the court. This was a contest between the mortgagees in a chattel mort- gage and a creditor of the mortgagor, and turned on the validity of the mortgage. The court instructed the jury, if the mortgage was made to hinder, delay and defraud creditors, it was void, even though the mortgagees had just claims against the mort- gagor. The second is objectionable for another reason. In that instruc- tion the jury are told, "if the mortgage was made by a father to two of his sons, in the night time, under suspicious circum- stances, and at the same time the father transferred to said sons all his land and personal property, and the property in the chat- tel mortgage was subject to be consumed or destroyed in its use by the mortgagor, these are circumstances from which the jury may infer that the transaction was a fraudulent one. ' ' ^ 1 See also Eenaud v. Bay City, instruction is, in reality, no instruc- 124 Mich. 29. tion upon a question of law. Fraud, 1 Gamble, J., in McDermott v. as a question of fact, was presented Barnum, 19 Mo 204: "The fifth to the jury, and this instruction, H. T. p.— 36 562 CONDUCT OF THE TRIAL. [Chap. IV. The first objection to this instruction is, that the mortgage was not made to the sons alone, but to them and to several other persons. Another and fatal objection is, that while the circum- stances named in the instruction may be suspicious, they do not raise a legal presumption of fraud. They are to be considered in connection with all the other evidence, and it' is for the jury to determine, from the entire evidence, what inference is to be drawn, without being instructed by the court as to what weight they are to attach to any particular portion of it. When the court says that a certain inference may be drawn from certain facts, if proven, most juries would understand the instruction as meaning that it was their duty to draw such inference. The instruction would, at least, indicate that the court thought it highly proper the inference should be drawn. There are cases in which such an instruction would not be improper, but under our system of practice in this State, the court should not so instruct, except in cases where the alleged circumstances are of such a character that the law itself raises the presumption.^ after detailing several facts, in- forms the jury that if they find them to exist, they may from them infer that the sale from Eogers & Co. to McDermott was fraudulent. In other words, the jury are told that certain circumstances would justify the conclusion that a con- veyance was fraudulent in fact. This is more like a summing up of evidence than an instruction on a question of law. When the law presumes a fact from one or more other facts, the annunciation to the jury of that presumption is a dec- laration of the law of the case, and differs very materially from telling them, in a case where there is no presumption of law to guide them, that, if they believe that certain facts are proved, then they may infer the existence of the principal fact in question. I repeat that the giving or refusing such an instruc- tion, in such a case, is not properly the decision of any matter of law." In South Carolina the constitu- tion of 1868 contained the familiar provision that courts should not charge the jury in respect to mat- ters of fact, but might state the testimony and declare the law. In 1895 this section was amended to read: "Judges shall not charge juries in respect to matters of fact, but shall declare the law." In Morris v. Clinkscales, 47 S. C. 488, after an elaborate review of the practice at common law, and under the constitution of 1868, it was held that the amendment of 1895 im- pliedly took away the power to state the testimony, and limited the court to a statement of the law as applied to hypothetical facts. — Ed. 2 Barclay, J., in Moberly v. Ey., 98 Mo. 183: "The instructions given by the court were in the main accurate, but certain errors, never- theless, crept into them, requiring a reversal of the judgment. Instruc- tion numbered 5, given at plain- Sec. 7.] knowles v. nixon. 563 Where one party proves certain facts which the other attempts to explain or overcome by the proof of certain other facts, the jury should be left to draw their own inferences, without any intimation from the court as to what it would be proper to infer from the evidence of either side. The judgment of the court below is reversed and the cause remanded. Judgment reversed. KNOWLES V. NIXON. 17 Montma, 473. [1896.] Pemberton, C. J. This is an action to recover a balance alleged to be due on a promissory note. The answer admits the execution of the note, but pleads payment. The case was tried with a jury, and a verdict returned for the plaintiff in the sum of $231.15. From the judgment rendered thereon, and the order of court denying a motion for a new trial, the defendant appeals. The assignment of error principally relied upon by the ap- pellant is the giving of the following instruction by the court: "The court instructs the jury that although parol proof of the verbal admissions of a party to a suit, when it appears that the admissions were understandingly and deliberately made, often tifE's instance, should not have told sumption would be in all cases er- the jury that the law presumed that roneous. But we are of opinion plaintiff exercised ordinary care that, on the facts presented, it while submitting the question of his should not have been made here^ care or negligence as an issue. The Where there is evidence tending to presumption that everyone exercises remove the presumption a reference ordinary care obtains in the ab- to the latter is usually to be sence of evidence to the contrary. avoided. This case is a close one But there was abundant evidence on the issue of contributory negli- from which plaintiff's negligence on gence. Though there was sufficient the occasion in question might have evidence to support a verdict for been fairly found. With that evi- plaintiff, the jury should have been dence before them, it was calcu- left to make such finding as they lated' to give the jury a wrong im- considered just, on that issue, with- pression of its effect to say that a out casting into the balance such a presumption of care then existed in reference to the presumption ob- plaintifl 's favor. We do not hold taining in the absence of evidence. ' ' that a reference to a disputable pre- 564 CONDUCT OP THE TBIAL. [ChAP. IV. affords satisfactory evidei;ce, yet, as a general rule, the state- ments of a witness as to verbal admissions of a party should be received by a jury with caution, as that kind of evidence is subject to much imperfaction and mistake. The party himself may have been misinformed, or may not have clearly expressed his meaning, or the witness may have misunderstood him ; and it frequently happens that the witness, by unintentionally altering a feV of the expressions really used, gives an effect to the state- ment completely at variance with what the party did actually say. If it appears to the jury, from the circumstances proved, that the party himself may have been misinformed, or may not have expressed his own meaning clearly and understandingly, or that the witness may have misunderstood him, or that the witness had no reason or motive for remembering the exact lan- guage used, or where, for a lapse of time, or any other reason, the jury can see that the witness is liable to be mistaken, or unable to give the exact words really used by the party, or their equivalents, these matters should be considered by the jury in determining the weight to be given to the testimony. ' ' This instruction is substantially like the instruction com- mented on with disapproval by this court in Wastl v. Railway Co., ante, p. 213. The instruction is evidently taken from Kauff- man v. Maier, 94 Cal. 269, 29 Pac. 481. The California court held it to be erroneous, not only because in violation of the constitution of the state, but because it "is, in substance, an argument to the jury with respect to matters of fact that had been presented at the trial, and a comment by the court upon the weight which they should give to the testimony. ' ' The court further said: "Whether the facts and circumstances proved in the case were sufficient to cause the reason of the jury to make this inference, was fair matter of argument for the counsel of the respective parties, but the court forsook its judicial position when it assumed the office of commenting upon the weight and credi- bility of this evidence. The closing paragraph in this instruc- tion, to the effect that it was for the jury to give to the evidence the consideration to which it was entitled, did not obviate the error, as by its remarks the court had, in substance, said to them that, as a matter of law, the evidence was not entitled to any great consideration. ' ' The only issue in the case was whether the note sued on had been fully paid. The court instructed the jury that the burden Sec. 7.] feakt v. metropolitan rt. co. 565 of proving this issue devolved upon the appellant. The ap- pellant swore positively to the payment. The respondent testi- fied positively the other way. The only corroborating evidence the appellant had as to payment was the testimony of three or four witnesses that the respondent had admitted to them that appellant had paid the note. In this view of the case, the appellant was entitled to have the admissions of the respondent as to the payment of the note go to the jury for what they were worth in law and fact. The law does not attach slight weight, or treat as a matter of little or doubtful significance, the voluntary admissions of a party against his own interest. The comment and argument of the court contained in the instruction com- plained of were calculated to cause the jury to attach little weight or significance to the admissions of respondent shown by the evidence. This was calculated to prejudice the appellant. Under our law, it is error for the court to comment, or make an argu- ment, in the instructions, on the weight to be given to the testi- mony by the jury. The appellant contends that the evidence is insufficient to support the verdict. There is a conflict in the evidence, and, as that was a matter properly within the province of the jury to determine and settle, we do not feel that we would be author- ized to disturb the result on the ground of the insufficiency of the evidence to support it. On account of the error of the court in giving the instruction treated above, the judgment and order appealed from are re- versed, and the cause remanded for new trial. Reversed. 1 FEARY V. METROPOLITAN RY. CO. 162 Missouri, 75. [1901.] Marshall, J. This is an action for $50,000 damages for personal injuries received by the plaintiff on the 27th of July, 1896. The suit was begun in Jackson county, the venue changed, at plaintiff's instance, to Lafayette county, and resulted in a 1 Accord — Kaufman v. Maier, 94 Ga. 424 (semble) ; Gass v. Steiger, Cal. 269; Johnson v. Stone, 69 Miss. 148 Gal. 155 (semble). Contra — 826; Phoenix Ins. Co. v. Gray, 113 Nash v. Hoxie, 59 Wis. 384. 566 CONDUCT OP THE TELAL. [ChAP. IV. verdict and judgment for the defendant, from which plaintiff appealed. * * * The defendant's ninth instruction is: "The plaintiff, Feary, was a witness in his own behalf; the jury are the sole judges of his credibility; all statements made by him, if any, which are against his own interest, must be taken as true ; but his statements in his own favor are only to be given such credit as the jury under all the facts and circumstances in evidence deem them entitled to." It is admitted that a similar instruction was held to be proper in a criminal case. (State v. Brooks, 99 Mo. 137.) But it is insisted that it is error to give it in a civil case. No good reason for such a distinction occurs to the legal mind. Admissions made in court, in the testimony of a party, have the same effect as if made in the pleadings, and admissions in a pleading are taken as true for the purposes of the action. (Shirts v. Overjohn, 60 Mo. 308; Wright v. Town of Butler, 64 Mo. 165.) State- ments against interest are called admissions in civil cases, and confessions in criminal ones. They are taken as true for the purposes of the ease, because no man would make them if they were not true. If confessions are enough to hang a man or to send him to the penitentiary under the criminal statutes, it is hard to see why admissions should not be enough to conclude him in a civil suit. Greenleaf on Evidence (16th Ed.), § 170, says: ' ' The rules of evidence are in both cases the same. ' ' In Payne v. Railroad, 30 S. W. Rep. 150, speaking to a similar instruction, Macfardane, J., said: "He is conclusively bound by every declaration and admission against his interest made while testifying before the court and jury. (State v. Brooks, 99 Mo. 142, and cases cited.) " 1 * * * Valliant, J., dissenting. * * * Defendant's ninth in- struction is: "The plaintiff Feary was a witness in his own behalf; the jury are the sole judges of his credibility; all state- ments made by him, if any, which are against his interest, must be taken as true; but his statements in his own favor are only to be given such credit as the juryunder all the facts and cir- cumstances in evidence deem them entitled to. ' ' This instruction is inconsistent in its own terms. It first informs the jury that they are the sole judges of the credibility 1 See also Conner v. Ey., 181 Mo. 397. Sec. 7.] feary v. metropolitan ry. go. 567 of the particular witness, and then undertakes to control them in that respect. It informs them, in effect, that whatever the witness may have said against his own interest, whether casually or deliberately, lightly or solemnly, the jury must take as abso- lutely true, but they must beware of him when he speaks in his own behalf. An instruction of this kind has upon several occasions been approved by this court in a criminal case, but it has never had the unanimous approval of the court. In State v. Young, 99 Mo. 666, Judge Sherwood demonstrated that the giving of such an instruction is an invasion of the province of the jury and forbidden by law. The jury are the sole judges of the credi- bility of the witnesses, and the court has no right to single out one and lay down rules for the jury to ascertain what weight they ought to give his evidence. But the majority of the court held in that case that the instruction was right, and that deci- sion seems to have been grounded on the statute which, while it removed the common-law disability of the accused and the husband and wife of the accused in a criminal case to testify in his or her behalf, provided ' ' such facts may be shown for the purpose of affecting the credibility of such witness. " The learned judge, just mentioned, pointed out that that provision of the statute was only intended to allow the State to show in evidence that the witness was the husband or wife of the accused as a fact for their consideration, but it did not authorize the court to call that tkct to the attention of the jury in an instruction and comment on it. The decision in that case has been followed in other criminal cases, and perhaps it is now to be regarded as settled. But this is the first instance within my observation in which such an instruction has been before this court in a civil case, and whilst I am free to confess that I see no essential prin- ciple upon which it could be held inapplicable to a civil, if applicable to a criminal case, unless it be that the temptation to shield one's self or one's wife or husband by perjury from the consequences of conviction of crime, is greater than that under the influence of mere pecuniary interest, yet I am un- willing to sanction the extension of the field in which such an instruction may be used. The instruction was harmless in this case, but it should not be approved for a precedent. 568 CONDUCT OF THE TEIAL. [ChAP. IV. EOCKWOOD V. POUNDSTONE. 38 Illinois, 199. [1865.] Mr. Justice Breese delivered the opinion of the court. This was an action of trespass quare dausum fregit brought by defendant in error against the plaintiff in error. The general issue, alone, was pleaded, and verdict for the plaintiff. Motion for a new trial was overruled and judgment on the verdict. It was admitted on the trial that the plaintiff was, at the time of the alleged trespass, in possession of the southwest quarter of section two, and of the northwest quarter of section eleven, town- ship thirty-two north, range three, and that the defendant tore down one hundred and sixty rods of fence, claimed by the plaintiff to be upon the west line of said section two, and twenty rods of fence claimed to be upon the west line of said section eleven, but claimed by defendant to have been wholly upon the southeast quarter of section ten, each of which last named tracts, it was admitted, were then in the possession of Rockwood. The dispute is as to the location of the line between sections two and three and ten and eleven, as established by the United States surveyor. The proofs show that the township of Farm Ridge, in which the lands are situate, was, in the first instance, very badly surveyed by the government surveyor, rendering it very difficult, half a century clasped since the survey, to find a government corner, so called. Much testimony was heard on both sides on this point and several practical surveyors were examined. We have considered the testimony carefully, but do not deem it necessary to discuss it, as our attention has been more particularly called to the law of the case, as laid down by the court in the instructions. It is insisted by the appellant that the court erred in giving the seventh and ninth instructions for the plaintiff. The seventh is as follows: The affirmative testimony of a witness to a cer- tain fact, as for instance, that he saw a government mound and ditch at a certain point, may be regarded by the jury as stronger proof than the testimony of a witness who swears that he did not see such a mound and ditch. "We do not understand it is the province of the court to tell the jury in a case where there is much and conflicting testimony, Sec. 7.] kavanaugh v. city of wausau. 569 or indeed in any case, which evidence is the strongest. ^ It is not true that affirmative testimony is to be preferred before negative testimony, so called, under all circumstances, and that is the purport of this instruction, and was calculated to bias the mind of the jury very much. The value of all testimony is to be ascertained by the jury by weighing it, and to find which- ever way it may preponderate. This instruction should not have been given. * * * KAVANAUGH v. CITY OF WAUSAU. 120 Wisconsin, 611. [1904.] Marshall, J. * * * The instruction requested, to the effect that in judging of the credibility of plaintiff's evidence the jury might properly consider his interest in the result of the trial, the temptation under the circumstances to color his testimony favorably to himself, and everything bearing on the subject, and give such evidence such weight only as in their judgment it was entitled to, and that a like test should be applied to evidence of each of the witnesses who testified in the case, was a correct statement of a legal principle. It was not only proper for the jury to consider the interest of plaintiff in the result of the trial, and every other circumstance appear- ing in the case reasonably calculated, in any view thereof, to throw light upon its credibility and weight, and to subject the evidence of each witness who testified to a like test, but it was their duty to do so; and the instruction might properly have been framed so as not to convey the idea to the jury that it was competent for them, in their discretion, to omit such test. The instruction being correct in principle applicable to the case — peculiarly so since a decision in respondent's favor depended largely upon the weight to be given to his evidence — and such principle not being in any respect embodied in the general charge, prejudicial error was committed in refusing it. Framed as it was, so as to indicate to the jury that the evidence of each wit- ness should be subjected to the same test as the one applied to that of the plaintiff in determining the weight to be given 1 And so in Ey. v. Brooks, 81 111. 245; Ey. V. Shires, 108 111. 617. 570 CONDUCT OF THE TRIAL. [ChAP. IV. thereto, it did not invade the province of the jury or violate the rule that the evidence of one witness should not be, in the in- structions, singled out and given prominence by special comment thereon. 1 Chicago & A. R. Co. v. Anderson, 166 111. 572, 46 N. E. 1125 ; Pennsylvania Co. v. Versten, 140 111. 637, 30 N. E. 540 ; McDonell v. Rifle Boom Co., 71 Mich. 61, 38 N. W. 681 ; People V. Knapp, 71 Cal. 1, 11 Pac. 793. By the court: The judgment is reversed, and the cause re- manded for a new trial. RAY V. WOOTBRS. 19 Illinois, 82. [1857.] This was a trial in the Circuit Court of an action for slander. There was a verdict and judgment in favor of the plaintiff be- low for two hundred and seventy-five dollars. The bill of excep- tions states that the court gave the instructions as modified — "Thereupon the court proceeded orally to explain and qualify said instructions to the jury." The cause was tried before Beeese, Justice, and a jury, at September term, 1857, of the Marion Circuit, Court. Skinnee, J. The court, after giving, at the instance of the defendant below, several instructions in writing, as the bill of exceptions states, "proceeded orally to explain and qualify said instructions to the jury." The statute provides: "That here- after no judge of the Circuit Court shall instruct the petit jury, in any case, civil or criminal, unless such instructions are re- duced to writing" — "and he shall in no case, after instructions are given, orally, qualify, modify or in any manner explain the same to the jury." Statutes 1856, 829. This statute plainly inhibits the Circuit Courts from changing or in any measure affecting orally the law as stated in written instructions given ; and in a case of so clear intention of the law- making power, there is no room by construction to avoid conse- quences, however inconvenient in practice, or detrimental to the administration of justice. The law being so written, the courts must submit to and abide 1 For the usual instruction cover- credibility, see Wright v. Kansas ing the various matters affecting City, 187 Mo. 678. Sec. 7.] ford v. lacy. 571 the mandate, and trust to the wisdom of the legislature for such change as experience may suggest. It is true, it does not appear what the oral explanations and qualifications were ; yet the words import a modification, limitation, restriction or construction of the written instructions, and, therefore, a change in some degree of the law as stated in writing. This is plainly forbidden. ^ "We presume the court did not intend, without consent of the parties, in any material matter of law, to orally instruct the jury; but from the language of the bill of exceptions, we can treat the case only in the light before stated ; although upon the argument it is conceded that the explanations so orally given were in fact immaterial. Judgment reversed and cause remanded. Judgment reversed. (c) Bequests and Exceptions. FOED V. LACY. 7 Hurlstone & Norman, 151. [1861.] Declaration. That the defendant broke and entered certain land of the plaintiff's, situate at Walthamstow in the County of Essex, abutting towards the north and east on the River Lea; towards the west, on land in the possession of the defendant, etc., and cut grass there, etc. Pleas. First, not guilty. Secondly, not possessed. Thirdly, that the close was the land and freehold of T. Beale, and that the defendant, as the servant and by the command of T. Beale, com- 1 Compare Cole, J., in Millard v. the question of a juror was a Lyons, 25 Wis. 516: "After the 'charge,' within the meaning of circuit judge had charged the jury chap. 101, Gen. Laws of 1R68, and, upon the law of the ease, one of the not having been reduced to writing, jury asked him 'whether the plain- should reverse the judgment. The tiff had the right to use the de- word 'charge,' as used in that stat- f endant 's divided grain to feed the ute, was not intended to include any stock and sheep. ' The circuit judge and every question and answer pass- answered that he would not have ing between the court and jury. It the right by law. It is now insisted doubtless refers to the address made on the part of the defendant that by the judge after the case has been this answer by the circuit judge to closed, when he comments upon the 572 CONDUCT OF THE TRIAL. [ChaP. IV. mitted the trespasses complained of. Fourthly, that before the alleged trespasses T. Beale being seized in fee of the said land demised the same to the defendant for a term not yet expired, by virtue whereof the defendant entered upon the land and became possessed thereof for the term, whereupon the defendant ia his own right during the term committed the trespasses. The plaintiff took issues on the pleas. At the trial, before Wightman, J., at the last assizes for the County of Essex, it appeared that the action was brought for a trespass on certain narrow slips of land situate on the Middlesex side of the River Lea, and which had originally formed part of its bed but had been left dry. There was evidence that the River Lea had been the boundary of the County of Essex and of the parish of Walthamstow, and that the whole of the bed of it was in that county and parish. * * * The defendant 's case was, that the land belonged to Beale and that it was in Middlesex. He contended that, though the River Lea might change its course, in law it continued to be the boundary of the two counties. He put in the Edmonton En- closure act, 40 Geo. 3 (not printed), and the award of the commissioners made under it in 1804, showing that the allotment to Beale extended to the river side. Witnesses called by the defendant said that the river was the boundary of the County of Middlesex ; and an old map of Essex was produced showing the river as the boundary of the County of Essex. The witnesses said that the cattle on the meadow had always grazed over the land, but did not deny that the plaintiff had mowed the grass every year for fifty years. The learned judge left it to the jury to say : First, whether the pieces of land were in the County of Essex? Secondly, whether they were in the parish of Walthamstow? Thirdly, testimony, or instructs the jury in The judgment of the circuit court any matter of law arising upon it. must be affirmed." Suppose the circuit judge had an- In the absence of such statutes, swered the question by the mono- the court may instruct orally, or in syllable 'no,' which, indeed, was all writing, in its discretion. Smith v. his answer amounted to. Will it be Crichton, 33 Md. 103. claimed that before he could answer The statute is not sufficiently he must write the word 'no,' and complied with by writing out a then read it to the jury? We think charge after it has been delivered it quite safe to say that the statute orally. Dixon v. State, 13 Fla. 636. never contemplated any such thing. Sec. 7.] ford v. lacy. 573 whether they were in the possession of the plaintiff? Fourth- ly, whether they were the property of Beale, the defendant's landlord ? His lordship stated at the same time that the answer to the last question would, in the judgment of the jury, probably depend on the acts of ownership exercised by the defendant's landlord, which were consistent with and probably showed the existence of a right of common. The jury having answered the three former questions in the affirmative, and the last in the negative, the verdict was entered for the plaintiff. Lush, in Easter term, obtained a rule for a new trial, on the ground that the learned judge ought to have directed the jury that land left by a river becomes part of the adjoining property and county. He referred to Schultes on Aquatic Rights, p. 138. * * « Beamwell, B. I do not dissent from any of the propositions of law stated by Mr. Clarke. For myself I am inclined to think that this was in fact a case of gradual accretion, where the land ought to have belonged to the defendant's landlord. Possibly there were considerations which showed that it did not. Mr. Clarke is right when he says that the adjoining owner is entitled to the benefit of gradual accretions. But he fails to show that there was any misdirection. A judge is not bound to submit every perplexing point to the jury, and in case of non-direction we are only bound to interfere when the verdict is against evi- dence, and part of the explanation of the miscarriage is that the judge omitted to direct the jury properly. But the rule is not moved on the ground that the verdict is against evidence. Theref^'e, without saying that I am satisfied with the verdict, or that the defendant ought not to have succeeded ; without say- ing that it would not have been better that the learned judge should have adverted more fully to the law of accretion, I think that the direction was sufficient, and therefore the rule must be discharged. Channel, B. , I agree that the rule must be discharged. If I am at liberty to review the evidence, I cannot say that I think it was all one way. But it is not necessary to do that, because the rule was not moved on the ground that the verdict was against evidence. As to the ground of misdirection, four ques- tions were left to the jury. In a certain sense the question of imperceptible accretion was properly left to the jury, and they must have considered it. It is said that it was a misdirection 574 CONDUCT OF THE TRIAL. [ChAP. IV. of the learned judge not to have stated the law more fully to the jury. But I agree with my brother, Beamwell, that before set- ting aside the verdict on that ground, we ought to see that the jury have formed a wrong estimate of the value of the evidence in consequence of the omission. But I am not prepared to say that the verdict was wrong; and I entirely agree that the rule as to the property in the soil of private rivers, is that laid down by Lord Hale in the passages cited by my brother, Martin. Rule discharged. TEXAS AND PACtPIC RY. CO. v. VOLK. 151 U. S. 73. [1894.] This was an action against a railroad corporation incorporated by act of Congress, to recover for personal injuries. * * * The court overruled the exception that the petition did not show that the plaintiff was without fault or negligence. The defendant, thereupon, in support of the answer setting up con- tributory negligence of the plaintiff, ' ' introduced evidence tend- ing to show that at the time of accident the plaintiff was on top of the car from which he was thrown, and walking upright with his face towards the approaching engine; and further evidence tending to show that the ear upon which plaintiff was at work was separated from certain other cars on said track by an open space of fifty or sixty feet, and that the engine in motion ran against and struck certain other cars on said side track, pushed them over this intervening space, and ran them against the car upon which plaintiff had been at work. But the court did not charge upon contributory negligence; to which the defendant excepted." * * * Mr. Justice Gray, after stating the case, delivered the opinion of the court. By the settled law of this court, not controverted at the bar, contributory negligence on the part of the plaintiff need not be negatived or disproved by him, but the burden of proving it is upon the defendant. Inland & Seaboard Co. v. Tolson, 139 U. S. 551, 557. The omission of the court to instruct the jury upon the subject of the plaintiff's contributory negligence is not open to exception, because the bill of exceptions does not show Sec. 7.] stumps v. kellet. 575 that the defendant requested any instruction upon that subject. In England it is a misdirection, and not non-direction, which is the subject of a bill of exceptions. Anderson v. Fitzgerald, 4 H. L. Gas. 484, 499. In this country, the rule is somewhat more liberal; and the not giving an instruction upon a point in issue may be excepted to, if one was requested, but not otherwise. In a very early case. Chief Justice Marshall said : ' ' There can be no doubt of the right of a party to require the opinion of the court on any point of law which is pertinent to the issue, nor that the refusal of the court to give such opinion furnishes cause for an exception. ' ' Smith v. Carrington, 4 Cranch. 62, 71. As afterwards more fully stated by Mr. Justice Story, "it is no ground of reversal that the court below omitted to give directions to the jury upon any points of law which might arise in the cause, when it was not requested by either party at the trial. It is sufficient for us that the court has given no erroneous direc- tions. If either party deems any point presented by the evidence to be omitted in the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it." Pennock v. Dialogue, 2 Pet. 1, 15. See also Express Co. v. Kountze, 8 Wall. 342, 353, 354 ; Shutte V. Thompson, 15 Wall. 151, 164. A request for instructions, be- ing necessary to entitle the excepting party to avail himself of an omission to instruct, cannot be presumed, but must affirma- tively appear in the bill of exceptions. The writ of error appears to this court to have had no plausible ground to support it, and to have been sued out merely for delay. The motion of the defendant in error is therefore granted, and the Judgment affirmed, with interest and ten per cent damages. STUMPS V. KELLEY. 22 Illinois, 140. [1859.] Walker, J. This was an action on the case brought in Cook County Court of Common Pleas to the September term, 1857, by appellee and against appellant. The first count of the declara- tion alleges that appellant did theretofore wrongfully and in- juriously keep a certain red and white cow, well knowing that 576 CONDUCT OP THE TRIAL. [ChAP. IV. the same was accustomed to hook, attack and push with her horns; that the cow did attack and push with her horns, the plaintiff, and greatly wounded, bruised and injured the shoulder and arm of the plaintiff, whereby she became sick, etc., for a long space of time, and was injured in consequence, in her health and constitution, and was prevented from pursuing her ordinary avocation, etc., and was put to great expense, etc., in being cured. * * * The defendant filed the plea of general issue, to which the similiter was added. At the November special term, 1857, the cause was tried by the court and a jury, and resulted in a verdict in favor of the plaintiff for $500. The defendant moved the court for a new trial, which motion was overruled, and a judgment entered on the verdict against the defendant, from which she appeals to this court. * * » Courts are created and established for the administration of justice, and all legal and proper means should be employed for the attainment of that end. And how it can be error for the court to instruct the jury as to the law of the case, whether asked to do so or not, we are at a loss to conjecture. "We have been referred to no authority that so holds, and we cannot imagine that such can exist. One of the very objects of having a judge is to instruct the jury on the law applicable to the case. Instead of its being error for the court on its own motion to instruct, where it seems to be required by the justice of the case, it is rather the duty of the judge to give such instructions. The instructions given by the court in this case, without being re- quested by either party, we think embrace the law as applicable to the case, and it is not denied that it does. And we have no hesitation in saying that so far from its being error, that the court acted in strict conformity with the duty imposed by the oath of the judge, and the requirements of the law.^ * * » OWEN V. OWEN. 22 Iowa, 270. {1867.] Action at law by wife against husband, during coverture, to recover the sum of $1,600, the value of certain 7-30 United 1 Contra by statute in Mississippi. — Ed. Sec. 7.] owen v. owen. ' 577 States bonds. In the petition it is alleged that these bonds were, by the defendant, given to the plaintiff "out of love and affec- tion and for and in consideration of plaintiff's again living with defendant;" that they were delivered to her; that she had them for the space of six months, and that the defendant afterward procured them from the plaintiff, and sold and converted them to his own use. The answer specifieally denies every material allegation in the petition. There was a trial, to a jury, upon testimony introduced by either party (all of which is in the record on this appeal). The cause was submitted to the jury without instructions from the court, and a verdict returned in favor of the plaintiff for $1,600. Defendant moved for a new trial, first, because the verdict was contrary to law; second, be- cause contrary to evidence ; third, because, from the amount and nature of the controversy, it is apparent that justice requires that a new trial be granted. This motion being denied, the defendant excepts and appeals. Dillon, J. In the exercise of our jurisdiction as an appellate tribunal, we are of opinion that it is our duty to reverse this judgment and remand the case for a new trial. Aft^r a careful review of the testimony, we are satisfied that, assuming, what the defendant seemed to concede, that such an action is main- tainable, the verdict was not justified by the evidence. ^ * # * Prom this general statement of the case it will be seen that it was most undeniably one in which there should have been clear instructions to the jury, as to the law governing it, and the rights of parties. To submit it to the jury without any direc- tions to guide them, from the court, would be to reach a result almost as uncertain as the toss of a copper or the throw of dice. It may be said that the counsel did not request instructions, and that therefore it was not obligatory on the court to give any. Such a view does not accord with our conception of the functions and duty of the judge. He should see that every case goes to the jury so that they have clear and intelligent notions of pre- cisely what it is that they are to decide.^ His charge is their 1 The omitted evidence made it structions rather than a total fail- improbable that the bonds had ure to instruct. ever been given to plaintiff. Compare Cabtwright, J., in Os- 2 Much the same rule was stated good v. Skinner, 211 111. 229: "No in York v. Barnes, 39 Neb. 834, instructions were asked on the part which was a case of misleading in- of the plaintiffs, and the court hav- H. T. p.— 37 578 CONDUCT OP THE TRIAL. [ChAP. IV. chart and compass. In this case the jury should have been told that any promise by the defendant to pay or to give money to his wife, to induce her to live with him again, was without consideration, and not binding, especially so, as it did not appear that she had any grounds whatever for not living with him. The attention of the jury should also have been called to this precise point, viz. : Did the defendant ever deliver bonds to the plaintiff, and, if so, for what purpose ? If they were merely put into her custody (which is a view not absolutely inconsistent with even her own testimony) then she cannot recover their value. If, on the other hand, the defendant voluntarily made an absolute gift of them to the plaintiff and delivered them to her, as her own, then he would be liable or not liable, the judge stating which, according to his view of the law, if the defend- ant afterward, without her consent, took and converted them to his own use. Although the case was submitted in hotchpotch, still we should not, for this reason, have reversed the judgment, if the result had been one which effectuated justice between the parties. What point the jury allowed the case to turn upon, what facts they decided, passes the wit of man to know. We can only suppose that they would have reached a just result, if the issues and the questions of fact and the law applicable thereto had been properly mapped out to them by the court. Reversed. LOW v. HALL. 47 N. Y. 104. [1871.] Appeal from order of the general term of the Supreme Court in the first judicial district, granting defendants' motion for a new trial, upon a verdict taken under the direction of the court ing refused the instructions asked are asked by the parties. (Drury for by the defendant, no instruc- v. Connell, 177 111. 43.) Parties tions were given. It is assigned for have the privilege of tendering such error that the court erred in failing instructions concerning the law as to instruct the jury as to the law, they may deem necessary, and the but the only duty of the court is to practice act requires the court to give or refuse such instructions as mark them as given or refused, but Sec. 7.] low v. hall. 579 at circuit, subject to the opinion of the court at general term. This action was brought by the plaintiffs, as manufacturers and proprietors of "Low's highly perfumed brown Windsor soap" to recover penalties imposed by section 4, of the act of 1862, as amended, etc., for an alleged violation of their trade mark by the defendants, on the allegation that said defendants "did, knowingly, expose, offer for sale and sell, in the city of New York, a spurious article called 'Low's highly perfumed brown Windsor soap,' with false stamps, labels, and impressions thereon, with intent to defraud the public and the buyers, and consumers of the genuine brown Windsor soap of the plain- tiffs, contrary to the statutes aforesaid." On the trial defendants produced evidence tending to show that the sale complained of was done v/ithout any motive to de- fraud; and that the purchaser had full information that the article sold was an imitation. The court concluded the charge as follows: "I rule, that if the jury should find precisely as the defend- ants' witnesses say, still they are liable. ' ' I direct the jury to find a verdict for plaintiffs for $200. ' ' Defendants' counsel excepted to the ruling of the court. Also, to the refusal of the court to submit the case to the jury- Grovek, J. The counsel for the appellants insist, that as the respondents' counsel did not request the court to submit any question of fact upon which there was a conflict of testimony to the jury, his exception to the direction to the jury, to find a verdict for $200 for the plaintiff, does not enable him to raise any such question upon appeal, and cites Winchell v. Hicks, 18 N. Y. 558, in support of his position. The rule adopted in that case has no application to the facts in the present. In this the judge decided, that if the jury should find precisely as the defendants' witnesses say, still they were liable, and thereupon directed the jury to find a verdict for the plaintiffs; to which only authorizes exceptions to the party cannot complain that the giving or refusing of an instruction. court has not given an instruction The court may modify or qualify an unless it has been prepared and instruction as tendered and a party tendered for that purpose." may except to the refusal to give as And so in Morgan v. Mulhall, 214 asked, and the court may also give Mo. 451. instructions without request. A 580 CONDUCT OF THE TRIAL. [ChAP. IV. the defendants' counsel excepted. This exception presents the question, whether, assuming the facts to have been precisely as testified by the witnesses for the defendants, they were liable to the penalties imposed by the fourth section of chapter 306 of Laws of 1862, page 513, entitled ' ' An act to prevent and pun- ish fraud in the use of false stamps, brands, labels or trade marks," as amended by section 2, chapter 209, Laws of 1863. That question is, whether, to render the party making the sale liable to the penalty, such sale must be made with intent to defraud some person or persons, or some body corporate, as the testimony of the defendants ' witnesses shows clearly that the de- fendants had no such intent in selling the single package of soap to the witness Peckham. A careful reading of the section shows clearly, I thiri, that the sale in question must have been so made, or the penalty thereby imposed was not incurred. * * * BROWNING V. WABASH RY. CO. 124 Missouri, 55. [1894.] Baeclat, J. This is an action to recover statutory damages, on account of the death of plaintiff's husband, ascribable, as she charges, to negligence of defendant, in particulars which will ap- pear later. The pleadings need not be detailed. They made certain issues, hereafter shown, which were submitted for trial before Judge Burgess and a jury. * * * Touching the measure of damages, the following expression of opinion, prepared by my learned brother, Gantt, is approved and adopted, namely: ' ' The instruction on the measure of damages is also assailed as error. "The instruction was in these words: 'If the jury find for the plaintiff they will assess her damages at such sum as in their judgment will be a fair and just compensation to her for the loss of her husband, not exceeding the sum of $5000.' "The defendant asked no instruction on the measure of dam- ages whatever. No attempt was made by it to point out the Sec. 7.] hall v. cedar rapids ry. co. 581 proper elements of damage in sueh eases or to modify the gen- eral language of the instruction. ' ' The instruction is not erroneous in its general scope ; and if, in the opinion of counsel for defendant, it was likely to be mis- understood by the jury, it was the duty of the counsel to ask the modifications and explanations, in an instruction embodying its views. "The court is not required in a civil case to instruct on all questions, whether suggested or not, and as there is nothing in the amount of the verdict to indicate that the jury were actuated by any improper motive in their assessment, the general nature of the instruction is no ground for reversal. ' '^ The judgment is accordingly affirmed. HALL V. CEDAR RAPIDS RY. CO. 115 Iowa, 18. {1901.] Action at law to recover damages for personal injuries re- ceived by plaintiff while alighting from a car owned and oper- ated by defendant company. There was a trial by jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Deemer, J. The instruction relating to the measure of plain- tiff's recovery in the event the jury found in her favor was as follows : "In estimating the damages, if any you find, you will allow plaintiff for any physical suffering and pain and mental anguish, if any, she has suffered and shown in evidence, or which she may in the future suffer, if any, in consequence of the alleged injury, and a reasonable allowance for any physician 's bills, if any, she has expended in consequence of said injury, and shown in evidence, but not to exceed the amount claimed in plaintiff's petition." This instruction was clearly erroneous, in that it permitted the jury to enter into the realm of speculation regarding plaintiff's future suffering. Such a charge has fre- quently been disapproved by this court. Fry v. Railway Co., 45 Iowa, 417; Reed v. Railroad Co., 57 Iowa, 25; Stafford v. City 1 Accord — Buzzell v. Emerton, 161 failed to define a term used. Taylor Mass. 176. V. Seil, 120 Wis. 32. And so where an instruction 582 CONDUCT OP THE TRIAL. [ChAP. IV. of Oskaloosa, 57 Iowa, 751 ; Ford v. City of Des Moines, 106 Iowa, 96. It was not cured, even if it could be cured, by any subse- quent instruction. But plaintiff insists that defendant may not complain, because it asked no instructions relating to the subject. If the instruction had been good as given, defendant could not, in the absence of request, complain of it. But it was the duty of the trial court, in giving its instructions, to announce correct principles of law. If it erred in this respect, failure of de- fendant to ask proper ones will not cure the error.^ These rules are fundamental, and need no citation of authorities in their support. * * * Judgment reversed. SIMONDS V. OLIVER. 23 Missouri, 32. [1856.] This was an action originally commenced before a justice of the peace, to recover twenty dollars, alleged to have been over- paid by plaintiff in making change. Plaintiff obtained judgment before the justice, and the cause was appealed to the law commis- sioner's court. Upon the trial before the law commissioner's court, the plain- tiff introduced testimony tending to prove that defendant (Oli- ver) purchased of plaintiff a lamp at the price of three dollars ; that in payment thereof he offered plaintiff a twenty dollar gold piece; that plaintiff, not having the specie to give in change, defendant then offered him a twenty dollar bill, that plaintiff gave back to defendant the twenty dollar bill, and seventeen dollars in change. There was no evidence tending to prove that the twenty dollar gold piece ever came to the possession of plain- tiff. Defendant, whose admissions constituted the only testi- mony introduced, declared that he had left the gold piece upon the counter of plaintiff. The defendant asked the following instructions: "1. If the jury believe from the evidence, that tlie plaintiff has failed to 1 Accord — Ey. v. Cove, 29 Ky. L. to support the instruction as partial Eep. 836. non-direction only, in the absence of But in many similar cases the any request for an instruction cov- courts have gone to extreme lengths ering the point. — Ed. Sec. 7.] simonds v. olivee. 583 prove that there was an actual carrying away of the twenty dollar gold piece in question, then the jury will find for the defendant. 2. If the jury believe from the evidence, that the plaintiff has failed to prove an actual deficit on his part, then the jury will find for the defendant." The court refused to give the instructions asked. Defendant excepted, and further asked the court to instruct the jury in some manner, without specifying any particular instruction to be given. The court failed to do so, and the cause was submitted to the jury entirely without instructions. The jury found for plaintiff, and judgment was accordingly given for him. Defend- ant appealed to this court. Leonard, Judge, delivered the opinion of the court. There is no error in the record, and it is difficult to imagine why the case was brought here. The controversy turned exclu- sively upon a single question of fact, and this was submitted to the jury who fairly passed upon it, after hearing all the evi- dence tendered by either party. The specific instructions asked by the defendant were im- proper, and rightly refused. ^ The English custom of summing up the evidence, and charging the jury as to the whole la^ of 1 Baldwin, J., in Catts v. Phalen, of exceptions shows a paper signed '2 Howard (TJ. S.), 376: "A party by the defendants' counsel, in which cannot assign for error the refusal the court is asked to afSrm a series of an instruction to which he has 'of propositions of law as govern- not a right to the full extent as ing the case,' seven in number, stated, and in its precise terms; the They were presented as a whole, re- court is not bound to give a modi- fused as a whole, and excepted to in fied instruction varying from the the same manner. If any one of one prayed. Here they were asked them was rightfully rejected no er- to instruct the jury that the belief ror was committed, because it was of the plaintiff that the ticket had not the duty of the court to do any- been fairly drawn, and the conse- thing more than pass upon the quent payment, prevented a recov- prayer as an entirety. Beaver v. ery, without referring to the fact in Taylor et al., 93 TJ. S. 46; Trans- evidence that that belief was caused portation Line v. Hope, 95 Id. 297. by the false and fraudulent asser- We shall presently see why there is tions of the defendant." no error in the rejection of this Me. Justice Millek, in Worth- prayer." ington V. Mason, 101 TJ. S. 149: Where the statute provides for "The errors assigned in this case written requests, the request must relate solely to prayers for instruc- be \ properly formulated in writing tions refused by the court and to to support an exception. Hacker v. exceptions to its charge. The bill Heiney, 111 Wis. 313. 584 CONDUCT OF THE TRIAL. [ChAP. IV. the ease, does not prevail in this state; and, we believe, never has prevailed here. In our practice, each party asks specific instructions upon such points as he may deem material, and the courts generally submit the case to the jury upon these instruc- tions, unless they think proper to give others of their own sug- gestion, as a substitute, or in addition. However desirable it un- doubtedly is that the courts, whose duty it is to see that justice is administered according to law, should take upon themselves the active duty of seeing that the jury are properly instructed upon the law which they must apply to the facts in making up their verdict, they have never been considered bound to charge otherwise than as specifically asked, and, accordingly, the refusal to do so has never been treated here as an error for which the judgment could be reversed. Let the judgment ie affirmed. O'NIEL V. ORR. 3 Scammon (III), 1. [1842.] This was an action of replevin, instituted in the Peoria Circuit Court, in the/ name of Robert 'Niel and Andrew Gray, against Christopher Orr and others, for a steamboat called the Ten- nessee. Gray subsequently filed an affidavit stating that he was made a plaintiff without his consent, and that, so far as he was concerned, he desired the suit to be dismissed. Whereupon the court ordered that the plaintiffs be severed, and that the suit proceed in the name of Robert 'Niel, as sole plaintiff, On the trial the plaintiff proved, among other things, that one Phillips sold the boat to 'Niel ; that $500, a part of the purchase money, was paid down, and the balance secured to be paid at a future time, by a deed of trust. The defendants claimed the right to the possession of the boat by virtue of the lien of an execution against Phillips, alleged to be in the hands of the sheriff of Peoria county, at the time of the sale to O'Niel. The plaintiff contended that the boat was in Missouri at the time of the sale; and after the evidence had been heard, requested the court to instruct the jury, "That if the jury should believe, from the evidence, that the steamboat Sec. 7.] o'neil v. okr. 585 Tennessee, was In the county of Peoria, at the time of the issuing of the execution read in evidence in this cause, and if the jury further believe, from the evidence, that the said steamboat Ten- nessee was removed from the state of Illinois into the state of Missouri, by the defendant in said execution, and there fairly and hoTia fide sold by the said Thomas Phillips to the plaintiil, with- out any knowledge on the part of said Phillips, or said plaintiff, of the existence of said execution, that after such sale, so made, the property could not afterwards be levied on by the said execu- tion-" which instruction was given by the court, but with the following qualification -. "That in order to constitute a bona fide purchaser, the consid- eration must be actually paid, and not merely secured to be paid. ' ' The plaintiff excepted to this qualified instruction, and a bill of exceptions was signed and sealed. The jury found a verdict for the defendants. The plaintiff moved for a new trial. The motion was overruled and the judg- ment rendered on the verdict. * * * "Wilson, Chief Justice, delivered the opinion of the court : The second assignment of error, which questions the correct- ness of the instruction of the court, raises the only point in the case that can properly be investigated; and the decision of that point disposes of the whole case. In the trial of the cause in the court below, the legality of the sale of a steamboat became a material question, and the court instructed the jury, "that in order to constitute a hcma fide purchaser, the consideration must be paid, and not merely secured to be paid. ' ' In one aspect of the case, this instruction must have had a decisive influence upon the determination of the jury, and in no view of it can it be regarded as correct. When the sale of an article of property is in other respects fair and legal, allowing time for the payment of the purchase money, does not vitiate, or even impugn the legality of the transaction. Sales upon time are of more frequent occurrence than cash sales, and are of equal validity. To declare otherwise would establish a new rule which would set afloat, and render doubtful and precarious the titles to a large portion of the property of the community. The objection that the plaintiff cannot contest the propriety of this instruction, because it was given as a qualification to that asked for by him- self, is without even plausibility. A party is not precluded from objecting to an erroneous instruction which operates against him. 586 CONDUCT OP THE TRIAL. [ChAP. IV. merely because it is given in connection with one which he may have prayed for, notwithstanding that prayed for may also be illegal. When instructions are given by the court at the instance of a party, it is just and proper that he should afterwards be estopped by his own act from denying their legality; but upon no principle can he be debarred from resisting a decision which he has neither solicited nor sanctioned. The decision of the court below is reversed, and the cause re- manded for a rehearing. Judgment reversed. MOBILE, ETC., BY. v. JURET. Ill U. 8. 584. [1884.] Mr. Justice Woods delivered the opinion of the court. The defendants in error, Jurey and Gillis, brought this action for the use of the Factors' & Traders' Insurance Company against the plaintiff in error, the Mobile & Montgomery Railway Company, to recover $12,000 for the failure of the latter to de- liver certain cotton which had been placed in its possession as a common carrier. The complaint, which was drawn according to the form prescribed by the Code of Alabama, was as follows: The last assignment of error which we shall notice, is based on the charge of the court, to the effect, that "the measure of dam- ages would be the value of the cotton in New Orleans, where it was to have been delivered, together with interest on said sum at eight per cent per annum from the time when the cotton ought to have been delivered." The error alleged is, that the rate of interest should have been placed at five per cent, which is the legal rate in Louisiana, where the contract was to be performed, and not at eight per cent, which was the legal rate in Alabama, where the contract was made. Conceding that the charge in respect to the rate of interest was erroneous, the judgment should not be reversed on account of the error. The charge contained at least two propositions, first, that the measure of damages was the value of the cotton in New Orleans, with interest from the time when the cotton should have been delivered; second, that the rate of interest should be Sec. 7.] haines v. republic fire ins. co. 587 eight per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was, therefore, ineffectual. It should have pointed out to the court the precise part of the charge that was objected to. "The rule is, that the matter .of exception shall be so brought to the atten- tion of the court, before the retirement of the jury to make up their verdict, as to enable the judge to correct any error if there be any in his instructions to them." Jacobson v. The State, 55 Ala. 151. "When an exception is reserved to a charge which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection." South & North Alabama Eailroad Company v. Jones, 56 Ala. 507. So in Lincoln v. Claflin,' 7 "Wall. 132, this court said: "It is possible the court erred in its charge upon the subject of dam- ages in directing the jury to add interest to the value of the goods. * * * But the error, if it be one, cannot be taken advantage of by the defendants, for they took no exception to the cliarge on that ground. The charge is inserted at length in the biU. * * * ' It embraces several distinct propositions, and a general exception cannot avail the party if any one of them is correct. ' ' On these authorities we are of opinion that the ground of error under consideration was not well saved by the bill of exceptions. Many other grounds of error have been assigned though not argued by counsel for the plaintiff in error. But what we have said covers most of them. The others are not well taken. "We find no error in the record. The judgment of the Circuit Court is affirmed. 1 HAINES V. REPUBLIC FIRE INS. CO. 59 New Hampshire, 199. [1879.] Assumpsit, on a policy of insurance. The evidence tended to show that the application was taken by one Page, who was em- ployed by Webster, Morril & Co., the defendants' agents, to so- licit insurance for them, and give them information as to pro- posed risks, and that he received a commission on the premiums 588 CONDUCT OF THE TRIAL. [ChAP. IV. on policies issued on risks obtained by him. The defense was, that there was a fraudulent over-valuation of the property. The plaintiff claimed that Page was the defendants' agent, and that they were bound by his knowledge of the condition of the property. On this branch of the case, the court instructed the jury as to the duties of agents and how far their acts were binding on the company, and called their attention to the provisions of Gen. St., Chap. 159, and stated to the jury that there was no evidence that Page possessed the qualifications required by the statute for an agent. The plaintiff excepted to these instructions, but did not state the ground of exception. At the time the instructions were given and the exception was taken, the plaintiff's counsel were not aware that the statute referred to by the court had been repealed, and did not take the exception on that ground. Verdict for the defendants, and motion by the plaintiff for a new trial. Stanley, J. The only error in the instructions was as to the qualifications of agents ; but this is not now open to the plaintiff. The exception was general. The point now taken was not known to or relied on by the counsel at the time the exception was taken. Exceptions must stand on the ground on which the party taking them intended they should stand when they were taken. But if, when taken, it was intended to rely on this point, it could not now avail the plaintiff, for the attention of the court was not called to the point now relied on. "When an exception is taken to instructions which are erroneous, upon a point which, if made known at the time, would have been rectified, the point must be stated, so that the court can understand the ground /of objec- tion, and have an opportunity to correct the error. If not stated, the exception will be regarded as waived. It would be unjust to allow a party to lie by and take the chances of a verdict in his favor, and, if defeated, avail himself on an exception which might have been obviated if seasonably known. Moore v. Ross, 11 N. H. 547, 557; McConihe v. Sawyer, 12 N. H. 396; Whipple v. Stevens, 22 N. H. 219 ; Hayward v. Bath, 38 N. H. 179 ; Heath V. Heath, 58 N. H. 292 ; Ford v. Monroe, 20 "Wend. 210. Exception overruled^ 1 The rule is less strict in most of law, rather than the method of jurisdictions when the error is one formulating the instructions. — Ed. Sec. 7.] hindman v. first nat. bank. 589 HINDMAN V. FIRST NAT. BANK. * 112 Federal Reporter, 931. [C. C. A. 1902.] LuETON, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. The plaintiff in error has presented no less than 182 assign- ments of error, an unnecessarily prodigious number. No less than 41 of these are errors assigned upon the charge of the court. These are all based upon eight exceptions taken to the charge. Objection is made that these exceptions are too general ; that each is an exception covering several distinct propositions; and that, if any proposition be good, the whole exception must fail. John- son V. Garber, 19 C. C. A. 556, 73 Fed. 523. An exception to a charge should be taken before the jury retire. It should be sufficiently definite to call the judge's attention to the particular matter objected to, in order that he may have an opportunity to correct it. Neither should an exception cover two distinct propositions, for such an exception is insufficient if either one should prove correct. Railroad Co. v. Jurey, 111 U. S. 596, 4 Sup. Ct. 566, 28 L. Ed. 527 ; Bogk v. Gassert, 149 U. S. 25, 13 Sup. Ct. 738, 37 L. Ed. 631; Holloway v. Dunham, 170 U. S. 619, 18 Sup. Ct. 784, 42 L. Ed. 1165 ; Felton v. Newport, 34 C. C. A. 470, 92 Fed. 470. This objection must be regarded as fatal to most of the exceptions, taken to the charge as delivered, though there is one objection which may fairly be regarded as sufficiently definite to base assignments of error upon. That exception is in these words: "We desire to also except to the court's measure of damages in this case. ' ' What the court had said on this sub- ject was this: "If the jury should conclude that the plaintiff is entitled to recover anything, then the measure of the plaintiff's damages would be the difference between the value of the eighty shares of stock on the 31st day of December, 1892, and its value of February 6, 1893, when the plaintiff bought it. Interest may be allowed on fhis, if the jury see fit. For any depreciation which may have resulted after the latter date the defendants would not be responsible, inasmuch as that depreciation may have been the result of causes with which the defendants had no connection. ' ' This paragraph was followed by some observations upon parts of the evidence, intended as an application of the proposition 590 CONDUCT OF THE TRIAL. [ChAP. IV. of law quoted, which did not involve the statement of any new or distinct proposition. This exception has been criticised, but we think the trial judge could not have misapprehended the scope of the exception, and that the charge on this subject of damages may be regarded as constituting a single subject. In dealing with an objection to an exception this court, in Felton v. New- port, 34 C. C. A. 470, 92 Fed. 470, speaking by Circuit Judge Severens, said: "The charge upon this subject was entire, and bound up in a single proposition. If it was erroneous in any substantial par- ticular, it would seem that the exception would reach the error, especially when it pervades the whole instruction given upon the subject. "1 The instruction limited the plaintiff to a recovery of the difference between the value of the shares on December 31, 1892, the day the company was licensed to do business, and February 6, 1893, the date when plaintiff bought his share ; in others words, if the shares of the company were worth as much on February 6, 1893, as they had been on December 31, 1892, the plaintiff had sustained no loss, although at both dates the shares may have been much less intrinsic value than the price paid for them. This instruction was erroneous, and must result in a reversal and a new trial. * * * Section 8. Verdicts. (a) Return aytd Entry. SAUNDERS V. FREEMAN.i Moore, 33. [1561.] Trinity, 3, Elizabeth. In a quid juris clamat,^ the tenant said that he held in tail under the grant of A. The plaintiff said 1 In many of the western states instruction in order to found an a general exception to a particular exception thereon. Harding v. By., written instruction is sufScient to 232 Mo. 444. raise any and all questions. Doud i This case is anonymous in V. Eeid, 53 Mo. App. 553; Ey. v. Moore, but a part of what is evi- Young, 30 Colo. 349. Compare dently the same ease is reported in Smith V. Ey., 74 N. J. L. 452. It Dyer, 217, under the name of has also been held that it is not nee- Saunders v. Freeman, essary to object to the giving of an 2 For this writ, see Jacobs ' Law Sec. 8.] lawrence v. steaens. 591 that A did not grant : Upon which they were at issue, and the nisi prius issued to the county of North — , where, before Dyer and Benlow, the inquest was charged upon the said issue; the jurors left the bar, and, after the rising of the court, they re- turned before the justices and gave a verdict privately for the defendant, and had leave to eat and drink. Afterwards, on the next day, when the court was sitting, they returned and gave their verdict properly, and found for the plaintiff; and all this matter was entered on the postea. And on a day in banc, the question was for which of these parties the judgment should be given. The opinion of all the justices was that the judgment should be given for the plaintiff, because the last verdict which was rendered openly in court is the verdict in fact and not the first, since on a privy verdict before the justices none of the parties are called ; and if one of the jurors die in the interim between the first verdict rendered and the second, or if the judge die, the verdict taken before is void. Xnd yet neither the one nor the other after verdict ren- dered would prevent judgment being given. And also, if the jurors will not say anything the next day, the acceptance of the first verdict will be to no purpose, for the ren- dering of this verdict is allowed solely for the relief of the jury. And it was said by Dyer that the eating and drinking before the second verdict would not make it void, because it was done by leave of the justices, and also at their own expense; and though the jurors eat and drink before rendering their verdict, this will not avoid it, if not done at the cost of one of the parties.3 If it is at the cost of the jurors themselves it is not material, as was lately adjudged in the case of one Palskin of Cornwall. LAWEENCB v. STEARNS. 11 Pickering (Mass.), 501. [1831.] The jury in this case returned specially their doings, which appear in the following certificate signed by the foreman : Dictionary, title. Quid juris clamat, the jury, see Sandstrom v. Oregon and Fitzherbert, N. B. 345 A. &a. Nav. Co., 136 Pac. 878, 49 L. E. 3 For a modern case of treating A. (N. S.) 889, annotated. 592 CONDUCT OF THE TRIAL. [ChAP. IV. ' ' The jury, after receiving instructions from the court, retired to their room, and after much consultation, agreed upon a ver- dict at about 9 o'clock in the evening, at which time the court had adjourned until the following morning; which verdict was as follows: — That the defendant is guilty in manner and form as the plaintiif has declared against him ; — which verdict was not reduced to writing, but it was agreed that it should be done in the morning ; and after such verdict was agreed upon, the officer in attendance upon the jury was informed that they had agreed, and he permitted the jurors to separate. The jury again met in their room the following morning to bring in their verdict, when one of their fellows refused to concur therein. Much consulta- tion was had, but after the refusal of- said juror, the jury were unable again to agree." The dissenting juror stated to the court, that the jury, before their separation, had agreed upon a verdict for the plaintiff, and that he himself then concurred therein ; but that after their separation he had more maturely considered the whole subject, and could not conscientiously assent to the verdict. Whereupon the plaintiff moved that judgment should be entered upon the verdict; to which the defendant objected; and thereupon the cause was continued, in order that the motion might be submitted to the determination of the whole court. Shaw, C. J., afterwards drew up the opinion of the court. The only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be ren- dered, is an open and public verdict, given in and assented to, .in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court. 3 Bl. Comm. 377 ; Root v. Sherwood, 6 Johns. R. 68. A convenient practice has been adopted in this country, author- izing the jury, when they agree during the adjournment of the court, to seal up their verdict and separate, and come in and affirm it at the next opening of the court. But in such case, the verdict is to be affirmed in open court, as the unanimous act of the jury, and in presence of the whole panel, so that each juror has an opportunity to express his dissent to the court, in ease his decision has been mistaken or misrepresented by the foreman or his fellows, or in case he has been forced into acquiescence by improper means. Such an affirmation is the only evidence the court can receive of the free and unanimous assent of the jury Sec. 8.] boot v. shebwood. 593 to the verdict. It follows, therefore, that if any one juror shall then express his dissent, and persist in it, the verdict cannot be recorded. If indeed the jury by collusion should declare them- selves agreed, when they are not, in order to induce the officer to permit them to separate, or if one juror should declare his assent, with an intent afterwards to dissent in court, it would undoubtedly be a great misdemeanor and render the party liable to summary punishment. And if, after a jury has so agreed and before the verdict is affirmed, whilst it may still be considered as resting in the breast of the jury, and any one, especially a party interested, should enter into discussions with a juror and endeavor to influence his opinion and to induce him to dissent from the verdict before agreed to, it must be considered as a great breach of propriety and of duty, both in the party who attempts such practice, and in the juror who permits it. In this ease there was no verdict which the court can recognize, and the motion must be overruled. ^ EOOT V. SHERWOOD. 6 Johnson (N. Y.) 68. [1810.] This was an action for a libel. The cause was tried at the Delaware circuit, in September, 1809, before Mr. Justice Thomp- son. The trial lasted till late in the evening, and after the charge of the judge, the parties consented that the jury might seal up their verdict. At the opening of the court, on the next day, the jury appeared, and the foreman delivered the sealed verdict, which was opened and read, by which the jury found for the plaintiff for $150 damages. On being polled, nine of the jurors dissented from the verdict; but, at the same time, stated that they did agree to the verdict when it was made, and so informed the constable before they separated. The judge directed the ver- dict to be entered, subject to the opinion of the court, on the question, whether the same ought to be recorded. 1 The rule requiring a unanimous the states. See Mo. Const. Art. II, verdict has been changed by consti- § 28. tutional amendment in a number of H. T. p.— 38 594 CONDUCT OP THE TRIAL. [ChAP. IV. Per Curiam. The jury, when they came to the bar to deliver in their verdict, had a right to dissent from the verdict to which they had previously agreed. There is no verdict of any force but a public verdict, given openly in court; until it was received and recorded, it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict, did not take away from the parties the right to a public verdict, duly delivered. There being, then, no legal verdict in this case, a new trial must be awarded, with costs to abide the event of the suit. New trial granted. BLACK V. THORNTON. 31 Georgia, 641. [I860.] Trover for the conversion of certain slaves; pleas, not guilty and the statute of limitations. * * * The jury came into court with a verdict "for the defendant." Before the verdict was received and entered as such, counsel for plaintiffs moved the court to poll the jury, which motion the court granted, and the jury were polled. "When the tenth juror was called, and asked the question : "How do you find for the plaintiffs or for the defendant?" he answered, "I am not fully satisfied, but I could find no other verdict with the lights before me." The juror was again asked the question, and answered as follows : "I don't know that I can answer that question." The presiding judge then said to the jury : ' ' The verdict not appearing to be unanimous, you must retire, gentlemen, and bring in a unanimous verdict. I trust, gentlemen, that you will not consider that either the court or the counsel have detained you thus long, on a matter in which you have no interest, merely to harass you. We are all doing merely our duty which the law compels us to perform. It is my duty to receive no verdict that is not unanimous ; and Mr. Harman having answered to the ques- tion, 'How do you find, for the plaintiffs or for the defendant?' 'that he don't know that he can answer the question,' neither agrees or disagrees to the verdict. The law, though, requires that he agree to it, and he not agreeing, you have nothing to do Sec. 8.] black v. thornton. 595 but to retire to your room, and let him, and others that agree with him, convince you that you are wrong. You must discuss and deliberate. For that purpose you are sent out. Retire, gen- tlemen, and make up your verdict." The jury returned the same verdict as before, and at the re- quest of plaintiffs' counsel the jury was again polled. Counsel for plaintiffs requested the court in polling the jury to ask each juror whether the verdict was his verdict, and had the approbation of his judgment, which request the court refused. Counsel for plaintiff also requested the court to require each juror to answer for himself, and without reference to what any of his fellows may have answered before him, and to request any juror, who shall say anything about being fully satisfied, to state whether he is fully satisfied with the verdict now. This request was refused by the court. In polling the jury the second time, the same form of question was adopted as at first, in answer to which, seven of the jurors said : ' ' for the defendant, ' ' one said ' ' I find for the defendant, but am not fully satisfied with the evidence before us ; " one said, "I am not fully satisfied, but with the lights before me, I can find no other verdict but for the defendant ; ' ' one said, ' ' I am not f uUy satisfied that I am right, but I find for the defendant ; ' ' one said, "I did not understand you before, I am not fully satis- fied, but I find for the defendant;" and one said, "I am not fully satisfied, but with the testimony we had before us, I find for the defendant. ' ' The verdict was then received and entered as the unanimous verdict of the jury. Counsel for plaintiffs then moved for a new trial of said case on the following grounds : 1st. Because the verdict was not the unanimous verdict of the jury. 2d. Because five of the jurors, when polled, in effect, denied that the verdict was their verdict, and their answers show that the said verdict did not receive the approbation of their judgment. 3d. Because the court erred in refusing to poll the jury ac- cording to the form of question and requirement, requested by counsel for the plaintiffs as hereinbefore stated. 4th. Because the court erred in the remarks and instructions which he made and gave to the jury in sending them back to 596 CONDUCT OF THE TEIAL. [ChAP. IV. their room after the first polling, and also erred in giving them any instruction at all at that time. 5th. Because the court erred in allowing the verdict to be entered on the minutes. * * * Jenkins, J., delivering tlie opinion of the court •. * * * "When the verdict was returned and read, plaintiffs' counsel asked that the jury be polled, and this was done. One of the jury answering that he could not say, whether he found for plaintiffs or defendant, the court declined to receive the verdict, and remanded them to their room. They came a second time into court with the same verdict, and were again polled. Exception is taken to the manner in which the question was propounded to each juror, viz. : "Do you find for the plaintiffs or the defendant?" The better form of ques- tion would be, (following the reading of the verdict), "What say you, Mr. Juror, is that, or is it not your verdict 1 ' ' But as there is no complaint in this case, which does not go to the whole ver- dict, we think the question, as put, equivalent, and therefore over- rule the exception. 8th. But it is further excepted that the motion for a new trial should have been sustained, and the verdict set aside, on the ground that the answers made on the polling of the jury, show that the verdict was not unanimous. The greater number of the jury answered simply that they found for the defendant. Some four or five added, either "that they were not satisfied," or "that they were not fully satisfied," or said, "that they were not satisfied, but with the lights before them, they found for the defendant. ' ' They all, however, did say that "they found for the defend- ant," which was the verdict read in the court. Is it requisite that to sustain a verdict, that a juror should be wholly free from doubt, should be ' ' fully satisfied with it ? " If so, what shall be- come of the cases turning upon a preponderance of evidence? "Where the preponderance is not great, shall freedom from doubt be exacted ? Are such cases never to be decided ? In this case the jury pursued the course proper in the absence of clear and satisfactory evidence ; they left the parties as they found them; they conformed to the ancient maxim of the law, "portior est conditio defendentis." The verdict was properly received and recorded. * * * Sec. 8.] rigg v. cook. 597 RIGG V. COOK. 9 Illinois, 336. [1847.] Treat, J. This was an action of ejectment, commenced in the St. Clair Circuit Court, on the 23d of October, 1845, by John Cook against Rachel Rigg, for the recovery of the southeast fractional quarter of section twenty-three, and the north frac- tional h£ilf of section twenty-six, in township one, north of range eight west, containing three hundred and thirty-nine acres, and eighty-five hundredths of an acre. * * * Before the jury retired, it was agreed by counsel, that the jury might seal up their verdict and separate, and that the verdict might afterwards be reduced to proper form. The jury accord- ingly made up a sealed verdict as follows: "We, the jury, find the defendant guilty," which was opened the next morning at ten o'clock; and at two o'clock of the same day, it was reduced to form by the plaintiff's counsel, to which the defendant made no objection, but asked that the jury, which had not then been discharged for the term, might be polled; which request the court denied, and the defendant excepted. The verdict, as finally entered, finds the defendant guilty of withholding the possession of the land in question from the plaintiff, who is entitled to an estate in fee therein; except as to the part claimed by Brown, Johnson, and PuUiam, as stated in the evidence, of which part the defendant is not guilty. The court overruled a motion for a new trial, and rendered judgment on the verdict. The defendant prosecuted an appeal to this court. * * * There was no error in the instructions of the court. The law of the case was fairly and correctly stated to the jury. A party has the right to have the jury polled on the receipt of the verdict, and a denial of the right is error. ^ Johnson v. Howe, 2 Gilm. 842. It makes no difference whether the verdict is brought in sealed, or delivered ore tenus by the foreman. Fox V. Smith, 3 Cowen, 23 ; Jackson v. Hawks, 2 Wend. 619. A direc- tion to the jury to seal up their verdict and separate, does not dispense with their personal attendance in court, when the ver- dict is opened ; and if any of them dissent, the verdict cannot be 1 It is held in several states that rests in the sound discretion of the a poU of the jury cannot be de- trial judge. See Blum v. Pate, 20 manded as a matter of right, but Cal. 69. 598 CONDUCT OF THE TRIAL. [ChAP. IV. received. Boot v. Sherwood, 6 Johns. 68 ; Lawrence v. Stearns, 11 Pick. 501. After a verdict is received and the jury dis- charged, the control of the jury over the case is at an end, and they cannot be recalled to alter or amend the verdict. Seargent V. The State, 11 Ohio, 472. When the verdict was opened in the present case, the appellant might have insisted on her right to have the jurors severally asked if it was their verdict ; but omit- ting to exercise the right then, she was precluded from doing it afterwards. As we understand the bill of exceptions, the ver- dict was received by the court in the presence of the jury; and the jury were then discharged from the case, with an existing stipulation of counsel, that the verdict might afterwards be re- duced to form and entered of record. The right of the appel- lant to have the jury polled was gone, for the reason that the control of the jury over their verdict had ceased. She had still the right to insist that the real finding of the jury should be pursued in putting the verdict into form. No objection on this score was taken, and could not with any show of propriety have been ; for while the verdict, as returned by the jury, was for the whole of the premises claimed, the verdict as finally entered was but for a part of the premises. This modification was not to her prejudice. The judgment of the Circuit Court is affirmed, with the costs of this appeal. Judgment affirmed. KOON V. INSUEANCE CO. 104 V. 8. 106. [1881.] Error to the Circuit Court of the United States for the North- ern District of Illinois. This is an action of debt brought by the Phoenix Mutual Life Insurance Company against Henry H. Koon as principal, and the other defendants as sureties, on a bond in the penal sum of $10,000, conditioned for the faithful performance of his duties as agent of the company. The defendants pleaded nil debit. It appears from the bill of exceptions that upon the retire- ment of the jury "it was agreed by the parties that the jury might, when they had agreed upon their verdict, if the court • Sec. 8.] koon v. insurance go. 599 should not then be in session, sign and seal the same, and deliver the same to the officer in charge and disperse." The jury, having agreed upon their verdict when the court was not in session, signed, sealed, and delivered it to the officer in charge, who returned it into court, where it was ordered to be opened and read. It was in the following words and figures, to wit: "We, the jury, find for the plaintiffs, and fix the sum due on the bond at $7500, and damages at one cent. ' ' The envelope in which it was enclosed also contained another paper, on which was the following writing: "The undersigned jury signed the enclosed verdict as a compromise, being the largest amount we can get ; ' ' signed by five of the jurors. Thereupon the court directed the clerk to put the verdict in the following form: "We, the jury, find the issue for the plaintiff, and find the debt ten thousand dollars, and assess the damages at seven thousand five hundred dollars ; the said debt to be dis- charged on payment of said damages. ' ' To which action, in ordering the verdict to be opened and read in the absence of the jury and in changing its form, the de- fendants excepted, and moved the court to correct the entry so as to make it conform to the verdict as returned. The motion was overruled, and judgment rendered on the verdict as recorded. The defendants sued out this writ of error. Mr. Chief Justice Waite delivered the opinion of the court. The stipulation "that the jury might, when they had agreed on their verdict, if the court should not then be in session, sign and seal the same, and deliver the same to the officer in charge and disperse," was equivalent to an agreement by both parties, on the retirement of the jury, that the court might, when the sealed verdict was handed in by the officer, open it in the absence of the jury and reduce it to proper form, if necessary. The stipulation was also a waiver of the right to poll the jury if they should not be in court. ^ The issue to be tried was on a plea of nil debit. This admitted the execution of the bond, and required the jury only to find the 1 Savage, Ch. J., in Jackson v. Notwithstand the practice of the Hawks, 2 "Wend. 619: "It is the judge, the counsel for the defendant undoubted right of a party to poll positively states that there was no a jury on their bringing in their agreement waiving the right, and verdict, and he cannot be deprived that he would not have consented to of it, but by his express assent. a sealed verdict had he supposed 600 CONDUCT OF THE TRIAL. [ChAP. IV. amount due. If anything was found to be due, the law fixed the form of the verdict and judgment. The jury found there was $7500 due on the debt and one cent damages for the deten- tion. That finding, reduced to proper form, was in favor of the plaintiff for the penalty of the bond, to be discharged on payment of $7500. AH the court did was to enter the verdict in that form. In doing so it only gave legal effect to what the jury unmistakably found. This was allowable, both under sec- tion 954 of the Revised Statutes and the Practice Act of Illinois. Judgment affirmed. HUMPHRIES V. DISTRICT OF COLUMBIA. 174 TJ. S. 190. [1898.] This case is before the court on error to the Court of Appeals of the District of Columbia. The facts are these: On May 22, 1896, the plaintiff in error filed an amended declaration in the Supreme Court of the District, claiming damages from the de- fendant, now defendant in error, on account of injuries caused by a defective condition of the bridge between Washington and Anacostia — a condition resulting from the negligence of the de- fendant. A jury was empaneled, trial had, and the case sub- mitted to it on November 30, with instruction to return a sealed verdict. The instructions and the verdict were returned on the morning of December 1, and were in the following form : "When the jury agree upon a verdict, write it out, all of the jurors sign it, date it, seal it up and deliver to the foreman, to be delivered in open court on the 1st day of December, 1896, and in the presence of all who sign it. Elizabeth M. Humphries V. No. 38281. At Law. The District of Columbia. Dated November 30, 1896. "We, the jurors sworn to try the issue joined in the above- entitled cause, find said issue in favor of the plaintiff, and that that he thereby would lose the right verdict must be set aside; costs to of polling the jury. The party, abide the event." therefore, not having expressly as- See also Bishop v. Mogler, 33 sented, and having been deprived of Kan. 145. a right to which he was entitled, the Sec. 8.] Humphries v. dist. of Columbia. 601 the money payable to him by the defendant is the sum of seven thousand dollars and — cents ($7000.00). All sign: Michael Keegan, etc. [Names omitted.] The proceedings on December 1 are thus stated in the record : "Come here again the parties aforesaid in manner aforesaid, and the same jury return into court, except John T. Wright, who does not appear, and having said sealed verdict in his possession as foreman sends the same to the court by Dr. Mc Williams, who delivers the same to the court with the statement that the said John T. Wright is ill and confined to his bed and physically un- able to appear in court ; that he, said Mc Williams, is his attend- ing physician, and as such received from said Wright said sealed verdict with direction to deliver it to the court; whereupon the defendant, by its counsel, objected to the reception, opening and reading of said sealed verdict ; whereupon, in answer to the ques- tions of the court, the remaining jurors severally on their oath say that they severally signed said verdict, and that they saw said John T. Wright sign the same, and that the name 'John T. Wright, ' signed thereto, is in his handwriting ; ' thereupon the re- maining jurors on their oath say they find said issue in favor of the plaintiff and assess her damages by reason of the premises at seven thousand dollars ($7000).' "The counsel for the defendant ask that the jury be polled, which is done, and each of said remaining jurors on his oath says that he finds said issue in favor of the plaintiff and assess her damages by reason of the premises at $7000." Upon this verdict a judgment was entered. Proceedings in error were taken, but were dismissed by the Court of Appeals on account of a failure to have the bill of exceptions prepared in time. Thereafter, and at a succeeding tern;^, the defendant filed a motion to vacate the judgment on the ground that there was no valid verdict, which motion was overruled. On appeal to the Court of Appeals this decision was reversed and the case re- manded, with instructions to vacate the judgment, to set aside the verdict and award a new trial. 12 App. D. C. 122. This ruling was based on the proposition that the verdict was an abso- lute nullity, and therefore the judgment resting upon it void, and one which could be set aside at any subsequent term. 602 CONDUCT OF THE TEIAL. [ChAP. IV. Mr. Justice Beewee, after stating the case, delivered the opin- ion of the court. The single question presented by the record, the right to review which is sustained by Phillips v. Negley, 117 U. S. 665, is whether the verdict, returned under the circumstances described, was an absolute nullity, or, at least, so far defective that no valid judg- ment could be entered upon it. Such is the contention of the defendant. On the contrary, the plaintiff insists that whatever irregularities may have occurred, or be apparent in the pro- ceedings, they are simply matters of error, to be corrected on direct proceedings within the ordinary time, and in the customary manner for correcting errors occurring on a trial. Is the defect or irregularity disclosed a mere matter of error or one which affects the jurisdiction? The opinion of the Court of Appeals, announced by Mr. Justice Moeeis, is an exhaustive and able dis- cussion of the question, arriving at the conclusion that the verdict was an absolute nullity, and therefore the judgment, based upon it, one that could be set aside, not merely at the term at which it was rendered, but at any subsequent term. While appreciating fully the strength of the argument made by the learned judge, we are unable to concur in the conclu- sions reached. That the verdict returned expressed at the time it was signed the deliberate judgment of the twelve jurors, can- not be questioned. That it remained the judgment of the eleven at the time it was opened and read is shown by the poll that was taken, and that it was still the judgment of the absent juror at the time he forwarded it to the court is evident from the testi- mony. So the objection runs to the fact that at the time the verdict was opened and read each of the twelve jurors was not polled, and each did not then and there assent to the verdict as declared. That generally the right to poll a jury exists may be conceded. Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent. It is not a matter which is vital, is frequently not required by litigants; and while it is an undoubted right of either, it is not that which must be found in the proceedings in order to make a valid verdict. Take the case suggested on argu- ment. Supposing the twelve jurors are present, and the defeated party insists upon a poll of the jury and that right is denied, can it be that a verdict returned in the presence of the twelve by Sec. 8.] Humphries v. dist. of Columbia. 603 the foreman, without dissent, is by reason of such denial an abso- lute nullity ? Is not the denial mere error, and not that which goes to the question of jurisdiction ? There are many rights be- longing to litigants — rights which a court may not properly deny, and yet which if denied do not oust the jurisdiction or render the proceedings absolutely null and void. The line of demarcation between those rulings which are sim- ply erroneous and those which vitiate the result may not always be perfectly clear, and yet that such demarcation exists is con- ceded. This ruling of the trial court, conceding it to be error, is on the hither side of this line, and could only be taken advan- tage of by proceedings in error. It is not so vital as to make the verdict a nullity or the judgment entered thereon void. Sup- pose, after the jury, at the end of a protracted trial, have agreed upon the verdict and come into court to announce it, and after it has been read in open court but before a poll can be had one of the jurors is suddenly stricken dead, can it be that the whole proceeding theretofore had become thereby a nullity? Can it be that after each of the jurors has signed the verdict and after it has been returned and each is present ready to respond to a poll, the mere inability to complete the poU and make a personal appeal to each renders the entire proceedings of the trial void? We are unable to assent to such a conclusion. The right to poll a jury is certainly no more sacred than the right to have a jury, and under many statutes a trial of a case, in which a jury is a matter of right, without a waiver thereof, has again and again been held to be erroneous and subject to correction by proceeds ings in error. But it is also held that an omission from the record of any such waiver is not fatal to the judgment. "The fourth alleged error is to the effect that the judgment in the Kansas court was void because the case was tried by the court without the waiver of a trial by jury entered upon the journal. Whatever might be the effect of this omission in a pro- ceeding to obtain a reversal or vacation of the judgment, it is very certain that it does not render the judgment void. At most it is only error, and cannot be taken advantage of collaterally. Maxwell v. Stewart, 21 Wall. 71. "A trial by the court, without the waiver of a jury, is at most only error." Same case, 22 Wall. 77. If a trial without a jury, when a jury is a matter of right and no waiver appears of record, is not fatal to the judgment, a 604 CONDUCT OP THE TRIAL. [ChAP. IV. fortiori the minor matter of failing to poll the jury when it is clear that the verdict has received the assent of all the jurors, cannot be adjudged a nullity, but must be regarded as simply an error, to be corrected solely by direct proceedings in review. See in reference to the distinction between matters of error and those which go to .the jurisdiction, the following cases : Ex parte Bigelow, 113 U. S. 328 ; In re Coy, 127 U. S. 731 ; In re Belt, 159 U. S. 95 ; In re Bckart, 166 U. S. 481. We are of opinion that the defect complained of was merely a matter of error, and does not render the verdict a nullity. The judgment of the Court of Appeals will therefore be re- versed and the case remanded ivith instructions to affirm the. judgment of the Suprems Court of the District of Columbia. DOUGLASS V. TOUSBY. 2 Wendell (N. Y.), 352. [1829.] Marcy, J. * * * 2. The defendant also asks to have the verdict set aside, on the ground of irregularity. It was late in the evening when the cause was committed to the jury. The judge, without the express consent of the counsel, directed them to seal up their verdict and bring it into court the next morn- ing. They presented their sealed verdict, according to the direc- tion of the court ; and when polled, one of them refused to agree to it. When asked why he signed the verdict, he said he was unwell and unable to sit up all night. The judge sent the jury out again, and they finally brought in the same verdict which they had signed and sealed the evening previous. The juror who had dissented from the sealed verdict stated to the court that he had received such explanation of the testimony from his fellows that he was satisfied with the verdict. The ancient strict- ness in regard to the conduct of jurors has of late years been somewhat relaxed. In the case of The People v. Douglass (4 Cowen, 26), it is said by the chief justice, that "In a civil suit at this day, it is perfectly clear that the separation of the jury without, and even contrary to the direction of the court, would not, of itself, warrant the court in setting aside their verdict." Where there is no evidence or suspicion of abuse while the jury Sec. 8.] jackson v. Williamson. 605 are separated, their verdict will not be disturbed. (1 Cowen, 221; 5 id. 283.) In the case of Bunn v. Hoyt, 3 Johns R. 255, a question arose very similar to that now before the court. The jury retired, deliberated several hours, sealed their verdict, separated, and the next morning brought it into court. On being polled, one of them disagreed to it. The judge (Ch. J. Kent) sent them out again, and the disagreeing juror ultimately assented to the ver- dict, which had first been brought in under seal. It is not stated in the case of Bunn v. Hoyt, that the bringing in a sealed ver- dict was by the direction of the judge, or by the acquiescence of the counsel for the parties, but it probably was so. In this case, the trial closed at a late hour at night, and the judge directed the jury to seal their verdict, and gave them permission to separate. There being no objections to this course on the part of the defendant, he must be deemed to have tacitly assented to it. The verdict cannot, therefore, be set aside for the alleged irregularity in receiving it.^ JACKSON V. WILLIAMSON. 2 Durtiford & East, 281. [1788.] A rule had been obtained by Lambe to show cause why the postea in this cause should not be amended, by inserting the sum of £61 instead of £30 agreeable to the real finding of the jury. It was an action of trespass against the sheriff of Durham for hav- ing unjustly sold a coal keel or lighter. It was proved at the trial that the sheriff had actually sold this for £31, but several of the witnesses on the part of the plaintiff proved it to have been worth £60; the jury gave their verdict for £30 damages, and now the plaintiff produced an affidavit made by all the jury- men, saying that they meant to give the £30 as damages for the seizing and detaining the vessel, over and above the £31 for which it appeared that the vessel had been actually sold; and that they conceived that the prothonotary would of course add the £30 to the £31 and thereby make the whole sum of £61 which the jury intended to give. 1 Accord, Deveretix v. Cotton ing reasons why the jury should be Press Co. 14 S. C. 396. Contra, discharged from further considera- Kramer v. Kiste, 187 Pa. 227, giv- tion of the ease. 606 CONDUCT OP THE TRIAL. [ChAP. IV. Chambre showed cause, and contended that it would be a very dangerous practice, if the court were to give way to such an application in any instance. If there is any ambiguity in a ver- dict, it ought to be inquired into and explained at the time. The verdict in this case was conceived in very plain terms; and though perhaps the jury ought to have given the £31, yet the difference is too trifling to be attended to. Law and Lambe, contra, said it was entirely owing to the accident of the plaintiff's counsel happening to be out of court, when the verdict was delivered, that the mistake was not cor- rected at the time, but it was so the very first opportunity after- wards. Here the mistake spoke for itself. It was impossible the jury could intend to give less than what it appeared the sheriff had actually received into his hands by the sale. The seizure of the vessel, which was without any color, had been a great detri- ment to the plaintiff, who would not only be put to a considerable expense in procuring another, but had lost the intermediate profits; and as the jury had unanimously concurred in the ex- planation of their verdict, they conceived that no inconveniences need be apprehended from acceding to it in such a case as this. The court refused the application, saying that it would intro- duce a very dangerous practice if they were to admit such an affidavit as the one offered. They said that they laid no stress upon its being made by all the jury : if it could be made at all, upon the same principle it might as well be made by some. If any doubt had arisen as to the meaning of the jury, if they had found a sum inadequate to the value proved, the proper time for requiring an explanation was at the trial. It was too late now ; such a practice would be productive of infinite mischief; and it was better that the present plaintiff should suffer an inconven- ience, than that such a rule should be introduced. Rule discharged.^ CAPEN V. INHABITANTS OF STOUGHTON. 16 Graij, 364. [I860.] Petition entered at April term, 1858, of the Court of Common Pleas in Norfolk, setting forth that in November, 1856, a town 1 Accord, Walters v. Junkins, 14 Sergt & Eawle, 414. Sec. 8.] capen v. inhabitants of stoughton. 607 way was laid out oyer the land of the petitioners in Stoughton, and damages assessed therefor, by which the petitioners were aggrieved, and the county commissioners, upon their application and after due notice, issued a warrant for a reassessment of the damages by a jury; that a jury was impaneled and the case tried before them ; that blank forms of verdict for the petitioners and for the respondents were handed to them by the sheriff; that the jury agreed upon and filled out a verdict for the peti- tioners, but through mistake omitted to sign it, and signed a verdict for the respondents; that both verdicts were sealed up in one envelope and returned into the Court of Common Pleas; that the petitioners received information from some of the jurors that the verdict returned was in their favor, and so told their counsel, and he, relying on this information, without inspecting the verdict, moved the court at December term, 1857, to accept it, and it was accepted and ordered .to be certified to the county commissioners. The prayer of the petition was that this judg- ment should be vacated, the case brought forward on the docket, and leave given the petitioners to sue out a writ of review. * * * A hearing was had in the Court of Common Pleas at April term, 1859, at which Aiken, J., against the objection of the respond- ents, allowed three of the persons who had composed the sheriff's jury to testify that, after agreeing on a verdict for the peti- tioners and filling up a blank form accordingly, the jury by mis- take signed the form of verdict for the respondents ; and ordered the former case tc be brought forward on the docket, and the acceptance of the verdict to be vacated as prayed for. The respondents allege ;1 exceptions to the admission of the testimony of the jurors. BiGELOW, C. J. "We think this case differs essentially from those cited by the eounsel for the respondents, in which it has been held, that thi testimony of jurors is inadmissible in sup- port of a motion to Set aside a verdict on the ground of mistake, irregularity or misconduct of the jury, or of some one or more of the panel. It has been settled upon sound considerations of public policy that mistake of the testimony, misapprehension of the law, error in computation, irregular or illegal methods of arriving at damages, unsound reasons or improper motives, mis- conduct during the trial or in the jury room, cannot be shown by the evidence of the jurors themselves, as the ground of dis- 608 CONDUCT OF THE TRIAL. [ChAP. IV. turbing a verdict, duly rendered. Chadbourn v. Franklin, 5 Gray, 315, and cases there cited. One of the strongest cases on this point in the English books is Bridgewood v. Wynn, 1 Har. & Wol. 574. In all those eases, however, it will be found upon examination that an inquiry was attempted into the conduct of jurors during the progress of the trial, or while they were engaged in their deliberations upon the ease, or in making up the verdict to which they finally agreed. But in the present case the mistake which is proved by the testimony of the jurors is of a difi'erent character. It is not one connected with the consultations of the jury, or the mode in which the verdicts were arrived at or made up. No fact or circumstance is offered to be proved, which occurred prior to the determination of the case by the jury and their final agreement on the verdict which was to be rendered by them. But the evidence of the jurors is offered only to show a mistake, in the nature of a clerical error, which happened after the deliberations of the jury had ceased, and they had actually agreed on their verdict. The error con- sisted, not in making up their verdict on wrong principles or on a mistake of facts, but in an omission to state correctly in writing the verdict to which they had, by a due and regular course of proceeding, honestly and fairly arrived. The ease of Cogan v. Ebden, 1 Bur. 383, and 2 Eeny. 24, is quite analogous to the present. There two different issues were joined as to a right of way over two separate closes. The foreman of the jury gave in the verdict as a general verdict for the defend- ant on both issues. The court received the affidavits of eight of the jurors, which were uncontradicted, ' ' that it was the mean- ing and intention of the whole jury to find the former issue for the defendant and the latter for the plaintiff, and that this mis- take was discovered by them an hour afterwards." On this evi- dence the court held that this "was a mistake arising from the jury's being unacquainted with business of this nature ; and that it was agreeable to right and justice that the mistake should be rectified." No considerations of public policy require that the uncon- tradicted testimony of jurors to establish an error of this nature should be excluded. Its admission does not in any degree in- fringe on the sanctity with which the law surrounds the delibera- tions of juries, or expose their verdicts to be set aside through improper influences, or upon grounds which might prove danger- Sec. 8.] mayor of devizes v. claek. 609 ous to the purity and steadiness of the administration of public justice. On the contrary, it is a case of manifest mistake, of a merely formal and clerical character, which the court ought to interfere to correct, in order to prevent the rights of the parties from being sacrificed by a blind adherence to a rule of evidence, in itself highly salutary and reasonable, but which upon prin- ciple has no application to the present case. Order affirmed,'^ (b) General Verdicts. MAYOR OF DEVIZES v. CLARK. 3 Adolphus & Ellis, 506. [1835.] Action on the case. The plaintiffs declared that they were possessed of a market, on Thursdays, at Devizes, and that it was the duty of persons who sold butcher 's meat at Devizes on market days to expose it for sale on certain stalls appropriated by the plaintiffs to that purpose, paying the plaintiffs a reasonable sum, to-wit. Is. 6d., for the use of each stall, and not to expose meat for sale on such market days in any place in Devizes other than the plaintiffs' stalls; and that the defendant, not regarding his duty, on divers market days sold butcher 's meat in his own house in Devizes, and refused to pay the plaintiffs for the use of their stalls. Plea, not guilty. On the trial before Williams, B., at the Salisbury Lent assizes, 1834, the plaintiffs proved that they were possessed of an ancient market; that, with very few exceptions, all persons selling butcher's meat on Thursdays in the town had always sold it at the plaintiffs' stalls, paying stallage for the same; and that, in 1803 and 1816, actions having been brought against certain persons for selling butcher's meat on market days at their own houses in Devizes, instead of the plaintiffs ' stalls, the defendants in those actions had allowed judgment to go by default and had paid the costs. For the present defendant it was contended that the possession of an ancient market (which it was admitted the 1 And so in Peters v. Forgarty, 55 made a mistake in announcing the N. J. L. 386, where the foreman verdict. H. T. P.— 39 ., :, J... ... 610 CONDUCT OF THE TEIAL. [ChAP. I"V. plaintiffs had proved) did not necessarily carry with it the right to prevent persons, who lived within the town, from selling at their own houses on market days; Mosley v. Walker (7 B. & C. 40) ; that a right to prevent such dealings within the town could only be established by proof of a custom to that extent; and that the evidence in the present case was insufficient to establish the custom, there appearing an instance or two in which a butcher had dealt at his own house on market days. The learned judge told the jury that, as it was still a matter of legal doubt, whether or not the right to an ancient market carried with it the right to prevent parties from selling in their own houses within the town on market days, and as the plaintiffs' right to an ancient market was admitted, he wished the jury, with a view to prevent further discussion between the parties, to find expressly,^ if they thought the evidence warranted such a finding, whether there was any custom in Devizes to preclude the sale of butcher 's meat on market days in any part of the town except on the plain- tiffs' stalls. Upon this some of the jurymen entered into a con- versation with the learned judge, from which it appeared that they understood the effect of his observations as to the point left to them. After retiring for a short time, they found a verdict for the plaintiffs generally. The following conversation then took place between the learned judge and the foreman: Williams, B. : "Then, gentlemen, you find that in your judg- ment there has been an immemorial usage for the corporation to demand and receive this stallage for meat in the market, and that there was no right on the part of individuals to sell in a house or shop Out of the market. ' ' The Foreman : ' ' That is not our verdict; our verdict is for the plaintiffs; the right to the market is acknowledged on all hands ; of course, our verdict is to say that the defendant had not a right to do what he is charged with doing." Williams, B. : "Then you further find, that the defendant had no right I ' ' The Foreman : " I would rather not add any words. ' ' In the course of the conversation, the learned judge said that an express finding might prevent further litiga- tion, and the foreman said that the jury had been guided by the remarks of his lordship ; but that they desired to add nothing to their verdict. A general verdict was then taken for the plain- 1 In the absence of statute, the findings from the jury. Peek v. court is not bound to request special Snyder, 13 Mich. 21. Sec. 8.] mayor of devizes v. clark. 611 tiffs. In Easter term, 1834, Merewether, Serjt., obtained a rule to show cause why the verdict should not be set aside, and a new trial had on the ground, chiefly, of uncertainty in the find- ing of the jury. Lord Denman, C. J. The plaintiff is entitled to maintain this verdict, if it was rightly given, and there is nothing to show that it was not. It appears that the learned judge explained to the jury that the question of law, whether the mere possession of the ancient market was of itself enough to entitle the plaintiffs to a verdict, was a question attended with some doubt ; but told them that they need not enter into that question now, inasmuch as there was direct evidence of the custom; and directed them to give their verdict on that evidence, if they deemed it sufficient to establish the custom. Prom what the jury said before they retired, it is clear that they understood him. Then they retire, and afterwards bring in a verdict for the plaintiffs. The only issue which they could so find, consistently with abstaining from any decision on the legal question, was the issue as to the fact of the custom. Then the judge, with the purpose of making further discussion unnecessary, told them that, if they found the fact more distinctly, it might prevent further litigation. A conversation takes place, in the course of which the jury say, "Of course, our verdict is to say that the defendant had not a right to do what he is charged with doing." Now, whether the defendant had the right, depended, at that stage of the pro- ceedings, on the question as to the fact of the custom; finding the one was finding the other. It is true that the jury were called on to speak expressly as to the fact; but they had a right to refuse. It seems to me that they have merely exercised a right belonging to them, and that we should not be justified in dis- turbing their verdict.^ 2 Thayer, Preliminary Treatise on by punishing the jury, and by giv- Evidence, p. 217: "The judges ing a new trial. As matter of his- often compelled special verdicts. It tory, we know that the jury, on the was the old law that a jury, if it whole, successfully stood out chose to run the risk of a mistake, against these attempts; and that in and so of the punishment by at- most cases their right was acknowl- taint always might find a general edged. But now it is remarkable verdict. But the judges exerted how judges and legislatures in this pressure to secure special verdicts; country are unconsciously traveling sometimes they ordered them, and back towards the old result of con- enfor(ied the instruction by threats, trolling the jury, by requiring spe- 612 CONDUCT OF THE TRIAL. [ChAP. IV. CLERK V. MARTIN. 1 Salkeld, 129. [1702.] A note was given by the defendant, whereby he promised to pay to the plaintiff, or order, so much money. The plaintiff brought an action on this note, and declared on the custom of merchants ; and likewise laid a general indebitatus assumpsit, and on the general issue entire damages were given. Upon motion in arrest of judgment the court held that this is not within the custom of merchants, and, being no specialty, no action can be grounded on it. Then it was answered, that being void, no damages could be intended to be given for it. Sed non allocatur; for it is not a matter insensible, but insufficient in law. And judgment was arrested. ^ Vide infra. Note to same case on p. 364. Et nota the diversity there taken, that after verdict it may be intended that no damages were given for matter insensible ; but it cannot be so intended for matter sensible, but insufficient in law. cial verdicts and answers to specific ing that the jury has assessed dam- questions. Logis and neatness of ages on all, although they in truth legal theory have always called never tho^ight of the different loud, at least in recent centuries, for counts, but the verdict was so taken, special verdicts, so that the true from the inadvertence of counsel significance of ascertained facts in the hurry of Nisi Prius. And, might be ascertained and declared what makes this rule appear more by the one tribunal fitted to do this absurd, is that it does not hold in finally and with authority. But con- the case of criminal prosecutions; siderations of policy have called for, when there is a general verdict louder for leaving to the jury a of guilty, on an indictment consist- freer hand." ing of several counts, if any one of 1 LoKD Mansfield, in G-rant v. them is good, that is held to be guffi- Astle, 2 Douglas, 722 (1781): "I cient. But in civil oases the rule is have exceedingly lamented that ever now settled, and we have gone as so inconvenient and iU-fouuded a far as we can, by allowing verdicts rule should have been established as in such oases to be amended by the that, where there are several counts, judge's notes. That might have entire damages, and one count is been done, in this instance, in an bad, and the others not, this shall earlier stage of the proceeding, but be fatal ; upon the fictitious reason- cannot now after judgment. ' ' Sec. 8.] lloyd v. morris. 613 LLOYD V. MOREIS. Willes, 443. [1743.] Hatward moved in arrest of judgment. It was an actior for words; and the jury found for the plaintiff, damages twc guineas. There was but one count ; and the words were "you art a pickpocket and a murderer; you stole a guinea from A; you killed his cattle, and murdered his child." He insisted thai the verdict being general, and some of the words, viz., "killed his cattle," not actionable, the judgment ought to be arrested and he compared it to the case of two counts, in one of whid the words are actionable and in the other not. And he cited the case of How. v. Prinn, 2 Salk. 694, which is nothing to the purpose; and the case of Lloyd v. Pearse, Cro. Jac. 424, whict was thus; action for these words, "thou art a bankrupt rogue and accounted a common knave ; thou art a thief, and hast stoler my corn;" to the first words, "thou art a bankrupt rogue and accounted a common knave," the defendant pleaded not guilty and justified the other words. Verdict for the plaintiff on both issues, Is. damages for the first words and 39s. for the second and costs for both; and judgment was reversed, because the first words were not actionable, the plaintiff being neither merchant nor tradesman, and the judgment being entire ; for ir the judgment the damages were joined though they were severed in the verdict. He' cited also the case of Graves v. Blanchett 6 Mod. 148, where there were two counts in an action for words and a general verdict and entire damages, and judgment was arrested. We had none of us much doubt, because this case it very different from the case of two counts, where the defendant might have been found not guilty upon one and guilty upon the other, and the case where the words are severed by the plea, for the same reason. But in this case it was necessary either to find the defendant guilty of the whole or none ; and if judgment must be arrested, a man by speaking words not actionable and words actionable together will secure himself from an action, because he must be found guilty of the whole or none. My brother Abney indeed thought that if the whole words which are laid in a count are not proved, yet if those which are actionable be proved it is sufficient. 614 CONDUCT OP THE TRIAL. [ChAP. IV. But I and my brother Burnett thought otherwise; and in this case we were all of opinion that the verdict could not be found otherwise; and we would take it that the jury only gave damages for such part of the words as were actionable, and that the judge directed them so to do.^ However, we made a rule 7nsi in order to look into the eases, but declared that our present opinion was that the plaintiff was entitled to his judgment. And afterwards he moved, and had leave to enter up his judgment. BDDOWES V. HOPKINS. 1 Douglas, 376. [1780.] Assumpsit, tried before Lord Mansfield, at Guildhall, at the sittings after last Michaelmas term. The declaration contained several counts ; some upon promises made by the testator, others on other promises by the defendants themselves. To the first set of counts plene administravit was pleaded, and the general issue to the others ; and, the jury having found for the plaintiffs with £147 damage, a general verdict was entered by the officer. At the trial the only question was whether the plaintiffs were entitled to interest on the value of goods sold by them to the testator. They were wholesale linen drapers, and the testator an American merchant, and it appeared to have been the usage of the American trade for merchants here to allow to their American correspondents twelve months credit, and then to charge them five per cent for interest, ^nd for the tradesmen here to allow the merchant fourteen months credit, and then to charge five per cent. This was hardly disputed by the defendants, and his lordship held that though by the common law book debts do not of course carry interest, it may be payable in consequence of the usage of particular branches of trade; or of a special agreement; or, in cases of long delay under vexatious and op- pressive circumstances, if a jury in their discretion shall think fit to allow it. But none of the articles for which the testator was indebted to the plaintiffs had been delivered fourteen months 1 In such a case a new trial may submitted to the jury. Christal v. be necessary where the non-action- Craig, 80 Mo. 367. able words have been improperly Sec- 8.] eddowes v. hopkins. 615 before his death, so that no interest was owning when he died, and the defendants contended that the usage did not bind the executors. Lord Mansfield, however, and the jury thought otherwise. In the last term the solicitor-general obtained a rule to show cause why the judgment should not be arrested, on the ground that the verdict was general, and the counts inconsistent, and such as require different judgments to be entered, viz., judgment ds bonis testatoris on those where the promises were laid to be by the testator, and de bonis propriis on the others. Some time afterwards, Baldwin, for the plaintiffs, obtained a cross rule for the defendants to show cause why the postea should not be amended by the judge's minutes, and a verdict entered for the plaintiffs only on the counts to which the evidence given at the trial applied, and for the defendants on the others. Both these rules came on to be argued this day. The solicitor-general, for the defendants, insisted that if the court were to alter the postea they would, in fact, do what was properly and exclusively the province of the jury, for that the verdict would then be the act of the court. Lee, for the plaintiffs, contended that this was not a new sort of application, and cited a case of Newcombe v. Green, in Strange (2 Strange, 1197), where it appeared by the judge's minutes that the jury had found for the plaintiff with £274 lis. damages, but the officer only entered a verdict with Is. damages, and the court directed an amendment to be made according to the judge's minutes. Lord Mansfield said it was impossible to believe there was such an absurdity in the law, as that a mere mistake of the ofSeer should be without a remedy, and that neither the judge nor jury could possibly have proceeded on what there was no evidence of before them ; and he mentioned a case of one Gibson who had been tried for robbing Mr. Francis, and convicted, and a mistake being discovered in the verdict, upon consultation with all the judges at his chambers, it was corrected from minutes signed by the jury, and the prisoner executed. BuLLER, Justice, said there was this distinction, that, if there was only evidence at the trial upon such of the counts as were good and consistent, a general verdict might be altered from the notes of the judge, and entered only on those counts; but that, if there was any evidence which applied to the other bad 616 CONDUCT OF THE TEIAL. [ChAP. IV. or inconsistent counts (as, for instance, in an action for words, where some actionable words are laid, and some not actionable, and evidence given of both sets of words, and a general verdict), there the postea could not be amended, because it would be impossible for the judge to say on which of the counts the jury- had found the damages, or how they had apportioned them. That, in such a case, the only remedy is by awarding a venire de novo. He mentioned an instance where Sir Fletcher Norton had moved for and obtained a venire de novo in a case of that sort. The rule to arrest the judgment was discharged, and the other rule made absolute ; but, on the payment of costs, including those of the motion in arrest of judgment. McKBE V. CALVERT. 80 Missouri, 348. [1883.] Philips, C. This is an action for damages for an assault and battery. Verdict and judgment for plaintiff for the sum of $250. Defendant has brought the case here on appeal. Neither the motion for new trial nor in arrest are preserved in the bill of exceptions, and therefore no alleged errors committed in the progress of the trial can be considered or reviewed by this court. Collins V. Barding, 65 Mo. 496 ; Jefferson City v. Opel, 67 Mo. 394 ; Robinson v. Hood, 67 Mo. 660 ; State ex rel. Estes v. Gaither, 77 Mo. 304. On this record no errors are reviewable save such as are apparent in what is known as the record proper. It is objected to the petition that it does not state facts suffi- cient to constitute a cause of action. It charges that on the 13th day of February, 1880, at the County of Clark, State of Missouri, with force and arms, the defendant assaulted, beat and bruised, cut and wounded the plaintiff, by reason of which he sustained damage in the sum of $1,000, for which he prayed judgment. For further cause of action it is alleged that on the day and place aforesaid the defendants did unlawfully, with their fists, sticks, knives and other sharp instruments, assault, beat and bruise and wound plaintiff, and other wrongs and injuries to plaintiff then and there did, by reason of which he Sec. 8.] empson v. griffin. 617 had sustained damages in the sum of $1,000, for which judgment is prayed. The only tangible objection to the petition occurring to us is, that it is not affirmatively averred in the first count that the assault was wrongful, but it is alleged that it was "with force and arms, ' ' and this we think would be good after verdict. The second count was unquestionably sufficient. And while the peti- tion apparently counts as if for two separate causes of action, they are manifestly for one and the same assault and battery. In such case the good count will support a general verdict for the plaintiff.i Brownell v. Pacific Railroad, 47 Mo. 240. We perceive no reversible error in the record, and the judg- ment of the Circuit Court is therefore affirmed. All concur. EMPSON V. GRIFFIN. 11 Adolphus & Ellis, 186. [1839.] Case for slander. The first count stated, in the introductory part, that the plaintiff was an attorney, and a colloquium of and concerning the plaintiff in his said profession ; and then set out certain defamatory words reflecting upon plaintiff in his char- acter of attorney. There were six other counts, one of which, the fifth, contained no averment or colloquium concerning the plain- tiff's profession, nor any reference to the introductory statement in the first count, but only set out defamatory words imputing dishonesty to the plaintiff. Plea, not guilty. On the trial before Park, J., at the spring assizes, 1838, at Warwick, the jury found a general verdict for the plaintiff, damages £15. Some of the words attributed to the defendant in the fifth count were proved at the trial. In the following Easter term Balguy obtained a rule nisi to arrest judgment, because the words in the fifth count were not actionable without refer- ence to the profession of the plaintiff. A few days afterwards an order was obtained from Park, J., to enter a verdict for the plaintiff on the first count, and for the defendant on all the 1 See West v. Piatt, 127 Mass. 367 applied in Bond v. Dustin, 112 U. S. (under rule of court). See also 604. par. 78, chap. 110, 111. E. 8. 1913, 618 CONDUCT OF THE TRIAL. [ChAP. IV. others. In the same Easter term, May 1st, Mellor obtained a rule nisi to set aside the above order, on the ground that some of the words complained of in the fifth count were actually proved, and the jury might have been influenced by them in assessing the amount of damage. Both rules came on for argu- ment at the sittings in banc after Trinity term last. Lord Denman, C. J., in this vacation (November 27th) de- livered the judgment of the court. In this case we are of opinion that the order for confining the verdict to the first count was wrong, inasmuch as evidence was given at the trial applicable to the fifth count, as well as to the first; and the damages being general, it cannot be known what amount of them the jury meant to ascribe to each. That order must, therefore, be set aside. The fifth count is clearly bad, and, according to the older decisions, judgment ought to be arrested; but in the late case of Leach v. Thomas (2 M. & W. 427) the Court of Exchequer, following the rule adopted by courts of error in Angle v. Alex- ander (7 Bing. 119) and Day v. Kobinson (1 A. & E. 554), held that, under such circumstances, a venire de novo ought to be awarded. Such must be the rule in the present instance. Rule absolute to set aside the judge's order. Venire de novo awarded. HOPKINS v. ORR. 124 U. 8. 510. [1888.] This was an action of assumpsit, brought April 3, 1882, by Orr and Lindsley against Hopkins in a District Court of the Territory of New Mexico. The declaration contained a special count on a promissory note for $1,314.65, made by the defendant on October 1, 1881 ; and the common counts for the like sum due on that day for goods sold, for money lent, for money paid, and for money had and received. The plaintiffs filed with their declaration the following note. * * * The description of the note in the special count corresponded with the note filed, except that it did not state that the note was payable with exchange and at a particular place. The defendant pleaded non assumpsit and payment. * * * Sec. 8.] hopkins v. orr. 619 The jury returned a verdict saying that "they find for the plaintiff in sum of thirteen hundred and ninety-nine and 48/100. ' ' The court overruled motions for a new trial and in arrest of judgment, and gave judgment "that the said plaintiffs do have and recover from the said defendant, Lambert N. Hopkins, the said sum of thirteen hundred and ninety-nine and 48/100 ($1,399.48), and also the costs in their behalf laid out and ex- pended, to be taxed, but that execution shall not issue therefor until further order of the court." * * * Mr. Justice Gray, after stating the case as above reported, delivered the opinion of the court. It was not contended in either of the courts of the territory that any question of fact should have been submitted to the jury; but the contest was upon the sufficiency of the evidence and the verdict, in matter of law, to support a judgment for the plaintiffs. Upon the testimony that the defendant admitted his indebted- ness on the note given in evidence, that note, though varying from the description in the special count, was admissible under the common counts as evidence of money had and received by the defendant to the plaintiffs' use. Grant v. Vaughan, 3 Burrow, 1516 ; Page v. Bank of Alexandria, 7 Wheat. 35 ; Goodwin v. Morse, 9 Met. 278. And by the statutes of the territory the sum so admitted to be due bore interest at the rate of six per cent. Prince's Laws, Chap. 79, § 4; Comp. Stat, § 1734. The omission of the word "dollars" in the verdict was not such a defect as to prevent the rendering of judgment according to the manifest intent of the jury, although it might have been more regular to amend the verdict before judgment. Parks v. Turner, 12 How. 39 ; Beall v. Territory, 1 New Mexico, 507, 519. It was argued for the defendant that under the rule recognized in Maryland v. Baldwin, 112 U. S. 490,^ the verdict being general on all the counts, and the evidence not supporting the special count, no judgment could be rendered on the verdict without first amending it so as to limit it to the common counts. But the 1 Field, J., in Maryland v. Bald- entered, the case was brought here win, 112 U. 8. 490: "Upon these on writ of error, pleas issues were joined and tried "On the trial evidence was in- by the court with a jury, which troduced bearing upon aU the is- found a general verdict for the de- sues, and if any one of the pleas fendants. Judgment having been was, in the opinion of the jury, sus- 620 CONDUCT OF THE TRIAL. [ChAP. IV. technical rule of the common law in this matter has been changed by statute in many parts of the United States. Bond v. Dustin, 112 U. S. 604. In New Mexico that rule has been abrogated by the statute of the territory, by which "the Supreme Court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the District Court, or give such other judgment as to them shall seem agreeable to law." Prince's Laws, Chap. 16, § 7 ; Comp. Stat., § 2190. The manifest object of the statute is, not merely to restrain the Appellate Court from going outside of the record, but to enable it to render such a judgment as upon a consideration of the whole record justice may appear to require. The Supreme Court of the territory was therefore authorized to affirm the judgment rendered by the District Court upon the general verdict for the plaintiffs, if the facts contained in the record supported any count in the declaration, as we have seen that they did. And there can be no doubt of its authority to make its affirmance of the judgment conditional upon the plain- tiffs' remitting part of the interest awarded below. Bank of Kentucky v. Ashley, 2 Pet. 327. * * * BENNETT v. BUTTERWORTH. 11 Howard (V. S.), 669. [1850.] This case was brought up by writ of error, from the District Court of the United States for the District of Texas. In 1848 Butterworth filed the following petition against Ben- nett : * * * "The petition of Samuel F. Butterworth, who is a citizen of the State of New York, against John H. Bennett, who is a citizen of the State of Texas, would respectfully represent unto your tained, their verdict was properly or in the charge of the court, the rendered, but its generality prevents verdict cannot be upheld, for it may us from perceiving upon which plea be that by that evidence the jury they found. If, therefore, upon any were controlled under the instruc- one issue error was committed, tions given. ' ' either in the admission of evidence Sec. 8.] bennett v. butterwobth. 621 honor that heretofore, viz., on the day of March, 1846, at , to-wit, in the district aforesaid, he, your petitioner, was lawfully seized and possessed of four negroes, slaves for life, whose names and descriptions are as follows : viz. : Billy, a negro man, of a dark complexion, aged about twelve years, of the value of five hundred dollars; Lindsey, a negro man, of a dark complexion, aged twenty-two years, and of the value of one thousand dollars; Betsy, a mulatto woman, of a light com- plexion, aged about thirty years, and of the value of eight hundred dollars ; and Alexander, a boy of a very light coinplex- ion, aged about four years, and of four hundred dollars value, of his own property. And being so possessed, your petitioner, afterwards, to-wit, on the day and year aforesaid, in the district aforesaid, casually lost the same out of his possession, and the same, afterwards, to-wit, on the day and year aforesaid, in the district aforesaid, came to the possession of the defendant by finding. And your petitioner charges, that the said defendant, well knowing the said negro slaves to be the property of your petitioner, and of right to belong and appertain to him, hath not as yet delivered the above described negroes, or any or either of them, although often requested so to do, to your petitioner ; but hath hitherto wholly refused so to do, and hath detained, and still doth detain, the same from your petitioner, who says he has received damages, by reason of the detention of the slaves afore- said, of five thousand dollars. * * * The plea of the defendant set up a title to the slaves in him- self ; averring that a dispute had existed between Butterworth and one John D. Amis and one Junius Amis, which had beto left to arbitration ; that the referees had decided, amongst other things, that Butterworth should transfer certain negroes to Amis ; that Butterworth delivered the negroes, which were those in question; that Amis sold the negroes to him, Bennett; and the plea concluded in this way : "Wherefore the said John H. Bennett says the said four negroes are his property, and not the property of the said Butterworth, and of this he puts himself upon the country. ' ' To this plea Butterworth replied, that all the parties to the submission and decision in the plea set out did not assent and agree to the same, and that Butterworth did not sell, convey and deliver the negroes in the petition mentioned in compliance with the terms, or any of the terms, of the said decision. 622 CONDUCT OF THE TRIAL. [ChAP. IV. Upon these allegations a jury was sworn, who found the fol- lowing verdict: "We, the jury, find for the plaintiff twelve hundred dollars, the value of the four negro slaves in suit, with six and a quarter cent damages. "C. C. Herbert, Foreman." And thereupon the plaintiff, by his attorney, in open court, released the said judgment for twelve hundred dollars as afore- said. It is therefore considered by the court that the plaintiff recover of the defendant the negro man Lindsey, the negro woman Betsy and her child, and the negro boy Billy, the negro slaves in the petition of plaintiff mentioned, and also six and a fourth cents, the damages by the jurors aforesaid assessed, and also his costs about his suit in this behalf expended. * * * Mr. Chief Justice Taney delivered the opinion of the court. There is nothing in these proceedings which resembles a bill or answer in equity according to the rules prescribed by this court, nor any evidence stated upon which a decree in equity could be revised in an Appellate Court. Nor was any equitable title set up by Butterworth, the plaintiff, in the court below. He claimed in his petition a legal title to the negroes, which ' the defendant denied, insisting that he himself was the legal owner. It was a suit at law to try a legal title. The defendant (Bennett) in his plea or answer claimed under an award to which Butterworth and a certain Junius Amis and a certain John D. Amis were parties; and averred that, in execution of this award, the said negroes had been delivered by Butterworth to John D. Amis as his property, and by him after- wards transferred to Bennett for a valuable consideration. To this plea Butterworth replied, that all the parties to the sub- mission and decision in the plea set out did not assent and agree to the same, and that Butterworth did not sell, convey and deliver the negroes in the petition mentioned, in compliance with the terms, or any of the terms, of the said decision. And upon these allegations a jury was sworn, who found for Butter- worth (the plaintiff in the court below) in the following words : "We, the jury, find for the plaintiff twelve hundred dollars, the value of the four negro slaves in suit, with six and a quarter cents damages." And the record proceeds to state, that thereupon the plaintiff Sec. 8.] bennett v. butteewobth. 623 (Butterworth), by his attorney, in open court, released the said judgment for $1,200 ; and thereupon the court adjudged that he recover of the defendant the four negroes mentioned in his peti- tion, and the six and a quarter cents assessed by the jury, and his costs. It does not appear whether any direction to the jury, as to the law of the case, was asked for by either of the parties, or given by the court ; we have nothing but the pleadings, confused and loose as they are, and the verdict and the judgment. Now if anything is settled in proceedings at law where a jury is impaneled to try the facts, it is that the verdict must find the matter in issue between the parties, and the judgment of the court must conform to and follow the verdict. But here the matter in issue was the property in these negroes, and the verdict does not find that they are the property of the plaintiff or the defendant, but finds for the plaintiff their value, which was not an issue. It ought, therefore, to have been set aside upon the motion of either party, as no judgment could lawfully be entered upon it. It was a verdict for a matter different from that which they were impaneled to try. In the next place, if any judgment could have been rendered on the verdict, it ought to have been a judgment for the money found by the jury. For the trial of facts by a jury would be of very little value, if, upon a verdict for money to a certain amount, the court could infer that the jury intended to find something else, and give a judgment for property instead of money. And lastly, when the plaintiff, in the District Court, released the $1,200 found by the jury, there was nothing of the verdict remaining, upon which the court could act or give judg- ment for either party, but the six and a quarter cents damages which the jury found in addition to the value. The judgment is evidently erroneous, and must be reversed. And as these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment, or exception taken in the District Court. 624 CONDUCT OP THE TRIAL. [ChAP. IV. TAYLOR V. WILLES. Croke, Carolus, 219. [1630.] Error upon a judgment in Exeter, in an action on the ease upon an assumpsit, tliat in consideration the plaintiff Willes would deliver two hundred and a quarter of woad, the defendant Taylor assumed to pay as much as it should be reasonably worth, and upon another consideration assumed to do another act. Taylor pleaded non assumpsit. The jury find quod assumpsit, and assess for damages thirty-three pounds six shillings eight pence, to be paid in dyeing, if by law it may be, and assess for costs six shillings eight pence. The judgment given was, that he should recover the thirty-three pounds six shillings eight pence for damages assessed by the jury, and the costs ; upon which a writ of error was brought. Germyn, for the plaintiff in the writ of error, assigned for error : First, that the verdict is ill, because they find generally quod assumpit, and do not divide them, being several. Sed nan allocatur; for if they were upon several promises, yet "non assu/mpsit" generally is good; and the verdict so general is good.i Secondly, because it was found that the damages of thirty- three pounds six shilling eight pence are to be paid in dyeing, if by law it may be. Sed non allocatur; for the finding the assumpsit is good enough, and so was the assessing damages to thirty-three pounds six shillings eight pence ; but that which is found after is void ; and the judgment omitting that which was void is good enough. The judgment was therefore affirmed. 1 At an early period great strict- the writ of error said that the jury ness in form was required. Hobbs have found the effect of the issue, V. Blanchard, Style, 167 (1649). though they have not found the very "Blanchard brought an action of words, and therefore it is good trespass in the court at Norwitch enough, and he cited Fabian & against Hobbs, and had a verdict Kingstone 's case, 32 Eliz., and Win- and a judgment. The defendant grave & Homes his case, 3 Oar., brought a writ of error to reverse entered 2 Car. rot. 632. EoLL, chief the judgment. The error assigned justice, answered, that the verdict was that the jury had not found found the issue argumentatively the issue joined; for the issue only, and not directly; and there- joined is de injuria sua propia fore it is not good. Jeeman, justice, absque tali causa, and the jury have was of the same opinion; and the found not guilty generally. Panel judgment was reversed, except bet- of counsel with the defendant in ter cause shown." Sec. 8.] penwick v. logan. 625 FENWICK V. LOGAN. 1 Missouri, 401. [1823.] M'GiRK, C. J. This was an action of trespass for assault and battery. Two pleas were pleaded: First, the general issue; and second, a justification of son assault demesne. A jury was impaneled to try the issues, and they returned a verdict of guilty, generally, without saying anything about the justification. A motion was made to arrest the judgment, and set aside the verdict, on the ground that there was no finding on the special plea; and this motion was overruled, and judgment for the plaintiff. The cause is brought here by writ of error, and the want of a finding on the special plea assigned for error. The law is, that the verdict must find all in issue, otherwise it is bad. The general issue, only, puts in question the fact of the assault and battery; and the special plea puts in issue the excuse allowed by law for doing the act ; and if the justification is found for the defendant, he, though he did the act, is to be discharged. Here, only the fact of doing the act was inquired into ; and his discharge, or justification therefor, is not inquired into. The judgment is, therefore, erroneous, and is reversed. The cause is remanded to the Circuit Court, to try both issues. The costs of this writ of error are to be paid by defendant in error. ^ WILDBRMAN v. SANDUSKY. 15 Illinois, 59. [1853.] Treat, C. J. Sandusky brought an action of trespass against four persons of the name of Wilderman. The cause was sub- mitted to a jury as to all of the defendants. The verdict was as follows; "We, the jury, find the three defendants, Nancy Wilderman, Simon Wilderman and Garrison Wilderman, guilty, and assess the plaintiff's damages at $35." The court overruled 1 As to conforming to the plead- ings, se_e Pepy's case, 3 Leonard, 80, ante, p. 513. H. T. P.— 40 626 CONDUCT OF THE TRIAL. [ChAP,. IV. a motion for a new trial, and rendered judgment against the three defendants. They prosecuted an appeal. Upon a full examination of the evidence, we are satisfied that the court committed no error in refusing to grant a new trial. It is insisted that the verdict was defective and that the court erred in rendering any judgment upon it. In our opinion, the verdict was substantially good. It may properly be regarded as a finding on all of the issues ; and the judgment may be con- sidered as a final disposition of the whole ease. The case, as to all of the defendants, was submitted to the jury ; and they found affirmatively that three of them were guilty. In legal contem- plation this amounted to a negative finding of not guilty as to the other defendant. The case of Stoltz v. The People, 4 Scam. 168, is in principle directly in point. In that case the indict- ment contained two counts, each charging a different offense. The verdict was simply guilty as to the first count. On error brought by the defendant, this court affirmed the judgment entered on the verdict, on the ground that the verdict amounted to a finding of not guilty on the second count, and that the defendant could never again be put on his trial for the offense charged therein. The ease of Swinney v. The State, 8 S. & M. 576, holds the same doctrine. This view of the case can not operate to the prejudice of Jacob Wilderman. He may rely on the verdict and judgment as a bar to any further prosecution. Nor have the appellants any cause to complain. In actions of this character, the plaintiff may sue any or all of the parties concerned in the act. The jury may convict one and acquit another. If one is compelled to pay the damages awarded, he can not enforce contribution from his co-defendant. Judgment affirmed.^ (e) Special Verdicts. EEX V. FRANCIS. 2 Strange, 1015. [1735.] The defendants were indicted at the assizes in Somersetshire, for that they feloniously made an assault on Samuel Cox in the 1 But see Schweikhardt v. St. Louis, 2 Mo. App. 571. Sec. 8.] eex v. feanois. 627 King's highway, and put him in fear, and £9 in money from the person of Cox did take, steal and carry away. Upon not guilty pleaded hy all the defendants, the jury find this special verdict : That Samuel Cox, traveling on horseback on the King's high- way to Somerton fair, on a place called King's Down Hill in the County of Somerset, saw all the prisoners in company together,^ one of whom was then lying on the ground ; that Cox passed "by them, and one of them (but which the jury do not know) called to Cox and desired him to change half a crown, that they might give something to a poor Scotchman then lying on the ground, who was one of the prisoners. Cox came back, and putting his hand in his pocket to pull out his money in order to give them change, as they desired, he pulled out four moidores and a Portugal piece value £3, 12d, and having the pieces of gold in his hand, John Francis, one of the prisoners, gently struck Cox's hand, in which he held the gold, by means whereof the gold fell on the ground; that thereupon Cox got off from his horse and said to the prisoners that he would not lose his money so ; and the said Cox then and there offering to take up the pieces of gold, which were then upon the ground, and in Cox's presence; the prisoners then and there swore, that if he touched the pieces of gold they would knock his brains out ; whereby he was then and there put in bodily fear of his life, and then and there desisted from taking up the pieces of gold. That the prisoners then and there immediately took up the gold, and got on their horses and rode off with the gold; that Cox immediately there- upon pursued them, and rode after them for about half a mile ; and then the prisoners struck him and his horse, and swore that if he pursued them any farther they would kill him ; by reason of which tnenace he was afraid to continue his pursuit any farther; but whether upon the whole matter the prisoners are guilty of the felony and robbery charged on them the jury doubt, and pray the advice of the court. Et si, etc. This special verdict and the prisoners were removed into the King's Bench, where it was twice argued at the bar. And upon the first argument the only question was, whether a taking in the presence be in point of law a taking from the person, and it was unanimously determined that it was. But then a doubt arose (which occasioned the second argument) whether it was sufSciently found to have been taken in the presence of Cox, it not being said so in express words; and 628 CONDUCT OF THE TRIAL. [ChAP. IV. after it had been argued in B. R. upon the point, it was ordered to be argued again at Serjeants' Inn Hall before all the judges of England, where I attended on behalf of the prisoners against Mr. Hussey, who argued for the King, and insisted that here was sufficient found to constitute the crime of robbery, it being found that Cox was put in fear, and that the money was in his possession, till one of the prisoners struck it out of his hand; and the finding that the prisoners immediately took it up, ex- cludes all possibility of mesne acts, such as Cox's going away before they took it up ; and that to excuse them it should have been expressly found that Cox did go away before the money was taken up. Strange, contra, I shall not dispute but that a taking in the presence is a taking from the person, and consequently a rob- bery, where it is accompanied with the other necessary circum- stances. But the question here is, whether this is found to be a taking in the presence of Cox. It is unnecessary to cite cases, to prove that on these verdicts nothing is to be intended ; judges have always guarded against that with great caution. It has gone so far that where it stands indifferent which way the fact is to be taken, the turn of the scale is never given against the prisoner. And therefore in Keat's case, 5 Mod. 287, Skin. 666, where on an indictment for killing his gardener the jury found that the master struck the gardener, and the gardener struck the master, and the master gave him a mortal wound, the judges would not determine that the master struck first, so as to make it murder; and yet from the manner of finding any one would be led to collect that the first blow was given by the master. It must be agreed that here is no finding in express words, that the taking was in his presence. But it is contended that here is that which is tantamount. Now I insist, that how great room soever here is to infer the presence of Cox ; yet it not being found as a fact that he was present at the taking up the money, and that being a circumstance material to constitute it a robbery, the prisoners must be discharged. * * * After this argument the judges took time to consider it. And this term the chief justice declared that all the judges, except Carter, Comtns and Thompson, who only doubted, were of opinion that the fact of Cox 's presence at the taking was not suf- ficiently found, though there seems to have been evidence enough to warrant such a finding. That the whole rested on the word Sec. 8.] mabten v. jenkin. 629 immediately, then and there serving only for a venue, and im- mediately was a word too loose and uncertain. In Stephen's Thesaurus it is rendered ciio and celeriter; in Cowper, by and by, and in other dictionaries, Sine dilaUone and presently. In legal proceedings it does not exclude all mesne times and mesne acts. In Oneby's verdict it is used five times to different pur- poses. In Mawgridge's twice. On the statute 27 Eliz., Chap. 13, § 11, the notice for hue and cry must be in convenient time ; and yet on declaring you aver that it was immediate, which is sup- ported by proof of a convenient time. The cases cited show how nice the judges have always been ; and, therefore, as here wants one necessary ingredient to make it a robbery, the prisoners must be discharged from this indictment. * * * MARTEN V. JENKIN. 2 Strange, 1145. [1741.] On a mandamus to swear the plaintiff into the office of mayor of Winchelsea, it appeared by a special verdict that the mayor must be chosen out of the jurats, and that the plaintiff, 1 May, 1739, was chosen a jurat, and sworn in, and continued so till 7 April, 1740, when he was chosen mayor ; that he had received the sacrament within a year before his election to be mayor, but not within a year before he was chosen a jurat. And the ques- tion was, whether the statute 5 Geo. 1, Chap. 6, § 3, could operate so as to give him the benefit of the non-prosecution in six months with regard to the previous qualification. And the court held it did, else he would be under some degree of disability or incapacity, when the act says none shall be incurred. But then a doubt was made, whether as the verdict was silent as to any prosecution, it was sufficient for the court to give judg- ment upon ; and whether it should not have been found negatively, there was none. But the court held it well enough, for the plaintiff had nothing more to do than to find his election ; what is to avoid it, should come from the other side ; and that as it is not found, there was a prosecution, which it lay upon the defend- ant to show; they could not be warranted in saying the plain- tiff's election was done away; and therefore they gave judgment for the plaintiff. 630 CONDUCT OF THE TRIAL. [ChAP. IV. TANCEBD V. CHRISTY. 12 Meeson <& Welsby, 316. [1843.] The facts of this special case (see 9 M. & "W. 438) having been turned into a special verdict, a writ of error was brought by the defendants below. The special verdict differed from the special case only by setting out the argument (?) at full length. The ex- ceptions to the judgment, stated by the plaintiffs in error, were as follows: ' ' On the argument the plaintiff in error Tancred will contend that the special verdict does not show any liability on his part for the use and occupation of the premises in question, during any of the time for which the judgment is given; that his liability arose on his contract for the term and ceased on the 24th of June, A. D. 1839. ' ' That the holding over by a co-tenant, if such is in fact shown in the special verdict, does not bind him, unless it expressly appears that he assented to the holding over, and in no part of the special verdict is it found that he so assented. * * * TiNDAL, C. J. This was an action for the use and occupation of certain premises, subsequent to Michaelmas, 1839. Christy, the defendant in error, had let them to the plaintiffs in error and others for a year certain, by a written agreement, which expired at midsummer, 1839. The special verdict finds that the lessees were the provisional directors of a banking company, that one of the plaintiffs in error, Tancred, ceased to be a director in Janu- ary, 1839, long before the expiration of the year, and that the premises continued to be occupied by the banking company after the year, for which occupation, subsequent to one year, compen- sation was sought to be recovered in the action. But the special verdict is entirely silent as to Tancred 's assenting to such occu- pation, and as to his being or not being at any time a partner in the company. "We are of opinion that it is essential to the due determination of this case that those facts should be found one way or the other. If there was no direct evidence in respect of them, still they are inferences of fact, which must be drawn one way or the other from the other facts stated, and those inferences must be drawn by the jury and cannot be drawn by a court of error. It appears that the argument in the Court of Exchequer was upon a case reserved, and not on a special verdict, Sec. 8.] wallingpord v. dunlap. 631 so that the court below was at liberty to draw, and it appears, by the judgment reported, did draw, inferences of fact, the propriety of which we do not in the least question. But unfor- tunately, we are not at liberty to do the same upon this special verdict, which is so imperfect that we cannot give any judgment upon it, and we, therefore, hold that there must be a venire de novo awarded, as was done in the case of R. v. Trafford and others (8 Bing. 204 ; 1 M. & Scott, 401 ; 2 C. & J. 265) . Venire de novo. WALLINGFORD v. DUNLAP. 14 Pennsylvania St. 31. [1850.] Error to the District Court of Allegheny. This was an action on the case, brought by John Dunlap against Wallingford and others, for injuries alleged to have been done by defendants to two houses of the plaintiff, in Pittsburgh, by undermining and otherwise injuring the same. The defendants in preparing a foundation for a house, which they were about to erect on ground' adjoining, had ground alongside or near plain- tiff's house dug away, and it was alleged that this was done without taking proper precautions, and that the houses of plain- tiff were injured. After the evidence was closed, Loweie, J., charged the jury. He stated that the counsel have raised several points of law, which might possibly not arise at all, if the facts of the case were settled. That it was agreed that a special verdict be found on the disputed facts, and that the court shall enter such judg- ment thereon, and on the facts not disputed, as the law requires. He stated to the jury certain undisputed facts and referred other alleged facts to the consideration of the jury, and directed them that "if you should find that the plaintiff's wall was not built of proper materials, or in a workmanlike manner, and that it sunk from its own inherent defects, or that the plan adopted for the preservation of the wall was the result of the joint con- sultation of the plaintiff and defendants, or was in pursuance of the advice and direction of the plaintiff, and that the plan was carefully and skilfully executed, even though by a different 632 CONDUCT OP THE TRIAL. [ChAP. IV. plan the wall might have been saved; in either of these cases you will find for the defendants. If on both of these points you should find for the plaintiff, then you will say what damages the plaintiff has sustained," etc. The jury returned a negative answer to the first two questions submitted, assessed damages in favor of the plaintiff for $433.75 and further found other facts. A motion for a new trial was made, but judgment was entered for the plaintiff for the damages found by the jury. It was assigned for error that the court erred in entering judgment in favor of the plaintiff on the special verdict for various reasons assigned. Coulter, J. The judgment in the court below is founded partly on facts found by a special verdict, and partly on what the court say are undisputed facts. The court enumerates to the jury what are the undisputed facts, and directs them to find a special verdict on the disputed facts. The court say to the jury, "It is therefore agreed that you shall find a special ver- dict on the disputed facts, and that the court shall enter such judgment thereon, and on the facts not disputed, as the' law re- quires. ' ' The paper book states that the jury returned negative answers to the two first points submitted to them, and then found specially, as to the disputed facts. This proceeding is entirely anomalous. It is unknown, and unrecognized by the common law, or by the practice under the statute of Westminster the 2d, 13 Ed. 1, Chap. 30, which in fact originated the special verdict, as it now exists. There did exist another species of special verdict, as where the jury returned a general verdict for the plaintiff, subject, nevertheless, to the opinion of the court, on a special case, stated by the counsel, on both sides, on a matter of law : 3 Black, 378. But this pro- ceeding has gone out of practice, perhaps never existed in Penn- sylvania, and is nothing like the present case. A special ver- dict is where the jury find the facts of the case, leaving the ultimate decision of the cause upon those facts, to the court, concluding conditionally, that if upon the whole matter thus found, the court should be of opinion that the plaintiff had a good cause of action, they then find for the plaintiff, and assess his damages; if otherwise, then for the defendant: 3 Black, 378; Sec. 8.] wallingford v. dunlap. 633 Boote on Suit at Law, 158. It is of the very essence of a special verdict that the jury should find the facts, on which the court is to pronounce judgment according to law; 1 East, 111; Lord Raymond, 1581. And the court will not intend any thing, especially any fact not found by the jury ; 1 Wilson, 55 ; 1 Caine, 60; 20 Johns. Rep. 294. An instance of which is found in 11 Wheaton, 445, where the assent of an executor is necessary, if the jury find a special verdict stating facts from which they might have inferred such assent, but do not find it expressly, the court cannot intend it. I apprehend there is no reported case, of any authority, where the court have gone beyond the facts found in the special verdict ; for it is the province of the jury to judge of and find the facts, and the province of the court to declare the law on the facts so found. The undisputed facts ought to have been incorporated into the special verdict. And if they had omitted them by mistake, the court might upon motion and full evidence, have amended the special verdict : Strange, 514; 4 Watts. 259. But the court is confined to the facts found by the special verdict : 2 Yeates, 543 ; 3 Yeates, 373. And when a special verdict is given, the court ought to confine its judgment to that verdict. As to what the jury intended by a negative answer to the two first points submitted to them, it is not permitted us to intend what they meant, as they have not expressly found. Nor can we predicate our judgment partly upon what the court below say were undisputed facts, and partly on the facts found. The special verdict is defective. We have no power to amend it. It is the duty of the plaintiff's counsel to have the special verdict properly drawn up, settled and entered on the record: 1 Johns. Cases, 393; Coleman's Cases, 107. If the facts are re- duced to writing at the time of the trial, and have the assent of the jury, the verdict may be moulded into form afterwards, with the approbation of the court. But this special verdict is so defective and erroneous, and the judgment so anomalous in being entered partly on the ver- dict, and partly on what are called undisputed facts, that we must do what has often been done before, reverse the judgment and send the case back for a new trial. If a special verdict is defective or uncertain, and cannot be amended, judgment ought not to be entered upon it. And when it is entered, the judg- 634 CONDUCT OF THE TRIAL. [CHAP. IV. ment must be reversed as erroneous: Lord Ray'd, 1584; Strange, 887-1124; 6 Craneh, 268; 1 East, 111. Judgment reversed cmd venire de novo awarded.^ ROBERTS V. HOPKINS. 11 Sergecmt & Bcmle, 202. [1824.] TiLGHMAN, C. J. In this case the jury found a verdict for the plaintiff, with $517 damages, and six cents costs, "subject to the opinion of the court on the facts proved. ' ' What these facts were, we know not ; so that it is impossible for us to say, whether the judgment was right or wrong. If such a verdict could be supported, the party against whom judgment was given, would be cut off from the benefit of a writ of error. The jury have no right to throw the facts and the law, on the court, though they may find the facts and submit the law. But in such case, the facts appearing of record, either party may have a writ of error. In the present ease, nothing is found absolutely. The damages are not assessed absolutely, but subject to the court's opinion on facts which do not appear. It is an imperfect ver- dict. The parties may submit their cause to the court, in what manner they please, by consent; and if they think proper to submit it, so as to preclude each other from a writ of error, it is all very well. But nothing of that kind appears here. We find nothing on the record but the verdict and judgment. In the ease of Donner v. Lewis, at May term, 1822, there was a verdict for the plaintiff in an ejectment, ' ' subject to the opinion of the court," without any mention of facts. We reversed the judgment and ordered a new trial. The case before us falls 1 Accord, Hodges v. Easton, 106 possession of the property, and the TJ. S. 408. The contrary rule in evidence was undisputed. There Wisconsin appears to be the result was no evidence to overcome the of a statute; see Orton, J., in presumption or prima facie evidence Stringham v. Cook, 75 Wis. 589: of title in fee, imported by the cer- "The statute requires only contro- tifieate. " verted issues of fact to be submitted The verdict need not include mat- to the jury for special verdict, and ters admitted by the pleadings, there was no controversy about the Barto v. Hinsard, 8 N. T. 483. ownership of the land or right of Sec. 8.] babnes v. williams. 635 within the same prinieple. A reference to facts proved, without stating these facts, is no better than if facts had not been men- tioned at all. It is the opinion of the court that the judgment should be reversed and a venire de novo awarded. Judgment reversed and a venire facias de novo awarded. BAENBS V. WILLIAMS. 11 Wheaton, 415. [1826.] Mr. Chief Justice Marshall stated, that, upon inspecting the record, it had been discovered, that the special verdict found in the case was too imperfect to enable the court to render a judg- ment upon it. The claim of the plaintiffs being founded upon a bequest of certain slaves, it was essential to a recovery at law, that the assent of the executor to the legacy should be proved. Although, in the opinion of the court, there was sufficient evi- dence in the special verdict from which the jury might have found the fact, yet they have not found it, and the court could not, upon a special verdict, intend it. The special verdict was defective in stating the evidence of the fact, instead of the fact itself. It was impossible, therefore, that a judgment could be pronounced for the plaintiff. So, as to the defendant's defense under the statute of limitations, the special verdict did not find any facts by which the court could ascertain at what time the right of action accrued. It was not stated that the plaintiff and defendant were ever resident in the same state at the same time. Although it was found, that B. D. Barnes, one of the plaintiffs, came into the State of Tennessee after he arrived at the age of twenty-one years, and more than three years before the suit was brought, yet it was not found, that during any part of that time, the defendant, Williams, was resident in that state. The case was, therefore, too imperfectly stated to enable the court to decide the questions upon which the opinions of the judges of the Circuit Court were opposed, and the cause was remanded to the court, with directions to award a venire facias de novo. 636 CONDUCT OP THE TRIAL. [ChAP. IV. GORDON V. STOCKDALE. 89 Indimia, 240. [1883.] Morris, C. * * * The appellant insists that the verdict does not find that appellee was the owner of the wheat in contro- versy, as alleged in the complaint. The appellee contends that the verdict finds facts from which the conclusion of ownership necessarily follows as matter of law. The jury do not find directly and in so many words, that the wheat belonged to the appellee, but they do find that he sowed the wheat as tenant, under a contract which gave the one-half of it to him, and the right to the possession of the whole of it for the purpose of harvesting, threshing and dividing it. It is not claimed by the appellant in argument that the con- tract between the appellee and Henry P. Chapman was not made with the consent of Mrs. Chapman ; but, as claimed by the appellee, it seems to be conceded that the contract was valid and binding upon her, and upon the parties to it. Assuming, in view of this concession on the part of the appellant, that Henry P. Chapman was authorized by Mrs. Chapman to make the con- tract returned with and as a part of the verdict, we think it quite clear that the facts found show that the appellee was the owner of one-half the wheat growing on the "Alcorn farm," and en- titled to the possession of the whole" of it until harvested and threshed. The contract gave him the right to harvest and thresh the wheat, and by its express terms he was the owner of one-half of it. The conclusion of law upon the facts thus found is, that the appellee owned one-half the wheat, and was entitled to the possession of the whole of it for the purpose of harvesting, thresh- ing, and dividing it. The appellant says that the ownership is not found otherwise than by inference. That may be true, but the inference is a legal conclusion which results irresistibly from the facts found. It is also argued by the appellant that the contract made Chap- man and the appellant partners. The contract, as to the wheat, provides otherwise. It expressly declares that each shall own one-half the wheat. It is also contended by the appellant that the jury have not found a conversion of the wheat by him; that they have only found facts which operate as evidence of a conversion; that a Sec. 8.] goedon v. stockdale. 637 demand and refusal are evidence of conversion, but not conclu- sive of the fact of conversion. This is true, and had the jury found nothing more than this, the judgment could not be justi- fied. Locke V. Merchants Nat. Bank, 66 Ind. 353, But the jury also found that the defendant took possession of the growing wheat, excluded the appellee from it, harvested and threshed it, and refused to deliver any part of it, upon demand, to the ap- pellee. The acts amounted to a conversion of the wheat, and not merely to evidence of a conversion of it. Taking possession of the wheat and cutting and threshing it were acts of dominion wrongfully exerted over the property in dispute, in defiance of the rights of the appellee, and amounted to a conversion of it. If, as the verdict finds, the appellant exercised dominion over the wheat, in exclusion or in defiance of the appellee's rights, this, in law, was a conversion. Cooley Torts, 448 ; Thompson v. Cur- rier, 24 N. H. 237 ; Shaw v. Beckett, 25 Vt. 423. We think there is no error in the record. Ber Curiam. It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the cost of the appellant. (d) Special Findings. Hurd's Eev. Statutes of Illinois, 1913, Chap. 110. [79. May Eendee General or Special Verdict — ^When to Find Specullt on Question of Fact — Eefusal to Submit Question op Fact, Etc.— "When Special Finding op Fact In- consistent With General Verdict.] § 79. In all trials by jury in civil proceedings in this state, in courts of record, the jury may render, in their discretion, either a general or a special verdict ; and in any case in which they render a general verdict, they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated tq them in writing, which questions of fact shall be submitted by the party requesting the same to the adverse party before the commencement of the argument to the jury. Submitting, or refusing to submit a question of fact to the jury when requested' by a~party, as above provided, may be excepted to and be re- view on appeal or writ of error, as a ruling on a question of law. When the special finding of fact is inconsistent with the 638 CONDUCT OF THE TRIAL. [ChAP. IV. general verdict, the former shall control the latter and the court may render judgment accordingly.^ RICHARDSON v. WEARS. 62 New Hampshire, 80. [1882.] Case for damages from a defective highway, tried on the general issue. After the .jury had received general instructions, which included the instruction that if the injury was in any degree the result of the plaintiff's want of ordinary care, the verdict must be for the defendants, by request of the defendants ' counsel the jury were directed to answer this question : Did the injury to the plaintiff occur in consequence of any neglect or fault on his part ? A general verdict was returned for the plain- tiff, and the special question was answered in the affirmative. The court ordered judgment for the defendants, and plaintiff excepted. Allen, J. It was decided, in "Walker v. Sawyer, 13 N. H. 191, 196, 197, that, in a case tried on the general issue, the court would not submit a particular question of fact to be found and returned by their verdict, without the consent of the parties. But when it is proposed to submit specific questions to the jury, it will be taken for granted that the parties assent, unless they object at the time, and before the jury retires. Willard v. Stev- ens, 24 N. H. 271, 277; Allen v. Aldrich, 29 N. H. 63. And later, in Barstow v. Sprague, 40 N. H. 27, 33, it has been decided that the court, against the objection of either or both parties, may properly direct a jury to return, with a general verdict, answers to specific questions submitted to them. No objection having been taken, at the time, to the submission of the special iVaughan, C. J., in Buahell's all agree to find their issue for the ease, Vaughan, 135: "The legal plaintiff or defendant, they may verdict of the jury to be recorded differ in the motives wherefore, as is, finding for the plaintiff or de- well as judges in giving judgment fendant. What they answer, if for the plaintiff or defendant may asked questions concerning some differ in the reasons wherefore they particular fact, is not of their ver- give that judgment, which is very diet essentially, nor are they bound ordinary." to agree in such particulars; if they Sec. 8.] walkee v. southern pac. k. k. co. 639 question to the jury in this case, the plaintiff must be understood to have consented, and the objection after verdict comes too late. The special finding of fact was conclusive (Walker v. Sawyer, supra, 196, 197; Willard v. Stevens, supra, 277), and, being a material fact upon which the general result depends, it must control the general verdict. The court having given specific and correct instructions to the jury upon the subject, and that their general verdict must be for the defendants, if they should answer the question in the affirmative, the plaintiff could not have been prejudiced nor the jury embarrassed by the question. Johnson V. Haverhill, 35 N. H. 74, 87. Upon the answer to the special question, the defendants were entitled to a general verdict and judgment. Exceptions overruled.^ WALKER V. SOUTHERN PAC. R. R. CO. 165 v. S. 593. [1896.] On November 3, 1886, A. C. Walker commenced this action in the District Court of the Second Judicial District of the Terri- tory of New Mexico in and for the county of Socorro, against the railroad company defendant, to recover damages resulting from an overflow of his lands, caused, as charged, by a wrongful obstruction of a natural watercourse. Subsequently, an amended declaration was filed, and after the death of A. C. Walker the action was revived in the name of his administratrix, the present plaintiff in error. After some preliminary proceedings, a trial was had in December, 1892, on which trial the jury returned a general verdict, finding the defendant guilty, and assessing the plaintiff's damages at $9212.50. At the same time the jury returned, in response to certain question submitted by the court, special findings of fact. The trial court, overruling all other motions, entered a judgment in favor of the defendant, on the ground that the special findings of fact were inconsistent with and controlled the general verdict; and that^upon such findings of fact the defendant was entitled to judgment. The case was thereafter taken to the Supreme Court of the territory, by which 1 A special finding may show that the prevailing party to retain his the admission of incompetent evi- verdict. Barstow v. Sprague, 40 dence was harmless, and thus enable N. H. 27. 640 CONDUCT OF THE TRIAL. [ChAP. IV. court, on August 26, 1893, the judgment was affirmed, 34 Pac. Rep. 43, and thereupon the plaintiff sued out this writ of error. Mr. Justice Brewer delivered the opinion of the court. The testimony was not preserved, and the case is submitted to us upon the pleadings, the verdict, the special findings of fact and the judgment ; and on the record as thus presented plaintiff in error rests her claim of reversal upon three propositions : First, that the act of the territorial legislature, authorizing special findings of fact and providing for judgment on the special findings, if inconsistent with the general verdict (Laws of New Mex. 1889, Chap. 45, p. 97), is in contravention of the Seventh Amendment to the Constitution of the United States, which reads : ' ' In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served, and no fact tried by a jury shall lie otherwise re-examined in any court of the United States, than according to the rules of the common law." Second, that there is no such conflict between the general verdict and the special findings as authorized a judgment con- trary to the general verdict; and, third, that if there be any conflict between the special findings and the general verdict, the special findings are so inconsistent with each other as to neutra- lize and destroy themselves. First, with regard to the constitutional question, the specific objection is thus stated in the brief: "It is not contended, although the English authorities would appear to warrant the contention, that at the common law the judge might not require the jury to answer special questions, or interrogate the jury as to the grounds upon which their general verdict was found; but it is most earnestly contended that the extent of the power of the judge, if in his opinion the special findings or answers of the jury to interrogatories were inconsist- ent with the general verdict, was to set aside the general verdict and award a venire de novo, while under this statute authority is attempted to be conferred upon the judge to render final judg- ment upon the special findings." "We deem it unnecessary to consider the contention of defend- ant in error that the territorial courts are not courts of the United States, and that the Seventh Amendment is not operative in the Territories, for by the act of April 7, 1874, Chap. 80, 18 Sec. 8.] walker v. southern pac. r. r. co. 641 Stat. 27, Congress, legislating for all the territories declared that no party "shall be deprived of the right of trial by jury in cases cognizable at common law;" and while this may not in terms extend all the provisions of the Seventh Amendment to the territories, it dbes secure all the rights of trial by jury as they existed at common law. The question is whether this act of the territorial legislature in substance impairs the right of trial by jury. The Seventh Amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be framed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere matters of form and pro- cedure but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative. So long as this, substance of right is preserved the procedure by which this result shall be reached is wholly within the discretion of the legislature, and the courts may not set aside any legislative provision in this respect because the form of action — the mere manner in which questions are submitted — is different from that which obtained at the common law. Now a general verdict embodies both the law and the facts. The jury, taking the law as given by the court, apply that law to the facts as they find them to be and express their conclusions in the verdict. The power of the court to grant a new trial if in its judgment the jury have misinterpreted the instructions as to the rule of law or misapplied them is unquestioned, as also when it appears that there was no real evidence in support of any essential fact. These things obtained at the common law; they do not trespass upon the prerogative of the jury to determine all questions of fact, and no one today doubts that such is the legitimate duty and function of the court, notwithstanding the terms of the constitutional guarantee of right of trial by jury. Beyond this, it was not infrequent to ask from the jury a special rather than a general verdict, that is, instead of a verdict for or against the plaintiff or defendant embodying in a single declara- tion the whole conclusion of the trial, one which found specially upon the various facts in issue, leaving to the court the subse- quent duty of determining upon such facts the relief which the law awarded to the reispedtive parties. H. T. P.— 41 642 CONDUCT OF THE TRIAL. [ChAP. IV. It was also a common practice when no special verdict was demanded and when only a general verdict was returned to inter- rogate the jury upon special matters of fact. Whether or no a jury was compelled to answer such interrogations, or whether, if it refused or failed to answer, the general verdict would stand or not, may be questioned. Mayor, etc., v. Clark, 3 Ad. & El. 506. But the right to propound such interrogatories was un- doubted and often recognized. Walker v. Bailey, 65 Maine, 354 ; Spurr v. Shelburne, 131 Mass. 429. In the latter case the court said (page 430) : "It is within the discretion of the presid- ing justice to put inquiries to the jury as to the grounds upon which they found their verdict, and the answers of the foreman, assented to by his fellows, may be made a part of the record, and will have the effect of special findings of the facts stated by him. And no exception lies to the exercise of this discretion. Dorr v. Fenno, 12 Pick. 521; Spoor v. Spooner, 12 Met. 281; Mair v. Bassett, 117 Mass. 356; Lawler v. Earle, 5 Allen, 22." So that the putting of special interrogatories to a jury and asking for specific responses thereto in addition to a general verdict is not a thing unknown to the common law, and has been recognized independently of any statute. Beyond this we cannot shut our eyes to the fact that in many states in the Union, in whose con- stitutions is found in the most emphatic language an assertion of the inviolability of trial by jury, are statutes similar to the one enacted by the territorial legislature of New Mexico ; that those statutes have been uniformly recognized as valid, and that a large amount of the litigation in the courts is carried through in obedience to the provisions of such statutes. It would cer- tainly startle the profession to be told that such statutes con- travene a constitutional requirement of the inviolability of jury trials. Indeed, the very argument of counsel for plaintiff in error is an admission that up to a certain extent those statutes are un- doubtedly valid. That argument is practically that when the specific findings are returned and found to be conflicting with the general verdict the court is authorized to grant a new trial, but can do no more. But why should the power of the court be thus limited? If the facts as specially found compel a judg- ment in one way, why should not the court be permitted to apply the law to the facts as thus found ? It certainly does so when a special verdict is returned. When a general verdict is returned Sec. 8.] walker v. southern pac. r. b. co. 643 and the court determines that the jury have either misinterpreted or misapplied the law the only remedy is the award of a new trial, because the constitutional provision forbids it to find the facts. But when the facts are found and it is obvious from the inconsistency between the facts as found and the general ver- dict that, in the latter, the jury have misinterpreted or misap- plied the law, what constitutional mandate requires that all should be set aside and a new inquiry made of another jury? Of what significance is a question as to a specific fact? Of what avail are special interrogatories and special findings thereon if all that is to result therefrom is a new trial, which the court might grant if it were of opinion that the general verdict con- tained a wrong interpretation or application of the rules of law ? Indeed, the very thought and value of special interrogatories is to avoid the necessity of setting aside a verdict and a new trial — to end the controversy so far as the trial court is concerned upon that single response from the jury. We are clearly of opinion that this territorial statute does not infringe any constitutional provision, and that it is within the power of the legislature of a territory to provide that on a trial of a common law action the court may, in addition to the general verdict, require specific answers to special interrogatories, and, when a conflict is found between the two, render such judgment as the answers to the special questions compel. For a full understanding of the second question it is necessary to notice the pleadings. * * * Now, the contention of the defendant in error is that it is apparent, from the answers given to the special question, that there were no natural watercourses obstructed by defendant's roadbed, and that the water which did the damage was simply surface water. The second, third, fourth and fifth are as follows : "Q. 2. Was there a cloudburst in the Magdalena or Socorro mountains on September 8, 1886 ; and, if so, was the water there- from the water which ran over plaintiff's land? A. Yes. "Q. 3. Was the water which came down the arroyos from the Magdalena and Socorro mountains on September 8, 1886, surface water? A. Yes. "Q. 4. Was it customary for water to collect and stand on plaintiff's land, and land in the immediate vicinity thereof, in the times of heavy rains or floods ? A. No. 644 CONDUCT OF THE TRIAL. [ChAP. IV. "Q. 5. How often upon an average in any one year did the water come down the arroyos leadings toward the valley in the vicinity of Socorro from the Magdalena and Socorro mountains prior to September 8, 1886? A. According to the rain which fell." This is very clear. There was a cloudburst in the mountains, and it was the water from that which did the damage. It was simply surface water. And the arroyos through which the water flowed after leaving the mountains were not running streams, natural watercourses, but simply passageways for the rain which fell. Counsel for plaintiff in error, not questioning that the injury done to the property of their client was by surface water — the large fall which came from the cloudburst in the Socorro or Magdalena mountains on September 8, 1886 — insist that it does not appear that such cloudbursts were unusual, and also that there had been created through the lapse of years distinctive channels by which the waters from the mountains passed down to the river and that the railroad embankment operated to obstruct such channels; that although these channels were not the beds of constantly flowing streams they were wrought by natural processes and through the flowing of water, not con- tinuous but at frequent intervals, until they had become natural outlets for the often accumulating waters in the Socorro and Magdalena mountains. * * * It is obvious not only that it was mere surface water whose flow was obstructed, not only that no natural watercourses were filled up, but also that the channels which were obstructed were not such ravines, gorges and outlets as in a mountainous district must be left open to prevent the forming of lakes and reservoirs therein, but simply the ordinary ditches and passageways which surface water will cut in a generally level district in its effort to reach some flowing stream. It also appears from the answer to the twenty-fifth question that the railroad embankment was constructed before the buildings of the plaintiff. It will be borne in mind that the mountains from which this surface water flowed were from four to eighteen miles distant, and from the foot of those mountains to the Rio Grande river, naturally, the flowing water had dug channels and ditches through such portions of the soil as afforded the least obstruction to its passage, and such channels and ditches were all that the railroad embankment in any way obstructed. Sec. 8.] walker v. southern pac. r. r. co. 645 Does a lower land owner by erecting embankments or other- wise preventing the flow of surface water on to his premises render himself liable to an upper land owner for damages caused by the stopping of such flow? In this respect the civil and common law are different, and the rules of the two laws have been recognized in different states of the Union — some accept- ing the doctrines of the civil law, that the lower premises are subservient to the higher, and that the latter have a qualified easement in respect to the former, an easement which gives the right to discharge all surface water upon them. The doctrine of the common law on the other hand is the reverse, that the lower land owner owes no duty to the upper landowner, that each may appropriate all the surface water that falls upon his own prem- ises, and that the one is under no obligation to receive from the other the flow of any surface water, but may in the ordinary prosecution of his business and in the improvement of his prem- ises by embankments or otherwise prevent any portion of the surface water coming from such upper premises. * * * If a case came to this court from one of the states in which the doctrine of the civil law obtains, it would become our duty, having respect to this which is a matter of local law, to follow the decisions of that state. And in like manner we should follow the adverse ruling in a case coming from one of the states in which the common law rule is recognized. New Mexico is a territory, but in it the legislature has all legislative power except as limited by the Constitution of the United States and the laws of congress appertaining thereto. There it was enacted in 1876, Laws of New Mex. 1876, p. 31, Chap. 2, § 2, that "in all the courts in this territory the common law as recognized in the United States of America shall be the rule of practice and de- cision." 'Browning v. Browning, 9 Pac. Eep. 677, 682. The legislature of New Mexico having thus adopted the common law as the rule of practice and decision, and there being no special statutory provisions in respect to this matter, it is not to be wondered at that the Supreme Court of the territory in its opinion in the present case disposed of this question in this single sentence : "If the act of the territorial legislature of 1889 is con- stitutional, then we can find no error in the action of the court in setting aside the general verdict and entering judgment upon the special findings." Obviously the only question deemed of 646 CONDUCT OP THE TRIAL. [ChAP. IV. any moment by that court was the question in respect to the matter of special findings. * * * Judgment affirmed.^ TERRE HAUTE &C. RY. CO. v. VOELKER. 129 Illinois, 540. [1889.] Mr. Justice Bailey delivered the opinion of the court: This was an action on the ease, brought by Julia Voelker, ad- ministratrix of the estate of Edward Voelker, deceased, against the Terre Haute and Indianapolis Railroad Company, to recover damages for the death of the plaintiff's intestate. The trial, which was had before the court and a jury, resulted in a ver- dict in favor of the plaintiff for $3500, and for that sum and costs, the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the Appellate Court on appeal, and by an appeal from that court the record is brought here for review. . . . Several questions of fact were, at the instance of the defend- ant, submitted to the jury for special findings, one of which was modified by the court and submitted as modified. The action of the court in making such modifications is assigned for error. Said question was as follows, the modification consisting in the insertion of the words in italics.- "Could the deceased, Edward Voelker, if he had used ordi- nary care and diligence, have seen or heard the defendant's train approaching the crossings over the St. Clair avenue in East St. Louis, if he looked or listened for its approach to said crossing, before he drove or went on to said crossing, at the time he received the injury from the effect of which he died?" To this question the jury returned a negative answer. It is clear that the question, as proposed by the defendant, called for a finding as to mere evidentiary facts, none of which, if found, could have been controlling. There was no error there- fore in refusing to submit it to the jury in that form. Which- ever way the jury might have found, their finding could have had no effect upon the general verdict. On this point we refer 1 See also Victor &c. Co. v. Pec- Slocum v. N. Y. Life Ins. Co., 228 carick, 209 Fed. 568, distinguishing U. S. 364. Sec. 8.] acton v. goffman. 647 to what we have more fully said in our discussion of the same proposition in C. & N. W. Ry. Co. v. Dunleavy, ante, 132. The residue of the propositions discussed by the Appellate Court in its opinion do not seem to be insisted upon by the de- fendant's counsel here, and we therefore infer that, as to those questions, they acquiesce in the rules laid down by that court. None of the assignments of error insisted upon here are in our opinion sustained, and the judgment of the Appellate Court will therefore be affirmed. Judgment affirmsd. ACTON V. COFFMAN. 74 Iowa, 17. {1887. \ Seevebs, C. J. * * * II. Because of the state of the record, there is but one error assigned that can be considered, and that is that, under the special verdict, judgment should have been rendered for the de- fendant, notwithstanding the general verdict. The court in- structed the jury as follows: "7. If you find from the evidence that, before the defendant commenced any criminal proceedings against the plaintiff, if he did commence any, he laid all the facts in the matter before E. A. Babcock, Esq.; that said Babcock is an attorney at law; that he acted in good faith upon the opinion given by said Bab- cock ; that he believed himself that there was cause for the prose- cution, — then he is not liable in this action, and your verdict must be for the defendant." The following special interrogatories were submitted to the jury : "(4) Did the defendant, Coffman, seek the advice of an attorney before he instituted the criminal proceedings complained of by plaintiff? (5) Did that attorney, with a full knowledge of all the facts in the case, advise said Coffman that in his opin- ion a criminal suit was maintainable against this plaintiff? (6) Did defendant act on such advice in commencing the crimi- nal proceedings in controversy herein?" To each of these interrogatories an affirmative answer was given by the jury, and the question is whether the facts thus 648 CONDUCT OP THE TRIAL. [ChAP. IV. found conclusively show that the general verdict is so inconsis- tent therewith that it must be set aside. It must be assumed that the jury followed the instructions above set out. There- fore, they must have found that, although plaintiff stated the facts to counsel and acted on the advice of counsel in commenc- ing the criminal action, yet in doing so he did not act in good faith, or that he himself did not believe there was probable cause for the prosecution. It will be observed that the question of the good faith of the defendant, or whether he believed there was probable cause for the prosecution, was not submitted to the jury in the special interrogatories, and, therefore, the general and special verdicts are not inconsistent, and both can stand in full force. It is sufficient to say that, as the instruction above referred to was not excepted to, it constitutes the law of the case, and it was the duty of the jury to follow it, whether right or wrong; but we incline to think it is a correct statement of the law. Cent3r v. Spring, 2 Iowa, 393. The court did not err in refusing to enter judgment for the defendant on the special verdict.^ Affirmed. PENNSYLVANIA CO v. SMITH." 55 Indiana, 42. [1884.] ' Black, C. The appellee sued the appellant and the Louis- ville, Evansville and St. Louis Railway Company, and the Jeffer- sonville, Madison and Indianapolis Railroad Company, the sub- stance of the complaint being that, on, etc., the defendants were operating a railroad running through the city of New Albany, 1 Greene, J., in Osburn v. Ey., 75 findings. The final conclusion of a Kan. 746: "A trial court has a jury is expressed in their general very wide discretion in granting a verdict, and special findings are per- new trial where the special findings mitted only for the purpose of as- are inconsistent with one another, eertaining whether the jury have or are evasive, or apparently unfair, considered and found the elemental or are inconsistent with the general ingredients which should inhere in verdict, but the same rule does not and support their general verdict, obtain where, notwithstanding a In passing upon a motion for judg- general verdict, the court is asked ment upon special findings notwith- to enter judgment on the special standing the general verdict, the Sec. 8.] Pennsylvania co. v. smith. 649 and were in possession of and operating on said railroad a loco- motive engine and a train of ears thereto attached; and that while the plaintiff was engaged in unloading boxes of glass from his wagon into cars standing on a railroad switch, the defend- ants, by their servants, so negligently drove and conducted said engine and train that thereby the same ran and were driven against the plaintiff's said wagon and his horses harnessed thereto, without any fault or negligence on his part, thereby breaking and destroying said wagon, wounding and disabling said horses, etc., whereby the plaintiff was damaged, etc. The defendants severally answered by general denial. The cause was tried by jury, and a verdict was returned against the appellant and in favor of the other defendants. The jury also returned answers to interrogatories asked by the defendants. A motion for judgment in favor of the appellant upon the answers of the jury to interrogatories, notwithstanding the gen- eral verdict, and the appellant's motion for a new trial, were overruled, and judgment was rendered upon the verdict. The appellant has assigned as errors the overruling of his said motions. The only interrogatories and answers specially indi- cated by the appellant as inconsistent with the general verdict are the fourteenth and eighteenth, as follows: "14. Was the place where the plaintiff's horses and wagon were placed, between the box car on the spur track and the main track, a safe place for the wagon and team, taking into consideration the distance between the outside of the wagon and the outside of passing cars and trains? Answer: No." "18. Was there not a strong probability that a team stand- ing with their heads toward an approaching train, and with a ear on the south side of them, and the main track along which the train was moving toward them as near to them as in the court is not required to reconcile the special findings that they may inconsistent findings. It is not nee- be susceptible of an interpretation essarily fatal to the general verdict which would overthrow the general that the special findings are incon- verdict. Before they will sustain a sistent with one another. The ques- judgment they must be so incon- tion is, Are they, when considered sistent with the general verdict that as a whole, so inconsistent with the they will not bear an interpretation general verdict that they cannot be which wiU harmonize with the gen- harmonized with it? Nor is it eral verdict." enough to warrant a judgment upon 650 CONDUCT OF THE TRIAL. [ChAP. IV. present case, would become frightened and unmanageable? An- swer: Yes." In reviewing tlie ruling upon the motion for judgment upon the answers to interrogatories, notwithstanding the general ver- dict, we can not look tothe evidence; and in order that the an- swers may control and override the verdict, there must be be- tween them an antagonism, which could not be removed by any evidence admissible under the issue. If any particular answer be thought to be antagonistic to the general verdict, but may be reconciled therewith by the aid of other answers, the general verdict will not be overridden. Assuming that the evidence showed the collision and damage to the plaintiff, the issue further involved the question whether the appellant was negligent, and, if so, the question whether the appellee was chargeable with contributory fault. From the fact that the place at which the plaintiff's horses and wagon was placed, with reference to the distance therefrom to passing trains, was, as the event showed, not, as a matter of fact, a safe place, it would not necessarily follow either that the appellant was not negligent, or that there was contributory fault on the part of the appellee. Other facts, which may be readily supposed, might be shown in evidence, which, agreeably with this fact or conclusion, would plainly prove the appellant's negli- gence and absence of fault on the part of the appellee. It was not shown by any of the answers of the jury that the team was standing with the heads of the horses toward the train, as it approached, and the evidence might have shown the contrary. But if the answers had shown the team to be in the position sup- posed by the eighteenth interrogatory, yet, although, as shown by another answer, the collision was caused by the fact that the horses were frightened by the train, it would not follow, because there was a strong probability that horses so situated would be- come frightened and unmanageable, that under all the circum- stances not disclosed by the answers of the jury, but which might have been shown in evidence, the jury would not be au- thorized to find, as they did by their general verdict, that there was negligence on the part of the appellant and absence of fault on the part of the appellee. The facts, that the place in which the horses and wagon stood was not a safe place for them, and that there was a strong prob- ability, because of their situation, that the horses would be fright- Sec. 8.] Pennsylvania co. v. smith. 65] ened by an approaching train, might, with other supposable cir- cumstances, strongly indicate fault on the part of the person in control of the team, and might also tend to exonerate the appel- lant from a charge of negligence, but, in the absence of knowl- edge of other controlling circumstances, these facts could not lead to any conclusion upon the question of negligence. * * * There was no error in overruling the appellant's motion foi judgment on the answers to interrogatories, notwithstanding the general verdict. * * * CHAPTER V. TRIALS BY THE COURT. U. S. Compiled Statutes, 1913. § 1584. [R. S. § 648.] Trial op issues of fact by jubt. The trial of issues of fact in the circuit courts shall be by jury, ex- cept in cases of equity and of admiralty and maritime jurisdic- tion, and except as otherwise provided in proceedings in bank- ruptcy, and by the next section. § 1587. [R. S. § 649.] Trial of issues op fact by the court. Issues of fact in civil cases in any circuit court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same efi'ect as the verdict of a jury. Hurd's Statutes op Illinois, 1913, Chapter 110. [60. Trial by court.] § 60. In all cases in any court of record in this State, if both parties shall agree, both matters of law and fact may be tried by the court. [61. Trial by court — Special finding.] § 61. Upon a trial by the court either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write "refused" or "held," as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court. In any case so tried the court shall find specially upon any material questions or questions of fact, which shall be submitted in writing by either party before the commencement of the argument. Revised Statutes op Missouri, 1909. § 1968. Issues op pact to be tried by jury, "When. An' issue of fact in an action for the recovery of money only, or 652 Sec. 1,] KEARNEY V. CASE. 653 of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered as herein- after provided. (R-. S. 1899, § 691.) § 1970. JuEY TRIAL, When deemed waived. Parties to an issue of fact shall be deemed to have waived a trial by jury in the following cases : First, by failing to appear at the trial ; sec- ond, by written consent, in person or by attorney, filed with the clerk; third, by oral consent in court, entered on the minutes. (R. S. 1899, § 693.) § 1972. Trial op question op fact by court — Duty as to FINDINGS. Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the parties thereto request it with the view of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case the court shall state in writing the conclusions of fact found separately from the .conclusions of law. (R. S. 1899, § 695.) § 1987. Instructions. When the evidence is concluded, and before the case is argued or submitted to the jury or to the court sitting as a jury, either party may move the court to give instructions on any point of law arising in the cause, which shall be in writing and shall be given or refused. The court may of its own motion give like instructions, and such instructions as shall be given by the court on its own motion or the motion of counsel shall be carried by the jury to their room for their guidance to a correct verdict according to the law and evidence; which instructions shall be returned by the jury into court at the conclusion of the deliberations of such jury, and filed by the clerk and kept as a part of the record in such case. (R. S. 1899, § 748.) Section 1. Waiver of the Jury. KEARNEY v. CASE. 12 Wallace, 275. [1870.] Error to the Circuit Court for the District of Loiiisiana ; the case being this: The act of Congress of March 3d, 1865, after presenting in its first two sections the manner in which grand and petit jurors 654 TRIALS BY THE COURT. [ChAP. V. are to be selected and impaneled in criminal cases, proceeds in its fourth thus to enact: "Issues of fact in civil cases in any Circuit Court of the United States may be tried and determined by the court with- out the intervention of a jury, whenever the parties- or attorneys of record file a stipulation in writing with the clerk of the court waiving a jury." * * * This statute being in force, Case, on the 13th of September, 1868, as receiver of the First National Bank of New Orleans, brought suit against Kearney on two promissory notes owned by the bank. Without any agreement in writing filed to have the case tried under the above-quoted act of Congress, or any agreement in writing at all, so far as the transcript of the record showed, a trial was afterwards had by the court, which rendered judgments against the defendant on the 12th day of January, 1869. Though, as above mentioned, no agreement to submit in writi ing appeared or was inferable, the record of the judgment showed that counsel were present on both sides when the trial was had. It ran thus: "December 7th, 1868. This cause came up for trial— J. D. Rouse and Elmore and King, for plaintiff; J. G. L. Bright and Bradford, Lea, and Finney, for defendants — when, after hear- ing the pleadings, evidence, and argument, the court considering the same, it is ordered, adjudged, and decreed that Charles Case do recover, &c., &c." A writ of error was applied for and obtained by the defend- ant, on the 28th of January, 1869, and filed on the same day; a citation being issued and served on that day. * * * Mr. Justice Miller delivered the opinion of the court. No question arises on the process or pleadings; there is no bill of exceptions, and the plaintiff in error relies on what pur- ports to be a statement of facts in the case to show the error of which he complains. * * * The Judiciary Act of 1789, § 12, declares that the trial of issues in fact in the Circuit Courts shall, in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury. This provision and that found in the seventh amendment of the constitution, adopted after the Judiciary Act, namely, "that in suits at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," consti- Sec. l.J KEARNEY V. CASE. - . • gj^,- tuted the only legislative rule for the Federal courts, except in Louisiana, until the act of 1865. Undoubtedly both the Judi- ciary Act and the amendment to the constitution secured the right to either party in a suit at common law to a trial by jury, and we are also of opinion that the statute of 1789 intended to point out this as the mode of trial in issues of fact in such cases. Numerous decisions, however, had settled that this right to a jury trial might be waived by the parties, and that the judgment of the court in such eases should be valid. Notwithstanding, however, the number of cases in which the waiver of this right is mentioned, and either expressly or tacitly held to be no objec- tion to the judgment, it is remarkable that so little is said as to the mode in which this waiver shall be made to appear. In most of the cases it is somewhere in the record stated affirmatively that the parties did waive a jury, or did consent to the trial by the court without a jury. In the case of Bank of Columbia v. Okely (4 Wheaton, 235), the court held that there was an im- plied waiver of this right when the defendant made his note negotiable at the Bank of Columbia, there being in the charter of that bank a provision authorizing the collection of such debts by a summary proceeding, which did not admit of a jury trial. In Hiriart v. Ballon (9 Peters, 156), where a summary judg- ment was rendered against a surety in an appeal bond, it was held that the defendant, by becoming surety in a court whose rules provided for such summary judgment, had waived his right to a trial by jury. It seems, therefore, that both by express agreement in open court, and by implied consent, the right to a jury trial could be waived. But as was shown in the recent case of Flanders v. Tweed (9 Wallace, 425), this court had held that no review of the decision of the court below could be had of any ruling at the trial where the parties had consented to accept the court, instead of a jury to decide issues of fact. In this state of the law the act of 1865 was passed. The first two sections are devoted to prescribing the manner in which grand and petit juries shall be selected and impaneled in crimi- nal trials. The fourth section enacts that issues of fact in civil cases, in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record file a stipula- tion in writing with the clerk of the court waiving a jury. It then proceeds to prescribe the mode of finding the facts, and 656 TRIALS BY THE COURT. [ChAP. V. the eflPect to be given to such finding, and provides for a review of the ease by this court. The manner in which the record is to be prepared for this and the extent of the inquiry in this court are specifically pointed out. The question arises on this statute whether this mode of sub- mitting a case to the court without a jury was intended to be exclusive of all other modes, so that if there is no stipulation in writing waiving a jury, there is error, for which the judgment must be reversed. Although the language of the section might admit of that construction, it is not the only one of which it is susceptible. As stated in the case already referred to, of Flanders v. Tweed, the main purpose of the act undoubtedly was to enable the parties who were willing to waive a jury to have the case reviewed on writ of error when tried by the court alone. This was rendered necessary, as shown by Mr. Justice Nelson in the opinion in that case, by the former decisions, based on the idea that in such cases the court did not sit as a court of law, but as quasi arbitrators. To remove this difficulty, the statute provided a mode by which the parties who agreed to waive a jury should have the benefit of a writ of error to the rulings of the court on questions of law. The language of the section is that the stipulation may be filed with the clerk of the court, which is undoubtedly designed to enable the parties to make agreements in vacation ; and it is required to be in writing, to prevent either party demanding a jury unexpectedly at the trial. In those courts where juries are called from a great dis- tance and detained at a heavy sacrifice, the courts usually give jury trials the preference. The benefit, therefore, of an announce- ment by which the number of these trials is diminished, and the case placed in an attitude to be taken up at the convenience of the court and the parties is obvious. We cannot believe that Congress intended to say that the parties shall not, as hereto- fore, submit their eases to the court unless they do so by a writ- ten stipulation, but that it was the intention to enact that if parties who consent to waive a jury desire to secure the right to a review in the Supreme Court of any question of law arising in the trial, they must first file their written stipulation, and must then ask the court to make a finding of such fdcts as they deem essential to the review, and ask the ruling of the court on points to which they wish to except. If this is not done the par- ties consenting to waive a jury stand as they did -before the Sec. 1.] KEARNEY V. CASE. 657 statute, concluded by the judgment of the court on all matters submitted to it. This we understand to be the effect of the opin- ion in Flanders v. Tweed. But, although a written stipulation in the Circuit Court is essential to a review in this court, is the presence of the agree- ment or its copy in the transcript sent here indispensable? A copy of it should come up, as observed by Mr. Justice Nelson, and that is the more appropriate evidence of compliance with the statute. Still we are not prepared to say that if it shall affirm- atively appear in any other part of the record proper, that such a writing was made by the parties, that it will not be sufficient here. If, for instance, it is stated in the finding of facts by the court, or in the bill of exceptions, or in the record of the judg- ment entry, that such a stipulation was made in writing, the record would show that the condition in which a review is allowed existed, and we would not feel at liberty to contradict the record in this respect. In a ease where there is no evidence that it was submitted in writing under the statute, but the record shows affirmatively that the parties waived a jury, we hold such evi- dence of waiver to be sufficient to support the judgment, but not sufficient to authorize a review of the rulings of the court at the trial. But the record before us contains no statement that the parties agreed in writing to submit the case to the court, nor any express statement that they waived a jury at all. The lan- guage of the judgment is that "This cause came up for trial; J. D. Kouse and Elmer and King for plaintiffs; G. L. Bright and Bradford, Lea, and Fin- ney, for defendants ; when, after hearing the pleadings, evidence, and argument, the court considering the same, it is ordered, ad- judged, and decreed," &e. Is this court at liberty to infer from the entry a waiver of the right to a jury trial ? When ,we consider the cases already cited, in which such a waiver has been implied, and that the right to have a jury when a party demands it is so universally known and respected, we think that it is almost a necessary inference, where a party is present by counsel and goes to trial before the court without objection or exception, he has volun- tarily waived his right to a jury, and must be held in this court to the legal consequences of such a waiver. But we are not pre- pared to go further. If the state of the pleadings presents issues of fact to be tried, H. T. P.— 42 658 TRIALS BY THE COURT. [ChAP. V. and there is nothing to show that the party complaining of the error was present by himself or counsel at the trial, and no jury was called, we think it is error for the court to try those issues without a jury, because there can be no presumption that the party has waived his legal and constitutional right to have a jury. The record before us presents, in the light of these views, a case where the parties consented to waive a jury, but did not take the steps necessary to secure the right to a review of the findings of the court as provided by statute. There is, therefore, no error of which we can take cognizance, and the judgment of the Circuit Court is Affirmed} DILLY V. OMAHA & ST. L. RY. CO. 55 lilissouri Appeals, 123. [1893.] Ellison, J. This action was instituted under the provisions of sections 2611 and 2612, Revised Statutes, 1889, wherein an action is given for damages to stock which may go upon a rail- road right of way by reason of there not being a sufficient fence, and are injured in ways other than by colliding with the train. Judgment was given for plaintiff, both in the justice's court and the Circuit Court. Defendant has brought the case here. * * * II. The next point of objection is based on the allowance of an attorney's fee of $35, under the provisions of section 2612, Re- vised Statutes, 1889. The trial court allowed the fee, without calling a jury, and without any waiver of a jury being entered by defendant as provided in section 2133. No objection was made to this by defendant, except by a motion in arrest. It was decided in Briggs v. Railroad, 111 Mo. 168, that a reasonable attorney's fee, as allowed by the statute aforesaid, was an issue of fact in the sense of the statute, section 2121, and that the parties were entitled to a jury, unless one was waived. It was furthermore decided in that case, that there could be no waiver, when the parties appeared, except by written consent filed with the clerk, or oral consent in court, entered on the minutes; and 1 The sufficiency of the pleadings is open to review as in other cases. Bond V. Dustin, 112 XJ. S. 604. Sec. 1.] PHILLIPS V. hood. 659 that advantage eould be taken of this by motion in arrest. No waiver, as contemplated by that decision, was made in this case, and we must hold under authority that error was committed against defendant. Plaintiff's counsel make a strong argument, with citation of authority, against this view, but we are bound, under the Constitution, to give the defendant the benefit of the last ruling of the Supreme Court. The result is that we will affirm the judgment as to all things save that for the attorney 's fee. As to the latter we will reverse the judgment and remand the cause for trial as to such fee. PHILLIPS V. HOOD. 85 Illinois, 450. [1877.] Mr. Justice Sheldon delivered the opinion of the court : The plaintiff in this suit recovered a judgment in the county court of Jefferson county, from which an appeal was taken by the defendant to the Circuit Court of the county, where the judg- ment was affirmed, and the defendant took the present appeal to this court. * * * It is next objected that, in the county court, the cause was tried by the judge of that court without a jury, and that the record does not show that appellant waived his right to a jury, as it should have done, there being an issue of fact, according to Archer v. Spillman, 1 Scam. 553. The record shows the appear- ance of both the parties at the time, and in Burgwin v. Babcock, 11 111. 28, it was held, that in the case of such a trial, where the parties are present, and interpose no objections, they waive their right to have the cause submitted to a jury, and acquiesce in the trial by the court, It is further insisted that the verdict is not sustained by the evidence. There is some conflict in the testimony, but we regard it as fully warranting the verdict. Judgment affirmed. 660 TRIALS BY THE COURT. [ChAP. V. WHBELOCK V. LEE. 74 New York, 49'5. [1878.] Rapallo, J. * * * ^ The appellant takes the further point that he was entitled to a trial by jury. The first four causes of action specified in the complaint are clearly triable by jury. They are for the recovery of money only, and maintainable at common law. (Palen v. Johnson, 50 N. Y. 49; Wheelock v. Lee, 64 id. 246.) The fifth cause of action only is for equitable relief, viz. : the surrender of the securities given for the usurious loans. The joinder of an equitable cause of action with others piirely legal does not de- prive the defendant of the right of trial by jury. (Bradley v. Aldrich, 40 N. Y. 511.) When such an action is brought to trial at special term and the defendant demands a jury trial, the Judge must determine whether any of the grounds upon which a recovery is sought are such as at the adoption of the Constitution were redressed by an action at law, and if so should direct the cause to be tried by a jury at the circuit, or at all events should refuse to try the cause without a jury. (Davis v. Morris, 36 N. Y. 569, 572 ; Hudson v. Caryl, 44 id. 553. ) Where the complaint is framed solely for equitable relief, and the action is tried as an action in equity, the court, on finding that the plaintiff is not entitled to any equitable relief, but that the facts would war- rant an action for damages which he has not alleged or claimed, cannot order judgment for such damages. (Bradley v. Aldrich, 40 N. Y. 504.) An opportunity must have been afforded to the defendant to claim a jury trial on that ground of action. The respondent claims that the appellant waived his right to a jury trial by consenting that the case be placed on the calendar for trial at the special term, and by noticing the case for trial at that term. We do not think these acts amounted to a waiver, — there was no consent that the action be tried without a jury and at the first opportunity the defendant demanded a jury trial. The case in one of its aspects was triable at special term, and had the plaintiff elected to rely solely on his equitable cause of action he could have proceeded with the trial there. In the cases cited above, this court gives a strong intimation that a trial by jury can be waived only in the manner prescribed by the Code, or by entirely failing to object, but it is not necessary to decide Sec. 1.] BUBNHAM V. NORTH CHICAGO ET. CO. 661 that point now. It is sufficient to hold that at all events there must be some unequivocal act or consent showing an intention to abandon the constitutional right, and no such intention is ap- parent here. Being of opinion that on both of the grounds stated the judg- ment must be reversed it is not necessary to consider the other points in the case. Judgment reversed, wiHh casts. BUENHAM V. NORTH CHICAGO RY. CO. 88 Federal Bep. 627. [G. C. A. 1898.] BuNN, District Judge. This suit has been twice tried in the court below, and is now in this court for the second time. It was brought to recover the price of a street-car traction motor con- structed by the plaintiffs for the defendant. Upon the first trial a jury was waived, and the case submitted to the court upon the following written stipulation as to the facts, without other evi- dence : "It is hereby stipulated by and between the parties to the above-entitled cause, through their respective counsel, that jury shall be, and is hereby, waived, and the said cause submitted to thp court for trial upon the foregoing statement of facts. For the purpose of said trial, the said statement shall be considered by the court to be in evidence, and as absolutely true. " * * * On the second trial the plaintiffs asked for a jury trial, and also that they be allowed to introduce evidence in addition to, but not contradicting, the written statement, — both of which re- quests were denied by the court, — to which rulings exceptions were taken, and the trial had before the court upon the same stipulation of facts, and a finding and judgment rendered again against the plaintiffs. We are of opinion that the court erred in each of these rulings. * # # 2. The stipulation to waive a jury, and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in 662 TEIALS BY THE COURT. [ChAP. V. making the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer. The right of trial by jury in cases at law, whether in a civil or crim- inal case, is a high and sacred constitutional right in Anglo- Saxon jurisprudence, and is expressly guaranteed by the United States Constitution. A stipulation for the waiver of such right should therefore be strictly construed in favor of the preservation of the right. Cross v. State, 78 Ala. 430 ; State v. Fouchet, 33 La. Ann. 1154 ; Dean v. Sweeney, 51 Tex. 242 ; Brown v. Chenoworth, Id. 469 ; Town of Carthage v. Buckner, 8 111. App. 152. This last cited case was very similar to the one at bar, and the court says : "It appears that on the first trial the parties entered into a written stipulation of facts agreed upon, as proven on the trial, and also that a jury should be waived, and the case submitted to the court for trial. On the second trial, appellant claimed that under such stipulation a jury should again be waived, and the case be tried by the court, and entered a motion to that effect. The action of the court in overruling this motion is one of the errors assigned. In this we think no error was committed. The agreement to waive a jury only bound the parties to the mode adopted — of trial by the court — to that one trial. When the case was remanded by this court for another trial in the court below, both parties were restored to their original right of trial by jury. Each party is entitled to as many juries as there are trials, and a waiver of a jury on one trial is expended by that trial." Brown v. State, 89 Ga. 340, 15 S. B. 462. The rule and the reason for it are fairly laid down by the Supreme Court of Alabama in Cross v. State, 78 Ala. 430, as follows : "We need not decide whether the defendant, under the facts of this case, so far waived his right of trial by jury as to justify the judge of the County Court in proceeding to try the cause. * * * Conceding that such was the case, all we decide is that the agreement to waive the right of trial by jury must ordi- narily be construed to apply only to the particular trial at which it is made. Such a waiver is a renunciation of a valuable con- stitutional right, and must be strictly construed. It may well be supposed that a defendant would be perfectly willing for a particular judge to try him, when he would not risk his suc- cessor, or that he would be willing to be tried the first time by a judge, when he would not submit to a second trial by the same Sec. 2.] insurance co. v. folsom. 663 judge after such officer had convicted him one or more times, so that the judicial mind might not afterwards be perfectly free from the influence of a bias created by the circumstances of such previous conviction. This would be sufficient ground for the challenge of a juror, and ought not to be considered as waived in the case of a judge, — at least on doubtful implication. ' ' Mar- ton V. King, 72 Ala. 354; Stedman's Heirs v. Stedman's Ex'rs., 32 Ala. 525 ; Benbow v. Robbins, 72 N. C. 422. Nor is this court ready to concede that the waiver of the right of jury trial is absolutely binding upon the party, even as to the one trial where it is intended to be applied. A stipulation to waive, followed by an order of the court, is not in the nature of a private contract founded upon a consideration, which can only be set aside for fraud. It is a proceeding in court, which is liable to be changed or modified or set aside by order of the court, in its discretion, upon a proper showing. And where the circumstances are changed, as in the case of a change in judges, or other conditions, such a discretion to relieve from a waiver might very properly be exercised even on the first trial. ^ A change in the court or in the counsel might very well furnish a good reason for allowing the waiver to be withdrawn; and where, upon a proper application, the circumstances seem to justify it, we think that a liberal discretion should be exercised by the trial court in allowing either party to withdraw from such a waiver, and to claim his right under the Constitution. The judgment of the Circuit Court is reversed, with instructions to grant a new trial. Section 2. Propositions of Law. INSURANCE COMPANY v. FOLSOM. 18 Wallace, 237. [1873.] Plaintiff brought assumpsit on a policy of marine insurance ; defendant pleaded the general issue. A jury was waived by 1 The court has discretion to re- a jury. Wittenberg v. Onsgard, 78 lieve against a stipulation waiving Minn. 342. 664 TRIALS BY THE COURT. [ChAP. V. proper stipulation, and the «ase was submitted to the court which made a general finding for the plaintiif.^ Mr. Justice Clifford. * * * Having introduced the policy, the plaintiff proved by the mas- ter that the schooner, on the sixth of January prior to the date of the policy, departed on her voyage, and that she was lost at the time and by the means before stated. In addition to the incidents of the loss, he also proved the circumstances under which the master and crew were saved from the wreck and car- ried to the port of Bremerhaven, by the vessel which rescued them ; that the master wrote to the owner by the first mail from that place after their arrival there, and that he was unable to use the telegraph, as he had no funds to prepay a telegram. Due notice of the loss and of the interest of the plaintiff having been admitted the plaintiff rested, and the defendants moved the court to decide that the evidence was not sufficient to entitle the plaintiff to a verdict, which the court refused to do. Suppose the motion is regarded as a motion for a nonsuit, it was clearly one which could not be granted, as it is well-settled law that the Circuit Court does not possess the power to order a peremptory nonsuit against the will of the plaintiff. Power to grant a peremptory nonsuit is not vested in a Circuit Court, but the defendant may, if he sees fit, at the close of the plaintiff's case, move the court to instruct the jury that the evidence intro- duced by the plaintiff is not sufficient to warrant the jury in finding a verdict in his favor, and it is held that such a motion is not one addressed to the discretion of the court, but that it pre- sents a question of law, and that it is as much the subject of excep- tions as any other ruling of the court in the course of the trial. All things considered the court is inclined, not without some hesita- tion, to regard the motion as one of the latter character, and in that view it presents the question whether by the terms of the policy, the risk was within it, as the proofs show that the loss occurred before the policy was issued. * * * Viewed in the light of these suggestions, it is quite clear that it would have been error if the Circuit Court had decided as requested by the defendants, and that the decision made by the Circuit Court in denying the motion was correct. * * * Special findings of fact were requested by the defendants, and they excepted in numerous instances to the rulings of the court 1 Statement has been condensed. Sec. 2.] insxjrance go. v. polsom. 665 refusing to comply with such requests, all of which are overruled upon the ground that the finding of the Circuit Court upon the facts may be either general or special, as heretofore more fully explained. Eequests that the court would adopt certain conclu- sions of law were also presented by the defendants, in the nature of prayers for instruction, as in cases where the issues of fact are tried by a jury, which were refused by the Circuit Court, and the defendants also excepted to such refusals. None of these exceptions have respect to the rulings of the court in admitting or rejecting evidence, nor to any other ruling of the Circuit Court which can properly be denominated a ruling in the progress of the trial, as every one of the refusals excepted to appertain to some request made to affect or control the final conclusion of the court as to the plaintiff's right to recover. Such requests or prayers for instruction, in the opinion of the court, are not the proper subjects of exception in eases where a jury is waived and the issues of fact are submitted to the determination of the court. Exceptions are allowed to the rulings of the court in the progress of the trial, and the provision is that the review, if the finding is special, may also extend to the determination of the sufficiency of the facts found to support the judgment. Where the finding is general, as in this case, nothing is open to review but the rul- ings of the court in the progress of the trial, and as none of the last-named exceptions, which are the ones now under considera- tion, were of that class, they are all overruled. Like a special verdict, a special finding furnishes the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment, but where the finding is general the losing party cannot claim the right to review any questions of law arising in the case, except such as grow out of the rulings of the Circuit Court in the progress of the trial, which do not in any proper sense include the general finding of the Circuit Court nor the conclusions of the Circuit Court em- bodied in such general finding, as such findings are in the nature of a general verdict and constitute the foundation of the judg- ment. No review of such a finding can be made here under a writ of error, unless it is accompanied by an authorized special statement of the facts, without imposing upon this court the duty of hearing the whole case, law and fact, as on an appeal in a chancery or in an admiralty suit, which would operate as a repeal of the provisions in the act of congress, that issues of fact in 666 TEIALS BY THE COURT. [ChAP. V. such cases may be tried and determined by the Circuit Court, and would also violate that clause of the twenty-second section of the Judiciary Act, which prohibits this court from reversing any case "for any error of fact." Whether any ruling of the Circuit Court other than the rulings in admitting or rejecting evidence can properly be regarded ' ' as rulings in the progress of the trial, ' ' within the meaning of that phrase in the act of congress, it is not necessary in this case to decide, as it is clear that neither the general finding of the Circuit Court nor the conclusions of the Circuit Court as embodied in the general finding fall within that category .^ Judgment affirmed. HUBBARD V. FUCHS. 164 Missouri, 426. [1901.] Burgess, j. * * * This an action at law, in which the evidence was conflicting, and no finding of facts was made by the court, nor were any declarations of law asked, or given. It is impossible, therefore, 2 Compare St. Louis v. Telegraph upon tlie question as to whether or Co., 166 U. S. 388. See comments not there is substantial evidence to on these cases in Streeter v. Sani- sustain a finding in favor of a tary Dist., 133 Fed. (C. C. A.) 124. party, it is necessary to request the MuNGEE, J., in Seep v. Mining court to direct a finding. Upon the Co., 201 Fed. 893: court's refusal, and an exception "These statements of the mode being taken, that question may be in which the judgment of the court, reviewed. So, too, when a case is in an action at law when a jury has tried to a court without a jury, been waived, may be reviewed, seem " * * * So, when a case is plain and specific. All that it is tried to the court, requests should necessary for counsel to do in the be made to the court to find and an- trial of an action at law to the court, nounee the propositions of law when a jury is waived, is to bear which it is claimed are applicable in mind that the judge trying the to the facts in the case. If the case is acting in a dual capacity: court refuses to so find, and an ex- First, as a trier of questions of law, eeption is taken, the questions may the same as if the ease were being be reviewed in the appellate court; tried to a jury; second, as a trier or, if the court makes findings of of facts, in the place of a jury. If law, and they are duly excepted to, the case was tried to a jury, to en- they may be reviewed." able the appellate court to pass Sec. 2.] first nat. bank v. n. w. nat. bank. 66 for us to determine upon what theory of the case it was d- cided, or whether correctly or otherwise, but the presumptio must be indulged in favor of its correctness. As was said in tl case of Sells v. Bretelle, 162 Mo. 373, and Blankenship v. Dille; 162 Mo. 338: "If plaintiffs had desired to take the opinion ( the trial court upon the questions which they now present upo this appeal, they should have asked declarations of law in aceor( ance therewith," but having failed to do so they can not tre< the case here just as if the questions which they now discuss ha been raised by declarations of law either given or refused.^ Now, if there was no evidence to justify the judgment, th court would interfere although no declarations of law were aske (Hartt V. Leavenworth, 11 Mo. 629; Robbins v. Phillips, 68 M 100 ; Pipkin v. Allen, 24 Mo. 520 ; Heyneman v. Garneau, 33 M 565; Morris v. Barnes, 35 Mo. 412; Wilson v. Albert, 89 M 537; State ex rel. v. Guinotte, 156 Mo. 513), but such is not tl case. So it has been held by this court that it will review tl action where exceptions are saved on points of law other tha the giving or refusing of instructions (Wilson v. Albert, supr and authorities cited) , but no such question is presented by plaii tiffs' brief. For reasons indicated we affirm the judgment. FIRST NAT'L BANK v. N. W. NAT'L BANK. 153 Illinois, 296. [1894.] Mr. Justice Baker delivered the opinion of the court : In this action of assumpsit brought by the Northwestern N; tional Bank of Chicago, against the First National Bank of Ch cago, the issues were tried before the Superior Court of Coc county without a jury, and the court found the issues for tl plaintiff, and assessed its damages at $2454, and rendered judj ment therefor against the defendant. Upon an appeal to tl Appellate Court for the First District the judgment was in a things affirmed, and thereupon the First National Bank of Ch cago prosecuted this further appeal. A preliminary question is raised by the appellee. It insis 1 Accord, Crean v. Hourigan, 158 lU. 301. 668 TEIALS BY THE COURT. [ChAP. V. that all questions of fact are conclusively settled in its favor by the judgment of affirmance in the Appellate Court, and further, that no questions of law are so preserved in the record as that they can be reviewed in this forum. At the trial, appellant submitted to the court eight "written propositions," which it prayed should "be held as law in the decision of the case." (Sec. 41 of Practice act, 2 Starr & Curtis' Ann. Stat. 1808.) The court "held" propositions 1, 2 and 3, but ' ' refused ' ' to hold propositions 4, 5, 6, 7 and 8 to be law applica- ble in the decision of the case, and to the action of the court in refusing to hold said five last mentioned propositions, and each of them, appellant then and there excepted. In respect to propositions 4, 5, 6 and 7, it may well be said that they are not propositions of law, within the intent and meaning of Section 41 of the Practice act. They are, both in form and in substance, mere prayers or solicitations of appellant to the trial court to find particular facts for it, ' ' under the law and the 'evi- dence. " The statute does not contemplate that under the cloak of written propositions of law a party litigant shall have the right to call upon the court to find in his or its favor, seriatim, all the special or particular facts involved in the evidence; and, dehors the statute, it is not a common law function of a judge, in a common law action, to make special findings of fact. The rule is, ad quaesUonem facti non respondent judices. Broom's Legal Maxims (4th ed.), 103; Altham's case. Coke, part 8, 155a. In Memory v. Niepert, 131 111. 623, the ease was tried by the court below without a jury, and this court held that a proposi- tion there asked was properly refused, and for the reason that no question of law was thereby raised. And so in the case at bar, the trial court could not properly have done otherwise than refuse to hold the propositions 4, 5, 6 and 7. The trial court also declined to hold proposition 8 tendered by appellant, and marked the same "refused." That proposition read as follows : ' ' The court holds, as a matter of law, that under the law and evidence the judgment in this case should be for de- fendant. ' ' There can be no question but that if the case had been on trial before a jury, and appellant had moved the court to in- struct the jury that under the law and evidence, and as matter of law, the verdict and judgment in the case should be for the defendant, then such motion would have been regarded as a mo- tion in the nature of a demurrer to the evidence, and as raising Sec. 2.] FIRST NAT. BANK V. N. W. NAT. BANK. 66 a question of law for the decision of the court. In Bartelott v. Ir ternational Bank, 119 111. 259, it was held that motions to exclud the entire evidence from the jury, and motions to instruct th jury to find for the defendant, are in the nature of demurrer to evidence, and that they admit no]t only all that the testimon; of the plaintiff proves, but also all that it tends to prove. Ani it was also there held, that a motion to exclude the evidence, or t instruct the jury that they should find for the defendant, may b made after the evidence is heard on behalf of the defendant. T like effect is the case of Joliet, Aurora and Northern Railway C( V. Velie, 140 111. 59. In cases where the parties litigant agree tha both matters of law and matters of fact may be tried by the cour without a jury, and the only question at issue is the question o law whether the uneontroverted facts constitute a cause of actior no good reason is perceived why the defendant may not submi to the court such a proposition as proposition 8 now before us to be "held" or "refused" by the court, as the court shall be o opinion the law of the case is, and why the submission of such proposition should not be regarded as in the nature of a de murrer to evidence, and as sufficiently raising and preservini the question of law involved for re-examination in a court o review. The exact question now before us does not seem ever to hav been passed upon by this court. But the case of Pittsburg Ft. Wayne and Chicago Railroad Co. v. Reich, 101 111. 157, wa tried by the court without the intervention of a jury, and upo] the appeal of this court, in discussing the several propositions o law that were refused at the trial, used this language in regan to one of them : ' ' The fourteenth proposition was properly re fused, because there was evidence tending to sustain a cause o action. It asserts, simply, that under the evidence there can b no recovery. There was evidence tending to authorize a recov ery. Its weight was for the court. ' ' The plain implication f roB this language is, that the propriety of holding or refusing a writ ten proposition such as that now before us, will depend upon th answer given to the question whether or not there is evidence i: the record which fairly tends to establish a cause of action.^ iMacfaklane, J., in Butler Co. v. "A jury was waived and the ii Boatmen's Bank, 143 Mo. 13: sues of fact were submitted to th "From a judgment for defend- judge, who in that respect pei ant plaintifiE appealed. formed the duties of a jury. I 670 TRIALS BY THE COUET. [ChAP. V. The conclusion to be deduced from that which we have said is, that we consider this ease properly before use for the considera- tion of the question, as a question of law, whether the evidence tends to show a right of recovery in appellee. * * * CRERAR V. DANIELS. 209 Illinois, 296. [1904.] Mr. Justice Ricks ; * * * Complaint is made of the refusal of the court to mark ' ' held ' ' eleven alleged propositions of law submitted to it. The first proposition was: "The court finds that the planks, planking, stringers, and surface improvements in question in this case were fixtures. ' ' The second is in the same language, and asks the court to hold that they are trade fixtures. By the third the court was asked to hold that the "plaintiff surrendered possession of the dock in question on the date of the expiration of his lease, and that the planks, planking, stringers and surface improvements in question, at the time the premises were surrendered by the plain- tiff, had not been removed or attempted to be removed by the plaintiff. ' ' The fourth asked the court to hold that the same ma- terials designated in the previous instructions were annexed to" the realty, were adapted for the use or purpose of the realty to which they were attached, and were intended by the plaintiff to be annexed to the realty. By the fifth the court was asked to hold that the property sued for had no such market value, in law, as entitled the plaintiff to recover against defendants. The such case the finding of facts by the view by the appellate court in like judge are as conclusive upon the manner and with like effect, appellate court as the verdict of a <<* * » ijhe court does not jury, and will not be reviewed. But declare a conclusion of fact, or of in such a trial either party has the law and fact, but a legal conclusion right to have the judge declare the 'that under the pleadings and evi- theory of law by which he is gov- dence in the case the plaintiff is not erned in reaching the conclusion of entitled to recover.' This is a dec- fact. This is done in the form of laration of law given by the court, declarations of law, which are anal- and not a finding of fact by the ogous to instructions given to judge sitting as a jury. ' ' juries and which are subject to re- Sec. 2.] ceebar v. daniels. 671 sixth was, that such property, located as it was, had no market value. The seventh was, that the defendants leased the realty in question and took possession thereof with the property claimed upon the same, and that plaintiff had no right, against the de- fendants, to enter upon the realty and take possession of and remove said property. We have set out enough of these propositions that their real character may be seen, and it is quite apparent that none of them are propositions of law, but are simply requests to the court to make certain specific findings of facts involved in the consideration of the case. By Section 41 of the Practice act either party is authorized to ' ' submit to the court written propositions to be held as law in the decision of the case." This provision of the statute authorizes the offering of propositions of law to be passed upon by the court, so that questions of law arising in the case as to the applicability, force and effect of the evidence may be preserved and passed upon by courts of review. They are termed propositions of law to be held or refused by the court, in contradistinction to the instructions that are to be presented and given for the guidance of juries, but so far as their sub- stance and form is concerned they must in all material respects be the same. Any form of stating a proposition of law that would not be proper in an instruction to a jury would likewise be improper when offered to the court trying a cause in the ab- sence of a jury. Such propositions should state the law, only, and not assume a state of facts existing or attempt to find a given fact or state of facts. They should be framed upon a hypothesis which there are facts in the record tending to estab- lish, and should ask the court that if those facts are found by the court, the law applicable to those facts is as stated in the propositions. As we said in First Nat. Bank v. Northwestern Nat. Bank, supra (p. 301) : "The statute does not contemplate that under the cloak of written propositions of law a party liti- gant shall have the right to call upon the court to find in his or its favor, seriatim, all the special or particular facts involved in the evidence; and, dehors the statute, it is not a common law function of a judge, in a common law action, to make special findings of fact." In County of La Salle v. Milligan, 143 111. 321, we said (p. 345) : "Proposition 13, submitted by appellant, was prop- erly refused. By it the court was required to hold as a fact that 672 TEIALS BT THE COUET. [ChAP. V. the sheriff had 'collected from sources other than the county, during each year of his term as sheriff, fees in excess of the salary or compensation allowed him by the board.' The fact is not stated hypothetically and the opinion of the court as to the law arising thereon asked, as may be done where the hypothesis assumed finds support in the evidence, but the court, if it held the proposition, was compelled to assume the fact as established. This is improper. The purpose of the statute is to enable the party to submit propositions with a view to obtaining the opin- ion of the court upon material and controlling principles of law only, and when the proposition calls for the opinion of the court upon a question of fact it may properly be refused. For aught we can know or are required to know the court found the fact directly at variance with the proposition." The last remark of the court in the above quotation is quite applicable to the case before us. It is evident from the judgment of the court that upon all the questions of fact proposed by the appellants the court entertained a different view to that requested to be held.. The views herein above expressed are but the reitera- tion of the declarations of this court in Gilbert v. Sprague, 196 111. 444; 'Flaherty v. Mann, id. 304; In re Tobin, id. 484; Field V. Crawford, 146 id. 136; Board of Supervisors v. Com- missioners of Highways, 164 id. 574; Order of Foresters v., Schweitzer, 171 id. 325. Whether the plank and stringers for which recovery is sought in this case were personal property, or whether they were trade fixtures which might be removed by the tenant, or whether they had become attached to and a part of the realty and passed with the lease to appellants, were questions of fact, in determining which appellants were entitled, if they wished, to have the legal effect of any state of facts appearing in evidence passed upon by the court by propositions of law submitted for that purpose. The trial court found that the property sued for was personal property, for which recovery could be had, and gave judgment accordingly, and as the Appellate Court affirmed the judgment of the trial court we must presume that it found the facts the same way. There being, then, no further propositions or ques- tions of law presented for our consideration, it becomes our duty to affirm the judgment of the Appellate Court, which is accord- ingly done. Judgment affirmed. Sec. 3.] hudson v. weight. 673 HUDSON V. WEIGHT. 204 Missouri, 412. [1907.] Lamm, J. Sarah A. Hudson lodged her bill in equity against her husband, Jacob I., and one Jubal A. "Wright, having for its object, first, to set aside a sheriff's deed dated September 14, 1902, conveying to said Wright the interest of said Jacob I. in and to a described part of the northeast quarter of the northeast quarter of section 4, township 56, range 32, in Clinton county; second, to vest the fee of said land in her. The decree, nisi, went in her favor — Hudson abiding the event of the trial, but Wright appealing here. * * * III. Error is assigned in the refusing of appellant's declara- tions of law. But instructions fill no office in equity practice — ergo, are out of place in this case. The question here is not what views the chancellor may have had on the law — the heart of the matter is : Did the decree do equity ? And that is the impelling question we must seek out an answer to on appeal, and none other. (Bouton V. Pippin, 192 Mo. 1., c. 474, et seq.) There is no merit in this assignment of error. ^ Section 3. Special Findings. BRITISH QUEEN MINING CO. v. BAKER MINING CO. 139 V. S. 222. [1890.] Mr. Chief Justice Fuller delivered the opinion of the court. This case was tried by the Circuit Court, without a jury, and under sections 649 and 700, Rev. Stat., the finding must be •'either general or special." It cannot be both. Here there was a general finding. 1 And so in probate matters where and it was not necessary to submit there is no right to a jury — Me. propositions of law. As the pro- JusKCE Caetweight, in Marin v. ceeding is governed by equitable Martin, 170 lU. 18 : "As there was principles and practice, the facts no right to a jury trial, section 41 are still open to investigation in this of the practice act does not govern, court, and it was not necessary that H. T. p.— 43 674 TBIALS BY THE COURT, [ChAP. V. The record contains a bill of exceptions, but no exceptions to the rulings of the court in the progress of the trial of the cause were thereby duly presented, and although after reciting the evidence it is therein stated that "the court thereafter and during the said term made the following findings of fact and judgment thereon, ' ' which is followed by an opinion of the court assigning reasons for its conclusions, this cannot be treated as a special finding enabling us to determine whether the facts found support the judgment, nor can the general finding be disre- garded. Dickinson v. Planters' Bank, 16 "Wall. 250; Ins. Co. v. Folsom, 18 Wall. 237 ; Norris v. Jackson, 9 Wall. 125 ; Flanders V. Tweed, 9 Wall. 425 ; Ins. Co. v. Tweed, 7 Wall. 44 ; MiUer v. Life Ins. Co., 12 Wall. 285 ; Ins. Co. v. Sea, 21 Wall. 158 ; Martin- ton V. Fairbanks, 112 U. S. 670 ; Eaimond v. Terrebonne Parish, 132 U. S. 192 ; Glenn v. Fant, 134 U. S. 398 ; Lloyd v. McWill- iams, 137 U. S. 576. The record raises no questions open to revision by us and the judgment is Affirmed.^ BERGER V. VARRELMANN. 127 New York, 281. [1891.] FoLLETT, Ch. J. The judgment which the appellant obtained by the confession of his debtors is sought to be set aside and the money collected by virtue of it recovered for the benefit of the creditors of the judgment debtor, on the ground that when con- fessed the confessors intended to make a general assignment and prefer the claim of the appellant through a judgment and execu- tion, and thereby evade the prohibition of the thirtieth section of the Assignment Act, which is as follows : * * * The appellant insists that his judgment and execution by which he secured more than one-third of the estate of the insolvent the appellate court should recite in The provision for special findings its judgment a finding of facts. is not applicable to equity cases. The sections of the practice act re- Pitts v. Pitts, 201 Mo. 356. lied upon do not apply to cases of i See also U. S. v. Sioux City this kind. Moore v. Tierney, 100 Stock Yards, 167 Fed. 126. 111. 207." Sec. 3.] beegee v. vabrelmann. 675 debtors are not brought within the prohibition of the section, because: (1) The trial court did not find as a fact that the debtors contemplated making a general assignment when the judgment was confessed. (2) The trial court did not find as a fact that the appellant knew when he received the confession of judgment and seized the property by virtue of the execution issued thereon that the debtors conten^plated making a general assignment. (3) The preference was not created in the general assignment, but by a separate instrument. * * * The trial court found that the estate of the assignors was not worth three times the amount of the appellant's judgment, and that its collection consumed more than one-third of it, and that when the judgment was confessed, execution issued and levied and the assignment executed, the assignors and George B. Var- relmann aU knew that the sale under the execution to be issued would absorb more than one-third of the debtors' assets. The decision signed by the trial judge contains seventeen findings of fact and seven conclusions of law. The first and second of the latter are as follows : "First. The judgment confessed in favor of the defendant George E. Varrelmann, and the execution and levy which fol- lowed were made by the defendants Henry Erdtmann and Gus- tavo Varrelmann, in contemplation of their general assignment and as part thereof, and for the purpose of preferring said de- fendant, George E. Varrelmann, in whose favor the said judg- ment was confessed by them, out of their property, for more than one-third of the net assets of the said defendants, Henry Erdtmann and Gustave Varrelmann, and to prevent the said assets from going into the hands of the defendant Kracht, as assignee, and being distributed to the plaintiffs, and the other creditors of the said defendants, Henry Erdtmann and Gustave Varrelmann, pursuant to the terms of their general assignment deed. "Second. Said confession of judgment and the execution and levy which followed were made in fraud of the said general assignment, and are void, and should be set aside and vacated, and the assets levied upon, or the entire proceeds thereof, should be paid the defendant Kracht, as assignee, to be distributed pur- suant to the terms of the deed of general assignment. ' ' The learned counsel for the appellant insists that these con- clusions cannot be given the effect of findings of fact, but must 676 TEIAXiS BY THE COUET. [ChAP. V. be held to be conclusions of law, and that the facts so found can- not be considered on this appeal. This contention is not well founded, for it is well settled that though a "finding of fact" be called a "conclusion of law" and improperly classified as such in the decision signed (Code C. P. § 1022), it wiU, for the pur- pose of upholding a judgment, be given the same effect as though embraced within and designated as one of the findings of fact. (Parker v. Baxter, 86 N. Y. 586 ; Murray v. Marshall, 94 id. 611 ; Adams v. Fitzpatrick, 125 id. 124.) The facts found in the conclusions of law above quoted — that the assignors confessed the judgment in contemplation of making a general assignment as a part thereof, and for the purpose of preferring George E. Varrelmann for more than one-third of their estate, that the confession of judgment, the execution and levy were made in fraud of the general assignment will be given the same force in support of this judgment as though they had been properly classified in the decision signed. * * * DEMMING V. WESTON. 15 Wisconsin, 236. [1862.] By the court, Dixon, C. J. Action commenced before a justice of the peace to recover damages for the conversion of a quantity of barrel hoops, the property of the plaintiff, of the alleged value of $18.50. Oral answer, denying each and every allegation of the complaint. Judgment for the defendants before the justice, and appeal by the plaintiff to the municipal court of the city and town of Eipon. * * * * * * It was afterwards tried before the court without a jury, and judgment rendered for the plaintiff. The finding, so far as it related to facts and conclusions of law, omitting formal parts, is in these words: "The court finds that the de- fendants converted the property, and that a judgment be entered for the plaintiff against the said defendants for the sum of eighteen and fifty-hundredths dollars, damages and costs." To this the defendants excepted, as insufficient in the facts found and statements of legal conclusions. * * * The finding is altogether defective. No fact whatever is found except that "the defendants converted the property," but what Sec. 3.] muephy v. bennett. 677 property, its value, and whether it belonged to the plaintiff, we are not informed with that certainty which the law requires. And the conclusion of law, if finding "that a judgment be entered for the plaintiff" can be said to be one, is very vague, and not separately stated. R. S., Chap. 132, § 19. The facts found by the judge in such cases, are in the nature of a special verdict by the jury (9 "Wis. 492), and should be stated with such fullness and accuracy that the court can see that the judg- ment is supported by them. A very general finding may do, if it come within this rule, and it may be sufficient perhaps, if it refers to the complaint or other pleading containing a complete statement of the facts found. But here is nothing of the kind — neither a written statement of the facts found, nor a reference to other papers from which they can be ascertained. The judgment must for these reasons be reversed, and the cause remanded for further proceedings according to law. MURPHY V. BENNETT. 68 California, 528. [1886.] Belcher, C. C. This is an appeal by the plaintiff from a judg- ment in favor of the defendant, and it comes h^re on the judg- ment roll. The only question presented is as to the sufficiency of the findings. The action was commenced to recover damages from the de- fendant for tearing down a barn, and converting the materials thereof to his own use. The complaint alleged that the plaintiff was the owner of the bam, and in the lawful and peaceable possession of the land on which it was situated, and that on or about the ninth day of October, 1880, the defendant, without right or authority, and against the will of the plaintiff, willfully and maliciously tore down the said building, and removed the whole of it from the premises where it stood, and converted the same to his own use. The answer denied that the plaintiff was at the times named in the complaint, or at any time, the owner of the barn, or in possession of the premises on which it was situated, and then set up two affirmative defenses. 678 TRIALS BY THE COURT. [ChAP. V. The court found that the plaintiff was at the times mentioned in his complaint in the lawful and peaceful possession of the half -section of land on which the barn was alleged to have been situated, and then, — "That the plaintiff was not the owner of the frame building situate on the tract of land described in his complaint at the time the same was torn down and removed by the defendant. "That the defendant was the owner of said building at the time he tore the same down and removed it." There was no finding upon the affirmative matters set up in the answer. It is insisted for the appellant that the findings above quoted are not findings of fact, but conclusions of law, and that for want of findings upon the affirmative matters the judgment must be reversed. Findings should be statements of the ultimate facts in con- troversy, and not of probative facts, or mere conclusions of law. (Matthews v. Kinsell, 41 Cal. 514; Pico v. Cuyas, 47 Cal. 174.) Findings of probative facts are sometimes held sufficient, but only when the ultimate fact necessarily results from the probative facts. (Downing v. Graves, 55 Cal. 544; Biddel v. Brizzolara, 56 Cal. 381.) The facts should be found, and not mere conclusions of law stated. But a finding ' ' that the plaintiff did not own the several tracts of land described in the several answers of defendants, but that the defendants owned the same in severalty, as set forth in their answers," has been held sufficient to support the judgment in an action of ejectment. (Smith v. Acker, 52 Cal. 217.) So a finding that the defendant "has a good and perfect title to said property" has been held sufficient. (Frazier v. Crowell, 52 Cal. 399.) So a finding "that the plaintiff was the owner and in posses- sion of the property on the day that the defendant seized upon it, and removed it from her possession, custody, and control," has been held sufficient in an action to recover damages for the conversion of personal property. (Haley v. Nunan, 11 Pac. C. L. J. 523.) There should be findings upon all the material issues in the case, but a judgment will not be reversed for want of a finding on a particular issue, where it is apparent that the failure to Sec. 3.] murphy v. bennett. 679 find on that issue is in no way prejudicial to the appellant. (Porter v. Woodward, 57 Cal. 535 ; MeCourtney v. Fortune, 57 Cal. 617; People v. Center, 66 Cal. 551.) Here the allegation in the complaint is that the plaintiff "was the owner of a certain frame building, situate," etc. The answer denied that the plaintiff was the owner of the building. Whether the plaintiff did own the building or not was, then, the ultimate fact to be determined, and upon the issue thus raised, the court found against the plaintiff. We think it clear that the findings referred to are findings of fact, and not conclusions of law. This being so, we are unable to see how the plaintiff is preju- diced by the failure of the court to find upon the affirmative defenses set up in the answer, as, if the plaintiff was not the owner of the building, it is of no moment whether the defend- ant justified his taking of it, or not. In support of his posit^ion that he was entitled to findings upon the afSrmative defenses, counsel for appellant cites Bil- lings V. Everett, 52 Cal. 661. But that case is not in point. There the defendant set up an affirmative defense, and without any finding upon it, judgment was given in favor plaintiff. This court held, in effect, that if the facts set up in the answer were true, they constituted a defense to the action, and that no judg- ment could properly be rendered in favor of plaintiff until there was a finding as to whether they were or were not true. The judgment, we think, should be affirmed. Seabls, C, and Foote, C, concurred. The court. For the reasons given in the foregoing opinion, the judgment is affirmed. Thornton, J., dissenting. I dissent. The finding that plain- tiff was not the owner of a building, but that the defendant was, is neither a finding of an ultimate nor probative fact, but a gen- eral verdict reached by application of rules of law to the facts found. Whether A is the owner of certain property is a mixed question of law and fact. Such an issue, when contested, can only be determined after a trial in which evidence is introduced and the law applied to the facts found. When tried before a jury, they should be, and usually are, instructed as to the rules of law to be applied to the facts which they find to exist. The court usually instructs the jury as to every phase which the case may assume upon the evidence before them, and are, or should 680 TRIALS BY THE COUBT. [ChAP. V. be, told the rules of law which should govern them in their de- liberations, and be applied to the facts as they find them to exist. Facts, then, as it was said by Justice Black, are "the raw mate- rial of verdicts." Verdicts are elaborated from them. A gen- eral verdict is synthetic — a compound of law and fact. The spe- cial verdict is analytic. It finds the facts, and submits the law to the court. Such a verdict concludes by a statement that as they (the jury) are ignorant of the law, they find the facts as set forth in the verdict, and submit the questions of law arising on them to the court, and if the court should be of opinion that, on the facts found, the law is for the plaintiff, they find for the plaintiff, and if for defendant, they so find. (Stephen on Plead- ing, *91; Abbott's Law Diet., tit. Verdict.) The naked facts, as Blackstone styles them (3 Bla. Com. 377), are alone found, from which every element of law is eliminated. These facts are the ultimate facts ; and are the facts separated from the law on which the rights of the parties are to be determined. The jury did this, — refrained from finding the law, — that they might escape an attaint for a false verdict. (See Bmeric v. Alvarado, 64 Cal. 603-605.) How can it then be said that a finding that A is the owner of property is a finding of a fact, when this can only be determined in the case of a contest, after hearing all the evidence, determin- ing which facts exist, and applying to them the rules which the law furnishes for the admeasurement of the rights of the par- ties? The facts must be so found that the appellate court may see that they warrant the conclusion of law reached and the judgment entered ; that the judicial mind may perceive that the rules of law, oh being applied to the facts found, lead to the conclusion of law and judgment arrived at. The mind of the court is not called on to act at all when the finding is that the plaintiff is not the owner of the property sued for, but that the defendant is. If this is a proper finding of the facts, the duty of the court becomes wholly that of a serv- ant bound to obey, and must enter judgment as on a general verdict. In fact, the verdict is a general one. A general verdict is one which the jury finds in the terms of the issue. (Abbott's Law Diet., tit. Verdict.) Here the finding is in such words. Coke, illustrating this point, says : ' ' There be two kindes of ver- dicts, viz., one generall, and another at large or espeeiall. As in an assize of novel disseisin, brought by A against B, the plain- Sec. 3.] murphy v. bennett. 681 tife makes his plaint, Quod B disseisivit cum de 20 acris terrae (nim pertinentiis; the tenant pleades, Quod ipse nidlam injuriam sen disseisinam praefato A indefecit, etc. The recognitors of the ^ assize doe finde, Quod praedict A injuste & sine judicio disseisivit praedict B de praedict 20 acris terrae cum pertinent, etc. This is a general verdict. " (2 Co. Lit. 226 b.) If the finding by the jury that "the aforesaid A unjustly and without judgment [right] disseised the aforesaid B from the aforesaid twenty acres, with their appurtenances," is a general verdict, why is not a finding that "the plaintiff is the owner of the thing sued for" a general verdict? (Stephens v. Westwood, 25 Ala. 716; Chedotoner v. Dominguez, 7 Mart. 521 ; Gonzalez v. Leon, 31 Cal. 98; Mendelsohn v. Anaheim, etc., Co., 40 Cal. 657; Downing v. Bourliek, 21 Mo. 149; Allison v. Darton, 24 Mo. 343; Bailey v. WHson, 29 Mo. 21; Foster v. Jackson, Hob. 52-56.) I can perceive no difference. The one verdict, as the other, is com- pounded of law and fact, and the facts are not separated from the law, as is the case in a special verdict ; and the court, on such verdict, has no discretion in entering judgment. The judgment must follow the verdict. Now, the court in the case under consideration was bound to find the facts separately from its conclusions of law. Such is the statute. (Code Civ. Proc, § 638.) This is done for the reason indicated above, — that a court may examine the facts found, and see that they justify the conclusions of law and judgment pronounced on them. The statute is intended inter alia to furnish a criterion or test by which to determine whether the court below has applied the law correctly to the facts found. In the case of the finding here, the court has nothing to which to apply this test. If the find- ing is a proper one, the court below has conclusively determined it, and this court is furnished with nothing by which it can determine whether the proper rules of law have been applied or not. The record as to the data on which' to determine such question is an utter blank. This court must determine blindly whether the court below has ruled correctly or not. By adopt- ing the findings as correct, the parties are deprived of a safe- guard which the law intended to supply to them, viz., such a setting forth of facts in the findings that the appellate tribunal may see by looking at the facts found that the court below did not err in its legal conclusions. On what does the judgment of 682 TBIALS BY THE COURT. [ChAP. V. this court operate, in examining a finding which says that the plaintiff is not the owner of a certain house, and the defendant is the owner? There is clearly nothing in such a finding for the judicial mind to take hold of. Nor is such a finding a probative fact. A probative fact is a fact which proves or tends to prove something. It is an evi- dential fact. What is to be proved when it is said that A is the owner or B is not the owner ? The result has been reached, and no evidence is required. This court may have the right under the constitution as an appellate tribunal to infer one fact from another in a special verdict, or a finding of facts, where the result is determined by a fixed and certain rule of law. Otherwise, when it infers one fact from another fact, it is exercising original jurisdiction, and assuming a power which has not been conferred on it. This it is always bound to avoid. I cannot agree that the facts are properly found herein, and in my opinion, the judgment should be reversed, and the cause remanded for a new trial. ^ * * * 1 See Ins. Co. v. Trust Co., 71 Fed. 88. CHAPTER VI. NEW TRIALS. Section 1. Grounds.* ANONYMOUS. 14 Henry VII, 1 (3). [1499.] In the common bench a jury was charged, and gave a verdict for the plaintiff. And now Kingsmill came to the bar and said that, after the jury was charged, and before the verdict, the jurors ate and drank ;i and he prayed a venire facias de novo. Upon which Vavisor held that the verdict was bad because of this misdemeanor 2 of the jurors, and awarded a new venire facias.^ Quod Nota. PRIOR v. POWERS. 1 EeUe, 811. [1665.] In an action upon the case for misusing a horse, Orlaby prayed a new trial, because the jurors in Bedfordshire being divided six * It will be noted that most of 2 Brookes New Cases, 447 the errors treated imder chapters (1556): "Jury took a scroll of III, IV and V are corrected by a the plaintiff, which was not deliv- new trial e. g., error in refusing a ered to them in court, and passed continuance, ia selecting a jury, in for the plaintiff: and because that ruling on matters of evidence, in this matter appeared to the court compelling joinder in a demurrer by examination, therefore the plain- to the evidence, in directing a ver- tiff shall not have judgment. 3 M. diet, in charging the jury, etc. 1 B. Jurors 8." It is not intended in this section 3 For the supposed distinction be- to exhaust the possible grounds for tween a motion for a new trial and new trials, but merely to take up a venire facias de novo, see L. C. J. the more common ones, not touched WUles in Witham v. Lewis, 1 Wil- under the preceding headings. — Ed. son 48, loc. 55-6. 1 See Sanders v. Freeman, Moore, 33, ante, p. 590. 683 684 NEW TRIALS [ChAP. VI. and six they agreed by lot, putting two sixpences into a hat, that which the bailiff took, that way the verdict should go, which was for the plaintiff, and second, damages ; but the court denied it, because it appeared only by pumping a juryman, who con- fessed all; but being against himself, it was not much regarded. Also the court cannot grant new trial without punishing the jury, which cannot be by this confession against themselves: And by Windham, this is as good a way of decision as by the strongest body, which is the usual way, and is suitable in such cases to the law of God. Twisden doubted it would be of ill example, and in Sir Philip Acton case, on such verdict, on fillip of counter, a new trial was granted, but here it was denied. HALE V. COVE. 1 Strange, 642. [1726.] The jury having sat up all night, agreed in the morning to put two papers into a hat, marked P. and D. and so draw lots; P. came out, and they found for the plaintiff, which happened to be according to the evidence and the opinion of the judge. Upon motion for a new trial, it was agreed that the verdict must be set aside; but the question was, whether the defendant should pay costs; the court inclined to give the plaintiff costs, comparing it to the ease of a verdict against evidence ; but at last it was agreed that the costs should wait the event of the new trial. DANA V. TUCKER. 4 Johnson (N. Y.), 487. [1809.] This was an action for a breach of promise of marriage, tried at the last Madison circuit, when the jury found a verdict for the plaintiff for $439.58. Gold now moved to set aside the verdict, for the misbehavior of the jury. He read the affidavit of the constable, who was sworn to attend the jury, while they retired to deliberate on their verdict, who stated, that the jurors agreed, that each of them should mark down such sum as he thought fit to find, and Sec. 1.] slade's case. 685 the sum total being divided by twelve, tbe quotient should be the verdict, and that the verdict was so ascertained. Similar affidavits of two of the jurors were also read. N. Williams, contra, read the affidavits of two other jurors, stating that the jury, after some deliberation, unanimously agreed to find a verdict for the plaintiff; that each juror then privately marked the sum he was inclined to give ; eight of them marked $500, one $600, and one $50. The sums so marked were added together, and the amount divided by twelve, and the sum produced by the division they afterwards agreed sbould be their verdict. After the verdict was delivered in court, in the usual form, the jury were polled, and each of the jurors, on being asked whether he agreed to the verdict, declared his assent. Per curiam,. The better opinion is, and such is the rule adopted by the court, that the affidavits of jurors are not to be received to impeach a verdict; but they may be admitted in exculpation of the jurors, and in support of their verdict. Rejecting the affidavits of the two jurors against the verdict there is the affidavit of two other jurors in favor of the verdict, which must outweigh that of the constable. If the jurors previously agree to a particular mode of arriving at a verdict, and to abide by the contingent result, at all events, without reserving to themselves the liberty of dissenting, such a proceeding would be improper ; but if the means is adopted merely for the sake of arriving at a reasonable measure of damages, without binding the jurors by the result, it is no objection to the verdict. Such appears to have been the case here; and after the result of the division was known, they individually assented to the sum as their verdict. The motion must be denied. Eule refused. 1 SLADE'S CASE. atyU, 138. [1648.] The court was moved for judgment formerly stayed upon a certificate made by Baron Atkins that the verdict passed against 1 See also Eay v. Goings, 112 111. For a case where the fact of a 656, where it was sought to elicit quotient verdict sufaciently ap- the information on a poll of the peared, see Int. Ag. Co. v. Aber- jmy, crombie, 63 South. Ifop. 547. 686 NEW TRIALS. [ChAP. VI. his opinion. Bacon, Justice, said judgments have been arrested in the Common Pleas upon such certificates. Hales of counsel with the defendant prayed that this judgment might be arrested, and that there might be a new trial, for that it hath been done heretofore in like cases. But Roll, Justice, held it ought not to be stayed, though it have been done in the Common Pleas, for it was too arbitrary for them to do it, and you may have your attaint ^ against the jury, and there is no other remedy in law for you; but it were good to advise the party to suffer a new trial for better satisfaction. And let the defendant take four days from hence to speak in arrest of judgment if the postea be brought in, if not, then four days from the time it shall be brought in. WOOD V. GUNSTON. Style, 466. [1655.] "Wood brought an action upon the case against Gunston for speaking of scandalous words against; and amongst other words for calling him traitor, and obtains a verdict against him at the bar, wherein the jury gave £1500 damages. Upon the supposition that the damages were excessive, and that the jury did favor the plaintiff, the defendant moved for a new trial. But Sergeant Maynard opposed it, and said that after a verdict the partiality of the jury ought not to be questioned, nor is there any presidents for it in our books of the law, and it would be of dangerous consequence if it should be suffered, and the greatness of the damages given can be no cause for a new trial, but if it were, the damages are not here excessive if the words spoken be well considered, for they tend to take away the plaintiff's estate and his life. Windham on the other side pressed for a new trial, and said it was a packed business, else there could not have been so great damages, and the court hath power in extraordinary eases, such as this is, to grant a new trial. Glyn, Chief Justice : It is in the discretion of the court in some cases to grant a new trial, but this must be a judicial, and not an arbitrary discretion, 1 See remarks of Eteb, C. J., in Gibson v. Hunter, ante, p. 295. Sec. 1.] WOODFORD V. eades. 687 and it is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them, and it is for the peoples benefit that it should be so, for a jury may sometimes by indirect dealings be moved to side with one party, and not to be indifferent betwixt them, but it cannot be so in- tended of the court; wherefore let there beia new trial the next term, and the defendant shall pay full costs, and judgment to be upon this verdict to stand for security to pay what shall be recovered upon the next verdict.^ WOODFORD V. BADBS. 1 Strange, 425. [1721.] On a contract for stock between the plaintiif and J. S. they each deposit £200 in the hands of the defendant, and J. S. not performing his agreement the plaintiff sues for the deposit, and had judgment on demurrer, and took out a writ of inquiry, and proved his case ; but the jury, on a notion that the defendant could not pay out the money without consent of both parties, gave Id. damages; which was now set aside, the court saying, that the rule of not setting aside verdicts for the smallness of the damages did not extend to this case, where the jury mistook in point of law ; and the chief justice said he knew no reason why the court should not interpose in the other case. 1 Ash V. Aah, Comberbach, 357 a new trial, for the excessiveness of (1697). the damages. ' ' Assault, battery, and false im- ' ' Holt, C. J. : The jury were prisonment. The Lady Ash pre- very shy of giving a reason of their tended that her daughter, the plain- verdict, thinking they have an ab- tiff, was troubled in mind, and solute despotic power, but I did rec- brought an apothecary to give her tify that mistake, for the jury are physic, and they bound her, and to try causes with the assistance of would have compelled her to take the judges, and ought to give rea- physie. She was confined but about sons when required, that, if they go two or three hours, and the jury upon any mistake, they may be set gave her £2,000 damages. right, and a new trial was "Sir Babth. Showeb moved for granted." 688 NEW TRIALS. [ChAP. VI. BAEKEE V. DIXIE. 2 Strmge, 1051. [1736.] In case for a malicious prosecution of an indictment for felony the jury found for the plaintiff and gave 5s. damages. And upon motion for a new trial on account of the smallness of damages the court held there could be no new trial on that account ; ^ for this was not a false verdict, as finding for the defendant would be, and would subject' them to an attaint ; whereas they having found rightly for the plaintiff, no attaint would lie. And new trials came in the room only of attaints, as a more expedi- tious and easy remedy. PHILLIPS V. LONDON & S. W. EY. CO. L. B. 5 Q. B. D., 78. [C. A. 1879.] This was an appeal by the defendants from a decision of the Queen's Bench Division directing a new trial. The application was made on the ground of insufficiency of damages and mis- direction. The court granted a new trial on the former ground only. The action was brought by Dr. Phillips, a physician in Gros- venor Square, against the London and South Western Eailway Company to recover damages in consequence of an alleged negli- gent act of their servants in bringing about a collision on the 8th of December, 1877, between the train in which Dr. Phillips was being carried to London, and a light engine- which was on the same line of rail. * * * The jury gave the plaintiff £7,000. The plaintiff moved for a new trial, which was granted by the Queen's Bench Division, on the ground that the amount of damages given by the jury was so small as to show that they must have left out of consideration some of the circumstances which ought to have been taken into account. The defendants appealed. James, L. J. In this case we are of opinion that we cannot on any of the points differ from the judgment of the Queen's Bench Division. The first point, which is a very important one, relates to dis- 1 See also Priehard v. Hewitt, 91 Mo. 547. Sec. 1.] NORTHERN PAC. EY. V. HEEBERT. 689 senting from the verdict of a jury upon a matter which, gen- erally speakiag, is considered to be within their exclusive province, that is to say, the amount of damages. We agree that judges have no right to overrule the verdict of a jury as to the amount of damages, merely because they take a different view, and think that if they had been the jury they would have given more or would have given less, still the verdicts of juries as to the amount of damages are subject, and must, for the sake of justice, be subject, to the supervision of a court of first in- stance, and if necessary of a Court of Appeal in this way, that is to say, if in the judgment of the court the damages are unrea- sonably large or unreasonably small then the court is bound to send the matter for reconsideration by another jury. The Queen's Bench Division came to the conclusion in this case that the amount of the damages was unreasonably small, and for the reasons which were given by the Lord Chief Justice, pointing out certain topics which the jury could not have taken into con- sideration. I am of opinion, and I believe my colleagues are also of opinion, for the same reasons and upon the same grounds, that the damages are unreasonably small, to what extent of course we must not speculate, and have no business to say. We are, therefore, of opinion that the Queen's Bench Division was right in directing a new trial. * * * Appeal dismissed. NORTHERN PAC. RY. v. HERBERT. 116 V. S. 643. [1885.] The plaintiff sued for the loss of his leg which was crushed between the bumpers. There was a verdict in favor of the plaintiff for $25,000. A motion for a new trial was made on various grounds; among others, that the damages were excessive. The court ordered that a new trial be granted unless he remitted $15,000 of the verdict, and in case he did so that the motion be denied. He remitted the amount, and judgment was entered in his favor for the balance, and costs of suit, which the Supreme Court of the Territory affirmed. The defendant then sued out this writ of « * H. T. P.— 44 690 NEW TRIALS. [ChAP. VI. Mr. Justice Field: * * * 2. The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand.^ Hg,yden v. The Flor- ence Sewing Machine Co., 54 N. Y. 221, 225 ; Doyle v. Dixon, 97 Mass. 208, 213 ; Blunt v. Little, 3 Mason, 102, 107. * * * STAFFOED v. PAWTUCKET HAIR-CLOTH CO. 2 Cliffard, 82. [1862.] Action to recover damages for the infringement of a patent on an improvement in hair-cloth looms. Defendants pleaded the general issue, and gave notice that they should prove the com- plainant not to be the original and first inventor of the improve- ment. Pitman, district judge, presided at the trial, which was had at the November Term, 1860, and charged the jury. Verdict for complainant for the sum of $2,500. * * * Clifford, J. A new trial is asked, among other reasons, be- cause the damages awarded by the jury in the cause are exces- sive, and indicate a total misapprehension of the case, and the evidence in this regard, as shown by the report of the evidence. In substance and effect, the charge of the court directed the jury to confine their attention to one machine, and they were expressly told that the court could see no particular proof of actual damages. Looking at the whole ease, it is quite clear that the damages are greatly excessive, and plainly the finding was without sufficient evidence to justify it, and contrary to the charge of the court. Such errors may in many eases and under 1 Accord, Ey. v. Hall, 232 U. S. See also Land Co. v. Mann. 130 94; Ohitty v. Ey., 166 Mo. 435 (re- U. S. 69, reviewing large number of viewing Missouri cases). the American cases. Sec. 1.] WATT V. watt. 691 most circumstances be obviated by remitting the amount of the excess, but where the circumstances clearly indicate that the jury were influenced by prejudice or by a reckless disregard of the instructions of the court, that remedy cannot be allowed. Where such motives or influences appear to have operated, the verdict must be rejected, because the effect is to cast suspicion upon the conduct of the jury and their entire finding. After careful consideration of the evidence and the circum- stances of the trial, we are constrained to come to the conclu- sion that the case falls within the latter rule. Parties have a right to an impartial trial, and where the finding of the jury is so excessive, and so wholly opposite to the charge of the court, it is not possible to say that the requirements of the law in that behalf have been fulfiUed.'^ In view of the whole case, we are of the opinion that the ver- dict must be set aside and a New trial granted. WATT V. WATT. L. R. Appeal Cases [1905], 115. The respondent brought an action against the appellant for libel which was tried before Gainsford Bruce, J., and a special jury. The defendant did not justify; the jury found a verdict for the plaintiff for £5,000, and the learned judge entered judg- ment for her for that sum. On appeal by the defendant the Court of Appeal (Collins, M. R., Mathew and Cozens-Hardt, L. JJ.), considering that the damages awarded were excessive and unreasonable, made an order for a new trial unless the plaintiff consented to the damages being reduced to £1,500. The plaintiff consented, and the judgment of Gainsford Bruce, J., was amended accordingly. Hence this appeal. * * * Earl of Halsburt, L. C. My Lords, in this case I think there ought to be a new trial. I say this quite independently of what I have to say hereafter upon the subject of the jurisdiction of the court to direct the amount of the damages without the con- sent of both parties to the litigation. I think the trial itself was 1 But see Heimlich v. Tabor, 123 Wis. 565 (an extreme ease). 692 NEW TRIALS. [ChAP. VI. most unsatisfactory, and the verdict ought not to be permitted to stand. * * * I am, however, further of opinion that the court has no juris- diction to fix the amount of damages without the consent of both the parties. This question was raised in Belt v. Lawes (12 Q. B. D. 356), and though it was not necessary for the decision in that case, a weighty opinion was given by my noble and learned friend Lord Lindley, which has made me hesitate before I come to a conclusion opposed to his. There has been, doubtless, some confusion in discussing the question of damages arising from the mode in which our law has grown up. The court itself has the right, and has exercised it in various ways when the question has arisen upon demurrer or default. It may send it, as has been commonly the practice, to the sherifE to assess; but it has the right, which has always been asserted, to decide that question for itself — ^probably be- cause that question is often a question of law, where the dam- ages are fixed by law, and where it was mere matter of law it was established in very early times (10 Hen. 6) that the court itself could even increase the damages ; and so the learned editor of Reeves' History of the Common Law says : "There was always this distinction between trial by jury and mere inquisition or inquiry by a jury to assess damages — that, in the latter case th^ inquisition was only to inform the mind of the court and it was at their discretion whether they would award judgment for the amount found by the jury, whereas upon a trial they had no jurisdiction to interfere as to the amount of damages in cases of tort;" but where the jury had found larger damages than were laid in the declaration the court held they were entitled to restrict them to the amount claimed (2 Hen. 6, c. 7). The courts, however, adopted the somewhat unconstitutional pro- ceeding of refusing to give the plaintiff judgment unless he would consent to reduce his claim to what ought to be considered reasonable, and hence the practice and the impression that the court, with the consent of the plaintiff, could reduce the amount of damages. My Lords, I am unable after a very anxious examination of the earlier authorities to assent to the legality of this proceed- ing unless by the assent of both parties. The very indirect method of the proceeding that they would not give the plaintiff judgment shows that they could not do it without the plaintiff's Sec. 1.] ANONYMOUS. 693 assent; and one can well understand that the defendant was not very likely to refuse his assent to a proceeding intended for his benefit. The theory of all the cases seems to me to be that the right of the court to interfere with a jury 's verdict was only to be by the assent of both parties. Assume it to be the constitutional view that a person can only have damages assessed against him for a tort, what right has a court to intervene and say that damages which in its judgment are appropriate shall be the amount assessed against him? The only judgment by a jury is one which the court itself by the hypothesis says is unreasonable and excessive. Has not the de- fendant a right to say, "I refuse to have judgment assessed against me by a court ? The law gives me a right to a jury, and how does the fact that a jury have already found a verdict against me, which you decide cannot be allowed to stand be- cause it is unreasonable and excessive, displace my right to have the verdict of a jury upon the question?" Hesitating, as I do, to differ from the opinion expressed by my noble and learned friend Lord Lindley, I have come to the conclusion that there is no power in the court to alter the ver- dict except by ordering a new trial; and for these reasons I move your Lordships that the judgment appealed from be re- versed and a new trial had. ^ Order of the Court of Appeal reversed